100 N.E. 427 | NY | 1912
We agree with the decision reached by the Appellate Division adverse to the plaintiff's claim in this case, and since the substantial reasons therefor are set forth in the opinion of Mr. Justice CLARKE on a prior appeal involving the sufficiency of the defendant's answer which had been demurred to (
We think that under the only interpretation which justifiably can be placed on the special act incorporating the defendant (Laws of 1866, chap. 651), it acquired a full and complete franchise and right to manufacture and sell gas in the city of New York, and for that purpose to use the streets, and was not required to obtain from the municipal authorities what has come to be termed a secondary franchise; that the provision requiring *648 it to obtain either the permission of property owners or of municipal authorities before any street could be "dug into, injured or defaced" simply related to a permission to be secured from the property owners or administrative authorities of the city, regulating merely the conditions of tearing up the streets for the purpose of putting down pipes; that under this interpretation the provisions of the general act relating to such corporations (Laws of 1848, chap. 27), requiring a secondary franchise to be obtained from the municipal authorities, are inconsistent with the provisions of the special act incorporating defendant, and, therefore, under the express terms of said latter act are "repealed and declared to be inoperative" as to it.
CULLEN, Ch. J., HAIGHT, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur; VANN, J., dissents; COLLIN, J., absent.
Judgment affirmed, with costs.
