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make its report, and not until the report so made should be adopted by a vote in accordance with the provision of existing rules; but we cannot agree with the learned counsel in this interpretation. Such a construction would practically nullify such existing rules, and operate as their repeal, without the concurrence of the requisite vote provided for in the rules and by statute for a change of the same, and put it in the power of a bare majority at any time to substitute the general parliamentary law in the place of the prescribed rules, without the adoption of any substitute or amendment to the same. I am therefore clearly of the opinion that rule 33, as it existed before the proposed amendment, was still in force at the time the charges against the president were preferred and the committee appointed by the common council was created to investigate such charges, and that, as such committee was not appointed in pursuance of the provisions of rule 33, and the plaintiff did not have the opportunity accorded by that rule to object to two of its members, the appointment of the committee was not only in violation of the rules, but in violation of the rights of the plaintiff, when tested by that rule; and this brings us to the consideration of the question "whether the powers of the court of equity can be invoked to restrain the common council from acting upon the charges made against the plaintiff, with a view and for the purpose of determining whether he should be removed from his position as president of the common council, or expelled from that body as a member thereof." For the purpose of this motion, without attempting to dispose of the ultimate subject of controversy between the parties, I think it may be fairly held that the plaintiff demands and is prima facie entitled to judgment against the defendants restraining the act sought to be accomplished, -of removal from the office or positior of president of the board of common council,—and which act during the pendency of the action would prejudice the plaintiff; and we think it sufficiently appears by the complaint and affidavit that the defendants, or some of them, are doing or procuring or suffering to be done or threatening or about to do an act in violation of the plaintiff's right, respecting the subject of the action, and tending to render the judgment ineffectual. If this be so, then the case is brought within the purview of sections 603 and 604 of the Code of Civil Procedure. Cushing v. Ruslander, 49 Hun, 19, 1 N. Y. Supp. 505.

It may be conceded, as it is doubtless true, that the common council of a municipality is invested with certain legislative authority and quasi judicial power, and in its attempts to exercise such legislative and judicial jurisdiction, so long as it keeps within the limits of the power and authority conferred upon it by law, courts cannot interfere with or control the manner in which it ex. ercises its judicial and legislative functions; but that rule does not go to the extent of authorizing the common council of a municipality to violate or disregard express provisions of law, or without authority to interfere with or divest vested rights pertaining to a municipal officer or an individual. The common council, being à creature of the statute, and invested with none of the attributes of sovereignty, except such as are conferred by law, cannot transcend the limits of its delegated authority without subjecting itself in a proper case to the restraining power of the court.

As was said by the learned judge in Negus v. City of Brooklyn, 10 Abb. N. C. 182:

"It is too late to deny the power of the court to prevent the commission of illegal acts by members of the common council. They are mere agents, with defined and limited power. While the court cannot rightfully control the proper exercise of the discretion invested in them, yet when they threaten an abuse or illegal exercise of such discretion, and especially when they claim the right to exercise power which they do not possess, it is the duty of the court to interpose its authority.”

It is true that this language was used by a judge at special term, but the doctrine there laid down was substantially maintained in a subsequent proceeding to punish for contempt for the disobedience of an order of the special term on a review of the question in the court of appeals in People v. Dwyer, 90 N. Y. 402. And Finch, J., in delivering the opinion of the court, uses this language:

"That public bodies and public officers may be restrained by injunction for proceciling in violation of law to the prejudice of the public or to the injury of individual rights, cannot be questioned;" citing People v. Canal Board, 55 N. Y. 393; Davis v. Society, 75 N. Y. 369.

And the learned judge adds: "Whether the act sought to be enjoined was, or was not, of a legislative character, was a judicial question to be disposed of by the court acting upon the facts, and it could prohibit action until it could investigate and finally (lecide the question;" citing People v. Sturtevant, 9 N. Y. 274.

We have been referred by the learned counsel for the defendants, in his very able and exhaustive review and examination of the equity powers of this court, to a' number of the decisions of the courts and dicta of elementary writers establishing a proposition which cannot now be denied, that the court of equity will not interfere by ultimate injunction to restrain the commission of an act where the party invoking its aid has an adequate and complete remedy at law, and, if this case comes within the range of those authorities, the relief sought in the complaint of a perpetual injunction will ultimately be denied; but authorities to which the learned counsel refers relate principally to the final relief by injunction, and not to the propriety of authority of the court to grant an injunction pendente lite to restrain a party from the performance of an act which, if performed pending the action, would render the judgment, if finally pronounced in favor of the plaintiff, ineffectual.

