Opinion
Argued December 12, 1887
Decided January 17, 1888
William Sullivan for appellants.
Thomas E. Pearsall for respondent.
The real purpose of this action is to compel the defendant to maintain the terminus of its road at the intersection of Fort Hamilton avenue and the Shore road, as fixed by the consents of 1861, and to prevent the company from changing it from that point to a point on the Shore road, distant about 600 feet from the intersection of the two streets mentioned. The other relief demanded is auxilliary to this main purpose. The plaintiffs, in bringing the action, claim to represent the interests of the public. The findings, however, show that the proposed change in the terminus of the road is demanded by public convenience and safety. It is found that the operation of the road along Fort Hamilton avenue and the Shore road was and is a dangerous obstruction to travel, and also that by the establishment of the proposed depot the public will be accommodated and a dangerous obstruction will be removed from the highway.
It appears that the proposed change in the terminus will involve the abandonment of about 1,000 feet of the road. The plaintiffs, by not incorporating the evidence in the record, have assented to the correctness of the findings. Upon the facts found the action is apparently prosecuted by public officers, not to subserve the public interests, but in hostility to them. The plaintiffs insist that they are entitled to maintain the action on the ground that the defendant is under a legal obligation to maintain and operate the road over the entire route specified in the consents of 1861, and to the precise terminus therein mentioned. There would be great difficulty in maintaining an action to compel the performance of this obligation even if the public interests required its observance. ( People v. Albany and Vermont R.R. Co., 24 N.Y. 261; Palmer v. Fort Plain Plank Road Co. 11 id. 376.) But it is, we think, a conclusive answer in this case to the remedy by injunction that no public injury will result from the proposed action of the defendant. The threatened violation of a mere naked legal right, unaccompanied by special circumstances, is not a ground for injunction when, as in this case, legal remedies are adequate to redress any resulting injury. ( McHenry v. Jewett, 90 N.Y. 58; 2 Story's Eq. § 927, C.) If the defendant violates its charter, or fails to perform the conditions under which it exercises its franchises, or if in the management of its trains or business it unlawfully occupies or obstructs the public highway, the remedy in the one case is by a proceeding in behalf of the People by the attorney general to annul or forfeit its franchise, and in the other by indictment or proceedings under the statute. We are also of opinion that in respect to the main relief the plaintiffs, as highway commissioners, have no legal capacity to maintain the action. This is not an action brought to "sustain the rights of the public in and to a highway, or to enforce the performance of any duty enjoined upon a railroad corporation in relation to a highway," within the act of 1855 (Chap. 255), nor is it maintainable under the general law regulating the power and duties of commissioners of highways. ( Cornell, etc. v. Butternutts, etc., Turnpike Co., 25 Wend. 365; Same v. Town of Guilford, 1 Den. 510; Palmer v. Fort Plain Plank Road Co., supra.)
The judgment should be affirmed.
All concur.
Judgment affirmed.