Opinion of INGRAHAM, J. defendants from removing the poles or wires, which was subsequently vacated by the court, and the motion of plaintiff to continue the same denied. Held, that the permit granted was a mere license, revocable at any time by the board that granted it, and was subject to its rules and regulations, and the board having power to direct the removal of the wires and poles, and so directing such removal, the plaintiff had no right to insist that they should remain. That the plaintiff dia not show a right to equitable and discretionary relief by injunction. That the permit necessarily referred to the poles as then rightfully there, and it was not implied thereby that the permit should continue to operate after the poles ceased to be rightfully in the street, as was the case. Before SEDGWICK, Ch., TRUAX and DURGO, JJ. Decided March 4, 1890. Appeal by plaintiff from order denying motion for continuance of temporary injunction, and vacating the same. The following opinion was delivered by the court at special term: "INGRAHAM, J.-By the permit of September 7, 1888, the board of electrical control authorized the plaintiff to string four wires on existing poles in Sixth avenue from 18th street to Carmine street. At the time the permit was granted the Metropolitan Tel. Company and the Western Union Telegraph Company owned certain poles in Sixth avenue, and under some agreement with these companies the plaintiff placed the four wires on such poles. "The power of the Board of Electrical Control to grant such permit, and the effect of such permit, when granted, depend upon the provisions of chap. 499 of the Laws of 1885, and chap. 716 Laws 1887. By the latter act all the powers and duties conferred or imposed by the Act of 1885 upon the commissioners appointed thereunder and all the powers and duties imposed upon the local authorities of the city or any of them in respect to, or affecting the placing, Opinion of INGRAHAM, J. erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits, or subways for electrical conductors in said city were transferred to, conferred and imposed upon and were thereafter to be exclusively exercised and performed by said Board of Electrical Control. This provision gave to the board all the power in regard to the electrical conductors in the public streets which before that Act had been exercised by any officer or department of the municipal corporation. or by the commissioners appointed by the Act of 1885. "There is nothing in the Act in question that would limit the power of the board to revoke a permit, or authorize the court to substitute its discretion as to the continuance of electrical conductors erected by permission of the board, nor does the fact that the board gave to a corporation permission to string its wires upon certain existing poles, amount to a guarantee that the poles shall always exist, or that the board will keep the poles in the position in which they were at the time the permit was given. It is apparent that such a permit was to continue only so long as the poles should continue in the streets; and when the poles as erected became unnecessary for the use for which they were originally or primarily intended, it is clear that the corporation could not compel the board or the owner of the poles to maintain them in the position in which they were at the time the permit was given. The permit was a mere license revocable at any time by the board that granted it, and when, in consequence of the removal of the wires of the companies that owned the poles, they became no longer necessary for the use to which they were primarily put, in the absence of an express contract, neither the board nor the city were bound to maintain the poles, nor see to it that they were not removed. Appellant's points. "This is just what happened. It is clear that as between plaintiff and the Telephone company, plaintiff could not compel the Telephone company to maintain these poles for the purpose of maintaining plaintiff's wires. The Telephone company having no further use for the poles, have abandoned them, and the board has revoked plaintiff's permit to use the poles for its wires, and I can see no ground upon which plaintiff can claim that either the Telephone company, or the Board of Electrical Control, is bound to keep the poles in position, so that the plaintiff can use them. "The ordinance of the common council under which the plaintiff is acting, is expressly subject to the power of the electric commissioners. Upon that board, are conferred all the powers before conferred upon the local authorities. The permit under which the plaintiff acted was subject to the rules and regulations of the board, and I think it is clear that the board, having power to say when the existing poles shall be removed, directed such removal, the plaintiff had no right to insist that the poles shall remain. "Motion to continue the injunction denied, and temporary injunction dissolved with $10 costs." William H. Kelly and Michael J. Kelly, attorneys and of counsel, for appellant, argued : I. The defendants are not state officers, and therefore are not protected against this injunction by section 605 of the Code of Civil Procedure. This objection was raised in several other cases; but only in the case of the New York Electric Lines Company v. Crimmins, 3 Ann. Rept. Board Electrical Control, p. 85-and after a very elaborate argument in favor of the objection by Mr. Gibbens, the then counsel of the board, covering every phase of the question, was the point directly decided in the following opinion by Judge FREEDMAN:-"As to the prelim - Appellant's points. inary objection which has been raised, I am of the opinion that section 605 of the Code of Civil Procedure does not protect the electric-subway commissioners against any injunctions which may be issued by this court in a proper case." Judge O'GORMAN, in the opinion in McGinness v. The Board of Commissioners of Electrical Subways-Ib., p. 94-does not hold the contrary, as appears from the following extract: The question whether the members of the Board of Electrical Control, created under the 'Subway Act of 1887,' are officers or agents of the city or of the State of New York," etc., " are subjects entitled to careful consideration at the proper time, when the issues of fact and law raised in this case come to be finally determined." AttorneyGeneral O'BRIEN, in an opinion dated October 11, 1886, in reply to the request of the subway commissioners that he act as their attorney, says: "It is by no means clear to me that it is my duty to act as attorney for your commission. While the cases. cited by you would appear upon a casual reading to hold by analogy that the commissioners were state officers, still I think there is a difference between the duties and authority of the officers referred to in those cases, and the electrical subway commissioners, who do not perform the duties of an administrative branch of the state government, whose duties are local, the office itself existing only for a short time and the benefits resulting therefrom confined strictly to the people of certain prescribed localities." In this case defendants appear by corporation counsel. It is further submitted that whatever doubt, if any there was, existed on this question under Act of 1885 (Chap. 499) which was a general act applying to all cities in the state, that doubt is entirely removed by the Act of 1887 (Chap. 716) which, as its title shows, is a special local act relating to the city of New York, and provides only Appellant's points. for that city; and in it the commission is described and constituted the Board of Electrical Control in and for the city of New York." The method of appointment has no bearing upon this point, and does not change the local character of the office or officer. Ryan v. Civil Service Comm., 17 Abb. N. C. 64; Bailey v. Mayor, 3 Hill. 539. This case is even stronger than above, as original commissioners of electrical control were appointed by mayor, comptroller and commissioners of public works. § 605 C. C. P. can be invoked only in cases which are practically suits against the state. Doody v. Fritscher, 24 Week. Dig. 474; S. C., G. T. 3d Dept. II. The plaintiff's electrical conductors, Sixth avenue south of Fourteenth street, have never become unlawful, and therefore cannot be removed. § 5, Chap. 716, Laws of 1887, prescribes in order to make electrical conductors unlawful and subject to removal, it must be "the opinion of the board heretofore constituted, that in any street or locality of said city, a sufficient construction of conduits or subways underground, shall have been made ready under the provisions of this act, reference being had to the general direction and vicinity of the electrical conductors then in use overhead." It is admitted in defendants' answer at end of subdivisions 3 and 5 of paragraph "First," that there was and is no subway or underground conduit in Sixth avenue below Fourteenth street, suitable for electric light wires or conductors. The last lines of subdivision 3 of paragraph 1 of answer, reads: "But they aver that there were subways and underground conduits for telegraph and telephone wires, but none suitable for electric lighting wires or conpuctors." And the first lines of the third and last paragraph of the answer: "Further answering the said complaint, the defendants allege that the board of electrical control are now, and have at all times |