
    Emma A. Porth, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed November 3, 1890.)
    
    Railroads—Nuisance—Wooden stations.
    ■ The defendant acquired no authority, either under its original charter or the rapid transit act, to build wooden stations, and when it built such a station in a public street it was guilty of maintaining a public nuisance, which the court could abate at the suit of an individual who sustains special damages thereby.
    Appeal from a judgment of this court in favor of the plaintiff, rendered after a trial of the issues at an equity term.
    The judgment awards to the plaintiff the sum of $416.85 damages and costs, and contains an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of the premises No. 1435 Second avenue, unless within a time specified in the judgment they pay to the plaintiff the sum of $1,000, and also contains an absolute and unconditional injunction against the further maintenance and use of a certain station building situated in Second avenue, just north of the plaintiff’s premises, and a stairway connected therewith, a portion of which extended in front of said premises.
    
      Davies & Bapallo, for app’lts; James B. Ludlow, for resp’t.
   Ingraham, J.

We are of the opinion that the facts alleged in the complaint were sufficient to authorize the relief granted by the court in this action.

The complaint alleged that the defendants, in the years 1879 1880, wrongfully and without legal authority entered upon Second avenue and constructed an elevated railway, and that thereafter, and about the month of October, 1881, the defendant again entered upon Second avenue and erected an elevated station building of wood, with a wooden stairway descending to the sidewalk of Second avenue.

This structure is alleged to be an unlawful appropriation of plaintiff’s property, and a part of the relief demanded is that the defendants be compelled to take down and remove the elevated railroad structure and station building on Second avenue.

The defendants, in their answer, allege that they erected the elevated railway structure under authority of the laws of the state of New York, with the consent of the city of New York, and that the said structure was constructed according to law.

The plaintiff thus alleged that the station of the defendant was unlawful; the defendants deny that allegation and allege that it was authorized by law, and it was this issue that the court found in favor of the plaintiff.

Wc are also satisfied that the defendants were not authorized to erect a wooden station in any of the streets of New York.

The original authority given to the Gilbert Elevated Railway Co. to build a railroad in Second avenue was never acted on by the company. No railroad was ever built under that charter. In 1875 the act called the rapid transit act was passed. Under the provisions of that act the defendant, the Metropolitan Elevated Railway Co., was authorized to construct in Second avenue a different structure from that authorized by the original charter, and it is upon the authority conferred by that act that the defendants entered upon Second avenue and built the railway structure now operated by them.

It cannot be claimed that the structure as built was authorized by the original charter, and the defendants must found their authority to build and maintain their railroad structure under the act of 1875, if it exists.

It is clear that the defendants acquired no authority under that act to build wooden stations.

The commissioners appointed under the act of 1875 authorized the defendants to build the structure of iron, and provided that the “ stairs and all parts of the stations, except the platform, doors, windows and inside sheathings and except the tread of the stairs, shall be of iron.”

The structure as thus prescribed by the commissioners was expressly accepted by the defendants, and it was this structure and this structure only that defendants were authorized to build in Second avenue. When, therefore, the defendants built and maintained a station of wood in Second avenue, a public street, they did what was unauthorized by law and were guilty of maintaining a public nuisance.

It is well settled in this state that a court of equity will abate a public nuisance at the suit of an individual who sustains thereby special damage different from that sustained by the general public. Callanan v. Gilman, 107 N. Y., 370; 12 N. Y. State Rep., 21.

We think, therefore, that the judgment directing the removal of the unlawful structure was right. The other questions presented in this case have been settled by repeated decisions of this court adversely to the appellant.

We think no error was committed on tke_trial, and that' the judgment should be affirmed, with costs.

Ereedman, J., concurs.  