
    In the Matter of the Brooklyn Elevated Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    Elevated Railway—Injunction.
    The operation of an elevated railway will not be enjoined so long as condemnation proceedings are pending.
    Appeal from an order denying a motion for a stay of certain equitable actions.
    
      Hoadly, Lauterbach & Johnson, ’ (Wm. H. Cohen and Wm. H. Rand, Jr., of counsel) for app’lt; Stephen M. Hoye, (Francis Russell Whitney, of counsel) for resp’t
   Dykman J.

This proceeding was instituted for the acquisi- • tion of the right of way for the railroad along Myrtle avenue in the city of Brooklyn, and, after its commencement, several of the parties thereto brought suit in equity to restrain .the operation of the road in front of their premises. Thereupon the petitioner made a motion at the special term of the court to stay all proceedings in such actions until the termination of the condemnation proceedings. That motion was denied, and the petitioner has appealed from the order.

The petitioner has the legal capacity to invoke the exercise of the right of eminent domain, and, after the payment of the compensation awarded, it has the power to continue the operation of the road. If there be any delay in the proceedings the landowner may conduct the same to a conclusion as well as the petitioner. Code Civ. Proc. § 3379. In the celebrated Story Case, 90 N. Y. 122, the court of appeals determined that the injunction should not issue until the railroad company had a reasonable time to acquire the property of the plaintiff by agreement or proceedings for the condemnation of the same. A proceeding under the right of eminent domain, to ascertain the compensation for private property taken for a public purpose, is a simple and satisfactory method, and there is no reason why this petitioner should be embarrassed by suits which can have no beneficial result. The property owner can receive compensation but once, and no court will restrain the operation of this road so long as the condemnation proceedings are pending. Our conclusion is that the order should be reversed, with $10 costs and disbursements, and the motion should be granted, with $10 costs.

Pratt, J., concurs; Cullen, J., dissents.  