People agt. The Hudson River Railroad Company.

the streets or avenues of the city of New York westerly of and including the Eighth avenue, and on or westerly of Hudson street, provided the assent of the corporation of said city be first obtained for such location; but the said railroad company shall not infringe upon the rights or privileges of the Harlem Railroad Company, heretofore incorporated, by using any track or line of the road contiguous to or alongside of their track, nor by running nearer to any such track on the island of New York than the Eighth avenue and Hudson street, in the city of New York; nor shall the said Hudson River Railroad Company locate any part of their line east of or within one mile of the said Harlem Railroad, in the county of Westchester. Nor shall the said Hudson River Railroad Company locate any part of their line or lines upon a grade exceeding twenty-five feet to the mile."

From the above it is obvious that the defendants, the Hudson River Railroad Company, are prohibited from locating their railroad on any of the streets or avenues which are eastward of the Eighth avenue or Hudson street; that they cannot make even this location without the permission of the corporation; and that to make the prohibition still more imperative, the legislature have directed that they should not run their track nearer to the track of the Harlem Company than the Eighth avenue and Hudson street.

Again, the corporation of the city are only authorized to give a permission to the railroad company to run on streets which include or are westerly of the Eighth avenue or Hudson street.

To that extent, but no further, are the powers of the corporation enlarged.

Without the action of the legislature, they would have had no power over the subject (Cases supra).

It appears from the complaint that College Place and Warren street and Broadway, lie south-easterly or easterly of the line of the Eighth avenue and Hudson street (Complaint, fols. 29-31), and nearer to the track of the Harlem Railroad Company than the Eighth avenue and Hudsor

People agt. The Hudson River Railroad Company.

street (Id). The resolution of December 20th, 1864, is therefore simply void.

III. The proviso contained in the fifth section of the act of 1848 (Laws of 1848, p. 43), does not aid the defendants, nor affect the question presented by the papers in this case, because the location of a track easterly of the Eighth avenue or Hudson street, would not be lawful with or without the assent of the corporation of the city of New York.

IV. The resolution is also void, because it is in violation of the charter of the city of New York, and of the acts of the legislature of 1854 and 1860, referred to in the complaint. (Laws of 1854, p. 323; Laws of 1860, p. 16.)

V. The railroad tracks laid down by the defendants, the Hudson River Railroad Company, being an unauthorized obstruction of a public street or highway, constitute a public nuisance (Davis agt. The Mayor, &c. of New York, 14 N. Y. p. 506).

As such their continuance can be restrained, and their removal ordered at the suit of the people. (Attorney General agt. Cohoes Co. 6 Paige, 133; People agt. N. Y. and Harlem R. R. Co. 26 How. 53; Davis agt. The Mayor, &c. 14 N. Y. 526, and cases cited.)

VI. The complaint shows that the tracks in question are specially injurious to the plaintiff, the Broadway and Seventh Avenue Railroad Company; that they interfere with the prosecution of their business, and affect their gains and emoluments (Complaint, fols. 36, 41).

Those plaintiffs are, therefore, entitled to the relief which they ask in this action. (Milhau agt. Sharp, 27 N. Y. 612; Doolittle agt. Supervisors of Broome, 18 N. Y. 160; Corning agt. Lawrence, 6 Johns. Ch. 49.)

VII. The pretence set up that the branch road constructed from the west side of Church street east to Broadway, was by way of station accommodation, is a mere apology for a violation of the prohibition of the statute.

No necessity existed, even if the station accommodations were required, of running tracks in that direction, instead

People agt. The Hudson River Railroad Company.

of running them to the west, and keeping within the letter and plain intent of the statute.

The necessity which would justify such a proceeding as within the intent of the statute, though contrary to its letter, must be extreme and overwhelming, and the defendants presented no such case.

VIII. The order appealed from should be affirmed, with costs.

T. M. NORTH, and C. A. RAPALLO, for appellants.

By the court, DALY, J. An injunction was granted in this case, restraining the defendants from extending the track of their railroad through Warren street to Broadway.

