21 N.Y.S. 1046 | N.Y. Sup. Ct. | 1892
Lead Opinion
The plaintiff owned or controlled the following franchises for passenger travel between Brooklyn and New York ferries and Coney Island on and prior to June, 1892: One for a horse railroad from Fulton ferry via Park, Vanderbilt, and Ninth avenues to a depot at Ninth avenue and Twentieth street, Brooklyn, generally known as “Culver’s;” the other, also for a horse railroad, from Hamilton ferry via Fifteenth street and Ninth avenue to said depot. The road was built and operated by plaintiff on the former line, called the “Vanderbilt Avenue Line.” The latter franchise had not been practically used. From this depot (Culver’s) it carried passengers by an ordinary surface road to Coney Island, at West Brighton, its Cars being drawn by locomotive steam engines. The defendant owned and operated two lines of horse cars,—one from Fulton ferry, by way of Smith, Jay, and Ninth streets, to Ninth avenue, and thence via Ninth avenue to Fifteenth street, where it turned off towards Coney Island, and ran down the old Coney Island road to Coney Island, where it turned westward, and terminated near the terminus of plaintiff’s steam road; the other from Hamilton ferry, through Hamilton avenue, via Fifteenth street to Ninth avenue, where it joined its former line, and thence its passengers were carried over “the southerly
With this idea in view, the two companies entered into the contract which plaintiff seeks now to have specifically performed by our decree. It provides that from June 1,1892, for a term of 21 years, the defendant may use plaintiff’s tracks on Ninth avenue, from Fifteenth street to its depot, (Culver’s,) free of all charge for rent, repairs, or alterations, but that such license should not interfere with plaintiff’s stands for its own cars-, or the operation of its own road, by which was intended the Vanderbilt Avenue Line. The defendant covenanted that it would run its horse cars to this depot, and therefrom to Fulton and Hamilton ferries, respectively, by time tables prepared by plaintiff, so far at least as the Ninth avenue lines were in common, during the spring, summer, and fall months. The plaintiff convenanted to construct certain additional facilities at or about its depots for defendant’s exclusive use, and that its own cars should not unnecessarily interfere with defendant’s, and to pay the cost of these additional facilities. It was also agreed that the tickets issued by the Iron Steamboat Company, taken from passengers on plaintiff’s steam trains, should be good over defendant’s lines, the plaintiff accounting to defend for its part of the holder’s transportation. This contract also provided that if defendant at any time used or permitted steam as a motive power on the southerly end of its line, then, on six months’ notice, the contract should be terminated, at the option of either party, and in that event the plaintiff would repay defendant the cost of said additional terminal facilities at the Culver depot. We think it apparent that the plain purpose of this contract, so far as it affected the parties thereto alone, was to avoid competition for through Coney Island travel, to enable plaintiff to obtain the benefit of defendant’s Hamilton avenue line, with'perhaps its better facilities from Fulton ferry, as a feeder for its steam road, to save the necessity of building its proposed road to Hamilton ferry; and that it was to continue only so long as the two companies wrere not competitors for the through Coney Island travel, and that it should terminate when they again came into practical rapid transit competition. True, the power of this limitation is expressed with reference to steam as motive power, but that form of
Again, we think that the changed circumstances of the parties render it inequitable that the extraordinary remedy of specific performance should be applied. While, it is true that there is no covenant on the part of plaintiff -to maintain the status quo of the contract, it still plainly contemplated that the plaintiff should continue to operate the Vanderbilt Avenue Line, and that there should be no greater rivalry for the passenger traffic between the Culver depot and Fulton ferry than that which would naturally result from plaintiff’s desire to work in harmony with defendant, and within the spirit of its covenant that its cars and track should be so operated as not unnecessarily to interfere with defendants. So long as that relation existed, the plaintiff was directly interested to avoid conflict, and to be fair in all its terminal arrangements as means to an end, viz. the increase of traffic for its own road; and this personal interest might well have been relied on by defendant as means of securing a generous—at least a fair—arrangement of running times, departures, arrivals, etc. Indeed, as already remarked, the contract subordinated defendant to time tables prepared by plaintiff for those five blocks, and that, of course, affected the whole of both its lines. But the plaintiff afterwards sold out its Vanderbilt Avenue Line to a rival street-railway company, and the evidence pretty plainly shows that the defendant was thereafter materially obstructed in its own terminal facilities at the Culver depot by the acts of this new owner and operator of that line. Without intending any reflection upon the management of this new operator of that line, it was but natural that it should consult its own convenience to a greater degree—or, rather, that it should not
Dissenting Opinion
