injunction pendente lite, claiming that this construction would be illegal and would cause damage to its property. The motion for injunction pendente lite was denied on August 17, 1914. The plaintiff served an amended complaint in September, 1914, and the Commission answered on October 20, 1914. On July 27, 1917, the Commission moved for an order directing that the proceeding be dismissed for the plaintiff's unreasonable neglect to proceed with the case, whereupon a stipulation was entered into to discontinue the action. An order was accordingly entered discontinuing the action.

(37) Henry L. Morris, Emily A. Van Patten and others v. The City of New York and others.

(38) Henry L. Morris v. The City of New York and others— Supreme Court, Bronx County.

On March 19, 1913, the City, acting by the Commission, entered into a contract with the Interborough Rapid Transit Company for the construction, maintenance and operation of a rapid transit railroad in the Borough of The Bronx, which provided, among other things, for a subway on Gerard avenue between East 146th street and East 149th street in that borough. Prior to that time the City had entered into a contract with the Hagerty-Drummond Company for the construction of this portion of the subway. The Hagerty-Drummond Company assigned its contract to Rodgers & Hagerty, Inc., one of the defendants in this action. The plaintiffs in these actions own certain premises situated on Gerard avenue between 146th street and 149th street. The plaintiffs complained that the defendants in this action had unlawfully entered upon their premises and had excavated and removed dirt and soil from their premises and certain parts of the concrete of the westerly wall of the subway were erected and maintained upon the premises and that during the excavation and construction of the subway the easements of light, air and access were seriously impaired, diminished and interfered with, and that their easements of lateral support were also seriously impaired, injured and destroyed.

The plaintiffs brought this action against The City of New

York, the Public Service Commission, and Rodgers & Hagerty, Inc., asking that the defendants (1) be restrained from using or operating the subway until the plaintiffs' premises were acquired by agreement or a condemnation proceeding, and (2) that upon the failure of the defendants to so acquire the premises that they be compelled to remove all the encroachments and to restore the premises to as good a condition as before, and (3) for $10,000 damages.

The Commission has served its answers in these cases, and the action has been noticed for and is awaiting trial.

(39) Napier v. New York Municipal Railway Corporation and others Supreme Court, Kings County.

On March 19, 1913, the Commission granted to the New York Municipal Railway Corporation a certificate for the construction, maintenance and operation of an elevated,railroad extension on Jamaica avenue and Liberty avenue, in the Boroughs of Brooklyn and Queens, in The City of New York. The plaintiff was an owner of property on Jamaica avenue, in the Borough of Queens, City of New York, and brought this action complaining that the railroad would interfere with and depreciate the easements of light, air and access to his premises and that the present and future value of his premises and the use and occupation thereof would be permanently and irreparably depreciated and impaired, and asking for a perpetual injunction restraining the railroad company and the City from taking any steps to construct, maintain or operate an elevated railroad in Jamaica avenue, in the Borough of Queens, and for an injunction pendente lite. The plaintiff noticed the action for trial in March, 1915, but the case after being marked off one calendar was never restored. In August, 1917, the Commission moved for an order dismissing the action for lack of prosecution, whereupon the plaintiff agreed to discontinue the action, which was accordingly done.

(40) Union Real Estate Company and Andrew Freedman v. The City of New York and others-Supreme Court, Bronx County.

The Commission on August 6, 1909, determined and estab lished a route for a rapid transit railroad known as the Southern

Boulevard and Whitlock Avenue route, which was consented to by the Board of Estimate and by a majority in value of abutting property owners. It was at first proposed to have an express station at Southern boulevard and 149th street. In June, 1910, before any contract had been made for the construction of the railroad, the City by the Commission entered into an agreement with the plaintiffs in this action providing for grant of an easement for a station entrance at or near the intersection of 149th street and Southern boulevard through the plaintiffs' property. Later, detailed plans were prepared and a contract including such plans providing, among other things, for an express station at 149th street, was approved by the Commission. Bids were invited for this contract but no bids were received, and the contract and the plans included therein were never consented to by the Board of Estimate and Apportionment. A contract was made in March, 1913, providing that the City should construct and the Interborough Rapid Transit Company should operate additional lines of railroad to the present subway system. The City in pursuance of that contract prepared plans and adopted a form of contract providing for the construction of the railroad upon the Southern Boulevard and Whitlock Avenue route, as part of which the station at 149th street was designed as a local station and not as an express station. This contract was awarded to Rodgers & Hagerty, one of the defendants in this action.

