136 N.Y.S. 720 | N.Y. Sup. Ct. | 1912
The New York Railways Company is the successor to the franchises and rights of the Lexington Avenue & Pavonia Ferry Railroad Company, and has since January 1, 1912, owned and operated a line of street railroad on 116th street from Manhattan avenue (one block east of Morningside Park) to Pleasant avenue (one block west of the East River). By the terms of the franchise the road was to run from Morningside Park to the East River. This proceeding is brought under section 57 of the Public Service Commissions Law (Consol. Laws 1910, c. 48) to compel the corporation to buildl and operate its line from its present terminus,. Pleasant avenue, to the East River. The Lexington Avenue & Pavonia Ferry Railroad Company was incorporated under and by virtue of the provisions of the Railroad Law (Consol. Laws 1910, c. 49) December, 1892, and purchased this franchise on or about January 6, 1893, and constructed and commenced to operate its line between its present termini in the summer or fall of 1895. There has been no change in the bulkhead or pier lines of the East River at 116th street since 1892, except that about 30 feet has been filled in to bring the actual street out to the bulkhead line. In 1897 the dock was constructed and a ferry established, operating from the foot of 116th street to Ward’s Island, where the state had constructed the Manhattan State Hospital for the Insane. In the month of May, 1912, 39,607 people used this ferry, and in the first 7 days of June, 1912, 9,018 people used the ferry. There is no car line running to the ferry, and people desiring to avail themselves of this means of transportation are compelled to walk a distance, of seven hundred feet .to reach the- line in question. That the completion of this line in accordance with the franchise would be a public convenience cannot be questioned. The- Railway Company, however, urges that- 'conditions at the time of the granting of the franchise should control, and as there was no public convenience" or necessity apparent
The Legislature having provided that under certain conditions a proceeding may be instituted for a writ of mandamus, the sole question to be determined is: Do the facts of this case come within the provisions of the statute? The respondent contends that they do not, for the reason, first, that a failure to construct to the end of the route is not a violation of law, and, second, that the corporation was organized under the Railroad Law, which, it is claimed, places no obligation on the company to build/ but merely provides that in case of failure to construct within a certain length of time the company shall lose its rights. The vice of the company’s contentions is that it fails to appreciate the public character of its franchise. . “The right to construct and operate a street railroad is'a. franchise which must have its source in the sovereign power, and the legislative power over the subject has this limitation: That the franchise must lie granted for public, and not for private, purposes, or at least the grant must be based upon public considerations.” Paige v. Schenectady Ry., 178 N. Y. 102, 114, 115, 70 N. E. 213, 217. “A railroad corporation owes a duty to the public to exercise the franchise granted to it, and it cannot abandon a portion of its road and incur a forfeiture at its mere pleasure. A charter must be accepted or rejected in toto. If accepted it must be taken as offered, and the company has no right to accept in part and reject in part.”
' “The general principle is that laches is not imputable to the government; and this maxim is founded, not in the notion of extraordinary prerogative, but. "upon. a great public policy.” United States v. Kirkpatrick, 9 Wheat. 720, 735, 6 L. Ed. 199.
As a state can only act through officers and agents, if their neglect could be imputed to the state statutes might in effect be repealed and great and serious loss be "entailed on the state, and the will of the people thwarted by á negligent or corrupt official. I am of opinion that the facts in this proceeding establish the right to the issuance of a peremptory writ of mandamus in accordance with the prayer of the petition.
Application granted, with costs. Settle order and writ on notice.