
    Charles H. Heimburg, Respondent, v. The Manhattan Railway Company and The New York Elevated Railroad Company, Appellants, Impleaded with Louis Engelhardt, Respondent.
    
      Elemted railroad — consent of an abutting owner, to its construction, expi-essing a preference as to its location—proof of fraud.
    
    The written consent of a property owner to the construction and operation of an elevated railroad, in front of his premises, through and along an avenue in New York' city, in which he has an easement only, signed by him and delivered to the elevated railroad company before it commences the construction of the road, cannot be considered as qualified by the addition to the signature of the words “ If the road must be built on Third avenue I prefer the middle,” and constitutes a bar to an action in equity brought by the owner to restrain the operation .and maintenance of the road.
    What proof is insufficient to show that the consent was obtained by fraud, considered.
    Appeal by the defendants, The Manhattan Railway Company and The New York Elevated Railroad Company, from a judgment of the Supreme Court- in favor of the plaintiff and the defendant Louis Engelhardt, entered in the office of the clerk of the county of New York on the 17th day of November, 1896, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Henry A. Forster and John A. Weekes, Jr., for the appellants.
    
      William H. Godden and Julien T. Davies, for the respondents.'
   Ingraham, J.:

. We think that the instrument executed by Heiniburg, the plaintiff, consenting to the construction and operation of an elevated railroad over, through and along Third avenue in front of the plaintiff’s premises, .was a good defense to this action, and that upon that ground the: complaint should have been dismissed. The plaintiff is not the owner of the fee of the street in front of his premises upon which the railroad is constructed. His interest in the street, is that of an easement, and it is this easement that the defendants have appropriated; and to restrain the continuance of such appropriation this action is brought. As an answer to such an action, the defendants produce an instrument signed by the plaintiff by which he consented to the construction and operation of an elevated railroad over, through and along said avenue, by the. defendant corporation. This consent, so executed by the plaintiff, the owner of the property: abutting upon the street, was delivered to the defendants before they commenced the construction of the road.

The effect of the execution by-the owner of property of such a. consent has been presented to the court of last resort in. two- cases ; one, Herzog v. New York Elevated R. R. Co., reported in this court in 76 Hun, 486,. and affirmed by the Court of Appeals without opinion in 151 New York, 665. In that case, the court, at General Term, in affirming a judgment dismissing the complaint, said : “ The road, the operation of which this action is brought to enjoin, was built by and with the consent of' the owners of the premises in question ; and it would be inequitable now to permit a subsequent owner buying said premises with knowledge of such consent to enjoin the operation of the road in violation of its terms. Even if an action for damage might be sustained, a court of equity would, not, .under such circumstances, intervene, and by injunction restrain the operation of the defendant’s road.” The same question was! before the Court of Appeals' in the case of White v. M. R. Co.. (139 N. Y. 19). In that case the owner of the property executed a consent almost identical with that executed by this plaintiff, and it' was there held that the execution of such a consent authorized the defendant to construct the road; and was a good defense to an action brought to restrain the construction or maintenance- of the road which was built in compliance with such consent. All of the reasons urged upon us here why such a consent should not have this effect were presented to and discussed by the Court of Appéals in the White case and decided against the plaintiff.

In this case, however, there was an effort made to snow that the. signature of thé plaintiff was a conditional assent, because he added to his signature the words: If the road must be on Third avenue-I prefer the middle.” There was nothing in the addition of these words to his signature to show that he qualified his assent to this instrument in any way. The instrument, by its terms,.consented to the erection of the road on Third avenue in front of his premises. He expressed in executing this instrument his wish as to the position in the street in which' the road should be built, and so far as appears in the evidence, the road was built in the middle of the street and not upon the sidewalk. Whether or not this consent would be given its effect if the road had been built upon the sidewalk in violation of this request of the plaintiff, it is not necessary for us to determine.

The plaintiff also seems to rely upon some vague claim that there was something fraudulent in his being induced to sign this consent. • He says: When these people come for the consent to give away privileges I was induced and I was in a manner overpersuaded.” It has not yet been held that because a person was induced and overpersuaded to sign an instrument, it is for that reason fraudulent and not to be enforced. But he also says that he was given to understand “ by the party who brought this to get the consent, that this consent was not necessary; that they had already the sanction of the legislative and city authorities; that it was merely to give our views whether we were in favor of a sidewalk or a centre, road.” This statement was entirely true. The defendants had the authority of the Legislature and the city to build this road. They also obtained the right; notwithstanding a refusal of the property owners to give their consent. So it is quite true that the assent of the plaintiff or the other property owners was not necessary to enable the defendants to build the • road. The plaintiff, therefore, was not at all deceived as to the effect of his assent to this agreement, or by the statement that the agreement, which in express terms authorized the defendants to construct the road in the street, was not necessary; but was only to get the views of the property owners as to whether the road should be constructed on the sidewalk or in the street. Assuming that this was so, and that this plaintiff, when he signed this consent, thought that he was signing a consent to do an act which the defendants had a lawful right to do, but that the defendants, wishing to meet the views of the property owners adjacent upon the street, asked them for their consent to build the road, with an indication as to just where the road should be. built, and to accomplish that result the plaintiff signed the consent to build the road, indicating at the same time his preference, I am at an entire loss to see where there is any evidence of fraud, or any evidence from which a court could refuse to give to the instrument its legal significance. The plaintiff does not pretend that he is incapable of reading or understanding the English language, that he is -an idiot or an incompetent person, or that he did not understand what this instrument was. He does say that he was overpersuaded, and - it is quite likely that if he had known that the signing of this instrument would prevent him from recovering a judgment against the road, he would have refused to be persuaded at all. But he signed this consent voluntarily upon statements which were not fraudulent and did not misrepresent the existence of a single fact; arid the legal effect of that consent is to take away from him the right to maintain an action in equity to restrain the operation and maintenance of the road. ■ ■

There is nothing in the record to justify us.in refusing to give to that consent its legal effect, and such legal effect is to prevent the plaititiff from maintaining this action.

. Without discussing the other questions presented, or expressing an opinion upon them, for the reasons stated, we think the judgment should be reversed and the complaint dismissed, with costs in this court and the court below.

Rumsey, O’Brien and.Parker, JJ., concurred; Patterson, J.„ dissented.

Judgment reversed and complaint dismissed,, with costs in this court and. in the court below.  