129 N.Y.S. 384 | N.Y. App. Div. | 1911
Plaintiff’s right to damages is established by the decision in Schwarzenbach v. Electric Water Power Co. (101 App. Div. 345). His right to a perpetual injunction, however, does not necessarily follow that decision. In that case it did not appear "that the defendant company was engaged in any public service as it now appears in respect of this company. By the concession in the case, the defendant has the only electric light plant by which the public -is served at Oneonta, and it supplies the demand for electric lights in public places, business houses and residences therein. The plaintiff’s damage from 1902 to 1909 has been found to be only seventy-five dollars. That damage was so slight, for which the plaintiff has his remedy at law, that a court of equity will not decree a perpetual injunction which will place the defendant in a position whereby it cannot perform the public service in which it is engaged. The judgment should, therefore, be modified so as to suspend the operation of the injunction as long as the defendant shall be engaged in furnishing electric light to any municipality, and as modified affirmed, with costs to the plaintiff..
All concurred, except Betts, J., who dissented and voted for affirmance of the judgment in its entirety without modification.
Judgment modified so .as to suspend the operation of the injunction as long as the defendant shall be engaged in furnishing electric light to any municipality, and as so modified affirmed, with costs to the plaintiff.
