#### John Gallagher, Plaintiff, *v.*James P. Keating et al., Defendants.

(Supreme Court, Kings Special Term,

April, 1899.)

1. Taxpayer’s action, to restrain a waste of public property — Bight of a steam surface and of an elevated road to connect by an incline.

A steam surface railroad incorporated in 1834 and in possession since 1877, as lessee, of a strip of land in the center of an avenue, which strip the city of. Brooklyn had more than forty years ago granted to be used for railroad tracks and turnouts, has a right to construct, upon the strip and upon its tracks and upon its own private property, a viaduct and incline in order to carry out a traffic agreement and connect its tracks with those of an elevated railroad formed by a consolidation of two elevated railroads, created respectively under chapter 585 of the Laws of 1874 and chapter 606 of the Laws of 1875, although the consolidated railroad does not cross the tracks of the steam railroad; and a mere taxpayer, suing-under chapter 301 of the Laws of 1892, who alleges neither fraud, collusion nor dishonesty, cannot procure a temporary injunction, as for a waste of corporate property, to restrain the railroads from making the connection and the commissioner of highways in the city of New York from permitting it to be made.

*1322. Same — Permit to open street — Does not create a franchise.

The, act of the said commissioner of highways in permitting the steam surface railroad to open the avenue in order to lay a necessary*' turnout and to build foundations for elevated railroad columns “ in order to, protect water mains of the city”, is not in view of the original right of the steam railroad to lay, turnouts and of the stat-' utory right of railroads to connect their tracks, an illegal act; nor ■ does the permit create a franchise —a species of grant which is solely within the power of the Municipal Assembly.

Motion to continue an injunction *pendente lite.*The facts appear in the opinion.

Pearsall, Kapper & Pearsall, for plaintiff.

Wm. J. Kelly, for L. I. R. R. Co.

G. W. Wingate, for Brooklyn Elevated R. R. Co.

R. Percy Chittenden, for the city and city officers.

Maddox, J.

This is a motion to continue an injunction *pendente lite,*and there is grave doubt whether this is the proper ■action to justify the judgment plaintiff asks.

It does not appear that plaintiff is an abutting property-owner on the line of either of the railroads or of the proposed ’viaduct," nor is "this action brought to abate or restrain a nuisance, and' the taxpayer’s action, as authorized by chapter 301 of the Laws of 18*92, is one “ to prevent any illegal official act, * * or to prevent waste.or injury to, or to restore and make good, .any property, funds or estate of such * * * municipal corporation ”; and in a proper case to enforce restitution of corporate property, funds or estate.

Plaintiff, a taxpayer, seeks to restrain the defendants, the Long Island Railroad Company and Uhlman, as receiver of the Brooklyn Elevated Railroad Company, from connecting the two roads by a viaduct and incline, and from operating the cars of the respective companies upon the road and tracks of the* other company; to restrain the Long Island Railroad Company' from constructing said viaduct over Atlantic avenue and "certain Intersecting street's" into its freight yards; from putting in an additional connection between its *133main double track line on Atlantic avenue and one of its freight yards; and, also, to restrain the defendants, Keating and Farrell, respectively the commissioner and deputy commissioner of highways in the city of New York, from permitting the construction of such viaduct and connections.

No fraud or collusion is alleged in the complaint; no dishonesty in granting the permits, the official act complained of, is charged; only that it is an illegal act, involving .a waste, of corporate property, and' that by permitting the two roads to be connected by a viaduct and ah incline and the consummation of a traffic agreement, thereby a new franchise is acquired, the- granting of which is solely within the power of the municipal assembly..

The Long Island Railroad’Company, incorporated in 1834 (chapter 178), as lessee of The Atlantic Avenue Railroad Company, has since about 1877 been continuously in possession of a strip of land in the center of Atlantic avenue, extending from about 250 feet easterly from Flatbush avenue, twenty-six feet in width- to Washington avenue, and th'enpe thirty feet in width to the westerly line of the former town of New Lots, upon which it has been operating its double track steam surface railroad. Such strip of land was the property of the Brooklyn & Jamaica Railroad Company,, acquired by it more than forty years ago for steam railroad purposes and thé Atlantic Avenue Railroad Company is now the' owner of all the property and rights of said Brooklyn & Jamaica Railroad .Company, including said- strip, and which latter company was incorporated in 1832 (chapter 256).

