
    (75 Hun, 366.)
    TOWN OF DUNKIRK v. LAKE SHORE & M. S. RY. CO. et al.
    (Supreme Court, General Term, Fifth Department.
    January 18, 1894.)
    Pleading—Motion to St hike Out—Discretion of Court.
    In an action in equity to- compel a railroad company to carry a highway under the tracks, (Laws 1890, c. 568, § 15,) the refusal of the court to strike out an allegation that the attention of the state board of railroad commissioners had been called to the crossing, and that after examination they had reported that the highway should be carried under the tracks, and that notice of such determination had been served on defend- ■ ant, is not an abuse of discretion, as such allegation may lie material on the question of costs.
    Appeal from special term, Erie county.
    Action by the town of Dunkirk against the Lake Shore & Michigan Southern Railway Company and others. From an order denying a motion to strike out a portion of the complaint as irrelevant, defendants appeal. Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
    Daniel H. McMillan, for appellant Lake Shore & M. S. Ry. Co.
    John G. Milburn, for appellant Chicago & St. L. R. Co.
    E. D. Warner, for respondent.
   LEWIS, J.

This is an action brought in equity by the town of through highway commissioner, under section 15 of chapter 568 of the laws of 1890, to compel the several defendants to carry a highway under their tracks at a point known as “Fessler’s Crossing” within the corporate limits of the plaintiff. The complaint contains appropriate allegations to the effect that the defendants severally own and occupy railroad tracks, running through the town of Dunkirk, used for the purpose of railroad business; that in building their roadbeds at the point where they crossed the Fessler road they constructed an embankment some 12 or 15 feet in height, and constructed approaches thereto, leading up to the grade of the railroad bed, so that travelers upon the highway were compelled to pass up the embankments and over the railroad tracks, to the great inconvenience and danger of the teams and travelers; that the defendants neglected and failed to restore the highway to its former state; and judgment was demanded that the defendants be compelled at their expense to construct and carry the said highway through the embankments of said railroad, and underneath all their tracks, of sufficient capacity to allow the free passage through the same of vehicles and conveyances. In addition to the foregoing allegations, the complaint stated that a complaint was duly made and transmitted by the commissioner of highways of the town of Dunkirk to the board of railroad commissioners of the state of New York, calling the said board’s attention to the condition of the railroads at said crossing, and to the importance and necessity of an under-crossing; that the said board of commissioners visited and inspected the said crossing, and thereafter reported it to be substantially as stated in the plaintiff’s complaint, and recommended that the highway should be carried under the tracks of the said railroads by the defendants so as to do away with the grade crossing; and that thereafter each of the above-named defendants was served with a copy of said report and recommendation of the said board of railroad commissioners, and that, notwithstanding said report of said board, and notice thereof to the defendants respectively, they had neglected, failed, and refused to follow said recommendation and restore the said highway at the said crossing to its former state. The defendants moved to strike from said complaint so much thereof as related to the proceedings by and before the board of railroad commissioners. The motion was denied, and from the order denying said motion an appeal was taken to this court. In actions to secure equitable relief greater latitude and liberality are allowed in the preparation of pleadings than in other actions. Motions to strike from pleadings matter claimed to be irrelevant is addressed largely to the sound discretion ■of the court. It is not an absolute right of a party to have it stricken out in all cases. The power to strike out such matter should be used with reluctance and caution. Town of Essex v. New York & C. R. Co., 8 Hun, 361; Bradstreet v. Bradstreet Co., 14 N. Y. St. Rep. 260; Baer v. Seymour, 12 N. Y. St. Rep. 167; Finger v. City of Kingston, (Sup.) 9 N. Y. Supp. 175. It is true, as claimed by the appellants, that the powers possessed by the board of railroad commissioners are mainly advisory. The statutes organizing said board have not made any provision for enforcing its recommendations. The complaint states a complete cause of action against the defendants without the part concerning the board of railroad commissioners. This, in its nature, is an equitable action. The granting of costs against the defendants if the plaintiff be successful is discretionary with the court. It may well be that that part of the complaint alleged to be irrelevant may have a bearing with the court in determining the question of costs. If so, it cannot be claimed to be entirely irrelevant. Evans v. Burton, 5 N. Y. St. Rep. 218; Howard v. Tiffany, 3 Sandf. 695. It may be important upon the question ■of costs to show that defendants’ officials had notice of the sitúatian of things complained of for a sufficient length of time before the commencement of the action to have constructed the underway if they had so desired. Had the action been commenced without the facts being called to their attention, they might well have urged upon the question of costs that they should have had notice, and an opportunity to have constructed the under-way, before being subjected to the trouble and expense of the action. If the matter complained of be stricken from the complaint, there would be no allegation left showing that the attention of the defendants was called to the matter before the commencement of the action. We are of the opinion that no error was committed in refusing to grant the defendants’ motion, and that the order appealed from should be affirmed, with $10 costs and disbursements of the appeal. All concur.  