People v. Broadway R.R. Co. of Brooklyn

• Decision Date: 01 January 1891
• Citation: 26 N.E. 961,126 N.Y. 29
• Parties: PEOPLE v. BROADWAY R. R. CO. OF BROOKLYN.
• Court: New York Supreme Court

126 N.Y. 29

26 N.E. 961

PEOPLE

v.BROADWAY R. R. CO. OF BROOKLYN.

Supreme Court, New York County, New York.

1891.

Appeal to the Court of Appeals from a judgment of the General Term reversing a judgment of the Special Term.

The action was brought by the Attorney General in behalf of the people of the State against the Broadway Railroad Company of Brooklyn to annul the defendants' charter, or to have the additional privileges and franchises granted to it by the laws of 1860, chapter 461, vacated and annulled.

The further facts sufficiently appear in the following opinion of the court at special term:

MAYHAM, J.

The people bring this action in the name of the Attorney General to have the charter of the defendant annulled or adjudged forfeited, or the charter privileges of said defendant given and granted by the act of the legislature passed in 1860, and the franchise connected therewith, vacated, annulled and declared forfeited.

The defendant was organized under the general railroad act of 1850, and under chapter 303, laws of 1858, for the purpose of building a street railroad from the foot of Broadway in the city of Brooklyn through that street to the village of East New York in Kings county, a distance of four and three-fifths miles. The articles of association were duly filed on August 20, 1858, and the road upon the main line completed in April, 1859, with a paid-up cash capital of two hundred thousand dollars. By chapter 461 of the laws of 1860, the legislature provided that it should be lawful for the Broadway Railroad Company of Brooklyn to lay down tracks through other streets not named in the original articles of association forming three branches from the main line, one intersecting the main line at South Sixth street, running thence through Eighth street across Broadway to Ross street, and with a double row of tracks through Ross street to Bedford avenue to Fulton street, and whenever Nostrand and Rogers avenue should be legally opened, graded and paved, to extend the line of double track through Fulton and Nostrand or Rogers avenues to Flatbush. Another branch was to commence with a single track at South Sixth street, and run thence through Eleventh street to South Fifth street, through South Fifth street to Montrose avenue, through said avenue to Morrell street, through Morrell street to Johnson avenue, to intersect with the track of the defendants' road at Broadway with a double track from Morrell street to Johnson avenue to its intersection with Cypress Hills plank road, and through the plank road on Cypress avenue, and whenever Cypress avenue shall have been legally opened and graded, to extend a double track on said avenue to the Cypress Hills Cemetery. This with defendants' main line formed a continuous line of road from the foot of Broadway to Cypress Hills Cemetery. The third branch provided for by the act of 1860, was whenever White, Rogers, or Thames, and Central or Knickerbocker avenues shall be laid out, opened and graded, the company is authorized to lay railroad tracks through White or Bogart streets from the intersection with the Cypress Hill plank road through Central avenue to the city line.

The defendant concedes that it accepted the grant under the act of 1860, and soon after the passage of that act, constructed a railroad in Johnson avenue from Broadway to Morrell street, thence along Morrell street to Montrose avenue, thence along Montrose avenue and Fifth street to Hooper street, then along Hooper street to Broadway, and continued to operate the same until 1876, when they took up the track and abandoned the use of the same, and have not since resumed its use, and that no other part of said grant has been entered upon and used except about 1,000 ft. in Central avenue in 1887, but which does not connect with the Broadway Railroad or any of its branches.

By section 14 of chap. 252, of the laws of 1884, it is provided that “Except for necessary crossing, no street surface railroad company shall construct, extend or operate its road or track in that portion of any street, avenue, road, or highway, in which a street surface railroad is, or shall be lawfully constructed, except with the consent of the company owning and managing the same.” Under this prohibition controversies have arisen, or are likely to arise, between the defendant and the surface railroad companies, particularly the Atlantic R. R. Co., as lessee of the Prospect Park and Coney Island R. R. Co. in relation to the use for railroad purposes of some of the streets and avenues embraced in the grant to the defendant by the act of 1860, to which the attention of the attorney general has been directed, and this action is properly brought to settle the rights of the parties, and have it judicially determined whether the defendant has forfeited its charter by not having constructed and operated its railroad over the routes specified in the act of 1860.

