
    MORAN v. LYDECKER.
    
      N. Y. Supreme Court, Second Department; General Term,
    September, 1882.
    Injunction against Construction of Elevated Railroad.— Abutting Owners. —Right to Enjoin Erection through Entire Street.—Uniting several Plaintiffs.—Amendment of Charter.—Constitutional Restriction.— Change of Corporate Name.—Insolvency as Ground for Injunction.—Power of Receivers to Construct Railroad.— Eminent Domain.
    In an action brought by several abutting owners to enjoin the construction of an elevated railroad upon any part of the street along which their property was situated, where the complaint alleged want of authority to construct or operate the road, and further that no compensation had been or was intended to be made to the plaintiffs for the damages to be severally suffered by them,—Held, that the action presented a two-fold aspect: First, to restrain a public nuisance, from which the plaintiffs suffered special damage, to maintain which must be shown waut of power or franchise in defendants to construct the road on the street in question ; and second, to restrain the invasion of property rights that were separate and distinct as to each abutting lot and owner, in which aspect a joint action could not be maintained.
    An abutting owner has no special easement or property in the street, except such part of it as is adjacent to and gives access,- air and light to his lot.
    The rule of Matter of Gilbert Elevated Railway (70 N. T. 361),—that the constitutional amendments of 1875 did not operate upon a previously granted charter,—applied.
    
      L. 1875, c. 423, amending L. 1874, c. 585,—which incorporated the •Brooklyn Elevated Silent Safety Company,—by adding a corporator, providing for a different character of structure and changing the name of the company to the Brooklyn Elevated Railway Company, did not create- a new corporation or grant a new franchise; it merely regulated the use of the franchise previously granted.
    The constitutional provision that the legislative shall not pass a private or local bill changing the names of persons (art. 3, § 18) has no application to corporations.
    Mere insolvency is not per se a forfeiture of corporate rights, and will not authorize an injunction against their exercise at the suit of a private person.
    The franchises of an elevated railway company pass with its property to receivers, who may, under direction of the court, complete a road partially built.
    The completion of a road by receivers will not be enjoined at the suit of a property holder along its route, on the ground of the invalidity of the receiver’s certificates to be issued to raise funds for such construction, as that question only concerns those who propose to make advances thereon, or are interested in the property.
    This was an appeal from an order enjoining the construction by defendants of an elevated railroad upon York street in the city of Brooklyn. The action was brought by Patrick Moran and others, owners of several lots fronting on York street, against John R. Lydecker and another, receivers of the Brooklyn Elevated Railway Company, to restrain -them from entering upon any part of York street for the purpose of constructing the road.
    
      Wingate & Cullen, for appellants.
    
      ‘Tracy, Catlin & Hudson, for respondents.
    
      
       S. P., People v. National Trust Co., 82 N. Y. 684.
    
   Culler, J.

The several plaintiffs are owners of several lots fronting on York street in the city of Brooklyn; none of them have title to the street itself. The complaint seems to be drawn in a double aspect. It alleges that the defendants have not authority to construct or operate the road, for the reasons set forth, and it then further alleges that no compensation has been made, or is intended to be made, to any of the plaintiffs for the damages to be severally suffered by them on account of the construction and operation of the road.

The relief asked is an injunction restraining the defendants from entering upon any part of the whole street.

In its first aspect the action is to restrain a public nuisance, from which the plaintiffs suffer special damage.

In the latter it is to restrain the invasion of property rights that are separate and distinct as to each piece of land, and as to each plaintiff. In this latter aspect it is evident that no joint action can be maintained.

In the case of a railway constructed through the country, no one would contend that the owners of several and distinct farms could bring a common action to prevent the road being built across those farms without compensation.

In this case, if the abutter has any special easement or property in the street that will be invaded by the construction of the railroad, it is evidently only in such part of the street as is adjacent to and gives access, air and light to his adjoining lot.

He has no special easement or property in other parts of the street, or in those which subserve the same purpose for other and distant lots.

But this action covers the whole street, in many parts of which neither the plaintiffs jointly, nor any one of them singly, can upon any theory have a special property or easement.

For aught that appears, the owners on such parts of the street may assent to the construction of the road.

We think that the action cannot be sustained in this aspect, and that the question as to the right of the abutters in the street to have it free from any use injuring the adjoining property, does not arise in this case.

