
    Tracy v. Troy & L. R. Co.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    Temporary Injunctions.
    A temporary injunction should not be granted, in an action to restrain defendant from erecting poles on a street opposite plaintiff’s property, to form part of an electric motor system, when it does not appear that the injury to plaintiff, if any, caused by allowing defendant to proceed until the trial will be irreparable, as a public improvement, which may finally be allowed, will thereby be obstructed, and plaintiff will have no inducement to press his action.
    Appeal from special term, Rensselaer county.
    Action by Edward Tracy against the Troy & Lansingburgh Railroad Company, to restrain defendant from erecting poles, to form part of an electric motor system, on a street in the village of Lansingburgh, and opposite plaintiff’s property. A temporary injunction was granted, which, on defendant’s application, was vacated, and plaintiff appeals. Following is the opinion of Edwards, J.;
    “Since 1861, the defendant has owned and operated a horse railroad for the transportation of passengers, extending from the southerly part of the city of Troy through the village of Lansingburgh. It purposes to substitute electricity as a motive power for the propulsion of its ears, and has adopted what is known as the system of overhanging wires, which requires the erection of poles on each side of the line of its track. The poles are to be placed immediately inside of the curb line of the sidewalks, to be 120 feet apart, 8 inches square at the surface of the sidewalk, tapering to the top, 20 feet in height from the surface, and to be smoothed and painted. Consent of the local authorities of Troy and Lansingburgh has been obtained to such change of motive power, and the work of substitution is rapidly progressing to completion. There is no proposed alteration in the grade of the streets, nor increase in the number of tracks. The plaintiff is the owner of real estate adjoining a public street in the village of Lansingburgh, known as • Second Avenue,’ through which the defendant’s road runs. Opposite this land of the plaintiff, and immediately within the curb line of the sidewalk, the defendant intends to erect two poles, in the manner and of the kind described. The plaintiff has brought this action to perpetually enjoin the defendant from the erection of these poles, mainly on the ground that he is the owner of the land to the center of the street in front of his premises, subject to the public easement, and that the contemplated structures thereon without his authority, or without compensation to him therefor, are an illegal interference with his property, which will work irreparable injury to him. At the commencement of the action, on an ex parte application, he procured a temporary injunction against the defendant, on which, and on accompanying affidavits, it now moves for a dissolution of the injunction. The legal rights and the equities of the plaintiff are controverted by the defendant. Upon the argument, several important questions, growing out of these, were discussed by the learned counsel; but, if I am correct in the application of the principles which, in my judgment, must control the disposition of this motion, any expression of opinion by me on such questions in the present condition of the action will be unnecessary. A marked distinction obtains between a final and a temporary injunction, and the principles on which they are granted. The former is the determination made after a trial on the merits, and is a matter of absolute right, depending upon the settled rules of equity; while the latter is discretionary, does not determine any questions of right, and largely depends upon the exigencies of the particular ease. It is not necessary to discuss here the principles which should govern a court of equity in granting or withholding a final injunction. We are concerned only with the rules which apply on an application for a preliminary or temporary injunction, and these I deem to be well settled. On such an application the injunction should not be granted except upon a showing of irreparable injury,—such injury as does not admit of pecuniary compensation. Indeed, the main, if not the sole, ground on which a temporary injunction can be sought is that there is on the part of the defendant an actual or threatened invasion of a clear right, and, unless he is enjoined during the pendency of the action, injurious consequences will result to the plaintiff, for which a compensatory judgment in damages will be inadequate. There is the f urther rule, on an application for a preliminary injunction, that the court will have regard to the relative convenience or inconvenience that will result to the parties^from the granting of the order. These principles are too familiar to require the citation of any authorities. A concise expression of them by the general term of this department, is contained in Power v. Village of Athens, 19 Hun, 167, in which the court say: ‘We have had occasion to remark more than once that an injunction pendente lite should not be granted, unless the court could clearly see it was needed to prevent irreparable injury, —that is, injury which