87 A.D. 550 | N.Y. App. Div. | 1903
The following is the opinion of Scott, J., delivered at Special Term: .
This motion presents two interesting questions, neither of which can be said to be entirely free from doubt. At least they have been the occasion of very 1 earned and voluminous briefs. The first is whether the plaintiff is entitled to admission to the electrical subway, and the other is whether, if it has such right, its remedy is by mandamus or by action in equity. The plaintiff really seeks double relief. First, it asks that its present occupancy of the subways shall not be interfered with, and, secondly, it asks for a mandatory injunction which will give it additional space. This seems to me to be an eminently proper case to leave matters in status quo until the cause can be tried, or, if the moving papers contain all the facts, until the rights of the parties can be passed upon by an appellate court. It appears that the plaintiff now occupies and has occupied ducts in defendant’s subway since 1896, for which it has paid and the defendant ’has accepted rental. . It can do no one any harm if such occu- • pancy be continued until the trial. So far, however, as concerns the application to compel the assignment of additional ducts to plaintiff a different principle applies, which is that the court will seldom grant a mandatory injunction pendente lite unless the plaintiff’s right is so clear that the denial of the right must be either captious or unconscionable. Such is not the case here. The temporary injunction as modified by the order of June 16, 1903, will, therefore, be continued, subject only to the further modification that -the defendant shall be enjoined from preventing the plaintiff from connecting up additional customers with the present system as already located in the subway.
To the extent indicated the motion will be granted, without costs.