East River Electric Light Co. v. Grant

Sedgwick, C. J.

The action was for an injunction restraining the defendants from proceeding to remove the wires of the plaintiff from certain poles in Sixth avenue, from Eighteenth street to Carmine street. I am of opinion that the views expressed by the learned judge below in dissolving the temporary injunction were correct. Some considerations, not pertinent to the view he took, may be adduced in support of the result. The complaint was demurrable. It placed the plaintiff’s right to use the poles upon its possessing a franchise under the terms of an ordinance, as foilows: “That permission and authority are hereby given and granted unto the East Biver Electric Light Company to place, construct, and to use wires, conduits, and conductors for electrical purposes in the city of Hew York, and over and under the streets, avenues, etc., according to such plans as may be directed, approved, or allowed by and subject to the powers of the electrical subway commissioners, and to the provisions of chapter 499 of the Laws of 1885.” There were, however, no allegations of fact to show that the plaintiff “strung its electric wires” according to the plan and the provisions referred to in the ordinance. There was no averment that it had received a permit from the board of electrical control to use the poles for the wires. It alleged a matter of law only,—that it strung its wires “pursuant to the authority conferred upon it bylaw. ” The plaintiff did not show a right to the equitable and discretionary relief of injunction. The obj’eet of the relief, as asked, was to restrain the commission of a trespass. The facts, however, stated in the complaint and in the affidavits did not prove that the plaintiff could not obtain full and adequate relief by the recovery of damages. It was admitted on the argument that the board of electrical control could upon reasonable notice, for reasonable cause, require the plaintiff to remove its wires from the poles. It appeared that there was reasonable cause on which the board could act. For instance, the poles themselves were incumbrances which might be lawfully removed, and the poles were of a size that was not necessary to the business of the plaintiff. Therefore the right of plaintiff, construing all things most favorable to it, was to maintain the wires until such reasonable notice. The plaintiff did not show what the time of reasonable notice would be, and, of course, did not show the extent of the damages the plaintiff would suffer from not being permitted to retain its wires upon the poles during the lapse of that time.

The plaintiff in part relies upon a permit of the board that authorized the plaintiff to string four wires on existing poles on Sixth avenue, from Eighteenth street to Carmine street. The permit necessarily referred to the poles as then rightfully there. It was not implied that the permit should operate after the poles ceased to be rightfully in the streets. The order should be affirmed, with $10 costs to abide the event, and the disbursements to be taxed.