Callahan Estate v. Manhattan Railway Co. — 168 A.D. 81

Majority

p. 81

Callahan Estate, Respondent, v. Manhattan Railway Company and Interborough Rapid Transit Company, Appellants.

First Department,

June 4, 1915.

Headnote

Public service corporations—relocation of elevated railroad structure — certificate of Public Service Commission construed — injunction.

Although a certificate issued by the Public Service Commission authorizing an elevated railroad in the city of New York to relocate its structures provided that the center lines of all columns placed between curb lines shall be at a distance of not less than fourteen feet from the curb line, and not less than seven feet from the center of any surface street railway tracks, the railroad company is not required to relocate all of its supporting columns in the manner aforesaid, especially where such reconstruction would in places be impossible by reason of the narrowness of the street, and hence the railroad company may allow some of its columns to remain in their former position.

Under the circumstances, an abutting landowner is not entitled to an injunction requiring the railroad company to relocate all columns in front of his premises on the lines indicated by the certificate of the commissioners, but some of the columns maybe maintained in the position in which they were originally placed.

Appeal by the defendants, Manhattan Railway Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of April, 1915, granting an injunction pendente lite.

J. Osgood Nichols, for the appellants.

John J. O’Connor, for the respondent.

The order appealed from restrained the defendants during the pendency of the action from relocating or reconstructing the columns supporting their elevated railroad on any part of the sidewalk on the west side of the Bowery between Grand and Broome streets and on the east side of the Bowery between Broome and Delancey streets in the city of New York, including the sidewalk in front of two lots owned by the plaintiff.

On March 19, 1913, the Public Service Commission authorized the defendant Manhattan Railway Company to reconstruct its railway along that part of the Bowery specified in the injunction order. The certificate issued by the Public Service Commission provided that “ the existing elevated structure may be relocated and reconstructed provided the supporting columns as relocated and reconstructed shall be so placed that the center line of all columns placed between the curb lines shall be at a distance of not less than fourteen (14) feet from the curb fine and not less than seven (7) feet from the centers of any surface street railway tracks.” The certificate having been issued, the defendants filed plans with the Public Service Commission showing the proposed relocation of the columns. The commissioners appointed by this court approved of the plans submitted by the defendants and this court, in turn, approved the report of the commissioners. The defendants then proceeded with the work of reconstruction in accordance with the plans thus approved. Under these plans one of the four columns now located in front of the premises owned by the plaintiff will be entirely removed; two are to remain in their present location; and the fourth will be moved further along the curb line. The injunction was granted on the ground that by the terms of the certificate of the Public Service Commission the defendants were required to place all columns between the curb lines and in such a position that the center lines of such columns would not be less than fourteen feet from the curb lines or seven feet from the center of any surface car tracks. (Callahan Estate v. Interborough R. T. Co., 90 Misc. Rep. 79 .)

I am of the opinion that the order appealed from should be reversed and the motion for an injunction denied. There is

p. 83

nothing in the certificate of the Public Service Commission which requires defendants to relocate all of the supporting columns in the roadway between the curb lines. It merely requires that “all columns placed between the curb lines” shall be so placed that the center lines of such columns shall be at a distance of not less than fourteen feet from the curb lines and seven feet from the center of the surface street railway tracks. To construe the certificate otherwise would render the proposed reconstruction impossible by reason of the narrowness of the street and the location of the street railway tracks. It cannot be assumed that the Public Service Commission imposed impossible conditions upon the reconstruction of the railway. Not only this, but the language used in the certificate does not permit the construction placed upon it by the Special Term.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.