
    The South Shore Traction Company, Plaintiff, v. The Town of Brookhaven et al., Defendants (2 cases). The South Shore Traction Company, Plaintiff, v. The Village of Patchogue et al., Defendants (2 cases).
    (Supreme Court, Nassau Special Term,
    March, 1907.)
    Street railways — Street railway companies, their franchises and right to use of streets — Franchise and right to use streets — Conditions imposed by municipality — Performance of condition — Effect of non-performance.
    Pleading — Supplemental pleadings — Supplemental complaint — New cause of action where none previously existed.
    Injunction — Preliminary injunction — Grounds and matters considered. Grounds for refusing — Failure of complaint to state cause of action — Non-performance of conditions by plaintiff.
    A street railway company, to which a franchise from a municipality to lay its road in certain public streets was granted upon condition that the company should file a bond, to be approved by certain municipal officers, indemnifying the municipality against claims for damages during the construction of the road and should also complete its road within a certain time, having failed to complete its road within the given period or to file the required bond, and having, after the expiration of such period and without filing such bond, brought an action to restrain the municipality from granting a franchise to another company to lay a railway in the same streets, and having procured a temporary injunction in such action conditioned upon its giving a bond, as required by its franchise, and having thereafter filed a bond with the required conditions, may not, after the order for the temporary injunction has been reversed on appeal for the failure of the plaintiff to comply with the conditions of its franchise before the order was granted, be permitted to file a supplemental complaint showing its subsequent compliance with such conditions
    A plaintiff may not, by supplemental complaint, establish a cause of action where none existed at the time the suit was brought.
    Nor can a new injunction be granted after the filing of the bond since the supplemental complaint cannot be filed and the original complaint fails to show a cause of action.
    Nor will an injunction be granted in another similar case where the complaint shows the filing of a bond but fails to show that the bond was approved as required by the condition of its franchise.
    Moreover, the condition of the franchise must be construed to require.the filing of the prescribed bond within a reasonable time; and the filing of a bond after more than three years had elapsed and the period within which the road was to be completed had expired was too late to satisfy the condition.
    And the failure of the plaintiff to construct its road within the required time, though it may not work a forfeiture of its franchise, furnishes a sufficient reason for denying it equitable relief.
    Motions are made by the plaintiff in the above four actions to continue temporary injunctions, and in two of them plaintiff also moves for leave to serve supplemental complaints. The actions are brought to enjoin the local authorities of the town of Brookhaven and the village of Patchogue respectively from granting to defendant railway companies, and said defendant companies from accepting, consents or franchises to construct and operate a railway over certain streets, on the ground that the right to construct a railway on said streets had previously been granted to the plaintiff by the municipal authorities. In two of the actions the Suffolk Traction Company is impleaded with said town and village respectively as a party defendant, and in two of 'them the Cross Island Traction Company is impleaded as a party defendant. The further facts are fully stated in the opinion.
    Arthur Carter Hume, for plaintiff.
    
      Joseph T. Losee, for the village of Patchogue. ■
    Lexow, Mackellar & Wells, (Clarence Lexow, of counsel), for Cross Island Traction Company.
    Collin, Wells & Hughes (Arthur A. Collin, of counsel), for Suffolk Traction Company.
    T. M. Grilling, for town of Brookhaven.
   Scuddee, J.

On April 1, 1903, the South Shore Traction Company, the plaintiff, obtained consents or franchises from the village of Patchogue and the town of Brookhaven respectively to build a street railway on certain highways. These consents were substantially the same in terms. The consent of the highway commissioners of the town of Brookhaven contained the following provisions:

2. This franchise and consent not to be operative until the Traction Company shall give or cause to be given a bond of sufficient sureties to be approved by said highway commissioners in the penal sum of seven thousand five hundred dollars ($7,500) to indemnify and save harmless the said town of Brookhaven, and the highway commissioners thereof, from any, and all, damages, costs, actions, claims and demands arising from the construction, maintenance and operation of said railroad up to a period of thirty days after completion of said railway, and for the faithful execution and performance of the terms and conditions upon which this franchise is granted and the provisions of law applicable thereto, and upon the faithful performance of all the provisions and conditions herein contained, then this obligation to be void, otherwise to remain in full force and effect.

3. Such railroad shall be completed and in operation, -x- * x- within two years from the date of the granting of this franchise. Otherwise all rights and privileges under' this franchise and consent shall cease and determine.”

The wording of these provisions in the consent of the village of Patchogue is precisely the same except that in section 2 the words “ trustees ” and “ the village of Patchogue ” are inserted in place of the words highway commissioners ” and “ the town of Brookhaven.”

Under these provisions of the franchise the time within which plaintiff was required to build its road expired April 1, 1905. The time provided in the town franchise was, however, subsequently extended by a resolution of the highway commissioners to October 25, 1906.

In July, 1906, the plaintiff commenced its actions against the -village of Patchogue and the town of Brookhaven respectively in which actions the Suffolk Traction Company was impleaded as a defendant.

