33 N.Y.S. 1055 | N.Y. Sup. Ct. | 1895
It is a general rule, subject to few exceptions, that an individual cannot maintain a suit in equity to restrain the violation of a statute enacted for the protection of the public, unless he shows that he has been or will be injured in person or property by the violation of the statute. It must be shown that the plaintiff has sustained or will sustain special damage. The same rule is applicable to private corporations, and this plaintiff is not within any of the exceptions to the rule. A concession that the defendants have violated the subway statutes, and that the city or the commissioners of electrical control might maintain an action to restrain the defendants from continuing such violation, would not constitute a cause of action in favor of the plaintiff, unless it could be shown that some right of property had been injured by the violation. Woodruff v. Paddock, 130 N. Y. 618, 29 N. E. 1021; Smith v. Lockwood, 13 Barb. 209. The authorities holding that an action to restrain the defendants could be maintained by the people or by the municipal authorities are not in point, and need not be considered. The only theory upon which this action can be maintained is that the plaintiff has acquired an exclusive right to maintain subways and conduits for electrical conductors in certain streets in this city, and that all persons and corporations using such conductors must place them in their subways, and pay rent for the privilege. Such a right can be acquired only by contract or by statute. No contractual relations have ever existed between the litigants, and the plaintiff has acquired no right as against the defendants by virtue of any contract with them.
This brings us to the question whether the plaintiff has acq aired by statute or by grant from the city, pursuant to some statute, an
“Nothing in this contract shall be construed as granting to the party of the second part [the plaintiff] any exclusive privileges, immunity, or franchise whatsoever.”
By the fourth article of the same contract it is provided:
“This contract to be without prejudice to the right of the parties of the first part [the city authorities] to enter into such other, further, or different contracts as shall be necessary to carry out the intent and purposes of chapter 716, Laws of 1887.”
Under these limited grants there is no ground upon which it can be successfully contended that this plaintiff has any exclusive right to maintain subways and conduits for electrical conductors. The board of railroad commissioners, in approving of the proposed change of power for the operation of the defendants’roads, expressly provided that it should adopt and use a “system of signaling to the central house to stop the engines in case of accident.” There is no provision in the statutes which makes it obligatory upon the defendants to place their wires forming a part of their signal system in the conduits owned by the plaintiff, nor is there any provision preventing the defendants from constructing and using conduits of their own. If the construction of the subway statutes contended for by the plaintiff is to prevail, it would be impossible for a surface road to be operated on many of the streets by electricity, as authorized by chapter 531 of the Laws of 1889, unless its conductors were placed in the plaintiff’s subways.
On dismissing the complaint, the court granted an extra allowance ■of $750, which is at the rate of 5 per cent, on $15,000. Upon the application for this allowance, it was shown that the annual rent charged by the plaintiff for the use of such conductors as are used by the defendants would be $700 per mile, and that the value of the isubway, the right to maintain which was in controversy, was at least $60,000. These facts are not disputed, and they are quite sufficient to sustain the allowance granted.
The judgment and order should be affirmed, with costs. All concur.
