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SMITH v. SMYTHE, Street Com'r. (Supreme Court, Appellate Division, Second Department. April 30, 1909.) 1. MUNICIPAL CORPORATIONS (8 859*)-CARE OF STREETS-EXPENDING MONEY

FOR PRIVATE PURPOSES.

Village Law, $ 170, added by Laws 1907, p. 126, c. 93, § 1, providing that where, in a platted portion of a village designated as a park, the streets are 14 feet wide or less, in which case the village has no power to accept dedication thereof, the board of trustees of the village may care for and light such streets without the same being dedicated, is not in violation of Const. art. 8, § 10, providing that no village shall lend its aid to any individual or incur indebtedness except for village purposes.

(Ed. Note.- For other cases, see Municipal Corporations, Cent. Dig. 8

1814; Dec. Dig. $ 859.*] 2. STATUTES ($ 97*)-PRIVATE LAWS-LIGHTING STREETS.

Nor is such law in contravention of Const. art. 3, § 18, providing that the Legislature shall pass no private or local law relating to working streets, etc.

[Ed. Note.--For other cases, see Statutes, Cent. Dig. $ 109; Dec. Dig. $ 97.*)

Hirschberg, P. J., dissenting in part.
Appeal from Special Term, Westchester County.

Action by Alfred E. Smith against Benjamin E. Smythe, as Street Commissioner. From an order of the Special Term granting a temporary injunction, defendant appeals. Reversed.

The following is the opinion of Tompkins, J., at Special Term.

The questions raised by the plaintiff are of sufficient importance to require the court to preserve the present status of the parties until the constitutional and other questions can be determined after a trial of the issues, and I think that the village should spend no money on the streets in question until those questions can be decided after a trial. The case can be tried in March and no harm can come to any one by that delay. In the meantime, the so-called streets can be cared for as they have been heretofore, or the owners of the houses in the park can arrange for their care.

Motion granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, RICH, JENKS, and MILLER, JJ.

Wm. Lloyd Kitchel, for appellant.
Alfred E. Smith, pro se.

WOODWARD, J. This is a taxpayer's action, brought to restrain the defendant, as street commissioner of the village of Bronxville, from expending the money of the village in caring for the streets of Lawrence Park, a residential subdivision of the village. The ground of complaint is that the streets of this park place, which are proposed to be cared for, are only 14 feet wide, and cannot, therefore, be accepted by dedication (section 1, c. 201, p. 85, Laws 1897, amending Laws 1890, p. 1192, c. 568, § 80), and that it is a legal waste of the money of the municipality to employ it for lighting and caring for these ways.

The main question here depends upon the constitutionality of chapter 93, p. 126, of the Laws of 1907, amending the village law (Laws •For other cases see same topic & $ NUMBER In Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

1897, p. 366, c. 414); it being conceded, in effect, if this act is valid, there is no ground for the order of injunction, either pending the trial or at any time. This being true, there would seem to be no good reason for postponing the consideration of the question and forcing the parties to the expense of a trial, unless the act is in fact void. Section 170 of the village law, as amended, provides that:

"Whenever prior to the incorporation of any village now or hereafter incorporated, any portion of the territory subsequently included within the limits of such village has been subdivided on a map or plan thereof into building lots and designated as a park or by any other name, such portion of said territory being hereinafter designated as a 'subdivision, and in such subdivision streets or roads are laid out not less than fourteen feet in width, which the board of trustees of said village is unable to accept by dedication because such streets are too narrow, or for any other reason, or where in any such case said board of trustees is willing to light and care for such streets and roads without the same being dedicated, and more than fifty dwelling houses shall have been constructed in said subdivision, the board of trustees of said village may provide for the lighting and care of such streets and roads, or any part thereof, in like manner as the other streets and roads of said village, pro vided that the amount expended annually for such purposes shall not exceed one-fourth of one per centum of the assessed value of the real property in said subdivision."

The constitutional objections suggested are that this act violates section 10 of article 8 and section 18 of article 3 of the state Constitution. Section 10 of article 8 provides that:

No "county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation,

nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes."

