#### WEST SIDE ELECTRIC CO. v. CONSOLIDATED TELEGRAPH & ELECTRICAL SUBWAY CO.

(Supreme Court, Appellate Division, First Department.

November 20, 1903.)

1. Electric Companies—Subway Occupancy—Right to Continue—Temporary Injunction.

Where it appears that plaintiff, an electric company, occupies and has occupied ducts in the subway of defendant, another electric company, for several years, for which it has paid rental, plaintiff is entitled to a temporary injunction restraining defendant from interfering with the occupancy until the trial.

2. Same—Refusal to Assign Additional Space—Mandatory Injunction.

Where it appears that plaintiff, an electric company, occupies and has occupied ducts in the subway of defendant, another electric company, for several years, and that defendant refuses to assign the plaintiff additional space in the subway, plaintiff is not entitled to a mandatory injunction pendente lite compelling defendant to .assign additional space.

*10533. Same—Interference with Connecting up Customers—Temporary Injunction.

Where it appears that plaintiff, an electric company, occupies and has occupied ducts in the subway of defendant, another electric company, for several years, for which it has paid rental, plaintiff is entitled to a temporary injunction preventing defendant from interfering with plaintiff in connecting additional customers with the system as already located in the subway, though defendant is making an effort to terminate plaintiff’s occupancy thereof.

Appeal from Special Term.

Action by the West Side Electric Company against the Consolidated Telegraph & Electrical Subway Company. From an order granting plaintiff part of the relief prayed for, both appeal. Affirmed.

The following is the opinion of the court below (Scott, J.):

This motion presents two interesting questions, neither of which can be said to be entirely free from doubt. At least they have been the occasion of very learned and voluminous briefs. The first is whether the plaintiff is entitled to admission to the electrical subway, and the other is whether, if it has such right, its remedy is by mandamus or by action in equity. The plaintiff really seeks double relief. First it asks that its present occupancy of the subway shall not be interfered with, and, secondly, it asks for a mandatory injunction which will give it additional space. This seems to me to be an eminently proper case to leave matters in status quo until the cause can be tried, or, if the moving papers contain all the facts, until the rights of the parties can be passed upon by an appellate court. It appears that the plaintiff now occupies and has occupied ducts in defendant’s subway since 1896, for which it has paid and the defendant has accepted rental. It can do no one any harm if such occupancy be continued until the trial. So far, however, as concerns the application to compel the assignment of additional ducts to plaintiff, a different principle applies, which is that the court will seldom grant a mandatory injunction pendente lite unless the plaintiff’s right is so clear that the denial of the right must be either captious or unconscionable. Such is not the case here. The temporary injunction, as modified by the order of June 16, 1903, will therefore be continued, subject only to the further modification that the defendant shall be enjoined from preventing the plaintiff from connecting up additional customers with the present system as already located in the subway.

To the extent indicated, the motion will be granted, without costs.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

F. K. Curtis, for plaintiff.

H. J. Hemmens, for defendant.

PER CURIAM.

For the reasons stated in the opinion of the judge at Special Term, order affirmed, without costs.