City of New York v. Staten Island Rapid Transit Railway Co.

New York Court of Appeals

City of New York v. Staten Island Rapid Transit Railway Co.

14 N.E.2d 803, 277 N.Y. 485, 1938 N.Y. LEXIS 1010

CourtNew York Court of Appeals

DecidedApril 12, 1938

StatusPublished

Cited by2 cases

This text of 14 N.E.2d 803 (City of New York v. Staten Island Rapid Transit Railway Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of New York v. Staten Island Rapid Transit Railway Co., 14 N.E.2d 803, 277 N.Y. 485, 1938 N.Y. LEXIS 1010 (N.Y. 1938).

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Opinion

Per Curiam.

The question certified is whether the first cause of action of the third amended complaint states facts sufficient to constitute a cause of action. This cause of action alleges that prior to the year 1921, defendant, without obtaining the consent of plaintiff, constructed on Wave street in the borough of Bichmond a spur track and siding connecting with its main line and that without right or authority continued until October 19, 1935, to operate this spur track. The law is settled that under such conditions a municipal corporation may not recover for use and occupation of public highways. (City of New York v. Bee Line, Inc., 271 N. Y. 595; City of New York v. Tompkins Bus Corp., 271 N. Y. *488 597.) The present action is based upon a trespass by defendant. We hold that no essential difference in principle exists on the facts as pleaded between a right to recover for use and occupation of a public highway and for damages for a trespass thereon. In each instance compensation is sought for an illegal act which, during the years, the municipal authorities made no effort to prevent.

The orders so far as appealed from should be reversed, with costs in all courts, and the certified question answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Lohghran, Finch and Rippey, JJ., concur.

Ordered accordingly.

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Per Curiam.

The question certified is whether the first cause of action of the third amended complaint states facts sufficient to constitute a cause of action. This cause of action alleges that prior to the year 1921, defendant, without obtaining the consent of plaintiff, constructed on Wave street in the borough of Bichmond a spur track and siding connecting with its main line and that without right or authority continued until October 19, 1935, to operate this spur track. The law is settled that under such conditions a municipal corporation may not recover for use and occupation of public highways. (City of New York v. Bee Line, Inc., 271 N. Y. 595; City of New York v. Tompkins Bus Corp., 271 N. Y. *488 597.) The present action is based upon a trespass by defendant. We hold that no essential difference in principle exists on the facts as pleaded between a right to recover for use and occupation of a public highway and for damages for a trespass thereon. In each instance compensation is sought for an illegal act which, during the years, the municipal authorities made no effort to prevent.

The orders so far as appealed from should be reversed, with costs in all courts, and the certified question answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Lohghran, Finch and Rippey, JJ., concur.

Ordered accordingly.

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Bluebook (online)

14 N.E.2d 803, 277 N.Y. 485, 1938 N.Y. LEXIS 1010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-staten-island-rapid-transit-railway-co-ny-1938.

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