Lamport v. Abbott , 12 How. Pr. 340 ( 1855 )

Harris, Justice.

A temporary injunction may be granted, when it appears by the complaint that the plaintiff is entitled to the relief demanded; and such relief, either wholly or in part, consists in restraining the commission or continuance of some act which, if committed or continued, during the litigation, would produce injury to the plaintiff. This is the criterion by which to test the plaintiff’s right to an injunction upon the case, as made by himself.

In the first place, it must appear that the. plaintiff is entitled to have the defendant restrained in the manner sought by the complaint. Assuming all that is stated tó be true, is the plaintiff entitled to such relief! The facts stated would undoubtedly, if uncontroverted, subject the defendant to the penalty which the plaintiff seeks to recover. But the facts which would establish the plaintiff’s right to recover the penalty might be -very far from establishing his right to the equitable relief of injunction. Indeed, are not the two remedies entirely inconsistent with each other! Can the plaintiff have a recovery for the violation of the ordinance, and at the same time have such violation restrained ! Under the present system of practice a plaintiff may have both legal and equitable relief in the same action^ but the two kinds of relief must be consistent with each other. (See Linden agt. Hepburn, 5 How. 188.)

Here, the plaintiff claims that he is entitled to recover a penalty, which the defendant has incurred by doing an illegal act, and at the same time that he is entitled to have the de¡fendant restrained by injunction from doing the act. I do not think the remedies are consistent with each other.

But again: the plaintiff, to be entitled to a temporary injunction, must make it appear by his complaint, that the commission or continuance of the act sought to be restrained, during the litigation, would affect him injuriously. That is not pretended. In his official capacity, the plaintiff may be entitled to recover the penalty. To that extent the act complained of is a positive benefit to the plaintiff, or the corporation represented by him. Beyond that the plaintiff has no concern with the matter. The building erected may or may not be a nuisance. If it be, it is for those injured by it, and not the chamberlain of the city of Troy, to take measures to suppress it. The plaintiff’s interest in the matter is limited to the recovery of any penalty which the defendant may have incurred.

The injunction must, therefore, be dissolved, with costs.