187 A.D. 1 | N.Y. App. Div. | 1919
The questions involved in this appeal are (I) whether the complaint sets forth a cause of action, and (2) whether the two separate defenses set up in the answer are sufficient in law.
The action is brought to obtain a judgment enjoining and restraining defendant, its agents, servants, employees, subcontractors and all other persons acting or claiming to act for it, or under its authority, from injuring or causing injury to, or continuing to injure or interfere in any manner with the property, mail tubes and plant, and mail carrying system of the plaintiffs, or any part thereof, and from neglecting or violating defendant’s duty or obligation to rebuild or replace said tubes in a condition equally as good as their original condition at the time defendant began its operations; together with the damages sustained by reason of defendant’s unlawful acts.
The complaint sets forth that plaintiffs are the lessee and owner respectively of a system of pneumatic tubes and appurtenances, adapted and used exclusively for transportation of United States mails, laid under streets and other public places in the city of New York, under contract with the United States Post Office Department; that the system was built and is maintained and operated under and in accordance with legislative acts, and with the authority of the city of
Before defendant began its work, the tube lines were in perfect order in every respect. Defendant, claiming to act under a contract with the city of New York dated May 9, 1918, it is alleged, is now engaged in the construction of a solid masonry structure by means of which the grades and elevations of Fourth avenue, between Thirty-second and Thirty-fourth streets, and the pavement and surface car tracks thereon, are to be changed and raised, and said structure as planned, devised and now in course of construction by defendant, will occupy the subsurface space or location now occupied by plaintiffs’ mail tubes. The work of said construction is set forth to have been begun and to be in parts completed up to the level of the under side of plaintiffs’ mail tubes; and defendant threatens and intends to cover or bury and wall in the plaintiffs’ said mail tubes within said solid masonry structure, preventing access to said tubes by excavation and permanently placing them beyond the reach of remedy and repair in case of breakage or stoppage of mail carriers within said tubes.
The westerly exterior line of said walled masonry structure as planned and now under and in course of construction by defendant, comes so close to the street surface car tracks
“ Eleventh. On information and belief, that the sole right or authority of the defendant to carry on its operations herein-before described in said Fourth Avenue, is the contract mentioned in the preceding paragraph Eighth of this complaint; but that in and by said contract the defendant is required to move, alter, readjust or rebuild said pneumatic mail tubes so as to leave the same in as useful, safe, durable and good condition as existed before the defendant’s operations were begun; and to do all such incidental work as may be necessary for the reconstruction and restoration of plaintiff’s said tube lines which may have been, directly or indirectly, affected, disturbed or injured by the defendant in the progress of its work.
“ Twelfth. That the plaintiffs have notified the defendant of the facts hereinabove set forth, and have requested the defendant to preserve their said mail tube lines, or to replace them with relocated lines in or equal to their original good, condition, as aforesaid; said work to be done under the supervision and co-operation of the plaintiffs; and have offered to co-operate with defendant, furnishing all necessary materials and assistance to the defendant for such work, upon just, reasonable and fair terms and conditions, and with such requirements only as will prevent loss or damage to the plaintiffs and interruption or interference with, or danger or damage to the United States Post Office mail service, as carried on in said tubes.” '
It is then alleged that defendant has failed and refused to perform its duty with respect to the tubes and threatens and intends to continue such refusal and to bury said mail tubes in
I am of opinion that the complaint sets forth a good cause of action. Under its allegations the provisions of the contract referring to the restoration of plaintiffs’ system to its original condition were for the protection of plaintiffs and they are entitled to sue thereunder. The necessary facts are sufficiently pleaded to warrant the interposition of a court of equity. The learned court at Special Term seems to have based its decision on the opinion of another justice denying a motion for a temporary injunction. But that denial was in part based on purely discretionary grounds, and in part on an analysis of other provisions of the contract with the city, set up in defendant’s answer, neither of which considerations has any application to the determination of the question whether the complaint sets forth a good cause of action. We have reached the conclusion that it does, and that, therefore, the judgment appealed from, in so far as it holds the complaint herein to be insufficient, must be reversed.
Furthermore, the demurrer to the two separate defenses should be sustained. Neither is sufficient in law. The first defense sets forth the proceedings had on the application for a temporary injunction and the opinion of the justice in denying the same, and then alleges that plaintiffs’ claims and causes of action are and have been adjudicated and are res adjudicata. There is no merit in this defense, for no judgment had been rendered in the action when it was interposed, and the exercise of judicial discretion in refusing temporary relief could constitute no bar to the action. The
The judgment appealed from will, therefore, be reversed, with costs; the complaint held to be sufficient in law, and plaintiffs’ demurrer to the separate defenses will be sustained, with costs, with leave to defendant to plead over upon payment of said costs.
Clarke, P. J., Laughlin, Smith and Merrell, JJ., concurred.
Judgment reversed, with costs, demurrer sustained, with costs, with leave to defendant to serve amended answer on payment of said costs.