New York Cent. & H.R.R. Co. v. City of New York

• Decision Date: 19 May 1911
• Citation: 202 N.Y. 212,95 N.E. 638
• Court: New York Court of Appeals Court of Appeals
• Parties: NEW YORK CENT. & H. R. R. CO. v. CITY OF NEW YORK et al.

202 N.Y. 212

95 N.E. 638

NEW YORK CENT. & H. R. R. CO.

v.CITY OF NEW YORK et al.

Court of Appeals of New York.

May 19, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the New York Central & Hudson River Railroad Company against the City of New York and others. From a judgment of the Appellate Division (142 App. Div. 578,127 N. Y. Supp. 513), unanimously affirming a judgment of the Supreme Court on the report of a referee, enjoining defendants from removing or attempting to remove the tracks occupying certain streets along the line of the Hudson River from Spuyten Duyvil creek to near Sixty-Eighth street, which tracks were laid under an ordinance adopted by the city of New York May 6, 1847, pursuant to Laws 1846, chapter 216, granting permission to the Hudson River Railroad Company to construct the tracks therein, defendants appeal. Affirmed.Archibald R. Watson, Corp. Counsel (William P. Burr, of counsel), for appellants.

Charles F. Brown, for respondent.

WILLARD BARTLETT, J.

This suit is the outcome of a notice served by the municipal authorities of the city of New York upon the New York Central & Hudson River Railroad Company, requiring the removal of its tracks from Tenth, Eleventh, and Twelfth avenues, and West street. The judgment enjoins the city and its officers from removing or attempting to remove these tracks. It is based upon the legal proposition that the right thus to occupy the streets in question is derived by the New York Central & Hudson River Railroad Company from the state, through the Legislature, and not from the city; that such right was conferred upon the plaintiff's predecessor in title in 1846 and has never been taken away, and that it can only be taken away by the power which granted it; that is to say, the Legislature itself.

The New York Central & Hudson River Railroad Company came into existence in 1869, by virtue of a consolidation between two pre-existing railroad corporations, the New York Central Railroad Company and the Hudson River Railroad Company, pursuant to the provisions of chapter 917 of the Laws of 1869, entitled ‘An act to authorize the consolidation of certain railroad companies.’ The agreement of consolidation provided that the new corporation should continue for the term of 500 years. This provision appears to have been authorized by the statute cited, which empowered the directors of the companies proposing to consolidate to enter into a joint agreement for the purpose, ‘prescribing the terms and conditions thereof.’ The act of 1869 also provided that all the provisions of the general railroad act of 1850 ‘shall be applicable to the new corporation so to be formed as aforesaid, so far as the same are now applicable to the railroad companies of this state, which may be consolidated with any other company or companies by virtue of this act.’ Section 8. The general railroad act provided that articles of association thereunder should state the number of years during which a railroad company should continue (Laws 1850, c. 140, § 1), and this provision having thus been made applicable to a consolidatedcorporation formed under chapter 917 of the Laws of 1869, it authorized the directors of the companies proposing to unite to fix the period of existence of the corporation born of the consolidation. The pre-existing New York Central Railroad Company was itself the offspring of a consolidation pursuant to chapter 76 of the Laws of 1853, under an agreement which fixed its corporate life at 500 years, while the existence of the Hudson River Railroad Company was originally limited to 50 years from May 12, 1846 (Laws 1846, c. 216), capable, of course, of being extended by the authority of the Legislature.

[1] The right or franchise to occupy the streets in controversy in this action was conferred upon the Hudson River Railroad Company by the act cited, under which it was organized, and it is the contention of the appellants that the duration of the franchise was limited to the term in which that statute authorized it to carry passengers and property, to wit, 50 years . If this 50-year limitation did apply to the franchise, under a correct construction of chapter 216 of the Laws of 1846, the franchise could not be extended by any action taken by the grantee, either alone or in the process of consolidating with the New York Central Railroad Company; and, so far as any of the opinions below intimate a contrary view, we are unable to agree with them. We are satisfied, however, that the duration of the franchise was not thus limited, but that the limitation applied to the corporate existence of the Hudson River Railroad Company only (which might be extended), and not at all to the location of its tracks in the streets of New York.

The act incorporating the Hudson River Railroad Company was passed on May 12, 1846, and is entitled ‘An act to authorize the construction of a railroad from New York to Albany.’ The first section reads as follows: ‘Section 1. All persons who shall become stockholders pursuant to this act, shall be and they are hereby constituted a body politic and corporate, by the name of ‘The Hudson River Railroad Company,’ with power to construct a single, double or treble railroad or way, between the cities of New York and Albany, commencing in the city of New York, with the consent of the corporation of the city of New York, and passing through the counties of Westchester, Putnam, Dutchess, Columbia, and ending at some point on the Hudson river, in the county of Rensselaer, opposite the city of Albany, to be laid with an iron rail weighing not less than seventy pounds per lineal yard; with power to construct such branch or branches, for depot and station accommodations, as may be required for the business of said railroad; and to transport, take or carry any property and persons upon the same, by the power and force of steam, of animals, or of any mechanical or other power, or of any combination of them, for the term of fifty years from the passage of this act; it being expressly understood that nothing contained in this act shall authorize or allow the construction of a bridge across the Hudson river; but the said company may, with the consent of the corporation of the city of Albany, establish a ferry across the said river at Albany, for the accommodation of the business of the said railroad.'

In section 4 of the same statute it is provided that the directors of the corporation ‘may locate their railroad on any of the streets or avenues of the city of New York, westerly of and including the Eighth avenue, and on or westerly of Hudson street, provided the assent of the corporation of said city be first obtained for such location.’ The last section (section 36) provides that the Legislature ‘may at any time alter or repeal this act.’ The Legislature has not exercised its reserved power to repeal up to the time of the argument before us.

The assent of the corporation of the city of New York to the location of the tracks of the Hudson River Railroad Company on the streets in controversy was duly given by ordinance approved by the mayor on May 6, 1847, and subsequent ordinances. The assent of the city did not assume to prescribe any limit of time during which such occupation of the streets should continue. As has already been intimated, we think no such limitation of the franchise is to be found in the charter of the Hudson River Railroad Company.

A strong reason for regarding the 50-year limitation as applicable only to the life of the corporation is furnished by the forms of legislation in reference to the organization of railroad companies which prevailed before and at the period when this statute was enacted. Railroad companies were then incorporated by special, and not under general, laws; and the common practice was at the beginning of the statute to prescribe the duration of the life of the corporation, which was usually 50 years. Such limitations are to be found in the charters of the Saratoga & Schenectady Railroad Company (Laws 1831, c. 43), Rensselaer & Saratoga Railroad Company (Laws 1832, c. 131), Watertown & Rome Railroad Company (Id. c. 173), Lake Champlain & Ogdensburg Railroad Company (Id. c. 205), Long Island Railroad Company (Laws 1834, c. 178), Auburn & Syracuse Railroad Company (Id. c. 228), Hudson & Delaware Railroad Company (Laws 1835, c. 126), and the Rochester & Lockport Railroad Company (Laws 1837, c. 427), and many more examples might be cited.

The street franchise is granted in a different section of the statute, quite dissociated from the time limit. The language leaves the duration of the franchise wholly indefinite and undetermined. It was unquestionably in existence, however, and in the lawful enjoyment of the Hudson River Railroad Company, when that corporation was merged with the New York Central in 1869. The consolidation act of that year provided that upon the consummation of the acts necessary to consolidate the...