122 N.Y.S. 187 | N.Y. App. Div. | 1910
This appeal is from an order of the Special Term continuing an injunction pendente lite. I do not favor the suggestion that we , now in effect determine the issues. Such a short cut to a conclusion is not avoidance of circuity, but departure from the common course not to be permitted save in exceptional cases. There is no reason thus to accept a trial by affidavits. The litigation does not require unusual expedition, and it is not clear that the evidence upon a judicial trial will not further enlighten the court. Determination upon the merits is not urgent, inasmuch as the question presented is the relative rights of the parties in a right of way long owned by them in common. The plaintiff or its tenants have used the way for access.for wagons to its lands for II years, and this action is to enjoin the defendant from changing the grade whereby the plaintiff will be deprived entirely of such access. The injunction halts the defendant, who acquired this right of way in 1906, in work incidental to the improvement of his lands, but not immediately necessary for any present use or enjoyment of them. The learned Special Term commented that a trial could be had at a very early day, and examination of the appointed terms for the county of Westchester confirms that statement. We cannot say that trial will not further enlighten the court as to the proper decree, inasmuch as the relative rights at the present time may not be determined by original rights acquired by the conveyances, but may in part be determined or be limited by the subsequent acts of the parties. And, moreover, the court itself, upon the correct hypothesis that neither party could practically exclude the other, intimated that equity might properly decree for an adjustment so as to afford mutual rights of practical use, a decision, however, which the court said could only be. made after a trial that would reveal all of the facts. It may well be that the plaintiff is an offender in that its wall has impaired the full rights of the defendant, but this is no legal excuse for retaliation, although such conduct may have to be considered by the court when it shapes its decree. Therefore, I confine discussion to the question whether the Special Term should be sustained without expression upon the merits save as necessary to a proper disposition of this appeal.
I think that the order should not be disturbed.. It is within the
The order is affirmed, with ten dollars costs and disbursements.
Burr, Thomas, Rich and Cabe, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.