As, long before this road can be completed, that much debated question will be settled by litigation now pending decision in our highest court, it is not necessary we should express an opinion on the subject.

The defendants must take the risk of that decision. To maintain the action in its first aspect, it must be shown that the defendants do not possess the power or franchise to construct the road on the street in question.

That power is challenged by the plaintiffs on several distinct grounds. The defendant company was incorporated May 26,1874, under the name of the Brooklyn Elevated Silent Safety Company, and authorized to construct its road on certain specified streets in Brooklyn, including York street.

On May 22, 1875, an act was passed adding one new corporator, prpviding for a somewhat different character of structure, and changing the name of the company to its present title.

The first contention of plaintiff’s counsel, that the constitutional amendments of 1875 operated upon the previously-granted charter to the defendant, has been definitely settled adversely by the decision of the court of appeals in the case of the Gilbert Elevated R. R. Co. (70 N. Y. 361).

The same principle has been re-affirmed by the same court in People v. The Flatbush, &c. R. R. Co. (not reported).

Nor did the amendatory act of 1875 create a new corporation or grant a new franchise. It merely regulated the use of a franchise previously granted. The amendment of a statute does not operate as a repeal and re-enactment of the retained part of the amended act, but such part is to be considered as having continued the law from the time of its original enactment (Ely v. Holton, 15 N. Y. 595).

The constitutional limitation upon the power of the legislature to change the name of persons has no application to corporations. But were it otherwise, the result is not that the identity of the defendant corporation was changed, but that its present title is a misnomer.

We therefore think that the defendants are not obliged to obtain the consents or determination prescribed by the constitutional amendments.

There now remains to be considered the ground on which the learned justice at special term granted this injunction—the insolvency of the corporation, and the fact that it is in the hands of the individual defendants as receivers.

It is claimed by the defendants, I think correctly, that there is no allegation of insolvency in the complaint, nor direct proof of the fact in ‘the papers. The complaint merely states that in an action by a creditor, in which the insolvency of the company was alleged, receivers were appointed. There has been no judicial declaration of the insolvency, nor judgment forfeiting defendants’ charter therefor. But assuming the insolvency of defendants’ company, I think that would not authorize the order appealed from as to it. Insolvency continued for a specified period is, by statute, made a ground upon which forfeiture may be decreed. Of that the State alone can take advantage, and I know of no principle of law nor of any statute by which insolvency is per se a forfeiture of corporate rights.

We think the receivers, by their appointment, were vested with all the franchises of the corporation, so far as the right to construct and operate the railroad.

The company was by law authorized to mortgage its franchise as well as its property, and the receivers took title to the franchises with the property.

It is too late to question, in this country, the power of receivers to operate railroads or exercise other corporate franchises, under the direction of the court; and there would seem to be no reason why receivers should not complete a road partially built as well as operate one completed.

It is true that the right of eminent domain did not pass as a part of the mortgage franchises.

But the statute of 1881 (chapter 649) would seem to confer such power, and it is not necessary that the power be exercised by a corporation (Matter of Townsend, 39 N. Y. 171).

But if the receivers could not exercise such powers, it would by no means follow that' the construction of the roads has become impossible.

It is entirely possible that the property rights affected by the road may be acquired by purchase. On the sale of this road the purchasers are authorized by law to form a new corporation, which would have the right of eminent domain.

It seems entirely proper that the receivers, therefore, should carry on the construction of road where "the property rights of opposing owners are not involved, and thus enable the purchasers, if there be a sale, or the defendant corporation if its property be restored to it, to complete the road within the statutory time and sa.ve the franchise.

The plaintiffs are not concerned in the validity of the receivers’ certificates. This is a question for those only who propose to advance on such certificates and those who are interested in the property.

The order appealed from should be reversed, with $10 costs. 
      
       See Story v. N. Y. Elevated R. R. Co., p. 236 of this volume.
     
      
       L. 1874, c. 585.
     
      
      L. 1875, c. 422.
     
      
       S. C., more fully, 3 Abb. N. C. 434, affirming 9 Hun, 303. Compare People v. Long Island R. R. Co., 9 Abb. N. C. 181; Negus v. City of Brooklyn, 10 Id. 180.
     
      
       See 12 Weekly Dig. 375; Mem. S. C., 24 Hun, 529.
     
      
       S. P., Trust Society of Meth. Epis. Ch. v. Brownell, 5 Hun, 464.
     