City of Gloversville v. Johnstown, Gloversville & Kingsboro Horse Railroad

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 height thereon, and is hereby restricted to the business of taking and conveying persons or passengers over 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.

*147 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 changed 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 maintain 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 injunction appealed from was granted, being a court of-original jurisdiction, vested with the exercise of a sound judicial discretion in granting or refusing injunctions pendente lite, did not so far exceed the juát exercise of its discretion as to justify this court, on appeal, in reversing the order, and vacating the injunction. Van Dewater v. Kelsey, 1 N. Y. 233 ; Paul v. Munger, 47 N. Y. 469 ; Calkin v. Oil Co., 65 N. Y. 557 ; Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 121 N. Y. 397 , 24 N. E. Rep. 832. Order for preliminary injunction affirmed, with $10 costs and printing disbursements. All concur.