95 N.Y.S. 101 | N.Y. Sup. Ct. | 1905
The defendant having demurred to the plaintiff’s complaint a%nits not only the direct allegations of the complaint but also whatever may fairly be inferred from or spelled out of such allegations, the complaint being liberally construed in favor of the pleader. O’Connor v. Virginia Passenger & Power Co., 46 Misc. Rep. 530; 92 N. Y. Supp. 525. So construed, the complaint fairly shows that in the year 1900 the cities of Gloversville and Johnstown were receiving telephone service from the Hudson Biver Telephone Company, and the defendant presented to the common council of the city of Gloversville a petition, signed at its request by the plaintiff and many other citizens, embodying its proposed terms of service and asking that the franchise the defendant sought be granted. The defendant also presented the franchise it desired and a petition requesting that it be adopted, which was done, and the defendant duly accepted said franchise and agreed to its terms. By it, among other things, the defendant had the right to erect its poles and string its wires over the public streets, highways, alleys, and public places, and in consideration thereof was to pay the city $500, grant to it four free telephones and furnish to the citizens office service at $2 per month and residence service at $1 per month, the party served to furnish his own telephone. The plain
It is true, as contended by the defendant, that it gets its right to pass over the public streets and highways not from the city but by virtue of the Transportation Corporations Law (Laws of 1890, chap. 566, § 102). But this so-called franchise from the city gives the defendant valuable rights not secured to it by the Transportation Law. That law gives the defendant no rights in the public parks or upon the public property or public places of the city outside of the highways. Neither does that law deprive the city of its police power under which it may determine how the lines are to run, whether upon poles or in subways or conduits, and many other things relating to the transaction of the business. By engaging in this public utility the defendant becomes subject to certain rights of and restraints by the municipalities through which it operates. (City of Rochester v. Bell Telephone Co., 52 App. Div. 6; American Rapid Telegraph
The defendant relies upon Embler v. Hartford Steam Boiler Ins. Co., 158 N. Y. 431, and the principles there discussed, claiming that the city owed no duty to its citizens to obtain cheap telephone rates for them; that the plaintiff is not a party to or in privity with the parties to the contract and, therefore, cannot maintain this action. In that case the employer obtained the policy insuring against accidents, the defendant agreeing to pay for the loss of life or injury to the assured or any person in his employ, not to exceed $5,000 for each person killed or injured, the payment to be for the benefit of such person or his representative. The representative of the deceased employee brought an action against the company and settled for $1,500. The estate then assigned its interest in the policy to the plaintiff who brought the action to recover the balance of the $5,000. Judge Gray, who wrote the opinion, held that a recovery could not be had because of want of privity and that the employer was under no duty to insure the employee and that for that reason the action could not be maintained, but the majority of the court concur in the result, putting their decision upon the ground that at the most the policy was one of indemnity only and the estate having settled for $1,500 there could be no further recovery on account of that death. It is but fair to infer from the memorandum of the majority of the court that if there had been no settlement plaintiff could recover. This case shows that the doctrine in the former cases is not at least to be extended any further, and emphasizes the suggestion that the right of a third person to recover upon a contract made by other parties for his benefit must rest upon the peculiar circumstances of each case rather than upon the law of some other case. The
I, therefore, hold that the contract between the defendant and the city is valid and that plaintiff may insist that the defendant comply with its terms and conditions so far as he is concerned. Most of the cases cited by the defendant, where a third person has not been able to recover upon a contract made between others, are actions of law and are governed by the strict rules of law. In this action for an injunction a court of equity is not controlled by such rules, but is principally concerned in knowing whether the defendant owes
Demurrer overruled and interlocutory judgment ordered, with leave to defendant to withdraw demurrer within thirty days upon payment of thirty-five dollars costa.