
    Frederick Tiedemann, Appellant, v. Staten Island Midland Railroad Company, Respondent.
    
      Consents of property owners on a street :to the construction of a railroad.
    
    In determining whether' a railroad company has obtained the consent of the owners of one-half in value of the property bounded upon a village street, as appears by the- assessment rolls, where it is shown that all' the owners of the ■ property bounded upon the north by.the street, which property is assessed at. . §17,400, have consented, and that the owners of the property bounded upon the-south by the.street, assessed at §29,500, have not consented, the court will not consider the probability that tlie fact, shown by affidavits, that the property bounded on the south by .the street, is bounded on the. east and west by, and is described in the assessment roll as upon, two other streets, has made it more valuable, where it appears that the depth of the lots bounded on the south by the street, measured from the street in question, is less than their depth measured from the streets which bound them respectively on the east and west-.
    Appeal by the plaintiff, Frederick Tiedemann, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 2d day of June, 1897, and entered in the office of the clerk of the county of Richmond, denying his motion for an injunction pendente lite restraining the defendant from constructing, operating and maintaining a street surface railway upon Hyatt street, in the village of New Brighton, Richmond county.
    
      John J. Kenney, for the appellant.
    
      Albert Reynaud, for the respondent.
   Bradley, J.:

The main question requiring consideration is whether or not the defendant had obtained the consent of the owners of one-half in value of the property bounded upon Hyatt street, in the village of New Brighton, to the construction of a street surface railroad on that street, as required by the statute to that effect, which also provides that the value shall be ascertained and determined by the assessment roll completed last before the consent of the local authorities, also provided for, shall have been given to the like effect. (Laws of 1890, chap. 565, § 91, as amended by chap. 676 of the Laws of 1892.)

The consent of the owners of the property bounded on the- north by the street had been, and of the owners of the property bounded on the south by the street had not been, given to the construction of the railroad. The value of the former, as represented by such assessment roll, was $17,400, and of the other was $29,500. It thus, apparently, seems that the requisite consents of the property owners had not been obtained by the defendant for the purpose in view. But it is,, nevertheless, insisted on its part that one-half at least in value of the ■ property bounded on the street, within the meaning of the statute, was owned by the persons whose consents were obtained, because the property on the north side of Hyatt street was described in the assessment roll as on the streets bounding the property on the easterly and westerly sides, and known as St. Mark’s, place on the west and. Stuy vesant street on the east, arid because it was made to appear by,affidavits presented upon the.motion, that the lots on the south side of and fronting on Hyatt street of such property on that side of it have greater value than the lots fronting on the north side, of that street, of the property before mentioned, as bounded on the south by the street. The statements in those affidavits were in' reference to the situation as it then appeared, and in view of the locar tion of the two houses on the premises. This may not always so continue. The extent of the street boundary of the property on the north side of Hyatt street is greater than that of the property on the south side of that street.

It is unnecessary to inquire whether land bounded upon a street may extend so far back from it that the remote portion may not be deemed included in that so bounded for the purposes in question. Such a suggestion is not applicable to the property on the north side of Hyatt street. As represented by the ownership it is in two parcels. That on the. west, adjacent to Stuy vesant street, is owned by one Norvell, and that on the east, adjacent to St. Mark’s place, is owned by the plaintiff. The depth of each of those parcels north from Hyatt street is less than its depth from those other streets respectively, as represented by the plat in the motion papers. In the common acceptation of the words property bounded on ” a street it is difficult to see how this owned by Norvell and the plaintiff can be denied that relation to Hyatt street; or. how in that respect any part of such property can be taken out of the operation of the statute applicable to that relation to such street, for the purpose of establishing the prerequisite condition of consent of the owners to the right of the defendant to proceed to the-construction of its railroad there.

The manner in which the description is given in the assessment roll is a matter of no moment. Nor is the necessity of procuring consent limited to the street on which the property may front when it is also bounded on another street in which the construction of a railroad is proposed. The frontage of premises bounded on two or more streets may not in some places be the same or. so limited for all time in the future as it is or hitherto has been. The statute is applicable to any street in a city or village on which property is bounded. And it is by the statute that authority is given to construct and operate street railroads, and the conditions upon which such right is made dependent must be strictly observed. (In re Rochester Electric R. Co., 123 N. Y. 351, 358.)

The abutting owner has an interest which permits his intervention to prevent the laying of such a railroad in violation of the statute. (Fanning v. Osborne, 102 N. Y. 441.)

No other question requires consideration.

The order' should be reversed and motion granted. '

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion for injunction granted.  