The question involved in this motion is, whether a prohibition, contained in an act of the legislature, passed in 1860, shall he so construed as to prevent the defendants from completing a plan for the sewerage of the city, and from constructing the sewers in accordance with this plan. This plan, so exceedingly important to the health and convenience of the citizens, was sanctioned by the legislature, by an act passed in 1865—five years after the act containing the alleged prohibition.
I. The language, to authorize the court to give effect to this alleged prohibition, should be very clear and specific. To compel the municipal government of this city to suspend or abandon its operations in endeavoring to complete a scheme carefully devised for performing one of its most important functions, "can be only sanctioned by the express command of the supreme legislative power. The act of 1860 provides that “ The mayor, common council and. the several officers of the corporation of the said city of Hew York, and the said corporation, are hereby prohibited &c. from doing any other act to hinder, delay or obstruct the operation of said railroad as herein authorized.” Even if the necessary work, in completing this great plan of sewerage for the city, temporarily sus- *308, pended the running of the plaintiffs' rail cars, this prohibitory language ought not to prevent the defendants from doing so. It is a cherished maxim that “ The law would rather tolerate a private loss than a public evil.” (Coke Litt. 152, b.) And, although it would be a public inconvenience to suspend travel even temporarily on the plaintiffs’ railroad, it would be trivial, compared with the evil and the danger which would be the consequence of stopping this great sanitary undertaking.
II. I think another maxim of the law may be applied to this case. Lex posterior derogat priori. "When the legislature, in 1865, passed an act allowing the defendants to construct and complete this plan of sewerage, it may be safely inferred that they intended to withdraw any obstacles to the work which any prior law permitted.
III. But I agree with the defendants’ counsel, that the true construction of the prohibition contained in the 4th section of the act of 1860 is, that it prohibits the defendants from obstructing the operation of the plaintiffs’ railroad by any act, the sole purpose of which was thus to obstruct it, and not that the prohibition was intended to prevent the defendants from initiating and carrying out great public improvements, intended for the relief of the necessities and the protection of the health of the citizens. Besides, it appears that it is entirely practicable for the plaintiffs to continue the operation of the road at the points where the sewers are in the course of being con- - structed, by removing the-tracks from the center to either side of the streets, at those points. So that, the truth is the plaintiffs are seeking to avoid comparatively trivial trouble and inconvenience by stopping the prosecution of a work which, beyond all question, will be of the highest possible advantage to the inhabitants of this city.
The order should he reversed, with costs, and the injunction dissolved.
*309[New York General Term, November 1, 1869.