The People . Third Avenue Railroad Company. common council in the building of the said railroad, and in any other matter connected with the regulations of said railroad they are authorized to build the roads named in the resolutions of 1864. The defendant appealed from the whole decree, but argued only the question as to the extention from Third to Fourth avenue. C. N. Potter, for the appellant. H. II. Anderson, for the plaintiffs and respondents. By the Court, PECKHAM J. A point is made here that there is no proof that the plaintiffs had any interest in the streets referred to, or in relation to the ownership thereof. The title therein is alleged in the complaint to be in the plaintiffs; this allegation is denied in the answer, and there is in truth no testimony in the case on the subject. Yet I do not think the defendant can now raise the point, as it did not raise it at the trial, when the plaintiffs rested. The defendant proceeded without objection, as if a cause of action had been made out, to introduce evidence on its side, so that if such proof were otherwise necessary, the cause having been tried upon the assumption of the existence of the fact on both sides, I do not think its absence can be now insisted on as an objection. The defendant objects to the injunction on several grounds. First. It is insisted that the common council had power to direct the occupation of One Hundred and Thirtieth street by the defendant, because the occupation is temporary, allows no separate business, nor any compensation for business done on it. I do not perceive that either of these grounds exists in fact. There is nothing in the resolution of the common council declaring this occupation to be temporary, or in any respect differing from any other part of the defendant's road. The People v. Third Avenue Railroad Company. -as There is no reason for its being otherwise than permanentpermanent as the defendant's existence. But how long is it to continue? A week, a month, or a year, or during the pleasure of the common council? The difficulty is, that it has no authority to be there at all-not for a day. The statute is peremptory that it shall not be lawful "to lay, construct, or operate" it at all, without legislative authority. (Laws of 1860, p. 16.) Again, there is no prohibition against its receiving fare on this extension or branch of its road, only the defendant is to "operate said extensions in connection with the rest of their line, at the same rate of fare fixed by their grant." At the same rate of fare-not without any fare. True, it allows no independent, separate business, but it allows an extension of its general business. Then, it is urged that this extension was a necessary incident to the principal subject of the grant, which is conceded to have been legal. This may well be true, but it is a question of fact, and the burden of its proof rests upon the defendant. The judge, impliedly at least, has found against the defendant as to this fact. He finds the fact set forth in the complaint to be true. In the complaint it is alleged that this. extension is without authority, and that it is a public nuisance. It could be neither, if it were a necessary incident to the principal grant. In looking into the testimony, I do not find it proved that this extension is necessary to the enjoyment of the principal grant. The testimony of the witness Darling, who alone speaks on this subject shows that the defendant has "lately acquired lots in One Hundred and Thirtieth street, near the Fourth avenue, intending to erect thereon stables," &c. made necessary by the increase of travel. To these lands there is no way of approach except through this street. And the judge finds, as a fact, that "the defendant's cars can not reach their depot grounds on the north side of One Hundred and Thirtieth street, without laying their tracks through One Hundred and Thirtieth street." But The People v. Third Avenue Railroad Company. there is no evidence showing that the defendant's stables or depot were necessarily located on the north side of One Hundred and Thirtieth street, or near to the Fourth avenue, or that they might not as well have been located near to the Third avenue, or at the termination of its track. Upon like grounds, the defendant might extend its road to the end of Broadway, and go nearly the length of that street to reach stables it had chosen to locate there. It is not necessary, probably, that the defendant should have shown an impossibility in the way of its getting a depot or stables at a nearer point; very great and unreasonable comparative expense at any other point might perhaps authorize it to go near to the Fourth avenue (See Pettingill v. Porter, 8 Allen, Mass. R.) But it should be quite clear that under color of such necessity, the defendant was not extending its line of travel for its own profit. On any such extension as an incident, it is clear that the defendant could carry no passengers for hire. That would be the exercise of a franchise not granted over such a line. I do not think the case of Seymour v. The Can, and Niag. Falls R. R. Co., (25 Barb. 310,) aids the defendant. It is not necessary to refer to it particularly. If it could be held in any way to be at war with the doctrine herein declared, then with all proper respect I should regard it as unsound. Again it is insisted that this remedy by injunction should not be granted, as no damage had been shown. The Judge has already found that this extension is a public nuisance. That alone, on a trial, not necessarily on an application before answer, entitles the plaintiffs to this relief. The authority referred to by the defendant's counsel (2 Story's Eq. Juris. § 924,) establishes that doctrine, or at least does not conflict with it. The complaint charges that the defendant is constructing and is about to operate this extension for hire; that it is assuming to act under the resolution of the common council, which purports to grant that right. The answer does not Matthews v. Duryee.* deny this purpose. True, it insists that the defendant is going through One Hundred and Thirtieth street for its own private accommodation, to reach its depot and stables, but it does not deny its purpose to operate the road there for hire. We have already seen that the necessity of this extension is not established; it is therefore unlawful. It is then plainly the attempted exercise by this defendant of a valuable franchise not authorized by law. This, independently of any other considerations or proof, is a sufficient damage to uphold this decree. The judgment should be affirmed, with costs. [NEW YORK GENERAL TERM, September 19, 1865. Ingraham, Peckham and Leonard, Justices.] 45b 69 MATTHEWS US. DURYEE and others. The surplus moneys arising on a sale of land under a mortgage foreclosure, suit, but omits to appear or assert her claim for dower, she is not barred of surplus moneys were assigned in the foreclosure suit, by reason of her neglect or omission to assert her claim, on being made a party to a suit brought by that person, for the settlement and closing of his trust as assignee of the mortgagor. HIS was an action brought by the plaintiff, as the widow THIS of Charles S. Matthews, to recover her dower in surplus moneys arising from the sale of mortgaged premises under a decree for the foreclosure of a mortgage executed by her husband. By an order made in that suit the whole of the surplus moneys were ordered to be paid over to the defendant 20ap 69 Matthews . Duryee. Duryee, and the same were still in his hands. The plaintiff, though made a party to the foreclosure suit, failed to appear or assert her claim to dower, and filed no claim to the surplus moneys, and was not notified of the reference respecting them. Judgment was given for the plaintiff, at special term, and the defendants appealed. LEONARD, J. The surplus money arising on a sale of land under mortgage foreclosure stands in the place of the land in respect to those having liens or vested rights therein, and the widow of the owner of the equity of redemption is entitled to dower in the surplus, as she was in the land before the sale. This proposition is not disputed by the counsel for the defendant, but it is insisted that the right of the plaintiff to dower is barred by her neglect or omission to assert her claim in certain actions and proceedings involving the title to the land or its surplus proceeds, in which actions the plaintiff was a party. The plaintiff was made a party defendant in the foreclosure actions, but she omitted to appear or assert her claim for dower. After the sale, under the judgments of foreclosure, a reference was had, by an order of the court, in respect to the surplus money arising on the sale, but the plaintiff not having appeared in the actions, or filed any claim to the surplus, was not notified of the proceeding, and the whole fund was ordered to be paid to the defendant Duryee, on his claim as assignee in trust for the benefit of the creditors of the assignor, Charles S. Matthews, the former owner of the equity of redemption, and the late husband of the plaintiff. Prima facie, this money is still in the hands of the defendant, and no evidence is offered to rebut that presumption. He holds the money as a trustee merely, without having parted with any actual consideration therefor, and is under an obligation to pay it to the party justly entitled thereto. His title to the money is of no higher degree than that of a creditor having a lien on the land by judgment be |