New York, New Haven & Hartford Railroad v. Welsh — 52 N.Y. St. Rep. 532

Majority

p. 532

The New York, New Haven & Hartford Railroad Co., Resp't, v. Henry Welsh, Impl'd, App'lt.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

1. Condemnation proceedings—Necessity por taking land.

Proof that by reason of increased business additional tracks are needed to enable the company to unload passengers off the main track to avoid delays, is sufficient to show the need of the company for land sought to be condemned.

3. Same—Right op plaintiff to condemn lands.

The plaintiff has a right to condemn lands in this state for the purposes of its business.

3. Same—Former adjudication.

The plaintiff is not precluded from maintaining the proceeding by the decision in a former action brought by the village to condemn the same land for a street, as the questions involved are different.

Appeal from judgment of condemnation.

In opposition to this proceeding the defendant claimed, first, that there was no necessity justifying the condemnation of the land and that the proceeding was not brought in good faith or with the intention of using the land for the railroad purposes alleged ; second, that plaintiff is precluded from maintaining the proceeding because the issues involved are res adjudícala by reason of a judgment rendered in January, 1888, dismissing an application made by the village of New Rochelle, at the request of this plaintiff as a property owner, in a proceeding to open a street upon the premises now sought to be condemned, and third, that plaintiff being a foreign corporation, and having exhausted its

p. 533

power to condemn lands given by a special act passed in 1846, under which it received permission to do business in this state, has no authority to exercise the right of eminent domain in this state.

On the hearing two witnesses for plaintiff testified that the company needed additional facilities because of increase of business; that it was cramped for room and wanted additional entrance into the yard and a place to unload passengers off of the main tracks; that it now had to unload passengers on the main line and delays occur, and that room for additional tracks was needed.

Martin J. Keogh, for app'lt; Henry W. Taft, for resp't

The need of for the land to be condemned is fully proven. And there can be no doubt that the public interest is subserved by granting full facilities to plaintiff to transact its business.

The .case of Marks, 25 St. Rep., 502 , must be regarded as establishing the right of the plaintiff to condemn lands in this state.

The former action, where the village sought to condemn the same land to be used as a public street, has no bearing upon this proceeding. The question then was, whether this land was needed for a public street. The present question is, whether this land is needed by the railroad company to provide adequate facilities for its traffic. The case was well decided and the judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.