53 N.Y.S. 312 | N.Y. App. Div. | 1898
The parties have seen fit to make up separate records for the presentation of their appeals, and in consequence each must stand upon the particular record for the assertion of such legal rights as to which he claims himself entitled.
Considering, first, the plaintiff’s appeal, and waiving the question of practice raised in respect thereto by the defendant, the record presents but a single question. The case contains simply the judgment roll, which embraces the pleadings, the findings of the court and the. judgment, and such other papers as were requisite to properly certify the record and bring the matter before this court. It is evident upon this record that this court can only examine to see if the findings of the court sustain the judgment, as we must assume that the evidence warranted such findings. It is quite doubtful if the exception filed to the decision and also set out in the record raises any question. But assuming that it does, and that the point argued is the one counsel has raised, we think we must return a
The plaintiff’s point is that the court having found that the consent of the common council w.as obtained in 1885, and that no consents of the abutting property owners had ever been obtained, it necessarily followed as a conclusion of law that the defendant did not possess the consent of the common council to the operation of the railroad on Johnson street at the date of the trial, and, therefore, had no right to operate the same. The basis of this contention is found in the Laws of 1884, chapter 252, section 4, and the language relied upon is in these words: “ Any consent so given by said local authorities shall cease and determine at the expiration of one year thereafter, unless prior to the expiration of such period the company obtaining such consent shall have filed the consent of the requisite amount in value of property owners or the determination of commissioners confirmed by the court, as herein provided.” Assuming that the consent of the common council had ceased to be operative, and the maintenance and operation of the railroad in said street constituted it a public nuisance, yet the plaintiff is in no position to take advantage thereof. It does not appear in the record, nor is there a finding of the court, that she has suffered any special damage on account of the maintenance and operation of this railroad, except in resjject of the standing of mail cars and loading and unloading therefrom; but as to the last item of damage she has obtained all the relief for which she asked, and does not appeal from that part of the judgment. Consequently, she stands before this court seeking to restrain a public nuisance from which she suffers no special damage. This contention may be answered in the language of Andrews, Ch. J. (Adler v. M. E. R. Co., 138 N. Y. 173): “ That the. plaintiff is not the representative of the public right, and that assuming that the location in Eighth street was an infringement of the public right in the street, he cannot, in his capacity as a citizen merely, maintain an equitable action for an injunction for the removal of the obstruction, and that he cannot maintain it as the owner of adjacent property, for the reason that the case discloses that he has no interest in the soil occupied by the station, and that
We are not now prepared to say that the language of this case should be applied in all cases in its full scope-and breadth. In the case to which it was applied the plaintiff had already recovered damages for the permanent injury to his property by reason of the existence cf the railroad and station in First avenue, upon the corner of which avenue Ms property was situate. The court held that it was impracticable to separate his damage occasioned by the station from that occasioned by the slight encroachment upon the street, and that consequently he failed in showing any injury for which he had riot been compensated. Where the encroachment is upon an existing right, slight proof of special damage would suffice to sustain an action, and as consent of the abutting owners upon the street is required before the tracks can be lawfully laid in the street, it comes dangerously near to raising a presumption of damage sustained by the owner where there is entire failure to comply, with the law in this respect. When such condition stands alone, unaffected by anything else, we think the court justified in upholding the right in such owner to have the unlawful operation cease upon proof of special damage, however slight. But, as already observed, there is not the slightest proof in the record presented by the plaintiff showing such damage, and no evidence is set forth therein.
This road has been in operation in this street for upwards of thirteen years, and, in theory at least, is being operated for the public benefit. Such is its legal status. Under such circumstances, it was said in Pappenheim v. M. E. R. Co. (128 N. Y. 436): “ It may be that, in the case of a railroad actually running its cars upon or through property of another, it would not be justified in refusing to pay upon the delivery of the conveyance, and, instead thereof, submitting to an injunction. Public interests might have a right to be heard in that respect.” (Empire City Subway Co. v. Broadway & Seventh Ave. R. R. Co., 87 Hun, 279.) Nothing in Irvine v.
So far as the defendant’s appeal is concerned, the record sets out the facts, and consequently calls for their-examination. It is not necessary that we should refer to them in detail. It is evident, as claimed, that the main source of' injury sustained was founded upon the use made of the mail cars which delivered to and received from vehicles carrying the mail between the post office and this place. But while this is true, it does appear that the street is so narrow that the operation of any cars upon it constitutes an obstruction to the passage of some .vehicles, and in consequence of this fact the court was authorized .to conclude that the plaintiff may have suffered some special damage. In addition to this the plaintiff proved loss of rentals, which the court was authorized to find arose from the operation of the road in the street, and we do not think that such damage can be said to have arisen exclusively from the standing of the cars and the reception and delivery of mail matter therein. On the contrary, we think it a fair inference to say that it arose from the ordinary operation of the cars, as well as the particular things whicli were done and which the judgment restrains. This furnishes a sufficient basis for the support of the judgment.
So far as the appeal from • the extra allowance of $500 is concerned, we think it must be sustained, as there is not in the evidence
It follows that the judgment should be modified by striking out the provision for the extra allowance, and as modified the judgment should be affirmed, without costs to either party.
All concurred. .
On appeal of the plaintiff, judgment affirmed. On appeal of the defendant, judgment modified by striking therefrom the direction for ah extra allowance, and in all other respects affirmed. ■ No costs of this appeal to either party.