
    James F. McCabe, Plaintiff, v. Rufus C. Hunt et al., Defendants.
    (Supreme Court, New York Special Term,
    April, 1903.)
    Injunction—Delaying a public work to enforce private rights. ■
    McCabe and Brother, subcontractors, under general contractor McDonald, for sections 13 and 14 of the Manhattan subway, appointed, with McDonald’s consent, one Hunt as superintendent of the McCabe contract. McCabe, having summarily discharged Hunt and declared his own contract with McDonald terminated, wished to remove the plant, when Hunt, who claimed that his contract of employment with McCabe made him his partner, declared an intention of carrying out the contract and alleged an interest in the plant as a partner. McCabe obtained herein an injunction temporarily restraining Hunt from carrying out McCabe’s contract and also restraining McDonald and the Rapid Transit Subway Construction Company from carrying out any contracts made between McDonald and McCabe through Hunt as McCabe’s agent or superintendent. The court, having found Hunt not a partner of McCabe, held on a motion to continue the injunction,
    
      That Hunt should be restrained from carrying out McCabe’s contract.
    That, as between Hunt and McCabe, the latter owned the plant and was entitled to remove it, exercising care and speed, but that he must not remove any part of the plant essential to preserve the work until a reasonable time had elapsed for the substitution of another plant.
    That the order to be entered must contain nothing preventing McDonald from proceeding with the work under other contracts he might thereafter make therefor or from employing Hunt on the work or from contracting with him for it.
    Motion to continue an injunction pendente lite.
    
    Kellogg & Rose, for plaintiff.
    Hatch, Debevoise & Colby, for defendants.
   Gildersleeve, J.

In this action, although all the parties named are not the same as in the action of Hunt v. McCabe, in which a decision is handed down herewith (40 Misc. Rep. 461), the controversy arises out of the same transactions. James F. McCabe, the plaintiff herein, is the principal defendant in the other action, brought by Rufus C. Hunt, one of the defendants herein. For the purpose of this decision, which, in view of all the circumstances, we feel constrained to render somewhat hurriedly, we refer to the statement of facts in the decision in the Hunt case. This motion is to continue an injunction, pendente lite, restraining the defendant Hunt from the performance of the work heretofore conducted by plaintiff on sections 13 and 14, and the terminals of the rapid transit subway, under contracts made between the defendant John B. McDonald and the Messrs. McOabe, and under contracts made with the defendant Hunt for his employment as superintendent of the work, and from entering into any contracts for purchasing materials, or performing labor, or doing any other act, in the name of this plaintiff, or otherwise, towards the carrying out of said contracts. Said injunction also restrains the defendants John B. McDonald and the Rapid Transit Subway Construction Company from performing the contracts heretofore made between the Messrs. McCabe and Mr. John B. McDonald by and through Rufus C. Hunt, as agent, attorney, superintendent or representative of the plaintiff, and from paying out any money, on account of work performed or materials furnished under said contracts, to the said Rufus 0. Hunt, or otherwise, or in any way aiding and abetting the said Hunt or any other person in carrying out the same. It is the avowed purpose of the defendant Hunt to continue to its completion the work provided for in the contract between Mr. McDonald and the Messrs. McCabe. It is the claim of Mr. Hunt that he is not the discharged employee of the plaintiff, but that he is a quasi-partner or coadventurer ”, and that he, the said Rufus C. Hunt, because of the contract between plaintiff and himself, dated December 4, 1901, has a legal right to complete the contract. I do not think that, upon the facts disclosed by the papers before me, this claim rests upon a sound legal foundation. Such a course might result in a mutual benefit to the parties and to the public, who are deeply concerned in an early completion of this great public improvement ; nevertheless, legal rights- must not be violated. The McCabe-McDonald contract for the work is how broken beyond all doubt. It is the claim of Mr. McCabe that it was broken by Mr. McDonald. This is sharply denied, and can only be satisfactorily determined upon the trial of the issues presented in this action. Whether rightfully or wrongfully, Mr. McCabe now declares the contract at an end; and, whether right or wrong, he refuses to proceed with the work, and wishes to remove his property therefrom. As between Messrs, McDonald, Hunt, McCabe and the construction company, I think Mr. McCabe is entitled to his property, to wit, the tools, machinery and articles employed upon the work and known as plant.” We have seen from the papers in the action of Hunt v. McCabe, already referred to, that attachment creditors of McCabe are in possession of the property. These creditors are not parties to this action, and I do not undertake to determine their rights here. The action of defendant Hunt, in endeavoring to hold on to the plant in question, to which it must be said Mr. McCabe has legal title, is such an interference with private rights as the courts of this State do not permit. Although public interests may suffer to some extent, a violation of private rights cannot thereby be justified. The voluminous papers before me, as already intimated, present a very sharp conflict of testimony, and the facts cannot be satisfactorily ascertained from the affidavits. Whatever they may finally, upon a trial in open court, be found to be, many intricate questions of law will arise in adjusting the rights of the parties to this serious controversy. The temporary injunction may he continued pending the action, but it will require some modifications, and in some respects be made more definite and certain. It is not the intention of the court to go further than to restrain the defendant Hunt from carrying out the Me Cab e-McD onald contract, and from continuing to act under the powers conferred upon him by the agreement of December 4, 1901, and the powers of attorney, particularly described in the statement of facts in the decision of the case of Hunt v. McCabe. It is assumed that the work of constructing sections 13 and 14 of the rapid transit railroad, and the terminals, notwithstanding the termination of the McCabe-McDonald contract, must be carried to completion. Whether the conditions are such as to warrant Mr. McDonald in calling upon the sureties of Mr. McCabe to finish the work I am not prepared to say, as the contract in full is not before me. Even if it were, I could not determine this question on the present motion. It is not the province of the court, at this time, to direct how and under what circumstances the work shall proceed. There must be nothing in the order, to be entered hereon, tending to prevent Mr. McDonald from proceeding with the work, under other contracts that he may hereafter make, or from employing the said Bufus C. Hunt upon the work, or from contracting with said Hunt for the performance of the work. The order must provide that such portion of the Mc-Cabe plant, now upon the work, as is essential to preserve it, must remain for a reasonable time to permit a proper substitution of another plant in place thereof; and the order must further provide that the change be effected with as little injury to the property and with as little delay to the work of construction as the exercise of skill and diligence will allow. Let counsel prepare an order in accordance with this decision, and present the same for settlement in my private chambers at twelve-thirty o’clock p. m. on the twenty-third instant, at which time counsel may appear personally and be heard orally, if they so desire.

Ordered accordingly.  