(78 Hun, 473.)

#### TALBOT v. NEW YORK & H. R. CO. et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Injunction—Against Maintenance of Bridge.

An injunction to restrain defendant railroad from maintaining a street bridge and approaches over its tracks will not lie at the suit of an owner of property on such street, where it appears that the bridge was constructed under a statute (Laws 1872, c. 702) which authorized and required defendant to construct such bridges as would render traveling along streets crossing its tracks safe and convenient, the expenses to be paid one-half by the city and one-half by defendant, and that, after the bridge was constructed, the city assumed control over it, and defendant neither used it nor exercised any control over it, since a judgment in such case against ■defendant would be unavailing.

*188Appeal from special term, New York county.

Action by Emily Talbot against the New York & Harlem Railroad. Company and the New York Central & Hudson River Railroad Company for an injunction. From a judgment dismissing the complaint on the merits, plaintiff appeals.

Affirmed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Aug. S. Hutchins, for appellant.

Henry H. Anderson, for respondents.

FOLLETT, J.

This action was brought to restrain the defendants from maintaining a bridge in Forty-Eighth street, spanning-their tracks and Fourth avenue, and also from maintaining the approaches and walls appurtenant to said bridge. Forty-Eighth-, street is one of the public streets of the city of New York, laid out in 1837 pursuant to chapter 86 of the Revised Laws of 1813, and the acts amendatory thereof and supplementary thereto. An assessment was levied upon the premises now owned by the plaintiff, to-aid in defraying the expenses of opening this street. The street is 60 feet wide between house lines; 10 feet on each side being used for walks, and about 40 feet in the center for a carriage way. The fee of this street is in the city. The plaintiff is, and since March 1, 1869, has been, the owner of No. 25 East Forty-Eighth street,, which is on the north side of the street, and is 16 feet 8 inches-wide, and 100 feet 5 inches deep. This lot is bounded on the-south by the north line of Forty-Eighth street, and the plaintiff has-no title to or interest in the bed of the street, nor any private-rights-therein, except such as are incident to the owner shin of a lot abutting on a public street in the city of New York. This lot is-250 feet west of Fourth avenue, and 633 feet east of Fifth avenue. The defendants have since about 1875 owned ah of the land lying-between the plaintiff’s lot and Fourth avenue. In 1870 the plaintiff erected on her lot a four-story brick house, with a brownstone-front, which she has ever since occupied as a dwelling. For many years prior to 1869 the tracks of the New York & Harlem Railroad Company had extended north from Forty-Second street, through and on the surface of Fourth avenue, to the Harlem river. May 14,. 1872, chapter 702 of the Laws of that year was passed, which is entitled “An act to improve and regulate the use of the Fourth avenue-in the city of New York.” This statute provides:

> “Section 1. The New York and Harlem Railroad Company is hereby authorized and required to regulate the grade oí their railroad in the Fourth avenue oí the city oí New York, and to construct such viaducts, foot and road bridges over the same, and such excavations and tunnels under the same, with openings for proper ventilation, for the purpose of rendering- the-same safe and convenient to any persons crossing the same, and the railroad trains and passengers- traveling thereon, in the following manner, namely: At Forty-Fifth and Forty-Eighth streets, to construct tunnels under the said' streets and the Fourth avenue for sidewalks and carriage ways underneath the railroad at least thirty-four feet wide, or bridges over the railroad of at least that width, for the same purpose. * * * Between Forty-Fifth and Forty-Ninth streets, including said streets, iron railings or brick walls shall *189:be erected in said streets, outside tlie railroad tracks, so as to prevent crossing at a level with said railroad tracks.”

