In the Matter of the Application of The Staten Island Electric Railroad Company, Respondent, v. Adolph L. King and Anna M. King, Appellants, Relative to Acquiring Title to Certain Real Property in the County of Richmond, State of New York

In the Matter of the Application of The Staten Island Electric Railroad Company, Respondent, v. Adolph L. King and Anna M. King, Appellants, Relative to Acquiring Title to Certain Real Property in the County of Richmond, State of New York. •Condemnation Law — wrongful entry by the applicant — the landowner cannot ■ obtain an injunction, in the condemnation proceeding, restraining the continuance of the trespass. Semble, that where the plaintiff, in a proceeding under the Condemnation Law, enters upon the land sought to be acquired before the amount of compensation to be made therefor has been ascertained, and without any order of the court made under section 8380 of tire Code of Civil Procedure, authorizing an. entry, where a deposit of the value of the lands is made, the landowner is entitled to an injunction restraining the continuance of the trespass, if he applies for one in a proper action. Such an injunction cannot, however, be granted in the condemnation proceeding, which is a special proceeding. Appeal by the defendants, Adolph L. King and Anna M. King, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 3d day of August, 1896, refusing to grant an injunction. John Widdecombe, for the appellants. No appearance for the respondent. [MAJORITY — Cullen, J.:] Cullen, J.: Oh an allegation that the plaintiff had entered upon the lands sought tó be acquired by this proceeding before the amount of compensation to be made therefor was ascertained, and without any order of the court, under the provisions of section 3380, Code of Civil' Procedure,- authorizing an entry on a deposit of the value of the lands, the defendants obtained an order to show cause why the plaintiff should not be restrained from further trespass, with an injunction till the hearing of the application. On the return day the-application was denied and the injunction vacated. -This disposition was made upon the defendants’ papers. We are not informed of the grounds on which the decision-of the Special Term, proceeded, and the respondent has aided us neither with brief nor with argument. On the facts stated by the defendants they were certainly entitled to an in junction if they had applied for one in a proper action, but we know of no authority for granting such an injunction in a.special proceeding. The- order was, therefore, properly made and should be affirmed, but without costs. All concurred. Order affirmed, without costs.