New Paltz, Highland & Poughkeepsie Traction Co. v. County of Ulster

Headnote

Contract — railroads — highways — relocation of tracks on highway under agreement that railroad should have absolute right to use land to which tracks were moved — recovery against railroad in action ' by adjoining owner for encroachment — action on contract to recover ' amount of judgment and expenses.

New Paltz, H. & P. Traction Co. v. County of Ulster, 202 App. Div. 234 , affirmed.

Appeal from a judgment, entered July 24, 1922, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff and against the defendant, respondent, and directing as to it a dismissal of the complaint. The action was to recover on a contract. The plaintiff is a street railway company, with tracks in the highway in the town of Lloyd, Ulster county, N. Y. A county highway was being constructed over and upon this highway. The tracks of the plaintiff, at the location in question, were partly upon the southerly and partly upon the northerly side of the highway. The plans for the county highway, prepared by the state highway commission, provided for changing plaintiff’s tracks from the southerly side to the northerly side of the highway. Plaintiff claimed to own the lands on which its tracks were and demanded of the officers of defendants respectively that all its rights and exemptions be protected. On November 11, 1913, a certain six-party agreement was drafted, by which it was agreed that plaintiff should have absolute, indefeasible and perpetual right to enjoy and use the land to which its railroad tracks, ties, poles, brackets, wires and appurtenances should be removed. An abutting owner, claiming that the tracks as relocated encroached upon his land, brought an action of ejectment and recovered damages. This action was to recover the amount of said judgment and the expense of defending the action,