Mary P. Murdfeldt et al., Appellants, v. The New York, West Shore and Buffalo Railway Company, Respondent

Mary P. Murdfeldt et al., Appellants, v. The New York, West Shore and Buffalo Railway Company, Respondent. (Argued April 36,1886; decided June 1, 1886.) This action was brought to compel the specific performance of a covenant in a deed, by which defendant agreed to construct and maintain a passage-way under its railway. Also to recover damages for alleged trespasses. As to the first cause of action the court say: “In view of the difficulty in constructing a useful passage under the railroad, and the inutility to plaintiffs of such passage if constructed, it was certainly within the discretion of the court below, in the exercise of its equitable jurisdiction, to deny specific performance of defendant’s contract to construct the passage, and leave the plaintiffs to their remedy for damages for breach of the covenant. (Trustees of Columbia College v. Thatcher, 87 N. Y. 311.) ” As to the second cause of action the court held there was no evidence of any trespasses committed by defendant; also that but one of the plaintiffs, who was tenant for life (the other plaintiffs owning the remainder), was entitled to damages, if any had been proved. E. A. Brewster for.appellants. A. S. Oassedy for respondent. [MAJORITY — Earl, J.,] Earl, J., reads for affirmance. All concur. Judgment affirmed