Delaware, Lackawanna & Western Railroad v. City of Buffalo , 38 N.Y.S. 510 ( 1896 )

Follett,. J. (dissenting):

I am unable to concur in holding that a bridge which has existed for eight years over a street, constructed pursuant to a mutual agreement between the railroad and the city, isa “public nuisance,” or añ “ encroachment,” which may be summarily torn down. The city should have sought redress for its alleged wrongs by an action in which the duties and liabilities of each party could have been determined and declared. If this bridge is summarily torn down, what kind of one may be built in its place, how high, with what span, at whose expense, or is the railroad to be cut in two at this point ?

The defendants might have set up in their answer in this action any change in the situation which rendered a different structure necessary, prayed for affirmative relief, and had the duties and liabilities of the parties adjudicated, but they chose to rest their case on an alleged legal right to tear down the bridge as a nuisance, which it seems to me they failed to establish. ' I think the judgment should be reversed, and a new trial granted, with costs to abide the event.

Ward, J., concurred.

Judgment affirmed, with costs.