
    EAST RIVER ELECTRIC LIGHT COMPANY, Appellant v. HUGH J. GRANT, as Mayor, etc., et al., Respondents.
    
      Board of electrical control, powers of—Termit to string wires on poles is a mere license reiocable at anytime and subject to the rules and regulations of the Board.
    
    The hoard of electrical control authorized plaintiff to string four wires on existing poles in Sixth avenue, from ISth street to Carmine street, in September, 18S8. At the time this permit was granted the Metropolitan Telephone and Telegraph Company and the Western Union Telegraph Company owned certain poles in Sixth avenue, and under some agreement with those companies the plaintiff placed their four wires on such poles. Subsequently, the latter companies, having no further use for these poles, abandoned them, and the board of electrical control revoked plaintiff’s permit to use the poles for its wires, and directed the defendants, Gilroy, commissioner of public work’s and Cummings, superintendent of the bureau of incumbrances, to remove the poles and the wires. Plaintiff commenced an action and sought and obtained a temporary injunction restraining the defendants from, removing the poles or wires, which was subsequently vacated by the court, and the motion of plaintiff to continue the same denied.
    
      Meld, that the permit granted was a mere license, revocable at any time by the board that granted it, and was subject to its rules and regulations, and the board having power to direct the removal of the wires and poles, and so directing such removal, the plaintiff had no right to insist that they should remain. That the plaintiff did not show a right to equitable and discretionary relief by injunction. That the permit necessarily referred to the poles as then rightfully there, and it was not implied thereby that the permit should continue to operate after the poles ceased to be rightfully in the street, as was the case.
    Before Sedgwick, Ch., Truax and Durgo, JJ.
    
      Decided March 4, 1890.
    Appeal by plaintiff from order denying motion for continuance of temporary injunction, and vacating the same.
    The following opinion was delivered by the court at special term:
    “ Ingraham, J.—By the permit of September 7, 1888, the board of electrical control authorized the plaintiff to string four wires on existing poles in Sixth avenue from 18th street to Carmine street. At the time the permit was granted the Metropolitan Tel. Company and ¡the Western Union Telegraph Company owned certain poles in Sixth avenue, and under some agreement with these companies the plaintiff placed the four wires on such poles.
    “ The power of the Board of Electrical Control to grant such permit, and the effect of such permit, when granted, depend upon the provisions of chap. 499 of the Laws of 1885, and chap. 716 Laws 1887. By the latter act all the powers and duties conferred or imposed by the Act of 1885 upon the commissioners appointed thereunder and all the powers and duties imposed upon the local authorities of the city or any of them in respect to, or affecting the placing, erecting, construction, suspension, maintenance, use, regulation or control of electrical conductors or conduits, or subways for electrical conductors in said city were transferred to, conferred and imposed upon and were thereafter to be exclusively exercised and performed by said Board of Electrical Control. This provision gave to the board all the power in regard to the electrical conductors in the public streets which before that Act had been exercised by any officer or department of the municipal corporation or by the commissioners appointed by the Act of 1885.
    “ There is nothing in the Act in question that would limit the power of the board to revoke a permit, or authorize the court to substitute its discretion as to the continuance of electrical conductors erected by permission of the board, nor does the fact that the board gave to a corporation permission to string its wires upon certain existing poles, amount to a guarantee that the poles shall always exist, or that-the board will keep the poles in the position in which they were at the time the permit was given. It is apparent that such a permit was to continue only so long as the poles should continue in the streets ; and when the poles as erected became unnecessary for the use for which they were originally or primarily intended, it is clear that the corporation could not compel the board or the owner of the poles to maintain them in the position in which they were at the time the permit was given. The permit was a mere license revocable at any time by the board that granted it, and when, in consequence of the removal of the wires of the companies that owned the poles, they became no longer necessary for the use to which they were primarily put, in the absence of an express contract, neither the board nor the city were bound to maintain the poles, nor see to it that . they were not removed.
    
