Manhattan Bridge Three-Cent Line, Appellant, v. Third Avenue Railway Company and Others, Respondents

Manhattan Bridge Three-Cent Line, Appellant, v. Third Avenue Railway Company and Others, Respondents. Second Department, January 17, 1913. Municipal corporation — street railroad, city of New York — unlawful assumption of right to use public highways — consent, of local authorities insufficient in absence of franchise — abatement of public nuisance — suit by private individuals — special damage essential — injunction pendente lite denied. The commissioner of bridges of the city of New York cannot license a street surface railroad to operate over a highway within the boundaries of the city of New York which is neither named nor described in the original certificate of incorporation nor in any certificate of extension thereof, and which has not obtained any franchise therefor in the manner prescribed by law. Such license or consent is of no avail, and the operation of a railroad over such highway constitutes a public nuisance. A public or common nuisance cannot be lawfully abated at the suit of a private individual or corporation, unless such person is a party specially aggrieved, that is to say, one who has suffered greater injury by reason of the unlawful acts than the public generally. Such special injury must be alleged and proved. Thus, a street surface railroad company in the city of New York will not be enjoined pendente lite from operating over a bridge without a franchise therefor merely because it comes in direct competition with the plaintiff’s road over the same route, causing alleged damage by loss of fares, ■ delay, etc., where, under the plaintiff’s franchise, the city is expressly authorized to grant similar franchises to other corporations or individuals. This, because if the competition be injurious it would be equally so had the defendant a franchise to operate upon the bridge, and, hence, there is no special damage authorizing a temporary injunction. Appeal by the plaintiff, the Manhattan Bridge Three-Cent Line, from an order of the Supreme Court, made at the Kings-County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of November, 1912, vacating a temporary injunction and denying the plaintiff’s motion to continue the same pendente lite. Almet Reed Latson [ Ward W. Pickard with him on the brief], for the appellant. Charles L. Woody [George D. Yeomans, James L. Quackenbush, Frederick J. Fuller and Edward D. Kelly with him on the brief], for the respondents, railroad companies. William P. Burr [ William J. Clarke with him on the brief], for the respondent O’Keeffe. [MAJORITY — Burr, J.:] Burr, J.: It is difficult to resist the conclusion that the defendant railroad companies are operating a street surface railroad over a highway, within the boundaries of the city of New York, which is neither named nor described in the original certificate of incorporation of either of said companies, nor in any certificate of extension thereof, and that neither of said companies has obtained any franchise therefor in the manner prescribed by law. If such is the case, the so-called license or consent of the defendant, the commissioner of bridges, is of no avail (Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N. Y. 244; Delaware, L. & W. R. R. Co. v. City of Buffalo, 158 id. 266, 478; Hatfield v. Straus, 189 id. 208; Richards v. Citizens’ Water Supply Co., 140 App. Div. 206), and their acts constitute a public nuisance. (Fanning v. Osborne, 102 N. Y. 441; Central Crosstown R. R. Co. v. Met. St. R. Co., 16 App. Div. 229.) But a nuisance which is common or public in its nature cannot be lawfully abated at a suit in equity of a private individual or corporation, unless such person is a party specially aggrieved; that is, one who has suffered greater injury by reason of defendant’s unlawful acts than the public generally (2 Wood Nuis. [3d ed.] § 839; Central Crosstown R. R. Co. v. Met. St. R. Co., supra; City of Yonkers v. Federal Sugar Refining Co., 136 App. Div. 701, 707), and this must be both alleged and proved. (Wood Nuis., supra.) Upon this branch of the case, we deem the allegations of the complaint, and such evidence as was offered upon the hearing of the motion for an injunction pendente lite, too vague, speculative and indefinite to justify us in differing with the court at Special Term in the exercise of its discretion to deny such application. The complaint alleges, first, that the operation of the cars of defendant companies over the Manhattan bridge will come in direct competition with plaintiff’s road over the same route; and, second, that this will cause damage to plaintiff in the loss of fares and in delay and inconvenience in the operation of its cars. So far as the first ground of special damage is concerned, plaintiff has, and can have, no exclusive right to operate its cars over the Manhattan bridge. By the express terms of its franchise, nothing therein contained should be deemed to affect in any way the right of the city to grant to any other corporation or to any individual a similar right or privilege upon the same or other terms and conditions. If competition is injurious, it will, be equally so if" it is lawful competition as if it is unlawful. The gravamen of plaintiff’s complaint is that defendants’ operation of cars over the Manhattan bridge is unlawful. No special damage, so far as plaintiff’s income is concerned, can result from the character of such operation. Neither is there any satisfactory evidence as to the effect, if any, of competition. ' The routes of defendant companies (some portion of which, so far as is here disclosed, are lawful routes) are in their entirety essentially different from that of plaintiff. In view of that fact,'we do not think that it clearly appears that defendants’ patrons, if defendants should be restrained from operating cars over the bridge, would become patrons of plaintiff. Neither is there any satisfactory evidence that plaintiff has been or will be delayed in the operation of its cars. Unless there was a great congestion of cars upon the tracks over the bridge, or unless the cars of defendant companies were operated at a different rate of speed than those of plaintiff, it is difficult to see how such a result could follow. Neither of these facts appear. It must be borne in mind that plaintiff .is not the owner of any tangible property upon the bridge, such as tracks, or mechanism for transmitting power.. All of these are the property of the city of New York, and in this respect the case differs from Central Crosstown R. R. Co. v. Met. St. R. Co. (supra). It may be that upon the trial of this action more satisfactory and convincing "proof as to special damage will be presented. For the present and upon this record, we think that the order denying the motion for an injunction pendente lite should be affirmed. Hirschberg, Thomas, Carr and Woodward, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.