15 N.Y.S. 477 | N.Y. Sup. Ct. | 1891
Lead Opinion
The plaintiff in this action, together with the plaintiffs in the other actions argued herewith, were duly incorporated for the purpose of the manufacture, use, and transmission of electricity for the production of heat, light, and power in the city of New York, and for a long period of time maintained poles and wires and other conductors in the streets of the •city by which their currents were transmitted and distributed. Prior to the year 1887 overhead wires were exclusively used by these corporations. In 1884 the legislature passed an act which provided that all telegraphic, telephonic, and electric light wires and cables used in any incorporated city of this state having a population of 500,000 or over should thereafter be placed under the surface of the streets, lanes, and avenues of the city. In 1885 an •act was passed by which, in cities having a population exceeding a million, the mayor, comptroller, and commissioner of public works of such city were authorized and directed to appoint three disinterested persons who were to be a board of commissioners of electrical subways, which board was charged with the responsibility of enforcing the provisions of the act of 1884, herein-' before mentioned, and of causing to be removed from the surface, and to be maintained and operated under ground, wherever practicable, all electric wires and cables used or to be used in the business in any such city. Under this act it was contemplated that the electric light companies should build the ■subways according to plans to be submitted to the said board of commissioners; and, in case of the failure of said companies to propose or put in use a suitable plan, the commissioners were directed to devise and make a general plan, such as would meet the requirements of the acts of the legislature. In 1886 the act in question was amended in some immaterial particulars. In the said year the board of commissioners of subways, which had been duly appointed pursuant to the act of 1885 for the purpose of carrying into effect the duties imposed upon them by that act, entered into a contract with the •Consolidated Telegraph & Electric Subway Company (the respondent) for the construction of the subways into which the overhead electric wires were to ■be put. In April, 1887, the said commissioners entered into another contract with said respondent, whereby they agreed to provide, build, equip, maintain, and operate subways according to plans and specifications furnished therefor by the commissioners of subways or their successors. The fifth paragraph of said contract reads as follows: “The party of the second part [the respondent] may fix a fair scale of rent to be charged according to the kind •of conductors and the amount of space required therefor, which shall be at the same rate to all companies making a like use of said subways; but the scale of rentals or any charge fixed or made by the party of the second part [the respondent] shall at all times be subject to the control, modification, and revision of the parties of the first part[the commissioners of subways] or their successors, and no contract shall be made between the party of the second part and any company or corporation oil any terms which shall not require the payment by such pther company or corporation of rents at the rate so fixed.” The tenth paragraph of said contract reads as follows: “In case any
The plaintiffs, claiming that the rental charged by the defendant is unjust and unreasonable, have brought this action to have a fair scale of rentals determined by the court, all action upon the part of the defendant towards the collection of any rent whatever to be enjoined pending the investigation of this question. The plaintiffs invoke the jurisdiction of the court upon the ground that the contracts hereinbefore mentioned provide that the defendant may fix a fair scale of rents, and upon the claim that section 7 of the act of 1887, above cited, provides that the electric light companies may occupy ducts in these subways upon terms that to the court may appear just and reasonable. It seems to be clear, under the elementary principles which determine whether contractual relations have been entered into between parties, that the application of these electric light companies for space in the subways with knowledge of the rental which was claimed to be charged, the granting of these applications, and the occupation of the subways constituted a contract between the companies and the defendant to pay such rentals, unless there is something which is peculiar in the situation of the parties which takes their action out of the ordinary rules governing the conduct of parties to contracts. It is not necessary to cite authorities for the proposition that if ■ A. desires B. to let him the use of anything which belongs to B., and he knows B.’s price for such occupation, and his application being granted, he enters into such occupation, it makes a contract to pay theprice. But it is said that the electric light companies, the plaintiffs in these actions, are not governed by this rule, because they were compelled to get out of the streets and go into the subways. This is undoubtedly true. This court knows from the previous struggles of these electric light companies which have come before it to keep out of the subways, and to conduct their business (notwithstanding that it had become a public nuisance) by the use of overhead wires, that it was not until they were threatened with the