      “ This is just what happened. It is clear that as , between plaintiff and the Telephone company, plaintiff could not compel the Telephone company to maintain these poles for the purpose of maintaining plaintiff’s wires. The Telephone company having no further use for the poles, have abandoned them, and the board has revoked plaintiff’s permit to use the poles for its wires, and I can see no ground upon which plaintiff can claim that either the Telephone company, or the Board of Electrical Control, is bound to keep the poles in position, so that the' plaintiff can use them.
    ‘1 The ordinance of the common council under which the plaintiff is acting, is expressly subject to the power of the electric commissioners. Upon that board, are conferred all the powers before conferred upon the local authorities. The permit under.which the plaintiff acted was subject to the rules and regulations of the board, and I think it is clear that the board, having power to say when the existing poles shall be removed, directed such removal, the plaintiff had no right to insist that the poles shall remain.
    “Motion to continue the injunction denied, and temporary injunction dissolved with $10 costs.”
    
      William H. Kelly and Michael J. Kelly, attorneys and of counsel, for appellant, argued:—
    I. The defendants are not state officers, and therefore are not protected against this injunction by section 605 of the Code of Civil Procedure. This objection was raised in several other cases ; but only in the case of the New York Electric Lines Company v. Crimmins, 3 Ann. Rept. Board Electrical Control, p. 85—and after a very elaborate argument in favor of the objection by Mr. Gibbens, the then counsel of the board, covering every phase of the question, was the point directly decided in the following opinion by Judge Freedman :—“ As to the preliminary objection which has been raised, I am of the opinion that section 605 of the Code of Civil Procedure does not protect the electric-subway commissioners against any injunctions which may be issued by this court in a proper case.” Judge O’Gorman, in the opinion in McGinness v. The Board of Commissioners of Electrical Subways—Ib., p. 94—does not hold the contrary, as appears from the following extract:—“The question whether the members of the Board of Electrical Control, created under the Subway Act of 1887,’ are officers or agents of the city or of the State of New York,” etc., “ are subjects entitled to careful consideration at the proper time, when the issues of fact and law raised in this case come to be finally determined.” Attorney-General O’Brien, in an opinion dated October 11, 1886, in reply to the request of the subway commissioners that he act as their attorney, says : “It is by no means clear to me that it is my duty to act as attorney for your commission. While the cases cited by you would appear upon a casual reading to hold by analogy that the commissioners were state officers, still I think there is a difference between the duties and authority of the officers referred to in those cases, and the electrical subway commissioners, who do not perform the duties of an administrative branch of the • state government, whose duties are local, the office itself existing only for a short time and the benefits resulting therefrom confined strictly to the people of certain prescribed localities.” In this case defendants appear by corporation counsel. It is further submitted that whatever doubt, if any there was, existed on this question under Act of 1885 (Chap. 499) which was a general act applying to all cities in the state, that doubt is entirely removed by the Act of 1887 (Chap. 716) which, as its title shows, is a special local act relating to the city of New York, and provides only for that city; and in it the commission is described and constituted the “ Board of Electrical Control in and for the city of New York.” The method of appointment has no bearing upon this point, and does not change the local character of the office or officer. Ryan v. Civil Service Comm., 17 Abb. N. C. 64 ; Bailey v. Mayor, 3 Hill. 539. This case is even stronger than above, as original commissioners of electrical control were appointed by mayor, comptroller and commissioners of public works. § 605 C. C. P. can be invoked only in cases which are practically suits against the state. Doody v. Fritscher, 24 Week. Dig. 474 ; S. C., G. T. 3d Dept.
    
