People ex rel. Seal v. New York, Chicago & St. Louis Railroad

Majority

p. 483

The People of the State of New York ex rel. Joseph Seal, Appellant, v. The New York, Chicago and St. Louis Railroad Company, Respondent.

Headnote

People ex rel. Seal v. N. Y., Chicago & St. L. R. R. Co., 70 App. Div. 623 , affirmed.

(Argued May 20, 1903;

decided June 2, 1903.)

Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 17, 1902, affirming a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury.

Daniel L. Allen for appellant.

L. L. Babcock and John G. Milburn for respondent.

To the extent that this proceeding is based upon the relator’s claim of right to a farm crossing under the provisions of the Railroad Law (§ 32), mandamus is undoubtedly the proper remedy; but upon that branch of the case the findings of the learned trial court, unanimously affirmed by the learned Appellate Division, leave nothing for review in this court. As to that part of relator’s claim herein which is based upon the covenant in the deed to his grantor, that a farm crossing shall be built and maintained, the learned trial court had the right to say, in this proceeding to enforce a purely statutory right, that the relator should be compelled to proceed in a direct action upon the covenant, where the question can be decided if any relief shall be granted, and if so, whether performance shall be decreed, or whether damages shall he awarded for its breach. For these reasons the order herein should be affirmed, with costs.

Parker, Ch. J., Gray, O’Brien, Haight, Martin, Cullen and Werner, JJ., concur.

Order affirmed.