192 A.D. 450 | N.Y. App. Div. | 1920
The order from which this appeal is taken directs the issuance of a peremptory writ of mandamus requiring the Inter-borough Rapid Transit Company (hereinafter referred to as the Interborough) to comply in all respects with an order of the Transit Construction Commissioner. This order provides that the Interborough shall make all such changes in the equipment of certain subdivisions of the Steinway Tunnel Line as may be necessary to provide for the exercise of the trackage rights reserved by the city and granted to the New York Municipal Railway Corporation (hereinafter referred to
It is well settled that the proper function of the writ of mandamus is to compel the doing of a specific thing based upon a legal right. (People ex rel. Lehmaier v. Interurban R. Co., 177 N. Y. 296, 301.) This would require a reversal but we do not place our decision solely upon the ground that the order is too indefinite to warrant the granting of the motion for a peremptory writ of mandamus. There is a far more vital question than that involved' in this proceeding. In order that a peremptory writ of mandamus may be issued it must appear that there is a clear legal right to have that done which it is petitioned should be commanded to be done.
The facts which have given rise to this controversy, stated in the opposing affidavits and the letter of the president of the Interborough, which in this proceeding must be accepted, are as follows: Subsequent to the execution of contracts Nos. 3 and 4 and the trackage agreement hereinafter discussed, a type of car was adopted by the New York Consolidated Railroad Company (hereinafter referred to as the Consolidated), the assignee of the Municipal Railway, fourteen to sixteen inches wider than the cars operated by the Inter-borough on this line, and this type of car is equipped with a contact shoe not adapted to the contact rail of the Interborough, now in use on the Steinway Tunnel Line. It is impossible to use these cars on the Steinway Tunnel Line, as the space between the center of the rails and the edge of the platforms of the stations is not sufficient to permit of the passage of the wider cars; and the trains cannot be operated with the contact shoe on the new type of car. Compliance with the order of the commissioner will require either a change of the location of the contact rails to meet the requirements of the cars of the Consolidated, which would enable that company to operate its trains, but would render impossible the operation of the Interborough trains and prevent an interchange of cars
The city of New York acting by the Public Service Commission for the First District entered into the so-called dual contracts, known as contracts No. 3 and No. 4, with the Interborough and the Municipal Railway respectively, for the construction, equipment, maintenance and operation of rapid transit railroads, in addition to those then existing. In contract No. 3 the city agreed to construct certain additional rapid transit railroads and the Interborough agreed to contribute the sum of 158,000,000 towards the cost of such construction and at its own expense to equip, maintain and operate such additional rapid transit railroads, which are referred to in the contract as the “ railroad,” for a term of years therein specified. The railroad so to be constructed, equipped, operated and maintained is described in said contract» as the Steinway Tunnel Line and is subdivided into five parts. The contract further provides in respect of subdivisions III, IV and V of said line that the city reserves the right to permit the Municipal Railway, its assigns or any other operator to use the tracks, structures and line equipment for at least half the capacity thereof if required, upon terms and conditions which shall be reasonable, and may be agreed upon between the Commission, the Interborough, and such other lessee or operators, to be embodied in a supplementary agreement.
Contract No. 4 is in general similar to contract No. 3, in that it provides for the construction by .the city of New York, the contribution to the cost of construction by the Municipal Railway, and the equipment, maintenance and operation for the term of the lease therein described by the Municipal Railway. It further provides that the city agrees to furnish the lessee with trackage rights over subdivisions III, IV and V of the Steinway Tunnel Line to be constructed under con
In accordance with the provisions of contracts Nos. 3 and 4, a supplementary agreement known as the “ trackage agreement ” was entered into between the city of New York, acting by the Public Service Commission of the First District, the Interborough and the Municipal Railway, embodying the terms and conditions for the use of subdivisions III, IV and V of the Steinway Tunnel Line by the Municipal Railway.
The existing structure of those subdivisions was completed in accordance with the plans and specifications theretofore adopted and the Interborough commenced the operation of the line in 1917 and ever since has been operating it. The commencement of the operation of these lines by the Inter-borough was authorized and directed by the Public Service Commission of the First District.
A portion of the Broadway-Fourth Avenue Line of the Consolidated, described in contract No. 4, which will soon be completed, connects by means of a tunnel East Sixtieth street in the borough of Manhattan, with the Queens Borough Plaza station of the Steinway Tunnel Line in the borough of Queens. In order to prepare for the enjoyment of the track-age rights by the assignee of the Municipal Railway, the Transit Construction Commissioner (the successor in this behalf of the Public Service Commission of the First District, Laws of 1919, chap. 520, adding to Pub. Serv. Comm. Law, art. 5-A), made the order above mentioned on January 13, 1920, directing the Interborough, First. To make all changes in subdivisions III, IV and V of the Steinway Tunnel Line as may be necessary for the exercise of the track-age rights reserved by the city in contract No. 3, granted to the Municipal Railway in contract No. 4, and provided for in the trackage agreement; and complete the same before April
The president of the Interborough under date of February 3, 1920, wrote to the Transit Construction Commissioner pointing out the impracticability of obeying the order and quite freely stating the objections of the company to it, and then stated: “ In the circumstances, it is constrained to advise you that the terms of such order are not accepted by it and will not be obeyed by it, and it objects to your taking any steps toward the making of the structural changes therein referred to.” Thereupon this proceeding was instituted and a peremptory writ of mandamus was ordered issued requiring in terms the doing of those things directed to be done by the order of the Commissioner.
The counsel for the respondent bases his argument on the right to joint operation of this line by the Interborough and the Municipal Railway reserved by the city in contract No. 3, granted to the Municipal Railway in contract No. 4, and provided for in the trackage agreement. He does not point out any portion of any of these contracts that provides for alterations or changes in the structure, to adapt it to the accommodation of a different type of equipment, if the Municipal Railway or its assign should later decide on such use; nor to any right reserved to the city to enter upon the property for the purpose of making such changes. He stands upon the broad proposition that the city having granted the right to the Municipal Railway to jointly operate, and the Municipal Railway having agreed to operate, the city is bound to afford the assignee of the Muncipal Railway a full opportunity to perform its contract, and if thereby the Inteiborough rights are interfered with, it must yield, thus giving to the holder of mere trackage rights a superior right to the lessee of
There had been operated for many years by the Interborough and its predecessors, rapid transit lines consisting of elevated and subway systems, in the boroughs of Manhattan, Bronx and Brooklyn; in the contracts these were referred to as “ Existing Railroads.” The cars on these railroads, although differing in many respects, were so constructed that they could be operated interchangeably over either road, and the contact shoe, thud rail and width of cars were such as to adapt themselves to the facilities of both systems. Contract No. 3 provides that the cars to be operated by the Interborough “ shall be of such type and dimensions as can conveniently be operated on the existing railroads and shall be interchangeable with such equipment.” The equipment specifications in contract No. 3, and with the addition of the words in brackets in contract 4, provided as follows: “ Contact rail for the supply of power to the trains shall be installed throughout the length of all tracks. * * * The standards of construction adopted
For these reasons the order should be reversed, with ten dollars costs and disbursements, the motion denied and the proceeding dismissed, with fifty dollars costs and disbursements to be taxed.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements; motion denied and proceeding dismissed, with fifty dollars costs and disbursements to be taxed.