
    Alexander Smith and Sons Carpet Company, Respondent, v. Bertram Ball, Appellant.
    Second Department,
    March 31, 1910.
    Injunction pendente lite — discretionary power of Special Term — appeal — review of discretionary order -— definition — “ discretion.”
    The power of the Special Term to continue an injunction restraining the defendant from changing a grade so as to deprive the plaintiff of the use of a right of way owned by them in common, pending a suit for.a permanent injunction, is discretionary.
    Though the Appellate Division may review such discretionary order it will not interfere therewith unless it be so unwise or unjust, illegal or so contrary to the general principles of law or of equity as to compel the conclusion that there was an abuse of discretion.Judicial discretion defined.
    Appeal by the defendant, Bertram Ball, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 1st day of February, 1910.
    
      James JMJ. Hunt, for the appellant.
    
      William W. Serugham, for the respondent.
   Jenks, J. :

This appeal is from an order of the Special Term continuing an injunction pendente lite. I do not favor the suggestion that we , now in effect determine the issues. Such a short cut to a conclusion is not avoidance of circuity, but departure from the common course not to be permitted save in exceptional cases. There is no reason thus to accept a trial by affidavits. The litigation does not require unusual expedition, and it is not clear that the evidence upon a judicial trial will not further enlighten the court. Determination upon the merits is not urgent, inasmuch as the question presented is the relative rights of the parties in a right of way long owned by them in common. The plaintiff or its tenants have used the way for access.for wagons to its lands for II years, and this action is to enjoin the defendant from changing the grade whereby the plaintiff will be deprived entirely of such access. The injunction halts the defendant, who acquired this right of way in 1906, in work incidental to the improvement of his lands, but not immediately necessary for any present use or enjoyment of them. The learned Special Term commented that a trial could be had at a very early day, and examination of the appointed terms for the county of Westchester confirms that statement. We cannot say that trial will not further enlighten the court as to the proper decree, inasmuch as the relative rights at the present time may not be determined by original rights acquired by the conveyances, but may in part be determined or be limited by the subsequent acts of the parties. And, moreover, the court itself, upon the correct hypothesis that neither party could practically exclude the other, intimated that equity might properly decree for an adjustment so as to afford mutual rights of practical use, a decision, however, which the court said could only be. made after a trial that would reveal all of the facts. It may well be that the plaintiff is an offender in that its wall has impaired the full rights of the defendant, but this is no legal excuse for retaliation, although such conduct may have to be considered by the court when it shapes its decree. Therefore, I confine discussion to the question whether the Special Term should be sustained without expression upon the merits save as necessary to a proper disposition of this appeal.

I think that the order should not be disturbed.. It is within the discretion of the trial court. (Castoriano v. Dupe, 145 N. Y. 250, 252; Hudson River Telephone Co. v. Watervliet Turnpike & Railroad Co., 121 id. 397.) In Paul v. Munger (47 N. Y. 474) the court say: “ The order necessarily involved a question of discretion, as it must in all applications for continuing or dissolving an injunction, when the merits of the controversy are not substantially disposed of by the order or established precedents do not give the party an absolute right to the order, if any such case can exist.” In Tripp v. Cook (26 Wend. 152) it is said: Judicial discretion is a phrase of great latitude; but it never means the arbitrary will of thfe judge. It is always (as Chief. Justice Marshall defined it) ‘a legal discretion to be exercised in discerning the course prescribed by law ;• when that is discerned it is the duty of courts to follow it. It is to be exercised, not to give effect to the will of the judge, but to that of the law.’ ” In Platt v. Munroe (34 Barb. 291), Allen, J., for the court, says: When it is said that something is left to the discretion of a judge, it signifies that he ought to decide according to the rules of equity and the nature of circumstances, and so as to advance the ends of justice. (Bouv. Law Die. h. t.) Whenever a clear and well-defined rule has been adopted, not depending upon circumstances, the court has parted with its discretion as a rule of judgment. ■ Discretion may be and is to a very great extent regulated by usage or by principles which courts have learned by experience will, when applied to the great majority of cases, best promote the ends of justice, but it is still left for the courts to determine whether a ease is i exactly like in every color, circumstance and feature ’ to those upon which the usage or principle was founded, or in which it has been applied.” ■ Kent, Ch. J., said that a reasonable confidence must always be entertained that a court will exercise its discretion soundly,” quoted in Tripp v. Cook (supra). This court can, in its discretion, review such an order (Hudson River Telephone Co. Case (supra), but it is reluctant to interfere with the disposition of the trial court, and will not do so unless its order is so unwise or so unjust, illegal or so contrary to the general ■ principles of law or of equity as to compel the conclusion that the court has hot exercised sound judgment to promote justice so that there was error of judicial discretion, sometimes termed an abuse of discretion. (Van Orden v. ledwith, 44 App. Div. 580 ; City of Glov ersville v. Johnstown, G. & K. H. R. R. Co., 49 N. Y. St. Repr. 315 ; Grill v. Wiswall, 82 Hun, 284; Hessler v. Schafer, Id. 199; Pratt v. N. Y. C. & H. R. R. R. Co., 90 id. 83; High Inj. [3d ed.] § 1696: Flynn v. New York, Westchester & Boston R. Co., 135 App. Div. 743.)

The order is affirmed, with ten dollars costs and disbursements.

Burr, Thomas, Rich and Cabe, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  