
    In the Matter of The Southern Boulevard Railroad Company.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    Discontinuance —Eminent domain.
    In 1890 a railroad company commenced proceedings to acquire an easement upon a street on which one Spofford had owned property. In 1888 the respresentatives of Spofford brought an action to restrain the company from constructing the road and obtained a preliminary injunction. This was vacated upon a stipulation that the company should vigorously prosecute its proceedings to acquire a right to operate the road and also should give an undertaking to indemnify the plaintiffs in that action. Upon an application by the company to discontinue the present proceedings, Held, that, it must be refused, as a discontinuance would prejudice the rights of Spofford’s representatives under the undertaking and was in violation of the stipulation to vigorously prosecute the proceedings to acquire the right to operate the road.
    Appeal from order denying application to discontinue the proceedings herein.
    
      M Lauterbach, for app’lt; W. P. Williams, for resp’ts.
   Van Brunt, P. J.—In

January, 1890, the appellant commenced this proceeding to acquire the easement to construct and maintain a street railroad in the city of Hew York along a portion of the Southern Boulevard in which Paul Spofford, now deceased, had an interest. His devisees and their legal representatives', duly appeared and in February an order was entered appointing: commissioners to condemn the easement. In April the commissioners made an award in which they awarded damages to the representatives of Spofford to the amount of six cents, and in May an order was made confirming the award. On appeal to the general term this order was reversed and the appraisal vacated, and a new appraisal directed to be had before the same commissioners.

An appeal was taken to the court of appeals from the order of ’ the general term, which was dismissed in June, 1891. In October,. 1891, the appellant piade application for an order discontinuing-the proceedings upon the ground that § 18 of chapter 140 of the-Laws of 1850 provides that the second appraisal when confirmed, by the special term shall be final, and it, therefore, precludes the-possibility on the part of the railroad company of ever having-the question of the excessiveness of the award reviewed by the. general term.

This application was denied, and from the order thereupon entered this appeal is taken.

It appears from the papers presented upon this appeal that in-August, 1888, an action wherein the representatives of Spofford. were plaintiffs was commenced against the appellant to restrain the construction of the railway upon the property affected by this proceeding, in which action a preliminary injunction was-granted and was only vacated upon the condition that the. appellant should give a stipulation to vigorously prosecute the proceedings to acquire the right to construct and operate the street sur- ■ face railroad, and also give an undertaking in the sum of $5,500 to indemnify the plaintiffs against any loss which they might sustain by reason of the vacation of the injunction order; the sum awarded.in the condemnation proceedings for the value of thepIaintiffs, interest in the land taken with interest thereon from the date of the award to be taken as part of the damages that the-plaintiffs might recover upon the undertaking.

It is urged that rights under the undertaking, which has been, referred to, would be imperilled if' this proceeding Were discontinued, as it would probably not be held that its condition extended to other proceedings than the condemnation proceedings, therein referred to, which are the proceedings which it is now sought to discontinue; and also that such discontinuance would be a violation of the terms of the stipulation above mentioned.

It is urged upon the part of the appellant that the-petitioner has an absolute right to discontinue, and even if it has not, as matter of right, nevertheless the equity of its application should induce the court to confer such right upon it.

Without considering the question as to whether the petitioner-may discontinue its proceeding as matter of right, it seems to be-sufficient now to say that its discontinuance" would certainly imperil the rights of the respondents under the undertaking which has been given, and would seem to be a violation of the stipula- • tian-which was given as a condition of vacating the injunction referred to.

It is no answer to this position to say that if that stipulation was violated the remedy for the respondents was the reinstatement of the injunction. The appellant has been pursuing these condemnation proceedings apparently in consequence of the giving of that stipulation, and the respondents have been relying upon its terms, and the protection which the undertaking gave to them. They, therefore, have a right to claim that these proceedings shall be continued in such a manner as will protect them in their undertaking, and also in a manner which conforms to the spirit of the injunction. They are to be vigorously prosecuted, which evidently means with the utmost diligence, and the discontinuance of these proceedings, and the commencement of new ones, would deprive the respondents of their rights under the undertaking, and would be a palpable violation of the spirit of the stipulation.

It seems to us, therefore, that even if, under ordinary circumstances, the appellant might • have an absolute right to discontinue, yet the respondents having acquired rights which would thereby be imperilled, such absolute right was voluntarily relinquished by the appellant.

Upon the whole case, we are of opinion that the court was right in refusing to permit the discontinuance, and that the appellant should be compelled to continue the proceeding for the purpose of condemnation.

The order appealed from should be affirmed, with costs.

Patterson and Ingraham, JJ., concur.  