    II. The plaintiff’s electrical conductors, Sixth avenue south of Fourteenth street, have never become unlawful, and therefore cannot be removed. § 5, Chap. 716, Laws of 1887, prescribes in order to make electrical conductors unlawful and subject to removal, it must be “ the opinion of the board heretofore constituted, that in any street or locality of said city, a sufficient construction of conduits or subways underground, shall have been made ready under the provisions of this act, reference being had to the general direction and vicinity of the electrical conductors then in use overhead.” It is admitted in defendants’ answer at end of subdivisions 3 and 5 of paragraph “ First,” that there was and is no subway or underground conduit in Sixth avenue below Fourteenth street, suitable for electric light wires or conductors. The last linqs of subdivision 3 of paragraph 1 of answer, reads : “But they aver that there were subways and underground conduits for telegraph and telephone wires, but none suitable for electric lighting wires or conpuctors.” And the first lines of the third and last paragraph of the answer: “Further answering the said complaint, the defendants allege that the board of electrical control are now, and have at all times been, ready and willing to entertain an application by the plaintiff for a permit to string wires upon poles of reasonable size, suitable for the business of electric lighting, etc., etc.” ■ Here are two confessions that other facilities are needed, and that suitable facilities do not exist, either underground or overhead, if these electrical conductors be interfered with or cut' down. The answer, affidavit of Smith, complaint, permit, affidavit of Moore, affidavit of Kelly, and the bills,. checks and receipts, show that the wires are lawfully .on those poles. The case of the People v. Met. Telegraph and Tel. Co., 11 Abb. N. C. 304, can have no bearing, as that was a suit on behalf of the people to enjoin the maintenance of a nuisance, and the charge of the learned justice can have no bearing upon this ease, as the plaintiff makes no objection and does not deny defendant’s right to cut the poles in question down to a proper standard, but only denies their right to destroy its property under a false pretense of doing their duty and before they have complied with the statute by having subways prepared and giving proper notice. The poles were on Sixth avenue when the plaintiff’s wires were put on them, and it is not claimed that they were nuisances. The wires were put on them with defendants’ permission, and as long as those poles, or any portion of them, are or is necessary to support these wires, and until they become unnecessary for such purpose, they are not nuisances. No mere whim or opinion of the board of electrical control can make them nuisances, or liable to removal until the law has been complied with. Under the Act of 1879, chap. 512, as amended by the Act of 1882, chap. 73, the plaintiff was entitled to maintain its wires or electrical conductors upon complying with the law. The law was complied with by obtaining, for good and valuable consideration, a franchise from the common council and permission of the board of electrical control, and the rule printed on the back states that the permits are good till subways are provided. This made a full compliance with the law, and until the law which takes away its rights is complied with by defendants, no power short of an amendment to the constitution can divest it of those rights. The property rights of the plaintiff in these electrical conductors is not to be dealt with lightly. This company’s capital of $1,000,000, and its bonds amounting to $300,000 are invested largely in these electrical conductors which the law recognizes and the decisions hold to be property. American Union Telegraph Company v. Middleton, 80 N. Y. 408 ; N. Y. O. & W. R. R. Company v. Telegraph Company, 36 Hun, 205. The franchise to operate these electrical conductors is a thing of value and' is property. It was obtained from the mayor, aldermen and commonalty of the city of New York for a valuable consideration, to 'wit, one arc light to be furnished the city gratis for every fifty lights furnished private consumers. Concerning city franchises, in The People v. O’Brien, 111 N. Y. 41, Chief Justice Roger says : “It is, however, earnestly contended for the state that such a franchise is a mere license of privilege enjoyable duing the life of the grantee only, and revokable at the will of the state. We believe this proposition to be not only repugnant to justice and reason but contrary to the uniform course of authority in this country. The laws of this state have made such interests taxable, inheritable, alienable, subject to levy and sale under execution to condemnation under the exercise of the right of eminent domain, and invested with all the attributes of property generally.” •“ The contention that securities, representing a large portion of the world’s wealth are beyond the protection of the constitution, and are subject to the arbitrary will of successive legislatures to sanction or destroy at their pleasure or discretion, is a proposition repugnant to reason and justice as wéll as to the traditions of the Anglo - " Saxon race.” If the people represented in the legislature cannot destroy this property, a fortiori, a mere creature of the legislature created for local purposes cannot.
    III. The board of electrical control had no authority to revoke plaintiff’s permit without reason or reasonable notice. U. S. Ill. Co. v. Grant, 3 Ann. Rep., Com. El. Cont., pp. 135, 136, 142 and 144. (Opinion of Andrews, J.) The order in above case was reversed but upon the sole ground that the dangerous uninsulated wires were ipso facto a nuisance and therefore an incumbrance and the commissioner of public works in cutting the wires acted without regard to the board of electrical control. In all other particulars, the opinion of Judge Andrews was coincided with. Ib. pp. 151, 157, 160, 161, 162, (end), 163, 164, 165. The license of the board “ having been acted upon and something done by the license in consideration thereof, it has become invested with the qualities of a contract.” U. S. Ill. Co. v. Grant, etc., supra, p. 160, 161, (Opinion of Barrett, J.) ; Peo. v. O’Brien, supra.
    
