I concur in the conclusion reached in this ease, for the reason that the third track, although constructed in December, 1891, was not authorized by the commission until January, 1894, and it imposed an additional burden upon the plaintiff’s property during that period for which he was entitled to damages.
I do not,' however, concur in the view that sections 3, 4 and 5 of chapter 595 of the Laws of 1875, under the authority of which the *75defendants maintain the third track, are unconstitutional. That these sections confer authority to lay down - tracks in addition to those provided by the charter of the West Side and Yonkers Patent Railway Company was expressly held in Mayor v. Manhattan Railway Co. (N. Y. L. J. Feb. 7, 1894). Therein it was shown that it was provided by section 5 that “ the said railroad company is authorized to locate its. * * * tracks * * * along 9th avenue * * * the particular location * * * and number of tracks * * * may be such as the commissioners aforesaid, or the majority of them, shall designate and approve.” And it was said by Justice Ingraham writing the opinion, “ considering all the provisions of this act (Chap. 595, Laws 1875), I think it must be held that this authority vested in these commissioners was a continuing authority and that they have the power to designate and approve of any proposed modification or addition to this elevated railroad structure in 9th avenue.”
In view of the public utility of the third track and the fact that ten years have elapsed during which it has existed and benefited those using the railroad, it does not seem to me that any useful purpose can be served — particularly where all the damages that the plaintiff has suffered may be fixed and awarded — to give what I regard as a forced construction to the constitutional provision (Art. 3, § 18) which prevents the Legislature from passing a private or local bill granting to any corporation the right to lay down railroad tracks, and thus extend the provision to a case' like this, .where the advantage resulting to the plaintiff from the removal of the third track would be small and could be recovered in an action at law, and where serious and lasting injury would be thereby inflicted, not only upon the railroad, but more especially upon the traveling public.
Judgment reversed, new trial ordered, costs to appellant to abide event.