
    ROCHESTER & E. R. RY. CO. v. MONROE COUNTY ELECTRIC BELT LINE CO.
    (Supreme Court, Appellate Division, Fourth Department.
    December 9, 1902.)
    
      1. Street Railroads — Rights in Streets — Rival Roads — Injunction—Discretion — Appeal.
    Plaintiff and defendant were rival street railroads, each having secured the necessary certificate to enable it to construct its road; plaintiff having perfected its proceedings prior to defendant. Both roads desired to construct their lines on a certain street of a village, which lay in proximity to a state canal, which street was insufficient to accommodate the lines of both companies. Plaintiff had not acquired the consent of the superintendent of public works or of the board of trustees of the village to the location of its line on such street. Heli, that an order vacating a temporary injunction restraining defendant from laying its road on such street during the pendency of an action to determine which company was entitled to the use of the street was not such an abuse of discretion as to require reversal on appeal.
    2. Same — Defenses.
    Where a street railway company seeks to enjoin another company from using a certain street for its line, it cannot object to a defense that, because of its failure to procure the consent of the superintendent of public works and of the village trustees, it is not entitled to use the street, on the ground that such defense can be urged only by the public officials.
    Appeal from special term, Monroe county.
    Action by the Rochester & Eastern Rapid Railway Company against the Monroe County Electric Belt Dine Company. From an order vacating a temporary injunction restraining defendant from constructing and operating a street railroad on Canal or Mill street, in the city of Fairport, plaintiff appeals.
    Affirmed.
    Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ.
    Joseph W. Taylor, for appellant.
    Merton E. Lewis, for respondent.
   HISCOCK, J.

In a case recently presented, involving, as does this one, a contest between rival street railroads, this court had occasion to state the well-recognized rules which would govern it in passing upon an order such as is here appealed from, granting or refusing an injunction pendente lite. Syracuse & O. L. Electric R. Co. v. Syracuse Rapid Transit Ry. Co., 74 App. Div. 565, 77 N. Y. Supp. 812. It was there said:

“The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and the order of that court will not ordinarily be reversed upon appeal unless it is made clearly to appear that there has been an abuse of such discretion. * * * It is true that this rule is not inflexible. On the contrary, an appeal from such an order will sometimes be considered where the order virtually disposes of the merits of the controversy, but even in such a case the right of the appellant to the relief sought must be so clear as to enable the court to say with some degree of certainty that the court below erred in granting or refusing it.”

Within the principles thus enunciated, we feel constrained to refuse to reverse the order appealed from. The only theory upon which we are or could be asked so to do, under the circumstances of this case, is that the rights of the respective parties are now fully set forth and presented, and that we may therefore properly dispose of the merits of the controversy. We do not, however, regard that as the situation now existing. Moreover, if it were to be assumed that the rights of the parties could not be changed, we should feel that the plaintiff had not established such a clear right to the injunction sought as would justify our reversing the order. The parties are rival surface street railroad companies, and both of them are seeking to lay their route for a short distance through Mill street, in the village of Fairport. It is practically conceded that there is no room in that street for the tracks of both of them, and that for this reason, as well as for others, one laying its tracks there would exclude the other. The plaintiff insists that it has secured a prior and exclusive right to occupy said street. This is denied by the defendant, and several reasons are assigned by the latter why the former is not entitled to proceed through said street, and should not, therefore, be allowed to prevent defendant from so doing. Each company has been duly incorporated, and has secured from the board of railroad commissioners the necessary certificate to enable it to proceed. The plaintiff took its proceedings in these respects before the defendant. It is urged by its learned counsel that plaintiff, by first filing its certificate of incorporation, wherein it specified the various streets and highways through which the route of its railroad should be located, thereby became entitled to construct its railroad along such route, to the exclusion of all other railroad corporations, including the defendant. We do not feel inclined, at least upon this motion, to agree with this contention, and are therefore led to the consideration of other matters pertaining to the right of plaintiff to locate its road upon the street in question.

Said street is located in such proximity to the canal as conced-edly to call for the consent of the superintendent of public works to the laying of a street railroad therein. Plaintiff has never secured such consent. Also, concededly, it was necessary for plaintiff to secure the consent of the board of trustees of the village of Fair-port to the location of its road upon said street. We are unwilling to hold ior the purposes of this appeal that this has been legally secured. Under such circumstances, in our opinion, the learned justice at special term was so justified in vacating the injunction that we should not interfere with his exercise of the discretion conferred upon him.

It is urged by the counsel for the appellant that the lack of consent by the superintendent of public works and by the trustees of the village of Fairport are objections which may be insisted upon in proceedings against plaintiff directly by these officials, and that it does not lie with the defendant in this action to raise those questions. If the parties were reversed, and defendant was seeking to enjoin the construction of plaintiff’s road, this argument would possess force. It might well be said, under such circumstances, that defendant would not be charged with the duty of protecting the rights either of the village of Fairport, or of the superintendent of public works. But as the parties come before us in this action, different considerations are presented. Plaintiff is insisting that the defendant shall be kept out of the street. In order to secure such relief pen-dente lite, it should present facts clearly indicating the undoubted right to be there itself. This it has not done. It may or may not secure the consent of the superintendent of public works. It may or may not secure the legal permission of the authorities of the village of Fairport to lay its road in the street in question. If it does not secure such right, it ought not to be allowed to keep defendant from laying its tracks there. Until it has itself established a right to occupy the highway, it is not in a position to keep another corporation out of the same by a preliminary injunction. In accordance with these views, we think the order appealed from should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements. All concur, except ADAMS, P. J., not voting.  