Opinion
January Term, 1900.
James C. Church, for the appellant.
Alexander Cameron, for the respondent.
The plaintiff is an abutting property owner upon the street where the defendant is engaged in constructing its railroad, and he seeks by this action to restrain such construction. In order to entitle the plaintiff to an injunction, he must show that the act of the defendant will inflict some special injury upon his rights. ( Milhau v. Sharp, 27 N.Y. 611.) And an injunction will not be granted at the instance of a property owner, except so far as it is necessary to prevent interference with the special right of which the party is possessed. ( Beekman v. Third Avenue R.R. Co., 13 App. Div. 279.) In the present case it appeared that the plaintiff had given his consent to the construction of the defendant's railroad. So far, therefore, as his special property right is affected, such consent operated to make the act of the defendant, as to him, lawful. At least it is so far to be regarded as conferring upon the defendant a legal right to construct its railroad as to deny to the plaintiff the right to a preliminary injunction, as prima facie he would not be entitled to relief. That the defendant is in possession of such consent does not appear to be disputed by the moving party. So far as Horan's affidavit is concerned, as to this subject, it is purely hearsay testimony. It should, therefore, be disregarded.
For these reasons the order should be reversed and the injunction dissolved.
All concurred.
Order reversed and injunction dissolved, with ten dollars costs and disbursements.