Tracy v. Troy & Lansingburgh Railroad

7 N.Y.S. 892, 61 N.Y. Sup. Ct. 550, 27 N.Y. St. Rep. 633, 54 Hun 550, 1889 N.Y. Misc. LEXIS 1364

• Court: New York Supreme Court
• Decided: December 11, 1889
• Status: Published

Opinion

Learned, P. J.

This is an appeal from an order of Mr. Justice Edwards, vacating, on a hearing of both sides, an ex parte order granted by Judge Mott. The order of Judge Mott restrained the defendant fr.om erecting upon Second avenue, in the village of Lansingburgh, opposite the plaintiff’s lot described in the complaint, or opposite any other lots of plaintiff in the said village, any poles for the sustaining or forming part of an electric motor system for furnishing power for propelling cars. The learned justice who vacated the order, without passing upon the important questions which might arise on a trial of the action, placed the reversal of the order, in his opinion, on the ground that this was not a case where an injunction pending "the action should be granted. He held that there was no evidence that, if the defendant’s work was allowed to proceed until the trial of the action, any irreparable injury would be done, or any injury which could not be compensated by a pecuniary payment; and he further said that if the injunction were allowed to stand a public improvement, believed to be of utility, would be obstructed for many months, which in the end might be allowed to proceed. And, further, that by this temporary injunction the plaintiff had, without a trial, accomplished the object of his action, and had no longer any inducement to press forward the case. With these views, for a fuller statement of which we refer to his opinion, we concur. They are in harmony with the decision of this court in Power v. Village of Athens, 19 Hun, 167. We therefore affirm the order, without expressing any opinion as to right of the plaintiff on a trial to have a perpetual injunction, as prayed for. Order affirmed, with $10 costs and printing disbursements. All concur.