Swift v. Delaware, Lackawanna & Western Railroad

58 A. 939, 66 N.J. Eq. 452, 21 Dickinson 452, 1904 N.J. LEXIS 206

Opinion

Per Curiam.

We concur in that part of the opinion delivered in.this cause by the learned vice-chancellor which holds that the' alleged contract between the defendant railroad company and private persons for the permanent maintenance of grade crossings over certain streets in the city of Newark must, so far at least as the right to specific performance is concerned, be deemed subject to the public duty of that company and to the police power of the legislature vested by the act of 1893 (P. L. of 1898 p. 167) in the municipal authorities of the city to secure the safety of public highways. The authorities of the city and of the railroad company having both determined that those crossings unnecessarily endangered public travel, we think, on that ground, an injunction «forbidding their removal was rightly refused.

This being our conclusion, we refrain from expressing either concurrence in, or dissent from, the other propositions set forth in that opinion.

For affirmance — Dixon, Garrison, Fort, Swayze, Bogert, Wredenburgii, Vroom, Green, Gray — 9.

For reversal — None.