#### The Cunard Steamship Co. (limited,) Appl’t, *v.*John R. Voorhis, *et al.,*Dock Commissioners, Etc., Resp’ts.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. JURISDICTION — Controversy submitted on statement of facts — Code Civ. Pro., § 1279, Injunction cannot be granted — Code Civ. Pro., § 1281.

It is provided by Code Civ. Pro., § 1279, that the parties to a question in difference, which might be the subject of an action may agree upon a ease containing a statement of the facts upon which the controversy depends and present the same to the court of record, which would have jurisdiction of an action brought for the same cause. *Held,*that Code Civ. Pro., § 1281, forbids the granting of an injunction in such an action. If the facts in the case submitted are not sufficient to enable the court to grant any other relief an order must be made dismissing the submission.

Appeal from a judgment of tbe superior court- of the city of New York, rendered at a general term, on a statement of facts agreed upon under Code Civ. Proc., § 1279.

G. *D.*Lord, for appl’t; *D. J. Dean,*for resp’ts.

1

 Reversing 18 Jones and Spencer, 253.

Andrews, J.

The judgment from which this appeal is taken was rendered by the general term upon an agreed statement of facts presented to the court below for the purpose of procuring the judgment of the court upon the right claimed by the Cunard Steamship Company, to maintain a shed used by the company, built upon piles in front of the bulk-head adjacent to Pier 40, North river, in the city of New York, which alleged right was denied by the defendants.

The steamship company when this proceeding was instituted was in ]3ossession of the shed and claimed the right to maintain and use the structure in connection with its business, as grantee of the Central Railroad Company of New Jersey, of rights acquired by the latter company under certain resolutions of the department of docks, and also as lessee from the dock department of the northerly side of said Pier No. 40, for a term expiring May 1, 1889.

The facts bearing upon the controversy are set forth in the submission, and it further appears that on February 24,1882, the board of the department of docks passed a resolution directing the steamship company to remove the shed within thirty days from that date, and. in default of doing so, directing the engineer of the department to proceed to remove the same. It is stated in the submission that the steamship company ask for an injunction restraining the department of docks from interfering with the company’s maintenance and use of the shed, and two questions are formulated for the decision of the court: “ 1. Has the said Cunard Steamship Company the right to maintain and use the *737shed during the period for which said injunction is asked for ? 2. Should the injunction asked for be granted ? ”

We are of opinion that the court below, upon the case presented, had no jurisdiction to decide the controversy, or render judgment on the merits. Section 1279 of the Code authorizes the parties to a question in difference, which might be the subject of an action, to agree upon a case containing a statement of the facts upon which the controversy depends and present the same to the court. Section 1280 assimilates the proceeding to an action. But no relief by injunction can be granted in such a proceeding. This is expressly prohibited by section 1281, and a subsequent clause in that section declares that “ If the statement of facts contained in the case is not sufficient to entitle the court to render judgment, an order must be made dismissing the submission.”

It is at least doubtful whether upon the facts stated an equitable action in the ordinary form could be maintained for an injunction. But the statute is a bar to an injunction in this proceeding, and no other relief in the nature of the case is obtainable at this stage of the controversy. There has as yet been no interference with the plaintiff’s structure. The right of the company to maintain it is denied, and the defendants threaten to to remove it. This at most can give a right to an injunction in an ordinary action, and that relief, as we have said, the court in this proceeding has no jurisdiction to grant.

It comes then to this : the parties present to the court for decision a question which if decided for the plaintiff could be followed by no relief, and if for the defendants, would not be *res adjudicate/,*in any subsequent litigation. The first clause in § 1279 is necessarily limited to controversies which can be followed by an effectual judgment on the submission. It is clear, we think, that the court below should have dismissed the proceeding.

The judgment is, therefore, “reversed and the proceeding dismissed for want of jurisdiction.

All concur.