
    Clarence R. Conger, Individually and as Trustee, etc., et al., App’lts, v. The N. Y., West Shore & Buffalo R. R. Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 18, 1890.)
    
    1. Specific performance—When will not be decreed.
    The specific performance of a contract is discretionary with the court,, and performance will not be decreed where it will result in groat hardship and injustice to one party, without any consideration, gain or utility to the other, or in cases where the public interest would be prejudiced, thereby.
    2. Same—Agreement to locate station.
    Where a railroad has agreed to locate a station at a certain point and stop a certain number of trains daily, the fact that such point is located upon the side of "a steep mountain, in a sparsely sel tied district; is approached by a steep grade; that a passenger station with an approach thereat could be constructed only at a considerable expense, and that public travel will be delayed by the stoppage of the trains, and the public convenience will not be promoted, the court may properly refuse to decree: specific performance and remand plaintiff to his action for damages.
    Appeal from a judgment of the general term of the second department, affirming a judgment entered upon the decision of the: special term.
    
      Clarence R. Conger, for app’lt; Calvin Frost, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 392.
    
   Haight, J.

This action was brought to compel a specific performance of a contract. The Jersey City & Albany Railway Company was incorporated for the purpose of constructing and operating a railroad from Fort Montgomery, in the county of Orange,, to a point in the Hudson river opposite to the city of Hew York.. As such incorporation it entered into a written agreement with one Catherine A. Hedges, the plaintiff’s grantor, in and by the-terms of which she gave to the company a right of way across her premises in Rockland county upon certain conditions, one of which was that the company should locate a station in the gorge commonly known as the Long Clove, and stop thereat five express-trains each way daily. Subsequently the Jersey City and Albany Railway Company was consolidated with the Horth River Railway Company, under the name of the Horth River Railroad Company, and that company was consolidated with the defendant, which was incorporated for the purpose of constructing and operating a railroad from the Hew Jersey state line through the state of Hew York to the city of Buffalo.

The defendant has entered upon the lands of the said Catherine-A. Hedges, and constructed its roadbed across the same, but it. has not constructed any station thereon in the Long Clove-Gorge or stopped any of its express trains thereat.

The trial court has found as facts that a suitable station for the-accommodation of passengers and the receipt and delivery of freight at the Long Clove Gorge could be built by the defendant only at a considerable expense because of the nature of the ground at that point; that the place where the plaintiffs demand that the station be located is near the month of a long tunnel and at a sharp curve in the defendant’s railroad, upon the side of a steep mountain approached by steep grades in both directions; that it is sparsely settled, and if a station were established there it would be of no use to the public; that very little if any benefit-would result to the plaintiffs by the erection of a station or the stoppage of the trains thereat; that the public convenience would not be promoted, but the public travel would be delayed; and, as a conclusion of law, that a specific enforcement of the agreement would work hardship and injustice to the defendant, and such enforcement will not subserve the ends of justice; that specific performance should be denied, and the plaintiffs left to their action for damages for a breach of the contract. The evidence sustains the findings of the trial court, which have been affirmed by the .general term.

The questions for our consideration are, therefore, narrowed to a determination as to whether the conclusions of law reached are justified under the findings of fact.

It has been the well settled doctrine of this court that the specific performance of a contract is discretionary with the court, and that performance will not be decreed where it.will result in great hardship and injustice to one party, without any consideration, gain or utility to the other, or in case where the public interest would be prejudiced thereby. Clarke v. The R. L. & N. F. R. Co., 18 Barb., 350 ; The Trustees of Columbia College v. Thacker, 87 N. Y., 311-317; Murdfeldt v. The N. Y., W. S. & B. R. Co., 102 id., 703; 2 N. Y. State Rep., 444; Day v. Hunt, 112 N. Y., 191-195; 20 N. Y. State Rep., 233.

As we have seen, the Long Clove Gorge is located upon the side of a steep mountain, in a sparsely settled district, and is approached by a steep grade, and that a passenger station with an approach thereat could be constructed only at a considerable expense. These are reasons worthy of consideration, but if there were no others the trial court might not have deemed them sufficient to refuse specific performance. But they are followed by another which gives additional force and weight, and that is, that the public travel will be delayed by the stoppage of the trains and that the public convenience will not be promoted.

The defendant is a corporation organized under the laws of the state, and is a common carrier of passengers and freight; its duties are largely of a public nature, and it is bound to so run its trains and operate its road as to promote the public interest and convenience, and in view of the fact that but little if any benefit would result to the plaintiffs by the erection of a station and the stoppage of trains thereat, as found by the trial court, it appears to us that that court properly refused to decree specific performance and remanded the plaintiff to his action for damages.

The judgment should be affirmed, with costs.

All concur, except Brown, J., not sitting.  