We apprehend that if the Legislature had, by an amendment to the village law, provided that the board of trustees of any village containing a park place might accept by dedication all streets, roads, or ways in such park place, no one would be found to suggest that this was giving the money or property, or loaning the money or credit of the village to any individual, association, or corporation, or that it was not a “county, city, town or village” purpose. Such a park place, used for residential purposes by those making up the municipal corporation, is property subject to taxation for village purposes. It is within the police power of the village; and, the streets and roads being open to public use, the mere fact that they may be in law private roads does not make their care and maintenance a private gratuity. These roadways, for all practical purposes, serve the uses of the village in the same sense that the general highways serve them, and the people situated along these private roadways, open to the general uses of the community, and who contribute their ratable share of taxes, have a natural right to have these ways lighted and cared for; and the mere fact that they are not received by the community under a dedication does not deprive the Legislature of the power to recognize this right. It does not seem necessary to cite authorities on a proposition so obvious, though the books are full of cases which might be brought to the support of this conclusion. The act does not, in letter or in spirit,

We are equally clear that it does not controvert the provision of section 18 of article 3 of the Constitution, which provides that the Legislature shall not pass a private or local bill in any of the following cases :

Laying out, opening, altering, working or discontinuing roads, highways or alleys.”

The same section inhibits private or local bills "incorporating villages," and this would unquestionably go to the amendments, so that we start with the presumption, which is not questioned, that this was not a private or local bill. The act is entitled "An act to amend the village law, relative to lighting certain streets and roads in subdivisions of villages," and the subject matter of the act is in harmony with the general title. The act itself does not pretend to deal with the lighting and care of the streets. It merely gives power to the board of trustees, under certain conditions, to assume the duty of lighting and caring for streets and roads within the limits of villages, in the same manner that other streets were dealt with, and this is an entirely proper power to be vested in such trustees.

The vice in the statute in Matter of Henneberger, 25 App. Div. 164, 49 N. Y. Supp. 230, Id., 155 N. Y. 420, 50 N. E. 61, 42 L. R. A. 132, was that it confined its operations to a particular highway in a particular community. It was, in effect, a bill, not to give powers to local officers to deal with highways under general rules, however restricted, but a special act, under the guise of a general law, to provide for the appointment by the Supreme Court of three commissioners to widen and improve a particular highway pointed out by the statute, and so hedged about that it could not have been made to operate in any other place in the state. That was an act to alter a particular highway in the village of New Rochelle. It did not seek to amend the village law, giving power to villages of the class and conditions of the village of New Rochelle to widen highways; but it sought to place it in the power of abutting owners upon a particular highway to make improvements through commissioners appointed by the Supreme Court which the village authorities were not willing to make. The case affords no authority for the contention of the respondent here, and we are clearly of the opinion that the presumption of constitutionality which inheres in all acts of the Legislature has not been overcome by anything which has been suggested by the plaintiff in this action; and it is only in a clear case that the courts are justified in interposing. No considerations of justice or of public policy appear to warrant this injunction. The order appealed from should be reversed.

Order reversed, with $10 costs and disbursements.

JENKS, RICH, and MILLER, JJ., concur. HIRSCHBERG, P. J., votes for affirmance, for the reasons stated in the opinion of Mr. Justice Tompkins at Special Term, reserving judgment on the question discussed in the opinion here until it can be determined in review, instead of in the first instance on appeal.

116 N.Y.S.-68

VILLAGE OF WAVERLY V. WAVERLY, S. & A. TRACTION CO. et al.

(Supreme Court, Appellate Division, Third Department. May 5, 1909.)

1. STREET RAILROADS ($ 28*)—CONSTRUCTION OF FRANCHISE-SWITCHES AND

EXTENSIONS.

A franchise gave the right to build a street railroad on B. street to its intersection at right angles with C. street, and thence north thereon, but no part of the route was to be west of the center of line of C. street and the center line of the road was to coincide with the center line of the street, though necessary switches, were permitted. It was sought to connect the tracks at the street intersection with a private right of say extending westerly from the westerly line of C., the north and south street near the northerly line of B. street. Held, that, while the point where the movable rails of the diverging tracks would connect, it would be a switch as ordinarily understood, from that point, and especially from the point where the proposed diverging tracks separate from the present tracks to the west line of C. street, it was an extension of the line, but that, whether it was a switch or an extension, it would run to the west of the track on C. street, and was therefore outside the limits of the franchise.

(Ed. Note.--For other cases, see Street Railroads, Dec. Dig. § 29.* ] 2. INJUNCTION ($ 128*)—TEARING UP STREET FOR STREET RAILROAD-EPIDESCE.

That defendant street railroads undertook under cover of night to las tracks is convincing proof that they then supposed that they had no lav. ful right to tear up the street at the place in question, and that they then believed they were laying an unauthorized extension, and not a mere switch.

[Ed. Note.-For other cases, see Injunction, Dec. Dig. & 128.*] 3. STREET RAILROADS ($ 28*)–CONNECTION WITH INTERURBAN LINE.

