Warsaw Waterworks Co. v. Village of Warsaw — 74 N.Y. St. Rep. 638

Majority

p. 638

Warsaw Waterworks Company, App'lts v. Village of Warsaw et al., Resp'ts.

(Supreme Court, Appellate Division, Fourth Department,

Filed April, 1896.)

Headnote

Injunction—Pendente lite.

Where all of the equities of the complaint are denied in the answer, an injunction pendente lite will not be continued where plaintiff's right to the ultimate relief sought is not clearly established.

Appeal from an order vacating a temporary injunction.

Eugene M. Bartlett, for app’lt; I. Sam. Johnson and Adelbert Moot, for resp’ts.

On the 17th of November, 1895, a temporary injunction was granted "by a justice of this court restraining the defendant “from removing any hydrants from plaintiff’s mains, threatening any of its customers with discriminating taxes, or-soliciting any of its patrons to disconnect their service pipes from this plaintiff’s mains, or disconnecting any such service pipes, or in any manner interfering with this plaintiff’s exercise or enjoyment of its rights, privileges, and franchises.” Upon a motion, made at special term in December, 1895, this injunction was vacated, and the plaintiff appeals to this court.

The questions involved in this action cannot be satisfactorily decided until the issues of fact have been tried and determined, and we ought not and will not attempt to define and settle the ultimate rights of the litigants on affidavits, and, without expressing any opinion upon the questions involved, further than to say that the rights asserted by the plaintiff as the foundation for the relief sought are not so clearly established in the affidavits as to authorize this court to restore and continue the injunction pendente lite. It is conceded that the hydrants which were purchased by the defendants and attached to the plaintiff’s line of water pipes

p. 639

have been removed by the defendants, and, it not being clearly established that the defendants have threatened or now threaten to do any of the things restrained by the original injunction order, it should not be restored. Besides, all of the equities of the complaint are denied in the answer, and in such a ease an injunction pendente lite will not be continued where the plaintiff’s right to the ultimate relief sought is not clearly established.

The order is affirmed, with $10 costs and printing disbursements.

All concur, except WARD, J., not voting.