88 N.Y.S. 34 | N.Y. App. Div. | 1904
After the reversal of the first judgment the defendants materially changed their contention, and after the reversal of the second judgment they materially amended their answers, and any .apparent confusion in the opinions of this court is attributable thereto.
This court on the second appeal, referring to the first appeal, said : “ When this case was before us on the former appeal, the question presented was whether this defendant was relieved by the provisions of the contract of April 26, 1892, from paving between the rails, etc., as is required by the provision's of the General Railroad Law. (Laws of 1890, chap. 565, § 98, as amd. by Laws of 1892, chap. 676.) The argument of the defendant the Binghamton Railroad Company, then was that it was a company with which the parties of the first part to that contract had become merged and consolidated, and that, therefore, by its express terms, the contract inured to its benefit; and further, that the tracks over which this controversy arises, viz., those then operated by the ‘ Court Street and East End Railroad Company,’ were an 1 addition or extension ’ of the tracks of such contracting companies, and that, therefore, the terms and conditions of such contract, by its express provisions, applied to them. We then held that the benefits which were to inure to the successors and assigns of the contracting companies, or to one with which they
The Binghamton and Port Dickinson Railroad Company was incorporated by chapter 501 of the Laws of 1868, and by such act it was “ authorized and empowered to lay, construct, operate and use a railroad with a double or single track at their option or as the public convenience may require and to convey passengers or freight thereon for compensation through, upon and along” certain streets of the city and town of Binghamton, which included Court street. Said act provides that said road shall be commenced within one year from the passage of the act and shall be completed within five years from the time of the commencement of the building of the same. The time for the commencement of said road was expressly extended to May 1, 1872, by subsequent acts of the Legislature. (Laws of 1869, chap. 447; Laws of 1871, chap. 379.)
In 1886 the Court Street and East End Railroad Company organized under the General Street Surface Railroad Law (Laws of 1884, chap. 252). In the certificate of incorporation of said Court Street and East End Railroad Company the streets and highways in which the road is to be constructed are enumerated, and included in the streets and highways so enumerated is said Court street. Said certificate of incorporation does not state whether a single or double-track road is to be built upon said street.
After the incorporation of the Court Street and East End Bail-road Company it built in the center of said Court street a single-track street railroad for use with animal power. It was so continued and used with horse power until after its consolidation with the defendant railroad company,, and it was so in use at the time of the execution of the contract of April 26, 1892.
Subsequent to 1894 and the consolidation of said Court Street and East End Railroad Company with said other railroad companies a large number of the property owners on said Court street petitioned said common council to authorize the defendant company to construct and maintain a double-track road on said Court street and said common council passed a resolution as follows:
“ Whereas, The abutting property owners of Court street, east of its intersection with Exchange street, almost unanimously petition this body to grant the Binghamton Railroad Company permission to lay double track from the point above mentioned through Court street east to the city limits; believing as the petition states, ‘ that public interest demands increased street car facilities for the eastern portion of the city, and that a double track system from the extreme western limit to the extreme eastern limit .of the city through the
“ Resolved, That the Binghamton Railroad Company are hereby granted the right and privilege to ‘construct and maintain a double track from the eastern terminus of the present double track near the intersection of Exchange street along and through Court street in an easterly direction to the city limits; except underneath the railroad bridges over said street.”
Thereafter the track formerly owned and used by the Court Street and East End Railroad Company was removed and two tracks, one on either side of the center of said street, were laid by the defendant company with girder rails and they have since been maintained as a part of the defendant company’s electric railway system.
On the hearing of the second appeal the defendants claimed that the defendant Company maintained said road on Court street under the original charter of the Binghamton and Port Dickinson Railroad Company and that as the Binghamton and Port Dickinson Railroad Company was one of the parties to the contract of April 26, 1892, it was by the express terms of said contract exempt from paying for any part of said paving except as provided for by said contract.
By the answers of the defendants as they remained until after the decision of the appeal from the second judgment, it was claimed that the rights of the defendant company over the street in question were derived from its consolidation with the Court Street and East End Railroad Company.
The original contention of the defendants was limited to showing (1) that the contract of April 26, 1892, was a valid contract, and (2) that such contract applied to streets where roads had been built by companies that had subsequently consolidated with the contracting companies.
