
    The Syracuse and Oneida Lake Electric Railway Company, Appellant, v. The Syracuse Rapid Transit Railway Company, Respondent, Impleaded with Others.
    Injunction— discretion of the Special Term not interfered with on appeal.
    
    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 discretion.
    Appeal- by the plaintiff, The Syracuse and Oneida Lake Electric Railway Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 12th day of May, 1902, denying its motion for a temporary injunction.
    The plaintiff and the defendant, The Syracuse Rapid Transit Railway Company, are street surface railway corporations, and each is desirous to extend or construct its line- of road from the city of Syracuse over what is known as the Liverpool plank road, to a point 1,000 feet south of the village of Liverpool, in the county • of Onondaga. This action is brought to perpetually enjoin the defendant corporation from the construction and operation of that part of its road, and incidentally to have annulled and revoked a franchise granted to it by the defendant Cramp ton, as commissioner of highways in the town of Sa-lina.
    The reasons assigned by the appellant for its contention that the construction of a railway by the respondent upon the Liverpool plank road is illegal are: First, because at the time the franchise was granted to the defendant to construct a railroad in the town of Salina, it had not filed its extension therefor in that town, and was not authorized by law to construct a railroad thereinsecond, because the defendant corporation did not have a lawful right to construct and operate a railroad to the point in the city of Syracuse from which its proposed extensions were filed; and, third, because the necessary consents of property owners had not been procured.
    Soon after the action was commenced, and prior to the service of. any answer therein, a motion was made at Special Term, upon the complaint and affidavits, for a temporary injunction, and from the order denying such motion this appeal is brought.
    
      
      William G. Tracy, for the appellant.
    
      C. L. Stone, for the respondent.
   Adams, P. J. :

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. (Hessler v. Schafer, 82 Hun, 199; Pratt v. N. Y. C. & H. R. R. R. Co., 90 id. 83 ; Johnston v. Phoenix Bridge Co., 44.App. Div. 581.)

It is true that this rulé 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.

Such is not this case, however, for the affidavits read upon the original motion, taken in connection with the allegations of the complaint, fall quite short of satisfying us that the plaintiff has established its right to the extraordinary remedy which it seeks to avail itself of in this action. Indeed, after a careful perusal of the record before us, it is difficult .to determine just where the merits of the controversy reside, and in these circumstances we do not feel that the questions involved can be satisfactorily determined until the issues of fact have been decided in the usual manner.

In a very similar case this court held that it ought not and would not attempt to define and settle the ultimate rights of litigants upon affidavits (Warsaw Water Works Co. v. Warsaw, 4 App. Div. 509 ; see, also, Washington Lighting Co. v. Dimmick, 41 id. 596); and such a rule seems especially applicable to the present case, inasmuch as the answering and replying affidavits are decidedly contradictory and the good faith of both parties is challenged.

The order should be affirmed, with ten dollars costs and disbursements.

McLennan, Spring, Williams and Hiscock, JJ., concurred.

Order affirmed, with ten dollars costs .and disbursements.  