Gas & Electric Securities Co. v. Manhattan & Queens Traction Corporation

• Decision Date: 24 February 1920
• Docket Number: 30.
• Citation: 266 F. 625
• Parties: GAS & ELECTRIC SECURITIES CO. v. MANHATTAN & QUEENS TRACTION CORPORATION. Petition of BEGG et al.
• Court: U.S. Court of Appeals — Second Circuit

266 F. 625

GAS & ELECTRIC SECURITIES CO. v. MANHATTAN & QUEENS TRACTION CORPORATION.

Petition of BEGG et al.

No. 30.

United States Court of Appeals, Second Circuit.

February 24, 1920

[Copyrighted Material Omitted]

William P. Burr, Corp. Counsel, of New York City (Vincent Victory, of New York City, of counsel), for appellant.

Frueauff Robinson & Sloan, of New York City (Robert S. Sloan, of New York City, of counsel), for appellee receivers.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS Circuit Judge (after stating the facts as above).

It appears that the city of New York had entered into a franchise contract with the Manhattan & Queens Traction Corporation under date of October 29, 1912, which franchise contract was amended on July 21, 1913, and on January 21 1916. In reliance upon this contract the Manhattan & Queens Traction Corporation constructed, equipped, and put in operation a double track street surface electric railway between the Long Island plaza of the Queensboro Bridge at Jackson avenue, upon and along Thomson avenue and other streets and avenues in the borough of Queens, to the intersection of Sutphin road and Lambertville avenue, a distance of over 10 miles. The contract required that this part of the railway should be completed and in operation on or before May 1, 1916. The contract in this respect was complied with and the railway has been in continuous operation for this distance of 10 miles from April 26, 1916. Then as to the remainder of the line the contract under the amendment of January 21, 1916, provided that it was to be completed 'within such time or times as may be directed by resolution of the board (of estimate and apportionment) upon recommendation of the president of the borough, provided that title to the streets involved has been vested in the city and that said streets have been regulated and graded. ' At a meeting of the board of estimate and apportionment held on February 16, 1917, the president of the borough of Queens offered and there was adopted a resolution which directed the Manhattan & Queens Traction Corporation to commence construction of the remaining portion of its street surface railway from the intersection of Sutphin road and Lambertville avenue to the intersection of Central avenue and Springfield road within 30 days, and to complete and put the same in operation within 6 months from the date of the approval of the resolution by the mayor. The resolution was approved by the mayor on February 23, 1917. Under the terms of the resolution, therefore, it was incumbent on the corporation to complete and put in operation the remaining portion of the line therein mentioned, and which comprised only 3.3 miles, on or before August 23, 1917.

That the line of railway was not completed in accordance with the resolution is conceded, and the explanation which is made for the failure to comply with it is that the resolution was void as the city of New York was not in a position to insist that the Traction Corporation should make the extension, owing to the fact that title to the streets involved in the extension was not at the time vested in the city, and all of the streets were not regulated and graded to their legal grade and full width, as was required by a condition precedent in the franchise contract. Whether these claims are well founded will be later considered.

That the city did not think that there was legal excuse for the failure to complete the road within the period specified is apparent; for on October 19, 1917, the board of estimate and apportionment passed a resolution directing the Traction Corporation to show cause on November 9, 1917, why a resolution declaring forfeited the contract, dated October 29, 1912, and its amendments, should not be adopted, and why said resolution should not provide that the railway constructed and in use by virtue of said contracts shall thereupon become the property of the city of New York without proceedings at law or in equity.

On October 19, 1917, the division of franchises of the board of estimate and apportionment prepared a form of proposed resolution of forfeiture to be submitted to the board, which appears in the margin. ^[1] This resolution was to come up for action at a meeting of the board on December 21, 1917

The receivers of the defendant corporation, being of the opinion that this threatened action of the city was contrary to the franchise contract as amended, and that it was illegal, unjust, and inequitable, petitioned the court below which was the court that had appointed them, for a temporary restraining order, which was granted. Thereafter they obtained the order appealed from, restraining the passage of the resolution above set forth.