destruction of their business if they continued to maintain a' nuisance in the streets that they consented to occupy any portion of the subways which had been prepared for them. And it is also true that a very large part of that reluctance arose from the fact that it would necessarily be more expensive to use an artificial envelope for their conductors than to allow them to be surrounded by the open air. Having resisted the law to the very last moment, it may be that they were compelled to enter these subways rather precipitously. But for this the defendant was .not responsible, and, if any harsh or unfair contract was insisted upon under the circumstances by the defendant, the plaintiffs had their appeal, because the scale of rents or any charge fixed or made by the defendant was at all times subject to the control, modification, and revision of the board of electrical control or their successors; and, if the terms of the contract which had been entered into between the defendant and the electric light companies were of .such a character as required modification, an appeal was given to the board of electrical control, and, with but one exception, as far as we can see from the papers, no such rights were ever exercised. But these parties, without paying or offering to pay any rental whatever, have come into a court of equity to have this rental fixed, upon the ground that it is unreasonable, without any resort whatever to the tribunal which had the power to modify the terms of the contract entered into between them and the defend
Again, even if a court of equity had jurisdiction, yet it could not intervene in an action of this character, because of the position of the plaintiffs. They allege that the rental is unfair, but they have entered into a contract to pay this rental, and it is clear that, no matter what the jurisdiction of the court may be as to rentals accruing subsequent to the filing of a bill, they would have no power to relieve the companies from a debt which they have incurred prior to the initiation of these proceedings. They were bound to pay what was due, before they could come into a court of equity and ask to be relieved from subsequent payment, even if the court had jurisdiction to entertain such an application, whicli we do not think it has. But in the case at bar they offer to pay nothing. They bring no money into court, and are seeking to be relieved from a debt which they owe to these defendants by the intervention of this court upon the theory that they made a contract which it was improvident for them to make; and that, being compelled by the force of circumstances, and the fear that their business might be destroyed, to make this contract, they ought not to be held to it. We know of no rule of equity jurisprudence which justifies a court in intervening under such circumstances. But it is claimed that, even if there had been a valid agreement upon the part of the plaintiffs to pay rentals at the rate charged, their failure to pay would not justify the defendant in its threatened conduct. It is conceded that the letting of these subways is not leasing an interest in real es
The position taken by the counsel for the appellants upon the argument of this appeal was that the only remedy of the defendant was to sue for the amount of these rents, and, in case the occupants of the subways failed, and the amount could not be collected upon execution, in the case of a corporation, to have the corporation dissolved, and to have a receiver occupy the subways during the pendency of the dissolution proceedings, with the right of the purchaser from the receiver to continue the occupation, and so on ad infinitum. Such a result never could receive the sanction of law, and, unless the court is pointed to some plain, well-established principle which necessarily brings about such a result, it would hesitate before it interfered under such circumstances. It might well be claimed that the rights of the defendant'in reference to the occupation of its subways by the plaintiffs is similar to the right of a passenger to occupy a place in the train of a common carrier. It is well established, both at common law and by statute, that a common carrier has the rightto eject a passenger who refuses to pay his fare; and for the same reason it would seem that, when the plaintiffs refuse to pay the compensation which they agreed to pay for the occupation of these subways, the defendant would have a right to eject them from the vehicles in which they had been allowed to place their wires for the purpose of the conduct of their business. The position of the plaintiffs in the conduct of their business by means of these subways by and with the consent of the defendant seems to be like that of a licensee. They are permitted to conduct their business through this space, over which the defendant has control, upon a promise to pay a certain remuneration. Failing to comply with their contract, upon which the permit depended, the right to continue to conduct their business by means of these subways necessarily ended, and the defendant had a right to prevent its continuance. We are of opinion, therefore, that a court of equity could not intervene, certainly until these plaintiffs have paid what was due before the commencement of these proceedings; and that probably the sole jurisdiction of the court is controlled by section 7 of the act of 1887, and can be invoked only in the form of the proceedings therein prescribed in a proper case. The order should be affirmed, with costs.