It is very clear that the defendants have no authority to do so, unless it is conferred upon them by their act of incorporation. (Milhau agt. Sharp, 27 N. Y. 612; Laws of N. Y. 1864, § 323; Laws of N. Y. 1860, § 16.)

By the first section of the act (Laws of New York, 1846, p. 272), they are authorized to construct a railroad between the cities of Albany and New York, commencing in the city of New York (the consent of the city being obtained), with power to construct such branch or branches for depot and station accommodations, as may be required for the business of the road, and the fourth section of the act declares that the road may be located on any of the streets or avenues of the city of New York westerly of, and including the Eighth avenue, and on or westerly of Hudson street; provided, the assent of the corporation of the city be first obtained for such location; but that the defendants shall not infringe upon the rights or privileges of the Harlem Railroad Company, by using any track or line of the road contiguous to or alonside of their track, nor by running nearer to it on the island of New York than the Eighth avenue and Hudson street.

The power to construct branches for depot or station. accommodation, is, as respects the city of New York, limited to the space designated by the act, as that within which the

People agt. The Hudson River Railroad Company.

railroad may be located in the streets or avenues of the city; that is, on or westerly of the Eighth avenue or Hudson street, and the limit of Hudson street is, I think, fairly designated by the act as the point of commencement; or it may be that branches may be extended for depot or station accommodation beyond that, westerly of such a line as would exist if Hudson street were continued on the same parallel as at present to the river.

That this is the fair construction of the act, and was the obvious intention of the legislature, I entertain no doubt. The construction for which the defendants contend, would entitle them, whenever they thought their business required it, to run branches through any part of the city below Chambers street, the narrowest, the most crowded with vehicles, and the most essential for business purposes of any part of the city, which could never have been, in my judgment, the design of the legislature in the enactment of this provision.

Nor does the limitation of the defendant's route in the city depend upon the consent of the Harlem railroad. The prohibition against running nearer to that road than the Eighth avenue or Hudson street, is merely re-affirmatory of the previous clause in the act prescribing the limitation of the defendant's route.

The complaint avers that the track laid down by the defendant, without authority, interferes with the track of the plaintiffs, and affects their interest, which is sufficient to entitle them to come in to a court of equity and ask for the injunction.

The injunction was properly granted, and the order made at the special term should be affirmed.

Russell agt. Russell.

SUPREME COURT.

ORRIN RUSSELL AND HIRAM COUCHMAN, plaintiffs in error agt. JONATHAN RUSSELL, defendant in error.

To authorize a justice of the peace to issue a summons in summary proceedings for the dispossession of lands, the affidavit produced to him must show that the conventional relation of landlord and tenant exists, and that by an agreement between the parties.

Where the affidavit states that "this deponent demised, leased and to farm let, to be worked on shares, for the term of one year," &c., it does not show the relation of landlord and tenant existing, and is entirely insufficient to authorize a justice of the peace to issue a summons in summary proceedings. The parties are tenants in common.

Albany General Term, December, 1859.

Before HOGEBOOM, HARRIS and WRIGHT, Justices.

THIS is a certiorari from the judgment of a justice of the peace in summary proceedings. The defendant in error presented to the justice an affidavit, upon which he issued his summons. The affidavit was as follows:

ALBANY COUNTY, ss.: Jonathan Russell, of the town of Rensselaerville, in said county, being duly sworn says, that on or about the first day of April, 1857, this deponent demised, leased and to farm let, to be worked on shares for the term of one year from the day and date of said demise and leasing as aforesaid, unto Hiram Couchman and Jonathan Russell, the following described premises, that is to say, all that certain piece or parcel of land lying and being in the town of Rensselaerville aforesaid, bounded as follows: Being part of lot No. 102 in Rensselaerville, and bounded on the west by the lands formerly owned and occupied by Noah Russell, deceased, and now occupied by Louisa Russell, widow of Benjamin Russell, deceased; on the south by lands of Benjamin Palmer; on the east by the lands of William Goff, and on the north by lands in possession of this deponent, containing seventeen acres of land, be the same more or less; which said lands at the time of said demise, were owned and occupied by this deponent; and he was at the time of the aforesaid demise entitled to the possession