108 Misc. 724 | N.Y. Sup. Ct. | 1916
The street surface railroad now operated by defendant was constructed by the Staten Island Electric Railroad Company as far as Bulls Head in August, 1897. This application seeks to compel construction and operation of additional railroad over one highway from Bulls Head to New Springville, a distance of about seven-eighths of a mile, and over
The Court of Appeals has recently decided that, while mandamus under section 57 of the Public Service Commissions Law may be an appropriate process for the purpose of having violations or threatened violation of anything required of a common carrier by law or by order of the commission “■ stopped and prevented,” and while the requirements so directed by mandamus may be continuous, still upon application made under section 57, responsibility is expressly placed upon the court to determine what action shall be taken by it on such application. Public Service Commission v. Interborough R. T. Co., 219 N. Y. 355.
The franchise, exercise of which the petitioner seeks to compel in this proceeding, if it ever existed, is more than twenty years old. It has never been exercised so far as the construction and operation of a railroad beyond the Bulls Head terminus is concerned. The consents of the municipal authorities of the old town of Northfield in Richmond county to the construetion and operation of the railroad between Bulls Head and New Springville and between Bulls Head and Linoleumville were granted February 8, 1896. The piece of railroad between Bulls Head and New Springville was part of one route coming up from Port Richmond
On the hearing of the application for mandamus, there was a rather full discussion of the law between counsel and the court, all of which appears in the stenographer’s minutes, and it is unnecessary for me
The position of the railroad in the case cited was much better than that of the defendant here. Because in this case, in my opinion, not only is the franchise on the unconstructed route dead, if it ever existed, by the express limitations contained in the franchise, and by the forfeiture clause in the general law, but there is no proof or suggestion that the defendant here has the riecessary consents of the property owners along the new line of railroad, or that such consents were ever granted to any corporation.
The consent of the town of Northfield granted in February, 1896, to the original street railway company never availed of, so far as the extension along Richmond Turnpike from Clove road to Linoleumville as well as the consent to the construction between Bulls Head and New Springville, had, in my opinion, lapsed and become extinct before chapters 494 and 508 of the Laws of 1901, which the petitioner cites, were in effect. Again the extension route from Port Richmond to New Springville, partly operated to Bulls Head, and the route from Clove Road to Linoleumville, are entirely
To say that after the lapse o,f twenty years the court should compel by mandamus the construction and operation of an entirely new railroad across the marshes from Bulls Head to Linoleumville on the strength of a franchise granted in 1896, which contained an express agreement that all rights thereunder would be forfeited if the railroad was not built in one year, seems to strain the old ideas of the functions of the writ of mandamus to the brealdng point. I cannot conceive of any answer to the complaint of a property owner along these highways, for an injunction restraining the construction and operation of a street railroad because of lack of franchise. And if the city of New York under modern municipal conditions insisted that this twenty-year old franchise granted without any provision for compensation for the use of the street by the corporation, so far as I can ascertain from reading it, was now of no avail, and that the new conditions demanded compensation to the public, and the enforcement of the various rules and regulations now applicable to street railroad operation, how could the railroad maintain its right to occupy the public highway against the objection of the city?
I do not think this is a case for mandamus. If the court can compel the construction and operation of this two and five-eighths miles to Linoleumville, it
But the desirability or necessity of summary action by way of mandamus does not justify the court in losing sight of the basic principles governing the issuance of writs of mandamus. The writ should not issue where it is apparent that parties not before the court may have rights affected by its issuance upon which they are entitled to hearing. Because it would be an idle thing to attempt to compel by mandamus an act which can be enjoined at the suit of a party not before the court in the mandamus proceeding.
The old remedy for failure to comply with the terms of a public franchise to, operate a railroad in whole or in part was an action by the attorney-general to forfeit the franchise, and as I said on the trial, a railroad corporation must comply with the terms of the franchise as an entirety. It must take the fat with the lean. It cannot avail itself of the desirable part of the route
I have been referred to the decision of Judge Page, at Special Term in New York county, in Public Service Commission v. New York Railways Co., 77 Misc. Rep. 487, where that learned judge, for whose opinion I have the greatest respect, sums up the reason for the rule that mandamus is a proper remedy. But it is apparent from reading the opinion in the One Hundred and Sixteenth Street ease, that there was no question about the validity of the franchise of the defendant in that case to operate its road, and the court in no way suggests in the opinion that if the right of defendant to construct or operate was in dispute, mandamus should issue.
The language of the Court of Appeals speaking through Chief Judge Cullen in City of New York v. Bryan, 196 N. Y. 158, appears directly applicable to
I, therefore, think that the petitioner has failed to make out a case for mandamus, for the reason that the legal right of the defendant to construct and operate a railroad in the highways in question, and its corresponding duty to so construct and operate a railroad, are, to say the least, extremely doubtful.
1. Because the franchise from the town of Northfield has been forfeited for non-user, as to these particular pieces of railroad construction, by the express terms of the franchise itself and by the provisions of the Railroad Law.
2. Because it is doubtful, on the facts in this case, whether in any event, any legal obligation rested on the defendant, the former electric light company, to operate any railroad beyond the railroad “ already constructed and operated ” at the time of the purchase of the railroad of the former company in 1902, the defendant never having filed any certificate of extension.
3. Because the franchise or consent on which this application is based was granted in February, 1896, that it has never been exercised as far as these new lines are concerned, and that in the past twenty years new conditions have arisen and the territory has become part of Greater New York, and new and modern methods are applicable to new street railroad con
4. Because the city of New York and the property owners along the new route are not before the court in this proceeding, and there is no proof that the city or the property owners have given their consent or will give their consent to this new railroad construction and operation.
For these reasons, the application for mandamus must be denied.
Application denied.