
    The People vs. The Third Avenue Railroad Company.
    Where there is no testimony, on the trial, ip support of a material allegation of the complaint, yet the defendant proceeds, without raising any objection on that account, to introduce evidence on his side, the absence of such testimony can not be insisted on, upon appeal.
    The common council of the city of New York has no power to authorize an extension of a city railroad, unless possibly where such extension is really necessary to the enjoyment of a previous valid grant.
    If it be claimed that such extension is a necessary incident to the principal subject of the grant, that is a question of fact, and the burden of proving it rests upon the railroad company.
    Where a judge has found that the extension of a railroad }s a public nuisance, that alone, on a trial, entitles the plaintiffs to relief by injunction, although no damage be shown.
    If the necessity of the extension is not established, the extension is unlawful. It is then the attempted exercise by the company of a valuable franchise, not authorized by law. This, independently of any other considerations, or proof, is a sufficient damage to uphold a decreo for a perpetual injunction.
    APPEAL from a judgment entered at a special term, against the defendant, perpetually enjoining it from laying or operating a railroad along certain streets in the decree mentioned, among which were, from Third avenue through One hundred and Thirtieth street, to the east side of Fourth avenue. .By resolution of the common council, of the city of Hew York, passed December 18, 1862. it was resolved “That Myndert Van Schaick and others have the authority and consent of'the common council, and permission is hereby granted to them to lay a double track for a railroad in the following streets, viz: From a point at■ the intersection of Park Bow and Broadway, near the southwesterly corner of the Park, thence along Park Bow to Chatham street; thence along Chatham street to the Bowery; thence along the Bowery to the Third avenue; and thence, along the Third avenue to the Harlem river, upon certain conditions herein set forth.” The defendant, a railroad corporation organized October 8,1853, under the general railroad act, succeeded by assignment to the rights of the grantees named in 'the resolutions, which were made valid and confirmed by section three of the act of 1854, (Latos of 1854, chap. 140, p. 323,) the Third avenue railroad being in part constructed at the time of the passage of that act. By the act of 1854, it was also provided that upon the consent of a majority in interest of the owners of property upon the streets on which said railroad is to be constructed, the common council of cities may grant authority to construct and establish railroads in such streets. This provision .of the act was repealed by the act of 1860, (Laws of 1860, chap. 10, p. 16,) which provides that “it shall not he lawful hereafter to lay, construct, or operate any railroad in, upon, or along any or either of the streets or avenues of the city of Hew York, whereupon 'such railroad may commence or end, except "under the authority and subject to the regulations and restrictions which the legislature may hereafter grant and provide,” and repeals all acts and parts of acts inconsistent therewith. On the 28th of March, 1864, the common council-of Hew York adopted a resolution with a preamble reciting that “ whereas the public accomodation requires that passengers on the east side -of the city should be carried directly to the Central Park and other points not reached by said (Third avenue) railroad company, .such .company he, and it is hereby authorized and required to extend their tracks through Sixty-sixth street or Seventieth street to the east side of Fifth avenue, with the proper turnouts and switches, and to extend their tracks from Third avenue through Thirty-fourth street to East river with the proper turnouts and switches ; and be it further resolved that for the better accommodation of the-public, and in order to "admit the running of a greater number of cars than can be accommodated at their present termini and switches that the said company be authorized and required to extend their tracks from Chatham street through Chambers street to the east side of Broadway, "and from Third avenue through One Hundred and Thirtieth street to the east side of Fourth avenue, with the proper turnouts and switches, and to lay turnouts and switches in Third avenue at Fourteenth street, Fifth to Seventh street, and in Printing House Square and Tryon Row,” etc. The Third Avenue Railroad Company, assuming to act under these resolutions, proceeded first to lay tracks in One Hundred and Thirtieth street, and had laid double tracks extending in One Hundred and Thirtieth street about four hundred and sixty feet westerly from Third avenue towards the Fourth avenue, and were proceeding towards Fourth avenue, and were using the tracks so laid when this suit was instituted to restrain the use of these tracks, and the further construction of tracks in said street, and under said resolutions, and to have those laid removed: 1st, as unauthorized by law; 2d, as the unlawful exercise of a franchise by the defendants ; and 3d, as a nuisance, causing an obstruction in the highway.
    The defendants claimed below to justify their acts upon two grounds, viz:
    1. That it is a necessary incident to their original grant that they be at liberty to extend their tracks upon other streets than those named in their grant, if the convenience of the company in operating their road, and of the portion of the public riding upon it shall be subserved thereby. This they call “public necessity.”
    2. That inasmuch as their original grant provides that they shall in all respects comply with the directions of the common council in the building of the said railroad, and in any-other matter connected with the regulations of said railroad they are authorized to build the roads named in the. resolutions of 1864,
    The defendant appealed from the whole decree,,.but argued only the question as to the extention from Third to Fourth avenue.
    
