This action was brought to restrain the defendant, The City of Hew York, from carrying into effect a' resolution adopted by the board of estimate and apportionment on the 28th day of May, 1909, which directed the president of the borough of Manhattan to serve notice on the plaintiff to remove within thirty days from the service of the said notice all the tracks,' turnouts and connecting tracks on *332the line of the Hudson river from Spuyten Duyvil. creek to near Sixty-eighth street in the city of New York, and requiring the borough president on a failure of the plaintiff to remove said tracks, to remove the same from the streets, and to declare such resolution null and void. The plaintiff is a railroad company running from Buffalo to the city of New York, and claims the right to use these tracks under certain acts of the Legislature and ordinances of the board of aldermen and the consent of the municipal authorities of the city of New York. The complaint is long and sets forth in full the various statutes and ordinances of the city of New York. The defendant moved to strike out mány of the allegations of the complaint upon the ground that they were irrelevant. This complaint contained certain allegations in relation to the location of the business in the city of New York at the time and the inducements ■ offered to the plaintiff to construct its road which the city of New York now seeks to remove. While it is dou-btful whether the condition then existing could affect the right that the plaintiff acquired and the power of the municipal authorities to order the removal of these tracks from the public streets, I do not think these alle- . gations should be stricken out, but that the plaintiff should be allowed to prove the facts so as to be able to make such a claim upon the trial as it is advised. To entitle the plaintiff to prove these facts, they must be alleged in the complaint, and it is only by alleging them and offering evidence to .support them upon the trial that the plaintiff can claim that the facts pleaded should be considered in construing the ordinances giving to it the right to use these tracks in the streets. I hardly think we are authorized on a motion of this kind to pass upon the sufficiency of a claim of the plaintiff as to the construction, to be given to these ordinances and as to wliat, if any, effect should be given to these facts' in the construction of .the permission granted to the plaintiff by the municipal authorities. The court below also struck out certain allegations in relation to the passenger stations in the city of New York, and the allegation as to the freight houses and their capacity in the city, the car capacity of the yard tracks and other tracks and structures maintained by the defendant in the performance of its business, and the valuation at which these various properties are assessed for taxation, with a statement of the amount of traffic and *333freight- moved by the road to these various stations and freight yards, and I think for the same reason it would be improper to strike these allegations out. While it may be doubtful whether these allegations are at all material and can aid the plaintiff, I think they should be left in. the complaint so as to enable the plaintiff to raise the question as to their effect upon the trial, rather than, to decide them now upon motion. The court also struck out the allegation of the passage of several ordinances of the common council under which the plaintiff claims that it was authorized to construct and maintain these tracks and structures. I do not think the court was justified in striking out these allegations. Whether or not any of these ordinances can benefit the plaintiff is a question which we do not decide, and that question can be settled by the court upon the trial; but the plaintiff is at least entitled to plead these ordinances and claim upon the trial that in connection with other ordinances which are pleaded and which are retained in the complaint the municipal authorities have given unlimited and unrestricted permission to retain these tracks. To have the benefit of these ordinances at the trial, it is necessary that the plaintiff should allege and prove them, and I can see no harm in allowing them to remain in the complaint so that the court on the trial can determine what, if any, effect should be given them. .
I think that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
McLaughlin, Clarke • and Houghton, JJ., concurred; Scott, J., dissented.