I concur in the conclusions to which Judge Barnard has arrived, and in most of the views or propositions stated in his opinion, but I am not willing to concur in all he says as to the effect or operation of the act of January 30, 1860. (Laws of 1860, p. 16.) That act prohibits the construction thereafter of any railroad in the city of New York, without the authority of the legislature, but it does not declare that such roads may be thereafter constructed by the authority of the legislature alone, and without the assent of the city; and had it so declared, it would not have followed that the legislature had power to authorize the construction of such roads without the consent of the city. But the Court of Appeals, in affirming the decision in The People v. Kerr, must have decided that, at least as to the city corporation, the legislature had the constitutional power to authorize the construction and operation of a railroad in the city, without its assent.
Therefore the grantees named in the act of April 17th, 1860, (Laws of 1860, p. 1050,) or their assignees, had the right, under that act, to construct and operate their road, without the consent of the city; and I am not prepared to hold that this right was surrendered or abandoned, by organizing or undertaking to organize as a corporation, under the general railroad act. But if otherwise, I concur in the suggestion of Judge Barnard, that the plaintiffs were not in a condition to take advantage of the want of consent on the part of the city.
Order affirmed.
George G. Barnard, Sutherland and Clerke, Justices.]