Wynkoop v. Van Beuren — 33 N.Y. St. Rep. 994

Majority

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Ann E. Wynkoop, Pl’ff, v. Mary S. Van Beuren et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

1. Injunction.

Where there is a decided dispute as to the facts which can only be settled by a trial, and it is quite uncertain what the result of a trial will be, it is proper to vacate a preliminary injunction, especially where the plaintifl is fully indemnified against loss.

2. Same—Adjoining ownebs—Pabty-wall—Bond.

On vacating a preliminary injunction in an action to prevent defendants

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from interfering with a party-wall, the court required them to give a bond conditioned for the páyment of any damages plaintiff should sustain by reason of the construction of their wall. Reid, that the condition of the bond was too broad; that they should have been required only to secure payment for any damage plaintiff might sustain by reason of their improvements for which they are, or any of them might be, liable.

Appeal by plaintiff from an order refusing to continue injunction, and by defendants from a provision in the order requiring the giving of a bond.

The provision of the order concerning the bond was as follows: “ If, within forty-eight hours after the service of a copy of this order on plaintiff’s attorney, the necessary permission or license be given to the defendants to enter Ho. 5 Bast Thirteenth street for the purpose of needling, shoring up and underpinning the easterly wall of said 5 East Thirteenth street, that then the defendants, within ten days from the entry of this order, give a bond, or bonds, in the penalty of $10,000, to be approved by one of the justices of this court, and conditioned for the payment by the defendants jointly and severally of such damages, if any, including loss of rents, if any, as the plaintiff may sustain by reason of the construction of the westerly wall of Ho. .7 Bast Thirteénth street^

O. B. Alexander, for pl’ff; W. Mitchell, for def’ts.

This action was brought to enjoin the defendants from interfering with a certain party wall between the premises owned by the defendants and other premises leased by the plaintiff.

The defendants, desiring to improve the adjacent premises, offered, preliminary to the commencement of excavations, to shore up the plaintiff’s wall upon receiving permission so to do, which was refused. They thereupon commenced their excavations, which excavations, according to the allegations of the complaint, would necessarily injure the wall of plaintiff’s building.

Upon a reading of the affidavits, it will be seen that there is a decided dispute as to the facts, which can only be settled by a trial of the action; and, as is suggested by the learned justice who heard the motion below, the facts are not fully developed in the papers, and it is quite uncertain what the result of a trial may be.

Under these circumstances it is peculiarly fitting, before the court grants the extraordinary remedy of an injunction, that it should require a trial of the action in order that the facts might be fully and completely developed. If any rights of the plaintiff were infringed by the defendants, the court below was careful to preserve indemnity for such injury by requiring the bond mentioned in the order.

The condition of the bond, however, it seems to us was too broad. It in reality adjudges that under any circumstances the defendants are liable for any injuries which plaintiff may sustain by reason of the defendants’ improvements of their own land,whether such injuries gave rise to a legal claim or not. The requirement of a bond with such a condition we think was error. The de

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fendants should have been required only to secure payment to the plaintiff for any damage which she might sustain by reason of these improvements for which the defendants or any of them might be liable.

The order, therefore, should be affirmed so far as it dissolves; the injunction, with ten dollars costs and disbursements of the appeal; and modified so far as' it requires a bond conditioned absolutely to pay any damage which may be sustained, and as modified the order should be affirmed.

A motion has been made in connection with this appeal, to dismiss the same upon the ground that the defendants have accepted the conditions contained in the order appealed Aom by giving the bond in question.

It will be noticed upon a reading of the order that the injunction is not dissolved upon condition of their giving a bond. The order absolutely dissolves the injunction. It then further orders that if the plaintiff gives permission to shore up the wall within forty-eight hours after service of a copy of the order, then the defendants within ten days shall give the bond. There is no provision in the order that if the bond is not given the injunction shall be restored. Neither is the dissolving of the injunction apparently made to depend upon the giving of the bond. Therefore, if under any circumstances it could be claimed that the de- - fendants had waived their right of appeal by accepting the condition of their order, still under the form of the order under consideration no such question arises.

The motion to dismiss the appeal should be denied, without costs.

Brady and Daniels, JJ., concur.