177 N.Y. 296 | NY | 1904
The relator in this case does not seem to have any grievance of his own, but in behalf of the public he applied *299 for a peremptory writ of mandamus requiring the defendant to do certain things which he claimed it is by law bound to do. These things are (1) to carry for one single fare of five cents any passenger desiring to make one continuous trip in either direction, between any point on the Eighth avenue line, owned by the Eighth Avenue Railroad Company, and any point on the 125th street line, owned by the Third Avenue Railroad Company; and (2) upon demand and without extra charge to give to each passenger, upon either of said lines, paying one single fare, a transfer at the intersection of said lines, at the corner of Eighth avenue and 125th street, entitling such passenger to make a continuous trip from any point on one line to any other point on the other line. The court at Special Term denied the application for the writ, and the order to that effect was unanimously affirmed on appeal. There are two questions presented by the record. One is, whether the defendant is under legal obligation to give the transfers specified, and this depends upon the construction of certain sections of the Railroad Law, particularly section 104. The other question is, assuming that there is a statutory obligation on the part of the railroad company to give transfers to passengers, such as are specified in the application, whether that duty can be enforced by mandamus.
To state the case in another way, the question presented by this appeal is whether this court has the power to compel the courts below to enforce this statutory obligation, if it exists, by mandamus. That would be the plain effect of a decision of this court reversing the orders of the courts below, since these courts would be obliged to proceed upon the relator's motion and render such judgment as this court may determine should be given in the case. The writ of mandamus is issued only when there is a clear legal right to be enforced and when there is no other adequate or legal remedy to obtain the relief sought. (People exrel. Gas Light Co. v. Common Council of Syracuse,
In the first place, if it be true that the railroad company is violating the statute in refusing the transfers, then an action for a penalty of fifty dollars will lie in favor of any individual who has been refused, and also an action to recover any damages which the individual may have sustained in consequence of the illegal refusal. A vigorous application of the statutory right to recover penalties has generally been found to be an adequate remedy for the grievance of which the relator complains. But in addition to that the attorney-general is authorized to bring an action against a railroad company to vacate its charter for any violation of law of which it is guilty, and a refusal to obey a statute to give transfers in certain cases would doubtless bring the defendant corporation *301
within the scope of that statute. (Code of Civil Procedure, §§ 1785, 1798.) Sections 157 and
It seems to me that an absolute right to a writ of mandamus by the relator, representing, as he claims, the whole public, to procure the relief demanded, is not sanctioned by any clear authority, but on the contrary the more recent decisions of this court are adverse to the relator's claim. (People ex rel.Linton v. B.H.R.R. Co.,
The law with respect to the right of this court to review the order of the court below refusing a writ of mandamus is now, I think, well settled upon a very fair and reasonable basis, and that is that the application for the writ is addressed to the sound discretion of the Supreme Court, and where it appears that the facts are such as to justify the court in refusing the writ as matter of discretion this court will not interfere unless it affirmatively appears in the order denying the writ that the court did not refuse the writ in the exercise of its discretion. (Matter of Hart,
PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, MARTIN and CULLEN, JJ., concur.
Appeal dismissed. *303