People v. New York Carbonic Acid Gas Co.

In Hathorn v. Natural Carbonic Gas Co. (128 App. Div. 33), decided at this term of court, it was held, in substance, that some of the acts mentioned in the complaint in the above cases may be enjoined, and that chapter 429 of the Laws of 1908 made such acts unlawful, and in the respects indicated said statute was a proper exercise of the police power of the State.

If the conditions existing justified the regulation of the natural springs of the State, it would follow that the Legislature likewise would have power to determine in what manner such regulation should be enforced, and a determination as provided in the act that the People may maintain the action is not an unreasonable exercise of the police power. These actions are, therefore, properly brought in the name of the People as plaintiffs.

Ordinarily, a temporary injunction is only granted upon security to the party enjoined, so that in a manner both parties take some chances in the litigation. Here the various spring owners and taxpayers have the light to maintain actions and make application for temporary injunctions during the pendency thereof upon giving proper security. In these cases the People have not given security and cannot be required so to do.

Until the constitutionality of the law is established by the court of last resort it seems a hardship to enjoin the greater part of defendants’, business with no indemnity in case they are finally sue*44cessful. As a matter of discretion the defendants should not be enjoined in the prosecution of their ordinary business during the pendency of the action without security.

The orders appealed from are, therefore, reversed, without costs, and the injunctions vacated.

,A11 concurred; Cochrane, J., in result.

Orders reversed, without costs, and injunctions vacated.