57 N.Y.S. 133 | N.Y. App. Div. | 1899
The plaintiff brings this action to recover damages which she claims to have sustained by reason of the erection by the defendant of an embankment and structure to sustain its elevated tracks in front of, or adjacent to, her premises in the city of Rochester, and which it is claimed interfered with her right of access thereto, and with her enjoyment of certain other incidental rights and privileges. The action was commenced in September, 1884, and was first tried in January, 1886. At the close of the evidence the trial court directed a verdict in favor of the defendant, to which direction the plaintiff duly excepted. Thereupon the exceptions were ordered to be heard at the general term in the first instance, and they were overruled by that court, and judgment was ordered for the defendant upon the verdict. From such judgment an appeal was taken to the court of appeals, where the judgment was reversed, and a new trial ordered. 130 N. Y. 108, 29 N. E. 95. At the close of the
North street, in the city of Rochester, runs practically north and south; and at a point in front of t'he plaintiff’s premises it was at one time intersected by another street, known as “North Avenue,” which extended in a northeasterly direction from North street. The defendant, as it appears, hád acquired the fee to North avenue for railroad purposes, subject to the use thereof by the general public; and its tracks—four in number—crossed both streets at or near the point of intersection. Under the provisions of chapter 147 of the Laws of 1880, the defendant agreed with commissioners representing the city of Rochester upon a plan to elevate its tracks over and along the streets of that city; and, in order to better accomplish such plan, it was further agreed that the westerly end of North avenue, as it then existed, should be closed, and that the avenue should intersect North street at a point about 50 feet further north, over and upon lands owned-by'the defendant, which the latter agreed to dedicate to the public for that purpose. This arrangement was thereafter consummated, and in 1882 the westerly end of North avenue was closed, and, the defendant erected thereon an earth embankment 14 feet in height, and a stone abutment, upon which it placed its rails and operated its railroad. The plaintiff’s premises, consisting of a house
On the part of the plaintiff, evidence was given which tended to support her contention, and to establish, among other things, that the defendant’s premises, which adjoin those of the plaintiff upon the north, were originally acquired by what is now known as the
It is due to the defendant, however, that proper consideration should be given to the contention of its learned counsel that the plaintiff must fail in her action because, even if deprived of the former means of access to her premises from North avenue, she may still approach them from North street. The court of appeals, in deciding this case, recognized the right and power of a municipality to discontinue a public street, provided that in so doing it left an abutting owner other suitable means of access to his premises; and, if the means left to this plaintiff can be fairly deemed “suitable,” within the ordinary meaning of that word, the defendant’s contention would have something substantial upon which to rest. But can it be said, in the circumstances of this case, that it is such? One has but to glance at the maps, to obtain a satisfactory answer. Heretofore opportunity was afforded for both people and teams to pass from North avenue along the entire north side of the plaintiff’s main building, and between the building and the shop. Under existing conditions, nei
Our conclusion of the whole matter, then, is that the trial court should have submitted this case to the jury upon the lines we have indicated as the proper ones, and that for its failure so to do a hew trial should be granted.
Exceptions sustained, and motion granted, with costs to the plaintiff to abide the event. All concur.