Mapes v. Charles — 8 N.Y.S. 665

Majority

p. 665

Mapes et al. v. Charles et al.

(Supreme Court, General Term, Second Department.

February 12, 1890.)

Headnote

Trespass—Injunction.

Injunction will not lie to restrain a single act of trespass, where irreparable damage to plaintiffs therefrom is neither alleged nor proved.

Appeal from special term, Westchester county.

Action for injunction to restrain an alleged threatened trespass, by Daniel Mapes, Jr., and Phebe J. Arnow, executors of Matson S. Arnow, deceased, against Walter Charles and others, individually and as highway commissioners. The trespass alleged to be threatened was the removal of a fence on property belonging to the estate of the decedent. The complaint was dismissed, and plaintiffs appeal.

Argued before Barnard, P. J., and Pratt, J.

Baker & Risley, for appellants. H. C. Henderson, for respondents.

There are certain cases in trespass where equity will intervene, and prevent by injunction a threatened trespass: Where a proceeding in equity will prevent a multiplicity of suits; or where the trespass amounts to waste; or where the injury is irreparable, or such an injury as cannot be well satisfied by money damages. This case falls under no head of equity jurisdiction, The suit only relates to one single act of trespass, and irreparable damage is not alleged or proved. It is clearly a case where the plaintiffs, if right in their contention, have an adequate remedy at law for any trespass that may be committed. While legal and equitable proceedings are blended together, a party, to entitle himself to an equitable remedy, must establish what under the former practice would have been an equitable cause of action. This is too familiar to require citation of authorities. If these views are correct, it follows that the complaint was properly dismissed. Judgment affirmed, with costs.