shall be equal on either of such questions, no

person shall thereaft

er so traffic in liquors or apply for or receive a liquor tax certificate. If for any reason except the failure to file any petition therefor, the four propositions provided to be submitted herein to the electors of a town shall not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special town meeting duly called."

The statute then prescribes the manner of holding such special town meeting, the canvassing and certifying of the votes cast thereat, and then provides that no liquor tax certificate shall be issued authorizing the traffic in liquor in said town when a majority of the votes cast have been in the negative upon such excise questions.

It would thus seem clear that it was the purpose of the Legislature to permit the electors of a town to determine whether or not liquors should be sold within its boundaries, and that the method prescribed for ascertaining their wishes in that regard was to submit the excise. questions, so called, to such electors. To bring about such a submission under the statute, the electors could only sign, acknowledge, and file with the town clerk, in the manner required by law, a petition requesting the submission to the electors of the excise questions. If the result of such election as declared by the inspectors was in accordance perchance with the desires of the petitioners, it would seem incongruous that they should be compelled to attack its validity in order to obtain the result desired by them, to wit, the prohibition of the sale of liquors in said town. But, aside from that, the scheme of the statute clearly was to provide for local option notwithstanding the excise questions were not properly submitted at any election. In such case the statute expressly provides for a resubmission of the questions to the electors. Now, if a court of equity has jurisdiction to determine that such questions were improperly submitted, and that the result of such submission as declared had no binding force or effect, and therefore compel the issuance of liquor tax certificates precisely as if such submission had not been attempted, then the local option feature of the statute would practically be annulled. As we have seen, the statute provides that, a proper petition having been filed by the requisite number of electors, the electors of the town shall determine whether or not liquor shall be sold, and, in case such questions are improperly submitted, a special town meeting shall be held at the instance of any party aggrieved to settle the question. If the contention of appellants is correct, in case error or mistake is made by those charged with the conduct of such submission, a court of equity may declare such mistakes or errors to be fatal to such submission and practically decree that liquor may be sold in said town irrespective of the wishes of a majority of the electors therein; and, if the contention of the appellants is correct, another very strange situation might arise. Those opposed to the sale of liquors in any town, feeling possibly that the submission of the excise questions as attempted to be made was illegal or irregular, might apply under the provisions of the statute for a resubmission of the questions to the electors, and upon such resubmission the vote might be adverse to the sale of liquor in said town, and yet a court of equity might declare in an action like this, either immediately before or after the result of such vote was declared, that, the former submis

102 N.Y.S.-68

and 136 New York State Reporter

sion having been irregular, the county treasurer should be compelled to issue liquor tax certificates authorizing the sale of liquor in said

town.

Under such conditions it may be seen that two judgments absolutely conflicting might be rendered. By the provisions of the statute under the liquor tax law, by "an order of the Supreme or County Court or a justice or judge thereof" a submission of the excise questions may be declared to have been improperly submitted and a special town meeting ordered to again vote upon such questions. If appellants' contention is sound, a court of equity might determine that such submission was valid and binding, and render judgment absolutely in conflict. with that rendered by the other tribunal. Such incongruous situation could not have been contemplated by the Legislature; but rather it was intended that the liquor tax law should provide in and of itself the means by which the electors of any town might determine whether or not intoxicating liquors should be sold therein, and that, if such will was erroneously or improperly declared at any election, the only means of correcting the error was by a resubmission of the questions to the electors at a special town meeting called and conducted in the manner prescribed by the statute.

Independent of the logic of the situation, we think this court is bound by its former decision upon the question. In Matter of O'Hara, 63 App. Div. 512, 71 N. Y. Supp. 613, Justice Williams, writing for the court, said:

"The remedy for a failure to properly submit the questions at the town election was the resubmission thereof at a special town meeting duly called."

See, also, Matter of Town of La Fayette, 105 App. Div. 25, 93 N. Y. Supp. 534; People ex rel. Caffrey v. Mosso, 30 Misc. Rep. 164. 63 N. Y. Supp. 588. In the O'Hara Case the precise question was not involved, and it may be suggested that the language quoted is dictum so far as the case at bar is concerned. However, we now decide that the only way in which a party aggrieved can be relieved from the effect of an improper submission of the excise questions is by application to have such submission declared improper and illegal and for a resubmission of the questions to the electors of the town, that the remedy prescribed by the statute is exclusive, and that the trial court upon the conceded facts had no jurisdiction in the premises.

It follows that the judgment appealed from should be affirmed, with costs. All concur, KRUSE, J., in result.

Judgment affirmed, with costs.

