#### William L. Finger, Resp’t, *v.*The City of Kingston, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

1. Injunction pendente lite—When will not be granted.

Plaintiff sought to enjoin defendant from emptying its sewage into-the Bsopus creek, alleging injury to the ice in his pond thirteen miles below. The city discharged the sewage first into settling tanks, the overflow from which runs into the creek. *Held,*that as it was not clear that plaintiff’s ice will be injured and as the action can be tried before another winter, a preliminary injunction should be denied.

8. Same—Judicial notice.

The court cannot take judicial notice of the opinions of experts not verified by affidavit.

Appeal from an order of the special term, granting a preliminary injunction restraining the defendant from discharging sewage-into the Esopus creek, the plaintiff alleging pollution therefrom to the ice found in his pond thirteen miles down the stream.

*G. D. B. Hasbrouck*and *W. Lounsbery,*for app’lt; *Peter Cantina,*for resp’t.

Landon, J

The preliminary injunction was granted upon notice and upon consideration of the affidavits submitted by each party. When the right to an injunction depends upon the nature of the action it is indispensable that the complaint show that the plaintiff is entitled to judgment awarding the injunction. Code, § 603. But it would be idle for the defendant to contest the motion upon affidavits upon his part, if the test of decision is, whether the complaint shows a *prima facie*case entitling the plaintiff to judgment awarding the injunction. The test must be; what does sound discretion require upon the entire case. No inflexible rule can be lard down, for that would exclude discretion, but :t is probably safe to say that it ought to appear to be reasonably probable that the plaintiff will ultimately prevail in establishing his right to a perpetual injunction. But when the defend*703ant can be fully indemnified and the plaintiff cannot, this rule may be too stringent.

In this case the defendant has constructed sewers for the use of its inhabitants in a portion of the city. These sewers first discharge into settling tanks about 400 feet from the Esopus creek. The office of these tanks is to remove by sedimentation much of the obnoxious matter contained in the sewage. From the tanks the outflow of the sewage water is into the creek.

The plaintiff has a dam across the creek thirteen miles down the stream at Saugerties. This dam forms a pond from which the plaintiff gathers ice for the market. He alleges that the discharge from the sewers will spoil or injure the ice in the pond to his irreparable and continuous damage.

Important and useful as the defendant’s system of sewage may be, the plaintiff’s private right to have the water flow into his pond free from the sewage pollution must be respected. In what way the constantly recurring problem of sewage discharge is to be solved we do not know. The defendant has taken some precautions against the discharge of the more obnoxious contents of the sewage. We do not know whether these precautions are enough. W e have examined all the affidavits. It is not clear that the plaintiff’s i'ce will be injured. The Esopus creek is a large stream, and its volume is considerably increased between Kingston and Saugerties by two large streams flowing into it. Whether the dispersion of a small volume of sewage water into a large stream of fresh water, followed by a flowage of thirteen miles in the open stream, would suffice to restore purity to the sewage water, is a question upon which experts may differ. The affidavits on the part of the city tend strongly to show that no injury could result from it to the ice formed at Saugerties, and we think the proofs now before us preponderate in favor of the absence of injury. We cannot take judicial notice of the opinions of experts not verified by affidavit. The issue ought to be decided upon further evidence than is now before us. We think the case can be tried upon the merits before another winter, and as we do not think the plaintiff’s ice can meantime be injured, we conclude to vacate the preliminary injunction.

The order is reversed, with ten dollars costs and printing disbursements, and the motion denied, and the injunction vacated, with ten dollars costs.

Learned, P. J., concurs; Mayham, J., takes no part.