
    TOCCI v. MAYOR, ETC., OF CITY OF NEW YORK et al.
    (Supreme Court, General Term, First Department.
    November 17, 1893.)
    1. Railroad Companies—Municipal Aid—Constitutionality.
    Laws 1872, c. 702, established the grade of a railroad on Fourth avenue, in New York city, between Forty-Fifth street and the Harlem river, which was crossed by a bridge, and gave the exclusive use and occupancy of such portion of Fourth avenue to the railroad company. Act Cong. 1890, required the bridge across the Harlem river to be replaced by a higher one as soon as necessary legislation should enable a change in the grade to be made for approaches to the higher bridge. To enable the railroad company to comply with the act of congress, the legislature passed Laws 1892, c. 339, which changed the grade, gave the company the exclusive use of the improvement, structure, and bridge, and required the railroad company and the city to share equally in the expense. Held, that the act of 1892 did npt provide for a contribution by the city to the private use of a corporation, in violation of Const, art 8, § 11, but for payment for the benefit received by the city from raising the grade of the railroad, and thus returning a portion of Fourth avenue to public use, and permitting free and unobstructed passage on intersecting streets from one side of the city to the other.
    2. Same—Separable Contract—Consideration.
    The elevation of the tracks, the construction of the bridge, and the improving of the street for city use, are inseparable, and are all parts of the same work, to which the city contributes in consideration of the surrender of the railroad company’s rights to public streets and avenues; and whether the legislature required the city to pay a consideration which was too high cannot be considered by the courts.
    8. Same—Elevation oe Track—Reversion oe Street to City.
    Where the railroad company abandoned the use of a city street on acquiring a right to elevate its railroad, the land in the street reverted to the city, for street purposes, without a formal release from the railroad company.
    Appeal from special term, New York county.
    Action by Felice Tocci to restrain the mayor, aldermen, and commonalty of the city of New York, and Theodore W. Myers, as comptroller of said city, from paying certain moneys to the New York & Harlem Railroad Company and the New York Central & Hudson River Railroad Company, under Laws 1892, c. 339. From an order denying a motion for an injunction pendente lite, plaintiff appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PAH KER, JJ.
    Albert Reynaud, for appellant.
    Frank Loomis, for respondents New York & H. R. Co. and New York Cent. & H. R. R. Co.
    G-. L. Sterling, for respondent the mayor, etc.
    William H. Clark, for respondent Myers.
   VAN BRUNT, P. J.

This action is brought by a taxpayer to restrain the city officials from paying to the railroad companies, defendants, certain moneys, under the provisions of chapter 339 of the Laws of 1892, upon the ground that it imposes upon the city a contribution to the private railroad structure belonging to the defendant railroad companies, and is therefore unconstitutional Upon the application for an injunction pendente lite, affidavits were submitted upon both sides, and certain material facts controverted in those affidavits. In cases of this description, it is much better practice, where the right to a preliminary injunction has been denied, and there are disputed questions of fact, that the party should go to trial, and settle the facts, and there determine the question as to the right to an injunction, rather than to attempt to procure a decision of the general term upon a state of facts which may be entirely changed upon the trial, and, unless a very clear case is made only by facts which could be found to be different upon the trial, such an order should be affirmed. In the case at bar, upon an examination of the papers upon which this application was founded, and the answers thereto, it seems to us that there is no possible reason for our interference with the court below. The whole fallacy of the plaintiff’s action is the assumption that the contribution of money by the mayor, aldermen and commonalty of the city of New York to the enterprise in question is a contribution to a private use. On the contrary, it would appear that it is a payment upon the part of the city for benefits and privileges received; and with the question as to whether the city has paid a high or low rate for what it has acquired, we have nothing to do.

