Delaware, Lackawanna & Western Railroad v. Syracuse, Lakeside & Baldwinsville Railway Co.

HABDIN, P. J.

The general features of the complaint are denied by the defendants’ answer. The special term availed itself of the provision found in section 629 of the Code of Civil Procedure, which is to the effect that upon an application to dissolve or modify an injunction the court may, in its discretion, require, as a condition of the dissolution of the injunction, an undertaking to be given. In accordance with the provisions of that section, the special term required, as a condition, that the defendant should execute an indemnity in the sum of $5,000. The railroad commissioners heard the application made by the parties to determine whether the crossing of the plaintiffs’ road should be at grade, under grade, or over grade, before this action was commenced. From the facts found in the appeal book, we are unable to say that the action complained of by the plaintiffs will work irreparable injury to the plaintiffs, or cause a multiplicity of suits. We think the special term was warranted in exercising its discretion, upon all the facts and circumstances disclosed by the record, and its conclusion to vacate the injunction upon condition that the undertaking be given was a judicial discretion, which we ought not to interfere with. We therefore sustain its order.

It may be observed that some of the questions raised by the learned counsel for the appellants can more appropriately be determined when the action is brought to trial than at this time upon affidavits which are, to some extent, conflicting. We think the order of the special term should be sustained.

Order affirmed, with $10 costs and disbursements. All concur, except SMITH, J., not voting.