Before considering this case on the merits, it is necessary to determine a preliminary question as to whether the appeal was taken within the time prescribed by the Judicial Code. It is elementary that at common law a writ of error lies only from final judgments, and that the remedy by appeal is unknown to the common law, being employed for the review of causes in equity. According to the practice in equity as administered in England, appeals lay from interlocutory as well as from final orders or decrees. But under the judicial system of the government of the United States from the beginning until the passage in 1891 of the act establishing the Circuit Court of Appeals an appeal would lie only from final judgments or decrees. Smith v. Vulcan Iron Works, 165 U.S. 518, 522, 17 Sup.Ct. 407, 41 L.Ed. 810. Act 1891, c. 517, Sec. 7, provided that, where upon a hearing in equity an injunction shall be granted, continued, refused, or dissolved by an interlocutory order or decree, or an application to dissolve an injunction shall be refused, an appeal may be taken from such interlocutory order or decree to the Circuit Court of Appeals. In 1900 the act of 1891 was amended so that an appeal might also be taken from an interlocutory order appointing a receiver. Act 1900, c. 803. With these exceptions the appellate jurisdiction of this court continues restricted to final orders or decrees.

It is said in this case that the appeal was not taken in time, and the receivers on that ground have moved to dismiss. The order granting and continuing the injunction was re-entered and resettled on August 24, 1918. The appeal therefrom was taken on December 5, 1918. The contention is that the order is an interlocutory one, and that as appeals from interlocutory orders are required by section 129 of the Judicial Code to be taken within 30 days from the entry of such order, the appeal was not in time. U.S. Compiled Statutes Ann. 1916, vol. 2, p. 1444, Sec. 1121. If the order is a final one, it is admitted that the appeal was taken in time, as such appeals may be taken at any time within six months after the entry of the order. 26 Stat.p. 829; Barnes' Fed. Code 1919, Sec. 1386; U.S. compiled Statutes 1916 Ann.vol. 3, p. 3266, Sec. 1647.

An interlocutory order is one entered between commencement and the end of a suit or action, which denies some point or matter, but which is not a final decision of the matter in issue. Bouvier's Law Dictionary. An interlocutory injunction is one granted prior to the final hearing and determination of the matter in issue, and which is to continue until answer, or until the final hearing, or until the further order of the court. Its object is to maintain the status quo, to maintain the property in its existing condition and prevent further or impending injury, and not to determine the rights of the parties. In re Sharp, 87 Kan. 504, 124 P. 532, Ann. Cas. 1913E, 460; Nelson v. Brown, 59 Vt. 600, 10 A. 721. In Klein v. Independent Brewing Association, 231 Ill. 594, 83 N.E. 434, it is said that a final decree is not necessarily the last order in the case, as orders sometimes follow merely for the purpose of carrying out or executing the matters which the decree has determined; but when it finally fixes the rights of the parties it is final and may be reviewed. In Collier v. Seward, 113 Va. 228, 74 S.E. 155, a decree is said to be interlocutory, and not final, if the further action of the court in the cause, as distinguished from proceedings necessary to execute the decree, is necessary to give completely the relief contemplated by the court.

A preliminary injunction was issued on December 19, 1917, and the city was directed to show cause on December 26, 1917, why the temporary injunction should not be made permanent. After a full hearing on the merits the order as resettled and entered on August 24, 1918, reads as follows:

'Ordered and decreed that the motion of the receivers for a permanent injunction, brought on by the said order to show cause, dated and entered herein December 19, 1917, be and the same hereby is granted, without prejudice to any further or other application to this court for the enforcement of any claim or right of the city of New York as to said matters, and it is further ordered and decreed that the temporary injunction, granted December 19, 1917, be made permanent pending further order in the action.'

The order enjoined the persons specified therein 'from moving, considering, voting on, amending, adopting, or in any manner passing- ' the resolution heretofore referred to. The fact that the order was without prejudice to any further application to the court for the enforcement of any of the rights of the city certainly cannot have the effect of converting what is otherwise a final order into an interlocutory one. The injunction meant the end of the matter so far as the particular judge who issued it was concerned, except that it did not include a change of mind on his part. The order goes just as far and lasts just as long as the...