After careful consideration, I am unable to concur with my associates in reversing the order continuing the injunction.
I disagree with the learned justice who writes the leading opinion for reversal, in holding that the coporation of the city of New York have no beneficial interest in the streets. Every new use which is not inconsistent with the original use by the public under the trust by which the title is held by the municipal corporation for a highway, belongs to the municipality, and not to the people of the state at large. The rail road track when laid makes use of a certain portion of the land constituting the street. It is a new use, which enures, pecuniarily, to the profit of the grantees, and, as a convenience, only to the advantages of the public. The corporation, with, the permission of the legislature, may construct the rail road and enjoy the profit. That right flows from and is attached to the fee of the land constituting the street, and is vested in the corporation. The right of the public in the streets of the city is for a highway only, as heretofore used and enjoyed; not for laying a rail road. It is *430the municipality that have paid, for the land in the streets, not the public at large.
[New York General Term, July 21, 1862.For these reasons, and those referred to in my opinion at the special term, I am convinced that the right demanded is one which the public may not take from the municipality of the city of Hew York without payment. That the payment, when made, must go to the city treasury, for the relief of local tax payers, and not for any other public use.
I dissent from the opinion reversing the injunction order.. I concur in the order- sustaining the demurrer of the mayor, &c. of the city of Hew York to the complaint, with costs.
Order continuing injunction reversed, and order for injunction discharged. Order and judgment sustaining demurrer to complaint affirmed.
Sutherland, Leonard and Welles, Justices.]