The action was brought, under section 1925 of the Code of Civil Procedure, by a taxpayer against the trustees of the bridge to restrain the construction of the tracks, on the ground that the work was being done in a manner contrary to law, and the injunction order was granted and must be sustained, if at all, upon this ground. Prior to 1897 some general powers had been conferred by the Legislature upon the trustees to operate, or cause to be operated, railroad's over the bridge ; but by chapter 663 of the Laws of 1897 the Legislature made special provisions on this subject, and the contracts, subsequently made between the trustees and the railroad companies, under which the railroad tracks in question were being constructed, made express reference to this act of 1897, and we think it must be considered that the contracts were made in pursuance of the provisions of this act. The act became a law on the 22d of May, 1897, and the original contract was made August 23, 1897. By section 3 of that act the trustees were “ authorized and empowered to contract with any street surface or elevated railroad corporation” of New York or Brooklyn, so as to permit such corporation to carry passengers across the bridge, and by section 4 it was provided: “ Within sixty days after the passage of this act the said trustees shall prepare plans and specifications, regulating the operation over said bridge of the cars of such corporation or corporations, with whom it may contract, as such trustees shall deem best adapted to promote the public comfort and convenience, and to sub-serve the purposes for which such bridge was constructed, and *75except as otherwise provided by said trustees, such plans and specifications shall be in substantial conformity with the plans recommended to the said trustees by Virgil G. Bogne, George H. Thompson and Lefiert L. Buck, expert engineers, by their report bearing date February 8, 1897. And said trustees shall also prepare such form of contracts and specifications thereunder, as they shall deem best fitted for the public interests, regulating the operation of the said cars of the said corporation or corporations, and the establishment of its route or their route upon said bridge, and shall have power to exact such bond or obligation as they may deem proper for the faithful performance of any contract or contracts made with any and all of said corporations as aforesaid.” By such original contract the tracks across the bridge were to be laid upon the roadways for the passage of vehicles, the track for cars from Brooklyn to Hew York on the northerly side of the north roadway, and the track for cars from Hew York to Brooklyn on the south side of the south roadway, and these two tracks were to be brought into the station at the Hew York terminus at an elevation and upon an elevated structure which would enable them to pass over and above the existing bridge railroad tracks, and there were to be constructed and operated elevators by which passengers using the cars should be raised and lowered between the surface of the street and the level of the structure upon which the tracks were so constructed, and where the passengers were to be received and discharged from the cars. The tracks on either side of the bridge were then connected by curves or loop tracks upon this elevated structure. These plans were in substantial conformity with those recommended to the trustees by the expert engineers referred to in the act of 1897.
On the 29th of September, 1897, a new contract, supplemental to the original contract of August 23, 1897, was made. By this supplemental contract the plans provided for by the original contract were somewhat changed. The track upon the north roadway across the bridge was to be located on the south side instead of the north side of the roadway, and the track upon the south roadway was to be located on the north side instead of the south side of the roadway.
The elevated structures for bringing the tracks crossing the bridge *76into the station at the Hew York terminus were dispensed with, together with the passenger elevator, and all other constructions needed for receiving and discharging passengers at an elevation and upon an elevated structure. The tracks across the bridge were to come into the Hew York station on the roadway, and were to be connected with each other at the terminus by curves or loop tracks upon the surface of the approach to the bridge, across the passageway used by pedestrians. There were to be four such curves or loop tracks crossing from the northerly, to the southerly bridge tracks, and the cars were to be operated thereon in the station at the Hew York terminus as follows: The cars coming from Brooklyn were to enter upon the curves or loop tracks for a short distance and stop before crossing the passageway used by pedestrians and there discharge their passengers, and when there was one car on each curve or loop track and all passengers had been discharged therefrom, the passage of pedestrians along the passageway across the four tracks in front of the cars should be checked by gates or other appropriate appliances, and the four cars should then pass together across the passageway and stop near the southerly end of the curves or loop tracks, and then pedestrians should be allowed to proceed along the passageway again until checked for another passage of four cars, the passage of the cars over the passageway to occupy five seconds each time, and the cars to pass over at intervals of not less than forty-five seconds, the four cars to receive their passengers at the points where they stopped near the southerly ends of the curves or loop tracks, and from thence proceed by the southerly roadway across the bridge to Brooklyn.