(53 Misc. Rep. 392)

SOUTH SHORE TRACTION CO. v. TOWN OF BROOKHAVEN et al.

(two cases).

SAME V. VILLAGE OF PATCHOGUE et al. (two cases).

(Supreme Court, Special Term, Nassau County. March 9, 1907.)

1. PLEADING-SUPPLEMENTAL COMPLAINT.

Where, at the commencement of a suit by a street railroad company to restrain a town from granting to another company the right to use its streets, the company seeking the injunction had no cause of action because

of its failure to file a bond required by the consents or franchises granted it by the town, plaintiff could not thereafter file such bond for the purpose of showing that at the commencement of the action it had a cause of action, and hence would not be permitted to plead the subsequent filing of such bond by supplemental pleading.

2. APPEAL-REVERSAL-LAW OF CASE.

Under Code Civ. Proc. § 603, providing that, when the right to an injunction depends on the nature of the action, it may be granted on a complaint showing plaintiff entitled to a judgment, an injunction may be granted only upon complaint, and, where a decree granting an injunction upon facts presented by the original complaint was reversed on appeal and remanded, and there was no supplemental complaint before the court, the injunction will be denied.

3. STREET RAILROADS GRANT OF FRANCHISE-CONDITIONS-FILING Bond. Where the consent granted by a town to a street railroad company to use its streets required the company to give a bond to be approved by the highway commissioners or trustees, the company was not entitled to an injunction to restrain the granting of such right to another company, unless the allegations of its complaint showed that the bond was given as required by the consent, and, where no time was stated therein for such filing, it will be presumed that the parties to the contract contemplated that they should be filed within a reasonable time, which, at the most, would not exceed the time within which the railroad was to be built by the terms and conditions of the consent.

4. SAME-FAILURE TO FILE BOND-RIGHT TO EQUITABLE RELIEF.

Where a street railroad company to whom a town granted the right to use its streets on certain conditions had not, in fact, so constructed the road, the company was not entitled to the aid of equity to specifically enforce by injunction an implied negative provision in the consents denying the town the right to grant to another street railway company the right to use its streets.

Actions by the South Shore Traction Company against the town of Brookhaven and others and village of Patchogue and others. On motion to continue injunctions. Motion denied.

See 102 N. Y. Supp. 78.

Motions are made by the plaintiff in the above four actions to continue temporary injunctions, and in two of them plaintiff also moves for leave to serve supplemental complaints. The actions are brought to enjoin the local authorities of the town of Brookhaven and the village of Patchogue, respectively, from granting to defendant railway companies, and said defendant companies from accepting, consents or franchises to construct and operate a railway over certain streets, on the ground that the right to construct a railway on said streets had previously been granted to the plaintiff by the respective municipal authorities. In two of the actions the Suffolk Traction Company is impleaded with said town and village, respectively, as a party defendant, and in two of them the Cross Island Traction Company is impleaded as a party defendant. The further facts are fully stated in the opinion.

Arthur Carter Hume, for plaintiff.

Joseph T. Losee, for village of Patchogue.

Clarence Lexow and Lexow, MacKellar & Wells, for Cross Island Traction Co.

Arthur A. Collin and Collin, Wells & Hughes, for Suffolk Traction Co.

T. M. Griffing, for town of Brookhaven.

SCUDDER, J. On April 1, 1903, the South Shore Traction Company, the plaintiff, obtained consents or franchises from the village of

and 136 New York State Reporter

Patchogue and the town of Brookhaven, respectively, to build a street railway on certain highways. These consents were substantially the same in terms. The consent of the highway commissioners of the town of Brookhaven contained the following provisions:

"(2) This franchise and consent not to be operative until the traction company shall give or cause to be given a bond of sufficient sureties to be approved by said highway commissioners in the penal sum of seven thousand five hundred dollars ($7,500) to indemnify and save harmless the said town of Brookhaven, and the highway commissioners thereof, from any, and all, damages, costs, actions, claims and demands arising from the construction, maintenance and operation of said railroad up to a period of thirty days after completion of said railway, and for the faithful execution and performance of the terms and conditions upon which this franchise is granted and the provisions of law applicable thereto, and upon the faithful performance of all the provisions and conditions herein contained, then this obligation to be void otherwise to remain in full force and effect.

"(3) Such railroad shall be completed and in operation,

* within two years from the date of the granting of this franchise. Otherwise all rights and privileges under this franchise and consent shall cease and determine. *

The wording of these provisions in the consent of the village of Patchogue is precisely the same, except that in section 2 the words "trustees" and "the village of Patchogue" are inserted in place of the words "highway commissioners" and "the town of Brookhaven."

