25 N.Y.S. 1089 | N.Y. Sup. Ct. | 1893
This action is brought by a taxpayer to restrain the city officials from paying to the railroad companies, defendants, certain moneys, under the provisions of chapter 339 of the Laws of 1892, upon the ground that it imposes upon the city a contribution to the private railroad structure belonging to the defendant railroad companies, and is therefore unconstitutional Upon the application for an injunction pendente lite, affidavits were submitted upon both sides, and certain material facts controverted in those affidavits. In cases of this description, it is much better practice, where the right to a preliminary injunction has been denied, and there are disputed questions of fact, that the party should go to trial, and settle the facts, and there deter
It appears that the defendant railroad companies were, prior to 1872, the owners of, and operating, on 4th avenue, in the city of New York, steam railroads, from 45th street up to and across the Harlem river. In 1872 an act
It is urged upon the part of the appellant that the contribution imposed upon the city, by the statute, of one-half the cost of the structure from 106th street to the river, declared to be exclusively for the uses and purposes of a private railroad company, is illegal, and in violation of the constitution; and our attention is called to the provision of the constitution, which, so far as it is applicable to the question now before the court, is as follows:
“No * * * city * * * shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation; nor shall any such * * * city * * * be allowed to incur any indebtedness except for city purposes.”2
We think, however, that in this statement of propositions the essential features of the improvement are lost sight of by the appellant. It is undoubtedly true that the expense attendant upon the opening, filling in, regulating, and paving of Park avenue, released by the elevation of the defendant’s railroad tracks, can be separated from the expense of building such elevated tracks. But this is by no meansi the whole of the improvement, nor is it the part of the improvement in which the city is most largely interested. These railroad companies were in exclusive occupation of a part of the public streets of the city of New York. It was deemed by the legislature advantageous to the city of New York that such occupation should cease, and that these portions of the streets should be restored to public use, and the interruption of communication between the two sides of the city should terminate; and they considered that the advantages to be derived from these changes, and the others to be made by the railroad companies, which the legislature had no power whatever to enforce upon said companies, were of sufficient importance to the city of New York to justify its payment of one-half of the expense of the improvement, up to $750,000. It is entirely immaterial, in the consideration of this question, whether the railroad company owned the fee of the land which they occupied or not. For all practical purposes, they were its absolute owners, and entitled to its absolute control and exclusive use for the purposes of their railroads. It was for the abandonment of these rights, and the expense of other constructions in their stead, that the city was authorized to make the payments provided for by the act. The provision of the act in regard to the payments to be made— that the certificate of the superintending engineer of the work of the improvement should specify the portions and divisions of said
It is further urged upon the part of the appellant that, while the act is substantially granting a new franchise and use to these railroads, it contains no provision for a conveyance by the roads to the city, or even a quitclaim deed or release of anything they then owned. But this in no manner affects the question. It is undoubtedly true, as was so ably shown by the counsel for the appellant, that, the use of the streets by the railroad company being abandoned because of their right acquired for an elevated railroad, the land in the street formerly occupied by them naturally and legally reverted to the city, for street purposes. The conditions remained the same, whether there was a formal release, or a release by operation of law. The railroad companies surrendered their rights, and accepted a new franchise, and the legislature authorized the city to pay. them not to exceed a certain sum for so doing. As already stated, we see no constitutional objection to such a provision, under the circumstances disclosed in the case at bar. The order should be affirmed, with costs. All concur.
Laws 1872, c. 702.
Const, art. S, § 11.