The plaintiffs commenced this action, praying for an injunction to restrain the City and the Commission and Rodgers & Hagerty from performing any portion of the work under the construction contract which involved any work upon the construction of a station at that point which would not be appropriate for an express station. An application for a temporary injunction was denied by Mr. Justice Brady at Special Term of the Supreme Court, Bronx County. The case came on for trial in November, 1916, before Mr. Justice Mullan at Special Term of the Supreme Court, Bronx County, and in May, 1917, he handed down a decision granting judgment in favor of the Commission and the other defendants. The decision reads as follows:

"I have concluded that by virtue of the provisions of paragraph 9 of the grant of easement by the plaintiff to

the city, permitting the city to abandon the express station at the point in question, the plaintiffs' situation became, upon the change to a local station, precisely the same as if the easement grant had never been made. The complaint must therefore be dismissed. The right of the defendant Interborough R. T. Co. to interpose and litigate in this action its claim of a similar character based upon its contract with the city has been questioned, but the decision of that question becomes unimportant if the view I take of that claim, considered as properly before me, be the correct one. I think that the contract and the several sections of the Rapid Transit Law that bear upon the matter, read together as they must be, make it very plain that the alteration of the contract between the city and the railway company resulting from the change of plan in question was legally effected in such wise as to change from an express station to a local station, and the attempt of the Public Service Commission to change back to an express station, without procuring the consent of the Board of Estimate and Apportionment, was wholly without validity. There must therefore be judgment against the railway company."

The plaintiffs have excepted to certain findings of fact and an appeal has been taken by them to the Appellate Division of the Supreme Court, First Department.

(41) Fred C. Williams v. Oscar S. Straus and others- Supreme Court, Kings County.

The Commission on March 19, 1913, granted authority to the New York Municipal Railway Corporation to third-track its Fulton Street Elevated line in the Borough of Brooklyn, City of New York. The New York Municipal Railway Corporation submitted to the Commission a proposed contract with the American Bridge Company and accompanying plans for the supplying of steel for various construction work, including the thirdtracking of the Fulton Street Elevated line from Nostrand avenue to Adams street. On October 29, 1915, the Commission approved the proposed contract and the accompanying plans.

The plaintiff commenced this action, alleging in his complaint that he was the owner of premises on Fulton street, and prayed that the Commission be enjoined from approving under the third

track certificate granted by the Commission to the company the plans above referred to, which provided for the reconstruction of the elevated structure to carry the third-tracking on Fulton street, in the Borough of Brooklyn, on the ground that the action of the company was not authorized by the certificate. A motion for the injunction pendente lite came on to be heard before Mr. Justice Manning in the Supreme Court, Kings County. The court denied the motion and dissolved a temporary restraining order. After admitting that the plaintiff was not the owner "in fee simple" of the property mentioned in the complaint, the then attorney for the plaintiff moved in open court for a discontinuance of the action. The court then stated that such motion was granted. Despite the granting of the motion for a discontinuance an order substituting attorneys was served on the Commission. This order was obtained on an application made ex parte to Mr. Justice Maddox. The plaintiff then served an amended complaint, which was demurred to by the Commission on the ground that it appeared on the face of the complaint that there was a defective party defendant, in that the plaintiff had not made New York Consolidated Railroad Company, New York Municipal Railway Corporation and The City of New York, which were necessary and proper parties to the action, parties defendant. The trial of the demurrer had not taken place before the end of the calendar year 1917, covered by this report.

(42) Astor and Regan v. The City of New York and others — Supreme Court, New York County.

The plaintiffs in this action are the owners of the Hotel Knickerbocker on Broadway and 42d street, Borough of Manhattan, City of New York. In connection with the construction of a rapid transit railroad under Broadway and Seventh avenue, the contractor on the work requested permission of the plaintiffs in this action to enter into the subbasement of the Knickerbocker Hotel in order to erect a temporary tile wall for underpinning purposes. This action was commenced for the purpose of enabling the plaintiffs and the City to enter into a stipulation which would allow the work to go forward without waiving any of the rights or remedies which the plaintiffs might be entitled to as