I dissent. As I understand the rule, we are justified in assuming any fact which is supported by the evidence upon which there is no finding by the court so as to support the judgment. It is undisputed that these rails in Amsterdam avenue are not used by the plaintiff, except that an occasional horse car is run on them. Nor does the plaintiff pretend that it intends to use them. They are an incumbrance in the street, are an injury to the public and are of no ' possible benefit to.;. the plaintiff. Whether a court of equity will issue an injunction is generally a question addressed to the sound discretion of the court, and I do not think, under the circumstances disclosed in this case, the court was bound to restrain the defend- • ants from removing the fails which were not used by the plaintiff and which the plaintiff did not intend to use.
Judgment reversed, new trial ordered, costs to appellant to abide event.