
    Johnstown Mining Company, Appellant, v. Butte and Boston Consolidated Mining Company, Respondent, Impleaded with Montana Ore Purchasing Company.
    
      Action to reform a contract—an injunction denied where the plaintiff’s interest is not cleaniy shown, where the mattes' has been adjudicated in another State, and where condemnation proceedings, inconsistent with the plaintiff’s claim, hare been instituted by it.
    
    In an action brought to reform a contract, by which the defendant granted to one Heinze the right to dump tailings from a smelter upon the defendant’s premises, by embodying therein an agreement alleged to have been omitted from the contract by mistake, authorizing a deposit of slag from a concentrator, ' it appeared that Heinze assigned the contract to the Montana Qre Purchasing Company and that the plaintiff acquired some interest in the contract from the latter company. The complaint alleged that the Montana Ore Purchasing Company represented that the right to deposit slag from the concentrator was included in the agreement and that the plaintiff was unwilling to go to any further expense until it was finally settled whether such representation was true.
    It further appeared that the premises in question were located in Montana and that in an action brought by the defendant against the Montana Ore Purchasing Company in the United States Circuit Court for Montana it was determined that the contract did ■ not confer the right to dump upon the defendant’s • premises slag from the concentrator.
    
      Held, that the plaintiff’s motion for a preliminary injunction was properly denied for the reasons:
    
      First. That it did not appear that the plaintiff’s interest in the reformation of the contract was such as would entitle it to injunctive relief;
    
      ■Second. That the judgment of the United States Circuit Court was res adjudicata as to the plaintiff’s rights under the contract as it presently existed;
    
      Third. That the plaintiff had instituted a proceeding to condemn the right to deposit refuse upon the defendant’s premises, and in its petition alleged that it had no other rights in the premises than those conferred by the agreement sought to be reformed;
    
      
      Fourth. That it would he an unseemly exercise of power for the courts of the State of ISTew York to interfere after the Montana courts had taken jurisdiction of the controversy and adjudicated upon the rights of the parties.
    Appeal by the plaintiff, the Johnstown Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1900, denying the plaintiff’s motion to continue a preliminary injunction theretofore granted in the action, and also from an order made at the New York Special Term and entered in said clerk’s office on the 27th day of April, 1900, denying the plaintiff’s motion to resettle the order refusing to continue the preliminary injunction.
    
      Franklin Bien, for the appellant.
    
      Louis Marshall, for the respondent.
   Hatch, J.:

The plaintiff brought this action for the purpose of reforming a certain contract executed by the defendant and one Heinze, whereby certain rights were acquired to make use of certain premises owned by the defendant for dumping slag and refuse from the plaintiff’s mining plant. Heinze conveyed his interest in the contract to the Montana Ore Purchasing Company, and the plaintiff claims some interest in such contract. So far as important to any question arising upon this appeal, the question in dispute appears to be as to the rights of the plaintiff to have a reformation of the contract authorizing it to deposit tailings from the plaintiff’s concentrator. The contract authorized Heinze to deposit slag from the smelter which was located upon the leased premises, the subject of the contract. Heinze, or his successor in interest, erected upon a lot adjoining the premises upon which the smelter stood, but not embraced within the contract of lease, a concentrator, which, in the process of reducing ore, produced a substance termed slag,” and this substance it deposited upon the same lot that it was authorized to deposit tailings upon from the smelter. The defendant brought an action in the United States Circuit Court for Montana, in equity, to prevent the Montana Ore Purchasing Company from depositing slag and tailings upon the premises. This action proceeded to judgment, wherein it was determined that, under the contract, the right only existed in the Montana Ore Purchasing Company to deposit tailings from the smelter, and that no right existed to deposit slag or other refuse from the concentrator. By this action, therefore, it is sought to reform the contract of lease so as to embody therein an agreement, claimed to exist, authorizing it to deposit slag from the concentrator, which was omitted by mistake from the contract, and the plaintiff having succeeded to some interest in the rights under the contract, brings this action for a reformation of the same.

