Appellant's points. been, ready and willing to entertain an application by the plaintiff for a permit to string wires upon poles of reasonable size, suitable for the business of electric lighting, etc., etc." Here are two confessions that other facilities are needed, and that suitable facilities do not exist, either underground or overhead, if these electrical conductors be interfered with or cut down. The answer, affidavit of Smith, complaint, permit, affidavit of Moore, affidavit of Kelly, and the bills, checks and receipts, show that the wires are lawfully on those poles. The case of the People v. Met. Telegraph and Tel. Co., 11 Abb. N. C. 304, can have no bearing, as that was a suit on behalf of the people to enjoin the maintenance of a nuisance, and the charge of the learned justice can have no bearing upon this case, as the plaintiff makes no objection and does. not deny defendant's right to cut the poles in question down to a proper standard, but only denies their right to destroy its property under a false pretense of doing their duty and before they have complied with the statute by having subways prepared and giving proper notice. The poles were on Sixth avenue when the plaintiff's wires were put on them, and it is not claimed that they were nuisances. The wires were put on them with defendants' permission, and as long as those poles, or any portion of them, are or is necessary to support these wires, and until they become unnecessary for such purpose, they are not nuisances. No mere whim or opinion of the board of electrical control can make them nuisances, or liable to removal until the law has been complied with. Under the Act of 1879, chap. 512, as amended by the Act of 1882, chap. 73, the plaintiff was entitled to maintain its wires or electrical conductors upon complying with the law. The law was complied with by obtaining, for good and valuable consideration, a franchise from the common council and Appellant's points. permission of the board of electrical control, and the rule printed on the back states that the permits are good till subways are provided. This made a full compliance with the law, and until the law which takes away its rights is complied with by defendants, no power short of an amendment to the constitution can divest it of those rights. The property rights of the plaintiff in these electrical conductors is not to be dealt with lightly. This company's capital of $1,000,000, and its bonds amounting to $300,000 are invested largely in these electrical conductors which the law recognizes and the decisions hold to be property. American Union Telegraph Company v. Middleton, 80 N. Y. 408; N. Y. O. & W. R. R. Company . Telegraph Company, 36 Hun, 205. The Con franchise to operate these electrical conductors is a thing of value and is property. It was obtained from the mayor, aldermen and commonalty of the city of New York for a valuable consideration, to wit, one arc light to be furnished the city gratis for every fifty lights furnished private consumers. cerning city franchises, in The People v. O'Brien, 111 N. Y. 41, Chief Justice RUGER says: "It is, however, earnestly contended for the state that such a franchise is a mere license of privilege enjoyable duing the life of the grantee only, and revokable at the will of the state. We believe this proposition to be not only repugnant to justice and reason but contrary to the uniform course of authority in this country. The laws of this state have made such interests taxable, inheritable, alienable, subject to levy and sale under execution to condemnation under the exercise of the right of eminent domain, and invested with all the attributes of property generally." The contention that securities, representing a large portion of the world's wealth are beyond the protection of the constitution, and are subject to the arbitrary will of successive 66 Appellant's points. legislatures to sanction or destroy at their pleasure or discretion, is a proposition repugnant to reason and justice as well as to the traditions of the AngloSaxon race." If the people represented in the legislature cannot destroy this property, a fortiori, a mere creature of the legislature created for local purposes cannot. III. The board of electrical control had no authority to revoke plaintiff's permit without reason or reasonable notice. U. S. Ill. Co. v. Grant, 3 Ann. Rep., Com. El. Cont., pp. 135, 136, 142 and 144. (Opinion of ANDREWS, J.) The order in above case was reversed but upon the sole ground that the dangerous uninsulated wires were ipso facto a nuisance and therefore an incumbrance and the commissioner of public works in cutting the wires acted without regard to the board of electrical control. In all other particulars, the opinion of Judge ANDREWS was