Two principal questions arise in this controversy, the determination of which may be decisive of the rights of the parties. 1. Was the act of 1860 so far a modification of the charter of the corporation, as to make it a part of the same, so that a violation of its provisions, or a failure to perform the acts therein permitted, would work a forfeiture of the charter under the provisions of sections 1798 and 1799, of the Code of Civil Procedure; or was it merely a grant of privileges to the corporation, the acceptance and performance of which was in its discretion? 2. Was the time limited by section 3, of the act of 1860, for the construction of said railroad in all streets that were opened and paved to October 1, 1861? or was the defendant at liberty under that act to wait until all the streets and avenues covered by that grant within the city were opened, graded, and paved, before it was compelled to construct any portion of the road embraced within the provisions of that act?

In determining the first question above suggested, recourse must be had to the language of the act itself. That act is entitled, “An act to amend an act to authorize the laying of railroad tracks in Broadway, and through certain other streets in the city of Brooklyn and New Lots in the county of Kings. Chap. 461, laws of 1860--amends Chap. 303 of the laws of 1858--which authorizes certain persons therein named to associate themselves together under the general railroad act, and when so associated to construct and operate a railroad on the routes therein specified. The first section of the amendatory act provides that it shall be lawful for the Broadway Railroad Company of Brooklyn, organized by virtue of the act hereby amended, to lay down a single line of railroad track commencing” at its then present track, Seventh street, then giving the line of the proposed route. The sixth section of the act of 1858 authorizes the formation of the Broadway Railroad Company under the general railroad act, and the organization was perfected under that act, or in accordance with its provisions. The defendant was, therefore, a corporation duly organized and invested with all the powers, privileges and franchises of a railroad corporation, before and at the time of the passage of Chap. 461 of the laws of 1860. The defendant was, therefore, at the time of the grant conferred by the act of 1860, a legal entity with power to take additional grants, and with volition to accept or reject the same, and the act of the Legislature, in granting the right to this corporation to extend its line of road upon other streets than those embraced in the original charter, did not, it would seem, change the charter or become a part of it, but simply conferred the right upon the defendant to extend its track to other streets, and the rights, privileges and franchises, conferred on the defendant by the act of 1860, were rights granted after the organization of the corporation and their acceptance by the defendant, and did not necessarily affect the original grant or charter under which the defendant was organized. It was a particular franchise added to the corporation, subsequent to its first creation, and one which might be defeated by non-user and the original franchise remain.

It would seem to follow that a right or franchise added to a corporation after its organization, does not constitute a part of the charter (People ex rel. McKinch v. The Directors and Company of the Bristol & Rensselaerville Turnpike Co., 23 Wend. 223, note). In the case at bar the franchise granted by the act of 1860 was not the entire franchise of the defendant. It had received under its charter and had for some time been exercising its franchise, in the construction and operation of the Broadway Surface Railroad, in which it had performed all the duties and obligations imposed by its original charter, and there is no claim in this action of any violation of its corporate powers or franchises, so far as its original charter is concerned. The case, therefore, is one where the terms of the original charter have been completely complied with, and the court is asked to forfeit that charter and franchise upon the ground that the conditions imposed upon the added franchise have not been complied with by the corporation.

There is no doubt of the power of the State through the attorney general to maintain an action to forfeit the charter and corporate franchise of a corporation, when the same has failed to perform the business for which it was incorporated. This right existed at common law, and is in this State conferred by statute. In Denike v. N. Y. & R. Lime Co., 80 N. Y. 599, EARL, J., says, “A corporation may be dissolved by a forfeiture through abuse or neglect of its franchise.” In People v. Kingston & Middletown Turnpike Co., 23 Wend. 204, Chief Justice NELSON says, “The principle is not new. It has always been so held at common law as fundamental. All franchises which are granted are upon condition that they shall be duly executed, according...