James Young, Appellant, v. William W. Campbell et al., Respondents

James Young, Appellant, v. William W. Campbell et al., Respondents. The fact that the object of an action may be defeated by refusing a temporary injunction is not of itself sufficient to deprive the court of all discretionary power in the matter. In an action by a taxpayer to restrain the collection of a tax for the payment of certain bonds, issued by some of the defendants as commissioners of a town to pay for railroad stock, a preliminary order of injunction was vacated on the grounds that plaintiff himself had taken part in the issue of the bonds, that it did not appear that the town desired to contest them, and that the bondholders had no opportunity to be heard. Held, that even if there was any supposable case where this court would review the discretion of the court below in refusing or vacating a temporary order of injunction, this was not one. (Argued November 12, 1878; decided January 21, 1879.) Appeal from order of the General Term of the Supreme Court, in the third judicial department, affirming an order of Special Term which vacated an order granting a temporary injunction herein. This action was brought by plaintiff as a taxpayer of the town of Cherry Yalley on behalf of himself and other taxpayers against the collector, supervisor and railroad commissioners of the town, to restrain the collector from collecting a tax for the payment of certain bonds issued by the commissioners to pay for stock in the “ Cherry Yalley aud Mohawk River Railroad Company.” The further facts appear sufficiently in the opinion. J. E. Dewey, for appellant. E. W. Paige, for respondents. [MAJORITY — Rapallo, J.] Rapallo, J. The order made at Special Term vacating the preliminary order of injunction in this action was affirmed at General Term on the ground that it was a proper exercise of the discretion of the court to dissolve the injunction. Without passing upon the questions of the validity of the bonds or of the right of the plaintiff to maintain this action, the court rested its decision upon the grounds that the plaintiff had himself taken part in the issue of the bonds, that it did not appear that the town desired to contest them, and that the bondholders had no opportunity to be heard on the motion. Even if any case can be supposed in which this court would review the discretionary action of the court below" in refusing or vacating a temporary order of injunction, it is quite clear that this is not such a case. The circumstance that the object of the action may be defeated by refusing a temporary order, is not of itself sufficient to deprive the court of all discretionary power in the matter. The appeal should be dismissed, with costs. All concur. Appeal dismissed.