
    Charles Kunz, Plaintiff, v. The Brooklyn Heights Railroad Co., Defendant.
    
    (Supreme Court, Kings Special Term,
    February, 1898.)
    1. Railroad law of 1890--Right of companies to connect their tracks.
    Under the Railroad Law (Laws of 1890, chap. 565, § 12) a railroad corporation which has contracted with two other companies to construct a curve to connect their tracks, in consideration of a right thereafter to operate its cars over the curve and over their tracks, has .the same right to construct the curve which the two companies themselves would have had, under said section, to have constructed the connecting curve.
    S. Same — Consents unnecessary for operation under traffic contracts.
    A railroad corporation which has, under the provisions of section 78 of the Railroad Law, made a traffic contract with two other roads, for operation over their tracks and a connecting curve, may operate under the traffic contract without first obtaining the consents of the property-owners and of the municipal authorities. *
    Action for an injunction.
    Alexander McKinney, for plaintiff.
    Sheehan & Collin, for defendant.
    
      
      Received too late for insertion in proper place — [Rep.
    
   Wilmot M. Smith, J.

The plaintiff, who is a property-owner on the comer of Adams and Prospect streets, seeks to enjoin the defendant — First, from constructing a curve.at the corner nearest his property, to connect the tracks of- the Nassau Electric Railroad Company on Adams street with the tracks of the Coney Island & Brooklyn Railroad on Prospect street; second, from operating cars over the tracks of the Coney Island & Brooklyn Railroad Company and the Nassau Electric Railroad Company and the proposed curve which is to conne'ct them. The curve is to be erected by the defendant -under a contract with the other two companies, a part of the consideration for which is the right to operate its cars at times over the curve and the operation of the tracks of the two companies whose tracks: are thereby connected. As far as the plaintiff is concerned, the situation is the same as if the two companies were connecting their tracks by the curve, by agreement. That the companies have the right to make such connection is not open to serious question. Railroad. Law, § 12; Buffalo, B. & L. R. Co. v. New York, L. E. & W. R. R. Co., 72 Hun, 583; 25 N. Y. Supp. 265. If the tracks of the two companies were lawfully constructed, the curve is a necessary incident thereto, and no further consent or authority is necessary for its construction. The defendant claims the right to operate its cars over the tracks of the other two eoiapanies and the curve without the consent of property-owners and local authorities,* by virtue of a traffic contract made between the three compames. Until recently the right, to make such contract and to operate cars in pursuance thereof was eon•sidered to be settled. By the provisions of chapter 218 of the Laws of 1839, re-enacted as section 78 of the Railroad Law, it became lawful for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same in such manner as may be prescribed by said contract. In the case of People v. Brooklyn F. & C. I. R. Co., 89 N. Y. 75, it was- argued that the constitutional provision of 1875 (article 3, § 18), which provides that “no law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the .local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained,” was a restriction upon legislative power, and applied to the act of 1839, and forbade a contract under it for running through the streets of a city without first obtaining the prescribed consents; but the court decided that the prohibition invoked was one against future legislation, and had no reference to previously existing laws, and did not at all affect or act upon past legislation which at the time was entirely lawful. In the case of Ingersoll v. Nassau El. R. R. Co., 89 Hun, 213; 34 N. Y. Supp. 1044, decided by the General Term of this department after the enactment of section 91 of the Railroad Law, which is a substantial re-enactment of the constitutional provision quoted, it was unequivocally decided that new consents were not necessary in the case, of traffic contracts. The two decisions quoted are conclusive of the right of the contracting companies to operate their cars over the- lines of each other without new consents, unless these decisions were overruled by the decision of the Court of Appeals in the case of Colonial City Traction Co. v. Kingston City R. R. Co., 153 N. Y. 548; 47 N. E. Rep. 810; and 154 N. Y. 493; 48 N. E. Rep. 900. That was a proceeding by one company tc condemn the right to use the tracks of another company under the provisions of section 102 of the Railroad Law, in order to connect and make a continuous route for the company taking the proceedings. The court held that the provision of section 91 of the Railroad Law applied, and that the company taking the pror ceedings had no standing in court until it first obtained the consents of the property-owners along the line of the route sought to be condemned. The remark by the learned judge who wrote the opinion, that the consents of the property-owners would be necessary even if the one company consented that the tracks be* used by the other company, was obviously a dictum of the judge, as he himself clearly intimated in writing the opinion upon the motion for a reargument. 154 N. Y. 493; 48 N. E. Rep. 900. The effect of the provision of section 78 of the Railroad Law is not considered in the Kingston case. The provisions of the section were not referred to, and the opinion of the court upon the reargument makes it absolutely clear that the court did not decide, or intend to decide, in that case, that the consents of the property-owners and local authorities would be essential to the operation by the railroad corporation of its cars over the tracks of another railroad corporation by virtue of a traffic contract under the provision of section 78 of the Railroad Law. I, therefore, conclude that»the decisions in People v. Brooklyn F. & C. I. R. Co., 89 N. L. 75; and Ingersoll v. Nassau El. R. R. Co., 89 Hun, 213; 34 N. Y. Supp. 1044, have not been overruled, and are binding on this-court.

Motion denied, with $10 costs, to abide event.  