102 N.Y.S. 75 | N.Y. App. Div. | 1907
The defendants appeal frotó an order granting an injunction pendente lite in an action brought by the plaintiff to restrain the defendant highway commissioners from granting to the defendant Suffolk Traction Company their consent to the construction, maintenance and operation by it of a street surface railroad on a certain street of the town of Brookhaven.
On April 1, 1903, the highway commissioners of said- town granted the plaintiff their consent to the construction, maintenance and operation by it of a street surface railroad on said street. Said consent contained the following provisions:
. “ 2. This franchise and consent not to be operative until the Traction Company shall give or cause to be given a bond of sufficient sureties to be approved by said Highway Commissioners in the penal sum of seven thousand five hundred dollars ($7,500) to indemnify and save harmless the said Town of Brookhaven, and the Highway Commissioners thereof, from any and all damages, costs, ■actions, claims and demands arising from the construction, maintenance and operation of said Railroad up to a period'of thirty days after completion of said Railway, and for the faithful execution and performance of the terms and conditions upon which this franchise is granted and the provisions of law applicable thereto, ■ and upon the faithful performance of all the provisions and conditions herein contained, then this obligation to be void, otherwise to remain in full force and effect.
“ 3. Said railroad shall be completed and in operation, in a generally east and west direction, through the Village of Patchogue, and over its entire route from a point on Railroad Avenue in Bell-port on the east to a point on Railroad Avenue or Lakeland Road in Sayvil'le on the west, within two years from the date of the
The plaintiff has not begun the construction of its road. On October 23, 1905, more than six 'months after the expiration of the two years provided in said consent as the time within which the road should be constructed, the highway commissioners of said town adopted a resolution extending the time of the plaintiff to construct its road for a period of one year from October 25, 1905. The bond provided for in said ■ consent has not been given, but the validity of the order appealed from is by its terms conditioned upon . the giving of said bond. The consent does not contain the expressed condition required by section 92 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1893, chap. 434) that the provisions of article 4 of said statute pertinent thereto shall be complied with. Owing to the physical character of said street or highway, bul one street railway can be constructed upon it.
The order of the learned court at Special Term appears to haw been granted upon the theory that as but one road could be constructed in said street, it was not competent for the highway commissioners to grant a consent while one previously granted remained in force, and the respondent seeks to sustain the order upon the theory that the granting of such second consent would impair the obligar, tian of a contract within the meaning of the Federal Constitution. It is insisted that the right granted is from necessity exclusive and will, therefore, be invaded by a secon'd grant. A discussion of this question at this time will not be profitable for the reason that we have reached the conclusion that the consent to the plaintiff never became operative because of the failure of the plaintiff to give the bond as provided in that portion of the consent quoted supra.
The respondent contends that the Legislature has provided in detail for the construction, maintenance and operation of railroads and that it is only competent for the locql authorities to grant or with
. The order should he reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
Hirsohberg, P. J., Woodward, Gaynor and High, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and ■ motion denied, with costs.
Railroad Law, art. 4, as amd. See Id. § 99, as amd. by Laws of 1903, chap, 309.— [Rep.