Buffalo Stone & Cement Co. v. Delaware, Lackawanna & Western R. R.
New York Court of Appeals
Appeal from a judgment of the general term of the superior ■court of the city of Buffalo, which affirmed a judgment direct" ug the construction of an under farm, crossing, entered on a decision of the court without a jury.
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Appeal from a judgment of the general term of the superior ■court of the city of Buffalo, which affirmed a judgment direct" ug the construction of an under farm, crossing, entered on a decision of the court without a jury. The plaintiff owns a farm, which, before any part of it was taken by railroads, contained about one hundred acres, and is situated on the east side of Main street in the city of Buffalo, In 1870 the Brie railway constructed a railroad through this farm, so dividing it that there are about fifteen acres between the land of the railroad and Main street, and about eighty-five…
1Opinion of the Court
Follett, Ch. J.
The learned counsel for the appellant strenuously argued that this action in equity is not, but that a mandamus is the appropriate remedy to compel a railroad corporation to construct a crossing pursuant to the statute. This objection not having been taken by the answer, or on the trial, is not available in this court Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845.
For defenses on the merits the defendant insists : (1) That the plaintiff is not an adjoining proprietor; (2) that it being a foreign corporation and lessee of the railroad, it is under no obligation to build…
2Cases cited2 opinions
- Town of Mentz v. . CookNew York Court of Appeals · 1888
- Jones v. . SeligmanNew York Court of Appeals · 1880
3Cited by15 opinions
- Union Pac. Ry. Co. v. HarrisCourt of Appeals for the Eighth Circuit · 1894
- Harriman v. New York, Chicago & St. Louis RailroadNew York Court of Appeals · 1930
- Manitowoc Clay Product Company v. Manitowoc, Green Bay & Northwestern Railway Co.Wisconsin Supreme Court · 1908
- New York Central & Hudson River Railroad v. MarshallAppellate Division of the Supreme Court of the State of New York · 1907
- Newell v. Manhattan Railway Co.New York Supreme Court · 1894
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