Hyperlawhypertext legal databasebeta Bellew v. New York, Westchester & Connecticut Traction Co. 62 N.Y.S. 242

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

62 N.Y.S. 242 Court N.Y. App. Div. Decision date 1900-01-16 English

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p. 242
(47 App. Div. 447.)
BELLEW v. NEW YORK, W. & C. TRACTION CO.
(Supreme Court, Appellate Division, Second Department.
January 16, 1900.)

Headnote

Street Railroads—Rights in Street—Abutting Owner—Consent.
Where an abutting owner upon a street had given consent to the construction of a railroad, such consent, so far as his special property right was affected, operated to make the construction of the road lawful as to him; and hence he was not entitled to a preliminary injunction to restrain the construction.
Appeal from special term, Dutchess county.
Action by Robert J. Bellew against New York, Westchester & Connecticut Traction Company. From an order continuing a preliminary injunction during the pendency of the action, defendant appeals.
Reversed.
p. 243
Argued before GOODRICH, P. J., and. BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.
James C. Church, for appellant.
Alexander Cameron, for 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 not 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. Railroad Co., 13 App. Div. 279 , 43 N. Y. Supp. 174 . 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 consent does not appear to be disputed by the moving party. So far as Horan’s affidavit is concerned, 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.

Order reversed, and injunction dissolved, with $10 costs and disbursements.

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