82 N.Y.S. 124 | N.Y. App. Div. | 1903
This appeal is from an order of the Special Term denying a motion for an injunction restraining the defendants from further excavating, blasting or constructing the rapid transit tunnel for the underground railroad under Park avenue, adjacent to the plaintiff’s premises, or from continuing the work of tunnel construction in such a manner that the easterly side of the tunnel or of the excavation therefor shall be nearer to the building or house line than the tunnel described and shown in the routes and general plan adopted and approved by the defendants the rapid transit railroad commissioners. The plaintiff is the owner of a dwelling house on the east side of Park avenue at the corner of Thirty-eighth street. In pursuance of legislative authority, the rapid transit commissioners prepared a general plan for the construction of an underground railroad in the city of New York. That general plan was approved by the municipal authorities, but the property owners having refused to consent to the construction of the road, application was made to this court for authority to construct and operate the said road, notwithstanding such refusal.
The evidence is that it -would cost the city of New York to-comply with this demand in the neighborhood of $500,000 in addition to the money already spent, and would delay the completion
We will assume, therefore, in the disposition of this application, that the change of location was unauthorized, and if before any work had been done or substantial progress had been made in the •excavation, an application had been made for an injunction, that the court would have been justified in restraining the further prosecution of the work until the necessary consents had been obtained. An entirely different question is presented where the application for ■an injunction is made after the excavation of the tunnel has been
The learned counsel for the plaintiff insists that the operation of the road in this tunnel will be a serious injury to his property, and that for that reason the further construction of the tunnel, as at present located, should be enjoined. But we think the question of the operation of the road should be left until it can be determined, by its actual operation, whether or not such operation will entail upon the adjoining property any injury or disadvantage. The importance of this public improvement, the fact that it has involved the expenditure of such a large amount of public money, and the necessity for additional means of transportation of passengers in New York, are facts which should be considered in determining whether the court should interfere by an injunction which would prohibit the completion of the public improvement, or adopt other methods to protect or compensate the abutting property owners. The question is whether there should be a preliminary injunction pending the trial of the action, and we think in view of the situation, the enormous public interests involved, and the fact that such an injunction, while affecting most seriously the defendants, would be of no advantage to the plaintiff or the abutting owners, that the court, in the exercise of the judicial discretion which it is bound to exercise in considering an application of this kind, was quite justified in refusing to grant the preliminary injunction asked for, leaving
It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.
Van Brunt, B. J., McLaughlin and Laughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.