(dissenting.) The contract between the parties, which was dated June 1, 1882, so far as material to the questions presented upon this appeal, provided as follows: (1) The plaintiff granted to defendant the right to use its railroad tracks on Ninth avenue, in the city of Brooklyn, from Fifteenth street to the plaintiff’s depot at Greenwood Cemetery, for the term of 21 years, free of charge, and agreed to construct at defendant’s expense all new tracks, stands, sidings, switches, and turnouts necessary to facilitate the operation of defendant’s road. (2) Defendant agreed to operate and run cars to the plaintiff’s depot during the spring, summer, and fall months, to connect with all ferryboats at Hamilton ferry, and to run on same time table as plaintiff to Fulton ferry, connecting with all trains at said depot to and from Coney Island. (3) It was mutually agreed that the agreement might be terminated by either party upon six months’ notice if at any time during the term thereof the defendant should use or permit the use of steam as a motive power on its road between Coney Island beach and Ninth avenue and Fifteenth street in the city of Brooklyn. At the time of making the agreement the plaintiff owned and operated a steam railroad to Coney Island from Brooklyn, having a depot at Ninth avenue and. Twentieth street. It operated a horse road from the depot to Fulton ferry, and also possessed a franchise to construct a horse road from its depot aforesaid to Hamilton ferry. The - defendant owned a horse road from Coney Island to Brooklyn, having one terminus at Fulton ferry and another at Hamilton ferry. The agreement was performed by defendant until January 1, 1890, when, having reconstructed its road from Prospect Park to Coney Island, so as to operate it with electricity, it ceased running its cars from the ferries to plaintiff’s depot, and ran them all to its own depot at Prospect Park. The court found as a fact that plaintiff had fully performed the agreement on its part, and enjoined defendant from operating any of its cars unless during the spring, summer, and fall months of the remainder of the term of the agreement it either ran its cars to plaintiff’s depot, making the connection as provided in the contract, or should run detached or “jigger ” cars from its main line at-Ninth avenue and Fifteenth street to said depot, and so operate them as to connect with cars on the main line, and transport to the depot all passengers who so desired, without delay, inconvenience, or expense.
I am unable to agree iii the construction put upon the contract by my associates, to the effect (1) that steam used in generating electricity used in defendant’s trolley system is fairly within the meaning of the provision which permitted either party to terminate the contract when defendant should use steam as á motive power on that part of its road between Coney Island and Ninth avenue and Fifteenth street; or (2) that it was within the contemplation of the parties and the fair meaning of the contract that plaintiff should continue to operate the Vanderbilt Avenue Line, and that there should be no greater rivalry for passenger traffic between the Twentieth street depot and Fulton ferry than that which would naturally result from the plaintiff’s desire to work in harmony with defendant.
The use of steam as a motive power did not ipso facto terminate the-
The conclusion that the defendant should continue to operate the Vanderbilt Avenue Line is not based upon any express provision of the contract, nor do I think it can be fairly implied from anything contained in the agreement or in the situation of the parties at the time the contract was entered into. No greater reason exists for this conclusion than for one that it was contemplated that plaintiff should not sell or operate the Hamilton avenue road. The defendant knew that the plaintiff possessed the Hamilton avenue franchise, and offered to purchase it, and of course it knew that plaintiff was operating the road to Fulton ferry. The sale of the Hamilton avenue franchise was refused, unless defendant purchased both lines. This, it áppeared, it was unwilling to do. At the time of making the contract the parties were, therefore, actual competitors for the travel to .and from Fulton ferry, and prospective competitors over the Hamilton avenue route; and, as the contract contains no covenant that plaintiff would not operate both of these routes, it must be assumed that such a contingency was within the contemplation of both parties when the agreement was made.
The conclusion that the rights of the defendant were impaired by the sale to the Atlantic Avenue Company is opposed to the findings that the sale was made subject to the defendant’s rights, and that plaintiff had fairly performed all its obligations of the contract. These findings have evidence to support them, and, in the absence of a certificate that all the evidence is contained in the case, are not subject to our review. Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022. There was no legal obstacle to the sale to the Atlantic Avenue Company, and unless it violates some provision of the contract was not a thing which constituted a defense to this action. That it was not considered as violating or impairing defendant’s legal rights under the contract is conclusively shown by the fact that defendant never made any objection to it, but, on the contrary, continued without complaint to perform its contract for four years after the sale was made.
It is also claimed that the contract is ■ not one of which the court should decree specific performance; that the situation has materially changed since the agreement was made, and that the plaintiff should be" left to his remedy at law. The discretion which courts of equity exercise to decree or deny specific performance in cases of this character is not an arbitrary or capricious one. It rests upon well-settled rules of equity procedure. Where the contract is a fair one, and the situation at
Concurrence Opinion
(concurring.) The conditions under which the parties contracted are as completely changed as if the defendant used steam as a motive power. A covenant not to use steam would not be broken by the use of electricity; but when the use of electricity made the roads competing as fully as if propelled by steam, and the use of steam made the contract terminable by either party, the use of electricity is within the spirit of the contract. The conditions are changed in •other respects, so as to render the specific performance inequitable by reason of and in consequence of the sale of the plaintiff’s road to the Atlantic Avenue Railroad Company. The judgment should be reversed, and a new trial granted, costs to abide event.