It is insisted by the learned counsel for the defendants that the plaintiff, if his rights are improperly interfered with by the ac. tion of the common council, or a majority of them, might be fully protected and vindicated in an action at law; and that, if the common council erred in removing him from the office of presi. dent of the common council, he could obtain full and adequate relief by certiorari, under the provisions of section 2140 of the Code of Civil Procedure; but while it is true that in such proceeding,

if the common council acted illegally or without authority, their action might be reviewed and reversed upon certiorari, it is equally certain that such reversal would not furnish the plaintiff with it full and adequate remedy for his illegal or improper expulsion from his office as president of the common council. There would be an interregnum or interval between the time of his expulsion and the time of the determination by the court on certiorari during which he would be divested of his office, and deprived of his enjoyment of the franchise and privileges which it confers, for which the court, on certiorari, could furnish him no adequate compensation or redress. If it be answered that the common council is, by the charter, made the judge of the qualifications and election of its members, and invested with the power and authority to punish a member of the board of aldermen for improper conduct, neglect of duty, or violation of his obligations as such, and in certain cases by expulsion from the body, still it must be conceded that the exercise of that authority must be within the provisions of law, and in obedience to law and rules by which the common council are to be governed, and under which they are authorized to act; and where they threaten to act without authority of law, in violation of the rights of the plaintiff, and to do an act which, during the pendency of the litigation, may, as we have seen, render the judgment ineffectual, the court may restrain such action until it shall be finally determined whether or not the plaintiff is entitled to the relief which he demands. Code Civil Proc. § 603.

No express power seems to have been conferred, either by statute or by the rules of the common council as they existed at the time of the report of the committee on rules, for removing from his office the president of the common council as such. It is true that the statute and the rules provided for the removal of an alderman, and the president of the board of common council, being an alderman, would be subject to removal from the board of aldermen in the manner prescribed by the statute and by the rules for such removal, and when removed as an alderman the office of president of the board, which he held, would necessarily fall; but the absence of any authority, either in the rules or in the statute, for the removal of the president from his position as such, would not, we think, justify a majority of the board of aldermen arbitrarily and without authority of the rules or of law to remove him from such position, and before such removal could be made it would seem to be necessary that the rules of the common council should be so amended and modified as to authorize such removal; and, as we have seen, such amendment of the rules could not be made except in the manner prescribed by section 7 of chapter 298 of the Laws of 1883, and rule 34, under which the common council was operating, and his attempted removal without such amendment of the rules might be such a violation of his rights and such a threatened deprivation of the franchises and privileges of his office as to authorize the court to prevent its accomplishment by injunction; and, while that question is in process of litigation, to be tried in a court of—42

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competent jurisdiction, it seems that a court of equity may temporarily restrain the defendants from the accomplishment of the act which, if accomplished during the pendency of the suit, would de prive the plaintiff of the benefits of his judgment. In Palmer v. Foley, 45 How. Pr. 110-118, where an injunction had been granted pendente lite to restrain the removal of deputy chamberlain from interfering with the office of chamberlain, the general term of the superior court of the city of New York, in discussing the office of a temporary injunction, uses this language:

“The object of the process of injunction is both preventive and protective. It seeks to prevent a meditated wrong, and not to redress an injury, which can usually be done only at law, and then to protect the party against any unlawful invasion of his rights.”

In Tyack v. Bromley, 4 Edw. Ch. 258-270, the vice chancellor, in sustaining a temporary injunction, uses this language:

"Courts of justice are bound to aid a party in possession of rights, whether they be natural or artificial, or such as are mere creations of law, whenever those rights have been infringed, or their destruction may be threatened. It has become a familiar principle of equity jurisdiction to protect by injunction statutory rights and privileges which are threatened to be destroyed or rendered valueless to the party by unauthorized interference of others; and although it was not proper for equity to restrain in the first instance where there was doubt, yet it would do so without requiring the establishing of the right at law where a clear case of common-law right was presented, and the party is in possession and enjoyment of the right which is threatened to be destroyed or rendered valueless.” -And the court in that case sustained a temporary injunction.