    IV. The plaintiff has a right in and to part of the poles which support the electrical conductors. Not only do we contend that the bureau of incumbrance can not cut down the poles, if .by so doing the electrical conductors of the plaintiff are cut down ; but we offer incontestable evidence of plaintiff’s right to these poles. The defendants by giving permission to plaintiff to put its wires or electrical conductors on those poles, sanctioned their existence ; and as the greater always includes the less, and a grant or permission always includes that without which the grant or permission would be useless, so the right to string wires includes the necessary support for such wires, and as the cutting down of such poles cannot be unaccompanied by the destruction of the electrical conductors or wires any more than the taking away of a building foundation can be unac-' companied by its total collapse, so the poles cannot be cut down. Qui concedit aliquid, conceders videtur et id, sine quo concessio est irrita, sine quo res ipsa esse non protest. This is the law laid down by Lord Coke and followed by all courts from his time to the present.
    V. No possible injury could come to defendants by a retention of the injunction pendente lite, while its denial would work irreparable injury, not only to plaintiff, but to the public. In such a case the injunction should be granted, and that even where the equities may be fully' denied. Bank of Monroe v. Schermerhorn, Clark's Ch., 305 (end) ; Hammond v. Hammond, Ib. 151; Anderson v. Roberts, 2 John. Ch. 205 ; New v. Bane, 10 Paine, 502 ; Mead v. Richards, 4 Edw. Ch. 657 ; Carpenter v. Danford, 18 Abb. 227 ; N. Y. Jockey Club case, N. Y. Law Journal, Aug. 22, 1889.
    
