
    David Hamburger, Doing Business as Dave’s Service Station, Plaintiff, v. New York State Thruway Authority, Defendant.
    Supreme Court, Special Term, Westchester County,
    July 23, 1959.
    
      
      Gordon Miller for plaintiff.
    
      Louis J. Lefkowits, Attorney-General (Arthur W. Mattson, Douglas L. Manley and Grace K. Banoff of counsel), for defendant.
   Leonard J. Supple, J.

The motion of the defendant to dismiss the complaint upon the ground that the court has not jurisdiction of the subject of the action will be denied.

The motion of the plaintiff for an injunction during the pendency of the action will be denied because

(1) the plaintiff has not made the clear and convincing case necessary on any application for an injunction pendente lite, and particularly where, as here, he seeks to restrain a public authority from the performance of a public service involving the safety and exposure to danger of the public; and

(2) the acts allegedly performed by the defendant constituted the performance of service required by the contract to be performed by plaintiff and on which he was defaulting; and

(3) the plaintiff has made no showing of irreparable damage or that he lost any substantial custom because defendant performed the service it did; and

(4) the papers indicate that plaintiff has not fully performed and is not fully performing under the contract.

Submit orders on notice.  