141 N.Y.S. 852 | N.Y. App. Div. | 1913
The city of New York, through the Public Service Commission of the First District, is constructing a subway along Fourth avenue in the borough of Brooklyn. The work is being done pursuant to a contract between the Public Service Commission and the defendant Degnon Contracting Company. This company has in turn sub-contracted a portion of the work to the defendant Carpenter & Boxley & Herrick, Inc. The contract in question provides that if the city of New York should require any of the excavated material for purposes of its own, it will become the duty of the contractor to deliver such excavated material to said city of New York, provided the cost of said delivery shall not be greater than the expense thereof to the contractor at the time the demand is made upon him or it by the city for such material. It happens that the city of New York has constructed a sea wall along the New York bay front of the Shore road in the borough of Brooklyn, and is desirous of filling in between the present boundary of the Shore road and the sea wall which runs along the bulkhead line for about a mile. It has, therefore, made demand for delivery to it, at the Shore road, of clean earth filling to the extent of 500,000 cubic yards, measured in place. For the purpose of delivering this material to the city of New York, the contractors have made application to the Public Service Commission for permission to construct a tramway from Fourth avenue at Seventy-ninth street along Seventy-ninth street to the Shore road, a distance of about half a mile. The Public Service Commission has granted this permission, and the contractors have begun to lay along Seventy-ninth street a track for the operation of the tramway. This track is about three feet in width, and is composed of steel or iron rails, laid on ties imbedded in the surface of the
This action has been brought by a number of abutting owners on Seventy-ninth street whose properties front on both the north and south sides of said street, and who allege that they own the fee of the street, to procure an injunction against the laying and use of said tramway. The defendants urge that they have a lawful right to lay and use this tramway under the authority of section 33 of the Rapid Transit Act (Laws of 1891, chap. 4) as renumbered section 25 and amended by chapter 498 of the Laws of 1909. The material portions of said section which relate to this particular question are in' language as'f olio ws: “For the purpose of facilitating construction, and to diminish the period of occupancy of any street for the transportation of material, any contractor acting under a contract made in pursuance of this act, or of any act supplementary hereto or amendatory hereof, may with the approval of the Public Service Commission, lay upon or over the surface of any street, temporary tramways, to be used only for the removal of excavated materials or the transportation of materials for use in the construction; provided, however, that any such tramway shall be forthwith removed upon the direction of the Public Service Commission; and provided, further, that this provision shall not be construed to authorize the construction or operation of any street railroad or to grant to any corporation, association or individual the right to lay down railroad tracks.” It appears that Seventy-ninth street runs east
The question now arises whether or not it was in the power of the Legislature to give to the Public Service Commission power to permit the use of such a tramway structure upon this highway without affording compensation to the abutting owners who own the fee of the street and whose legal rights may be damaged by such use. Conceding that the Legislature has power for a public purpose to permit a temporary obstruction of a public highway, the question arises whether this particular situation is one covered by such a power. It seems to us that the use of Seventy-ninth street contemplated by the operation of this particular tramway is not a highway use within the scope of the easement already acquired in said street by the public authorities. It is an additional burden upon the land, and, although it is not permanent in one sense, neither is it temporary. (Bates v. Holbrook, 171 N. Y. 460.) It is quite plain that the contemplated use of Seventy-ninth street is very likely to result in serious damage to the owners of the property abutting thereon. We think the order of the Special Term granting the injunction should be sustained pending a trial of the action. Under section 9, subdivision 2, of the Rapid Transit Act, as amended by chapter 498 of the Laws of 1909, this action may be brought on for trial on short, notice at any term of the court in which it was.tried. The action may be tried very early in May, and the whole question of the rights of the respective parties may be then and there finally adjudicated. The case will be preferred on appeal, and can be disposed of completely before the summer adjournments of the courts. No answer or demurrer appears in the record on appeal, and, according to statement of counsel made
Jenks, P. J., Burr, Thomas and Etch, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
