Barney v. City of New York

This appeal is from an order of the Special Term denying a motion for an injunction restraining the defendants from further excavating, blasting, or constructing the rapid transit tunnel for the underground railroad under Park avenue adjacent to the plaintiff’s premises, or from continuing the work of tunnel construction in such a manner that the easterly side of the tunnel or of the excavation therefor shall be nearer to the building or house line than the tunnel described and shown in the routes and general plan adopted and approved by the defendants the rapid transit railroad commissioners. The plaintiff is th£ owner of a dwelling house on the east side of Park avenue at the corner of Thirty-Eighth street. In pursuance of legislative authority and the consent of the city of New York, the rapid transit commissioners prepared a general plan for the construction of an underground railroad in the city of New York. That general plan was approved by the municipal authorities, but, the property owners having refused to consent to the construction of the road, application was made to this court for authority to construct and operate the said road notwithstanding such refusal. The plans, as prepared by the rapid transit commissioners, and which were submitted to this court for approval, contemplated three separate tunnels under Park avenue in front of the plaintiff’s premises, the easterly side of the easterly tunnel being 37 feet and 6 inches from the building

The evidence is that it would cost the city of New York, to comply with this demand, in the neighborhood of $500,000 in addition to the money already spent, and would delay the completion of the work for about 18 months; and the question that was presented to the court below was whether, in view of these facts, in the exercise of its judicial discretion, this work should now be stopped, entailing upon the public and the city this delay in the prosecution of the work, with the large additional cost indicated. It is undoubtedly true that this modification of the plans materially changing the relation of the proposed road to the abutting property without the consent of the property owners, or, in lieu thereof, the approval of this court, was entirely unauthorized. The constitutional provision, recognized and enforced by the statutes under which this road is being constructed, by which this railroad could not be built without the consent of the property owners, or, in lieu thereof, the approval of this court, provided safeguards for the protection of property abutting upon a street through or under which it was proposed to construct a railroad. Before such a road should be constructed, the abutting owners were to be consulted; but, in order to prevent the opposition of the property owners from preventing a necessary public improvement, -provision was made by which an approval by this court for the con

We will assume, therefore, in the disposition of this application, that the change of location was unauthorized, and if, before any work had been done, or substantial progress had been made in the excavation, an application had been made for an injunction, that the court would have been justified in restraining the further prosecution of the work until the necessary consents had been obtained. An entirely different question is presented where the application for an injunction is made after the excavation of the tunnel has been substantially completed, and where all that remains is to construct the necessary masonry walls and supports. That it would be a much more serious injury to the plaintiff's property to leave the excavation in the condition in which it was when this action was commenced than to allow it to be proceeded with, and the necessary walls and supports constructed, is apparent. The only result of now granting a preliminary injunction would be to stop the work, leaving this hole in the ground, unsupported; while, if the contractors are allowed to proceed with the construction of the tunnel, the adjoining property would be secure against further settling or injury. The injunction asked for, therefore, would seem to be without any advantage to the plaintiff, but would subject him and the other property owners to the danger of having the adjacent rock settle into this excavation, and so injure, rather than protect, his property.

The learned counsel for the plaintiff insists that the operation of the road in this tunnel will be a serious injury to his property, and for. . that reason the further construction of the tunnel, as at present located, should be enjoined. But we think the question of the operation of the road should be left until it can be determined, by its actual operation, whether or not such operation will entail upon the adjoining property any injury or disadvantage. The importance of,this public improvement, the fact that it has involved the expenditure of ' such a large amount of public money, and the necessity for additional means of transportation of passengers in New York, are facts which should be considered in determining whether the court should interfere by an injunction which would prohibit the completion of the public improvement, or adopt other methods to protect or compensate the abutting property owners. The question is whether there should be a preliminary injunction pending the trial of the action; and we think, in view of the situation, the enormous public interests' involved, and in view of the facts that such an injunction, while affecting most seriously the defendants, would be of no advantage to the

It follows that the order appealed from should be affirmed, with $10 costs and disbursements. All concur.