#### The City of New York, Appellant, *v.*Gilbert H. Montague, as Receiver of Fulton Street Railroad Company, and Others, Respondents.

First Department,

June 2, 1911.

Corporation — action for forfeiture of charter r— nuisance — municipal corporation — railroad — defective and worn tracks — property- in hands of receiver — rights under franchise — parties defendant.

An action to declare a franchise forfeited for nonuser can only be brought by the People acting through the Attorney-General.

But a municipal corporation can maintain an action to abate a public nuisance within its borders.'

A complaint in an action by the city of New York against the receiver of a street railway which alleges that the defendant was duly appointed receiver and took possession of the property which he still possesses and *173controls; that the pavement between and just outside the tracks and the tracks themselves have become defective, worn and uneven so as to constitute an obstruction and a nuisance in the streets from which accidents are hable to happen; that the railroad company and the receiver have refused to make repairs; that the plaintiff desires to repave the streets but is prevented by the uneven and defective rails, and that the railroad is insolvent and the receiver has no assets from which to pay any claim of plaintiff for repairs, states a- cause of action to enjoin the maintenance of a nuisance.

It isAo defense to such action that the city has a right under section 98 of the Railroad Law to repair the street and charge the cost to the railroad, . for the statute does not make this remedy exclusive.

An adjudication that the worn and defective rañs are a nuisance coupled with a provision for then1 removal would not involve an adjudication forfeiting the franchise for nonuser.

A railroad has no right to maintain a nuisance for the purpose of preserving its franchise.

It would he proper in such action to join the railroad company as a party defendant, hut it is not necessary to do so, as the receiver is the one actually maintaining the nuisance and so is the only necessary party defendant. . '

If on the trial it appears that the receiver is merely holding the possession of the property pending the determination of an action, the court may adapt the relief to the facts, hut in the present action it can at least determine whether the tracks constitute a nuisance and if the receiver has no means with which to remove them may order him to surrender possession to the city so that it may do so.

Appeal by tbe plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8 th day of July, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining demurrers to the complaint and dismissing the said complaint.

*Terence Farley,*for the appellant.

*Gilbert H. Montague,*as receiver, respondent, in person.

*Edgar J. Kohler,*for the respondents Cochran and others.

Miller, J.:

The demurrer is for insufficiency, defect of parties defendant and want of capacity to sue. The action was brought against the receiver of the Fulton Street Railroad Company. Certain bondholders were allowed to intervene. The demurrer was sustained at Special. Term on the ground that the action was *174one to declare a franchise forfeited for nonuser, and could only be brought by the People acting’ through the Attorney-General. (68 Misc. Rep. 176.) If that view of the complaint be correct the demurrer was properly sustained. *(City of New York*v. *Bryan,*196 N. Y. 158.) But an examination of the complaint shows that the action is one to ¡enjoin the maintenance óf a nuisance.

It is alleged that the North and East River Railway Company was organized on July 13, 1886, and that it acquired by purchase at auction, pursuant, to-chapter 252 of'the Laws'of 1884, the privilege to construct, maintain and operate a street railroad. on Eulton street and other public places in the borough of Manhattan; that about the year 1881 pursuant thereto it constructed a double line of street surface railroad; that in 1896 its property rights, privileges and franchises were transferred to the Fulton Street Railroad Company and that the latter operated • horse cars over the tracks constructed in Fulton'street and other streets as aforesaid up to June 1, 1908; that on July 15, 1908, in an- action entitled “Guaranty Trust Company of New York against Fulton Street Railway Company,’5 the defendant Montague was appointed receiver of the Fulton Street Railroad Company and took control and possession and has ■ since been in control and possession of Said railroad and appurtenances; that the pavement between the tracks and within a space of two feet outside of the tracks, the tracks and the rails have become old, defective,' worn and uneven, so' as. to constitute an obstruction and a nuisance in the said streets from which accidents are likely to happen to persons using, the streets; that the said North and East River Railway Company and its successor, the Fulton Street Railroad Company,- and said defendant Montague have failed and neglected and refused ■ to make any repairs or repavemeñt whatever in said streets; that the plaintiff desires to lay a new and suitable pavement in the streets, but is prevented from so doing by the uneven, defective and irregular rails of the said railroad tracks. It is also alleged that the said Fulton Street Railroad Company is insolvent and that the said defendant Montague has no assets in his hands from which to pay any claim of the plaintiff for repairs or any judgment that might *175be recovered. There are other allegations in the complaint which bear upon the right in a proper action to have the franchise declared forfeited for nonuser. But the city now disclaims any purpose to obtain such relief in this action and it is plain that no such-relief can be obtained herein.

The right of the city to maintain an action to abate a public nuisance is too well settled to require the citation of authorities (but see *City of New York*v. *Rice,*198 N. Y. 124). The mere fact that the city might have the right to abate the nuisance does not prevent it from applying to a court of equity to have the question as to the existence of a nuisance determined and appropriate relief awarded. Nor is it a defense to this action that the city might have the right under the statute (Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 98, as amd. by Laws of 1892, chap. 676; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 178). to repair or repave the streets and /barge the cost thereof to the railroad company. There is nothing in that statute which makes that remedy exclusive. In this case it is alleged that the rails are so defective as to constitute a dangerous obstruction in the streets and to prevent the city from repaving or repairing the streets without tearing up the rails. The worn and defective rails in the streets constitute the nuisance complained of, and an adjudication that they are a nuisance coupled with some provision for their removal will in no way involve an adjudication forfeiting the. franchise for nonuser. A railroad corporation having the special privilege of constructing, maintaining and operating its railroad in the streets of a city does not thereby acquire the right to maintain a nuisance in the streets, and it has no right to maintain a nuisance for the purpose of preserving a franchise. An adjudication requiring the removal of the rails would still leave the owners of the franchise free to replace the old rails with new, and to operate the railroad. If the claim of nuisance rested upon the mere nonuser of the franchise a different question would be presented.

Only one question remains to be considered, *i. e.,*was the said-Fulton Street Railroad Company a necessary party defendant? It was stated on argument that the appellant Montague *176was appointed receiver in an action to foreclose a mortgage. That fact is not alleged in the complaint. But, even if it be assumed to be the fact, the receiver is the one who is at present maintaining the nuisance, although he is a mere custodian and does not hold title. Certainly the railroad company, ' from whose possession the property has been taken, is not now maintaining a nuisance, and if sued to abate the nuisance it probably would say that it could not interfere with the possession of an officer of the court.

When the facts are established on the trial the court .may adapt the relief to those facts. If it appears that the said defendant is merely holding possession pending the determination of an action, and that he has no funds with which to remove the rails or to replace them with new ones, the court will probably not order him to do that out of his own pocket. The court can at least determine whether the tracks constitute a nuisance, and, if the receiver has no means with which to remove them,' it may order him to surrender possession to the city so that the latter may do so. Doubtless the railroad company was a proper party defendant, but the. only necessary party defendant in an action for the abatement ■ bf a nuisance is the one actually maintaining it.

If it is true that the railroad company had no property hut its disused *tracks'*and its franchise it is not easy to perceive why a receiver was appointed in mortgage foreclosure proceedings, unless possibly to forestall such an action as this. If the contention of the respondent be sound that would certainly be an ingenious way to accomplish that result.

The judgment and order should be reversed, with costs, and the demurrer should be overruled, with costs,, with leave to the defendants to withdraw the demurrer and answer upon payment of costs in this court and in the court below.

Ingraham, P. J., McLaughlin,. Laughlin and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and demurrers overruled, with costs, with leave to defendants to withdraw demurrers and to answer' on payment of costs in this court and in the court below. .