Long Island Railroad v. Silverstone — 46 N.Y. St. Rep. 141

Majority

p. 141

The Long Island Railroad Co., App’lt, v. Joseph Silverstone et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.)

Headnote

Injunction—Extension of street over railroad.

An injunction will not lie to restrain the officials of a city from laying out an extension of a street across railroad tracks which are within the city limits after due notice as required by chap. 63, Laws 1853.

Appeal from order denying motion for an injunction restraining defendants from removing fences from plaintiffs’ freight yard in Long Island City. ■

William J. Kelly, for app’lt; Frederick B. House, for resp’t Silverstone; Walter J. Foster, for resp’ts Long Island City and Harrigan.

The plaintiff, the Long Island Railroad, is the owner of the fee of the lands within Van Pelt street, Harold avenue and Bragard street These streets have not been actually opened across the track of the Long Island Railroad, but the history of the proceedings up to the filing of the complaint, however, is as follows: The city was incorporated by chap. 719, Laws of 1870, and amended by chap. 461, Laws of 1871, and chap. 765, Laws of 1871. By this last act the legislature appointed a commission to lay out streets in Long Island City, and file maps showing their acts in respect thereto. The commissioners did their duty under the law, and the three streets above named were laid out on the maps. The owners of the land within the streets executed deeds to the city in July, 1891, which was provided for by the city charter, chap. 461, Laws of 1871, title 3, chap. 2, § 19.

In August, 1891, the common council directed the streets opened for public use across the land of the railroad company, plaintiff, and notice was given by the city to the railroad company to cause the street to be taken across the tracks. The street is open and worked up to the railroad limits. The city was authorized to open the streets by its charter. The owners of the land consented, and deeded the land to the city.

By chap. 62, Laws of 1853, any city, village or town may lay out, without compensation, a highway across a railroad track upon a notice of thirty days to the railroad company of the laying out of the road. The papers do not show that the land was acquired or is used, except as a track which the authorities may cross without compensation. Albany Northern R. R. v. Brownell, 24 N. Y., 345 .

The defendants are all acting under the Long Island City street opening.

p. 142

The order denying an injunction should, therefore, be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.