58 N.Y.S. 967 | N.Y. App. Div. | 1899
Lead Opinion
On the bank of the Hudson river, on the west side of the city of New York, is situated Riverside Park, and upon an eminence at the upper end of that park stands a building with stables and other outbuildings, which has been fitted up for a place of rest and refreshment for persons who have occasion to use the park. For somyears, and certainly as far 'back as 1892, the department of parks had granted the right to keep a; restaurant in the park either for a rental paid monthly, or for a certain portion of the receipts. In the month of March, 1896, the person who had been in possession of the restaurant left it for some reason, and an agreement was made between the authorities of the eity by the department of parks on the one hand and the plaintiff here on the other, by which there was granted to the plaintiff the right to keep this restaurant. That grant or license would, by its terms, expire on the 1st of April, 1897. On the 24th of February, 1897, the plaintiff applied for a renewal, and negotiations to that end were completed between the department of parks and the plaintiff in the; month of November, 1897, at which time the department of parks, claiming to act for the city, granted to the plaintiff the privilege of selling refreshments in the building in the park which was known as Claremont” for the term of five years from the 1st day of April, 1897, unless the agreement be sooner revoked or canceled or annulled, as therein provided. The plaintiff, on his part, agreed to enter upon the exercise of the privilege thereby granted, and to conduct the restaurant in a style and manner satisfactory to the department of parks, and under such restrictions, rules and regulations as might be prescribed by them.
He made further agreements as to the rates of charges and repairs and other matters which need not be considered here, and agreed to. pay to the department for the privilege the sum of $525 a month. It was further agreed that the agreement and privilege thereby granted were personal, and that the plaintiff would not assign the
The plaintiff made a further stipulation that he would conform, and require all persons in his employ to conform, to all rules, regulations, requirements and ordinances then, prescribed, or which thereafter might be prescribed, by the department in relation to the conduct of the privileges thereby granted, and the general character of the furniture, fixtures, equipment, employees and all things pertaining thereto, or to the general management or government of said park. It was further agreed that if he should omit to keep any of the covenants, the agreement might, at the option of the department, be revoked, and should thereupon become null and void, and he should remove the building and premises, and cease to exercise the privileges granted to him.
The plaintiff alleges in his complaint that the department of parks threatens to eject and remove him from the possession of the building, and will do so unless it is restrained; and he brings this action to procure an injunction restraining the department from interfering with him in the conduct of his hotel or from preventing him from enjoying the privileges granted by this agreement.
Upon the trial the foregoing facts were established, and it was made to appear that on the 29th of April, 1898, the park commissioner of the boroughs of Manhattan and Richmond notified the plaintiff that he had that day revoked, canceled and annulled the license agreement under which he was conducting the hotel or restaurant in Riverside Park, known as “ Claremont,” and ordered the plaintiff to vacate the premises on or about the 15th of May, 1898. At the conclusion of the plaintiff’s case, no testimony having been offered on the part of the defendant, the court directed judgment to be .entered restraining the commissioner of parks from interfering with the plaintiff in the conduct of said hotel, and from in any way preventing the said plaintiff from enjoying the privileges granted to him by the agreement of November 8, 1897. From that judgment this appeal is taken.
The defendant insists that as this action is in equity, to restrain the defendant from putting an end to the agreement between it and the plaintiff, it must be based upon the theory that he has no legal right, as against the defendant, to the possession of this restaurant.
