Warsaw Water Works Co. v. Village of Warsaw

| N.Y. App. Div. | Apr 15, 1896

Follett, J.:

. <Dn the 17th of November, 1895, a-temporary injunction was granted by a justice of this court restraining the defendant “ from removing any hydrants from plaintiff’s mains, threatening any of its customers with discriminating taxes, or soliciting any of its patrons to disconnect their service pipes from this plaintiff’s mains, or disconnecting any such service pipes, or in any manner interfering with this plaintiff’s exercise or enjoyment of its rights, privileges and franchises,” Upon a motion made at Special Term in December, 1895, this injunction was vacated and the.plaintiff appeals to this court.

The questions involved in this action cannot be satisfactorily decided until the issues of fact have been tried and determined, and we ought not and will not attempt to define and settle the ultimate mghts of the litigants on affidavits, and, without expressing any opinion ujion the questions involved further than to say that the rights asserted by the plaintiff, as the foundation for the relief sought, are not so clearly established in the affidavits as to authorize this court to restore and continue the in junction pendente lite. ■

It is conceded that the hydrants which were purchased by the defendants and attached to the plaintiff’s line of water pipes have been removed by the defendants, and it not being clearly established that the defendants have threatened, or now threaten, to do any of the things restrained by the original injunction order, it should not be restored. Besides, all of the equities óf the complaint are denied in the answer; and in such a case an injunction pendente lite will not be continued where the plaintiff’s right to the ultimate relief sought is not clearly established.

The order is affirmed, with ten dollars costs and printing disbursements.

All concurred, except Ward, J., not voting.

Order affirmed, with ten dollars costs and disbursements.