The opinion
Learned, P. J.
I concur with the foregoing opinion. It seems to me that this case has been practically decided by the court of appeals. It was held by that court in McHenry v. Jewett, 90 N. Y. 58 , that if in ainy case’the complaint showed no cause of action, then on an appeal to that court from an order affirming an injunction order pendente lite a question of law arose; that that court ought to decide that question, and ought to reverse the order. The same rule is laid down in Williams v. Telegraph Co., 93 N. Y. 640 , and again in the present case in 121 N. Y. 401 , 24 N. E. Eep. 832. When, in the present case, the appeal from the order affirming the injunction was decided, two of the judges were of the opinion that the complaint showed no cause of action, and therefore must have been in favor of reversing the order appealed from. But the other judges of the court held otherwise, and dismissed the appeal, holding that the complaint did state facts showing a cause of action, and therefore that the question of granting an injunction pendente lite was one of discretion in this court. The allegations of fact were clearly stated in the complaint, and there could be no uncertainty as to the positions taken by parties. The questions argued in this court and necessarily in the court of appeals were largely as to the right of the plaintiff to enjoy its alleged franchise and business without the interference which was alleged to-arise from the franchise and business of the defendant in the manner stated. Unless the plaintiff had such rights on the facts alleged in the complaint, then, of course, it could not maintain the action, and the court of appeals-would have reversed the order which affirmed the injunction pendente lite. It is true that the opinion of the court speaks of “grave doubts” whether, on the facts stated in the complaint, any cause of action existed. This language is probably used in compliment to the two judges who disagreed with the-majority opinion, Undoubtedly, too, the defendant had “grave doubts” on *763 this point, and for' a settlement of these doubts appealed to that court. But-there could be no longer any doubt on the subject when that court decided to dismiss the appeal, for its decisions make the law in this state; and therefore it cannot say that it dismissed the appeal because it did not know whether the complaint stated a cause of action or not. It was the right of the defendant t.o have a reversal as matter of law if no cause of action was set forth in the complaint; and when that court dismissed that appeal, it decided that the complaint stated a good cause of action. Something is said in fille opinion as to the trial being then in progress, and as to the facts which thus might be judicially ascertained; and of couise, if the trial should not have established the facts alleged in the complaint, then that decision of the court of appeals-would be inapplicable. But we are not to suppose that that decision was-merely a temporary expedient, or that the court would cause parties the labor and expense of- trying a cause in which the complaint alleged no good cause-of action,-when the question was directly before the court whether or not the-complaint did contain such good cause of action. It did not need a trial of the issues to determine whether on the facts stated in the complaint a cause-of action existed. If on these facts a cause of action did not exist, the court would have reversed the order. If it did, the court would have dismissed the appeal, as was in fact done. To suppose that the court did not know whether a cause of action existed or not on the facts stated would be disrespectful. We cannot believe that when this case shall finally come before that court it will hold any differently from its decision above cited, viz., that the complaint states a good cause of action. The referee’s report sustains the allegations of the complaint, and establishes facts more favorable to the plaintiff than those which were proved on the hearing upon the motion for an injunction, as is shown in the preceding opinion by my Brother Mayham. His conclusion, therefore, necessarily follows from the decision of the court of appeals above referred to.