
    Henry M. Taber et al., Respondents, v. The Manhattan Railway Co. et al., Appellants.
    (New York Superior Court
    General Term,
    October, 1895.)
    A finding as to fee damage in an action for injunctive relief against an elevated railroad is not an adjudication on value which will conclude" the parties to the record, and cannot furnish a basis in estimating tlfe injury to the plaintiffs caused by defendant’s contempt in continuing the operation "of the road, where the award in condemnation proceedings is less than the amount so found.
    An injunction against the maintenance and operation of an elevated railroad is abrogated by the confirmation of the report offthe commissioners in proceedings to condemn the easements taken and payment of the award made therein.
    Contempt proceedings cannot be maintained after an injunction has been dissolved, abrogated or otherwise ended, to punish a party for a "previous violation .of the mandate.
    
      Taber v. Manhattan R. Co., 12 Misc. Rep. 460, reversed.
    Appeal by defendants from order finding them guilty oi contempt for disobeying injunction contained in judgment.
    
      Ernies <& Rapallo and E. G. James, for appellants.
    
      J. E. Parsons, for respondents.
   MoAdam, J.

• Without determining the effect of the various extensions and stays,, but assuming that the court below was ■ right in deciding that there had been a violation of the Injunction, questions arise that require serious reflection. ' The ■fine imposed was $14,750, ■ being the difference between $30,250, the amount awarded in condemnation proceedings, ■arid' $45,000, the sum for which the defendants were by the judgment of this court permitted to purchase the easements they had wrongfully appropriated to their own use. It is ■objected that the fine was arbitrarily imposed and not assessed upon legal principles.

The fine authorized is limited to indemnification, and when the actual lqss or injury is not shown it cannot exceed the costs and $250 in addition thereto. Code, § 2284. Where actual loss or injury is claimed the proof thereof must be according to the rules of law applicable to an action for such ■damages. Dejonge v. Brenneman, 23 Hun, 332; Sudlow v. Knox, 7 Abb. Pr. (N. S.) 411; Luedeke v. Coursen, 3 Misc. Rep. 559; Tinkey v. Langdon, 60 How. Pr. 180; Simmonds v. Simmonds, 6 Wkly. Dig. 263. The only proof furnished here is in the fact" that the amount of the award in the condemnation ¡proceedings was $14,750 less than the sum at which the defendants were by the judgment of this court privileged to purchase the easements. The question then is whether these two records legally establish plaintiffs’ loss or injury to the extent claimed.

The action for past damages "and injunctive relief was commenced before the condemnation proceedings were instituted, and, no doubt, led to their institution, with the probable ■design that if the commissioners made an award 'more favorable to the defendants than that of this court, as a- condition ■of obviating the injunction, they would act upon such award •and prevent the further prosecution of the action. Whether such a course is commendable meed not be discussed, for a party proceeded against is entitled to use all legal avenues of ■escape from his pursuer. The commissioners made the more favorable award to the defendants, and they paid the amount into court, thereby acquiring title to the easements long before the proceedings to punish for contempt were instituted. The adjudication in condemnation proceedings established for all time and every purpose the value of the easements taken. Oberfelder v. M. E. R. R. Co., 138 N. Y. 181.

In actions for injunctive relief the provision for the payment of the fee damage, as the equivalent of the property taken in avoidance of the injunction, is purely matter of grace or favor to the defendants ; it is simply a privilege of which they may avail themselves, rather than an option which they can be held to have accepted as a binding election on their part by the mere failure to stop their trains or remove their structure. Such payment is at the pleasure of the defendant, and neither party has the right to compel the ■court to make the provision. Galway v. M. E. R. Co., 128 N. Y. 149 ; Eggers v. Same, 27 Abb. N. C. 469, 470, 471; Mead v. N. Y. E. R. Co., 24 N. Y. Supp. 909. It is inserted more to serve public convenience than any equity due to the ■defendant. The plaintiff’s remedy in such a case is to recover damages to the rental value for the time the easements were wrongfully used, and to enjoin their further use until title is acquired; the relief being a money judgment for such damages, and an injunction to prevent further trespasses.

The incidental fixing of a sum at which the defendant may purchase the easements is to facilitate the acquirement thereof1 without the expense or delay of new proceedings, not to supersede or impair the constitutional mode of obtaining the property by condemnation. Such a finding does not operate as an adjudication on value in the sense which concludes the parties to the record. It is not enforcible as adjudications are; it becomes operative only in cases where the defendants avail themselves of the privilege accorded, and then only by their voluntary.act. It is in the nature of a cont&uing offer to sell — inefficacious without binding acceptance; and bears but slight resemblance to the judgment which creates an estoppel and is available in subsequent proceedings as res adjudícala. That the record of a judgment, in order to con-elude, either of the parties litigant' must loe conclusive upon both is elementary. 1 Greenl. Ev. § 524; Nelson, v. Brown, 144 N. Y. 384.

Condemnation proceedings are, to enable the defendant to acquire title to the "■ easements by making full compensation therefor, and the question of value presents the main, if not only, issue for determination ;■ hence the award of the commissioners is conclusive upon'the subject. Oberfelder v. M. E. R. Co., supra. , The pendency of an action for injunctive1 yeYieif (Matter of Met. E. R. Co., 55 Hun, 198, 200) or a judgment in equity (In re Met. El. R. Co., 12 N. Y. Supp. 504) is no bar to proceedings for condemnation. This is so oh principle as well as authority. When the bom-missioners appointed' in such proceedings award the damages and the same are paid, the equity action as-to injunctive relief abates, for it. yields in this respect to the -statutory remedy. In re Met. El. R. Co., 12 N. Y. Supp. supra.'

