Mayor v. Manhattan Ry. Co.

• Decision Date: 04 June 1894
• Citation: 143 N.Y. 1,37 N.E. 494
• Parties: MAYOR, ETC., OF CITY OF NEW YORK v. MANHATTAN RY. CO.
• Court: New York Court of Appeals Court of Appeals

143 N.Y. 1

37 N.E. 494

MAYOR, ETC., OF CITY OF NEW YORK

v.MANHATTAN RY. CO.

Court of Appeals of New York.

June 4, 1894.

Appeal from supreme court, general term, first department.

Action by the mayor, aldermen, and commonalty of the city of New York against the Manhattan Railway Company for an accounting as lessee and successor of the New York Elevated Railroad Company. From a judgment of the general term (25 N. Y. Supp. 860) affirming a judgment for plaintiff, defendant appeals. Reversed.

This is an action in the nature of one for an accounting. The plaintiff demands judgment against the defendant, that it render an account to the plaintiff of its net income arising from passenger traffic on its railroads since the 5th day of June, 1879, and that it pay to the plaintiff 5 per cent. thereon from October 1, 1879, after crediting defendant with the amounts of the quarterly payments actually made by it since that date. The defendant denies any liability to pay any amount whatever, and it also sets up various counterclaims for which it demands judgment. The controversy arises respecting what are termed the ‘Ninth Avenue & Greenwich Street Route,’ and also the ‘Third Avenue Route,’ of railroads operated by defendant in the city of New York. The former is a route on the west side of the city, and runs near the borders of the Hudson river, and extends from Battery place, on the south, to Fifty-Ninth street, on the north. The latter, or the Third avenue, is an east-side route; and the structure thereon was built subsequent to that upon the west side, and under a different statute, and for the purpose of forming a connecting route between the Ninth Avenue & Greenwich Street Railroad and other steam railways, or the depots thereof, or with steam ferries, pursuant to the thirty-sixth section of what is known as the ‘Rapid-Transit Act,’ being chapter 606 of the Laws of 1875. The railroad that was built upon the east or Third avenue side of the city, and in accordance with the routes laid out for it under the act last cited, extends from a connecting point with the Ninth avenue road, at the intersection of Greenwich street and Battery place, and thence, after connecting with the South ferry, Hamilton avenue ferry, and Staten Island ferry, proceeds northerly, through various streets, until it reaches Third avenue; and in its progress through these streets, and along that avenue towards its terminus, at Harlem bridge, it connects with various other ferries across the East river, and also with the Grand Central Railroad station, at Forty-Second street.

The questions arising in the case depend upon various statutes relating to these elevated railroads; and as they are frequently referred to, both in the arguments of counsel and in the opinion in the court, it is thought to be matter of convenience to set them out in this statement as fully as may be necessary to a proper understanding of the case. The first act upon the subject was passed April 20, 1866, and forms chapter 697 of the Laws of that year. It is an act supplementary to what is commonly known as the ‘General Railroad Act of 1850.’ It is not necessary to give the next in full, it being sufficient to say that it provided for the formation of a railroad company under the provisions of the act of 1850, and for the purpose of carrying persons and property by means of a propelling rope or cable attached to stationary power. The rate of fare was fixed at a minimum of 10 cents, with a right to not exceeding 5 cents for each mile, or any portion thereof. Under this act of 1866, the West Side & Yonkers Patent Railroad Company was duly incorporated for the purpose of constructing, maintaining, and operating a railway for public use, and for the transportation of persons and property by the means spoken of in the act. The railway was to commence at or near the southerly extremity of the city of New York, and was to extend thence northerly, with one or more branches, parallel or lateral to the main line, through the city, to the village of Yonkers. The articles of association of this company were duly filed in the office of the secretary of state July 26, 1866. Nothing further had been done under the provisions of this act when chapter 489 of the Laws of 1867 was passed. That act is entitled ‘An act to provide for the construction of an experimental line of railway in the counties of New York and Westchester.’ The first section of that act authorized the West Side & Yonkers Patent Railway Company to commence and proceed with the construction of the elevated (so-called) railway, in the counties of New York and Westchester, in the manner and upon the route hereafter specified. The second section provided that the railway should be operated exclusively by means of propelling cables attached to stationary engines placed beneath or beyond the surface of any street through which such railway might pass, and was to be concealed from view, so far as the same might be detrimental to ordinary uses of said street, and provision was made for the kind of structure that was to be built. The third, fourth, and fifth sections of that act read as follows:

‘Sec. 3. The said West Side and Yonkers Patent Railway Company are hereby empowered to commence the construction of an elevated railway as aforesaid, at the southerly extremity of Greenwich street, near Battery place, in the city of New York, and extend the same northerly along Greenwich street for a distance of half a mile in length. At or near the center of the same shall be placed a stationary engine, which shall be constructed to operate a series of two lengths of propelling cable, extending about one-fourth of a mile northerly, and one-fourth of a mile southerly, and put the same in practical operation as contemplated by said company, with a car placed upon said track, loaded to a weight equal to at least three times the ordinary weight of a passenger car proposed to be used thereon with its occupants. When the said experimental section shall be in readiness within * * * the time hereinafter mentioned, the commissioners hereinafter mentioned shall proceed to inspect the said railroad, its structures and operating machinery. Upon due inspection and examination as aforesaid, if the said commissioners shall approve of the structure, plan and operations of the said elevated railway, and shall find that the same can be operated with safety and dispatch, then the said commissioners shall certify to such facts, and shall cause a copy of their certificate of approval to be signed in duplicate, and one copy sent to the governor of the state, who, upon approving the same, shall cause it to be filed in the office of the secretary of state, and a certified copy to be transmitted to the mayor of the city of New York, and thereupon the said West Side and Yonkers Patent Railway Company shall be authorized to extend the line of said railway northerly, as hereinafter provided. But in case the said commissioners shall not approve of said railway, and its plan of construction and operation, they shall, in like manner, sign a certificate of the facts, with an order for the removal of the said railway indorsed thereon, which shall be sent to the governor, and when approved by him, shall be filed with the secretary of state, and a certified copy sent to the mayor of the city of New York, and thereupon the constructing company shall proceed immediately to remove the structure, and shall replace the streets and sidewalks in the same condition as before its erection, and in default of so doing the corporate authorities of the city of New York may cause the same to be done at the expense of the said company.

‘Sec. 4. Upon the compliance of the West Side and Yonkers Patent Railroad Company with the requirement of the preceding sections of this act, and upon the filing of the certificate of the commissioners approved as aforesaid, in proof of the same, the said company is hereby authorized to extend its line of elevated (so-called) railway as aforesaid, along both sides of Greenwich street to Ninth avenue, and along both sides of Ninth avenue, or streets west of Ninth avenue to the Harlem river.

‘Sec. 5. There shall be three commissioners, of whom two shall be appointed by and continued during the pleasure of the governor, and one by the Croton aqueduct board of the city of New York, whose duty it shall be to cause the inspection of said railway, and filing of certificates thereof, as hereinafter mentioned, and who shall have power, in case of the extension of the line of railway, as specified, to authorize the constructing company to remove any obstructions which may exist along its route, and to direct as to the removal and replacement of awning frames, signs and other local objects, heretofore permitted in the streets along which such railway is to pass. They may designate the point at which staircases may be erected for public access in the streets, to such railway, and where ‘turnouts' and connecting tracks between the two tracks along the street may be erected. The said commissioners may also limit the speed to a maximum rate compatible with public safety, at which cars may be propelled upon said railway and may prohibit the erection of any structure in the public streets by said constructing company, which shall be unsafe or unauthorized by this act. Their compensation shall be paid by said company, at the rate of ten dollars per each day of such official service, as sworn to by them, and approved by the governor. A majority of said commissioners shall be competent to act in all cases.’

The sixth section is not important. The seventh, eighth, ninth, tenth, and eleventh sections read as follows:

‘Sec. 7. It shall be lawful for said constructing company to rent, purchase, or acquire, such buildings or parts thereof as may be convenient for the stations or depots for public access to the contemplated railway, and to hold such real estate...