City of Troy v. United Traction Co.

• Decision Date: 13 June 1911
• Citation: 202 N.Y. 333,95 N.E. 759
• Parties: CITY OF TROY v. UNITED TRACTION CO.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 333

95 N.E. 759

CITY OF TROY

v.UNITED TRACTION CO.

Court of Appeals of New York.

June 13, 1911.

Appeal from Supreme Court, Appellate Division, Third Department.

Suit by the City of Troy against the United Traction Company, to compel defendant to comply with an ordinance regulating the frequency of service. From a judgment of the Appellate Division (137 App. Div. 935,122 N. Y. Supp. 1124) unanimously affirming the judgment of the Rensselaer County Court dismissing the complaint, complainant appeals. Affirmed.

George B. Wellington, for appellant.

Lewis E. Carr, for respondent.

CHASE, J.

The plaintiff is a city of the second class. It has been subject to the provisions of the uniform charter of cities of the second class since January 1, 1908. Laws of 1906, c. 473, now charter 53 of the Consolidated Laws. Prior to January 1, 1908, it had been since January 1, 1900, subject to chapter 182 of the Laws of 1898 (White charter), and prior to 1900 it was subject to special charter.

The defendant is a street railroad corporation, and it has succeeded to the rights and franchises of the Troy City Railway Company, another street railroad corporation, which had succeeded to the rights and franchises of the Troy & Albia Horse Railroad Company, another street railroad corporation.

The plaintiff, on August 5, 1890, granted certain franchises to the Troy & Albia Horse Railroad Company by an ordinance, section 8 of which is as follows: ‘The said company shall place suitable cars on its said railroad so extended for the convenience and comfort of passengers, and shall run the said cars each and every day, both ways, as often as the public wants and convenience may require and under such reasonable directions and regulations as the common council may from time to time prescribe by a two-thirds vote of all the members of that body.’

On November 21, 1895, it granted a franchise to the Troy City Railway Company to operate a street railroad on Oakwood avenue in said city by an ordinance, section 2 of which is in part as follows: ‘* * * The extension of such railroad and the operation thereof on the streets and avenue above mentioned are hereby made subject to all the conditions and provisions mentioned in the ordinance passed August 5, 1890, relative to the extension of the railroad of the Troy & Albia Horse Railroad Company (predecessors of the Troy City Railway Company) as fully as if the same were incorporated herein.’ The Oakwood avenue line was built and operated, and on January 23, 1900, an ordinance was passed by the plaintiff which required the defendant's predecessor in title to run cars on each of its lines, both ways, at intervals not to exceed 10 minutes, from 5 o'clock in the morning until 7 o'clock in the evening, and thereafter as the public wants and conveniences might require. The defendant failed to comply with said ordinance, and on February 28, 1908, the mayor of the city of Troy, on behalf of himself individually, as a resident and taxpayer in said city and as the mayor of the city, petitioned the Public Commission of the state of New York, in the Second district, to ‘determine the just, reasonable and adequate service hereafter to be enforced on said Oakwood avenue line to be observed by said United Traction Company, and fix and prescribe the same by an order to be served upon said United Traction Company, and that said United Traction Company be ordered to comply with the terms of said ordinance and to satisfy the cause of complaint herein and order said United Traction Company to increase the number of its cars on said Oakwood avenue route, so that there may be a car both ways, every day, at intervals not to exceed 10 minutes, from 5 o'clock in the morning until 7 o'clock in the evening.’ In his petition he alleged the facts stated herein, and he further alleged, among other facts, that ‘said United Traction Company has for several years last past failed to comply with the terms of said ordinance (ordinance of January 23, 1900), in that it has not run over said Oakwood avenue route or line, both ways, wvery day, cars at intervals not to exceed 10 minutes, from 5 o'clock in the morning until 7 o'clock in the evening. * * * Said railroad corporation does not run cars enough reasonably to accommodate the passenger traffic offered to it, and does not run cars with sufficient frequency or at reasonable or proper times on its said Oakwood avenue route.’

The United Traction Company answered said petition, and, among other things, denied the allegations of the petition charging it with failure to operate a sufficient number of cars on the Oakwood avenue line to accommodate the public. A hearing was had upon said petition and answer, and it resulted in the Public Service Commission making an order, on July 30, 1908, the material parts of which are as follows:

‘Ordered, that said United Traction Company be and it is hereby directed to furnish on its Oakwood Avenue line, in Troy, N. Y., a passenger car service as follows:

‘On week days: A fifteen-minute service beginning at the Union Station and running northward at least to Frear avenue, and as far northward beyond that point as may be found practicable without increasing the number of cars now in use on said line, viz., two.

‘The first car to leave Union Station at 6:15 a. m. and the last car to leave Union Station at 12 midnight, except that between the hours of 9:00 a. m. and 11:40 a. m. and between the hours of 2:10 p. m. and 5:10 p. m. the service shall be a twenty-minute service, and the cars shall run from Union Station to St. Peter's Cemetery, the end of the line, on the twenty-minute schedule only.

‘On Sundays: The service to be a twenty-minute service from 6:15 a. m. to 12:00 midnight, beginning at Union Station and running through to St. Peter's Cemetery, the end of the line.

‘It is further ordered that this order shall take effect on August 10, 1908, and shall continue in force until modified or abrogated by this commission.’

It is asserted and not denied that the Public Service Commission, on November 1, 1908, modified the order of July 30, 1908, which modification is evidenced in the record by a telegram sent to the defendant on that day, as follows: ‘Order in Oakwood Ave., Troy, line suspended until further notice will be satisfactory to resume 20 minute service to terminus that line commencing Nov. 2nd. * * *’ The orders of the Public Service Commission have been obeyed. On November 5, 1908, the plaintiff passed another ordinance by a vote of...