
    The New York and Harlem Railroad Company vs. The Forty-Second Street and Grand Street Ferry Railroad Company and others.
    There is no constitutional provision that prohibits railroad franchises being conferred upon or exercised by individuáis; nor does there appear to be any objection to making.such rights assignable. Per G. G. Barnaed, J.
    No question can now arise as to the power of the legislature to authorize the construction of a railroad upon any of the streets of New York, without any compensation to the corporation, or to the owners of property fronting on the street, and without the assent of the corporation, but even in direct opposition to the wishes of the corporation. That point is settled by the case of The People v. Kerr, (25 How. Pr. 258; 27 N. Y. Rep. 188.)
    Conceding that a railroad company has no right to construct its road, in the city of New York, without the assent of the city coiporation, still, another railroad company claiming to be injured by the construction of such road is not in a position to assert that there has been no such assent; or to take advantage of its non-existence The requirement of such consent of the common council is not for the benefit of other railroad companies, and the want of it cannot injuriously affect them.
    The legislature having, by the act of April 17, 1860, authorized the construction of a railroad in Tenth avenue, Forty-second street and certain streets of the city and having prohibited the city corporation from giving any assent to any company deriving any authority under the general railroad act of 1850 to construct a railroad on that route, must be considered as having repealed the requirement of such assent for a road on such route.
    The legislature having thus rendered it impossible for the proprietors of the road so authorized to obtain such assent, it is no longer necessary for them to obtain consent, in order to enable them to use the right which they have obtained by assignment from the individuals named in the act of April 17, 1860.
    There is no privilege or right directly granted to the New York and Harlem Railroad Company, of the sole and exclusive use of the Fourth avenue for a railroad track. As to the crossing of its track, by another railroad, that is not such an infraction of private property as to call for a preliminary injunction.
    There may be considerable question whether the statute requires any compensation for the mere crossing of a track. If it does not, none can be had; if it does, then the statute does not make the fixing and payment of such compensation a condition precedent to the crossing. And unless there are allegations of insolvency, or some special cause shown, the court should not interfere to restrain the prosecution of a right. Per G. G. Baknabd, J.
    
      APPEAL from a judgment entered at a special term, dissolving an injunction. See report of case at special term, ante p. 285, where the facts are stated.
    
      Horace F. Clark, for the appellants.
    
      Moses Ely and Hamilton W. Robinson, for the respondents.
   Geo. G. Barnard, J.

All the questions in this case are capable of being resolved into the following: Whether the legislature had authority to pass this act, of April, 1860 ? In this connection it is contended it had not, because it would tend to impair the previous franchise granted to the plaintiffs, and because a franchise of the character granted by the act of April 17, 1860, can only be granted to a corporation for a specified period, and cannot be made assignable ; and that as the general railroad act provides for the incorporation for railroad purposes, there is no necessity for special legislation. Whether, the defendants, being incorporated under the general railroad act, the fifth subdivision of which provides that the act shall not authorize the construction of any railroad on any street in any city, without the consent of the corporation, can they, not having obtained such consent, construct their railroad? And in this connection arises the question whether the plaintiffs can take advantage of such want of consent, and whether the defendants cannot construct their road under the assignments to them, by the parties named in the act of April 17, 1860, of their rights thereunder ?

Whether the defendants’ road does not so impair the franchise of the plaintiffs as to come within the constitutional prohibition against taking private property without due compensation ?

Whether the defendants should not be enjoined from crossing the plaintiffs’ road, the damages for such crossing not having been agreed upon or ascertained, in the manner pointed out by law ?

Whether the construction of the defendants’ road does not take actual property of the plaintiffs without compensation, by reason of the tracks of the two roads running so near to, and parallel with, each other as to endanger the safety of the passengers getting in and out, and thereby deterring passengers from riding ?

As to the first question, it is not now doubted that a franchise of this nature may he conferred upon a corporation. That being conceded, it follows that the legislature can constitutionally bestow grants of this kind. The constitution contains no prohibition and no restriction on this power. A corporation is but an artificial creation, and may consist of one or more individuals. There is no constitutional provision that prohibits such franchises being conferred upon or exercised by individuals; nor does there appear to be any objection to making such rights assignable. The legislature had the power to grant this franchise. The expediency and necessity of granting, the propriety of granting it to a corporation, or a set of individuals, and their assigns ; the safeguards and restrictions to be placed upon the use ; are all, unless some constitutional inhibition is violated, entirely in the discretion of the legislature. Ho question can now arise as to the power of the legislature to authorize the construction of a railroad upon any of the streets of Hew York, without any compensation to the corporation or to the owners of property fronting on the street, and without the assent of the corporation, but even in direct opposition to the wishes of the corporation. That point is settled by the case of The People v. Kerr, (25 How. Pr. 258; 27 N. Y. Rep. 188.)

If by the act of 1860 a corporation is created, it is not objectionable under the clause of the constitution which contains the prohibition ; it being provided that a corporation may be created by special act, when in the judgment of the legislature the object o.f the corporation cannot be obtainéd under the general law. The passage of the special act is conclusive of its merits, in the judgment of the legislature. (Mosier v. Hilton, 15 Barb. cited from p. 663.)

■' As to the second question, conceding that the defendants have no authority to construct their road without the assent of the corporation, still the plaintiffs do not stand in a position to assert that there is no such assent, or, if there he none, to take advantage of the want of it.

