
    The Hudson River Telephone Co., Resp’t, v. The Watervliet Turnpike & R. R. Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 3, 1890.)
    
    Injunction pendente lite.
    Defendant having completed an electric railway and obtained the consent of the common council, was about to commence running its cars on Broadway, Albany, when an injunction pendente lite was issued, the action being to obtain a final injunction restraining the defendant from using the single trolley electric system, which plaintiff claimed interfered with the use of the telephone by its subscribers. Held, that this court could not interfere without violating the rule that the granting of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, which is reviewable only by the general term, and it is only where it plainly appears upon the face of the complaint that the case is one in which by settled adjudication the plaintiff, upon the facts stated, is not entitled to final relief, that this court will interfere, and while the court had grave doubts as to whether plaintiff’s complaint stated a cause of action, it would not dispose of the case upon its merits in this proceeding.
    (Pinch and Peckham, JJ., dissent.)
    
      Appeal from judgment and order of the supreme court, third department, continuing injunction pendente lite granted by Albany special term, restraining defendant from operating its railroad in the city of Albany by what is known as the single trolley system of electricity.
    
      Matthew Hale and Marcus T. Hun, for applt; D. Cady Herrick, for resp’t
    
      
       Affirming 29 N. Y. State Rep., 694.
    
   Andrews, J.

We cannot entertain the appeal without disregarding a long line of decisions in this court, holding that the granting of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and that this discretion is reviewable only by the general term. There is an exception to this rule “ where,” as we said in Williams v. Telegraph Co., 93 N. Y., 640, “itplainly appears on the face of the compláint that the case is one in which, by settled adjudications, the plaintiff, upon the facts stated, is not entitled to final relief,” and the appeal to this court is from an order affirming an order, granting the injunction.

The plaintiff is a telephone company organized under the general act, chapter 265, of the Laws of 1848, “ for the incorporation and regulation of telegraph companies,” and the acts amendatory thereof. By the fifth section of the original act, and the act, chapter 471, of the Laws of 1853, telegraph companies organized under these statutes are authorized to erect and construct from time to time the necessary fixtures for their telegraph lines, “upon, over or under any of the public roads, streets or highways ” within this state, but subject to the restriction that “ they shall not be so constructed as to incommode the public use of said roads or highways.”

The plaintiff, claiming to be a telegraph company within the meaning of the act of 1848, in the year 1883, (the year of its incorporation) erected upon Broadway, in the city of Albany, poles for its wires, and perfected its system of telephone communication, using the wires strung upon said poles for the transmission of the current of electricity required in telephone communication, and has ever since continued such use. The defendant was originally incorporated by chap. 141, of the Laws of 1828, as a turnpike company, with power to construct a turnpike road between Albany and West Troy. It constructed its turnpike road under said act between the points named. By chap. 233, of the Laws of 1862, it was authorized to construct and maintain railroad tracks over its turnpike road and.to extend the same into and through the villages of West Troy and Cohoes and the town of Watervliet, and also “with the consent and with such restrictions as may be deemed proper by the common council of the city of Albany, to extend and maintain such railroad track or tracks and ways from the southerly termination of said turnpike road in and through Broadway in said city, to South Ferry street.” By the 4th section of the act the defendant was authorized to operate such road “ by the power of horses, animals, or any mechanical or other power, or the combination of them, which the said company, may choose to employ, except the force of steam.” Soon after the passage of the act of 1862, the defendant, pursuant to the act,, changed its corporate name to the present one, and having obtained the written consent of the common council of the city of Albany to lay a track or tracks for a horse railroad in Broadway, constructed and, until 1889, operated a horse railroad upon its turnpike road and through Broadway to South Ferry street in the city of Albany.

In 1889, the defendant proposing to substitute electricity in place of horse power for the movement of its cars, applied for and •obtained the consent of the common council of the city of Albany to erect posts in Broadway and to string wires thereon, and to -operate its cars through that street to South Ferry street “by means of electric motors.”

