Brooklyn City R. Co. v. Whalen

• Decision Date: 11 June 1920
• Citation: 128 N.E. 215,229 N.Y. 570
• Parties: BROOKLYN CITY R. CO. v. WHALEN.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 570

128 N.E. 215

BROOKLYN CITY R. CO.

v.WHALEN.

Court of Appeals of New York.

June 11, 1920.

Action by the Brooklyn City Railroad Company against Grover A. Whalen, individually and as Commissioner of Plant and Structures of the City of New York. From an order of the Appellate Division (191 App. Div. 737, 182 N. Y. S. 283), affirming an order of the Special Term (111 Misc. Rep. 348,181 N. Y. Supp. 208), granting a motion for a temporary injunction to restrain the operation of certain motor bus routes in the city of Brooklyn, defendant, by permission, appeals.

Affirmed.

The following questions were certified:

‘First. Does the complaint herein state a cause of action for an injunction?

‘Second. Has the board of estimate and apportionment of the city of New York power to authorize the commissioner of plant and structures of said city legally to establish, to maintain and to work motor vehicle lines in the streets of the said city?

‘Third. Do the Public Service Commissions Law [Consol. Laws, c. 48] and the Transportation Corporations Law [Consol. Laws, c. 63] apply to motor vehicle lines which are attempted to be worked by the commissioner of plant and structures of the city of New York under vote therefor from the board of estimate and apportionment of said city?

‘Fourth. Does section 74 of the Greater New York Charter [Laws 1901, c. 466] apply to motor vehicle lines attempted to be worked by the commissioner of plant and structures of the city of New York under the vote of the board of estimate and apportionment of said city?’

The plaintiff, a street railroad company, owns and operates lines of surface cars in Brooklyn. In the fall of 1919 the board of estimate and apportionment authorized the defendant to operate motor vehicles for the carrying of passengers on certain prescribed routes. Pursuant thereto he established routes, and under his authority and supervision lines of motor vehicles, stages, or omnibuses are running over the routes specified in the order and paralleling the tracks of the plaintiff company. This action was brought to enjoin the defendant from maintaining and operating the stage lines of motor vehicles.

Appeal from Supreme Court, Appellate Division, Second department.

John P. O'Brien, Corp. Counsel, of New York City (William B. Carswell and Joseph A. Devery, both of New York City, and Edward G. Nelson, of Brooklyn, of counsel), for appellant.

Jackson A. Dykman and William N. Dykman, both of Brooklyn, for ...