People ex rel. Sibley v. Gresser

• Decision Date: 19 March 1912
• Citation: 98 N.E. 205,205 N.Y. 24
• Parties: PEOPLE ex rel. SIBLEY et al. v. GRESSER et al.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 24

98 N.E. 205

PEOPLE ex rel. SIBLEY et al.

v.GRESSER et al.

Court of Appeals of New York.

March 19, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Mandamus by the People, on the relation of George Sibley and others, against Lawrence Gresser and others, in which the Long Island Railroad Company intervened. From a judgment of the Appellate Division (146 App. Div. 919,131 N. Y. Supp. 1137), affirming a judgment for plaintiff, intervener appeals. Affirmed.

Wm. C. Beecher, of New York City, for appellant.

Henry B. Salisbury, of New York City, for respondents.

GRAY, J.

On the petition of the relators, residents of the Fourth ward of the borough of Queens, an alternative writ of mandamus issued, directing the president of the borough to show cause why he should not forth-with remove certain railroad tracks of the Long Island Railroad Company, which incumbered and obstructed Hamilton street. The petition alleged that Hamilton street was a public highway; that the railroad company, under its charter, had originally constructed its main line of railroad across the street, using a strip of land 60 feet in width; that, without any leave or right, it had, in 1905, laid across the street, south of its main line, for a distance of some 200 feet, 16 more tracks; and that continuously, since then, it had occupied the street with the tracks, and with freight trains upon them, in such manner as to render the street useless and to obstruct the public passage over it. The railroad company applied for, and obtained, leave to intervene in the proceeding. Returns being made to the writ, the issues of fact were tried before a jury, and were determined by a verdict directed by the court in favor of the relators. Thereafter judgment was entered, directing a peremptory writ of mandamus to issue, as prayed for by the relators, commanding the president of the borough to remove the 16 tracks from Hamilton street. The Appellate Division affirmed the judgment, and the railroad company, intervener, has further appealed to this court from the judgment of affirmance.

[1] There was no conflict in the evidence as to the material facts, and the trial court properly directed the jurors to return a verdict for the relators, to the effect that Hamilton street was, and had been, a public highway; that the public had a right to pass and repass thereon, and freely to use it as such; and that, by the construction of 16 freight tracks south of its main line, and the storage of freight and other cars upon them, the Long Island Railroad Company, for several years past, had obstructed the use of the street and had interrupted the passage of the public over it. Upon these facts, it was clear that the relators were prejudiced in their rights as citizens and property owners, and that they were entitled to maintain this proceeding. People ex rel. Pumpyansky v. Keating, 168 N. Y . 390, 61 N. E. 637;Buchholz v. N. Y., L. E. & W. R. R. Co., 148 N. Y. 640, 643,43 N. E. 76. They had the right to compel the president of their borough to perform the duty imposed upon him by the charter of the city of removing unlawful incumbrances from the public street. Greater New York Charter of 1901, § 383, as amended by Laws of 1907, c. 383, § 1. The judgment awarding the peremptory writ of mandamus necessarily followed, upon its being established that the railroad company had laid other tracks across the street, beyond the strip of land originally and lawfully appropriated to the construction of its main line, without authority, and had obstructed the public easement by practically closing the street. Its intervention in...