While the papers do not disclose when the Atlantic Avenup Railroad Company was incorporated, that it had succeeded to all the property and rights of said Brooklyn & Jamaica Railroad Company, prior to said lease to the Long Island Railroad Company, cannot now be questioned, nor can the validity of that lease (People v. Brooklyn, F. *&*C. I. R. Co., 89 N. Y. 85); and we also have judicial authority for the statement that its articles of association, under the then General Railroad Act, Were filed on May 1, 1872. People v. Brooklyn, F. & C. I. R. Co., *supra.*

The Brooklyn Elevated Railroad Company, of which the defendant Uhlman is receiver, was formed by the consolidation, and has succeeded-to all the franchises, property and rights, of the Brooklyn Elevated Railroad Company, incorporated by chapter 585,. LaWs of 1874, as amended, and the Union Elevated Railroad Company, duly organized under The Rapid Transit Act of. 1875 (chapter 6.06), *134and is operating, by said receiver, an elevated railroad from the Brooklyn bridge, along and over certain ..stréets to Flatbush -avenue, and -thence along and over that avenue; passing in front of the Flatbush avenue depot and yard of the' Long Island Railroad Company,. where it has an elevated station.

The' defendants,. the Long Island Railroad Company and Uhlman as such- receiver, are desirous of connecting the two roads-tó . the end that -a traffic agreement theretofore' éntered into may -he effectuated, and the Long Island Railroad' Company has begun the construction of a viaduct from the said eleyated structure on Flafbush avenue, in front of said depot and yard, through said yard and' along Atlantic avenue, over and above its tracks upon said,railroad’s right, of way, crossing certain intersecting streets, and over Atlantic avenue;, lying to the south' of said strip, into its Carlton avenue freight yard, in which the surface Or ground is reached by an incline, and- thence over its tracks and connections, including the one so sought to be restrained, to and upon the aforesaid strip in the center of Atlantic avenue, and upon its main double track road thereon.

The highway commissioner of the city ¿f Kew York,' upon its application, granted permission to the Long Island Railroad Company to open Atlantic avenue (’a) at Carlton avenue, for the laying of an additional connection between its said main lin'd and said freight yard;,and (b) also between South 0xford-street and Fort Greene place “ for the purpose of building foundations for Elevated railroad columns, in order to protect water mains of the city.”

It appears that, the viaduct and its supports are to rest, entirely on private property in the company’s freight and depot yards and within the line -of the railroad property or strip on- Atlantic avenue, except that at about Fort Greene place, in ¡supporting the turnout into the Flatbush avenue depot yard, because of, a city water main “on a line practically under the northerly side of said right of way ”, and in compliance with -the requirements of the municipal officers for the protection of said water main from breakage or intérferenCej foundations on steel beams over said main, in part outside of said right of way, but under the surface of Atlantic avenue, were constructed, the upright supports thereon for said viaduct' being, when completed, within the line of said right of way, and the surface of Atlantic avenue and the intersecting, streets remaining as before the laying of said foundations, in nowise changed. It is also shown that the work, contemplated and allowed under said per- - mits., has been completed.

*135The Taxpayers Act (chapter 301, Laws of-1892). must, it is true, be liberally, construed, for it is remedial in character.

The official act complained of, the granting of the highway commissioner of the permits to open Atlantic avenue for the purposes stated, was not,.however, an illegal act, if the Long Island Railroad Company had the right to lay the additional turnout or connection between its said main line and its-said freight yard, and had, also, with the receiver of the Elevated Railroad Company, the right to join, to connect the two roads and enter into a traffic agreement.

The strip or right of way in question was granted by the then city of Brooklyn to the Brooklyn & Jamaica Railroad Company, in exchange for a strip of land to the south thereof, now a part of. said avenue, with the right to occupy and use the same for the purposes of railroad tracks and turnouts, in the operation of a railroad, in the same manner as on the land ceded to the city by said company,- and which it owned in fee. The grant was to said railroad company *“*and its lessees, succéssors and assigns.” .

The right to construct turnouts is inherent to the charter of a railroad company, it is a necessary incident to the successful operaition of a railroad. .

By its charter, the act for its incorporation, the Long Island Railroad Company obtained the' right to construct a railroad and *“*to maintain and continue a railroad or railroads, with a single or double track, and with such appendages as may be deemed necessary for the convenient use of the same ” (Chap. 178, § 2, Laws of 1834). It owns a freight yard on the south side of the avenue, and it appears from the papers submitted that an additional turnout from its main line -to its freight yard is necessary for the proper operation of its road, and, that it has the right to lay the same cannot be assailed. People v. Brooklyn, F. & C. I. R. Co., *supra.*

No question was raised on the argument of this motion, nor is any presented by the papers submitted, as to the right of either of the respective companies, the Long Island of the Brooklyn Elevated, to operate its road; in other words, no claim is made that any constitutional or statutory requirement prerequisite to the exercise of their respective franchises has not been complied with.

