
    Edwin Young, as Ex’r, Resp’t, v. The Rondout & Kingston Gas Light Company et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Corporations—Consolidation—Injunction pendente lite.
    Plaintiff, a stockholder, brought an action to restrain a gas light company from consolidating with another company, on the ground that the proposed consolidation was unlawful, and that, if carried out, the property of the defendant’s company would be mixed and confused with other-property, causing loss. Held, that an injunction pendente lite was properly granted.
    Appeal from special term, Ulster county.
    
      Putney & Bishop (J. L. Bishop, of counsel), for app’lts; Linson & Van Buren (John J. Linson, of counsel), for resp’t.
   Per Curiam.

—The plaintiff is the holder of a large amount, of stock in the Rondout & Kingston Gas Light Company, defendant. The complaint charges that the board of directors of that company have entered into a contract with the board of directors of the Kingston Electric Light, Heat & Power Company for a consolidation of the two companies, which they purpose to carry into effect; that over two-thirds of the stock of the defendant’s company are held by persons largely interested in the Kingston Electric Light, Heat & Power Company aforesaid ; that-until recently the two companies have been, to some extent, competitors in business, but that said two-thirds of stock have been acquired by the persons so interested as aforesaid for the purpose of effecting said consolidation. The complaint alleges that the-proposed consolidation is without authority of law, and that, if carried out, the property of the defendant’s company would be-mixed and confused with other property, causing confusion and loss.

No answer has been put in. On the complaint and on an affidavit of the plaintiff and affidavits of the treasurer of the defendant’s company, and of the president of the Kingston Electric Light, Heat & Power Company, and after a hearing of both-parties-an injunction pendente lite was granted by the special term, restraining the consolidation until further order. From this injunction, order the defendants appeal.

It is very evident that if a consolidation should take place,, pending this action, the final judgment, should the plaintiff succeed, would be ineffectual. It would be hardly possible to restore-the plaintiff to his rights, assuming that the consolidation is not lawful, if it should once take place.

On the other hand, the defendant will only be delayed as to the time of effecting this consolidation, should it prove on the trial of the cause that the defendant’s corporation was entitled to consolidate, as it claims.

The question is one of some importance. The plaintiff is in the rightful possession of his stock in the defendant’s corporation. The defendant claims the right to make the plaintiff a stockholder in a different corporation, with other powers and rights, under the name of the Kingston Electric Light, Heat & Power Company.

The question now before us is whether, until the rights of the plaintiff and defendant can be heard upon a trial of this cause, it is just that the defendant should be restrained from taking away the plaintiff’s property and compelling him to take other property therefor. It may, however, be said that this is a case under § 603, and that it is only where it appears from the complaint that the plaintiff is entitled to a final judgment restraining the defendant, that an in j unction pendente lite restraining the same acts ■can be granted. It may be said, therefore, that unless we decide that the plaintiff will be entitled to a final judgment, we cannot properly affirm the order.

While, however, as we are at present advised, it seems to us that the plaintiff will be entitled to a ffinal judgment, we think it best to make no decision, and to announce no fixed opinion on that subject. We therefore do not discuss that matter, and leave it open, so far as we are concerned, for such opinion as the evidence and the arguments after the trial shall produce on the minds of the court. We deem it better to say that enough appears in the case to justify the court in preventing the consolidation until the trial and final decision. Facts may be shown on the trial tending to prove that no injury will be done the plaintiff or that full compensation can be made to him, if (as defendant argues) this consolidation is somewhat in the nature of taking property by the right of eminent domain.

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., Landon and Mayham, JJ., concur.  