12 N.Y.S. 431 | N.Y. Sup. Ct. | 1890
The order in this case requires the defendants to show cause why they should not be enjoined and restrained from erecting or causing to be erected or maintaining a sign in front of the plaintiffs’ sign over the premises No. 16 Park Place, in the city of New York. So far as the injunction may be construed as preventing the maintaining of a sign already erected, it was not proper as a preliminary order, and it was my intention only to grant a temporary restraint to prevent the putting up of a sign by the defendants until the parties could be fully heard as to their rights. It now appears from the answering affidavits that the defendants’ sign was erected and put in position before the injunction order was served on the defendants, or they in any way had notice of it. I think it is quite clear that.the work done the day after the service of the injunction order was not in connection with the defendants’ sign, but, as shown in the affidavits, was in painting the builing. The complaint in this action demands much more relief than restraining the putting up and maintaining of the sign, although the injunction only relates to the sign. This application' is made for the exercise of the jurisdiction of a court of equity to restrain a trespass. There can be no doubt of the jurisdiction, nor that the court should exercise it in a proper case. As was said in Johnson v. City of Rochester, 13 Hun, 285: “Although the general rule is that an injunction will not be granted to restrain a mere trespass without special equitable features in the ease, it is well settled that such equitable features exist when there is vexation from continued or repeated trespasses in the nature of a nuisance, or when the wrongful acts continued or threatened to be contin ued might become the foundation of adverse rights, and would occasion a multiplicity of suits to recover damages.” But preliminary injunctions are not issued in cases of this kind, where the act complained of has been completed, unless it is clearly shown that the defendant has acted without any color of right, and that the continuance of the trespass will result in irreparable injury to the plaintiffs. The plaintiffs in this case are lessors and the defendants lessees, and there is nothing whatever in the lease which prevents the defendants from putting up a sign in front of the premises occupied by them; nor can I at present determine that the maintenance, pending the suit, of the sign, which they did put up before the injunction was served,will cause any particular injury or affect the plaintiffs’ right, on the trial, to compel the taking down of that sign if the court shall determine the defendants have no right to keep it there. The case is too doubtful on this point to justify an order now that the sign be removed. It can be very well seen that, if the defendants should undertake to interfere with the free use of the plaintiffs to the entrance, stairway, and elevator of No. 16 Park Place, a case might be presented requiring the issuance of an injunction pendente lite; but, as respects the sign merely, I think the facts do not justify the continuance of the restraint, and that the injunction should be dissolved, with $10 costs, to-abide the event of the action.