It appears that the defendant railroad companies were, prior to 1872, the owners of, and operating, on 4th avenue, in the city of New York, steam railroads, from 45th street up to and across the Harlem river. In 1872 an act was passed giving the New York & Harlem Railroad Company a statutory grade between 45th street and the Harlem river, an increased width of depressed roadway, and, where the said roadway was to be in tunnel, giving to the city and the people the full width of 4th avenue between 56th and 96th streets. Between 96th street and Harlem river, the railroad structure was to be upon a viaduct, and in a cut inclosed by side walls, with undercrossings between 102d and 118th streets, inclusive, and overcrossings from 119th street to 129th street, inclusive. The said railroads crossed, and were to cross, the Harlem river slightly above high-water mark. By this act the railroad companies were given the exclusive use and occupation of said railways, and persons were prohibited from entering or passing upon the same, or any portion thereof, under a penalty. In 1890 an act of congress was passed, providing that the secretary of war should cause the low bridges then crossing the Harlem river to be replaced by other bridges, at the expense of the owners thereof, as soon as the necessary legislation, if such legislation were necessary, should enable the change in grade to the approaches of said bridges to be made; the owners of said bridges to be allowed a reasonable time in which to complete the work necessary for such bridges, and said bridges to have a clear space between the undersides thereof, and the high water of spring tides, of 24 feet. To enable the railroad companies to comply with the act of congress, all that would have been necessary to be done was to change the grade from 125th street to the Harlem river, which would have been much less expensive to the companies than the plan hereinafter mentioned, provided for by the act of 1892. But, had this method been adopted, no part of Park avenue would have been returned to public use, and it would not have permitted the free and unobstructed passage of the intersecting streets from one side of the city to the other. In 1892, in order to enable the said railroad companies to comply with the requirements of the act of congress, the legislature passed an act changing the grade of the road from 106th street to and over the Harlem river to 149th street, making in the act various requirements in respect to the plans, specifications, and estimates for said work, and to the method in which the work should be done. The act further provided that when the plans, specifications, and estimates should be made and filed as therein required, the expense and cost of the improvement should be borne and paid by the defendant the New York & Harlem Railroad Company, or its lessee, the New York Central & Hudson River Railway Company, and the mayor, aider-men and commonalty of the city of New York, in equal proportions, as the construction of the said improvement progressed. The act further provided that when and as often as it should appear by the certificate of the superintending engineer of the work of said improvement, duly certified by a board provided to be appointed by said act, that the sum of $25,000 had been expended thereon by either of said railroad companies, specifying the portions and divisions of said improvement where the said expenditure had been made, the comptroller of the city of New York should draw his warrant, etc., for one-half of the same. The act further provided that in no event should the proportion of the cost of said improvement to be paid by the city of New York exceed the sum of $750,000, and that, if the cost of said improvement should exceed the sum of $1,500,000, then the entire cost, over and above such sum, should be borne and paid for by said railroad companies; and, further, that said improvement, structure, and bridge should be exclusively for the uses and purposes of the railroad companies, and it should not be lawful for any person or persons other than a public officer in the execution of his duty as such, with his agents and assistants, to enter and pass upon or through the same, or any portion thereof, on foot, or in any other way than in the proper cars of such corporation provided for such purpose, with the consent of such corporation, under the penalty of a fine; this provision being the same as that contained in the act of 1872.

It is urged upon the part of the appellant that the contribution imposed upon the city, by the statute, of one-half the cost of the structure from 106th street to the river, declared to be exclusively for the uses and purposes of a private railroad company, is illegal, and in violation of the constitution; and our attention is called to the provision of the constitution, which, so far as it is applicable to the question now before the court, is as follows:

“No * * * city * * * shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation; nor shall any such * * * city * * * be allowed to incur any indebtedness except for city purposes.”

The argument of the counsel for the appellant is that the statute under consideration provides that the city shall contribute, practically, to two material works: First, the construction of a railroad structure, which is expressly stated to be exclusively for the use of the defendant company, that is, the New York & Harlem or the New York Central & Hudson River Railway Company; and, secondly, the filling in, regulating, and paving under that structure of some space and street crossings from 115th street to 133d street, and making the same part of the public avenue,—and that, if the second purpose is not within the prohibition of the constitution, yet if it has been so inextricably mixed in the statute with the first purpose, which is within such prohibition, that it is inseparable, the entire provision is vitiated. It is further urged that in the case at bar, however, the purposes and objects are not so mixed as to defy judicial discrimination, neither in principle nor in fact, and therefore the unlawful can and must be set aside; for the provision, so far as it prescribes the contribution to the ostensible public work of filling in, regulating, etc., can be readily separated from the part imposing upon the city the payment of one-half the cost of the private railroad structure declared to be for the railroad’s exclusive use and purpose.