could not be compensated in damages; or that the injunction itself could do no serious harm to the party enjoined. The merits of the case should be heard at a regular trial. And, if the plaintiff be there successful, and a permanent injunction is needed to protect him, he should have it. But, generally, the merits of the case should not, if possible, be disposed of on an application for an injunction pendente lite.' Applying these rules to the facts of this case, I think the defendant should prevail on this motion. There is no evidence before me that the erection of the two poles would work an irreparable injury to the plaintiff during the pendency of the action. There is an allegation to that effect in the complaint, but no specific fact is set forth therein, nor in the accompanying affidavits, from which such injury could be inferred, and the allegation is denied by the defendant. Furthermore, it is highly improbable that such injury would be irreparable, or one for which money damages would not be an adequate compensation. If the threatened act is an invasion of the plaintiff’s property rights, it is clearly a trespass, and the defendant, who is conceded to be. of undoubted responsibility, can be compelled to respond to the plaintiff in damages. It is unlike the case of a threatened nuisance, which maybe offensive to the senses, or detrimental to health, and so attended by consequences for which money cannot compensate. If, upon the trial, the plaintiff shall succeed in establishing his legal rights, as contended for by him, the court can then exercise its preventive power, if it should be deemed a proper case therefor, by its. final injunction against the continuance of the erection. The defendant will also be liable to make pecuniary compensation to the plaintiff for any trespass committed. I suspect that in no event can the injury to the plaintiff be serious, nor can he be subjected to any considerable inconvenience during the pendency of the action. On the other hand, if the temporary injunction is not vacated, an improvement in the means of transit believed to be of public utility will be obstructed; the work of erecting the poles and substituting the new motive power, already quite far advanced, will be suspended for many months; and, if the defendant should ultimately succeed on the trial, it would doubtless have sustained damages difficult, at least, if not impracticable, to estimate. Besides, in this case the action is brought for a final judgment restraining the defendant from doing the very act which he is enjoined from doing by this preliminary or temporary injunction. The plaintiff has thus summarily obtained his relief without a trial, and is not concerned with the further prosecution of his action. This but f urnishes another reason why courts should proceed with great caution in the exercise of this almost arbitrary power. In such a case, the plaintiff’s, legal rights should be plain and clear, and the violation of them undoubted. For these reasons, and without expressing or intimating any opinion on the question of legal rights involved in the action, I am of opinion that the motion to vacate the temporary injunction should be granted.”
    Argued before Learned, P. J., and Fish and Putnam, JJ.
    
      Warren, Patterson <& Cambell, {Charles E. Patterson andP. A. McManus, of counsel,) for appellant. Smith c6 Fursman, {Edgar L. Fursman and R. A. Parmenter, of counsel,) for respondent.
   Learned, P. J.

This is an appeal from an order of Mr. Justice Edwards, vacating, on a hearing of both sides, an ex parte order granted by Judge Mott. The order of Judge Mott restrained the defendant fr.om erecting upon Second avenue, in the village of Lansingburgh, opposite the plaintiff’s lot described in the complaint, or opposite any other lots of plaintiff in the said village, any poles for the sustaining or forming part of an electric motor system for furnishing power for propelling cars. The learned justice who vacated the order, without passing upon the important questions which might arise on a trial of the action, placed the reversal of the order, in his opinion, on the ground that this was not a case where an injunction pending "the action should be granted. He held that there was no evidence that, if the defendant’s work was allowed to proceed until the trial of the action, any irreparable injury would be done, or any injury which could not be compensated by a pecuniary payment; and he further said that if the injunction were allowed to stand a public improvement, believed to be of utility, would be obstructed for many months, which in the end might be allowed to proceed. And, further, that by this temporary injunction the plaintiff had, without a trial, accomplished the object of his action, and had no longer any inducement to press forward the case. With these views, for a fuller statement of which we refer to his opinion, we concur. They are in harmony with the decision of this court in Power v. Village of Athens, 19 Hun, 167. We therefore affirm the order, without expressing any opinion as to right of the plaintiff on a trial to have a perpetual injunction, as prayed for. Order affirmed, with $10 costs and printing disbursements. All concur.  