coincided with. Ib. pp. 151, 157, 160, 161, 162, (end), 163, 164, 165. The license of the board "having been acted upon and something done by the license in consideration thereof, it has become invested with the qualities of a contract." U. S. Ill. Co. v. Grant, etc., supra, p. 160, 161, (Opinion of BARRETT, J.); Peo. v. O'Brien, supra. IV. The plaintiff has a right in and to part of the poles which support the electrical conductors. Not only do we contend that the bureau of incumbrance. can not cut down the poles, if by so doing the electrical conductors of the plaintiff are cut down; but we offer incontestable evidence of plaintiff's right to these poles. The defendants by giving permission to plaintiff to put its wires or electrical conductors on those poles, sanctioned their existence; and as the greater always includes the less, and a grant or permission always includes that without which the grant or permission would be useless, so the right to string wires includes the necessary support for Respondents' points. such wires, and as the cutting down of such poles cannot be unaccompanied by the destruction of the electrical conductors or wires any more than the taking away of a building foundation can be unac companied by its total collapse, so the poles cannot be cut down. Qui concedit aliquid, conceders videtur et id, sine quo concessio est irrita, sine quo res ipsa esse non protest. This is the law laid down by Lord COKE and followed by all courts from his time to the present. V. No possible injury could come to defendants by a retention of the injunction pendente lite, while its denial would work irreparable injury, not only to plaintiff, but to the public. In such a case the injunction should be granted, and that even where the equities may be fully denied. Bank of Monroe v. Schermerhorn, Clark's Ch., 305 (end); Hammond v. Hammond, Ib. 151; Anderson v. Roberts, 2 John. Ch. 205; New v. Bane, 10 Paine, 502; Mead v. Richards, 4 Edw. Ch. 657; Carpenter v. Danford, 18 Abb. 227; N. Y. Jockey Club case, N. Y. Law Journal, Aug. 22, 1889. William H. Clark, counsel to the corporation, and David J. Dean of counsel, for respondents, argued : I. The defendants are state officers, and this court has no jurisdiction to grant or to continue the injunction. § 605 of the Code of Civil Procedure requires that an application for an injunction restraining a state officer or board of state officers or person employed by him or them, from the performance of a duty imposed by statute must be made to the supreme court at a general term thereof. FirstSo far as the board of electrical control is concerned, there can be no question but that it is protected by the restrictions of the section. Without reviewing the legislation touching the board of commissioners of electrical subways, it is sufficient to say that by Respondents' points. chapter 716 of the Laws of 1887, the then members of said board were, with the mayor of the city, constituted a board of electrical control in and for the city of New York. The members of said board, therefore, held their office, not by virtue of appointment by any city officer or municipal ordinance, but under an act of the legislature of the state. The commissioners can be removed only by the governor of the state, who has power to fill all vacancies (see § 6, chapter 499, Laws of 1885, and § 1, chapter 716, Laws of 1887. They receive payment from the state comptroller (see § 7, chapter 503 of the Laws of 1886, and § 1, chapter 716, Laws 1887). The following authorities support the proposition: Maximilian v. Mayor, 62 N. Y. 160. In which case it was held that the commissioners of public charities and corrections of the city of New York, although appointed by the comptroller of the city, were officers of the state government and not of the city. Tone v. Mayor, 70 N. Y. 157. The case last cited followed the Maximilian case, and held that the comptroller, counsel to the corporation and recorder, who constituted the board of revision and correction in the city of New York, were state officers. Heiser v. Mayor, 104 N. Y. 68. Which case holds that a board of assessors engaged in the improvement of Eighth avenue, in the city of New York, was a board of state officers and not of city officers. In the case of McGinness against the present defendant, the board of electrical control, at a special term of this court, Judge O'GORMAN declined to pass directly upon the question under consideration, as it was unnecessary in the determination of the matter then before the court, viz., the alleged unconstitutionality of the Act of 1887; but his opinion upon the point is clearly shown in these words: "It seems to me that the intention of the Subway Act of 1887 was to create a board of commissioners representing the |