      William H. Clark, counsel to the corporation, and David J. Dean of counsel, for respondents, argued :—
    I. The defendants are state officers, and this court has no jurisdiction to grant or to continue the injunction. § 605 of the Code of Civil Procedure requires that an application for an injunction restraining a state officer or board of state officers or person employed by him or them, from the performance of a duty imposed by statute must be made to the supreme court at a general term thereof. First— So far as the board of electrical control is concerned, there can be no question but that it is protected by the restrictions of the section. Without' reviewing the legislation touching the board of commissioners of electrical subways, it is sufficient to say that by chapter 716 of the Laws of 1887, the then members of said board were, with the mayor of the city, constituted a board of electrical control in and for the city of New York. The members of said board, therefore, held their office, not by virtue of appointment by any city officer or municipal ordinance, but under an act of the legislature of the state. The commissioners can be removed only by the governor of the state, who has power to fill all vacancies (see § 6, chapter 499, Laws of 1885, and § 1, chapter 716, Laws of 1887. They receive payment from the state comptroller (see § 7, chapter 503 of the Laws of 1886, and § 1, chapter 716, Laws 1887). The following authorities support the proposition: Maximilian v. Mayor, 62 N. Y. 160. In which case it was held that the commissioners of public charities and corrections of the city of New York, although appointed by the comptroller of the city, were officers of the state government and not of the city. Tone v. Mayor, 70 N. Y. 157. The case last cited followed the Maximilian case, and held that the comptroller, counsel to the corporation and recorder, who constituted the'board of revision and correction in the city of New York, were state officers. Heiser v. Mayor, 104 N. Y. 68. Which case holds that a board of assessors engaged in the improvement of Eighth avenue, in. the city of New York, was a board of state officers and not of city officers. In the case of McGinness against the present defendant, the board of electrical control, at a special term of this court, Judge O’Gorman declined to pass directly upon the question under consideration, as it was unnecessary in the determination of the matter then before the court, viz., the alleged unconstitutionality of the Act of 1887 ; but his opinion upon the point is clearly shown in these words : “It seems,to me that the intention of the Subway Act of 1887 was to create a board of commissioners representing the state and its authority for the purpose of regulating the use of the public streets of the city by apparatus necessary for the most convenient and advantageous conducting and diffusing of electrical power and light. That the right to do so exists in the state, through its legislature, seems to be beyond question.” Superior Court, MSS., September 24, 1887. Second—The defendants other than the members of the board of Electrical Control, in the performance of the work complained of, were also state officers or agents, and thus also within the provisions of § 605 of the Code. § 3 of chap. 716 of the Laws of 1887, creating the board of Electrical Control, declares, “This provision is made a police regulation in and for the city of New York, and in case the several owners of such wires, and the owners of such poles, fixtures or devices shall not cause them to be removed from such street or locality as required by such notice, it shall be the duty of the commissioner of public works of said city to cause the same to be removed forthwith by the bureau of incumbrances upon a written order of the mayor of said city to that effect.” This application is to restrain the officers above-named from the performance of the duty imposed by the statute quoted. In the performance of that duty they were obeying the command of the legislature, and were, pro hac vice, officers of the state and not of the city. The following authorities fully support this proposition : In Russell v. Mayor, 2 Den. 461. The facts are very similar to those of the present case. By an act of the legislature the mayor or recorder, with the consent of any two aldermen, were authorized to order any building which should be on fire, or which they might deem hazardous or likely to take fire, or to convey the fire to other buildings, to be pulled down or destroyed. Acting under the authority so conferred the officers named directed the destruction of a building containing a stock of goods owned by the plaintiff, to recover damages for which an action was brought against the city. It was held that the power conferred was a police regulation, and that the mayor and the other officers named were acting, not as officers of the city, but as officers of the state in the performance of an act. authorized by statute. Senator Porter fully considers the question and the authorities and reaches the following conclusion : “ I have therefore come to the conclusion, that the act of the mayor and two aldermen, in blowing up the store in question, was not the act of the defendants, nor one for which they are responsible, but that it was done by officers created by the law of the state, who are not amenable to the common council for their acts in the premises.” The court spoke with approval of the opinion of Mr. Justice Oaklet when the case was at the special term of this court, which opinion is also followed by the general term of this court, and upon this point was as follows : (See case above cited page 465.) “ The law, under which the mayor and two aldermen acted, does not make them the agents of the corporation; for it is clear that it invests them with power to act in the premises according to their own discretion, and against even the express prohibition of the defendants. * * * In truth, I consider the act as intended to create an agency, independent of the corporation, for the purpose of preventing the extension of fires. The corporation, as such, is not connected with it any more than it would have been if the law had designated three members of the chamber of commerce to perform the duties assigned to the mayor and the two aldermen. The corporation is not responsible for their acts any further than the law has made them so.” The general term, after quoting as above, states, “ this covers the whole ground.” To the same effect are the following, most of which have been, already cited : Maximilian v. Mayor (supra) ; Tone v. Mayor (supra) ; Hiser v. Mayor (supra) ; Lloyd v. Mayor, 5 N. Y. 374. It will be noted that in all the cases cited the controlling feature is that the grant of power is made not to the municipality so that the act is a corporate act, but to certain designated officers who thereby, for the purpose named, become agents of the state. The case of People ex rel. Ryan v. Civil Service, etc., of New York, 17 Abb. N. C. 64, is to be distinguished from the present case. In that case it was held that the aqueduct commissioners appointed by chapter 490 of the Laws of 1883, were city and not state officers. The question at issue was whether the employees of the board should be examined by the Civil Service board of the city or of the state. The opinion was given at special term by Mr. Justice Lawrence, and was largely based upon the terms of the act appointing the aqueduct commissioners, which he fully reviews, and holds that it was the intent of the legislature to make the work of building the aqueduct a corporate work of the city of New York, and the commissioners agents of the city. An examination of the exhaustive analysis of that act, as made by Mr. Justice Lawrence, will show that the provisions therein which led to his conclusion are not found in the act under which these defendants are doing the work complained of. The decision in the case cited was largely controlled by the judgment of the Court of Appeals in the case of Bailey v. The Mayor, 2 Den. 433, in which it was held that the commissioners of the old Croton aqueduct were city officers. That case, as reported in 2 Den., is immediately followed by the case of Russell v. The Mayor, (supra), decided by the same court at the same time, and Senator Porter, who delivered the opinion in the latter case, above quoted from, in the former case voted in favor of the proposition that the aqueduct commissioners were city-officers. It must be admitted that the facts of the present case are more nearly analogous to those of Russell v. The Mayor than to those of Bailey v. The Mayor or of the Ryan Case.
    II. The plaintiff shows no rights in respect of the poles in question. The argument of the learned counsel for the plaintiff is based upon the assumption that the plaintiff has a lease from, or contract with, the owners of the poles, giving to the plaintiff a right to the use thereof. An examination of the complaint and affidavit upon which this application is made discloses no such fact. The only allegation which even remotely touches the question is found in paragraph VII. of the complaint, in which the plaintiff says that the defendants have commenced to cut down the plaintiff’s wires, and the poles upon which the same are placed, “ notwithstanding the fact that said wires are lawfully upon said poles.” This allegation is but the statement of a conclusion, and is not sufficient to put in issue the right of the plaintiff to the use of the poles, especially in view of the fact that the plaintiff, while repeatedly alleging ownership of the wires, is careful not to allege ownership of the poles, or any facts showing a right to the use of the poles, except the conclusion above quoted that the wires are lawfully upon the poles. The defendants present the affidavit of William H. Eckert, one of the officers of the Metropolitan Telegraph and Telephone Company, which company is the lessee of a portion of the poles, showing that the plaintiff applied to him for permission to use said poles, which was refused, and that his company has no further use for said poles. Also the affidavit of W. C. Humstone, one of the superintendents of the Western Union Telegraph Company, the owner of the rest of the said poles, that the plaintiff has never received permission to string its wires upon said poles but has “ stolen the space which it occupies,” and that his company has no further use for the poles owned by it. It appears, therefore, that the poles in question have been abandoned by the owners and all entitled to the use thereof, and are unsightly incumbrances upon the avenue ; and it is therefore the manifest duty of the city officials to cause the removal of the same. ■ The poles, when they became unnecessary for the purposes for which they were erected, were nuisances and liable to be removed as such. People v. Metropolitan Telephone Company, 11 Abb. N. C. 304. In the case cited it was held by-Mr. Justice Lawrence, that poles which were of unnecessary height and size were a nuisance, even though poles of proper dimensions might be lawful. It must necessarily follow that when the poles were abandoned by those who were authorized to construct and use them, they became nuisances. If the plaintiff has seen fit to string its wires upon structures which are nuisances, such use cannot restore the lawful character of the structures, or if it has seen fit to string its wires without right or privilege, upon structures which but for such act would have become nuisances, such unauthorized use cannot make lawful the character of the structure.
   By the Court.—Sedgwick Ch. J.

