
    The Port Richmond & Prohibition Park Electric Railway Co., App’lt, v. The Staten Island Rapid Transit Elevated Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 28, 1893.)
    
    Railroad—Crossings.
    The general railroad act applies to the crossing of a steam railroad by an electric road, and if a satisfactory arrangement cannot be made by agreement, application must be made thereunder.
    Appeal from judgment dismissing the complaint.
    Action to procure an injunction requiring defendant to remove the obstruction of a certain gate to the operation of plaintiff’s electric road, and to restrain it from interfering with plaintiff’s road, cars, trolley and wires. The court below made the following findings of fact and law :
    I. The plaintiff is a domestic corporation duly organized and existing under and by virtue of the laws of the state of New York, and is operating an electric surface railroad on a part of the shore road, in the village of Port Richmond, New York.
    IT. The defendant is a domestic corporation duly organized and existing under and by virtue of the laws of the state of New York, and for many years last past has been and is now operating a locomotive steam railroad which passes through said village.
    III. The route of the plaintiff’s railroad crosses the track of the defendant’s railroad on the shore road in said village.
    IY. For a long time prior to the organization of the plaintiff and the construction of the plaintiff’s railroad on the shore road, the defendant had been crossing the shore road on grade, and had protected its said crossing by a “ Copeland ” gate having four arms, two on each side of the tracks, operated by one crank; the four arms being connected by an endless chain which crosses the shore road on each side of the tracks fifteen feet eleven inches above the shore road when the gate is open.
    Y. The plaintiff operates its railroad by means of a trolley overhead wire.
    YI. The plaintiff cannot string its trolley wire across the defendant’s tracks and operate its cars across said tracks by the trolley system so long as defendant’s “ Copeland ” gate is in use. The stringing of said wire and the operation of the plaintiff’s railroad by the trolley system are impossible unless the chain of said gate be broken, and the breaking of said chain renders said gate useless.
    YII. About the end of June, 1892, the plaintiff opened a negotiation with the defendant to obtain an agreement from the defendant giving it the right to string its wire and cross the defendant’s tracks. While this negotiation was pending and before the terms and conditions of crossing had been fixed, the plaintiff requested the defendant to disconnect the chain of its gate and permit the plaintiff’s wire to be strung and its cars to be operated across the defendant’s tracks temporarily pending the settlement of the terms and conditions of crossing. The defendant complied with said request in or about the month of June, and the plaintiff operated its cars across the defendant’s tracks by the trolley overhead system between about July 3d and November 27, 1892, under said temporary permission granted by the defendant. The defendant’s gate during that period was useless in consequence of the breaking of the chain. After the plaintiff had strung its wires and had begun to operate its cars across the defendant’s tracks through the courtesy of the defendant, it broke off the said negotiation and no agreement of any kind has ever been made between the parties to this action with reference to the terms and conditions of crossing.
    YUI. On November 27, 1892, the defendant again connected its gate chain and since that time the plaintiff has been unable to operate its cars across the defendant’s tracks by means of the trolley system.
    IX. No application has been made to the court by the plaintiff for the appointment of commissioners as provided in § 12 of the railroad law.
    X. The defendant’s “ Copeland ” gate is a lawful gate. It is not a nuisance and no complaint has ever been made of it except by the plaintiff.
    XI. The only railroad gate that can be operated at the crossing in question without interfering with the plaintiff’s trolley wire and the operation of the plaintiff’s cars across the defendant’s tracks would be a gate operated by means of an underground system of level's.
    XII. While such a gate as that described in the last preceding paragraph is not unknown, it is seldom used.
    XIII. That the Staten Island Belt Line Railroad Company is a domestic corporation duly organized and existing under and by virtue of the laws of the state of New York, and is duly authorized by law to operate its street surface railroad, among other streets, on the shore road in the village of Port Richmond, New York.
    XIV. That this plaintiff is duly authorized by law to build, operate and maintain its street surface electric railroad along the shore road in said village, and between the 3d day of July, 1892, and the 18th day of November, 1892, ran its cars without molestation by means of the trolley or overhead system of electric power between Bergen Point ferry in said village of Port Richmond, along said shore road and Jewett avenue, to Prohibition park in the village of New Brighton.
    XV. That on the 14th day of June, 1892, by an order duly entered, the board of railroad commissioners of the state of New York did approve the adoption of the overhead single trolley electric system by the plaintiff as a motive power.
    XVI. That said Staten Island Belt Line Railroad Company is now in the hands of a receiver, duly appointed, qualified, and acting as such; that said receiver did on the 18th day of March, 1892, by an order of this court duly made and entered, obtain the permission of the court to grant its permission to the plaintiff to construct, operate and maintain its electric railroad along and upon the tracks and roadbed of the said Staten Island Belt Line Railroad Company on the shore road from Bergen Point ferry in said village to said Jewett avenue, and said belt line railroad therein selected electricity as a motive power to be used concurrently with other motive powers (except locomotive steam power) along said streets in the village of Port Richmond.
    XVII. That thereupon said receiver duly entered into an agreement with this plaintiff, dated March 19, 1892, wherein, acting under the directions and instructions contained in said order, said receiver duly leased to this plaintiff by an instrument in writing duly signed, executed, acknowledged and delivered, its certain tracks and roadbed (to be used conjointly with said Staten Island Belt Line Railroad Company) lying on the shore road between Richmond avenue and Jewett avenue in said village; •and said belt line railroad company therein selected electricity as a motive power to be used along that part of said street therein leased.
    XVIII. That the plaintiff’s street surface electric railroad crosses the defendant’s system railroad on said shore road in said village.
    XIX That in the month of June, 1892, this plaintiff strung its electric wires and on the third day of July, 1892, began the running of its cars across the defendant’s road at said crossing without molestation or dissent.
    XX. That the defendant has maintained at said crossing a body of men for the purpose of resisting the crossing of the plaintiff’s cars and to prevent plaintiff from removing the obstruction of said gate.
    And, as conclusions of law,
    I. That the defendant’s gate was and is a lawful structure.
    IL That the plaintiff could not lawfully string its wires and operate its cars across the defendant's tracks without either agreeing with the defendant upon the terms and conditions of crossing, or having the same fixed by commissioners appointed by the court pursuant to § 12 of the railroad law.
    III. That the plaintiff obtained no permanent right of crossing the defendant’s tracks by reason of the temporary permission to cross the same granted by the defendant in the latter part of June, 1892, and that the defendant's act in the reconnecting its gate chain in November, 1892, was proper and legal.
    IY. That the plaintiff had made no case for the interference on its behalf of a court of equity.
    Y. That the complaint should be dismissed with costs.
    
      Alexander S. Bacon, for app’lt; Tracy, Boardman & Platt, for resp’t.
   Pratt, J.

We think the seventh finding of fact is sustained by the evidence. From that it follows that no agreement was reached between the companies as to the crossing.

If-plaintiff cannot make a satisfactory arrangement, it must apply under thé railroad act, which we believe to be applicable.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  