Town of Fort Edward v. Hudson Valley Railway Co.

111 N.Y.S. 753 | N.Y. App. Div. | 1908

Smith, P. J. :

The granting of this injunction ex parte was not in my judgment .a violation of section 1809 of the Code ;pf Civil Procedure, By that section it is required that an injunction shall not. be granted ex parte which operates to suspend “ the general and ordinary business óf a corporation.” The. Code provision is not clear. ' It is. difficult to tell what, is the general as distinguished- from the .Ordinary business of the corporation.- We are required in the interpretation of á statute to give full effect to every word used, and the only interpretation that can satisfy this rule is one that..shall prohibit the,granting of an injunction ex parte which shall suspend generally the ordinary business of a corporation. In Hichols’ Practice (p. 1573), in speaking of this provision, it is said : “ It refers only to injunctions extending to a total suspension of corporate business, and has no application where the injunction restrains only a single act or duty. Thus, enjoining a railroad corporation from intersecting the road of another company of which plaintiff is a member does not suspend the general' business of the corporation.” This seems to be the interpretation practically given to the statute in Roosevelt v. Edson (7 Civ. Proc. Rep. 5) by the Special Term of the Superior Court, and this interpretation also finds some support in Howlett v. N. Y., West Shore, etc., R. Co. (14 Abb. N. C. 328).

Hor is it difficult to define the rights of a railroad company occupying the public street. They may run their cars back and forth ' through the street; they may stop on switches for the passing of other cars ; they may take on passengers and freight upon the street itself to a reasonable extent. If, however, their freight becomes so extensive that to place a car upon a given point in the highway and there receive freight amounts to a practical obstruction of the highway, or unreasonable interference with its use by the public, then the company must procure a private station at which the freight can be received. What may amount to an unreasonable obstruction of the highway is in all cases a question of fact to be determined by the trial court, and upon this we are of opinion that not only the actual obstruction of the highway but any littering of the highway by reason of the receiving of freight thereupon so as to frighten horses, would be chargeable to the defendant, both as cause and occasion thereof, notwithstanding these views, we are of opinion that the injunction was properly vacated. Hot only is the defendant affected by the force thereof, but the public generally, offering its freight for carriage upon the defendant’s road. There is hardly a necessity for a temporary injunction which will lead the court to curtail either the business of the defendant or of defendant’s shippers until a full investigation by trial. ' The order should,.therefore, be sustained, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.