There are several grounds why the injunction which it is sought by this motion to obtain should be denied. It by no means clearly appears that plaintiff has any such interest in the reformation of .this contract, or otherwise, as entitles it to injunctive relief. The averments of the complaint are to the effect that certain representations were made to it by the Montana Ore Purchasing Company, showing that under the contract the right existed to deposit the slag from the concentrator. The complaint then avers that the plaintiff acquired a certain interest from the Montana Ore Purchasing Company in certain property, including an interest • in the agreement sought to be reformed; that it parted with a valuable consideration therefor in reliance thereon, and became the owner as aforesaid of an undivided interest in the property and contract and the various easements and rights arising thereunder, and that it is unwilling to go to any further expense in relation thereto until it is finally settled that the statements made to the plaintiff by the ore purchasing company are true, and that the interest and easements under the contract existed and were as represented at the time of the purchase. These are the only averments of the complaint which throw any light whatever upon the present interest and right of the plaintiff in and to the contract sought to be reformed. It is quite evident, therefore, that the allegation of interest and right in the plaintiff to maintain this action is entirely insufficient to show that it is possessed of any right whatever which would induce a court of equity to enjoin the defendant, or any other person, from interference therewith. The averment is consistent with an interest so slight as would not require protection and of a character which it would be entirely improper to protect. Before an injunction will be awarded the party applying therefor must clearly show that he is possessed of a substantial right from which injury will flow, unless the acts of which complaint is made are restrained. There is nothing in the voluminous record presently before this court to show that the plaintiff has acquired or will derive any substantial benefit by reason of the interest of which it claims to be possessed, if an injunction be granted^ or that it will suffer any injurious invasion of its rights if it be denied. Clearly, then it has not made out .a case entitling it thereto.

In addition to this it appears that there is a binding adjudication upon the plaintiff’s predecessors in interest showing that no such right as it claims presently exists is secured by the contract. It is a well-settled rule of law that before a person becomes ■entitled to the reformation of a contract upon the ground of mistake, it must be made clearly to appear. by unequivocal and satisfactory proof that a mistake was made, (Nevius. v. Dunlap, 33 N. Y. 676; Southard v. Curley, 134 id. 148.) In the present case it is clear that, aside from the question of interest in the plaintiff entitling it to injunctive relief, its proofs are entirely insufficient to meet the requirements of this rule. The judgment of the Circuit Court as it stands is res adyudAoata of the rights under the contract as they exist, and, in addition thereto, it appears that the plaintiff has instituted proceedings to condemn the rights in the land to deposit its refuse upon the premises, and in such proceeding the plaintiff avers that the said plaintiffs have not acquired any right to use the said land for the purposes hereinabove mentioned, or for the purpose for which the same is sought to be condemned by agreement between the parties, other than the rights acquired by F. Augustus Heinze, the predecessor in interest of these plaintiffs, in and to the said land, as contained in the said agreement hereinbefore referred to.” The agreement therein mentioned is the same agreement now sought to be reformed, and under which the plaintiff claims. In other words, the plaintiff, in the condemnation proceedings makes the unreformed contract the basis for the proceeding and then states that its only right and interest is such as is expressed therein. So that by the terms of the contract as judicially construed and the sworn allegation of the, petitioner, the plaintiff shows clearly that it is not entitled to any reformation ■ of the instrument sought in this action to be reformed. It is a familar principle of law that where a person possessing a right resorts to a proceeding to condemn another’s land for its purposes, he thereby admits title to the land to be in the per-. son of whom it is sought to be taken. (Village of Olean v. Steyner, 135 N. Y. 341.) ' The relief which the plaintiff seeks in this action is to have the contract in terms express a right to the easement which in the Montana court it seeks to obtain by proceedings in condemation of the right. It is apparent that the two claims are inconsistent. One asserts that the plaintiff is possessed of the right by contract, the other that it is possessed of no such right, but to secure it invokes the authority of eminent domain. It is clear, therefore, that upon the plaintiff’s own showing it is not entitled to the relief which it asks.

We think, also, that the same reasons exist for denying relief as were previously found sufficient in denying injunctive relief in another action wherein the rights of the parties were involved.. The premises in controversy are situate in the State of Montana; the right which the plaintiff seeks to exercise is to be exercised there ; and the Montana courts, State or Federal, have heretofore taken jurisdiction and adjudicated upon the rights of the parties in their several controversies. We think now as before, that it would be an unseemly exercise of power for this court to attempt interference in such conditions by the mandate of injunction. (Montana Ore Co. v. Butte & Boston Co., 44 App. Div. 136.)

The application for the injunction was, therefore, properly denied, and the order" should be affirmed, with ten dollars costs and disbursements.

So far as the appeal from the order denying a resettlement of the order appealed from is concerned, we think it should also be affirmed. If it be assumed that there Was any irregularity in submitting the answer, which we do not think there was, the plaintiff was not prejudiced. It is quite evident that the clause of the answer to which objection was made could in no wise change the result, arid it was stipulated out of the record by counsel for the defendant. So that in no view was the plaintiff prejudiced. This order should, therefore, be affirmed, with ten dollars costs and disbursements.

Rumsey, O’Brien and Ingraham, JJ., concurred. Van Brunt, P. J., concurred on last ground.

Order affirmed, with ten dollars costs and disbursements. Order denying resettlement affirmed, with ten dollars costs and disbursements.  