Stroub v. Manhattan Railway Co. — 39 N.Y. St. Rep. 378

Majority

p. 378

John L. Stroub, Resp’t, v. The Manhattan Railway Company, App’lt.

(New York Superior Court, General Term,

Filed July 2, 1891.)

Headnote

Injunction—Eminent domain.

An elevated railroad company will be enjoined from constructing an additional track in front of plaintiff’s premises, under article 1, § 6 of the state constitution, which provides that no one shall be deprived of his property without due process of law, and that private property shall not be taken for public use without just compensation, unless it has acquired the right so to do by condemnation proceedings.

Appeal from special .term.

Smith & Perkins, for app’lt; Davies, Short & Townsend, for resp t.

—The plaintiff sought an injunction to prevent defendant from unlawfully taking his property.

For the reasons stated in the opinion of the learned judge at special term an injunction which will prevent this wrong should have been granted.

The order appealed from contains a provision by which defendant is in effect provided with a way to obtain plaintiff’s property other than that fixed by statute. As the facts presented do not show a necessity for such extraordinary aid, it should not have been granted.

The order appealed from is modified by striking therefrom all therein that follows the words, “ or until the further order of this court,” and inserting in lieu thereof the following : “ Or until the defendant shall have obtained the right to enter upon the said premises in the way provided by statute.”

As thus modified, the order should be affirmed, with ten dollars costs and disbursements to the appellant.

Freedman, P. J., and Gildersleeye, J., concur.