
    Schmitz v. Union El. R. Co. of Brooklyn.
    
      (Supreme Court, General Term, Second Department.
    
    December 13, 1888.)
    Railroad Companies—Elevated Railroads—Chanos of Curve—Injunction.
    Defendant’s elevated road, as proposed to be built, would, in order to pass from1 one street to another, make a considerable curve, at one corner crossing the sidewalk in front of plaintiff’s property, and within a few feet of his store building, and1 cutting off a piece of a house on the other corner. By cutting deeper into this house, the side walk could be saved. Held, that a court of equity would not interf fere, the radius of the curve being the same in either case, and that the fact that the house is owned by the construction company is immaterial.
    Appeal from special term, Kings county.
    This was an action by Peter W. Schmitz against the Union Elevated Railroad of Brooklyn, to compel defendant to change the curve of its proposed road, running from Elatbush avenue to Hudson avenue, in the city of Brooklyn. Plaintiff had a decree, and defendant appeals.
    
      Argued before Barnard, P. J., and Pratt and JDykman, JJ.
    
      Wingate & Gullen, for appellant. Herman W. Schmitz, for respondent.
   Barnard, P. J.

The defendant’s railroad, as proposed, runs from Flat-■bush avenue across Fulton street, to connect with a road on Hudson avenue. The plaintiff owns lands fronting oh the open space at the junction of Flat-■bush avenue and Fulton street, on which is a valuable building. The road is proposed to be built over the sidewalk on the front of this building, not so far as to touch the stone, but still so near as to leave a few feet only between the ■side of a car on the track and the building. The question is whether this can be done. No question is made as to the right of the defendant to build its .road. The charter plan of the defendant’s road is that it shall be built “as far from the house line as the method of construction adopted will permit. ” The point is therefore one of railroad building only. The maps of the part in •question show a peculiar situation. Flatbush avenue is not on a line of continuation with Hudson avenue, but a considerable curve is needed to get from •one avenue to the other. The proposed road, as has been stated, crosses the .sidewalk in front of plaintiff at the junction of Flatbush avenue and Fulton street, and cuts off a piece of a house on the corner of Fulton street and Hudson avenue. The principle of the j udgment is that by cutting deeper into the house the sidewalk can be saved. If this be the fact, there does not seem to be a case made for a court of equity. The radius of the curve being the same, .neither in a public nor private view is any good reason given why a greater .part of a house shall be taken to save a piece of a sidewalk. Compensation for any injury will be made in either case. The fact that the house belongs to a construction company, or even to a railroad company, has no controlling, • or even appreciable, weight in the controversy. It was purchased to build the .road, as projected over' the sidewalk, and after the plan was adopted, and the • question is one to be decided on other grounds than the present ownership of the Hudson avenue corner. The possibility of a lesser radius is out of the ■ case, for the radius is left the same by the judgment as proposed by the company. A lesser one is found practicable, and that is all. The city authori'ties withheld their permit, because the proposed route took a part of the house, and the construction company bought the property to avoid the trouble . as to the permit. The strict law would save the house entirely, and the partial destruction of it to make a better road should not be extended by judg..ment decree beyond the point the owner agrees to destroy it. The right to go • over a sidewalk is given, to make a proper and safe road. Under all the cir- • cumstances of this case, it is not proper that this court should interfere with • the route and method proposed by the defendant. While a general jurisdiction may be assumed, yet the grade and safety of a railroad, especially one elevated • on iron columns, in a'street, should not be lightly interfered with by courts, and the court of appeals intimate a doubt whether under the law a railroad ■cannot fix its own curves and grades. People v. Railroad Co., 74 N. Y. 302. "The judgment should therefore be reversed, and a new trial granted; costs to abide event. All concur.  