Manley v. Leggett

Barrett, J. No point was made upon the argument qf this appeal as to the propriety of the injunction, so far as it restrains the unlawful use of the sidewalk in front of the defendants’ premises. The appellants’ argument was confined to criticism of that part of the injunction which restrains the defendants from occupying the road-way in front of the plaintiff’s premises. We think the appellants’ contention on this head is well founded, and that the injunction with regard to the road-way should be modified. The plaintiff has in this particular failed to make out a case for an injunction pendente lite, within the principles enunciated in Callanan v. Gilman, 107 N. Y. 360, 14 N. E. Rep. 264, and the cases there cited. After reading the affidavits upon both sides, it is impossible to say that the plaintiff has clearly established such a continuous and extensive use of the road-way in front of the plaintiff’s premises as to constitute a nuisance. Temporary use of the road-way, there as elsewhere, is inevitable, and the question is, was the actual use, under the circumstances, excessive and unreasonable? That question is so doubtful, upon the papers, as matter of fact, that the plaintiff should have been remitted for its solution to a trial at special term. A point is made that the injunction was irregular in not requiring an undertaking, as prescribed by section 620 of the Code. We have no means of knowing whether this point is well taken as matter of fact. There is nothing in the Code which requires the direction as to the undertaking to be embodied in the injunction order. For aught that appears upon this record, a proper undertaking was duly given. But, even if failure upon that head affirmatively appeared upon the record, the irregularity could be cured nunc pro tune, and even the general term could provide for the giving of such security upon terms. Attrition Co. v. Van Tuyl, 2 Hun, 373; Pratt v. Underwood, 4 Civil Proc. R. 167. The order appealed from should be modified by striking out so much of the injunction as relates to the road-way in front of the plaintiff’s premises, and, as modified, affirmed, without costs of this appeal.