Dailey v. City of New York , 157 N.Y.S. 1121 ( 1916 )

Per Curiam:

The judgment should be modified so as to provide as follows: Ordered, adjudged and decreed that the defendant the City of New York and the defendant John T. Fetherston, commissioner of street cleaning, and each of them, and their and each of then- attorneys, agents, servants and employees, be and they are hereby enjoined and restrained during the continuance and life of the contract of the plaintiffs with the city of New York of August 12,1913, for the final disposition by the plaintiffs of the ashes, street sweepings and rubbish that may be collected by the defendant the City of New York in. the boroughs of Manhattan and The Bronx, from delivering, dumping or depositing upon the scows or other transporting conveyances of the plaintiffs material other than “ashes, street sweepings and rubbish,” as those words are specifically defined in the said contract between the plaintiffs and the City of New York, which is collected from the department stores, factories, business establishments and buildings, no portions of which are used as dwellings or residences by others than caretakers, janitors or watchmen in the employ of those conducting the business in the borough of Manhattan, city of New York, either by carts of the defendant or by the owners of private vehicles under special permits issued by the defendant the City of New York and the defendant John T. Fetherston, its commissioner of street cleaning; and it is further ordered, adjudged and decreed that the complaint herein, so .far as it demands injunctive relief against the defendants under subdivisions B, C and D in the prayer thereof, be and the same is hereby dismissed, without prejudice to an action at law fpr relief with respect to the same subject-matter. The operation of *the injunction hereby granted shall be stayed until twenty days after the filing of the decision and judgment herein and the service of copies of the same upon the defendants with notice of entry. And as so modified the judgment should be affirmed, without costs. Present— Clarke, P, J., McLaughlin, Laughlin, Scott and Page, JJ. Judgment modified as stated in opinion, and as modified affirmed, without costs. Order to be settled on notice.