
    Manley v. Leggett et al.
    
    
      (Supreme Court, General Term, First Department.
    
    December 31, 1891.)
    1. Injunction—Temporary Obstruction of Road-Way.
    Temporary, and not unreasonable, use of the road-way in front of plaintiff’s premises, by teams and trucks standing in line to unload in turn on defendants’ adjoining premises, will not be enjoined.
    3. Same—Undertaking—Direction in Order.
    The direction as to the giving of the undertaking required by Code Civil Proc. § 630, need not be embodied in the injunction order, there being no statute requiring it.
    
      3. Same—Giving Undertaking Nunc pro Tunc.
    The failure to give the undertaking required on the issue of a temporary injunction (Code Civil Froc. § 630) is a mere irregularity, which can be cured nunc vro tune.
    
    Appeal from special term, New York county.
    Action by Mary A. Manley against Francis H. Leggett, Albert H. Jones, and Lewis Wallace for an injunction to restrain defendants from occupying the sidewalks in front of their premises with trucks, wagons, vehicles, or other like obstructions, and from unreasonably or unnecessarily obstructing the sidewalks by any plank-way, skid, or bridge, and from occupying the roadway in front of plaintiff’s premises, or permitting the same to be occupied by trucks, wagons, or other vehicles. From an order granting a temporary injunction as prayed, defendants appeal.
    Modified.
    Argued before Van Brunt, P. J., and Barrett and Andrews, JJ.
    
      Noah Davis and J. Henry Work, for appellants. Stickney, Spencer <& Ordway, (Nelson 8. Spencer, of counsel,) for respondent.
   Barrett, J.

No point was made upon the argument qf this appeal as to the propriety of the injunction, so far as it restrains the unlawful use of the sidewalk in front of the defendants’ premises. The appellants’ argument was confined to criticism of that part of the injunction which restrains the defendants from occupying the road-way in front of the plaintiff’s premises. We think the appellants’ contention on this head is well founded, and that the injunction with regard to the road-way should be modified. The plaintiff has in this particular failed to make out a case for an injunction pendente lite, within the principles enunciated in Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 264, and the cases there cited. After reading the affidavits upon both sides, it is impossible to say that the plaintiff has clearly established such a continuous and extensive use of the road-way in front of the plaintiff’s premises as to constitute a nuisance. Temporary use of the road-way, there as elsewhere, is inevitable, and the question is, was the actual use, under the circumstances, excessive and unreasonable? That question is so doubtful, upon the papers, as matter of fact, that the plaintiff should have been remitted for its solution to a trial at special term. A point is made that the injunction was irregular in not requiring an undertaking, as prescribed by section 620 of the Code. We have no means of knowing whether this point is well taken as matter of fact. There is nothing in the Code which requires the direction as to the undertaking to be embodied in the injunction order. For aught that appears upon this record, a proper undertaking was duly given. But, even if failure upon that head affirmatively appeared upon the record, the irregularity could be cured nunc pro tune, and even the general term could provide for the giving of such security upon terms. Attrition Co. v. Van Tuyl, 2 Hun, 373; Pratt v. Underwood, 4 Civil Proc. R. 167. The order appealed from should be modified by striking out so much of the injunction as relates to the road-way in front of the plaintiff’s premises, and, as modified, affirmed, without costs of this appeal.

Van Brunt, P. J.

I concur. But I do not think that the plaintiff may not be entitled to relief because of the improper use of the road-way by the defendants. The plaintiff is entitled to access to her premises, and the defendants cannot be permitted to deprive her of that access under the plea that they are only using the street to receive goods sent or coming to their store. If the goods come faster than their staff of employes can receive them, they must employ a larger staff, so that the plaintiff is not interfered with unreasonably in her access to her premises.

Andrews, J., concurs.  