•' ■ The party whose assent is necessary is the only party who can take advantage of the want; except where the want of it has the effect of making a Corporation exceed its corporate powers; in' which excepted case the attorney-general can aloné take proceedings for such usurpation; since the want of such consent works no private injury to the corporation, 1 of to the individual owners of property, or tax-payers, under the decision in The People v. Kerr. The stockholders and creditors of the defendants do not complain.

The want of consent cannot injuriously affect the plaintiffs in their franchise or corporate powers. The requirement of "the Consent was" clearly not for their benefit. The plaintiffs then do not stand in a position either to assert that there is no assent, or to take advantage of its non-existence.

" ' But the requirement of the assent of the corporation of the city of New York is, in effect, so far as the defendants afe concerned, abrogated. By the act of 1860 (Bess:Laws, p: 16) it was in substance provided that all railroads thereafter to be constructed, in the city of New York, should be so 'constructed under the authority, and subject to the regulations and restrictions, which the legislature might thereafter provide, and all acts inconsistent therewith were repealed. •

It is obvious that the legislature could directly repeal the clause requiring the assent of the corporation of the city of -•New York, and that thereupon'any railroad company organized under the railroad act, whether formed before or after such repeal, vmuld not be affected by the repealed clause.

This act of 1860 renders it necessary for a corporation formed under the general railroad law, for the purpose of a railroad in the city of New York, to obtain the authority of the legislature to construct its road, and the legislature, in giving such authority, makes such regulations and restrictions as, in their judgment, are requisite. This abrogates all former laws relative to the actual construction of railroads in the city of New York.

This road in question has been authorized by the legislature, under such regulations and restrictions as were deemed necessary ; and the defendants having obtained the right to construct from those to whom it was granted, can exercise that right. Again, the clause in question is but a prohibí- ■ tion of the legislature against the actual construction of a railroad track in a street.

The legislature having, by the act of 1860, authorized the construction of a railroad track in the streets in question, and having prohibited the mayor, &c. from giving any assent to any company deriving any authority under the general railroad act of 1850, to construct a railroad on the route in question, must be considered as having repealed the requirement of such assent for a road on that route. F.or it cannot be held that the legislature means to make it requisite to obtain that which it also says shall not be given.

As the legislature, therefore, have rendered it impossible for the defendants to obtain this assent, it is no longer necessary for them to obtain such consent, in order to enable them to use the right which they had obtained by assignment from the individuals named in the act of April 17, 1860.

The defendants now stand in the same position as if the legislature had granted the right to them ; for the legislature granted it to certain persons and their assigns, and the defendants are the assignees.

Another question is whether the defendants’ road does so impair the plaintiffs’ franchise as to come within the constitutional provision against taking private property without due compensation. It is only necessary, on this point, to refer to the case of The Auburn and Cato Plank Road Co. v. Douglass, (5 Seld. 444.)

There is no privilege or right directly granted to the plaintiffs, of the sole and exclusive use of the Fourth avenue for a railroad track. With reference to the point raised as to the defendants’ road crossing the plaintiffs’ track, this is not such an infraction of private property as to call for a preliminary injunction. (The Brooklyn Central and Jamaica R. R. Co v. The Brooklyn City R. R. Co., 33 Barb. 420.) This crossing became necessary in an authorized use of the streets, the same as the crossing by ordinary car té. It is true that at the point of crossing, the rail of the track which is crossed will be subject to some damage by wear and tear; but that is one of the damages which is necessarily incident in laying rails in a street, the concurrent use of which appertains to others.

There may be considerable question whether the statute .requires any compensation for the mere crossing of a track. If it does not, none can be had ; if it does, then the statute does not make the fixing and payment of such compensation a condition precedent to the crossing ; and unless there are allegations of insolvency, or some special cause shown, the court should not interfere to restrain the prosecution of a right.

In this case there are no allegations of insolvency, and no special cause shown. On the contrary the complaint does not allege any damages arising from such crossing, which need any compensation.

The last point, as to the effect of the ties and-tracks being so near as to endanger the lives of the passengers, and so deter persons from riding, is sufficiently answered by the remark of the judge in his opinion at special term.

Order appealed from affirmed, with $10 costs.

Clbrke, J. concurred.

[New York General Term,

January 7, 1867.

Sutherland, J.

I concur in the conclusions to which Judge Barnard has arrived, and in most of the views or propositions stated in his opinion, but I am not willing to concur in all he says as to the effect or operation of the act of January 30, 1860. (Laws of 1860, p. 16.) That act prohibits the construction thereafter of any railroad in the city of New York, without the authority of the legislature, but it does not declare that such roads may be thereafter constructed by the authority of the legislature alone, and without the assent of the city; and had it so declared, it would not have followed that the legislature had power to authorize the construction of such roads without the consent of the city. But the Court of Appeals, in affirming the decision in The People v. Kerr, must have decided that, at least as to the city corporation, the legislature had the constitutional power to authorize the construction and operation of a railroad in the city, without its assent.

Therefore the grantees named in the act of April 17th, 1860, (Laws of 1860, p. 1050,) or their assignees, had the right, under that act, to construct and operate their road, without the consent of the city; and I am not prepared to hold that this right was surrendered or abandoned, by organizing or undertaking to organize as a corporation, under the general railroad act. But if otherwise, I concur in the suggestion of Judge Barnard, that the plaintiffs were not in a condition to take advantage of the want of consent on the part of the city.

Order affirmed.

George G. Barnard, Sutherland and Clerke, Justices.]  