The question is then presented, whether the plaintiff, by this agreement, acquired any right which the courts would protect, either at law or in equity. By the terms; of the agreement the plaintiff was bound to keep, maintain and conduct the restaurant in a manner. prescribed therein. He was to keep the building in repair, "and to maintain it in good and proper cpndition. This duty necessarily required him to take and keep possession of the buildings while the agreement was in force. He bound himself during that same time to pay for the rights he acquired the sum of $525 a month. This agreement, involving, as it".did, the possession of real estate and the payment of a monthly rent, for it, was practically a lease. (4 Kent’s Comm. 96, 97; Taylor Landl. & Ten. [8th ed.] § 38.) At the time the agreement was made, the charter of the greater city had not taken effect, and the department of parks of the then city of Yew York was exercising the powers given to it by the Consolidation Act (Laws of 1882, chap. 410). By section 668 of that act, that department was required and empowered to control and manage all public parks, There is a well-recognized distinction between the duties imposed by the Legislature upon á municipal corporation for the public benefit and those acts which it does in what may be called its private character, in the management of property voluntarily held by it for its own use and advantage, although such use may ultimately inure to the benefit of the public. (Bailey v. The Mayor, etc., of New York, 3 Hill, 531.) The boundary between these:two kinds of powers is shadowy and difficult of demarcation. Whether a city, in the control of property which it has taken for a park, acts in the one capacity or the other, it is difficult to say. It lias been held by a court of high reputation that, in the opening and control of public parks, a city
The department of parks acted, in making this agreement, in the exercise of the power given to it by the Legislature to control and manage the parks. The building in question was the private property of the city. It was proper that it should be utilized for the purpose for which it was used, if, indeed, it were not actually erected for that purpose by the city authorities. That in the control and management of the public parks of a great city it is perfectly proper to furnish not only such innocent amusements as may enhance the pleasure of those who resort to the parks, but such opportunities for rest and refreshment for themselves and their animals as may be required, will not be disputed.
The doing of these things is no part of the public duty imposed upon municipal corporations as the agent of the State in the performance of its governmental functions, but rather a part of the business of the city which it may or may not undertake in its private capacity as the owner of the lands which have been set apart for park purposes. Whether these things shall be done at all, and, if so, to what extent, is a matter with wdiich the State, as such, has no concern whatever, and which in no way affects the public duties of the city and has no connection with any function of government, strictly so called. The Legislature has imposed upon the city certain duties in respect of the maintenance of order and the punishment of crime. These duties are public and governmental in their nature and in the performance of them the city acts as the agent of the State.' But such duties, whether imposed upon the city or upon the department of parks, are of an entirely different character from those which are imposed upon that department by the power which is given to it to make the parks useful and convenient for the pleasure and comfort of the citizens. Whether in doing those things the authorities shall act themselves, or whether they shall be performed by private persons under an agreement with the park authorities, must be left very largely, to the discretion of those who have control of the parks. If in their judgment it shall seem better
But it is said by the defendant that the making of this agreement,, by which the possession of this house was given to the plaintiff for a term of five years, put it out of tlm power of the department of parks to exercise the duty imposed upon it of making rules and regulations, and enacting such ordinances as might be necessary for the government and protection of parks. The argument is that if it should happen that the commissioners of parks concluded that it was not best to conduct a restaurant at “ Claremont,” they were precluded by the agreement with the plaintiff from closing the restaurant during the term of five years, and this is the reason why it is said that the agreement was beyond the power of the department of parks, and, therefore, is void.
In considering this point it must be remembered that it is not claimed on the part of the defendant that the department of parks has determined that no restaurant should be kept at this place and in this building, nor is there any evidence- or suggestion that the plaintiff is not a perfectly proper person to keep it, or that he or any of his employees have failed to observe all the rules and regulations that have been made for; the government of the park. It does not appear that any regulation or ordinance has been made or is intended to be made by the commissioners of parks or by the commissioner in charge of this park, which would in the slightest
But the agreement is in terms subject to all rules, regulations and ordinances now prescribed, or that might hereafter be prescribed by the department, relating to the condpct of the privileges granted by it, and the general character of the: fixtures, equipment, employees and all things appertaining .thereto, and to the general management and government of the park, and the plaintiff takes his contract subject to any such regulations. Even were no such provision in the contract, it would still be subject to: any regulations or ordinances which the department of parks might see fit to enact for the better government of the parks, or the preservation of order in them, or for the performance in any other way of what might be called its governmental functions. As to those matters it cannot, by any such agreement, abdicate its functions or abandon the duty which the law has put upon it, nor can this contract be so construed' as to control in any way the management or the exercise of those functions.
