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Ascher v. South Shore Traction Co.

Supreme Court of New York, Appellate Division

April 21, 1911

JOHN J. ASCHER, Respondent,

Page 235

APPEAL by the defendant, The South Shore Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 30th day of December, 1910, upon the decision of the court rendered after a trial at the Suffolk Special Term.


Arthur Carter Hume, for the appellant.

E. Walter Beebe [Herbert S. Brussel with him on the brief], for the respondent.


Plaintiff is the owner of a tract of land on the southerly side of the Middle road or Main street in the village of Bayport and town of Islip, and also of the southerly one-half of the highway in front of and adjoining said premises. Defendant is a street surface railroad company, and is about to construct and operate a railroad through said street by electric power transmitted through an overhead trolley line. Defendant has acquired the consent of the town and State officials to such construction, and also that of the owners of more than two-thirds of the property in the said town abutting on said street. It has not acquired plaintiff's consent. The judgment enjoins the construction and operation of defendant's road unless, within five months after the entry thereof, by appropriate condemnation proceedings it acquires plaintiff's right and estate in said highway.

Defendant appeals from said judgment, and while it concedes that its conduct in constructing its road is a trespass upon plaintiff's property, and that it has a right to acquire by condemnation proceedings the necessary right of way through the same, nevertheless it insists that plaintiff should be required to prove his damage, both rental and fee, in this action, and that the judgment should provide that upon payment of the amount so fixed plaintiff should execute and deliver to it a deed conveying to it the right to use such property. This indirect method

Page 236

of acquiring property for public use is contrary both to the spirit and letter of the Constitution. (Const. art. 1,ยง 7.)

We think that no case in this State has directly determined that this may be done against the will of the parties interested. In Henderson v. N.Y. C. R. R. Co. (78 N.Y. 423) the complaint was framed with a view to such relief. It asked, first, for damages, and then among other things that defendant be permitted to use its tracks over plaintiffs' property 'only on condition that the plaintiff shall first be paid his damages.' The court, in speaking of a judgment in the alternative form here suggested, said it was 'optional with the defendant to comply with the conditions. The plaintiffs could not require it, but they would be bound by the judgment, and the defendant become on performing the condition, purchaser of the land with rights not inferior to those obtained by appraisement and payment of damages under the statute.' It might be said in this case that it was optional with plaintiff to comply with the condition or be refused his injunction, but the situations are not analogous. In the Henderson case defendant was bound to acquire title to plaintiffs' rights in the property, either by the method prescribed in the Constitution or under the terms of the judgment. It had its choice. But in this case, if the method suggested by defendant is adopted and plaintiff is unwilling to waive the constitutional method of fixing damages, plaintiff's rights in the highway may never be acquired, and his only remaining remedy against defendant's unlawful acts would be an action for damages for repeated trespasses, which might be most inadequate. Certainly plaintiff is not given his choice as to the methods of determining the value of his property rights before parting with the same, as defendant was in the Henderson case.

In the case of Pappenheim v. M. E. R. Co. (128 N.Y. 436) the complaint was expressly framed with a view to obtaining relief in this manner, and in so doing plaintiff was deemed to have waived his right to have the railroad company acquire his property in the constitutional method. In that case the court said: 'The court does not adjudge that the defendant shall pay such sum and that the plaintiff shall so convey. It provides that, if the conveyance is made and the money paid,

Page 237

no injunction shall issue. If defendant refuse to pay, the injunction issues.' Of course, if the injunction issues, the road either stops its operation altogether or it proceeds to condemn its right of way. The judgment did not assume to deprive defendant of its constitutional right respecting the method of assessing damages, as the judgment prayed for in this case would deprive the plaintiff.

So in Duncan v. Nassau Electric Railroad Co. (127 A.D. 252), and in the various elevated railroad cases, plaintiff invoked the form of ...

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