Talbot v. New York & H.R. Co.

• Decision Date: 01 December 1896
• Citation: 45 N.E. 382,151 N.Y. 155
• Court: New York Court of Appeals Court of Appeals
• Parties: TALBOT v. NEW YORK & H. R. Co. et al.

151 N.Y. 155

45 N.E. 382

TALBOT

v.NEW YORK & H. R. Co. et al.

Court of Appeals of New York.

Dec. 1, 1896.

Appeal from supreme court general term, First department.

Action by Emily Talbot against the New York & Harlem Railroad Company and another. From a judgment (29 N. Y. Supp. 187) affirming a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed.

Henry A. Foster and Augustus S. Hutchins, for appellant.

Hamilton Harris, for respondents.

BARTLETT, J.

This action is brought to enjoin the defendant corporations from maintaining or using the bridge over Fourth avenue on which Forty-Eighth street crosses as a public highway, and a certain protection wall adjacent to plaintiff's house in the same street; also to compel the removal of the bridge and wall. In 1869 the plaintiff purchased a lot 250 feet west from Fourth avenue, on the north side of Forty-Eighty street, and erected thereon a brown stone front house. Shortly after the erection of this house, the New York & Harlem Railroad Company acquired title to all the land on the north side of Forty-Eighth street, lying between plaintiff's premises and Fourth avenue; also a large amount of land on the south side of the street, opposite the lot of plaintiff. On the 1st of April, 1873, the New York & Harlem Railroad Company leased to the New York Central & Hudson River Railroad Company its railroad, extending from Forty-Second street, along Fourth avenue, to the Harlem river. In 1872 the legislature passed an act (chapter 702) entitled ‘An act to improve and regulate the use of the Fourth avenue in the city of New York,’ for the purpose, among others, of rendering the same safe and convenient for persons crossing the same. The act provided that the New York & Harlem Railroad Company should construct at Forty-Eighth street a tunnel under the Fourth avenue for sidewalks and carriage ways, or a bridge over the same for a like purpose, and that the tunnel or bridge should be at least 34 feet wide. The act had for its general object the abolition of grade crossings to conserve the public safety, as it was contemplated to run trains from the Grand Central Station, at Forty-Second street, to the Harlem river, at a high rate of speed. It was a work of public necessity, and involved a large expenditure, which was shared equally by the city of New York and the defendants. The act appointed a board of engineers to execute, direct, and superintend the construction of the improvements, to be called ‘The Board of Engineers of the Fourth Avenue Improvement.’ This board was made up of five members, one of whom was the chief engineer of the board of public works of the city of New York for the time being, and another was the engineer of the New York & Harlem Railroad Company, and was authorized and directed to take entire charge and control of the work, and to prepare plans and specifications and an estimate of the expense, and file them in the office of the comptroller of the city of New York. They were also required to take an oath of office before a judge of a court of record, and file it with the comptroller. All these provisions were duly observed, and on the 30th of June, 1872, it was resolved by the board to authorize the construction of an iron bridge over the railroad tracks at Forty-Eighth street. On the 25th of July, 1872, the board awarded a contract for this work to the Watson Manufacturing Company, in accordance with plans, etc., duly filed, and directed the New York & Harlem Railroad Company to execute the contract with that company. This was done. The bridge was constructed, and is the one complained of by the plaintiff. The bridge has approaches on its westerly side commencing opposite to the eastern boundary of plaintiff's premises, and ascending upon the lines prepared by the board of engineers until they meet the iron structure spanning the avenue. The bridge is 34 feet wide, as the act requires, and is placed on the south side of the street, the latter being about 60 feet in width, thus leaving the north sidewalk and a strip of the surface roadway unoccupied by the new structute. In order to close this side of the street, and prevent those traveling upon Forty-Eighth street from injury in attempting to cross the railroad tracks at grade, and as a part of the official plan as filed, a wall of brick was constructed 8 feet 3 inches high and about 31 feet long, beginning at the southeasterly corner of plaintiff's house, and extending over the discontinued portions of the sidewalk and roadway to the corner of the bridge structure. The trial court found that the bridge had been used since its construction as a public highway both for carriages and foot passengers, and that its approaches have been kept paved and in order, and the bridge lighted, ever since, by the corporation of New York. It is further found that the corporation defendants have not had the custody of or maintained the bridge or the wall or used the bridge; that they have in several instances replaced bolts to prevent danger to passing trains, and repainted the iron work,...