While unreservedly concurring in the result arrived at by the presiding justice in this case and in the other cases presented at the same time, I prefer to state briefly the conclusions at which I have arrived. These actions proceed upon the theory that the plaintiffs obtained access to certain allotted ducts in the defendant’s subway without having made any valid or binding contract as to rent, and they ask the court to determine what would be a just and reasonable rent. In the mean time they ask us to enjoin the de
With regard to the question as to whether the defendant can under any circumstances resort to the remedy of eviction, I think the plaintiffs must be held to the position assumed in their complaints. They do not admit the tenancy under a completed lease, but simply claim that they are in possession under an implied agreement to give them a lease upon fair and reasonable terms to be judicially ascertained. Thus their attitude in the interim, as we have already seen, is necessarily that of licensees. They are in possession, they say, without a contract, under the right, however, which the law gives them, and the duty which the law imposes upon them, to place their conductors in the subway. Still, they are there as mere licensees until a contract such as the law authorizes, and even compels the defendant to impose, is entered into. Upon the case made by the plaintiffs, therefore, there can be no doubt of the defendant’s right to remove an apparatus which simply trespasses upon the subways. But I agree with the presiding justice that, even upon the defendant’s case of a completed contract, the right exists to remove the plaintiffs’ apparatus for non-payment of the agreed rentals. When the nature and object of the subways are considered, it becomes apparent that the ordinary rules which govern as between landlord and tenant can have no application. The subway is a great public work, authorized for a specific purpose, and constructed with a view to a special service. It stands to reason that when the conditions upon which the service is granted have been broken, such service may be discontinued and the facilities afforded by the structure withdrawn. To limit the defendant to the ordinary action to recover money would be subversive of the entire system thus inaugurated. Supposed analogies with regard to possessory actions are misleading; for the defendant, though a private corporation, has here public duties to perform;’— duties which require that it should grant or withhold the service under reasonable rules and regulations, never, of course, arbitrarily. It is, for instance, bound to supply the city of New York and each of its several departments, free of charge, with all the space necessary for their electrical conductors. It is also bound to economize the space in the subway so that no one company shall occupy more than it actually needs to the exclusion or detriment of any other company. It is further bound to charge the same rates to all occupants making a like use of the subways. Again, when its net annual profits exceed 10 per cent, upon the actual cash capital invested by it in constructing and equipping the subways, the excess is required to be paid into the treasury of the city of New York. Then, too, the management and control of the space occupied by any company is subject to the rights of all other occupants, and expressly to such reasonable rules and regulations as the defendant may make. Other provisions might be adverted to, but I have specified enough to show the quasi public character of the duties imposed upon the defendant, and the necessity, if it is to perform its functions successfully, of regulating the space under its control in such a manner that no one non-paying company shall have the right of permanent occupancy and continuous service to the detriment not only of the city and the defendant, but of others who are
Concurrence Opinion
(concurring.) I have but little to add to the opinion of the presiding justice, which covers the material points discussed on the argument of this appeal. The several plaintiffs entered into the occupation of space in the conduits of the defendant under an absolute obligation to pay for their use. That they were compelled to do so by law cannot affect that obligation, for such compulsion resulted from a necessity connected with the public safety; their business as theretofore conducted being dangerous to the community. At the time they entered into the occupation of thespace referred to they knew not only that they were required to pay, but also the rates established. Under such circumstances, an implied contract arose to pay that rent, unless a different one were fixed by the tribunal created by the law to regulate rentals; which, as I read the statute and the contracts, is, in the first instance, the board of electrical control. Even assuming that this court or a justice thereof or the judges of the court of common pleas or of the superior court have, under the seventh section of the act of 1887, a right to fix rents under any circumstances, I do not think that provision can be construed as being retroactive, or as relating to anything more than the fixing of rents after the jurisdiction has been invoked; for it is not to be assumed that the court can control or administer this property of the defendant,- or interfere with past relations between it and the plaintiffs as to an adjustment of rents, any more than it could between private parties who had entered into contract relations from which an implication of law would arise as to an amount of rent to be paid for the use or occupation of property; and it is entirely immaterial how this subway may be catalogued as property, or whether the relation of landlord and tenant exists, or the defendant is to be regarded as a carrier furnishing facilities for transportation, or whether it is to receive rent eo nomine, (which the statute distinctly provides for,) or as compensation. .Whatever it may be called, the defendant is entitled to its recompense, and that is for services rendered and facilities afforded; and it is simply impossible that construction can be given to these acts, which would enable the plaintiffs to go on from year to year using the subway in their business with dilatory proceedings in courts, by appeals from adjudications fixing rates; and then, if they are dissatisfied, abandoning the use, and leaving the defendant to nothing but mere common-law actions. I agree with the presiding justice that whatever power the court may have over the subject is limited by the statute, but, if general equity rules are applicable, the plaintiffs must put themselves in a position to show they are entitled to the consideration of a court of equity. That can be done only by securing to the defendant, either by a deposit of money or by a sufficient bond, the amount of rent which they knew was charged at the time they entered into occupation, which was neither $1,000 a mile, as fixed by the defendant, nor $900 a mile, which seems to have been considered by the board of electrical control a proper sum. Nothing whatever has been done by either of the plaintiffs in that direction, and the court will not now make any order concerning it, for the case must be determined on the facts as they are presented in the record, and were submitted to the judge in the court below. We are not called upon to interfere with the action of the defendant, nor to.point out to either party what is the
