
    Nen York Central and Hudson River Railroad Company, App’lt v. Louis F. Haffen, as Commissioner, etc. et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15 1895.)
    
    Injunction—Preliminary.
    The filing of a map by the board of street opening, showing a proposed street, will not be enjoined pendente lite in an action by an abutting property owner where such filing will not harm the owner if it shall finally be determined that the city has no right to open the street described therein.
    Appeal from an order, denying a motion to continue a temporary injunction, and vacating the same.
    
      Ira A Place, for app’lt; Geo. L. Sterling, for resp’ts.
   Per Curiam.

It is the plaintiff’s contention that the maps showing certain streets through and over property belonging to it should not be filed by the defendant, because :

“E'irst. The plaintiff having acquired and devoted the lands for depot and station purposes, the city has no authority, without express statutory permission, to take such parcels for any other public use. Second. The city is prohibited by section 957 of the consolidation act from laying out streets through or upon the depot or station grounds of any railroad, * * * unless with the consent of the said railroad company. * * * ”

The claim of the plaintiff that the parcels of land in controversy constitute a part of the station of the Grand Central Depot is controverted by the defendants, and, after an examination of the record, the conclusion is reached that this question ought not to be passed upon by the court upon affidavits; that there ought to be, in justice to both parties, a decision of the controverted question of fact based upon testimony resulting from a trial of the issues, and not upon ex parte affidavits ; and that such trial should be unembarrassed by any suggestions on this review which should appear to favor the contention of one or the other of the parties. The affirmance of the order without other comment will" accomplish this result, and at the same time work no injury to the plaintiff should its contention be sustained by the courts, for the filing of the maps will not harm the plaintiff if it shall finally be determined that the city has no right to open the streets described therein. It has been held that the filing of such a map does not create such a cloud upon title as will relieve a purchaser from completing his purchase. Forster v. Scott, 136 N. Y. 577; 49 St. Rep. 699; Wagner v. Perry, 47 Hun, 516; and certainly it cannot harm the plaintiff, as pending the final disposition of the suit it will have no occasion to dispose of the property affected. An injunction pendente lite should not, therefore, be granted.

The order should be affirmed, with $10 costs and printing disbursements.  