Colonial City Traction Co. v. Kingston City R. Co.

• Decision Date: 14 December 1897
• Citation: 154 N.Y. 493,48 N.E. 900
• Parties: COLONIAL CITY TRACTION CO. v. KINGSTON CITY R. CO.
• Court: New York Court of Appeals Court of Appeals

154 N.Y. 493

48 N.E. 900

COLONIAL CITY TRACTION CO.

v.KINGSTON CITY R. CO.

Court of Appeals of New York.

Dec. 14, 1897.

Motion for rehearing. Denied.

For former opinion, see 47 N. E. 810, 153 N. Y. 540.

G. D. B. Hasbrouck and Charles Stewart Davision, for the motion.

A. T. Clearwater, opposed.

VANN, J.

This motion for a reargument is based on the possibility that the court may have overlooked one of the points presented both orally and in writing on the argument. This possibility is founded on the fact that the point is not discussed by the court in its opinion; but, as we have held, that fact gives rise to no such inference in any case, and in this case it is expressly stated that the reason for not adopting the opinion of the appellate division, which, as reported, discusses the point supposed to have been overlooked, was to avert further litigation by deciding a question that, although presented by the record, was not decided by that learned court. Kamp v. Kamp, 59 N. Y. 212, 221;Dammert v. Osborn, 141 N. Y. 564, 35 N. E. 1088. The point that the appellant apprehended was overlooked was duly considered by us, although no expression of consideration appears in the opinion. It is, in substance, that, inasmuch as the defendant succeeded to the rights of a company organized prior to the amendment of the constitution in 1874, it has the right, if it chooses, to allow the use of its tracks by other roads, and that this right could not be infringed upon by subsequent legislative enactments; that such right, as it is further argued, can be exercised by the defendant without regard to whether the road with which it desires to contract was organized prior to the constitutional or statutory enactments, or subsequent thereto; and upon this assumption it is urged that, as the law provides for an appeal to the courts where there is an unreasonable refusal of property owners, so the law provides for an appeal to the courts where there is an unreasonable refusal by such a company as the defendant. The conclusion that we are asked to reach from this line of argument is that, as the property owners' consent ‘is compellable at law,’ so, where a road can voluntarily grant the right to use its tracks, ‘it is compellable to grant it through procedure in the courts,’ even if the statutory consents have not been obtained by the road making the application.

As the plaintiff was organized in 1896, and succeeded to the rights of a company organized in 1893, the constitution and railroad law as existing since the latter date control its rights, whatever effect they may have upon organizations of an earlier date. The railroad law is the only authority for this proceeding, and the plaintiff, as the moving party in the effort to acquire certain rights through the power of eminent domain, was bound to...