Majority
p. 116MICHAEL NOONAN, Appellant, v. WILLIAM R. GRACE, et al., Respondents. Before Sedgwick, Ch. J., Truax, and O’Gorman, JJ. Decided April 9, 1883. —It is a principle uniformly observed that an injunction to stay waste will not be granted where it is doubtful whether the acts com-, plained of are waste; “in such case the question of
Headnote
Preliminary injunction—when granted.—Legislative 'authority to common council—when can he delegated to mayor.To justify granting a preliminary injunction, the plaintiff’s rights must be certain as to the law and the facts; and where, in an action for an injunction, the grounds of the preliminary order are not stated therein, and it appears from the complaint that the propositions of law upon which plaintiff’s claim rests are doubtful, the order should be vacated.
Whether, under an act of the legislature authorizing the common council of a city to grant certain privileges as to the public streets, “.under such reasonable regulations as they may prescribe,” said council are authorized to pass a resolution granting such privileges, ‘1 upon such conditions as •may be prescribed and approved by his Honor the Mayor, etc.,” qucere.
Appeal by plaintiff from order vacating an order of preliminary injunction.
The action was for judgment restraining the defendants, who were respectively the mayor, the comptroller, and the commissioners of public works, of the city of New York, from granting to the Equitable Gas Light Company, a corporation formed under L. 1848, ch. 37, the right to lay gas-pipes in the streets of this city, etc.
John H. Strahan, for appellant.
George P. Andrews, corporation counsel, and William M. Ivins, for respondent.
p. 117waste or no waste must first be decided” (Joyce on Inj. 111). Further than this,-“the jurisdiction of equity in restraint of the action of municipal corporations in regulating streets and highways, is exercised with much cautjon, and is not regarded as a favorite jurisdiction with the courts.” u And. with the control of matters resting largely on the discretion of municipal authorities equity will not ordinarily interfere ” (High on Inj. 2 ed. § 587). And apprehension of a future injury, even though preliminary steps may have actually been taken by a public body, sought to be enjoined, does not constitute sufficient ground for interference. Thus it has been held that the presenting of a petition to the commissioners of highways for a private road, and an express determination on their part by ordering a survey of the road, to grant the petition, will not authorize a court of equity to enjoin the proceedings (Winkler v. Winkler, 40 Ill. 179 ). There is not a single fact alleged by the plaintiff which tends to show other than that the defendants have done the best possible for the city. But even if better terms for the city could have been made, it has been repeatedly held that equity will not enjoin municipal authorities upon the ground that a more advantageous contract might be obtained for certain public franchises (People v. Mayor, 32 Barb. 102 ; High on Inj. 2 ed. § 1240, and cases there cited). Further than this, the act of 1848 authorizes the common council to grant their consent under such reasonable regulations as they may prescribe.
—In my opinion, the rules of practice and law, call for an affirmance of the order vacating the injunction. The ground upon which the order of injunction was issued was not stated in it. It is necessary to look to the complaint to find on what claim the plaintiff alleges that he is entitled to an injunction. To justify granting a preliminary injunction the plaintiff’s rights must be certain as to the law and the facts.
p. 118
One claim is apparently as follows : the legislature provided (L. 1848, ch. 37, § 18) that any gas-light company formed under that act, should have power to lay conductors for conducting gas, through the streets of cities, with the consent of the municipal authorities of said city, and under such reasonable regulations as they might prescribe. The complaint then avers that the common council of this city duly enacted a resolution 11 that permission be and is hereby given to all incorporated gas-light companies to lay gasrpipes, etc., in the city, etc., upon such conditions, as may be prescribed and approved by his Honor the Mayor, the Comptroller and the Commissioners of public works, etc.” The complaint then alleges certain matters intended to show that this resolution had been impliedly repealed or was no longer in force. These-matters did not have the force intended, but on the face of the complaint it appears that the resolution is still in existence. The complaint then alleges what is tantamount to an averment that the common council had no power to pass this resolution, because it delegated to officers named in it, the exercise of power and discretion that the act intended should be exercised by the common council itself. In my opinion, this proposition is not so clearly correct, that it should be assumed, as the ground for an injunction. There is doubt,, that that part of the resolution which gives permission upon such conditions as may be prescribed, and approved by his Honor the Mayor, etc., is not within the clause of the act “ under such reasonable regulations as they may prescribe.”
The complaint further claims an injunction upon the character of the conditions, which it is alleged the defend-j ants intend to impose upon the company, averring that these conditions do not properly provide for the benefit or advantage of the tax-payers or inhabitants of the city. On this point the preponderance of testimony was with the de. fendants, who showed by a witness of greater means of information than those possessed by plaintiff’s witness, that the defendant did not intend to give a permit upon, the
p. 119
conditions referred to, but had expressed the intention of imposing other conditions, more favorable to the city.'
.The order appealed from should be affirmed, with $10 costs.
Truax and O’Gorman, J., concurred.
Cases cited
- People v. Mayor of New York 32 Barb. 102 p. 117