The defendant thereupon made the necessary changes required 'for the operation of its road by electricity under what is known as the single trolley system. It erected a power house on the line of the Troy road and posts in and along Broadway and the line of the turnpike road and strung the necessary wires, and prior to the commencement of this action the road had been put in successful operation under the new system, from its northern terminus to near the south line of the city of Albany, a distance of several miles. The defendant having completed its structure, was about to commence running its cars by electricity on Broadway, when the injunction order in this action was issued. The object of the action is to obtain a final injunction restraining the defendant from using the single trolley electric system in the -operation of its road on Broadway. It appears, with reasonable certainty, from the complaint and affidavits used on the motion for the injunction, that the operation of the defendant’s road by the single trolley system will result in serious disturbance of the telephone service. It is sufficient for the present purpose to state that this apprehended disturbance will arise in two ways:

First. By the earth distribution of the current of electricity conveyed by the trolley wire suspended over the road of the defendant and the attachment to the motor on the defendant’s cars, and thence discharged on to the rails and track, which discharged current will in part find its way through the earth to any neighboring conductors of electricity, including the wires used by the defendant for the earth or grounded circuit of the telephone system, and

Second. By what is called induction; that is, by inducing on the telephone wire currents of electricity corresponding in variation with the variable currents used on the trolley wire. The effect of each of these causes, as appears by the testimony of the •electrical experts, is to confuse and drown the minute current used in the telephone service and prevent, or greatly interfere with, communication by telephone. The complaint is based on the theory that such interference by the defendant in the use of the single trolley system violates the chartered rights of the plaintiff and is an unlawful invasion of its property and privileges. The complaint sets forth that the system adopted by the defendant is not properly constructed so as to protect the plaintiff from injury, and that there are other systems of operating roads by electricity, by which the defendant can operate its road without affecting the plaintiff, its plant, equipment or service in any material degree, and with safety to the public.” But it is not alleged that the system used by the defendant is not a proper and suitable one for its own purposes, nor that in its construction the defendant has omitted any precaution which might have been taken for the protection of the plaintiff.

The evidence strongly preponderates in support of the contention of the defendant that the single trolley system for the propulsion of street cars by electricity is the best in use, “ having regard to mechanical, electrical and financial considerations.” Op. Landon, J., Gen. Term, 29 N. Y. State Rep., 694. The use of a grounded circuit is not necessary to a telephone system. The substitution of a metallic circuit such as is used on long distance telephone lines will, it is admitted, prevent any material disturbance from the operation of the defendant’s road by the single trolley system. There is no dispute that the substitution by the plaintiff of the metallic for the earth circuit is practicable, but the change would involve a large outlay, and, on the other hand, the testimony of experts is that beside obviating the disturbance caused by defendant’s road, the change would promote the general efficiency of the telephone service.

It is sufficiently obvious from this summary statement that the question presented in this case involves very important public and private interests. The plaintiff is but one of a large number of telephone companies which, under the general permission of the statute for the incorporation of telegraph companies, have erected poles and strung their wires in the streets of the cities and villages of the state. The claim that under this promissory grant they can exclude the use of the streets by electric railways, or for other street purposes requiring the use of electricity, wherever the use of this agent interferes with the use of the telephone, although the municipality may consent and the public interest will be promoted by the other uses to which the streets are sought to be subjected, needs but to be stated to induce hesitation. We have examined with care the questions involved in this case, and we are compelled to say that we entertain very grave doubts whether upon the facts stated in the complaint and affidavits, any cause of action exists in favor of the plaintiff, and whether the plaintiff has any remedy for the injury of which it complains, except through a readjustment of its methods to meet the new condition created by the use of electricity by the defendant under the system it has adopted. But we think we ought not to dispose of the case upon its merits in this proceeding. The questions are new and. difficult, and courts elsewhere have differed upon them. The trial of the case upon the merits is now proceeding, wherein the facts will be judiciously ascertained, and in case an appeal shall be taken upon the final judgment rendered to this court, we shall then be better able than now to determine the ultimate rights of the parties. The present appeal should therefore be dismissed.

All concur, except Finch and Peckiiam, JJ., dissenting on the ground that complaint states no cause of action.  