The defendant has not attempted to meet the plaintiff’s case upon the merits. Its acts in excavating and removing ’the soil in that part of the street, in front of the plaintiff’s property, is an unjustifiable intrusion upon the‘plaintiff’s possession, and is confessedly a trespass. Upon the undisputed facts, as they now appear, the plaintiff is entitled to the relief demanded in his complaint; that is, for a permanent injunction restraining the defendant from continuing its trespasses upon the plaintiff’s lands. Heretofore it has been the practice of the court, in a guarded manner, in cases of this character, to grant a preliminary injunction, to be operative during the pendency of the suit. The plaintiff, in his moving papers, established an unquestioned right to the injunction order within the well-established rules of law applicable in such cases.
It is obvious that the defendant moved to dissolve the injunction with a view of having the same vacated, on giving the security as provided in section 629 of the Code, as amended by chapter 404, Laws of 1883. As amended, the provision of the section is : upon such hearing “ the court or judge must, where the alleged wrong or injury is not irreparable and is capable of being adequately com pensated for in money, vacate the injunction order upon the defendant’s executing an undertaking in such form and amount and with such sureties as the court or judge shall direct, conditioned to indemnify the plaintiff agavnst any loss sustained by reason of vacating such injunction order''
The order appealed from was granted upon the defendant’s executing and delivering an undertaking in the penalty of one thousand dollars, with two good and sufficient sureties, “ conditioned to pay to the plaintiff all damages that he may sustain by reason of the construction and operation of the defendant's road upon the premises described in the complaint in this action.”
*342Such an undertaking would not be in compliance witb tbe statute, in letter or in spirit. As tbe defendant bas utterly failed to meet the case upon tbe merits, be is not entitled to a dissolution of tbe injunction, except upon strict compliance witb tbe statute as to the form and conditions of tbe undertaking. Unless tbe plaintiff succeeds in tbe action, and a permanent in junction is awarded in tbe final judgment, be can never have any right of action upon tbe undertaking. If be does succeed in securing tbe relief demanded, then tbe defendant cannot construct and operate its road upon any part of tbe plaintiff’s premises without first compensating tbe plaintiff for the damages he may sustain. By an undertaking con ditioned as required by statute the plaintiff would be entitled to indemnity for all the loss sustained by him by reason of vacating tbe injunction order, which would embrace damages for excavating and removing earth from tbe street, and cutting down trees in that part of the highway in front of his premises.
After final judgment in the plaintiff’s favor, in an action upon a bond such as the defendant is required to give by the order, he could only recover sucb damages as be may sustain by reason of constructing and operating the road over his premises.
In this class of cases, where there is no attempt to meet tbe plaintiff’s case upon its merits, and tbe defendant seeks to remove the injunction by giving an undertaking, as now provided by tbe statute, tbe plaintiff has a right to exact an undertaking from the defendant in. full and strict compliance witb,tbe statute.
For this reason the-order vacating the ( in junction should be reversed, witb ten dollars costs and disbursements on this appeal, and ten dollars costs for opposing the motion at Special Term.
Smith; P. J., and Hardin, J., concurred.Order reversed with ten dollars costs and .disbursements, and ten dollars costs for opposing motion at Special Term.