Under these provisions of the franchise the time within which plaintiff was required to build its road expired April 1, 1905. The time provided in the town franchise was, however, subsequently extended by a resolution of the highway commissioners to October 25, 1906. In July, 1906, the plaintiff commenced its actions against the village of Patchogue and the town of Brookhaven, respectively, in which actions the Suffolk Traction Company was impleaded as a defendant. On August 30, 1906, the plaintiff obtained an order continuing during the pendency of each action an injunction restraining the respective municipal authorities from granting their consent to the construction, maintenance, and operation of a street railway by the defendant, the Suffolk Traction Company. Each of these orders contained a condition that if the plaintiff should fail within 20 days from the entry of the order to file with the clerk of the village in the one case and with the clerk of the town in the other a bond in the penal sum of $7,500 such as was required by the terms of the franchise to plaintiff, the order should be void; but, if the plaintiff should tender to the board of trustees of the village and to the board of highway commissioners, respectively, such a bond, and the respective boards should refuse to approve the same, the injunction order should not be deemed vacated unless an order to that effect should be thereafter entered. An appeal having been taken from each of these orders, both orders were reversed by the Appellate Division. In the opinion of the Appellate Court rendered upon said reversal (South Shore Traction Company v. Town of Brookhaven, 102 N. Y. Supp. 75, not yet officially reported) it is stated that the court reached the conclusion that the consent to the plaintiff never became operative because of the failure of the plaintiff to give the bond as provided in that portion of the consent quoted supra (section 2 of the consent). On September 19, 1906,

the plaintiff filed bonds in the sum of $7,500 with the respective municipalities in compliance inferentially at least with the injunction orders. above referred to, which were afterwards reversed on appeal. On the motions now under consideration the plaintiff claims that such filing of the bonds was a compliance with section 2 of the franchise, and seeks to set up the fact of such filing by supplemental complaint in the two actions in which the Suffolk County Traction Company is a defendant. The question whether leave should be granted plaintiff to serve such supplemental complaints will first be considered.

On the appeal from the injunction order previously granted in these actions, it was held that at the time of their commencement the consents to the plaintiff had not become operative because of the failure of the plaintiff to give the required bond, and that, therefore, at that time the village trustees and the highway commissioners, respectively, had a perfect right to grant a consent to another corporation with which the court could not interfere by injunction. South Shore Traction Company v. Town of Brookhaven, supra. The plaintiff, in order to supply the deficiency in the facts upon which its right of action for an injunction depended, has attempted to file the required bond after the commencement of the actions, and now ask leave of the court to be allowed to plead such subsequent filing of the bond for the purpose of showing that at the time of the commencement of the action it had a cause of action. A plaintiff has no right by supplemental complaint to establish a cause of action when none existed at the time when suit is brought. Farmers' Loan & Trust Co. v. United Lines Telegraph Co., 47 Hun, 315; Holly v. Graf, 29 Hun, 443; Banigan v. Village of Nyack, 25 App. Div. 150, 49 N. Y. Supp. 199; Smith v. Bach, 82 App. Div. 608, 81 N. Y. Supp. 1057. It follows that leave to plead the subsequent filing of the bond by supplemental complaint cannot be granted.

The continuation of the injunctions in these actions must also be refused. The right to the injunctions depend on the nature of the actions, and must be granted, if at all, under section 603 of the Code of Civil Procedure. The injunctions which were granted on the facts presented by the original complaints have been reversed. A second application for an injunction on the original complaint is not allowable. There is no supplemental complaint before the court, and leave to serve the proposed supplemental complaint, as we have already seen, cannot be granted. There is consequently no complaint before the court upon which the injunctions sought can be granted. A motion for a temporary injunction can be based only upon a complaint, and cannot be granted upon affidavits. Huntington v. Cortland Home Telephone Co., 62 App. Div. 517, 71 N. Y. Supp. 84: Woodburn v. Hyatt, 34 App. Div. 246, 54 N. Y. Supp. 597; Sanders v. Ader, 26 App. Div. 176, 49 N. Y. Supp. 964; Hudson Valley Railway Co. v. O'Conner, 95 App. Div. 6, 88 N. Y. Supp. 742.

The two actions in which the Cross Island Traction Company is impleaded as a defendant were commenced subsequent to the filing of the bond above referred to. In reference to the filing of these bonds, the complaints in these actions allege:

"That on September 19, 1906, the plaintiff filed with the board of trustees of the village of Patchogue the bond as required by section 2 of the franchise