Moore v. Brooklyn City Railroad — 13 N.Y. St. Rep. 97

Majority

p. 97

Peter C. Moore et al., Commissioners, etc., App’lts, v. The Brooklyn City Railroad Company, Resp’t.^[1]

(Court of Appeals,

Filed Januaury 17, 1888.)

Headnote

I. Commissioners of highways—Injunction—When granted.

The threatened violation of a mere naked right, unaccompanied by special circumstances is not a ground for injunction when legal remedies are adequate to redress any resulting injury.

S. Railroad corporation—Remedy when it violates charter.

If a railroad corporation violates its charter or fails to perform the condition under which it exercises its franchises, the remedy is by a proceeding in behalf of the people by the attorney-general to annul or forfeit its franchise.

3. Same—Remedy when it unlawfully obstructs a highway.

If a railroad corporation in the management of its trains or business unlawfully occupies or obstructs the public highway, the remedy is by indictment or proceedings under the statute.

4. Same—Action not maintainable by—Laws 1855, chap. 255.

An action was brought to compel the defendant to maintain the terminus of its road at a certain point and to prevent the company from changing it to another point, which change would involved the abandonment of about 1,000 feet of the road. By the change a dangerous obstruction would be removed from the highway. Held, that it was not an action brought to sustain the rights of the public in and to a highway, or to enforce the performance of any duty enjoined upon a railroad corporation in relation to a highway within Laws 1855, chap. 255. That it was not maintainable under the general law regulating the power and duties of commissioners of highways.

Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of the special term, in favor of defendant.

Wm. Sullivan, for app’lts; Thomas E- Pearsall, for resp’t.

The real purpose of this action is to compel the defendant to maintain the terminus of its road at the intersection of Fort Hamilton Avenue and the Shore' Boad, as fixed by the consent of 1861, and to prevent the company from changing it from that point to a point on the Shore Boad, distant about six hundred feet from the intersection of the two streets mentioned. The other relief demanded is auxiliary to this main purpose. The plaintiffs in bringing the action claim to represent the interests of the public. The findings, however, show that the proposed change in the terminus of the road is demanded by public convenience and safety. It is found that the opera

p. 98

tian of the road along Fort Hamilton avenue and the Shore road was and is a dangerous obstruction to travel, and also that by the establishment of the proposed depot the public will be accommodated and a dangerous obstruction will be removed from the highway.

It appears that the proposed change in the terminus will involve the abandonment of about one thousand feet of the road. The plaintiffs, by not incorporating the evidence in the record, have assented to the correctness of the findings. Upon the facts found, the action is apparently prosecuted by public officers, not to subserve the public interests, but. in hostility to them. The plaintiffs insist that they are entitled to maintain the action on the ground that the defendant is under a legal obligation to maintain and operate the road over the entire route specified in the consents of 1861, and to the precise terminus therein mentioned. There would be great difficulty in maintaining an action to compel the performance of this obligation, even if the public interests required its observance. People v. Albany and Vermont R. R. Co., 24 N. Y., 261 ; Palmer v. Fort Plain Plank Road Co., 11 id., 376 . But it is, we think, a conclusive answer in this case to the remedy by injunction that no public injury will result from the proposed action of the defendant.

The threatened violation of a mere naked legal right, unaccompanied by special circumstances, is not a ground for injunction when, as in this case, legal remedies are adequate to. redress any resulting injury. McHenry v. Jewett, 90 N. Y., 58 ; 2 Story Eq., § 927, C. If the defendant violates its charter, or fails to perform the condition under which it. exercises its franchises, or if in the mangement of its trains- or business, it unlawfully occupies or obstructs the public highway, the remedy in the former case is by a proceeding in behalf of the people by the attorney-general, to annul or forfeit its franchise, and in the latter, by indictment or proceedings under the statute. We are also of opinion, that in respect to the main relief, the plaintiffs, as highway commissioners, have no legal capacity to maintain the action. This is not an action brought to “sustain the rights of the public in and to a highway, or to enforce the performance of any duty enjoined upon a railroad corporation in relation to a highway,” within the act of 1855, chap. 255, nor is it maintainable under the general law regulating the power and duties of commissioners of highways. Cornell, etc. v. Butternutts, etc., Turnpike Co., 25 Wend., 364 ; Same v. Town of Guilford, 1 Denio, 510 ; Palmer v. Fort Plain Plank Road Co., supra.

The judgment should be affirmed.

All concur, except Eapallo, J., absent.