By chapter 585, Laws of 1874, incorporating the Brooklyn Elevated, Silent, Safety Railway Company, afterwards changed to thé Brooklyn Elevated Railway Company (Chap. 422, Laws 1875), that corporation ' was empowered *“*to construct, maintain and operate such turnouts * * *. as may be necessary and proper *136for the successful maintenance and operation ” of its railway; and by the Rapid Transit Act of 1875 (Chap. 606), every corporation formed thereunder- had power, among other things, “to * * * join and unite its railroad with any other railroad *before constructed*at any point on its route, *and upon the grounds of such other railroad*company> with the necessary turnouts * * * and other conveniences in furtherance of the objects of its connections.”

It is conceded that the Union Elevated Railroad Company and the present Brooklyn Elevated Railroad Company were organized under that act (Chap. 606, Laws 1875), and hence it necessarily follows that' each took all the powers granted thereby.

The foregoing provisions of the Rapid Transit Act were re-enacted and continued in section 4, subdivision 5, of the Railroad Law (Chap. 565, Laws of 1890), in the same language, excepting that in the latter the power conferred is “ to * * * join, cr unite ”, disjunctive in form, while in the former the language was conjunctive.

To join, to unite, to connect are synonymous terms and may be used interchangeably in the consideration of this question. Such right so to connect, under that section, may be granted and created by written agreement, and, if the corporations' are unable to agree thereon, the right to necessary intersections and connections may be compulsorily enforced by proceedings under section 12 of the Railroad Law.. ;

As was said by Mr. Justice Wilmot M. Smith, in Kunz v. Brooklyn Heights R. R. Co., 25 Misc. Rep. 335, “ That the companies have the right to make such connection is not open to serious question. Railroad Law, § 12; Buffalo, B. & L. R. Co. v. New York, L. E. & W. R. R. Co., 72 Hun, 583; 25 N. Y. Supp. 263. If the tracks' of the two companies were lawfully constructed, the curve is a necessary incident thereto, and no further consent or authority is necessary for its construction.”

True, in that case, both were street surface railroads,, while here ' one is an elevated road. That fact, however, involves no serious objection, for the reason that the right is “ to join * * * upon the grounds ” of the other company, which, it must be conceded, is the purpose and intention here.

The two roads do not actually cross each other, but that is of no consequence, and affords no reason why they should not connect, if they “ are contiguous, or so near each other in * * * *137cities that the public interests require that the roads should grant facilities for the interchange of cars, freight and passengers.” N. Y., L. E. *&*W. R. R. Co. v. Erie R. R. Co., 31 App. Div. 378. In that case the connection was- 200 feet in length, while here it is admittedly a much less distance from the elevated structure into the Long Island terminal yard at Flatbush avenue.

For sixty years past it has been and still is “ lawful * * * for *any*railroad "corporation to contract “ with *any*other railroad corporation ” for the use of their respective roads or any part thereof (Laws 1839, chap. 218; Railroad Law, § 78), and such legislation has remained unaffected by the constitutional amendment of 1874, or the revised Constitution, as adopted in 1894. That power>and right has not been limited or changed-in anywise by any subsequent legislation, and the power acquired" thereunder, so to contract, is a property right and a part of the franchise Ingersoll v. Nassau R. R. Co., 157 N. Y. 453; 52 N. E. Rep. 545.

The language is very comprehensive; it is “ any railroad corporation ”, and hence all are included.

Upon the passage of the act of 1839, the Long Island Railroad Company, theretofore incorporated, acquired such right; it attached immediately to and became a part of its franchise, and upon the in-, corporation and organization of said elevated- railroad companies, each took as a part of its- franchise, and as one of-its powers and rights such power and right so to contract. The act of 1839 was in full force, and is in nowise inconsistent with the Rapid Transit Act. That they‘are in harmony I believe, and will endeavor to show.

It may well be claimed that at the time of the enactment of chapter 218 of the Laws of 1839, elevated street railroads were not in contemplation, but that statute remains unchanged until its reenactment and continuation in the Railroad Law of 1890.

The Rapid Transit Act contemplated the construction of elevated street railroads in' cities, and, among other things, provided that *any*corporation formed thereunder-may “join and unite its railroad with any other railroad before constructed at any point on its route, and upon the grounds of such other railroad corporation.” § 26, subd. 3.

