171 N.Y. 688 | NY | 1902
An application having been made to us for an order to show cause why the remittitur in this action should not be recalled and amended, the application is denied as being unnecessary. The order of the Appellate Division granting a new trial having being affirmed by this court, under the statute and the stipulation made by the defendants, the plaintiff is entitled to judgment absolute. But the character of that judgment is not necessarily determined nor has it been determined in this case. Whether it will grant an injunction requiring the immediate removal of the defendants' plant and structure, or, in order that the prosecution of the work shall not be stopped, it will give to the defendants a reasonable opportunity to obtain another location for its power plant and the other structures complained of, or allow them to remain until the work on the defendants' section is completed, upon giving adequate security for payment of past and future damages to the plaintiff, rests in the discretion of the Supreme Court. Our decision of the appeal has not deprived that court of its right to exercise such discretion. Any application must be made to the Supreme Court.
PARKER, Ch. J., O'BRIEN, CULLEN and WERNER, JJ., concur; GRAY and HAIGHT, JJ., absent.
Motion denied, without costs.