In the case of Richmond County Gas-light Co. v. Middletown (59 N. Y. 228) the defendant, the town of Middletown, had been authorized by the Legislature to make a contract for the laying of pipes and the supplying of certain streets of the town with gas. The contract had been made for the period of five years, although the statute authorizing the making of it did not provide any particular.time during which it might continue. After the making of the contract the statute by virtue of . which it was authorized, was repealed. The town refused to pay for the furnishing of' gas after the passage of the statute taking away the power to make the com tract, and an action was brought by the gaslight company to recover the amount claimed to be due for gas supplied after that time.
Such was the rule laid down by the Supreme Court in the case of Britton v. Mayor (21 How. Pr. 251). In that case the city had entered into a contract in relation to cleaning the streets for a specified time, and in the exercise of the duties imposed upon the common council an ordinance had been made, the effect of which was inconsistent with the further continuance of the contract. In an action upon the contract the court held, not that it was void because it operated to restrain the discretionary powers of the common council, but that it was made and was to be construed with reference to the probability that these powers would be exercised, and if they were exercised in such a way as to render the contract inoperative it was abrogated and the city was not estopped from setting up such an ordinance in an action upon the contract.
The same principle was, applied in the case of Brick Presbyterian Church, v. The City of New York (5 Cow. 53.8), which seems to be the leading case upon that point in this State. That was an action for the breach of a covenant for quiet enjoyment, made by the city with the plaintiff in a conveyance executed on the 25th day of February, 1766, by which certain premises were conveyed to the plaintiff upon an agreement that it should build a church thereon, or should use the premises as a cemetery, and the city covenanted that the plaintiff should have a quiet enjoyment of the premises, without any hindrance on their part or the part of any other person. The premises were used as a cemetery, and continued so to be used until the year 1823, when, by 'vjrtuei of an ordinance of the city, which the common council had the power to enact, it was provided that land situated within certain boundaries should not be used for cemetery purposes. These boundaries included the land which had been conveyed to the plaintiff for that purpose. The action was brought upon the covenant for quiet enjoyment, and the defendants justified their breach of the covenant by setting up the passage of the ordinance, and the question presented was whether the páSsage of the ordinance which had the effect of avoiding the covenhtit previously made by the city was a proper exercise of the poWéT which
The same principle was applied in Coates v. The Mayor, etc., of New York (7 Cow. 585) and later in the case of The Opening of Albany Street (6 Abb. Pr. 273).
The latest case upon that point is the New York Mail & Newspaper Transportation Co. v. Shea (30 App. Div. 266). The facts appearing in that case were that the plaintiff was authorized to locate and operate tubes between the central post office and branch post offices in several cities of the State. In pursuance of that authority it had determined to locate a pneumatic tube from the post office in the city of New York to the post office in the city of Brooklyn, and to that end had made a contract with the trustees of the New York and Brooklyn Bridge by which' it had obtained the privilege for a term of years of maintaining that tube upon the bridge. The defendant, being the successor of that body, refused to permit the construction of the tube, insisting that such an act limited the power and discretion imposed upon him to regulate and manage the bridge with the greatest efficiency for public travel, which was the paramount object of its construction. The plaintiff thereupon brought an action against Shea to restrain him from interfering with the construction of the tube, and the question presented was whether the contract which the plaintiff had obtained from the predecessor of the defendant was valid, in the absence of some proof that it interfered with the actual exercise of the discretion of the defendant in the management of the bridge. The plaintiff claimed that it had acquired, by virtue of the act of the Legislature, the absolute right to lay its tube along the bridge without any consent or authority from the officers in charge of it. But this proposition was repudi
But if at any time in the future ¡it shall determine in good faith to take away the restaurant, the plaintiff must submit, because he takes his agreement subject to the power which the law has given
We have examined the exceptions taken to the rulings of the court in the rejection of evidence offered by the defendant and we do not find that any of them are material in this case. Upon the whole case we are of the opinion that the judgment was right and should be affirmed.
Yah Brunt, P. J., Patterson and O’Brien, JJ., concurred;
Barrett, J., dissented.
