124 N.Y.S. 959 | N.Y. Sup. Ct. | 1910
The city brings this action to compel the removal of the tracks of the Fulton Street Railroad Company, which company was authorized to operate a street surface railroad along Fulton street to West street and through other public places. The grant or franchise was originally acquired by the North and East River Railway Company and subsequently transferred to the Fulton Street Railroad Company, of which the defendant Montague was appointed the receiver. The basis of the action is that no cars have been operated since on or about June 1, 1908, and that the tracks and rails are worn, defective, old and uneven, constituting a nuisance and. continuing trespass. It is also alleged that the company is hopelessly insolvent, and has failed in its obligations to remove the snow from that portion of the street used for the operation of the road, and wholly failed to repair and repave the street between the tracks and two feet outside thereof, as it had obligated itself to do. The relief demanded is that the tracks be declared a nuisance and trespass and the receiver required to remove the rails and restore the street to its original condition and, on defendants’ failure so to do, that plaintiff be authorized to procure such removal. The principal question presented by the demurrer to the complaint is the right of the city to maintain this action. The right or franchise to operate a street railroad springs from the State. While it is essential that the consent of the municipal authorities should be secured, this fact in no way impairs the principle that the grant proceeds from the State. It is but a step in the grant of a single indivisible franchise. The consent of the municipal authorities is not the grant of an independent franchise. City of New York v. Bryan, 196 N. Y. 158 ; Beekman v. Third Ave. R R Co.,
Demurrer sustained, with costs.
