Moore v. Brooklyn City Railroad , 38 N.Y. Sup. Ct. 90 ( 1883 )

Barnard, P. JT.:

When the commissioners gave their consent to the construction of the defendant’s road in the town of New Utrecht, upon the highways, their duty was done. After that they could require the restoration of the streets to their former usefulness. It was no part of their duty, and was not within t'heir power to make it obligatory upon the railroad company to always keep their road upon the highway. If the defendant’s company take up the track and restore the road, it is all which the plaintiffs as commissioners can enforce. If the consent of the land-owners was upon a condition, they must enforce it. The plaintiffs are limited to tbe rights of the public to the highway and to the enforcement of the duties of the railroad company to the highway. (Chap. 255, Laws 1855.) If the act proposed by defendants is accomplished it,will discontinue a part of the railroad and entirely relieve the highway from it, and if the highway is properly restored the plaintiffs will be put back where they were before the consent was originally given. A consent to a railroad in the street with either steam or horse-power, carries with it the right to connect passenger stations or depot yards or stables with the street railroad. A bill in equity may be the proper remedy for an improper or dangerous method in carrying out the plans. A preliminary injunction should not be issued to restrain the connection on- a general averment that it will be dangerous.

The commissioners have power to see that the rights of the people to the highway are preserved, and the company are to grade the road under the direction of the commissioners. (Chap. 11, Laws of 1854, § 2.)

The order dissolving the injunction should be affirmed, with costs.

Dtkman and Pratt, JJ., concurred.

Order vacating injunction affirmed, with costs.