#### Harry L. Bradley and Others, Respondents, *v.*Degnon Contracting Company and Carpenter & Boxley & Herrick, Inc., Appellants.

Second Department,

May 9, 1913.

Highways — right of contractor to lay tramway over city street — section 25 of the Rapid Transit Act —injunction.

Where in a suit by a number of abutting owners who own the fee of a city street, and whose properties front on both sides thereof, to procure an injunction against the laying and use of a tramway by a contractor with the consent of the Public Service Commission, granted under section 25 of the Rapid Transit Act, it appears that the proposed tramway will be located about fifteen feet distant from the windows of some of the abutting houses, and will be used day and night for a period of about two years for the transportation of dump cars filled with earth, and is very likely to result in serious damage to the abutting owners, such use of the street is not a highway use within the scope of the easement acquired in said street by the public authorities, and an order of the Special Term granting an injunction should be sustained pending the trial of the suit.

Appeal by the defendants, the Degnon Contracting Com- - pany and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of March, 1913.

*238*Herman Aaron,*for the appellants.

*Xenophon P. Huddy [A. Wheeler Palmer*with him on the brief], for the respondents.

*George S. Coleman [Howard A. Butler*with him on the brief], for the Public Service Commission for the First District.

Carr, J.:

The city of New York, through the Public Service Commission of the First District, is constructing a subway along Fourth avenue in the borough of Brooklyn. The work is being done pursuant to a contract between the Public Service Commission and the defendant Degnon Contracting Company. This company has in turn sub-contracted a portion of the work to the defendant Carpenter & Boxley & Herrick, Inc. The contract in question provides that if the city of New York should require any of the excavated material for purposes of its own, it will become the duty of the contractor to deliver such excavated material to said city of New York, provided the cost of said delivery shall not be greater than the expense thereof to the contractor at the time the demand is made upon him or it by the city for such material. It happens that the city of New York has constructed a sea wall along the New York bay front of the Shore road in the borough of Brooklyn, and is desirous of filling in between the present boundary of the Shore road and the sea wall which runs along the bulkhead line for about a mile. It has, therefore, made demand for delivery to it, at the Shore road, of clean earth filling to the extent of 500,000 cubic yards, measured in place. For the purpose of delivering this material to the city of New York, the contractors have made application to the Public Service Commission for permission to construct a tramway from Fourth avenue at Seventy-ninth street along Seventy-ninth street to the Shore road, a distance of about half a mile. The Public Service Commission has granted this permission, and the contractors have begun to lay along Seventy-ninth street a track for the operation of the tramway. This track is about three feet in width, and is composed of steel or iron rails, laid on ties imbedded in the surface of the *239highway. For a part of the distance it is laid on the northerly sidewalk of Seventy-ninth street, then its course runs into the middle of the roadbed of the said street for a block or more, and then it curves to the southerly side of the street and runs along partly on the sidewalk and in the gutter. As it is laid on the northerly sidewalk of Seventy-ninth street it is about fifteen feet distant from the windows of some of the abutting houses. According to the motion papers it is contemplated to use this tramway day and night for a period of eighteen months or two years. It will be used by sending trains of dump cars, filled with earth, down from Seventy-ninth street and Fourth avenue to the Shore road. These trains will descend by their own gravity and will be hauled back empty by steam locomotives.

This action has been brought by a number of abutting owners on Seventy-ninth street whose properties front on both the north and south sides of said street, and who allege that they own the fee of the street, to procure an injunction against the laying and use of said tramway. The defendants urge that they have a lawful right to lay and use this tramway under the authority of section 33 of the Rapid Transit Act (Laws of 1891, chap. 4) as renumbered section 25 and amended by chapter 498 of the Laws of 1909. The material portions of said section which relate to this particular question are in' language as'f olio ws: “For the purpose of facilitating construction, and to diminish the period of occupancy of any street for the transportation of material, any contractor acting under a contract made in pursuance of this act, or of any act supplementary hereto or amendatory hereof, may with the approval of the Public Service Commission, lay upon or over the surface of any street, temporary tramways, to be used only for the removal of excavated materials or the transportation of materials for use in the construction; provided, however, that any such tramway shall be forthwith removed upon the direction of the Public Service Commission; and provided, further, that this provision shall not be construed to authorize the construction or operation of any street railroad or to grant to any corporation, association or individual the right to lay down railroad tracks.” It appears that Seventy-ninth street runs east *240and west and is the only wholly opened street from Fourth avenue to the bay front in that immediate neighborhood. It was originally opened as a public highway in the town of New Utrecht. The proceedings relative to the opening are returned in the record on appeal as part of the answering affidavits of defendants. The town of New Utrecht did not take an absolute fee in the land so opened for a public highway, but simply the ordinary public street or highway easement. *(Washington Cemetery*v. *Prospect Park & C. I. R. R. Co.,*68 N. Y. 591.)

The question now arises whether or not it was in the power of the Legislature to give to the Public Service Commission power to permit the use of such a tramway structure upon this highway without affording compensation to the abutting owners who own the fee of the street and whose legal rights may be damaged by such use. Conceding that the Legislature has power for a public purpose to permit a temporary obstruction of a public highway, the question arises whether this particular situation is one covered by such a power. It seems to us that the use of Seventy-ninth street contemplated by the operation of this particular tramway is not a highway use within the scope of the easement already acquired in said street by the public authorities. It is an additional burden upon the land, and, although it is not permanent in one sense, neither is it temporary. *(Bates*v. *Holbrook,*171 N. Y. 460.) It is quite plain that the contemplated use of Seventy-ninth street is very likely to result in serious damage to the owners of the property abutting thereon. We think the order of the Special Term granting the injunction should be sustained pending a trial of the action. Under section 9, subdivision 2, of the Rapid Transit Act, as amended by chapter 498 of the Laws of 1909, this action may be brought on for trial on short, notice at any term of the court in which it was.tried. The action may be tried very early in May, and the whole question of the rights of the respective parties may be then and there finally adjudicated. The case will be preferred on appeal, and can be disposed of completely before the summer adjournments of the courts. No answer or demurrer appears in the record on appeal, and, according to statement of counsel made *241on the oral argument, no pleading of either kind has been made as yet to the complaint. When the whole facts are before the court at Trial Term, the court may determine whether it will award injunctive relief absolutely, or conditionally, upon the failure of defendants to make such provision as it may direct for the indemnification of the plaintiffs against such damages as may follow. It is, of course, desirable that these great public works should be expedited in every way consistent with the protection of individual rights, but the fact that the public at large may be benefited will not justify the imposition of undue burdens upon a special locality and an invasion of the legal rights of individuals in such localities. *(Matter of Rapid Transit R. R. Comrs.,*197 N. Y. 81.)

Jenks, P. J., Burr, Thomas and Etch, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.