H not for the purposes of a traffic agreement and the contract provided for by the act of 1839, why join at any point on its route or on the grounds of another railroad company ? Can there be but one answer ? Can it be said that it was not the legislative intent to *138give effect to the power conferred by the act of 1839, by permitting ■ an elevated railroad company, organized under the act of 1875, to avail itself of the power and right so to contract ?

In my opinion there is no question as to the power and right of an elevated railroad company, formed under that act (Laws of 1875, chap. 606) to so contract and to enter into a traffic agreement with any other railroad company, in the mannqr provided by section 78 of the Eailroad Law, and I am not unmindful that by subdivision 5 of said section 26, it was provided that “no such corporation shall have the right to acquire * * * the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway ”; and that by section 129 of the Eailroad Law it is provided that “ no such corporation shall *construct*a street surface railroad to run in whole ■ or in part upon the surface of any street or highway ”; but such limitations clearly have no application to the questions under consideration.

There was no contention on the argument that the Long Island - Eailroad Company has notthe same right to the use of the railroad strip or right of way on Atlantic avenue as. its predecessor, the Brooklyn *&*Jamaica Eailroad Company had, and I see no room for any discussion on that point. The Brooklyn & Jamaica Eailroad Company had the right.to occupy and use the strip in question “ for the purpose of railroad tracks and turnouts, to be used, traveled over, and employed by cars# carriages and locomotives, and *otherwise in the same manner*as the railroad tracks on the said ceded strip of land ”, that is, on the strip ceded to the . city of Brooklyn. ' ,

That the Long Island Eailroad Company can, on what is its own right of way, construct a viaduct for the purpose, of completing such connection with the Brooklyn Elevated railroad and to carry into effect said traffic agreement, clearly railroad purposes, cannot be seriously questioned. . The law, as stated ]}y Hr.- Justice Cullen in the Beekman case, 89 Hun, 15, is, I think, conclusive upon that proposition here# and if the Long Island Eailroad Company has the right to connect its main line on' Atlantic avenue with its freight yard by a turnout upon the surface of the avenue, then there can be no question as to its right to connect that freight yard by a viaduct, over the same street, with its structure or viaduct upon said tight of way, if it has the right to make and maintain such elevated connection with the elevated railroad company. The purpose of the ele*139vated structure, in the Beekman case, was identical with that in this case, that is, to connect a steam surface railroad with an elevated railroad structure and railroad.

The consent of the municipality, by its municipal assembly, under sections 72, 73 and 74 of the charter of the city of New York, is not a necessary prerequisite to the making of such connection or the construction of such viaduct, nor is it to the operation" of the cars of one company upon the tracks of the other company, under a traffic agreement, for no new franchise is created thereby (Ingersoll v. Nassau R. R. Co., *supra),*and the right to use the tracks of another company is of a contractual character. It is the power to so contract that attaches to the franchise and is the property right.

So it follows that title 3 of chapter III of the New York charter has no bearing upon this case, nor upon any of the questions presented.

By section 524 'of said charter, the commissioner of highways has cognizance and control of the laying or relaying of railroad tracks in any public street, the form of rail used, character of foundation, method of construction, and the restoration of the surface of the streets after the doing of such work. There shall be no disturbance of the surface, except with his permission (§ 525), hence a duty was cast upon him, but his permit creates no franchise and cannot be construed as a consent by the city.

By the granting of the permits complained of, the commissioner acted legally and within his authority.

Erom the foregoing it appears that there has been no injury to or waste of public property, that the granting of the permits by the highway commissioner was not an illegal, unlawful, or dishonest official act; and, since, to quote the language of the late Hr. Justice Pratt, in the Beekman case, supra, “ It is common knowledge, too plain to require proof, or to be disputed, that the proposed connection will greatly add to the public convenience, and that it falls within the settled rule of policy of the state to permit railroads to connect for the convenience of- the traveling public,” plaintiff’s motion must fail.

It is unnecessary to comment upon the Eldert case, 28 App. Div. 451, cited by plaintiff’s counsel, further than to say that that case has no bearing upon this, for there the incline was in the center and upon the bed .off a public highway, not as here, upon private property and a railroad right of way. It was for some *140distance solid masonry, and plaintiff there] an abutting owner, sought its removal as a nuisance,-not relief under the Taxpayers Act.

Plaintiff’s motion' is denied, and the temporary injunction dissolved.

Motion denied and injunction dissolved.