Laws 1890, p. 1084, c. 565, $ 4, subd. 5, giving any railroad the right “to cross, intersect, join or unite its railroad with any other railroad before constructed at any point on its route," authorizes a connection of roads which do not in fact intersect, but come so near together that it becomes desirable, as where two interurban street railroads are within about 300 feet of each other.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. & 28. *] 4. STREET RAILROADS ($ 28*)_CONNECTION OF INTEBURBAN LINES-RIGUTS AND

AUTHORITY OF VILLAGE TRUSTEES.

Where connection is proposed to be made in a village street between interurban lines for the purpose of exchanging cars, the village trustees have the right to participate in determining the place and manner of making the intersection, though they would have no right to impose unreasonable or unusual conditions, or conditions intended to defeat or prerent it.

[Ed. Note.-For other cases, see Street Railroads, Dec. Dig. § 28.*] Appeal from Special Term, Tioga County.

Injunction by the Village of Waverly against the Waverly, Sayre & Athens Traction Company and others. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Appeal by each of the defendants from a judgment of the Supreme Court, entered in the clerk's office of the county of Tioga, on the 18th day of March, 1908, on a decision of the court after a trial at Special Term.

The defendant Waverly, Sayre & Athens Traction Company is a corporation operating a street surface railway in the village of Waverly, and its liner tend through Waverly and South Waverly to Sayre and Athens, in Pennsylvania. In 1893 the trustees of the plaintiff granted a franchise upon certain conditions to a corporation known as the “Susquehanna Valley Electric Trac

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tion Company" to operate a street surface railway upon certain streets of the village described therein, one route being "through Broad street to Chemung street; thence along and through Chemung street to Ithaca street, and also to construct such switches and turnouts as may be necessary for the convenience and useful working of the street railroad.” No part of the route described in such franchise is located west of the center line of Chemung street. One of the conditions upon which the franchise was granted was that “the center line of such railroad shall at every point along its route, except as otherwise designated by this board of trustees, coincide with the center line of the street or avenue upon which it is constructed."

The defendant the Waverly, Sayre & Athens Traction Company succeeded to the rigits, privileges, and franchises of said Susquehanna Valley Electric Traction Company in 1894. The defendant Elmira, Corning & Waverly Railway is a corporation which, at the time of the trial, was engaged in the construction of railroad running from Waverly westerly through Elmira to Corning. The contractor for such construction is the defendant Powers & Mansfield Company. Broad street is one of the principal thoroughfares in the plaintiff village, and intersects Chemung street at right angles. The tracks of the defendant Waverly, Sayre & Athens Traction Company run along the center of Broad street westerly to Chemung street, where they turn into and extend northerly along the center line of Chemung street. That company has also built a line on a private right of way, extending westerly from the westerly line of Chemung street near the northerly line of Broad street, as that street is continued, about 300 feet in a cul de sac westerly of its intersection with Chemung street, and such line constructed on said private right of way connects with the line of the Elmira, Corning & Waverly Railway at a point about 600 feet from the westerly line of Chemung street.

On April 30, 1906, the traction company and the company operating the railway entered into a trackage and traflic agreement for their mutual advantage, under which they agreed to make connection between their respective tracks. None of the defendants has obtained any consent or permission from the plaintiff to build, operate, maintain, or extend the railroad or tracks in question. On the night of October 12, 1906, a little before midnight, a body of Letween 200 and 500 Italian laborers came to the intersection of Broad and Chemung streets and commenced digging up the street west of the tracks of the traction company on Chemung street and north of its tracks on Broad street. Such laborers were under the direction of an employé of the Powers & Mansfield Company and were the same men who were at that time employed in the construction of the Elmira, Corning & Waverly Railway Company line west of Waverly, and they were employés of the Powers & Mansfield Company. The president of the village appeared upon the scene and called out special policemen and the menibers of the fire department, and the laborers were driven off the street and were not permitted to complete the construction of the tracks begun by them at that place. This action followed, and the court, after a trial, has found that the carrying out of such work constituted a nuisance, that in attempting to do it the defendants were trespassers, and has granted a judgment containing a permanent injunction enjoining the defendants from constructing a railroad at the point in question, without first hav. ing obtained the consent of the local authorities having control of the streets, and from such judgment all the defendants have appealed.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

Frederick C. Hawkes, for appellant Powers & Mansfield Co.

Thomas J. Keenan, for appellant Waverly, Sayre & Athens Traction Co.

Frederick Collin, for appellant Elmira, C. & W. Ry.
H. D. Hinman, for respondent.

CHESTER, J. The Waverly, Sayre & Athens Company insists that, under the franchise to the Susquehanna Valley Electric Traction

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