Christopher & Tenth Street Railroad v. Central Crosstown Railroad , 67 Barb. 315 ( 1875 )

Davis, P. J.

We have withheld the final consideration of this appeal until the decision of the case on its merits, by the Special Term, before which it has been tried since the argument of the motion. The opinion of the Special Term is now before us. The decision of the Special Term is put wholly upon the construction of the defendant’s charter. We have no doubt that the learned justice is entirely right in holding that the charter confers power on the defendant to extend its track to the North river, at the foot of Christopher street, and we concur in the conclusion arrived at on the merits. We are also of opinion that the plaintiff occupied no such relation towards the defendant or the public streets, as entitled it to bring this action to restrain the defendant from using the public streets. The rights conferred upon the plaintiff by its charter are not exclusive, and do not prevent the legislature from conferring authority to fix the terminus of the defendant’s road at the North river, at the point designated. Nor does it confer upon the plaintiff the power or duty of interfering to protect the public interest, either on behalf of the city or of the general public. If there was any excess of power in the claim of defendant to run its track to the point in question, the public alone could interfere to restrain it by injunction, unless it should be shown that some actual interference with the tracks as laid at that time by the plaintiff had been done, or was about to be attempted.

There seems to us to be no sufficient grounds for the issuing of the preliminary injunction. Its continuance is, of course, disposed of by the decision at the trial denying rá permanent injunction ; but as that does not necessarily > determine that an injunction pending the suit might not have been properly granted, it is proper that we should dispose of the appeal from the order granting such injunction. We think the order appealed from should be reversed, with $10 costs, besides disbursements, and the motion made below denied, with $10 costs.

[First Department, General Term at New York, May 3, 1875.

Daniels, J., concurred.