Krone v. Kings County Elevated Railroad — 20 N.Y. St. Rep. 780

Majority

p. 780

Rosalie Krone, Resp’t, v. Kings County Elevated Railroad Company, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 10, 1888.)

Headnote

1. Injunction—Obstbuction by bailboab of access to pbofebty—Remedy AT LAW.

An injunction will not issue to restrain an interruption of light, air, and access to property, caused by building a stairway in front of plaintiff's property by an elevated railroad company, to enable passengers to ascend to its road, as plaintiff has a sufficient remedy at law.

2. Same—Disobedience to—Contempt—Effect of beyebsal.

Upon the reversal of an order for a temporary injunction, an order punishing one for contempt in disobeying such injunction falls with it.

Appeal from an order punishing the defendant for contempt, made by Mr. Justice Bartlett, at the Kings county special term.

Vanderpoel, Cumming & Goodwin, for app’lt; William J. Gaynor, for resp’t.

This action is for procurement of an injunction restraining defendant from the construction of a stairway leading up from the sidewalk to the elevated office on the defendant’s road.

An order has been made for the issuance of a temporary injunction, from which there is an appeal, and there has been an order for the punishment of the defendant for disobedience of the injunction from which there is also an appeal.

The plaintiff has a leasehold interest in the property described in the complaint upon which she has a three story brick building.

p. 781

The elevated railroad of the defendant has been con■strncted over the center of Fulton street, and a stairway for the ascent of passengers to the railroad has been constructed on the west side of the street' on the sidewalk in front of the property of the plaintiff, and it is the claim of the plaintiff that such stairway will interrupt light, air and access to her property, and thereby injure and damage the same.

The action of the plaintiff is based upon her right to light, ••air and access in the use of her property, and her rights in that respect are absolute, and her claim is well founded.

But whether a court of equity should interefere to restrain the defendant from the full and free exercise of its franchise in favor of an individual who sustains a pecuniary injury only, is quite another question.

The elevated railroad of the defendant has been constructed with the consent of the municipal authorities and •of the fee owner of the premises in question, and stands under the full sanction of legal authority.

Its construction is intended to subserve a great public interest, and in theory of law it was for a public purpose to which private interests are always subservient, not that private interests are to be destroyed or disregarded, but because they can be fully protected by and remunerated by compensation, and the constitution and the laws provide full and adequate remedies for the infringement of all private rights for public purposes.

The damages resulting to private property in such cases may be assessed in the manner provided by law, or they may be recovered in an action at law.

In this case the damages to ensue to the plaintiff are simple and can be easily found by a jury, and there seems to be no sufficient reason why the great public enterprise of the defendant should be arrested or embarrassed by a court of equity for the reasons presented by the plaintiff in this action.

The order for the injunction should be reversed, and of ■course the order to punish for contempt will fall with it. Ten dollars costs and disbursements are allowed.