Edward T. Bartlett, J.
The Special Term awarded to the plaintiff, an owner of property abutting upon the Ninth Avenue line of defendant’s elevated railway, in the city of New York, a money judgment and an injunction against the ¡naintenance or in any way using the center or third track
upon the elevated railroad structure in front of the plaintiff’s premises, described in the complaint, and known as Bo. 461 Bintli avenue, between 35tli and 36th streets, except to remove the same, and from operating trains of cars thereon, on and after sixty days from entry of judgment and due service of a copy of t,he judgment and notice of entry thereof, with the usual alternative provision that if within the time limited the defendant should pay to plaintiff the sum of $1,200, for the conveyance of the easements appropriated for the use of the center or third track, then the said injunction should not operate. This appeal is taken by the plaintiff from that part of the judgment which provides for the avoidance of the injunction by the payment of the damages awarded. The record consists of the judgment-roll, no evidence being printed in the case.
The Appellate Division having determined by unanimous decision that there is evidence supporting, or tending to sustain, the findings of fact, they are conclusive here.
The manner in which this case is now presented is unusual. The legality of the defendant’s construction and operation of the center or third track is not before us. It is conceded and found that the defendant’s erection of that track in 1894 was without legislative authority or municipal consent. As was well observed by the learned judge writing the opinion of the Appellate Division, that if certain findings were considered alone, it would follow that a mandatory injunction should issue compelling the defendant to remove the center or third track from in front of the plaintiff’s premises. There are, however, additional findings which influenced the Supreme Court, sitting in equity, to exercise its discretionary power and refuse the issuance of a mandatory injunction.
The plaintiff’s position briefly stated is, that there are no findings which justify the conclusion reached by the Appellate Division, and that it is the absolute right of the plaintiff to compel the defendant to remove the center or third track. It thus appears that the important question for our consideration is whether the Appellate Division properly exercised its "discretion in vieitf of the facts as found.
It appears from the findings that the defendant, in good, faith and relying upon the authority of certain acts of the legislature, constructed the third track. These findings are the twenty-second, twenty-third, twenty-fifth and twenty-sixth, quoted at the head of this opinion.
The twenty-second finding refers to certain rights, privileges and franchises granted to the defendant’s predecessor company, under chapter 489 of the Laws of 1867, and acts amendatory thereof. The act of 1867 was amended by chapter 595 of the Laws of 1875. By section four of that act certain rights and franchises were conferred upon the New York Elevated Eailroad Company, defendant’s predecessor, and among others the following:
“
And the location of the lines or routes not specifically located by law, and the position and construction of the tracks, sidetracks, turnouts, stations and other structures which said company is or may be authorized by law to construct, may be such as said company may adopt and the said commissioners approve.”
The twenty-third finding is to the effect that in November, 1867, the commissioners of the New York Elevated Eailroad Company approved a plan of additional track, which provided for four tracks in front of plaintiff’s premises, one of which was a switch, crossover or connecting track, and three of said tracks were actually constructed and used prior to the year 1880.
The twenty-fifth finding states, in substance, that in July, 1894, a third track was constructed in front of plaintiff’s premises in addition to the structure as it existed prior thereto, the construction of which had been, in.the month of December, 1893, duly authorized by said commissioners in so far as they had power so to do, and was constructed under color of such authority.
The twenty-sixth finding, in substance, is that the plaintiff had knowledge that this switch, siding or third track was being constructed and has ever since been familiar with its use and effect.
We are of opinion that the trial court and the Appellate
Division were justified in reaching the conclusion, in view of the findings just referred to, that this is not a case of wanton trespass or the arbitrary creation of a nuisance in a public highway ; but that it sufficiently appears, as a matter of fact, that the defendant acted in good faith. It is true that the Appellate Division of the first department, in
Auchincloss
v.
Metropolitan El. Railway Company
(69 App. Div. 63) decided at February term, 1902, held that the commissioners, under the early acts already referred to, were not vested with the constitutional power to authorize a third track along Ninth avenue. The good faith of the defendant, however, does not depend upon what the ultimate decision of the court was in regard to the powers of the commissioners, but rather upon the interpretation thereof at the time the defendant acted in the premises.
There are other and weighty findings of fact to be considered that Justified the conclusion reached by the Appellate Division without regard to defendant’s good faith in laying the third track. Certain rights of the public have intervened during the years that have elapsed since the third track was used for the running of express trains. Findings twenty-eighth, twenty-ninth and thirty-first are, in substance, that the third track is a great public utility and constitutes a great public benefit; that the injury, if any, suffered by the plaintiff is small compared with the injury and incon venience which would result to- the defendant and to the public if the defendant is' compelled to remove the same; that if the third track should be removed, the defendant’s train service would thereby be seriously impaired; that by the removal of the third track the danger incident to the operation of trains on defendant’s railway would thereby be increased.
