Van Nest Land and Improvement Company, Respondent, v. New York and Westchester Water Company, Appellant

Van Nest Land and Improvement Company, Respondent, v. New York and Westchester Water Company, Appellant. Injunction pendente lite — threat to cut off a water supply — where both parties are pecuniarily responsible and the plaintiff will be greatly damaged, an injunction is proper. Upon an appeal, taken by the defendant in an action, from an order continuing a preliminary injunction, it appeared that the defendant made a contract with the assignor of the plaintiff to furnish water to a certain plot of ground, used as a racecourse, which supply of water the defendant threatened to cut off upon the ground that the plaintiff, or its assignor, had refused to pay the price named in the contract for the water when furnished: The sole question in the case was as to the amount due under the contract. Both parties were responsible, and it was shown that the plaintiff would suffer great injury if the water supply was cut off. Held, that it was a proper case, in the discretion of the court below, for the granting of a preliminary injunction; That the plaintiff should be required to give a bond conditioned for the payment of any sum found by the court, upon the trial of the action, to be due under the contract to the defendant. Appeal by the defendant, the New York and Westchester W afcer Company, from an order of the Supreme Court, made at the New York Special Term and .entered in the office of the clerk of the county of New York on the 2d day of June, 1896, continuing a preliminary injunction theretofore granted in the action. Franklin Bien, for the appellant. Alfred B. Cruikshank, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The defendant, having made a contract with the plaintiff’s assignor to furnish water to a certain plot of ground used as a racecourse, now threatens to cut off the water upon the ground that the plaintiff or his assignor has refused to pay the. price named in the contract for the water when furnished. The plaintiff alleges that it has tendered the amount actually due, and the sole question between the parties is as to the amount due under the contract. No doubt is presented as to the responsibility of either of-the parties, the plaintiff expressly offering in the complaint to pay the amount that the court should find due to the defendant. It further appears that it will cause the plaintiff great injury if the water supply is ctit off. Upon this state of facts the court below enjoined the défendant from . cutting off the water during the pending of this action. Without attempting to determine the question at issue between the parties in this action, we think that this was a proper case for the court below, in the exercise of its discretion, to require the defendant to refrain from doing'an act which would cause the plaintiff great injury, which would be a violation of its contract, and to maintain the existing condition between the parties until by a trial the question as to the amount due between the parties could be determined. It is manifestly difficult to determine the question as to how much allowance should be made to the plaintiff under the contract, because of a failure by the defendant to comply with the contract on its part. That .can only be done upon a more extended examination than could be had upon a motion of this character where no cross-examination is possible and where the witnesses are not before the court. The plaintiff, however, does not appear to be liable to the defendant for the amount actually due under the contract, and we think that, before the defendant .should be enjoined from discontinuing its service, the plaintiff should give a bond conditioned for the payment of any amount found by‘the court to be due under the contract. The order below is, therefore, modified' by providing that the injunction shall be continued upon the plaintiff. filing with the clerk of this court a bond with two sureties to he approved upon justification in the penalty of §10,000, conditioned for the payment of any sum found due by the court on the trial of this action to the defendant under the contract alleged in the complaint; that in the event of the failure to give such bond within ten days after service of a copy of this order, the injunction be vacated. The order, thus modified, is affirmed, without costs. Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred. Order modified as directed in opinion, and as modified, affirmed, without costs.