Rochester and Honeoye Valley Railroad Company, Respondent, v. The City of Rochester, Appellant

Rochester and Honeoye Valley Railroad Company, Respondent, v. The City of Rochester, Appellant. R. & H. V. R. R. Co. v. City of Rochester, 17 App. Div. 357, modified. (Submitted June 12, 1900; decided June 22, 1900.) Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 22, 1897, affirming a judgment in favor of plaintiff entered upon the report of a referee. P. M. French for appellant. Joseph W. Taylor for respondent. [MAJORITY] The judgment should be so modified that, after its recitals, the 2d clause shall read as follows: “ Second. That the defendant, The City of Rochester, and its official authorities, have not, under the provisions of chapter 62 of the Laws of 1853, the right to lay out the proposed street across the land and tracks of the plaintiff, without compensation : ” And so that its 4th clause shall read : “ Fourth. That the defendant, its officers and agents, and each of them, and all persons acting under it, them, or either of them, be perpetually enjoined and restrained 'from opening said street or streets, pursuant to the provisions of chapter 62 of the Laws of 1853, across and upon plaintiff’s said premises, and from proceeding any further, pursuant to said chapter 62 of the Laws of 1853, in the proceedings instituted by it to open the streets hereinabove referred to, or any part thereof, so far as the same affect the land of the plaintiff hereinabove and in the complaint described,” and, as so“modified, the judgment should be affirmed, with costs; no opinion. Concur: Parker, Ch. J., O’Brien, Bartlett, Haight, Vann, Landon and Cullen, JJ.