
    The City of Gloversville, Resp’t, v. The Johnstown, Gloversville & Kingsboro Horse Railroad Co., Impl’d, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 22, 1892.)
    
    1. Injunction—Pendente lite.
    The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reviewed unless there has been an abuse of that discretion.
    3. Same—Railroads.
    Defendant’s charter prohibited the use of steam power, and restricted it to the power or force of animals. By an agreement in writing the plaintiff _ granted defendant the right to use electricity as a motive power on certain conditions, and it was provided that nothing therein should be construed as acknowledging that the railroad may lawfully build or maintain its road upon the side of the street. In an action for a violation of this agreement in not moving its road to the middle of the street, an injunction was granted restraining the construction of said road on the side of the street during the pendency of the action. Held, that the granting of such injunction was not an improper exercise of discretion and woulq not be disturbed.
    
      Appeal from an order of the special term containing an injunction pendente lite, restraining the defendant from constructing or reconstructing its road along the side of South Main street, in the city of Glovers ville.
    
      Baker & Burton, for app’lt; Edgar A. Spencer, for resp’t.
   Mayham, P. J.

The defendant was incorporated by chapter 255 of the Laws of 1874. Section 3 of that chapter provides that The said railroad company is hereby prohibited from using steam as a motive power on said railroad, or from transporting or conveying freight thereon, and is hereby restricted to the business of taking and conveying persons or passengers over the said railroad in street railroad cars by the power or force of animals.”

On the 26th of April, 1892, the relator and the railroad company entered into an agreement in writing, whereby the relator granted the defendant the right and privilege to use electricity as the motive power for the propulsion of its cars, but it is insisted that one of the conditions of the relator’s consent was, that the defendant should remove the location of its tracks in the street of the relator to the middle of Main street, through which the route of the railroad track was constructed, and the relator charges in the complaint, and seeks to establish on the motion for an injunction, and in resisting the application of the defendant for its discharge, that the defendant is about adopting electricity as a motive power without so changing the location of its track, and that such change from animal power to that of electricity, without such change of the location of its route, will work irreparable injury to the relator.

The granting or refusing of an injunction pendente lite is usually in the sound discretion of the court of original jurisdiction, and the order of the special term will not ordinarily be' reviewed, without there has been an abuse of that discretion; and, while it is true that the general term has the power to review and reverse the order of the special term in a case of this character, that power should not be exercised in a doubtful case, when, if the injunction is vacated, the defendant might do acts which would render the final judgment ineffectual, if it should be finally held that the plaintiff is entitled to the relief sought in the action.

By the terms of .the relator’s consent in the' contract of July 5, ' 1883, the defendant was only authorized to lay its railroad tracks under the supervision of the trustees of the village and in the manner to be approved by them, and' it would seem that all the subsequent acts of the parties have been conducted with reference to that reserved right in the village, to which, by the charter, the city on its incorporation succeeded. By the fourth clause of the contract between the parties by which it was agreed that the motive power to be used by the defendant for the propulsion of its cars should be charged from animal to electricity, it is provided that “ nothing herein contained is intended to}> or shall be held to impair, modify, or construe any right or privilege, or claim of either party, except as above expressly provided, or contained, and nothing shall be construed as acknowledging on the part of the city, that said railroad company may lawfully build or continue its road upon the side of the street.”

Without discussing all the questions raised in this case and discussed on this appeal, we think we have gone far enough to show that the granting of this injunction was not an improper exercise of the discretion of the judge, by whom the order to show cause was granted, and that the special term of this court, by which the preliminary inj unction appealed from was granted, being a court of original jurisdiction vested with the exercise of a sound j udicial discretion in granting or refusing injunctions pendente lite, did not so far exceed the just exercise of its discretion as to justify this court on appeal in reversing the order and vacating the injunction. Van Dewater v. Kelsey, 1 Comstock, 533; Paul v. Hunger, 47 N. Y., 469; Calkin v. Manhattan Oil Co., 66 id., 557; Hudson River Telephone Co. v. Watervliet Turnpike & R. R Co., 121 id., 397; 31 St. Rep., 524.

Order for preliminary injunction affirmed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concur.  