Helmke v. New Jersey & New York Railroad, 21 N.Y.S. 345

Helmke v. New Jersey & New York Railroad

21 N.Y.S. 345 | N.Y. Sup. Ct. | 1892

BARNARD, P. J.

The justice of the decision appealed from cannot be assailed. The Hackensack & New York Extension Railroad Company, a New Jersey corporation, was authorized to extend its road in this state. This railroad company built its road over the plaintiff’s lands in 1871, and in 1872 commenced running the road. The Hackensack Company had, in 1870, mortgaged its road to John S. Fox and others. In 1873 the'Hackensack Company consolidated with another company, and became the defendant company, and in 1880 acquired the mortgage title. The plaintiff’s lands" were taken under an agreement to sell for a nominal sum, and on agreement that the railroad company would build and maintain a lawful fence on each side of the railroad. The plaintiff owned on each side of the railroad company’s track. The original company and its successors have had the land since about November, 1871. No fence has been built; no deed has been given. The use of the plaintiff’s land has been very much impaired by the lack of the fences. The plaintiff brings an action in ejectment. The defendant asks a specific performance of the contract. The court granted a decision for a specific performance of the contract, by the execution and delivery of a deed, and upon the payment of $250 to the plaintiff, and forthwith fencing the property, with costs to plaintiff. The proof showed a much greater loss to plaintiff by the absence of fences than was allowed by the contract. By the true reading of the contract, the engagements of the parties were mutual, and to be simultaneously performed, by building the fences; otherwise, the railroad company would get the land without payment of the consideration. The whole agreement is to be taken and read together, in view of the subject of it, and in view of what was to be performed under it. The giving of a deed was no more a condition subsequent than is the building of the fence. The question is of no importance, however. The defendant asks for" a specific performance, and it is granted, upon the performance of the contract in respect to the fence, *347and upon payment of damages for its failure to do so heretofore. None of the evidence shows the plaintiff’s injury to be so small as the sum allowed by the court. The judgment should be affirmed, with costs.