Bellew v. New York, Westchester & Connecticut Traction Co.

Majority

p. 447

Robert J. Bellew, Respondent, v. New York, Westchester and Connecticut Traction Company, Appellant.

Headnote

Preliminary injunction agaisut an elevated railroad—a consenting abutting property- owner is not entitled thereto.

An owner of property abutting on a street in which an elevated railroad is under construction, who has executed a consent to the construction, is not, in an action brought by him to restrain such construction, entitled to a preliminary injunction, as, prima facie, he is not entitled to relief.

Appeal by the defendant, the New York, Westchester and Connecticut Traction Company, from an order of the Supreme Court, made at the Dutchess County Special Term, bearing date the-day of November; 1899, and entered' in the office of the clerk of the county of Westchester, continuing a preliminary injunction during the pendency of the action.

James C. Church, for the appellant.

Alexander Cameron, for the respondent.

The plaintiff is an abutting property owner upon the street where the defendant is engaged in constructing its railroad, and he seeks by this action to restrain such construction. In order to entitle the plaintiff to an injunction, he must show that the act of the defendant will inflict some special injury upon his rights. (Milhau v. Sharp, 27 N. Y. 611 .) And an injunction will hot be granted at the instance of a property owner, except so far as it is. necessary to prevent interference with the special right of which the party is possessed. (Beekman v. Third Avenue R. R. Co., 13 App. Div. 279 .) In the present case it appeared that the plaintiff had given his consent to the construction of the defendant’s railroad: So far, therefore, as his special property right is affected, such consent operated to make the act of the defendant, as to him, lawful. At least it is so far to be regarded as conferring, upon the defendant a legal right to construct its railroad as to deny to the plaintiff the right to a preliminary injunction, as prima facie he would not be entitled to relief. That the defendant is in possession of such con

p. 448

sent does not appear to be disputed by the moving party. So far as Horan’s affidavit is concerted, as to this subject, it is purely hearsay testimony. It should, therefore, be disregarded.

For these reasons the order should be reversed and the injunction dissolved.

All concurred.

Order reversed. and injunction dissolved, with ten dollars costs and disbursements.

Cases cited

Milhau v. Sharp 27 N. Y. 611 N.Y. p. 447
Beekman v. Third Avenue Railroad 13 App. Div. 279 N.Y. App. Div. 1897-01-22 p. 447