The action was for an injunction restraining the defendants from proceeding to remove the wires of the plaintiff from certain poles in the 6th avenue from 18th street to Carmine street.

I am of opinion that the views expressed by the learned judge below in dissolving the temporary injunction were correct. Some considerations, not pertinent to the view he took, may be adduced in support of this result.

The complaint was demurrable. It placed the plaintiff’s right to use the poles upon his possessing a franchise under the terms of an ordinance as follows: “ that permission and authority are hereby given and granted unto the East River Electric Light Company to place, construct and to use wires, conduits and conductors for electrical purposes in the city of New York, and over and under the streets, avenues, etc., according to such plans as may be directed, approved or allowed by and subject to the powers of the Electrical Subway Commissioners and to the provisions of chapter 499 of the Laws of 1885.” There was, however,no allegation of fact to show that the plaintiff “ strung its electric wires” according to the plan and the provisions referred to in the ordinance. There was no averment that it had received a permit from the board of electrical control to use the poles for the wires. It alleged a matter of law only, that it strung its wires “ pursuant to the authority conferred upon it by law.”

The plaintiff did not show a right to the equitable and discretionary relief of injunction. The object of the relief as asked was to restrain the commission of a trespass. The facts, however, stated in the complaint and in the affidavit, did not prove that the. plaintiff could not obtain full and adequate relief by the recovery of damages.

It was admitted on the argument that the board of electrical control could, upon reasonable notice, for reasonable cause, require the plaintiff to remove its wires from the poles. It appeared that there was reasonable cause on which the board could act, for instance, the poles themselves were encumbrances which might be lawfully removed, and the poles were of a size that was not necessary to the business of the plaintiff. Therefore the right of plaintiff, construing all things most favorable to it, whs to maintain the wires until such reasonable notice. The plaintiff did not show what the time of reasonable notice would be ; and of course did not show the extent of the damages the plaintiff would suffer from not being permitted to retain its wires upon the poles during the lapse of that time.

The plaintiff in part relies upon a permit of the board that authorized the plaintiffs “ to string four wires on existing poles on 6th avenue from 18th street to Carmine Street.” The permit necessarily-referred to the poles as then rightfully there. It was not implied that the permit should operate after the poles ceased to be rightfully in the streets.

The order should be affirmed with $10 costs to abide the event and the disbursements to be taxed.

Truax and Dugro, JJ., concurred.  