Town of Eastchester v. New York, Westchester & Connecticut Traction Co.

Smith, Wilmot M., J. The ‘defendant insists that this action is brought to annul the consent given by highway commissioner of the plaintiff on the ground that the same has been forfeited and that the plaintiff has not legal capacity to maintain such an action. In my opinion, sufficient facts are set forth in the complaint to make out a cause of action to enjoin the defendant from tearing up and obstructing the highways of the town without lawful authority so to do, and to compel it to restore a portion of the highway which has been torn up to its former condition. The allegations of the complaint which set forth facts and circumstances intended to negative any right or authority of the defendant to enter upon the highway in question are unnecessary and superfluous. A simple allegation that the defendant had no lawful authority for its action would have been sufficient. But because the plaintiff has chosen to go further and anticipate an affirmative defense in its complaint does not change the real purpose of the action, viz., to enjoin an unauthorized interference with the public highways of the town and a restoration of a portion thereof which has been disturbed to its former condition. Because defendant’s contention as to the nature of the action cannot be sustained, the leading case relied upon to support the demurrer (Moore v. Brooklyn City R. R. Co., 108 N. Y. 98), is [573] clearly not applicable. If the canse of action is one to enjoin an unlawful interference with a public highway, the plaintiff has legal capacity to sue. Highway Law, § 15. And can maintain an action for equitable relief “ to sustain the rights of the public in and to any highway in the town.” Town of Windsor v. D. & H. C. Co., 92 Hun, 127. Demurrer overruled, with leave to defendant to answer within twenty days on payment of costs. Demurrer overruled, with leave to answer on payment of costs.