      C. N. Potter, for the appellant.
    
      H. H. Anderson, for the plaintiffs and respondents.
   By the Court, Peckham J.

A point is made here that there is no proof that the plaintiffs had any interest in the streets referred to, or in relation to the ownership thereof. The title therein is alleged in the complaint to be in the plaintiffs ; this allegation is denied in the answer, and there is-in truth no testimony in the case on the subject. Yet I do not think the defendant can now raise the point, as it did not raise it at the trial, when the plaintiffs rested. The defendant proceeded without objection, as if a cause of action had been made out, to introduce evidence on its side, so that i'f such proof were otherwise necessary, the cause having been tried upon the assumption of the existence of the fact 'on both sides, I do.not think its absence can be now insisted on as an objection.

The defendant objects to the injunction on several grounds.

First. It is insisted that’the common council had power to direct, the occupation of One Hundred and Thirtieth street by the defendant, because the .occupation is temporary, allows no separate business, nor any compensation for business done on it.

I do not perceive that either of these grounds. exists in fact. There is nothing in the resolution of the common council declaring this occupation to be- temporary, or in any respect differing from any other part of the defendant’s road. There is no reason for its being otherwise than permanent—as permanent as the defendant’s existence. But how long is it to continue ? A week, a month, or a year, or during the pleasure of the common council ? The difficulty is, that it has no authority to be there at all—not for a day. The statute is peremptory that it shall not be lawful “to lay, construct, or operate” it at all, without legislative authority. (Laws of 1860, p. 16.)

Again, there is no prohibition against its receiving fare on this extension or branch of its road, only the defendant is to “operate said extensions in connection with the rest of their line, at the same .rate of fare fixed by their grant.” At the same rate of fare — not without any fare. True, it allows no independent, separate business, but it allows an extension of its general business.

Then, it is urged that this extension was a necessary incident to the principal subject of the grant, whicli is conceded to have been legal. This .may well be true, but it is a question of fact, and the burden of its proof rests upon the defendant. The judge, impliedly at least, has found against the defendant as to this fact. He finds the fact set forth in the complaint to be true. In the complaint it is alleged that this» extension is without authority, and that it is a public nuisance. It could be neither, if it were a necessary incident to the principal grant. In looking into the testimony, I do not find it proved that this extension is" necessary to the enjoyment of the principal grant. The testimony' of the witness "Darling, who alone speaks on this subject shows that the defendant has “lately acquired lots in One Hundred and' Thirtieth street, near the Fourth avenue, intending to erect thereon stables,” &c. made necessary by the increase of travel. To these lands there is no way of approach except through this street. And the judge finds, as a fact, that “the defendant’s cars can not reach their depot grounds on the north side of One Hundred and Thirtieth street, without laying their tracks through One Hundred and Thirtieth street.” But there is no evidence showing that the defendant’s stables or depot were necessarily located on the north side of One Hundred and Thirtieth street, or near to the Fourth avenue, or that they might not as well have been located near to the Third avenue, or at the termination of its track. Upon like grounds, the defendant might extend its road to the end of Broadway, and go nearly the length of that street to reach stables it had chosen to locate there.

It is not necessary, probably, that the defendant should have shown an impossibility in the way of its getting a depot or stables at a nearer point; very great .and unreasonable comparative expense at any other point might' perhaps authorize it to. go near to the Fourth avenue (See Pettingill. v. Porter, 8 Allen, Mass. R.) But it should be quite clear that under color of such necessity, the defendant was not extending its line of travel for its own profit. . On any such extension as an incident, it is clear that the defendant could carry no passengers for hire. That, would be the exercise of a franchise not granted over such a line.

I do not think the case of Seymour v. The Can. and Niag. Falls R. R. Co., (25 Barb. 310,) aids the defendant. It is not necessary to refer to it particularly. If it could be held in any way to be at war with the doctrine herein declared, then with all proper respect I should regard it as unsound.

Again it is insisted that this remedy by injunction should not be granted, as ho damage had been shown. The Judge has already found that this extension is a public nuisance. That alone, on a trial, not necessarily on an application before answer, entitles the plaintiffs to this relief. The authority referred to by the defendant’s counsel (2 Story’s Eq. Juris. § 924,) establishes that doctrine, or at least does not conflict with it.

The complaint charges that the defendant is constructing and is about to operate this extension for hire; that it is assuming to act under the resolution of the common council, which purports to grant that right: Tile answer does not deny this purpose: True, it insists that the defendant is going through One Hundred and Thirtieth street for its otvii private accommodation, to reach its depot and stables, but it does not deny its purpose to operate the road there for hire.

[New York General Term,

September 19, 1865.

We have already'seen that the necessity of this extension is not established; it is therefore unlawful. It is then plainly the attempted exercise by this defendant of a valuable franchise not authorized by law.

This, independently of any other considerations or proof, is a sufficient damage to uphold this decree. The judgment should be affirmed, with costs.

Ingraham, Peckham and Leonard, Justices.]  