In the discussion of this question, and the examination which we have been able to give it, we have, as before intimated, endeavored to avoid any determination of the ultimate rights of these parties, which must be met and determined upon the issue of law, which has already been tendered by the demurrer, or upon any issue of fact which may hereafter be joined in the case. We have only examined the merits so far as to enable us to determine whether the rights of the plaintiff would be jeopardized pending the prosecution of this action if this temporary or interlocutory injunction were vacated, and whether those of the defendant could be seriously impaired by the continuation of this injunction until the final trial of this suit; and in that light, and upon such examination, we have reached the conclusion that the rights of the parties will be best subserved by allowing this injunction to stand pendente lite, in doing which we think we are sustained both upon principle and authority.

In discussing the right and power of the court to grant a preliminary injunction pendente lite, the author of High on Injunctions (volume 1, 2d Ed., p. 5, $ 5) uses this language:

“It is constantly to be borne in mind that in granting temporary relief by interlocutory injunction courts of equity in no manner anticipate the ultimate determination of the questions of right involved. They merely recognize that a sufficient case has been made out to warrant the preservation of the party or rights in issue in statu quo until a hearing upon the merits, without ex pressing, and, indeed, without having the means of forming, an opinion as to such rights; and in order to sustain an injunction for the protection of prop

erty pendente lite it is not necessary to decide in favor of the complainant upon the merits; nor is it necessary that he should present such a case as will certainly entitle him to a decree upon the final hearing, since he may be entitled to an interlocutory injunction although his rights to the relief prayed may ultimately fail; nor is the decision of the court in granting or refusing a preliminary injunction conclusive upon either the court or parties on the subsequent disposition of the case on final decree."

Acting upon this principle and in harmony with this doctrine, Barrett, J., in Cornwall v. Sachs, (Sup.) 23 N. Y. Supp. 500, in discussing the propriety of continuing a preliminary injunction during the pendency of the action, uses this language:

“The plaintiff thus makes out a prima facie case in support of his claim, and, although his averments are denied, we agree with the special term that it was proper to preserve the status quo until a hearing upon the merits. The injury which the plaintiff would sustain by a sale of the invention is much greater than the defendant can possibly sustain by a temporary restraint upon his right of disposition. The case is thus brought within the rule that where, upon balancing considerations of relative convenience and inconvenience, it is apparent that the act complained of is likely to result in irreparable injury to the complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted.” Andrae v. Redfield, 12 Blatchf. 407.

We therefore reach the conclusion that the temporary injunction must be continued during the pendency of this action. Let an order be entered accordingly.

SAUNDERS et al. v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Second Department. July 28, 1893.) 1. RIPARIAN RIGHTS— ACCESS TO WATER.

The owner of upland on the east bank of the Hudson river, plaintiff's predecessor in title, conveyed to defendant railroad company a strip of land of a certain width under the waters of a small bay in front of their property, on which strip it constructed its track. This deed reserved to the grantor his rights in all the land under water not included in said strip, and also the right to cross the strip to the river. Subsequently, defendant made a filling on the east side of this strip, between its original track and plaintiff's upland, and laid acks thereupon, which it used as a yard, leaving cars there for different periods of time. Held, that plaintiff, as riparian owner, was entitled to unobstructed access to the

shore of the river, and that such intervening tracks should be removed. 2. LANDS UNDER NAVIGABLE WATERS—TITLE OF STATE.

The state holds title to the land under navigable waters merely as trustee for the benefit of the public, and has no power to grant to a railroad company a strip of land adjoining the shore of a river, so as to cut off a riparian owner's right of access to the waters thereof. 23 N. Y. Supp. 927, affirmed. Appeal from special term, Westchester county.

Action by Leslie M. Saunders and Alexander Saunders against the New York Central & Hudson River Railroad Company to restrain defendant from operating its railroad over a strip of land formerly under the waters of the Hudson river, and to compel the removal of the railroad tracks therefrom. From a judgment for plaintiffs, (23 N. Y. Supp. 927,) defendant appeals. Affirmed.

Argued before BARNARD, P. J., and PRATT, J.

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