Tracy v. Troy & Lansingburgh R. R. Co.

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 Nott. The order of Judge Mott restrained the defendant from 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 is Power v. Village of Athens, 19 Hun, 167 .

We, therefore, affirm the order without expressing any opinion as to the right of plaintiff on a trial to have a perpetual injunction as prayed for.

Order affirmed, with ten dollars costs, and printing disbursements.

Putnam and Fish, JJ., concur.