The judgment in the equity action being no bar to the condemnation proceedings -and not conclusive therein on the subject of value,, it follows that the controlling, evidence thereof is that furnished by the award of the commissioners, and that alone. There is, therefore, nothing in the case establishing loss, or injury to the extent of $14,750, and the fine imposed and fixed at that sum is, without warrant in law; for which reason, if no other, the order appealed from would have to be" reversed. 1

If -we placed1 our decision, solely on the ground of excessive damages, it might be proper to-remand the case to the Special Term-for a reassessment, but. another and more serious question presents itself.

The injunction issued by -this court ended by force of law' November-27, 18.93, when the commissioners’ report was confirmed and’lhe awai;d paid (Watson v. M. E. R. Co., 29 N. Y. St. Repr. 514; Manhattan R. Co. v. Taber, 29 N. Y. Supp: 220; Gardner v. Gardner,. 87 N. Y. 14, 17, 18), and contempt proceedings cannot be maintained after an injunction1 has been ‘dissolved, abrogated or otherwise ended, to punish a party for a previous violation of the mandate. Peck v. Yorks, 32 How. Pr. 408; Moat v. Holbein, 2 Edw. Ch. 188; Murad v. Thomas, 6 N. Y. St. Repr. 662.

In Watson v. Met. E. Railroad Co., supra, the General Term of this court held that it was error to refuse to permanently dissolve the injunction in an equity.action against the elevated railroad, similar to this action, after the confirmation and payment of the award of commissioners in condemnation proceedings. The ground of the decision was that the acquisition by the railroad company of title and right of possession to the property which the injunction was intended to protect ipso facto ended the injunction. Sedgwick, Ch. J.,. said: “The substantial provision was that when the plaintiff ceased to own and the defendants became owners the injunction should not be continued further. The judgment did'not-intend that, if the defendants became owners on whatever terms, they should not enjoy the legal consequences of being-owners. * * * In my judgment, if, in fact, the defendants have become' the owners of that, part of the plaintiff’s easement which the injunction prevented them from further-using, the plaintiff has ceased to have a right to an. injunction.”

In Man. Ry. Co. v. Taber (plaintiff’s appeal from stay order under § 3379, Code), supra, Follett, J., said: “ When, the final order has been entered and the award has been paid, or deposited, the plaintiff io entitled to the possession of the-property condemned.”

In Peck v. Yorks, supra, the court held that the reason of’ the rule which prevents a prosecution for a statutory offense, or an action to recover a penalty, after the repeal of the-statute which made the act criminal or imposed the penalty,. “ applies with full force to the case of an injunction vacated or modified, and all acts in violation of it previously.” JudgeJohnsok said : “An injunction, which is but ■ an order of the-court, can have no more force or extended operation after it is set aside or modified than a statute repealed or modified in. .regard to acts previously done. ' In either case, the rule being ¡abolished, the infraction of it is abolished also, and nothing remains on which a conviction can be based.”

The injunction having been abrogated and dissolved by 'operation of law November 27, 1893, the order made by ■Judge Dug-bo on February 27, 1894, did not and could not .revive it or save any rights under it. The order punishing the defendants for contempt was not made until June, 1895, long after the injunction had spent its force. It is, there-' Tore, open to the objection held to be fatal in the cases last cited.

The condemnation proceedings resorted to by the defendants have long been recognized as a proper alternative for the avoidance of the injunction in elevated railway equity suits (Story v. N. Y. E. R. Co., 90 N. Y. 179; Glover v. Same, 51 N. Y. Super. Ct. 1; Blumenthal v. Same, 42 N. Y. St. Repr. 683; American B. N. Co. v. M. E. R. Co., 129 N. Y. 252; Galway v. Same, 128 id. 149; Lewis Em. Dom. § 634), and ¡this whether the suit is commenced before or after the con•demnation proceedings are instituted, the fcommissioners’ .award in éither instance being regarded as controlling in its -effect when followed by payment in some form authorized by law.

, The jurisdiction of such proceedings rests exclusively in ■-the Supreme Court. Const, art. 1, § 7; Code, § 3360. • The -court has no power directly to interfere with or limit the exercise of the right of eminent domain. Whether such fight ¡shall be put in motion for any particular purpose, and whether the exigencies of the occasion and the public welfare justify - its exercise, are questions which rest entirely with the legislature. Beekman v. R. R. Co., 3 Paige, 45; Harris v. Thompson, 9 Barb. 350; Buffalo, etc., R. R. Co. v. Brainard, 9 N. Y. 100; People ex rel. Herrick v. Smith, 21 id. 595; Matter of Fowler, 53 id. 60; Matter of Union Ferry Co., 98 id. 153; Gilmer v. Lime Point, 18 Cal. 229 ; Lent v. Tillson, 72 id. 404; Water -Works Co. v. Burkhart, 41 Ind. 364; Haverhill Bridge Proprs. v. County Com. of Essex, 103 Mass. 120; Tide Water Co. v. Coster, 18 N. J. Eq. 54, 518.

It would seem,, therefore, that the condemnation - proceedings in the Supreme Court, followed by payment of the award, effectually terminated this action so far as injunctive relief is concerned.

Eor these reasons the defendants were not amenable to process for contempt of this court for the acts complained of, and the order appealed from must be reversed, with costs.

Freedman, J., concurs.

Order reversed, with costs.  