Wilcken v. West Brooklyn Railroad — 17 N.Y. St. Rep. 654

Majority

p. 654

Mette Maria Wilcken, Resp’t, v. The West Brooklyn Railroad Company et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.

Headnote

Practice—Complaint—Demurrer.

A demurrer admits all the facts, and upon such admission the only quea

p. 655

tian raised is whether the complaint states facts sufficient to constitute a, cause of action. All reasonable intendments will be indulged in to support a pleading demurrer.

Appeal from an interlocutory judgment and order overruling defendant’s demurrer to the complaint entered in the Kings county clerk’s office.

Burrill, Zabriskie & Burrill, for app’lt, The West Brooklyn Railroad Company ; Cornelius J. Furguson, Jr., for app’lt, The Brooklyn, Bath and West End Railroad Company ; Charles S. Tabor, for resp’t.

The plaintiff seeks to enjoin the defendants from running trains over a portion of the public street upon which the plaintiff is an abutting owner, upon the ground that the defendants have never acquired the right to operate their road according to law, and that such operation of the railroad is a sufficient injury to the plaintiff.

Technically the plaintiff is right in her contention, but it is plain there cannot be much merit in the suit, and that the injury, if any, is slight.

If the plaintiff purchased the property for the purpose of bringing a suit, such defense can only be raised by an answer. A demurrer admits all the facts, and upon such admission the only question raised is whether the complaint states facts sufficient to constitute a cause of action.

In this view all reasonable intendments will be indulged in to support a pleading demurred to.

The demurrer admits that the defendants have no valid authority to maintain a railroad in this street, and it follows that such occupation of the street is a nuisance, which any one specially injured thereby may have a remedy for its abatement.

We think the allegations of the complaint are barely sufficient to show that the plaintiff is specially injured by the running of trains, and hence, the demurrer was properly overruled.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.