
    John Trelford, Appellant, v. The Coney Island and Brooklyn Railroad Company, Respondent. William Lakeland, Appellant and Respondent, v. Same, Respondent and Appellant.
    
      Bailroad — á temporary abandonment aoesnot work a forfeiture— railroad easements not inconsistent with a highway— consent of the State-Bailroad Commissioners necessary to the use of electric power.
    
    The fact that a railroad corporation removes its tracks from and abandons for a certain period a part of its road does not determine or forfeit its franchise, so as to prevent it from relaying its tracks upon that part of its road.
    The People of the State of New York can alone take advantage of such an abandonment as a causé of forfeiture. A railroad easement and franchise are not necessarily inconsistent with, the easement of a public highway. .
    A street railroad corporation cannot use electric power to operate its railroad' except with the consent of the Railroad Commissioners of the State.
    Appeal by John Trelford, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the Rings ■ County Special Term and entered in the office of the clerk of the county of Rings on the 28th day of February, 1896, denying his motion to continue an injunction pendente lite, and dissolving said injunction.
    Appeal by William Lakeland, the plaintiff in the second above-entitled action, from so much of an order ■ of the Supreme Court, made at the Rings- County Special Term and entered in the office of the clerk of the county of Rings on the 28th day of February, 1896, as permits the defendant to construct and operate a"single- ■ track electric trolley road upon that portion of Neptune avenue in which it formerly maintained a single-track road.
    Appeal by the defendant, The Coney Island and Brooklyn Railroad Company,, from so miich of said order made' in .the second' above-entitled action as restricts it to the construction and operation of a single-track electric trolley road upon that portion of Neptune avenue in which it formerly maintained a single-track railroad. •
    The decision of the Appellate Division, in reference to which this motion is made, is reported in 5 App. Div. 464.
    
      James C. Church, for the plaintiffs.
    
      William N. Dykman, for the defendant.
   Per Curiam :

When this case was last before us we did not overlook the questions discussed by the appellant on the present motion for a reargument, though as to two of such questions we regarded them as settled by concessions of the respective counsel made on the argument. In our opinion the removal by the defendant of its tracks from a part of the Coney Island Plank Road, and its abandonment of that part of its road for a period, did not determine or forfeit the defendant’s franchise over such road, so as to prevent the defendant from relaying its tracks thereon. Such abandonment only operated as a cause of f orf eiture, of which the People alone could take advantage, as was done in the case of The People v. Broadway Railroad Co. (126 N. Y. 29). The principle that an abutter has sufficient special interest in a street to restrain an unlawful structure therein, has no application to this case, for the defendant’s railroad is a lawful structure till the State claims a forfeiture. The proceeding to open Neptune avenue did not and could not affect the defendant’s railroad franchise, whether an award was made for it or not. The opening proceeding was to acquire all. property rights necessary to vest in the people of the State or the city of Brooklyn the easement of a public highway in the land taken. The railroad easement and franchise was not inconsistent, but consistent, with the public easement, and there was no authority given by law to condemn it.

It was conceded by counsel for the defendant, and properly, in our opinion, that the defendant could not use electric power in the operation of its railroad without the consent of the Railroad Commissioners. We also think that it must be confined, in relaying its road, to the location of the old Coney Island road; though we do Hot say that by the consent of the local authorities such location may not be changed to the new part of Neptune avenue. Such change would not be the grant of a new franchise.

The injunction should, therefore, be not wholly vacated, but modified so as to restrain the defendant from operating its road with .electricity, except with the consent of the Railroad Commissioners, or on any part of Neptune avenue not lying within the limits of the old Coney Island road, except by the consent of the local authorities.

All concurred.

Motion for reargument denied, without costs. Order hitherto granted by this court vacated and orders appealed from modified so as to restrain the defendant from operating its road with electricity, except on the consent of the Railroad Commissioners, or on any part of Neptune avenue not lying within the limits of the Coney Island road, except with the consent of the local authorities. In other respects injunctions dissolved.  