
    STATEN ISLAND MIDLAND R. CO. v. STATEN ISLAND ELECTRIC R. CO.
    (Supreme Court, Appellate Division, Second Department.
    November 22, 1898.)
    1. Street Bailroads—Bight op Common Trackage.
    County supervisors giving plaintiff street-railroad company a right to operate a part of its road in a street occupied by defendant company thereby confer on plaintiff a right to use defendant’s tracks, where defendant’s franchise required it to give such a right to any other company on certain conditions, which plaintiff had complied with.
    3. Same—Franchises—Conditions.
    A street surface railway company accepting a franchise which stipulates that it must permit another company connecting with its lines to use its tracks is bound by such stipulation, in view of Laws 1890, c. 565, § 102, as amended by Laws 1894, c. 093, providing that a company may acquire the right to use the tracks of another.
    Appeal from special term, Eichmond county.
    Action by the Staten Island Midland Bailroad Company against the Staten Island Electric Bailroad Company to enforce a right of common trackage. Prom an order granting a preliminary injunction, . defendant appeals.
    Affirmed.
    Argued before GOODEICH, P. J., and CULLEN, BABTLETT, HATCH, and WOODWABD, JJ.
    William N. Dykman (Julien T. Davies, on the brief), for appellant.
    John S. Davenport, for respondent.
   WILLARD BARTLETT, J.

This is an appeal from an order restraining the defendant, during the pendency of the action, from interfering with the plaintiff’s exercise of the right of common trackage which it claims over a portion of the defendant’s line on South street, in the village of New Brighton. It appears that the franchise of the defendant to construct and operate a railroad in South street was granted by the trustees of the village upon the express condition that any other street surface railroad company operating tracks at least two miles in extent outside the district to which the franchise of the defendant was limited, and connecting with the tracks of the defendant’s railroad situated within said district, should have the right to use the defendant’s tracks, and enjoy equal facilities therein in all respects. The board of supervisors of Eichmond county gave to the defendant a like consent to occupy South street with its railroad, subject to a similar condition. Each consent contained a provision to the effect that the terms and conditions of such use, and the compensation therefor, should be fixed in the manner prescribed in section 102 of the railroad law, or by arbitration, but declared that the right to use such tracks should arise as soon as the company seeking to exercise it should have constructed and have ready for operation two miles of track outside of the defendant’s district, and should have instituted proceedings under the railroad law to fix the compensation, and should have given security, to be approved by the county judge of Richmond county, for the payment of the compensation aforesaid. The plaintiff corporation claims a right of common trackage over the defendant’s line in South street. It is a street surface railroad company, operating 28 miles of track outside the district in which the defendant’s line is situated. It has begun proceedings under section 102 of the railroad law to have commissioners appointed to determine what it ought to pay to the defendant for the use of the tracks in question on South street; and it has secured the payment of whatever compensation may be awarded, by giving a bond in the sum of $5,000, which has been approved by the county judge of Richmond county. The plaintiff has thus brought itself within the terms of the consents given to the defendant by the village trustees and the board of supervisors. Nevertheless, the defendant denies the right of the plaintiff to go over its tracks in South street, insisting (1) that the plaintiff corporation has not obtained the requisite consent from the municipal authorities; and (2) that the conditions attached to the consents procured by the defendant are not available to the plaintiff, because those conditions are void.

As the plaintiff has consents from the village of New Brighton and from the abutting property owners, the first objection seems to be based wholly on the absence of an express consent from the former board of supervisors of Richmond county to the plaintiff. Assuming that the control which the board of supervisors exercised over county roads made its consent necessary to the operation of a railroad upon a county road within a village, I think that the action of the board in adopting the resolution granting the franchise to the defendant upon the conditions which have been stated, providing for common track-age in favor of a connecting company situated like the plaintiff, and the subséquent action of the board in granting to the plaintiff authority to construct its railroad to the very head of South street, where were the tracks of the defendant, must be regarded as constituting a consent that the plaintiff should operate its line over South street to the ferry.

As to the second point, which attacks the validity of the conditions in the grant to the defendant designed to prevent that grant from being exclusive, it is to be noted that the defendant not only accepted the franchise thus conditioned, but entered into an elaborate contract under seal with the village of New Brighton, expressly declaring that the consent should not be deemed to confer an exclusive franchise, and binding itself to observe the conditions aforesaid. Section 102 of the railroad law provides that no street surface railroad corporation shall operate its road in that portion of a street in which a street surface railroad is or shall be lawfully constructed, without first obtaining the consent of the corporation owning and maintaining the same, except that any street surface railroad company may under certain circumstances acquire the right to use the tracks of another street surface railroad company for a distance not exceeding 1,000 feet. Laws 1890, c. 565, § 102, as amended by Laws 1894, c. 693. The language of this section leaves no doubt that the defendant, after having constructed its own line in South street, could, by granting its consent thereto, authorize the operation of the plaintiff’s railroad in South street over the same tracks. If it could give its consent afterwards, it could give its consent in advance of the construction of its own fine, and that was exactly what it did in the present case. I am of the opinion that, by entering into the contract and stipulations which the defendant made with the municipal authorities, it gave its consent to the operation, in the streets embraced in its franchise, of the line of any other corporation coming within the terms of the contract; and the plaintiff is such a corporation. If this view is correct, it is difficult to perceive any sufficient reason for pronouncing the conditions void which are contained in the consents and contract. I can find no doctrine which would invalidate them laid down in either of the leading cases upon which the learned counsel for the defendant rely,-In re Kings Co. Elevated R. Co., 105 N. Y. 97, 13 N. E. 18; Beekman v. Railroad Co., 153 N. Y. 144, 47 N. E. 277. The conditions there under consideration were in conflict with the purposes of the respective statutes regulating the proceedings. The stipulations in question here, when made, were simply promises to do in the future what the railroad law empowered the defendant to do, whether it had made any promise on the subject or not; that is, allow another railroad company to operate its line in the same street and on the same tracks.

In the litigations relating to the occupation of South street, it does not appear that the plaintiff has made any election" of remedies, which is fatal to the maintenance of this action. As to the other questions arising on the motion, it is enough to say that they are sufficiently discussed, and satisfactorily disposed of, in the opinion of the learned judge at special term.

The injunction was properly granted, and should be allowed to stand until the determination of the suit.

Order affirmed, with $10 costs and disbursements. All concur.  