147 N.Y.S. 1040 | N.Y. App. Div. | 1914
Lead Opinion
Plaintiff is the owner of the houses and lots known as Nos. 194, 196 and 198 Park Row in the city of New York, on the southwesterly corner of Park Row and Worth street, contain
The defendant Manhattan Railway Company owns and operates an elevated railroad along Park Row in front of plaintiff’s premises, now consisting of'tw'o tracks. In 1905 plaintiff settled with the defendant for the damage suffered by him in consequence of the construction of the railroad as it now exists.
The defendants are about to reconstruct their road in front of plaintiff’s premises by widening its structure from a two-track to a four-track road, the new structure being at least twice as wide as the present structure, and, therefore, occupying twice as much of the street. The tracks will be at different levels and there are to be two station platforms, also at different levels. It is perfectly apparent from the plans and affidavits submitted upon this motion, and indeed is not denied by defendants, that the consequence of the reconstructed road and two stations will be to destroy, in much larger measure than does the present structure, plaintiff’s easements of light, air and access. In other words, the effect will be to destroy, to an extent, plaintiff’s property rights. His motion is that defendants be restrained from thus destroying and seizing his property until they shall have acquired the right to do so by appropriate condemnation proceedings, and this he asks as a matter of strict right, and not as a favor to be granted in the discretion of the court.
The particular piece of work respecting which plaintiff finds a grievance is a part of a very extensive plan for the addition to and reconstruction of the elevated railway lines in the city of New York, and constitutes a part of the comprehensive plan for rapid transit within the city recently agreed to between the city, by the board of estimate and apportionment, the Board of Public Service Commissioners and the companies now owning or leasing and operating surface, elevated and subterranean railways in the city. That the projected alteration, amounting to a partial reconstruction of the elevated railways, is an important part of this general scheme, and the part likely to give the speediest relief from present congestion of travel is not to be questioned, but that fact does not justify an unlawful invasion of private rights, or
There are cases in which municipalities have been permitted by statute to enter upon and take possession of private property required for public uses before making compensation. Such provisions are frequently found in statutes authorizing the city of Yew York to open a street or to make other public improvements. This is upon the theory that there is a presumption that the municipality will at all times be able to pay whatever compensation may be found due, a presumption which the court is not justified in extending to any private corporation however large or apparently prosperous. But even in such cases the right of the city to enter upon private property is never given except in conjunction with condemnation proceedings. I am clearly
Here is a provision of law, undoubtedly drawn to meet just such a case as the present, which if followed will preserve the rights of every property owner, and at the same time permit of the speedy prosecution of the work which the defendants have in hand. If it be objected that an injunction should not issue upon a preliminary motion, but should await the trial of the action the obvious answer is that there is no material disputed question of fact to be tried. It is conceded that it is defendants’
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent that an injunction pendente lite be issued restraining defendants, their officers, servants, etc., from proceeding further with the erection of their proposed structure in front of plaintiff’s premises unless and until they shall have commenced proceedings to condemn plaintiff’s property, easements or interests therein proposed to be acquired, and shall have otherwise complied with the provisions of chapter 510 of the Laws of 1913, as to securing the payment of such compensation as plaintiff shall be found to be entitled to.
Clarke and Dowling, JJ., concurred; Ingraham, P. J., dissented.
Concurrence Opinion
(concurring):
I concur in the reversal and in granting a temporary injunction, but I think it should take effect only in the event that a condemnation proceeding is not instituted within sixty days.
Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion. Order to be settled on notice.