By the sixth section of this law a board of engineers was created, charged with the duty of directing and superintending the construction of the improvement. The section provided that the board should consist of Allan Campbell and Alfred W. Craven, or their successors, and the chief engineer of the board of public works of the city of New York for the time being, and the engineer of the New York & Harlem Railroad Company. By the seventh section of the act, it was provided that the railroad company and the city of New York should each pay one-half of .the expenses of the proposed improvement. On the 30th of June, 1872, the board of engineers appointed by the act directed the construction of an iron bridge over the tracks of the railroad at Forty-Eighth street, instead of a tunnel under the tracks, and prescribed the plans and specifications of the bridge to be erected, including the approaches • thereto. During the years 1872 and 1873, this bridge was constructed pursuant to their plan, was afterwards inspected by the board of engineers, and found to have been built in accordance with their specifications; and one-half of the expense was paid by the railroad, and one-half by the city. The approach of the westerly end of the bridge begins in the street, on a line with the east line of the plaintiff’s lot, and ascends, upon a grade fixed by the board of engineers, until it meets the bridge spanning the avenue. This bridge is 34 feet wide, and is on the south side of the street, leaving a space about 26 feet wide, on the north side of Forty-Eighth street, which is unoccupied by it. For the purpose of preventing teams and persons from passing over this unoccupied part of the street onto the tracks of the railroad, a brick wall about 8 feet high was extended from the southeast corner of plaintiff’s house to the bridge proper. The grade of the street in front of the house was not changed, but the wall above mentioned prevents carriages from being driven exactly in front of the plaintiff’s door, and also prevents the plaintiff from using that portion of Forty-Eighth street lying east of the wall, and' west of defendants’ tracks. April 1, 1873, the New York Central Railroad Company leased the road of the New York & Harlem Railroad Company, since which time it has operated the same as lessee. The railroads make no use of this bridge, which is part of Forty-Eighth street, and is wholly within the control of the city of New York. The court found that the bridge does not injuriously affect the easements of light, air, or access appurtenant to plaintiff’s premises, except as it slightly interferes with the approach of a carriage to the front of the house. It is found that the brick wall extending from the southeast corner of plaintiff’s house to the side of the bridge casts a shadow in the early morning on the front basement room of the plaintiff’s house, but that later in the day the reflection from the wall increases, rather than diminishes, the light in the basement. The undisputed evidence shows that, since the bridge and its approaches were constructed, they have been used as part of Forty-*190Eighth street, and that the city paid for paving the approaches, and lighted and controlled the entire structure; the defendants making no use of it, and exercising no control over it. The city had the right, under the statute referred to, to substitute an over or-under crossing for the dangerous grade crossing which existed at this place in 1872, and for many years prior thereto, and incurred no liability to this plaintiff in making the change. None of her-land was taken, nor was the grade of the street in front of her lot changed. As before stated, the bridge does not entirely close-Forty-Eighth street, so as to prevent persons and carriages from passing along the north side of the west approach, and entering on the tracks of the railroad. The city, having provided an over-crossing, had the right to close the grade crossing, which it did by the wall extending from the southeast corner of the plaintiff’s lot to the north side of the west approach. The learned counsel for the plaintiff does not question the right of the city to close the grade-crossing by a proper barrier, but he insists that it should have been built 250 feet east of the plaintiff’s lot, and on the west side of Fourth avenue; thus leaving a narrow cul-de-sac, 250 feet long,, bounded on the south by the west approach of the bridge, on the east by a wall, and on the north by the north line of Forty-Eighth street. The defendants own all of the land north of this proposed cul-de-sac, and between plaintiff’s lot and Fourth avenue; and they consented that this part of the street should be closed, and, as against the plaintiff, the city had the right to close it at the point where the wall was built. A cul-de-sac of the kind described would have served no useful purpose, would have been difficult to guard, misleading to travelers, and a useless source of expense and danger to the city. Under the act the city had authority to substitute an over or under crossing for the existing grade crossing, which necessarily carried with it the right of closing the grade crossing as it had previously existed; and in doing this the city was not required to place the barrier on the west side of Fourth avenue, but might place it at such place in the street as would best subserve the public interests, without liability for damages, so long as the property of abutting owners was not taken or encroached on. Whatever the city had a right to do in respect to-constructing this bridge and its approaches, it could authorize these defendants to do; and they are under no greater liability for carrying out the plans of the board of engineers than the city, had it undertaken the work. Bellinger v. Railroad Co., 23 N. Y. 42; Uline v. Railroad Co., 101 N. Y. 98, 108, 4 N. E. 536; Conklin v. Railroad Co., 102 N. Y. 107, 112, 6 N. E. 663; Bucholz v. Railroad Co., 66 Hun, 377, 21 N. Y. Supp. 503. The case at bar is quite different from Reining v. Railway Co., 128 N. Y. 157, 28 N. E. 640r affirming 13 N. Y. Supp. 238. Reining’s premises were on the-north side of Water street, and on the west side of Commercial street, at the northwest corner formed by the intersection of those streets. The defendant built, in Water street, an embankment 24 feet wide, and about 5 feet high, supported on both sides by per*191pendicular stone walls, and on this embankment laid and operated two railroad tracks. Between Beining’s lot and the north wall of the embankment there was a space of about 8 or 9 feet in width, which formed the only means of approaching the premises. This use of the street was wholly for the benefit of the railroad, and not at all for the benefit of the street, or of citizens living near or on it. It was held that the use of the street was so exclusive as to be unreasonable, and that the plaintiff was entitled to damages. In the case at bar the change was not wholly for the benefit of the railroad, but was believed to be, and clearly was, for the benefit of the public, as well. The defendants make no use whatever of Forty-Eighth street, except to cross it.

It is urged that because it appears that the defendants have occupied, to some extent, the narrow strip of land east of the wall, and north of the bridge, formerly within the bounds of the street, the .plaintiff is entitled to have such use restrained. This action was not brought or tried on that theory. The use of this strip seems to have been by the assent or acquiescence of the city, and such use is not set out in the complaint as a cause of action; and the evidence that any injury to the plaintiff’s lot was caused by it is so slight that it is entirely insufficient to justify an injunction restraining the use.

It is very clear that the defendants do not own the bridge, its approaches, or the wall, and have no right to remove them, and that a judgment against these defendants, commanding them to remove the structure complained of, would be unavailing. Without considering the effect of the statute of limitations, or the other questions involved, we think the evidence failed to establish a cause of action, and that the judgment should be affirmed, with costs. All concur.