Benedict v. Seventh Ward Railway Co. ( 1887 )

Follett, J.

The complaint is verified by Abel C. Benedict (one of the plaintiffs), and the allegations of fact therein are supported by two affidavits verified by him. The material allegations in the complaint are positively denied in the answer, which is verified by Edward F. Rice (defendant’s president), and these denials and the affirmative allegations of defendant’s rights to construct and operate the street railroad, are supported by an affidavit verified by said Rice. Thus the issue of fact stood before the special term, which decided it in favor of the defendant.

When a plaintiff is not entitled to an injunction on the pleadings as a matter of law, and all the allegations in the complaint are positively denied in the answer, the general rule is, that an injunction pending the litigation will not be granted, or if granted, will not be continued. Knox v. McDonald, 25 Hun, 268; Decker v. Decker, 52 How., 218.

There was no necessity for sustaining the injunction upon the ground that the construction and operation of the road would inflict irreparable injuries upon the plaintiff’s property or rights, or because the injuries complained of could not be fully compensated by damages, in case the plaintiffs maintained this action.

As the issue is yet to be tried, we abstain from commenting upon the rights of the parties as disclosed by the papers before us.

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

Hardin, P. J., and Boardman, J., concur.