
    The City of Kingston, Respondent, v. The Colonial City Traction Company, Appellant, Impleaded with The Ulster and Delaware Railroad Company.
    Injunction— to prevent the obstruction of a city street — not granted to restrain one railroad company from enforcing its conceded rights against another.
    
    In an action brought by a city against a railroad company and a traction company, it appeared that the railroad company having without right placed a crossing over the tracks of the traction company, then, brought an action to restrain the - traction company from interfering, with the crossing and obtained a.tempóraf y injunction, which was subsequently vacated, upon the ground that the action of the railroad company was illegal. The , city, in the action subsequently brought by it, alleging that the defendants were obstructing a public street at the crossing and were creating a nuisance therein, obtained an.inj unction which restrained both the'defendants from interfering with the street. From this order the traction company appealed.
    
      Held, that, as to it .the injunction should be vacated.
    Appeal.by the defendant, Thé Colonial City Traction Company, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the- office of. the clerk 'of the county of Ulster on the 29th day of January, 1897* continuing pendente Ute an injunction order .made in the action on the 19th day of December* 1896. ■
    
      G. D. B. Hasbrouck, for the appellant.
    
      John F. Cloonan, for the respondent.
   Per Curiam:

From the papers submitted to us it appears that the Ulster and Delaware Railroad Company, oii the night of the 13th of December, 1896, placed a crossing over thé railway tracks of. the Colonial' City Traction Company in Strand’ street in the city of Kingston. This was done by the first-named corporation without haying . obtained the consent of the latter, and without having instituted condemnation proceedings. The crossing was taken up by the Colonial City Traction Company and replaced by the Ulster and Delaware Railroad Company on the morning of December, fifteenth. On the. same day the Colonial City Traction Company attempted to remove it, and was prevented from so doing by a carload of stone placed across its tracks. On December sixteenth the Ulster and Delaware Railroad Company brought an action to restrain the trac-. tion company from interfering with said crossing, obtaining a temporary injunction therein, and an order to show, cause why the same should not be continued until final judgment in the action. The hearing of the motion was had at a Special Term held in the city of Kingston- on the 19th day of December, 1896. The motion for a continuance of the injunction was denied, and the temporary injunction theretofore granted vacated, the court • determining that the Ulster and Delaware Railroad Company was not authorized to intersect the tracks of the Colonial City Traction Company without having obtained its consent, or a right to táké such action by condemnation proceedings; that “ an injunction can only issue to protect that which the plaintiff has a lawful right to protect.”

Immediately after the denial of the motion for an injunction in the action above mentioned, this action was brought by the city of Kingston against both of the above-named corporations on the theory that- they were obstructing a public street in said city at the said crossing 'and creating a nuisance therein; and thereafter an order was obtained continuing the temporary injunction theretofore granted in said action which restrained both of said defendants from interfering with said street, and from digging up, obstructing and damaging the. same.

From such order this appeal is taken by the Colonial City Traction Company. When this action was commenced, the crossing having been made by the Ulster and Delaware Railroad Company, the effect of the injunction order was necessarily to afford that corporation the relief it sought, but failed to obtain in its action against the- appellant.

It is urged by the learned counsel for the appellant that the plaintiff cannot maintain an equitable action for an injunction against the defendants under the circumstances; that the city of Kingston, under its charter, has ample power, by its officers,.servants or agents, to remove all, obstructions placed in its streets without bringing an . ' action; that no' facts are alleged in the complaint or shown to sustain an action to abate a nuisance which the corporation could remove without seeking the interference of this court. In the view we take of the case wé.-do not deem it necessary to determine the question thus raised.-

It having been determined by the Special Term in- the action brought by the Ulster and Delaware Railroad Company against the Colonial City Traction Company, that the former had no right to intersect "the tracks of the latter, it would have been proper for the court below to have granted air injunction restraining the former corporation from intersecting the railroad tracks of the latter, and directing it to remove, the crossing, therefrom; but we can find in the evidence and papers no facts stated or shown that justified the . granting of an injunction restraining the appellant from protecting its property and from resisting an unlawful invasion of its rights.

The Ulster and Delaware Railroad Company is not shown to have had any ’ right whatever to intersect the tracks of the Colonial. City Traction Company. ' The former corporation had not obtained the consent of the latter, or a right to the crossing by condemnation proceedings. Hence, when the action was commenced, the Ulster, and Delaware Railroad Company having- unlawfully intersected- the appellant’s tracks, the latter .was authorized to protect’its property and remove the obstruction. It was doing or proposing to ¡perform a legal act. The Ulster and Delaware Railroad Company could not justly complain of the proposed action of the appellant in taking, up a crossing placed upon, its tracks by the former company without authority and m violation of law. " ■

As the evidence and - papers in the case do not show that the appellant had done or threatened to do any illegal or unauthorized ' act, but that it was protecting or proposing to protect, its property, the . order continuing the temporary injunction Was, we -think, improperly granted.

For .the reasons above suggested, and without considering other "questions raised in the case, we conclude that, as to the appellant^ the order from which the appeal is taken should be reversed, with ten dollars costs and disbursements; the motion for an injunction denied,, with ten dollars costs, and the temporary injunction heretofore granted in the action vacated.

All concurred.

Order reversed as to the appellant, with ten dollars costs and disbursements; motion for injunction denied as to appellant, with ten dollars costs, and temporary injunction vacated as to appellant.  