Young v. Rondout & Kingston Gas Co. — 41 N.Y. St. Rep. 109

Majority

p. 109

Edwin Young, Resp’t, v. The Rondout & Kingston Gas Co., App’lt.^[1]

(Court of Appeals,

Filed December 1, 1891.)

Headnote

1. Injunction—Dissolution op.

To dissolve an injunction with the inevitable result of defeating plaintiff’s remedy without a trial, the court must be entirely satisfied that the case is one in which by settled adjudication the plaintiff upon the facts stated is not entitled to final relief.

2. Same—Laws 1884, chap. 367—“Business op a similar nature.”

Where plaintiff, a stockholder, has brought an action to restrain a gaslight company from consolidating with an electric light company, on the ground that the proposed consolidation was unlawful and would be ruin-

p. 110

pus to the former, and an injunction pendente lite has been granted, it will not he dissolved on the ground that the corporations are so similar as to come within the provisions of chapter 367, Laws 1884. It is a question fairly open to discussion.

Appeal from judgment of the supreme court, general term/ third department, affirming order of special term granting injunction restraining defendant from consolidating with the Kingston Electric Light, Heat & Power Company until further order.

Linson & Van Buren, for resp’t; Putney & Bishop, for app’lt.

The doctrine recently declared in Hudson River Telephone Co. v. Watervliet T. & R. R. Co., 121 N.Y., 397 ; 31 St. Rep., 524 , seems to us decisive of this appeal. To dissolve an injunction with the inevitable result of defeating plaintiff’s remedy without a trial we must be entirely satisfied that the case is one in which by settled adjudication the plaintiff upon the facts stated is not entitled to final relief. We cannot say that of this plaintiff’s complaint in advance of a trial.

The grievance alleged and sought to be prevented is a proposed consolidation of two companies which it is claimed will be ruinous to the stockholders of one. And the grounds of resistance alleged are that the two corporations are not so similar as to come within the legislative provision, that the act itself is permissive merely and does not exclude the interference of the court to prevent a wrong and injustice, and that the law of 1884 is in some of its features unconstitutional.

These are grave and serious questions. On this motion we ought not to decide them. Whether the gas company and the electric light company are “ similar ” within the meaning of the statute, when their modes of operation are different, and one is organized not merely to supply light but to manufacture and sell the apparatus for that purpose, is a question fairly open to discussion ; and the other questions are too debatable to be decided on this motion.

The appeal should, therefore, be dismissed, with costs.

All concur.