
    Clarence R. Conger, individually, and as trustee, etc., et al., App’lts, v. The New York, West Shore and Buffalo Railway Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 1,1887.)
    
    Contract—Where court wilt, not enforce specific performance of. Where a contract was fair when made, if subsequent events change the-conditions so as to make the same onerous, and without any great benefit to the party who asks the decree for specific performance, the same should he denied.
    Appeal from a judgment.
    
      Seaman & Conger, for app’lts; Ashbel Green, for resp’t.
   Barnard, P. J.

The Jersey City and Albany Railway Company was one of the lesser corporations which was. finally consolidated as the New York, West Shore and Buffalo Railway Company. The plaintiffs predecessor in title, Catharine Ann Hedges, owned land in Rockland county, and the Jersey City and Albany Railway Company laid out its route through the same. An agreement was made by which the owner of the land agreed to give the right of way and among other conditions the company agreed to make a station at the place known in the case as the “Long Clove."

Before the road was built the final consolidation was made and the defendant changed the route through the Hedges land and built their route upon the changed line and did not make a station at Long Clove.

The change of route was not so marked but that the defendant took the bulk of the land agreed to be given by the Jersey City and Albany Railroad Company, and still it was so wide and substantial as to change the situation of the parties in respect to the station at Long Clove.

The first route went around the high peak of land south of Haverstraw under which the defendant constructed a tunnel. The place of the station under this arrangement would be north of the tunnel, and near its mouth and upon a sharp curve. The grade is heavy in both directions. The place of the station is almost if not entirely wild, and the station would be costly to build and maintain and would not benefit the land owner so far as disclosed by the evidence.

The public service would be injured and there would be no corresponding benefit to the public from a station at the point in question.

Under this evidence it is not a matter of right, as to a specific performance of a contract.

When a contract was fair when made, if subsequent events change the conditions so as to make the same onerous, and without any great benefit to the party who asks the decree for specific performance, the same should be denied. Trustees of Columbia College v. Thatcher, 87 N. Y., 311; Clarke v. Rochester, etc., Railroad Co., 18 Barb., 350.

Ño real injustice is done. The party can have his action for damages and the judgment reserved this right.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.  