East River Electric Light Co. v. Grant — 30 N.Y. St. Rep. 793

Majority

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The East River Electric Light Co., App’lt, v. Hugh J. Grant, as Mayor, etc., et al., Resp’ts.

(New York Superior Court,

General Term,

Filed March 4, 1890.

Headnote

I. Pleading—Injunction.

A complaint in an action for an injunction placed plaintiff’s right to use the poles on its possession of a franchise under an ordinance authorizing it to place its wires, etc., “ according to such plans as may bo directed, approved or allowed by ” the electrical subway commissioners, and alleged that it strung its wires “ pursuant to the authority conferred upon it by law,” but contained no allegations of fact showing that it had strung the wires according to the plans referred to in the ordinance, or that it had received the permit to use the poles for its wires. Held,, that the complaint was demurrable.

'2. Injunction—Pboof necessaby fob.

It was admitted that the board of electrical control could, on reasonable notice, for reasonable cause, require the removal of the wires. It was not shown what the time of reasonable notice would be, or what damages plaintiff would sustain by not being permitted to retain its wires for such time. Held, that it did not show a right to an injunction.

3. Same.

A permit to string wires on existing poles refers to poles rightfully in the streets and does not operate after they cease to be rightfully there.

Appeal by plaintiff from order denying motion for continuance of temporary injunction.

William H. Kelly, for app’lt; William H. Olark, for resp’ts.

The action was for an injunction restraining the defendants from proceeding to remove the wires of the plaintiff from certain poles in the Sixth avenue, from Eighteenth street to Carmine.

I am of opinion that the views expressed by the learned judge below, in dissolving the temporary injunction, were correct. Some considerations, not pertinent to the view he took, may be adduced in support of the result.

The complaint was demurrable. It placed the plaintiff’s right to use the poles upon its possessing a franchise under the terms of an ordinance, as follows: “ That permission and authority are hereby given and granted unto the East Eiver Electric Light Company, to place, construct and to use wires, conduits and conductors for electrical purposes in the city of New York, and over and under the streets, avenues, etc., according to such plans as may be directed, approved or allowed by and subject to the powers of the electrical subway commissioners and to the provisions of chap. 499 of the Laws of 1885.” There were, however, no allegations of fact to show that the plaintiff “ strung its electric wires ” according to the plan and the provisions referred to in the ordinance.

There was no averment that it had received a permit from the board of electrical control to use the poles for the wires. It alleged a matter of law only, that it strung its wires “ pursuant to the authority conferred upon it by law.”

The plaintiffs did not show a right to the equitable and discre

p. 794

tionary. relief of injunction. The object of the relief as asked was to restrain the commission of a trespass. The facts, however, stated in the complaint and in the affidavits did not prove that the plaintiff could not obtain full and adequate relief by the recovery of damages.

It was admitted on the argument that the board cf electrical control could, upon reasonable notice, for reasonable cause, require the plaintiff to remove its wires from the poles. It appeared that there was reasonable cause on which the board could act; for instance, the poles themselves were incumbrances which might be lawfully removed, and the poles were of a size that was not necessary to the business of the plaintiff. Therefore, the right of plaintiff, construing all things most favorable to them, was to maintain the wires until such reasonable notice.

The plaintiff did not show what the time of reasonable notice would be, and of course did not show the extent of the damages the plaintiff would suffer from not being permitted to retain its wires upon the poles during the lapse of that time.

The plaintiff in part relies upon a permit of the board that authorized the plaintiff “ to string four wires on existing poles on Sixth avenue, from Eighteenth street to Carmine street.” The permit necessarily referred to the poles as then rightfully there. It was not implied that the permit should operate after the poles ceased to be rightfully in the streets.

The order should be affirmed, with ten dollars costs to abide the event, and the disbursements to be taxed.

Trtjax and Dhgro, JJ., concur.