By the supplemental contracts the plans also provided that there should be constructed, .under the curves or loop tracks, tunnels or subways, whereby pedestrians might, if they so desired, pass beneath instead of waiting while the cars were crossing the passageway used by the pedestrians. It was this proposed construction and operation of the tracks and cars which the injunction order restrained, and it was claimed that this construction and operation was contrary to law, in that under the act of 1897 the parties had no legal right to make the change in the construction at the Hew York terminus from an elevated structure to a structure on the surface of the roadways and across the surfaceway used by pedestrians; and the reason *77for the interference by the court was that the new construction and operation would be extremely dangerous to the public who had occasion as pedestrians to travel along the passageway crossed by the curves and loop tracks and the cars used thereon.
It is said that the act of 1897 provided that the plans and specifications for the contract between the parties should be in substantial conformity with those recommended by the expert engineers, except as otherwise provided by the trustees, and that the change from the elevated structure to the surface structure was a violation of the statute, and was, therefore, unlawful; that while the trustees might provide for some changes in the plans, they could not legally make such a change as this. It seems to us, however, that this change was fairly within the purview of the statute, and was authorized by the language of the exception in the act. The general plans for the construction across the bridge and at the terminus remained unchanged. There was found to be great difficulty in the way of carrying out the original plan of an elevated structure at the Mew York terminus. The curves or loop tracks provided for in the plans annexed to the original contract were located at a place over the street where there was no legal right to construct them. Moreover, the elevated structure and the elevated station, and the elevator to carry the passengers between the street surface and upper floors, where passengers were to be received and discharged from the cars, were not only expensive and troublesome to build and operate, but it might well be claimed that more danger to the public was to be apprehended therefrom than from the more simple and inexpensive surface construction and operation provided for by the supplemental contract. In fact, it would seem that little danger was to be .apprehended from the surface construction and operation proposed. And the only objection thereto would be the impediment to travel by pedestrians by reason of the checking of travel while the cars were crossing the passageway. Mo additional facilities can be afforded the public for getting across the bridge, however, which will not in some way interfere with such travel. It must be expected and suffered. The same result follows the use of the streets of the city for surface and elevated car lines, and would follow underground lines of railroad; and yet the inconvenience and dangers even resulting from these various street lines of roads, to those having occasion *78to pass along or across the streets on foot or with vehicles, would, not be regarded as sufficient reasons for restraining the construction and operation of such railroad lines.
Under the statute and the contract between the parties it is the duty and the right of the trustees to control and direct the operation and management of the surface railroad across the bridge and at the terminals; and should the operation of the cars on tracks at the New York terminus, now proposed to be carried out, prove, on trial and from experience, to be particularly dangerous to the public, or, for any other reason, improper, such modification thereof as should be deemed necessary could be made and enforced by the trustees.
There does not seem to be any way now to return to the plans for an elevated structure, such as was provided for by the original contract.. We assume there is the same impossibility of constructing the curves or loop tracks upon the elevated structures, and the tracks across the bridge have very likely been laid and cannot well be connected with the elevated structure, being on the inner sides instead of the outer sides of the roadways. It seems to us that the injunction, under all the circumstances, would practically prevent the construction or operation of the railroad across the bridge at all, and that it should not have been granted.. The parties should be permitted to complete the construction without being prevented by the injunction ; and if the operation of the road, when it is undertaken, proves to be dangerous and improper, the court can protect the public adequately, in the final disposition of the action, by injunction or otherwise.
The order appealed from should be reversed, the motion to continue the injunction denied and the injunction vacated, with costs of appeal and motion to the appellant.
Ingraham, J., concurred; Van Brunt, P. J., and Patterson, J., dissented.