
    THE PEOPLE and the BROADWAY RAILROAD COMPANY against THE HUDSON RIVER RAILROAD COMPANY.
    
      New York Common Pleas; General Term,
    
      December, 1866.
    In junction:—Raileoad Charter
    Under the charter of the Hudson Biver Bailrbad Company {Laws of 1846, 272), which authorizes the company to construct a road with such branches • for depot and station accommodations as may bo required, and by a subsequent provision declares that the road in the city of New York may be located on or westerly of Eighth avenue or Hudson street, but shall not infringe on the privileges of the Harlem Bailroad by running nearer to it than the Eighth avenue and Hudson street—the company are not entitled to continue the road or run a branch from the end of Hudson street turning easterly to Broadway.
    An injunction lies to prevent such an extension of the track.
    Appeal from an order granting an injunction.
    The facts appear in the opinion of the Court.
    
      The resolution passed by the board of aldermen and the board of councilmen of the city of Hew York, December 20th, 1864, and approved by 'the mayor the same day, was as follows: “ Resolved, That the Hudson Biver Bailroad Company be and they are hereby permitted to extend their tracks from Chambers street through College Place and Warren street to Broadway, for the use of their city cars, and to lay a side track in Hudson street from Canal to Chambers street, and turn-outs in front of their depot property in Twenty-ninth and Thirtieth streets, and also to extend their Eleventh Avenue tracks to connect with their Tenth Avenue tracks through Fourteenth street.”
    
      Thomas M. North and Charles A. Rapallo, for appellants.
    
      J. H. Martindale, Attorney General, A. R. Lawrence, Jr., and H. W. Robinson, for the respondents. I. The defendants, the mayor, aldermen, and commonalty of the city of Hew York-have no power, either by resolution or ordinan , to grant to a corporation or an association of persons the right to maintain and construct a railway in one of the streets, for the transportation of passengers for private gain, and a resolution of the common council granting such a right, is void (Milhau v. Sharp, 27 N. Y., 611; Davis v. The Mayor, &c. 14 N. Y., 506; People v. Kerr, 27 N. Y., 188). It is clear, then, that the resolution of December 20, 1864, is void, unless some special statutory authority can be found by which the Legislature have—as far a‘s the defendants, the Hudson Biver Bailroad Company, are concerned—delegated to the corporation of the city such right.
    II. The only special statute which affects this case is the act of May 12,1846, entitled “ An Act to authorize the construciion of a railroad from Hew York to Albany (Laws of 1846, p. 274). From the statute it is obvious that the defendants, the Hudson Biver Bailroad Company are prohibited ' from locating their railroad on any of the streets or avenues which are eastward of the Eighth avenue or Hudson street—that they cannot make even this location without the permission of the corporation, and that to make the prohibition still more imperative, the Legislature haye directed that they should not run their track nearer to the track of the Harlem company than the Eighth avenue and Hudson street.
    Again : the corporation of the city' are only authorized to give a permission to the railroad company to run on streets which include or are westerly of the Eighth avenue or Hudson street. To that extent, but no further, are the powers of the corporation enlarged. Without the action of the Legislature they would have had no power over the subject (cases supra). It appears from the complaint that College Place and Warren street and Broadway lie south-easterly or easterly of the line of the Eighth avenue and Hudson street, and nearer to the track of the Harlem company than the Eighth avenue and Hudson street (Ib.) The resolution of December 20, 1864, is therefore simply void.
    III. The proviso contained in the fifth section of the act of - 1848 (Laws of 1848, p. 43), does not aid the defendants, nor affect the question presented by the papers in this case, because the location of a track easterly of the Eighth avenue or Hudson street would not be lawful with or without the assent of the corporation of the city of New York.
    IY. Hie resolution is also void because it is in violation of the charter of the city of New York, and of the acts of the Legislature of 1854 and 1860, referred to in the complaint (Laws of 1850, p. 323; Laws of 1860, p. 16).
    V. The railroad tracks laid down by the defendants, the Hudson River Railroad Company, being an unauthorized obstruction of a public street or highway, constitute a public nuisance (Davis v. The Mayor, &c. of New York, 14 N. Y., p. 506). As such, their continuance can be restrained, and their removal ordered at the suit of the people (Attorney General v. Cohoes Co., 6 Paige, 133; People v. New York & Harlem R. Co., 26 How., 53; Davis v. The Mayor, &c., 14 N. Y., 526, and cases cited).
    VI. The complaint shows that the tracks in question are specially injurious to the plaintiff, the Broadway and Seventh Avenue Railroad Company—that they interfere with the prosecution of their business, and affect their gains and emoluments. Those plaintiffs are therefore entitled to the relief which they ask in this action (Milhau v. Sharp, 27 N. Y, 612; Doolittle v. Supervisors of Broome, 18 N. Y., 160; Corning v. Lawrence, 6 Johns. Ch., 49).
    