These are considerations which appeal strongly to a court of equity, and their force is in no wise abated by the fact that the plaintiff delayed her action, being in doubt as to the law governing the situation. This action was begun June 21st, 1902, the
Auchincloss Case (supra)
having been decided in February, 1902, declaring the power of the. commissioners.
upon which the defendant had relied, was derived from an unconstitutional statute. At that time the defendant had been running trains upon its third track for about eight years.
It is a familiar rule that the time at which a party appeals to a court of equity for relief affects largely the character of the relief which will be granted. The principle has frequently been applied in the decisions of this court and the Supreme Court of the United States.
In
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Edward T. Bartlett, J.
The Special Term awarded to the plaintiff, an owner of property abutting upon the Ninth Avenue line of defendant’s elevated railway, in the city of New York, a money judgment and an injunction against the ¡naintenance or in any way using the center or third track
upon the elevated railroad structure in front of the plaintiff’s premises, described in the complaint, and known as Bo. 461 Bintli avenue, between 35tli and 36th streets, except to remove the same, and from operating trains of cars thereon, on and after sixty days from entry of judgment and due service of a copy of t,he judgment and notice of entry thereof, with the usual alternative provision that if within the time limited the defendant should pay to plaintiff the sum of $1,200, for the conveyance of the easements appropriated for the use of the center or third track, then the said injunction should not operate. This appeal is taken by the plaintiff from that part of the judgment which provides for the avoidance of the injunction by the payment of the damages awarded. The record consists of the judgment-roll, no evidence being printed in the case.
The Appellate Division having determined by unanimous decision that there is evidence supporting, or tending to sustain, the findings of fact, they are conclusive here.
The manner in which this case is now presented is unusual. The legality of the defendant’s construction and operation of the center or third track is not before us. It is conceded and found that the defendant’s erection of that track in 1894 was without legislative authority or municipal consent. As was well observed by the learned judge writing the opinion of the Appellate Division, that if certain findings were considered alone, it would follow that a mandatory injunction should issue compelling the defendant to remove the center or third track from in front of the plaintiff’s premises. There are, however, additional findings which influenced the Supreme Court, sitting in equity, to exercise its discretionary power and refuse the issuance of a mandatory injunction.
The plaintiff’s position briefly stated is, that there are no findings which justify the conclusion reached by the Appellate Division, and that it is the absolute right of the plaintiff to compel the defendant to remove the center or third track. It thus appears that the important question for our consideration is whether the Appellate Division properly exercised its "discretion in vieitf of the facts as found.
It appears from the findings that the defendant, in good, faith and relying upon the authority of certain acts of the legislature, constructed the third track. These findings are the twenty-second, twenty-third, twenty-fifth and twenty-sixth, quoted at the head of this opinion.
The twenty-second finding refers to certain rights, privileges and franchises granted to the defendant’s predecessor company, under chapter 489 of the Laws of 1867, and acts amendatory thereof. The act of 1867 was amended by chapter 595 of the Laws of 1875. By section four of that act certain rights and franchises were conferred upon the New York Elevated Eailroad Company, defendant’s predecessor, and among others the following:
“
And the location of the lines or routes not specifically located by law, and the position and construction of the tracks, sidetracks, turnouts, stations and other structures which said company is or may be authorized by law to construct, may be such as said company may adopt and the said commissioners approve.”
The twenty-third finding is to the effect that in November, 1867, the commissioners of the New York Elevated Eailroad Company approved a plan of additional track, which provided for four tracks in front of plaintiff’s premises, one of which was a switch, crossover or connecting track, and three of said tracks were actually constructed and used prior to the year 1880.
The twenty-fifth finding states, in substance, that in July, 1894, a third track was constructed in front of plaintiff’s premises in addition to the structure as it existed prior thereto, the construction of which had been, in.the month of December, 1893, duly authorized by said commissioners in so far as they had power so to do, and was constructed under color of such authority.
The twenty-sixth finding, in substance, is that the plaintiff had knowledge that this switch, siding or third track was being constructed and has ever since been familiar with its use and effect.
We are of opinion that the trial court and the Appellate
Division were justified in reaching the conclusion, in view of the findings just referred to, that this is not a case of wanton trespass or the arbitrary creation of a nuisance in a public highway ; but that it sufficiently appears, as a matter of fact, that the defendant acted in good faith. It is true that the Appellate Division of the first department, in
Auchincloss
v.
