
    Peter W. Schmitz, Resp’t, v. The Union Elevated Railroad Company of Brooklyn, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1888.)
    
    Elevated railroads—Change op curve.
    The Union Elevated Railroad, as proposed to be built, would, in order to pass from 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, and cutting off a piece of a house on the other corner. By cutting deeper into this house the sidewalk could be saved. Held, that the radius of the curve being the same in either case, a court of equity would not interfere; the fact that the house belongs to a construction company; or even to a railroad company,' is immaterial.
    Appeal from a decree of special term, Kings county, requiring the defendant to change the curve of its elevated railroad running from Platbush to Hudson avenue.
    
      Wingate & Cullen, for app’lt; Herman W. Schmitz, for resp’t.
   Barnard, P. J.

The defendants’ railroad, as proposed, runs from Platbush avenue across Pulton street to connect with a road on Hudson avenue.. The plaintiff owns lands fronting on the open space at the junction of Platbush avenue and Fulton street on which is a valuable building. The road is proposed to be built over the sidewalk on the rear 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. Uo question is made as to the right of the defendant to build its road. The charter plan of the defendants’ 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 judgment is, that by cutting deeper into the house the sidewalk can be saved. If this be the fact, thére 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 or 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 authorities 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 judgment decree beyond the point the owner agrees to destoy it.

The right to go over a sidewalk is given to make a proper and safe road. Under all the circumstances of this case, it is not proper that this court should interfere with the route and method proposed by the defendants. "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. N. Y. C. and H. R. R. Co., 74 N. Y., 302.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Pratt and Dykman, JJ., concur.  