The claim of the defendants on the second trial and appeal, that the defendant company was maintaining its road on that part of Court street in question by virtue of the original charter of the Binghamton and Port Dickinson Railroad Company, was wholly inconsistent with the-answers as they then stood. This court then held that upon the pleadings in the case it stood admitted that the right to maintain tracks on Court street belonged to the defendant
After the decision of the second appeal an application, was made to the court by the defendant railroad company to amend its answer which application was opposed. It was granted by the court on terms, which'terms were complied with, and thereafter an amended answer was served by both defendants in which amended answers it is expressly alleged that by the consent of the common council of the city of Binghamton the Court Street and East End Railroad Company had a right to build only a single-track road on Court street and it is also therein further expressly alleged that the double-, track railroad on that part of Court street in question was not constructed under nor by virtue of the franchise of the Court Street and East End Railroad Company but solely and only by virtue of the franchise of the Binghamton and Port Dickinson Railroad Company.
On the second appeal this court, after holding the defendants to the admissions contained in their answers, said: “ Under this view it does not become necessary tq determine whether the Binghamton and Port Dickinson Railroad Company had at the time of the contract any rights left over the street in question nor whether under the conditions as they then existed the contract should be construed to include the possible right of such company to oust the Court Street and East End Railroad Company and extend its own tracks over a street so occupied by such other company.” Now, however, with the answers amended as stated it is necessary to determine such question.
The charter of the Binghamton and Port Dickinson Railroad Company came directly from the Legislature, and it is exclusive and wholly unconditional except so far as it provides that the road shall be commenced and completed within the time in the act mentioned. The option mentioned in the act does not in any way relate to the streets upon which the company is authorized and empowered to construct and operate a railroad, but it refers to the determination of the question as to whether a double or single-track road is to be so constructed and operated. The act does not provide a penalty or
Where a franchise is granted to build a railroad it imposes upon the company to which it is granted an obligation to build the road as well as confers upon it the right to so build the same. The failure to commence to build the road or to complete the same within the- time provided by the act of incorporation does, not work an actual forfeiture or loss of its corporate powers, rights or privileges unless such forfeiture and loss is declared by the act of incorporation in unmistakable language (Matter of New York & Long Island Bridge Co., 148 N. Y. 540) or by a subsequent act of the Legislature or by a court of competent jurisdiction.
The Court of Appeals, in People v. Albany & Vermont Railroad Company (24 N. Y. 261), say: “ A corporation is under a legal obligation to exercise its franchises and * * * it has not the option to discontinue a part of its road and forfeit its franchises.”
In Matter of Brooklyn Elevated R. R. Co. (125 N. Y. 434) the court say: “ By such non-performance a corporation is not, ipso facto, dissolved or deprived of its corporate existence or corporate rights, but it is simply exposed to proceedings, on behalf of the State, to establish and enforce the forfeiture. The State which gave the corporate life may take it away. The State which imposed the conditions may waive their performance and the corporate life may run on until the State, by proper proceeding, intervenes and enforces the forfeiture. Until the State does thus intervene, a private individual cannot set up the forfeiture or in any way challenge the corporate existence with its full vitality. The authorities for these views are numerous and uniform both in this country and England.” (See Coney Island, F. H. &^ B. R. R. Co. v. Kennedy, 15 App. Div. 588 ; Suburban Rapid Transit Co. v. Mayor, etc., of New York, 128 N. Y. 510.)
In the recent case of Paige v. Schenectady Railway Company (178 N. Y. 102) it was claimed by the plaintiff that a consent previously given by. her to the building of a street railroad in the street adjoining her property had been forfeited and nullified by reason of the fact that the receiver of the corporation whose rights and fran
All of the rights and franchises of the Binghamton and Port Dickinson Railroad Company became vested in the defendant railroad company pursuant to the consolidation agreements. The defendant railroad company had the right, therefore, under said franchise of the Binghamton and Port Dickinson Railroad Company and said agreement and consent, to construct and maintain a single or double-track railroad on Court street. The Court Street and East End Railroad Company was not in terms incorporated for the purpose of maintaining a double-track railroad on said street and there is not in this record any evidence that it ever obtained the consent of abutting owners necessary for the erection and maintenance of either a single or double-track road on said street. The road actually constructed by it on Court street was in the center thereof with a flat rail laid, not upon girders, but upon pieces of wood running lengthwise under the same, and the construction of said road on said street by the Court Street and East End Railroad Company was in direct violation of the terms of the act incorporating the Binghamton and Port Dickinson Railroad Company.
The double tracks on that part of Court street in question commenced at the former terminus of the double tracks on Court street opposite Exchange street as they had previously been maintained by the Binghamton and Port Dickinson Railroad Company. All of the evidence now before us tends to sustain the new or modified and amended allegations of the defendants’ answers. We are of the opinion that the defendant railroad company has the right under the original charter of the Binghamton and Port Dickinson Railroad Company to maintain a double-track railroad on that part of Court street in question, and that under the pleadings as
The judgment, therefore, should be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.