121 N.Y.S. 793 | N.Y. App. Div. | 1910
This action is brought to recover a penalty under the. Railroad Law (Laws of 1890, chap. 565, § 39), which provides that “ Any railroad corporation which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party paying the same.” If defendant was not justified in demanding the fare paid by plaintiff, it might be urged with much force that its action was the result of an honest mistake in the construction of its statutory rights. In such case this action would not lie. (Goodspeed v. Ithaca Street Railway Co., 184 N. Y. 351.) We prefer, however, to put our decision upon a broader ground. Defendant was incorporated in December, 1860, under the General Railroad Law, which provided that nothing in the act contained should “ authorize the construction of any railroad not already located in, upon or across any streets in any city, without the assent of the corporation of such city.” (Laws of 1850, chap. 140, § 28, subd. 5.) In its articles of incorporation the termini of the road were stated to be a point in and upon Coney Island, in "the town of Gravesend, and a point in the city of Brooklyn at or near the Fulton ferry. The distance from Fulton ferry to the city limits, as they existed at the time of its incorporation and for many years thereafter, was a
Without discussing all of the cases cited by the learned counsel for the plaintiff, the principal ones are: Illinois Central Railroad v. Chicago (176 U. S. 646); People ex rel. Chicago v. Chicago Telephone Co. (220 Ill. 238); Indiana Railway Co. v. Hoffman (161 Ind. 593), and St. Louis Gaslight Co. v. City of St. Louis (46 Mo. 121).
In the Illinois Central Railroad case, which was an action brought by the city to enjoin the railroad company from constructing an engine house and other necessary structures appertaining thereto for the use of the road, over and across submerged lands of Lake Michigan, the court held in the first place that the grant to the company was not sufficiently broad to authorize it to appropriate and take possession of the lands in question. It is true the court said, if its grant were sufficiently broad to cover sutib lands, in view of a further provision therein that nothing contained in the act should authorize said corporation to make a location- -of their track within any city without the consent of the common council, that it could not make such location over lands which were within the boundaries of the city at the time that the act of location was attempted, although not within the boundaries of the city at the time that the charter was passed. -But in that -connection the court said: “ Had the company signified a. desire to take possession of these lands before the limits of - the city had been extended, it is possible that it might claim a . vested right to do so, though the boundaries were subsequently enlarged.” Much more must this be the case if the' company had not only signified a desire to take possession of such lands, but had actually done so. The court said further: “ There is nothing in these cases in conflict with those of Chope v. Detroit & Howell Plank Road Co., 37 Michigan, 195, and Detroit v. Detroit & Howell Plank Road Co., 43 Michigan,
In the Chicago Telephone Company case consents had been given to the company by the authorities of towns and villages lying without the city limits to the erection of poles and the stringing of wires for telephone purposes. These consents contained no limitation as to rates. At about the same time a consent for a similar purpose was given do tlie same company by the municipal authorities of the city of Chicago, which did contain such limitation. Subsequently the boundaries of the city were extended, and an action was brought in the nature of quo warranto-to declare a forfeiture of the right of the telephone company because it was charging rates in the annexed territory in excess of that provided in the city ordinance. The case turned upon a construction of the consents given by the town and village authorities, and the court held that by the terms thereof they were limited by the corporate life of such towns or villages, and that inasmuch as after annexation the company had no right to retain the use of the streets in the annexed territory except under the general ordinance of the city of Chicago, the defendant could not be heard to say “ it will retain streets which it concedes it has no right to occupy except under the ordinance, and will not comply with the conditions of the ordinance.”
In the Indiana Railway Company case the action was brought to recover a penalty for refusing to issue a transfer to a person who boarded its car at a point within the limits pf the old city of South Bend, but whose destination was a point in territory annexed to the city after the resolutions authorizing the road to operate had been passed. Originally consent had been obtained from the city of South Bend for so much of the route as was within the city limits, and from the commissioners of St. Joseph county for so much of it as was without the same. The former required the giving of transfers, the latter did not. It appeared that, subsequently to annexation, in an action pending between the railroad company and the city of South Bend, the company had made a written proposition of settlement and agreed, as a part thereof, to issue transfer tickets
In the St. Louis Gaslight Company case the decision was put on the ground of estoppel. For a long period of years the gaslight company had asserted and successfully maintained its exclusive right to furnish gas in the territory annexed to the. old city by reason of a contract made by it with the city before annexation, which contract contained a provision both giving it an exclusive privilege of furnishing gas in the city of St. Louis and its suburbs, and regulating the price to be charged. The court held that, as the only basis'for its claim of. such exclusive right must be found in the •ordinance in question, if that ordinance conferred upon, the company such right, it must also be held to the conditions contained in it as to the price to be charged. •
Rot only does the doctrine contended for by the appellant appear to be without express support by any case decided within this State, ■
The judgment appealed from should, therefore, be affirmed, with costs.
Woodward, Jenks, Thomas and Rich, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.