Dissenting Opinion
(dissenting):
I regret my inability to concur with my brethren in this case. The contract in question, so far as it attempted to confer upon the plaintiff the privilege of selling refreshments in the Riverside Park for a term of five years, was, in my judgment, an illegal exercise of power on the part of the department of parks. If ever there was a purely governmental power, we find it here. There is not in the purpose of this contract the slightest trace of private benefit. Indeed, there could be none. It is true that the plaintiff pays for the privilege conferred, and that the city receives the agreed compensation. That, however, does not affect the inherent character of the contract. Its sole object is to provide for the pleasure, comfort and convenience of the public at large within the park area. That also is- its declared object. It recites that it is made “ in order to promote and increase the public enjoyment of the Public Park, known as Riverside Park,” and that is a purely governmental function, The head of the park department cannot contract away his continuous duty to determine what will contribute to the pleasure, comfort or convenience of the general public. He may provide music to-day, discontinue it to-morrow, and provide it again the next day. He may choose one musical director or a brass band one day ; another musical director -and an ordinary orchestra another. And lie can lawfully make no contract which, by conferring legal rights upon the person contracted with, will foreclose the exercise of his continuous judgment with regard to the subject-matter. The same view apper
These views are, as it seems to ine, supported by a long and practically unbroken line of authorities. It has been repeatedly held, not only that a municipality may not directly barter away its legislative or governmental powers, but that it may not enter into contracts, the result of which is to control or hamper the exercise- of such powers. (Gale v. Village of Kalamazoo, 23 Mich. 344, 354; Milhau v. Sharp, 27 N. Y. 611; Britton v. Mayor, 21 How. Pr. 251; Matthews v. City of Alexandria, 68 Mo. 115 ; Lord v. City of Oconto, 47 Wis, 386 ; Rittenhouse v. Mayor, 25 Md. 336; 1 Dillon Mun. Corp. [4th ed.] § 97.) If such is the effect of a contract, it is void. In such a case it is quite immaterial whether it appeared to be reasonable and to subserve the public interest at the time it was made. As was well said by Judge Cooley in Gale v. Village of Kalamazoo (supra)“ It is impossible to predicate reasonableness of any contract by which the governing. authority abdicates any of its legislative powers, and precludes itself from meeting in the proper way the emergencies that may arise.” The observations of Judge Grover in Richmond County Gas-light Company v. Town of Middletown (59. N. Y. 228) are peculiarly applicable
I cannot but think the conclusion arrived at in the majority opinion is a dangerous one, and that, if carried to its logical end, it may lead to an extensive farming out of these subjects of continuous governmental direction. The moment a vested private right is interposed between a public authority and the right to exercise its legislative or quasi-legislative powers, the entire-governmental system necessarily fails. But it is said that the plaintiff has no such vested right, and that the privilege conferred upon him is subject to regulation by the park department, or even to be abrogated entirely in case it is determined to have no restaurant in the park. It is, however, asserted in the prevailing opinion that “ so long as it is deemed best that a restaurant should be kept up at Claremont so long the plaintiff is entitled to the privileges of the contract.” If that is so, what becomes of the suggested power of regulation ? You cannot well regulate what you cannot change. And so long as the plaintiff fairly performs his contract, he cannot, under the majority opinion, be •denied its privileges. But why not ? Simply because, so it is held, he has a contract right of which he cannot be deprived} and which can only be regulated by the terms of the contract itself, and not at all by the exercise of an independent governmental power, Thus
If, however, he has the power of ¡removal, then it seems clear that he has merely exercised that power] The dismissal of the plaintiff, like his original appointment — for! in this view it was in substance an appointment — was a governmental act, and neither the commissioner nor his predecessors could preclude him from thus proceeding within his jurisdiction. ' ]
My conclusion is that the utmost that the park commissioners here could lawfully grant was a license, revocable whenever they deemed that the public pleasure, convenience or comfort would be promoted by a discontinuance of the service, pr by a change in the agent connected therewith. I think the judgment should be reversed, and the complaint dismissed. j
" Judgment affirmed, with costs. |
