Opinion of the Court, by SEDGWICK, Ch. J. a franchise under the terms of an ordinance as follows: "that permission and authority are hereby given and granted unto the East River Electric Light Company to place, construct and to use wires, conduits and conductors for electrical purposes in the city of New 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 was, however, no allegation 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 by law." The The plaintiff did not show a right to the equitable and discretionary relief of injunction. object of the relief as asked was to restrain the commission of a trespass. The facts, however, stated in the complaint and in the affidavit, 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 encumbrances 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 Opinion of the Court, by SEDGWICK, Ch. J. 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 plaintiffs "to string four wires on existing poles on 6th avenue from 18th 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. TRUAX and DUGRO, JJ., concurred. MEMORANDA OF CASES NOT REPORTED IN FULL. BERNARD BRADY, APPELLANT, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, RESPON DENT. Trial-Stay of pending appeal to general term in another action. Decided May 6, 1889. Appeal from order staying proceedings. This action is brought to recover a certain sum of money alleged to be due the plaintiff, as assignee of one John Brady, under a contract made between' said John Brady and the city of New York for regulating and grading Ninety-fifth street. Previous to the commencement of this action two judgments had been recovered against this defendant upon the same contract, one by John Brady and the other by Bernard Brady, his assignee. Before the action hereinafter mentioned brought by this defendant, the Laflin and Rand Powder Company and Henry Judson Morris, each claiming an interest in any moneys payable under said contract by virtue of assignments, had commenced actions against this defendant. Thereupon this defendant commenced an action in equity against this plaintiff, John Brady, the Laflin and Rand Powder Company and Henry Judson Morris, making in the complaint various Statement of the Case. allegations of fraud in procuring the contract, and the said two judgments, and praying that the defendant be restrained from offering in evidence the two judgments herein before mentioned and from prosecuting the present action; also, that said judgments be reviewed, vacated and set aside; that the contract be declared void, and any moneys paid by the city in excess of the reasonable value of said work be recovered. At the commencement of said action an order of injunction was granted by this court restraining the prosecution of this action and two actions in which the defendant, the Laflin and Rand Powder Company and Henry Judson Morris were, respectively, plaintiffs. The several defendants to that action demurred to the complaint. The demurrers were sustained at special term, and orders and interlocutory judgments sustaining them were entered. Thereupon the defendant in this action moved for an order staying it and all proceedings in it pending, and until the final determination of the said action brought by the defendant herein. Pending this motion, it appealed to the general term from said interlocutory judgment. The motion was granted at special term upon defendant making a stipulation as to the argument of the appeal. From the order entered on the motion plaintiff appealed to the general term. L. Laflin Kellogg, attorney and of counse_, _or appellant, argued : I. The judge at chambers had no power to grant the order staying proceedings in this action. Spears v. Matthews, 66 N. Y. 128; Fellows v. Heermans, 13 Abb. N. S. 1; Emmons v. Campbell, 22 Hun, 582. II. If it were a matter of discretion, it should not be exercised in this or in any other case. FirstBecause it grants a provisional remedy where a judge of the same court, after full hearing upon all Statement of the Case. the facts, has denied the right to that provisional remedy. Second-Because it permits one judge to reverse the ruling of another judge of the same court, thus giving him powers which are only accorded to an appellate court. Third-Because the exercise of such a right would render it entirely useless for a person to move to vacate a temporary injunction if upon its vacation another judge could immediately reinstate it upon the same facts. Fourth-Because all the evidence, as appears upon the different appeals herein, shows that there was not the slightest justification for ever granting any injunction. III. It was certainly error in the judge at special term to grant a stay of proceedings until the final determination of the action. This order, in effect, says that, even if the general term of this court find against the city both upon the demurrer and upon the injunction, even in that case, notwithstanding the judgment of the appellate court, the stay shall be continued until the Court of Appeals has heard the case. This right should be exercised either, first, by the general term, or, second, after the general term had decided the case, or third, after the city had manifested an intention to or had appealed to the Court of Appeals. Henry R. Beekman, counsel to the corporation, and David J. Dean and Arthur H. Masten of counsel, for respondent, argued:- I. The books show numerous instances where similar orders have been made under analogous circumstances. Franklin v. Catlin, 43 Super. Ct. 138; Matthews v. Shaffer, 19 Week. Dig. 456; Brown v. May, 17 Abb. N. C. 205; Prems v. Smith, 10 Abb. N. S. 90. II. The order was a discretionary one, and will not be disturbed unless the court below improperly exercised its discretion. Peo. v. Northern Railroad |