
    SUPREME COURT.
    William W. Rider agt. The New York, West Shore and Buffalo Railway Company.
    
      Injunction — against railroad, when should not be granted.
    
    An injunction should not be granted restraining a railroad from constructing an embankment on its own land, which is necessary to make its road-bed safe, because such embankment has already slipped and is,liable to further slip on plaintiff’s land and ruin a spring.
    
      Ulster Special Term,
    August, 1883.
    ' Upon a complaint which alleged that the defendant was constructing an embankment upon its own land, upon which was located its railway track, which had slipped upon the land of the plaintiff, and was liable to further slip and slide upon such land and ruin a spring claimed to be worth $1,000, the plaintiff had obtained an injunction enjoining the doing of further work on such embankment by the defendant. Upon an affidavit showing that the work enjoined was necessary to protect the embankment, judge Osborn granted an order staying the operation of the injunction, and ordering the plaintiff to show cause why such injunction should not be dissolved.
    
      Carroll Whittaker, for defendant and motion.
    
      John A. Griswold, for plaintiff and opposed.
   Westbrook, J.

— The theory of the complaint is that the defendant can be restrained from constructing an embankment on its own land, which is necessary to make its road-bed safe, because such embankment has already slipped, and is liable to further slip on plaintiff’s land and ruin a spring. The objections to its continuance are: (1.) That the interests of the public require the road-bed to be made secure. (2.) The damages of the plaintiff are capable of estimation and can be recovered. (3.) There is no allegation that the defendant is unable, pecuniarily, to respond; and (4.) As the interest of the defendant requires it to construct the bank so that it will not slip, there is no need of an injunction, and a continuance of the injunction may, by preventing work, stop the defendant from making secure the embankment already constructed, thus causing it to slide and do the very injury which the injunction seeks to prevent.

The injunction will, therefore, be dissolved, with ten dollars costs, to abide the event of the action.  