APPEAL by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8th day of July, 1910, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining demurrers to the complaint and dismissing the said complaint.
Terence Farley, for the appellant.
Gilbert H. Montague, as receiver, respondent, in person.
Edgar J. Kohler, for the respondents Cochran and others.
The demurrer is for insufficiency, defect of parties defendant and want of capacity to sue. The action was brought against the receiver of the Fulton Street Railroad Company. Certain bondholders were allowed to intervene. The demurrer was sustained at Special Term on the ground that the action was
one to declare a franchise forfeited for nonuser, and could only be brought by the People acting through the Attorney-General. (68 Misc. 176.) If that view of the complaint be correct the demurrer was properly sustained. ( City of New York v. Bryan, 196 N.Y. 158.) But an examination of the complaint shows that the action is one to enjoin the maintenance of a nuisance.
It is alleged that the North and East River Railway Company was organized on July 13, 1886, and that it acquired by purchase at auction, pursuant to chapter 252 of the Laws of 1884, the privilege to construct, maintain and operate a street railroad on Fulton street and other public places in the borough of Manhattan; that about the year 1887 pursuant thereto it constructed a double line of street surface railroad; that in 1896 its property rights, privileges and franchises were transferred to the Fulton Street Railroad Company and that the latter operated horse cars over the tracks constructed in Fulton street and other streets as aforesaid up to June 1, 1908; that on July 15, 1908, in an action entitled 'Guaranty Trust Company of New York against Fulton Street Railway Company,' the defendant Montague was appointed receiver of the Fulton Street Railroad Company and took control and possession and has since been in control and possession of said railroad and appurtenances; that the pavement between the tracks and within a space of two feet outside of the tracks, the tracks and the rails have become old, defective, worn and uneven, so as to constitute an obstruction and a nuisance in the said streets from which accidents are likely to happen to persons using the streets; that the said North and East River Railway Company and its successor, the Fulton Street Railroad Company, and said defendant Montague have failed and neglected and refused to make any repairs or repavement whatever in said streets; that the plaintiff desires to lay a new and suitable pavement in the streets, but is prevented from so doing by the uneven, defective and irregular rails of the said railroad tracks. It is also alleged that the said Fulton Street Railroad Company is insolvent and that the said defendant Montague has no assets in his hands from which to pay any claim of the plaintiff for repairs or any judgment that might
be recovered. There are other allegations in the complaint which bear upon the right in a proper action to have the franchise declared forfeited for nonuser. But the city now disclaims any purpose to obtain such relief in this action and it is plain that no such relief can be obtained herein.
The right of the city to maintain an action to abate a public nuisance is too well settled to require the citation of authorities (but see City of New York v. Rice, 198 N.Y. 124). The mere fact that the city might have the right to abate the nuisance does not prevent it from applying to a court of equity to have the question as to the existence of a nuisance determined and appropriate relief awarded. Nor is it a defense to this action that the city might have the right under the statute (Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 98, as amd. by Laws of 1892, chap. 676; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 178) to repair or repave the streets and charge the cost thereof to the railroad company. There is nothing in that statute which makes that remedy exclusive. In this case it is alleged that the rails are so defective as to constitute a dangerous obstruction in the streets and to prevent the city from repaving or repairing the streets without tearing up the rails. The worn and defective rails in the streets constitute the nuisance complained of, and an adjudication that they are a nuisance coupled with some provision for their removal will in no way involve an adjudication forfeiting the franchise for nonuser. A railroad corporation having the special privilege of constructing, maintaining and operating its railroad in the streets of a city does not thereby acquire the right to maintain a nuisance in the streets, and it has no right to maintain a nuisance for the purpose of preserving a franchise. An adjudication requiring the removal of the rails would still leave the owners of the franchise free to replace the old rails with new, and to operate the railroad. If the claim of nuisance rested upon the mere nonuser of the franchise a different question would be presented.
Only one question remains to be considered, i. e., was the said Fulton Street Railroad Company a necessary party defendant? It was stated ...