Metropolitan El. Railway Company
(69 App. Div. 63) decided at February term, 1902, held that the commissioners, under the early acts already referred to, were not vested with the constitutional power to authorize a third track along Ninth avenue. The good faith of the defendant, however, does not depend upon what the ultimate decision of the court was in regard to the powers of the commissioners, but rather upon the interpretation thereof at the time the defendant acted in the premises.
There are other and weighty findings of fact to be considered that Justified the conclusion reached by the Appellate Division without regard to defendant’s good faith in laying the third track. Certain rights of the public have intervened during the years that have elapsed since the third track was used for the running of express trains. Findings twenty-eighth, twenty-ninth and thirty-first are, in substance, that the third track is a great public utility and constitutes a great public benefit; that the injury, if any, suffered by the plaintiff is small compared with the injury and incon venience which would result to- the defendant and to the public if the defendant is' compelled to remove the same; that if the third track should be removed, the defendant’s train service would thereby be seriously impaired; that by the removal of the third track the danger incident to the operation of trains on defendant’s railway would thereby be increased.
These are considerations which appeal strongly to a court of equity, and their force is in no wise abated by the fact that the plaintiff delayed her action, being in doubt as to the law governing the situation. This action was begun June 21st, 1902, the
Auchincloss Case (supra)
having been decided in February, 1902, declaring the power of the. commissioners.
upon which the defendant had relied, was derived from an unconstitutional statute. At that time the defendant had been running trains upon its third track for about eight years.
It is a familiar rule that the time at which a party appeals to a court of equity for relief affects largely the character of the relief which will be granted. The principle has frequently been applied in the decisions of this court and the Supreme Court of the United States.
In
Trustees of Columbia College
v.
Thacher
(87 N.
Y.
311) the plaintiff sought to enforce a covenant restricting the character of buildings in a certain locality. It appearing that after the lapse of time the neighborhood had so changed in character as to defeat the object sought to be attained by the covenant, it was held that the enforcement thereof was inequitable and oppressive upon the defendant and should not be decreed. The same principle is laid down in
McClure
v.
Leaycraft
(183 N.
Y.
36). This general doctrine was fully examined in the cases of
New York City
v.
Pine
(185 U. S. 93) and in
Penrhyn Slate Company
v.
Granville Electric Light & Power Company
(181 N. Y. 80). Ih the last two cases many authorities are cited.
The trial court found (findings 31 and 35), in substance, that any damages suffered by the plaintiff in the premises can be adequately compensated by the payment of such amount as the court should find; that the payment to the plaintiff of just compensation would be a remedy for her injuries as adequate as would be the removal of the third track.
There can be no doubt that the existence of this third track for so many years upon which express trains have been run does constitute a great public benefit. The transportation of passengers back and forth upon the narrow island of Manhattan lias been for years a problem growing more and more difficult of solution, and for a court of equity to compel the removal of, or the dangerous interference with, the third track, subjecting the public not only to inconvenience but danger, would not be a wise exercise of its discretionary
power. A court of equity is not bound to issue an injunction when it will produce a great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right.
(Gray
v.
Manhattan Railway
Co., 128 N. Y. 499.)
We do not mean to intimate that the premises in question have not been damaged in the easements of light, air and access by the construction of this third track; but, in view of public interests and the long delay in instituting this action, plaintiff is properly compelled to abide by the judgment of the court of equity to which she has resorted, or bring her action for damages in a court of law.
There is one other consideration urged by the defendant against the issuing of a mandatory injunction which is found in finding twenty-seventh. It is undoubtedly the fact that the defendant having constructed its tlfird track in front of the plaintiff’s premises without legislative authority or municipal consent, is in no condition to institute condemnation proceedings to acquire property rights; but, nevertheless, it may be regarded as a corporation acting in good faith and serving the public for 'a long series of years without interference. It, thereforq, follows that the defendant was justified in acquiring easements in aid of the construction of its third track by entering into contracts with abutting owners.
In the twenty-seventh finding it appears that the defendant has expended since the year 1894 over $800,000 in acquiring the easements of abutting owners along the line of the third track, and has secured the consent of the owners of property representing 26,927 lineal feet along Ninth and Columbus avenues out of a total of 39,514 feet. These facts were urged upon the court below and doubtless had some influence in the decision reached.
We have not deemed it necessary to examine the many questions and cases discussed in the voluminous briefs of counsel, as we have reached the conclusion that the learned Appellate Division wisely exercised its discretion in the premises.
The judgment appealed from should be affirmed, with costs. The parties hereto are hereby allowed thirty days from the time a copy of this judgment is duly served upon the plaintiff, or her attorney, in which to carry out the provisions of the judgments of the trial court and the Appellate Division.
Cullen, Ch. J., Gray, O’Brien, Werner, Hiscock and Chase, JJ., concur.
Judgment affirmed.