Knoth v. Manhattan Railway Co. , 96 N.Y.S. 844 ( 1905 )

Ingraham, J. (concurring):

I concur in the affirmance of this judgment.' The proposition that .the defendant bad no authority to lay this third track is not open to discussion in this court. (Auchincloss v.. Metropolitan El. R. Co., 69 App. Div. 63.) The act of the defendant, therefore, in constructing this track was unlawful and for the -damage -caused to the plaintiff thereby the plaintiff has a remedy at law. Whether or not a court of equity would interfere by injunction to prevent a continuance of the unlawful act rests in the sound judicial discretion of the court, and in determining' whether a court of equity should grant an injunction, or should leave the party to her remedy at law, the actual injury sustained by the plaintiff, together with' the resulting injury to the defendant and to the public at large, " should be considered.

In Gray v. Manhattan R. Co. (128 N. Y. 499) it is said: “ An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right.” In this case the defendant constructed this third track claiming authority under certain statutory provisions. Its use has become necessary for the proper operation of the road, and it is quite apparent that the interests of the public, as well as that of the defendant, will be seriously jeopardized if the.defendant is compelled by a mandatory injunction to-remove the track. It has been determined by the court that all the plaintiff’s rights could be protected by the payment to her of a sum of money which it required the defendant to pay to avoid an injunction. The plaintiff, therefore, had the option of accepting this sum of money as the value of her property which was appropriated by the defendant on the construction of this third track, or of resorting to her action at law to recover the damages caused by the trespass. A reasonable relief is, therefore, afforded the plaintiff without the public injury which would follow from an injunction under which the defendant would be required to remove the track. Under such circumstances I think the court has the power to refuse to grant an in junction upon condition that the value of the plaintiff’s property be paid to her, leaving to the plaintiff the right to accept that amount or to enforce her rights at law, The right of the People or of the city to compel the removal of this track is not presented and, consequently, not determined. We have an owner of abutting property attempting to enforce her legal rights in a' public street by an appeal to a court of equity, and I do not think the discretion of the court of equity in refusing to grant an injunction was improperly exercised in this case: Eor these reasons I concur in the affirmance of the judgment.

O’Brien, P. J., and Laughlin, J., concurred.

Judgment affirmed, with costs.