
    The Town of Eastchester, Plaintiff, v. The New York, Westchester and Connecticut Traction Co., Defendant.
    (Supreme Court, Westchester Special Term,
    February, 1900.)
    Highway Law — Town may sue traction company for tearing up highway and may compel restoration of it — Complaint — Demurrer.
    A town may, under the Highway Law (Laws of 1890, chap. 568, § 15), maintain an action to restrain a traction company from tearing up and obstructing its highways without lawful authority and compel the company to restore, to its former condition, a portion of the highway which had been torn up by it.
    Where the complaint in such an action charges an unlawful interference with a town highway, it is not made demurrable by the fact that the pleader has chosen to anticipate an affirmative defense growing out of a prior consent of the town highway commissioner upon which the company had acted, but which the town claimed had been forfeited before any construction had been attempted under it.
    Action brought to restrain the defendant from constructing a street railway upon the White Plains road in the defendant town. It was brought by the commissioner of highways, in the name of the town, under section 15 of the Highway Law. The defendant claimed the right to construct such road under a consent which had been granted to the Horth Mt. Vernon Railway Company, in May, 1896, which consent contained a provision to the, effect that the road should he constructed by the 1st day of January, 1897, or that the consent should then become null and void, without any action or proceeding at law or otherwise. In 1898, a mortgage, given by the FTorth Mt. Vernon Railway Company to secure certain bonds, was foreclosed, and upon the foreclosure sale these francMses and properties were sold to one Halsey, who subsequently conveyed them to the defendant. The defendant claimed the right to construct the railway under such consent, and under such claim had entered upon the highway and begun the construction of the road. Thereupon, in November last, this action was commenced to enjoin the defendant from constructing such railway, and to compel it .to remove the track already laid by it and to restore' the highway to its former condition. The defendant interposed a demurrer to the complaint upon various grounds, but chiefly upon the ground that the facts alleged in the complaint did not establish any cause of action in the plaintiff; in other words, that such an action as this could not be brought in the name of the town under section 15 of the Highway Law.
    Isaac N. Mills, for plaintiff.
    James C. Church, for defendant.
   Smith, Wilmot M., J.

The ‘defendant insists that this action is brought to annul the consent given by highway commissioner of the plaintiff on the ground that the same has been forfeited and that the plaintiff has not legal capacity to maintain such an action. In my opinion, sufficient facts are set forth in the complaint to make out a cause of action to enjoin the defendant from tearing up and obstructing the highways of the town without lawful authority so to do, and to compel it to restore a portion of the highway which has been torn up to its former condition. The allegations of the complaint which set forth facts and circumstances intended to negative any right or authority of the defendant to enter upon the highway in question are unnecessary and superfluous. A simple allegation that the defendant had no lawful authority for its action would have been sufficient. But because the plaintiff has chosen to go further and anticipate an affirmative defense in its complaint does not change the real purpose of the action, viz., to enjoin an unauthorized interference with the public highways of the town and a restoration of a portion thereof which has been disturbed to its former condition.

Because defendant’s contention as to the nature of the action cannot be sustained, the leading case relied upon to support the demurrer (Moore v. Brooklyn City R. R. Co., 108 N. Y. 98), is clearly not applicable. If the canse of action is one to enjoin an unlawful interference with a public highway, the plaintiff has legal capacity to sue. Highway Law, § 15. And can maintain an action for equitable relief “ to sustain the rights of the public in and to any highway in the town.” Town of Windsor v. D. & H. C. Co., 92 Hun, 127.

Demurrer overruled, with leave to defendant to answer within twenty days on payment of costs.

Demurrer overruled, with leave to answer on payment of costs.  