      VII. The pretence set 1 > that ■ the branch road constructed from the west side of Church street east to Broadway, was by way of station accommodation, is a mere apology for a violation of a prohibition of the statute. Ho necessity existed, even if the station accommodations were required, of running tracks in that direction ■ instead of running them to the west, and keeping within the letter and plain intent of the statute. The necessity which would justify such a proceeding as within the intent of the statute, though contrary to its letter, must be extreme-and overwhelming, and the defendants presented no such case.
   By the Court.—Daly, E. J.

An injunction was granted in this case restraining the defendants from extending the track of their railroad through Warren street to Broadway.

It is very clear that the defendants have no authority to do so unless it-is conferred up ou them by their act of incorporation (Milhau v. Sharp, 27 N. Y., 612; Laws of N. Y., 1864; § 323; Laws of N. Y, 1860, § 16).

By the first section of the act (Laws of N. Y, 1846, p. 272) tney are authorized to construct a railroad between the cities of Albany and Hew York, commencing in the city of Hew York, the consent of the city being obtained, with power to construct such branch or branches for depot and station accommodations as may be required for the business of the road, and the fourth section of the act declares that the road may be located on any of the streets or avenues of the city of Hew York westerly of and including the Eighth avenue, and on or westerly of Hudson street, provide f the assent of the corporation of the city be first obtained for such location ; but that the defendants-shall not infringe upon the rights of privileges of the Harlem Bailroad Company by using any track or line of the road contiguous to or alongside of their track, nor by running nearer to it on the Island of Hew York than the Eighth avenue and Hudson street.

The power to construct branches for depot or station accommodation is, as respects the city of Hew York, limited to the space designated by the act, as that within which the railroad may be located in the streets or avenues of the city, that is, on or westerly of the Eighth avenue or Hudson street, and the limit of Hudson street is, I think, fairly designated by the act as the point of commencement, or it may be that branches may be extended for depot or station accommodation beyond that, westerly of such a line as would exist if Hudson street were continued on the same parallel as at present to the river.

That this is the fair construction of the act, and was the obvious intention of the .Legislature, I entertain no doubt. The construction for which the defendants contend would entitle them, whenever they thought their business required it, to'run branches through any part' of the city below Chambers street, the narrowest, the most crowded with vehicles, and the most essential for business purposes of any part of the city, which could never have been, in my judgment, the design of the Legislature in the enactment of this provision. Nor does - the limitation of the defendants’ route in the city depend upon the consent of the Harlem Railroad. The prohibition against running nearer to that road than the Eighth avenue or Hudson street is merely re-affirmatory of the previous clause in the act prescribing the limitation of the defendants’ route. The complaint avers that the track laid down by the defendants without authority interferes with the track of the plaintiffs, and affects their interest, which is sufficient to entitle them to come into a court of equity and ask for the injunction.

The injunction was properly granted, and the order made at the special term should be affirmed.

Ordered accordingly. 
      
       Present, Daly, Beady, and Cardozo, JJ.
     