Tocci v. Mayor

This action is brought by a taxpayer to restrain the city officials from paying to the railroad companies, defendants, certain moneys, under the provisions of chapter 339 of the Laws of 1892, upon the ground that it imposes upon the city a contribution to the private railroad structure belonging to the defendant railroad companies, and is therefore unconstitutional. Upon the application for an injunction pendente lite, affidavits were submitted' upon both sides, and .certain material facts controverted in those affidavits. In cases of this description, it is much better practice, where the right to a preliminary injunction has been denied, and there are disputed questions of fact, that the party should go to trial, and settle the facts, and there determine the question as to the right to an injunction, rather than to attempt to procure a decision of the general term upon a state of facts which may be entirely changed upon the trial, and, unless a very clear case is made only by facts which could be found to be different upon the trial, such an order should be affirmed. In the case at bar, upon an examination of the papers upon which this application was founded, and the answers thereto, it seems to us that there is no possible reason for our interference with the court below. The whole fallacy of the plaintiff’s action is the as

It appears that the defendant railroad companies were, prior to-1872, the owners' of, and operating, on 4th avenue, in the city of New York, steam railroads, from 45th street up to and "across the Harlem river. In 1872 an act was passed giving the New York & Harlem Railroad Company a statutory grade between 45th street and the Harlem river, an increased width of depressed roadway, and, where the said roadway was to be in tunnel, giving to the city and the people the full width of 4th avenue between 56th and 96th streets. Between 96th street and Harlem river the railroad structure was to be upon a viaduct, and in a cut inclosed by side walls, with undercrossings between 102d and 118th streets, inclusive, and overcrossings from 119th street to 129th street, inclusive. The said railroads crossed, and were to cross, the Harlem river slightly above high-water mark. By this act the railroad companies were given the exclusive use and occupation of said railways, and persons were prohibited from entering or passing upon the same, or any portion thereof, under a penalty. In 1890 an act of congress was passed, providing that the secretary of war should cause the low bridges then crossing the Harlem-river to be replaced by other bridges, at the expense of the owners thereof, as soon as the necessary legislation, if such legislation were necessary, should enable the change in grade to the approaches of said bridges to be made; the owners of said bridges to be allowed a reasonable time in which to complete the work necessary for such bridges, and said bridges to have a clear space between the undersides thereof, and the high water of spring tides, of twenty-four feet. To enable the railroad companies to-comply with the act of congress, all that would have been necessary to be done was to change the grade from 125th street to the Harlem river, which would have been much less expensive to the companies than the plan hereinafter mentioned, provided for by the act of 1892. But, had this method been adopted, no part of Park avenue would have been returned to- public use, and it would not have permitted the free and unobstructed passage of the intersecting streets from one side of the city to the other. In 1892, in order to enable the said railroad companies to comply with the requirements of the act of congress, the legislature passed an act changing the grade of the road from 106th street to and over the Harlem river to 149th street, making in the act various requirements in respect to the plans, specifications, and estimates for said work, and to the method in which the work should be done. The act further provided that when the plans, specifications, and estimates should be made and filed as therein required, the expense and cost of the improvement should be borne and paid by the defendant the New

It is urged upon the part of the appellant that the contribution imposed upon the city, by the statute, of one-half the cost of the structure from One Hundred and Sixth street to the river, declared to be exclusively for the uses and purposes of a private railroad company, is illegal, and in violation of the constitution; and our attention is called to the provision of the constitution, which, so far as it is applicable to the question now before the court," is as follows:

«]xr0 * * ->:• (¿ty * * * shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation; nor shall any such * * * city * * * be allowed to incur any indebtedness, except for city purposes.”

The argument of the counsel for the appellant is that the statute under consideration provides that the city shall contribute, practically, to two material works: First, the construction of a railroad structure, which is expressly stated to be exclusively for the use of the defendant company, that is, the New York & Harlem or the New York Central & Hudson River Railway Company ; and, secondly, the filling in, regulating, and paving under that structure of some space and street crossings from 115th street to 133d street, and making the same part of the public avenue—and that, if the second purpose is not within the prohibition of the constitution, if it has been so inextricably mixed in the statute with the

We think, however, that in this statement of propositions the essential features of the improvement are lost sight of by the appellant. It is undoubtedly true that the expense attendant upon the opening, filling in, regulating, and paving of Park avenue, released by the elevation of the defendant’s railroad tracks, can be separated from the expense of building such elevated tracks. But this is by no means the whole of the improvement, nor is it the part of the improvement in which the city is most largely interested. These railroad companies were in exclusive occupation of a part of the public streets of the city of New York. It.was deemed by the legislature advantageous to the city of New Y orle that such occupation should cease, and that these portions of the streets should be restored to public use, and the interruption of communication between the two sides of the city should terminate; and they considered that the advantages to be derived from these changes, and the others to be made by the railroad companies, which the legislature had no power whatever to enforce upon said companies, were of sufficient importance to the city of New York to justify its payment of one-half of the expense of the improvement, up to $750,000. It is entirely immaterial, in the consideration of this question, whether the railroad company owned the fee of the land which they occupied or not. For all practical purposes, they were its absolute owners, and entitled to its absolute control and exclusive use for the purposes of their railroads. It was for the abandonment of these rights, and the expense of other construc.tions in their stead, that the city was authorized to make the payments provided for by the act. The provision of the act in regard to the payments to be made—that the certificate of the superintending engineer of the work of the improvement should specify the portions and divisions of said improvement where said expenditures had been made—was simply a method of determining as to how much money, under the provisions of the act, the city at any one time could be called upon to pay towards the improvement. It was a matter of considerable moment to the city of New York as to whether unobstructed communication should be had between the different sides of the city from One Hundred and Fifteenth street to the Harlem river. The improvement was but one work. There were different things to be done in carrying out its design. But merely because a portion of the improvement required either the removal or the bringing upon the ground of earthly material, and another portion required the bringing upon the ground and erection of iron structures, by no

It is further urged upon the part of the appellant that, while the act is substantially granting a new franchise and use to these railroads, it contains no provision for a conveyance by the roads to the city, or even a quitclaim deed or release of anything they then owned. But this in no manner affects the question. It is undoubtedly true, as was so ably shown by the counsel for the appellant, that the use of the streets by the railroad company being abandoned because of their right acquired for an elevated railroad, the land in the street formerly occupied by them naturally and legally reverted to the city for street purposes. The conditions remained the same, whether there was a formal release, or a release by operation of law. The railroad companies surrendered their rights and accepted a new franchise, and the legislature authorized the city to pay them not to exceed a certain sum for so doing. As already stated, we see no constitutional objection to such a provision, under the circumstances disclosed in the case at bar.

The order should be affirmed, with costs.

All concur.