Miller v. New York & N.S. Ry. Co.
| Decision Date | 21 November 1905 |
| Citation | 75 N.E. 1111,183 N.Y. 123 |
| Parties | MILLER v. NEW YORK & N. S. RY. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by Elizabeth D. Miller against the New York & North Shore Railway Company. From a judgment of the Appellate Division (86 N. Y. Supp. 1141,92 App. Div. 613), affirming a judgment in favor of defendant entered upon a dismissal of the complaint, plaintiff appeals. Reversed.
This action was brought to restrain the defendant from building and operating its electric street railway in front of plaintiff's premises, which are situated on the southerly side of Fulton street, borough of Queens, city of New York. At the place in question, Fulton street was formerly known as the ‘Hempstead and Jamaica Turnpike Road.’ Plaintiff's premises have a frontage of about 537 feet on this highway, commencing at a point about 756 feet easterly from the intersection of its southerly side with the easterly side of Springfield road. The defendant, the New York & North Shore Railway Company, was organized in 1897 for the purpose of constructing and operating a street surface railroad in the borough of Queens, city of New York. It is the successor in interest of the Long Island Electric Railway Company, which was organized in 1894 and authorized to operate a similar railroad in the county of Queens. Two causes of action are set forth in the complaint. The first is founded upon allegations to the effect that the plaintiff is the owner in fee to the center of Fulton street, and that her title therein has never been acquired by the defendant. The second proceeds upon the theory that the defendant has never obtained the consents required by law, either from the local authorities or the abutting property owners.
Alfred A. Wheat and James A. MacElhinny, for appellant.
George F. Hickey and William E. Stewart, for respondent.
WERNER, J. (after stating the facts).
The first cause of the action set forth in the complaint is founded upon the plaintiff's alleged ownership of the fee in the southerly half of Fulton street in front of her premises. If she is such owner, she can restrain the building of the defendant's railroad in front of her premises, unless she has consented thereto or her title to the street has been acquired by the defendant. Peck v. Schenectady Ry. Co., 170 N. Y. 298, 63 N. E. 357;Paige v. Schenectady Ry. Co., 178 N. Y. 102, 70 N. E. 213.
The decision of the trial court is in the short form, under section 1022 of the Code of Civil Procedure as it stood before its amendment by chapter 85, p. 237, of the Laws of 1903. As bearing upon the first cause of action, the learned court found that the plaintiff is the owner in fee of premises situate on the southerly side of Fulton street, in the borough of Queens, New York city, described as ‘all that certain piece or parcel of land, with the building and improvements thereon, situated,lying, and being in the town of Hempstead, Queens County, state of New York, * * * described as follows, to wit: * * * Beginning at the main road leading from Jamaica to Hempstead; from thencesoutherly * * *; thence easterly (and by various metes and bounds * * * to a certain fence); thence along said fence as it now stands for a division fence along said William Martins and Widow Highe's land to the main road aforesaid; thence along the main road to the place of beginning, containing 35 acres, be the same more or less.’ This is the only finding contained in the decision in any way relating to the first cause of action. When this finding is examined in the light of section 1022 of the Code of Civil Procedure, as that section stood before its amendment in 1903, it is evident that the learned trial court either failed to make any decision whatever upon the first cause of action, or, on the contrary, arrived at a conclusion of law directly at variance with the fact found. The so-called ‘short form’ decision was authorized by that part of section 1022 which permitted a court or referee to ‘file a decision stating concisely the grounds upon which the issues have been decided.’ It will be observed that the decision before us simply affirms the plaintiff's ownership of her premises according to the description given, but it is silent upon the all-important question whether her title extends to the center of the street or not. If this...
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...to find upon the issue so raised by the pleadings and the evidence given upon the trial resulted in a mistrial. Miller v. N. Y. & North Shore Ry. Co., 183 N. Y. 123,75 N. E. 111;Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302, 76 N. E. 4. The judgment should be reversed, and a new trial gran......
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...made, and the judgment cannot be allowed to stand. Dougherty v. Lion Fire Ins. Co., 183 N. Y. 302, 76 N. E. 4;Miller v. N. Y. & N. S. Ry. Co., 183 N. Y. 123, 75 N. E. 1111; Alcock v. Davitt, supra. In Dougherty v. Lion Fire Ins. Co., supra, it was held, and the rule is as applicable here as......
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...been brought before us in which we have felt constrained to hold that such procedure is practically a mistrial. Miller v. N. Y. & N. S. Ry. Co., 183 N. Y. 123, 75 N. E. 1111;Cuyler v. Wallace, 183 N. Y. 291, 76 N. E. 1. There were other issues raised by the pleadings; but, as the trial cour......
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Macardell v. Olcott
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