New York Elec. Lines Co. v. Gaynor

• Decision Date: 11 July 1916
• Citation: 218 N.Y. 417,113 N.E. 519
• Parties: NEW YORK ELECTRIC LINES CO. v. GAYNOR et al.
• Court: New York Court of Appeals Court of Appeals

218 N.Y. 417

113 N.E. 519

NEW YORK ELECTRIC LINES CO.

v.GAYNOR et al.

Court of Appeals of New York.

July 11, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the New York Electric Lines Company against William J. Gaynor and others, as members of and constituting the Board of Estimate and Apportionment of the City of New York, and the Empire City Subway Company, Limited. Judgment in favor of the defendants was entered at Special Term, affirmed by a judgment of the Appellate Division of the Supreme Court (167 App. Div. 314,153 N. Y. Supp. 244), and plaintiff appeals. Affirmed.

Seabury, J., dissenting.

Alexander S. Bacon, of New York City, for appellant.

Lamar Hardy, Corp. Cousel, of New York City (Samuel J. Rosensohn, of New York City, of counsel), for respondents Gaynor and others and city of New York.

Edmund L. Mooney, of New York City, for respondent Empire City Subway Co., Limited.

COLLIN, J.

The action is in equity to achieve the adjudication that the permission granted by the board of aldermen of the city of New York, April 10, 1883, to the plaintiff had not been revoked by a resolution of the board of estimate and apportionment of the city, adopted May 11, 1906, and was in full force and effect, and that the plaintiff is entitled to place its wires underground in the streets of the city. The judgment entered upon the decision of the trial justice dismissed the complaint upon the merits and was unanimously affirmed by the Appellate Division.

The facts underlying the adjudication are manifold. They in their substance and effect have been stated in judicial opinions with such fullness and accuracy that their restatement here is unnecessary. They may be fully known, except as supplemented in this opinion, by reading the opinions in Matter of New York Electric Lines Cl., 201 N. Y. 321, 94 N. E. 1056;New York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179, 35 Sup. Ct. 72, 59 L. Ed. 184, Ann. Cas. 1916A. 906; and New York Electric Lines Co. v. Gaynor, 167 App. Div. 314,153 N. Y. Supp. 244.

The findings of fact in the present action support the conclusion of law that the plaintiff prior to the 11th day of May, 1906, had neglected to use and had abandoned any right which it may have had under the permission or consent of the board of aldermen of April 10, 1883. Those findings are too numerous and elaborate to be quoted in this opinion. They have been unanimously affirmed by the Appellate Division, and thus withdrawn from our review. On May 11, 1906, the city of New York, through a resolution of the board of estimate and apportionment, declared and the defendants in their answers allege that the entire of the rights and privileges of the plaintiff acquired by it through the permission of 1883 had been forfeited by nonuser.

[1] The Supreme Court of the United States in New York Electric Lines Company v. Empire City Subway Company, 235 U. S. 179, 195, 35 Sup. Ct. 72, 77 (59 L. Ed. 184, Ann. Cas. 1916A, 906), established principles which direct the affirmance of the judgment here. The permission of April 10, 1883, rested upon its acceptance by the plaintiff and the obligation upon its part, included through implication in the permission and its acceptance, it not being expressed, that the plaintiff would within a reasonable time, subject to lawful provisions and regulations, execute the rights and privileges granted and create for the public the public conveniences and advantages contemplated by the grant. The failure to exercise the permission as contemplated is ground for the revocation or withdrawal of it. It was a tacit condition annexed to the permission as granted that it might be lost by misuser or nonuser. The condition and the right...