Harlem Bridge, Morrisania & Fordham Railroad v. Southern Boulevard Railroad

Per Curiam. —Although we are of the opinion that the property owners adjacent to the streets opened under chapter 290 of the Laws of 1867, have acquired rights by virtue of the provisions of said act which cannot be taken away from them by the legislature without compensation, and that the defendants have no right to construct their road without first making siich compensation, and that if the court had had jurisdiction to grant the injunction it should still be maintained upon the facts now before the court, notwithstanding the amendment of said act of 1867, this motion must be granted in view of the decision of the court of appeals in the case of Cunard S. S. Co. v. Voorhis (104 N. Y., 525; 5 N. Y. State Rep., 736), in which case it is held that this court acquired no jurisdiction by the submission to grant the injunction in question. It may be that the court overlooked the point now suggested by the plaintiff’s counsel, that the prohibition contained in section 1281 related only to the granting of injunctions in cases of submission where the right to an injunction depends upon extrinsic facts and not to the case where the judgment sought is an injunction and nothing else, but as the decision is directly in point we do not feel at liberty to disregard it. The motion must be granted, but without costs.