The People of the State of New York, Respondent, v. The Genesee Valley Canal Railroad Company et al., Appellants

The People of the State of New York, Respondent, v. The Genesee Valley Canal Railroad Company et al., Appellants. (Argued March 11, 1884 ; decided March 21, 1884.) This action was brought to restrain defendants from building the Genesee Valley Canal railroad upon the line adopted by it through the village of Nun da, and tb compel its construction .upon another route. The complaint was dismissed. Defendant made an application for an extra allowance; this was denied. The order stated that “ this is a difficult and extraordinary case within the meaning of section 3253 of the Code of Civil Procedure * * * * but that the value of the subject-matter involved in this action cannot be computed, and that this is not a proper case for such an allowance. ” The court here say: “ The substantial question involved in this action was the right of the defendant, The Genesee Valley Canal Railroad Company, under its charter and the contract with the State, to construct its road upon the line located by the company near the village of Nunda, instead of upon the route of the Gene-see Valley canal, through that village. The court dismissed the complaint. If the action had been maintained, the railroad company would have been deprived of the franchise claimed by it to construct the road on the located line. The primary interest involved in the controversy was the value of the disputed franchise. The amount the company had expended upon the located line would not be the measure of value, noi would the increased cost of constructing the road on the line of the canal furnish such measure. The franchise, if undisputed, may have been valueless. There is no evidence upon that subject, and we concur with the General Term that the papers present no facts as a basis of computation upon which to predicate an extra allowance.” George Zabriskie for appellants. Dennis O' Brien, attorney-general, for respondent. [MAJORITY — Andrews, J.] Andrews, J. reads for affirmance, with costs. All concur. Order affirmed.