New-York tribune., 1905-12-23
THIRD TRACK MAY STAY
DAMAGES FOR PLAINTIFF.
Court Says RemouaI of Structure
Would York Great Wrong.

decision handed down yesterday by the Appel
late Division of the Supreme Court, connrnlns
decision of the lower court awarding damages on
account of the presence Of the third or express
track On the 9th-ave. line taken in some quar-
ters TO open up a new for damage suits
which might cost the Interborough hundreds OF
thousands of dollars.
It was pointed out however. that. inasmuch as
similar suits for damages account OF the other
two tracks had been by the plaintiHs' IL was
likely that the old Manhattan Elevated company
had prepared for such decision as thus last one
by obtaining easements from property OWNERS alois
the line. While holding that one quesuoh ol 'iie
legality Of the third tracks has not been deterliheo'
the court states that their removal Wouio WORN i"
great wrong and therefore confirms the oecision ION
of the lower court refusing nandamus ioT nelt
removal
The action was brought by Elizabeth knoth TOT d
mandatory injunction requiring the railway cum
pany to remove the third middle track rom l "
elevated road in front of the plaintins hoIie' III
sth-ave.. between S5th and S6th SITS
Justice Scott at Special Term. gave 1uusihel'
awarding the plaintiff rental damages at 'he rd'e
of 800 year and fee damages Of $12oO 'na' oe4Is
his estimate of the damage caused oy tiie peSeo
OF the third track
Justice Patterson. VINO wrote the opinion or the
court, says the action is for an in1uhcuoh anu
da1nag ges for taking easements OF hsht' all anu
access by the erection and maintenance "4thou'
legislative authority of elevated railroad udch
between two other elevated tracks in Sth-aVe'
which had been previously erected and rlght1uny
operated and maintained.
Justice Patterson expressed regret thaL the ceS0
came up the judgment roll alone ana 'ildt 'ho
Justices of the Appellate Division did not nave
before them tho record of the evidence given at
the trial Justice Patterson also says tnat on TINS
spnesl a question arises which has not been finally
passed upon in this State although the piahltlh
urges that there is abundant authority 10 sustain
her contention respecting it, The defendant rail-
way is lawfully operated two tracks in front OF
the plaintiffs premises. The right so to opeEa'e Wy
the ACQUISITION of easements appurtenant to those
premises is not denied Justice Patterson says
further:
AS the case is now presented on the findings OF
fact and in view of what has neen % M
road on 9th-ave. there can be no doupt InItLh
that the structure eomplaned OF b by ynnst,dm f
res nova, should have something lursne " tTis
on that subject But the statement OF w wna1 dica s
court has decided is not to be taken as an inalc IA
fon or expression of opinion that the detendant III
constructing maintaining such thrd M t b[, sb4 ~
nroneTtv NJ owners or in a high-handed manner,
without at least apparent sanction OF law
The case WAS peculiar in that the p4aihliL III
sisted that she was entitled to a mandatory IN
junction requiring the defendant to remove the
third track: that she was entitled to this relief
ss a matter of absolute right, which court or
eoritv was bound to recognize and ENFORCE ana
that the court had no jurisdiction to deprive her
of that right by awarding any less drastic relief
Justice Patterson discussed various cases pear1ng
on the power of 6. court to exercise its discretion
in such matter, and his conclusion Is In part
follows:
fndfnqs of fact as made. that the mandatory IN
tInctj0n which the plaintiff claims to be entitled
f0 If granted would work great wrong to the
Soi+anda9t and the court will exert its equi-
table power for that purpose