We think, however, that in this statement of propositions the essential features of the improvement are lost sight of by the appellant. It is undoubtedly true that the expense attendant upon the opening, filling in, regulating, and paving of Park avenue, released by the elevation of the defendant’s railroad tracks, can be separated from the expense of building such elevated tracks. But this is by no meansi the whole of the improvement, nor is it the part of the improvement in which the city is most largely interested. These railroad companies were in exclusive occupation of a part of the public streets of the city of New York. It was deemed by the legislature advantageous to the city of New York that such occupation should cease, and that these portions of the streets should be restored to public use, and the interruption of communication between the two sides of the city should terminate; and they considered that the advantages to be derived from these changes, and the others to be made by the railroad companies, which the legislature had no power whatever to enforce upon said companies, were of sufficient importance to the city of New York to justify its payment of one-half of the expense of the improvement, up to $750,000. It is entirely immaterial, in the consideration of this question, whether the railroad company owned the fee of the land which they occupied or not. For all practical purposes, they were its absolute owners, and entitled to its absolute control and exclusive use for the purposes of their railroads. It was for the abandonment of these rights, and the expense of other constructions in their stead, that the city was authorized to make the payments provided for by the act. The provision of the act in regard to the payments to be made— that the certificate of the superintending engineer of the work of the improvement should specify the portions and divisions of said improvement where said expenditures had been made—was simply a method of determining as to how much money, under the provisions of the act, the city at any one time could be called upon to pay towards the improvement. It was a matter of considerable moment to the city of New York as to whether unobstructed communication should be had between the different sides of the city from 115th street to the Harlem river. The improvement was but one work. There were different things to be done in carrying out its design. But merely because a portion of the improvement required either the removal or the bringing upon the ground of earthy material, and another portion required the bringing upon the ground and the erection of iron structures, by no means segregated the parts of the improvement. They were, each and every of them, necessary parts of one design. The elevation of tracks and the improving of the street were parts of the same work, and it is to this one work that the city contributes. Even though the claim that the city contributes to the private structure of the railroad were true, if, in consideration of such contribution, the railroad surrenders rights which it had to public streets and avenues, and the legislature chose to permit the city to buy out such rights by contributing to the expenses incurred because of such surrender, we see no possible constitutional objection thereto. It is merely paying a consideration for substantial advantages supposed to be gained. And we have nothing to do with the question whether the legislature directed the city to pay a high or low price for the privileges which it acquired, or made an improvident bargain therefor, if their value is of such a character that an absolute gift cannot be inferred. Now, it is conceded by the argument upon the part of the appellant that the acquisition of the streets occupied by the railroad companies, and the establishment' of uninterrupted communication between the two sides of the city, are a matter of great value, but, it is contended, not of the value which the legislature directed the city to pay. Into this inquiry we cannot enter.

It is further urged upon the part of the appellant that, while the act is substantially granting a new franchise and use to these railroads, it contains no provision for a conveyance by the roads to the city, or even a quitclaim deed or release of anything they then owned. But this in no manner affects the question. It is undoubtedly true, as was so ably shown by the counsel for the appellant, that, the use of the streets by the railroad company being abandoned because of their right acquired for an elevated railroad, the land in the street formerly occupied by them naturally and legally reverted to the city, for street purposes. The conditions remained the same, whether there was a formal release, or a release by operation of law. The railroad companies surrendered their rights, and accepted a new franchise, and the legislature authorized the city to pay. them not to exceed a certain sum for so doing. As already stated, we see no constitutional objection to such a provision, under the circumstances disclosed in the case at bar. The order should be affirmed, with costs. All concur. 
      
       Laws 1872, c. 702.
     
      
       Const, art. S, § 11.
     