On August 30, 1906, the plaintiff obtained an order continuing, during the pendency of each action, an injunction restraining the respective municipal authorities from granting their consent to the construction, maintenance and operation of a street railway by the defendant, the Suffolk Traction Company. Each of these orders contained a condition that, if the plaintiff should fail within twenty days from the entry of the order to file with the clerk of the village in the one case and with the clerk of the town in the other a bond in the penal sum of $7,500 such as was required by the terms of the franchise to plaintiff, the order should he void; but, if the plaintiff should tender to the board of trustees of the village and to the board of highway commissioners, respectively, such a bond, and the respective boards should refuse to approve the same, the injunction order should not be deemed vacated unless an order to that effect should be thereafter entered. An appeal having been taken from each of these orders, both orders were reversed by the Appellate Division. In the opinion of the appellate court rendered upon said reversal (South Shore Traction Company v. Town of Brookhaven, not yet reported) it is stated that the court reached the conclusion that the consent to the plaintiff never became operative because of the failure of the plaintiff to give the bond as provided in that portion of the consent quoted supra (section 2 of the consent).”

On September 19, 1906, the plaintiff filed bonds in the sum of $7,500 with the respective municipalities in compliance, inferentially at least, with the injunction orders above referred to which were afterward reversed on appeal. On the motions now under consideration the plaintiff claims that such filing of the bonds was a compliance with section 2 of the franchise and seeks to set up the fact of such filing by supplemental complaint in the two actions in which the Suffolk County Traction Company is a defendant. The question whether leave should be granted plaintiff to serve such supplemental complaints will first be considered.

On the appeal from the injunction order previously granted in these actions, it was held that, at the time of their commencement, the consents to the plaintiff had not become operative because of the failure of the plaintiff to give the required bond, and that, therefore, at that time, the village trustees and the highway commissioners respectively had a perfect right to grant a consent to another corporation with which the court could not interfere by injunction. South Shore Traction Company v. Town of Brookhaven, supra. The plaintiff, in order to supply the deficiency in the facts upon which its right of action for an injunction depended, has attempted to file the required bond after the commencement of the actions, and now asks leave of the court to be allowed to plead such subsequent filing of the bond for the purpose of showing that, at the time of the commencement of the action, it had a cause of action. A plaintiff has no right by supplemental complaint to establish a cause of action when none existed at the time when suit was brought. Farmers’ Loan & Trust Co. v. United Lines Telegraph Co., 47 Hun, 315; Holly v. Graf, 29 id. 443; Banigan v. Nyack Village, 25 App. Div. 150; Smith v. Bach, 82 id. 608. It follows that leave to plead the subsequent filing of the bond by supplemental complaint cannot be granted.

The continuation of the injunctions in these actions must also be refused. The right to the injunctions depends on the nature of the actions and must be granted, if at all, under section 603 of the Code of Civil Procedure. The injunctions which were granted on the facts presented by the original complaints have been reversed. A second application for an injunction on the original complaint is not allowable. There is no supplemental complaint before the court and leave to serve the proposed supplemental complaint, as we have already seen, cannot be granted. There is consequently no complaint before the court upon which the injunctions sought can be granted. A motion for a temporary injunction can be based only apon a complaint and cannot be granted upon affidavits. Huntington v. Cortland Home Telephone Co., 62 App. Div. 517; Woodburn v. Hyatt, 34 id. 246; Sanders v. Ader, 26 id. 176; Hudson Valley R. Co. v. O’Connor, 95 id. 6.

The two actions in which- the Cross Island Traction Company is impleaded as a defendant were commenced subsequently to the filing of the bond above referred to. In reference to the filing of these bonds, the complaints in these actions allege “ that on September 19, 1906, the plaintiff filed with the board of trustees of the village of Patchogue the bond as required by section 2 of the franchise and consent, dated April 1, 1903, of the board of trustees of the village of Patchogue” and “that on the 19th day of September, 1906, the plaintiff filed with the board of highway commissioners of the town of Brookhaven, the bond as required by section 2 of the franchise and consent, dated April 1, 1903, of the board of highway commisEioners of the town of Brookhaven.” Copies of the bonds are attached to the complaint as exhibits, also copies of the consents of the village and of the highway commissioners.

Unless it appears from the allegations of the complaints that the bonds were given as required by section 2 of the respective consents, the plaintiff is not entitled to a continuation of the injunctions in these actions.- The consents require the plaintiff to give a bond “ to be approved by said trustees ” in the one case, and “ to be approved by said highway commissioners ” in the other. The complaints do not allege that the bonds filed by plaintiff were approved as required by the consents. It also appears from the complaints that the bonds were not filed until September 19, 1906. Ho specific time for giving the bonds being mentioned in section 2 of the consents, it is to be presumed that the parties to the contract contemplated that they should be filed within a reasonable time after the date of the consents, April 1, 1903. In any event, the consents must, by necessary implication, be construed as requiring the bonds to be given before the expiration of the two years within which by the terms of the consents the road was to be built, since the bonds were to be security for the performance by plaintiff of all' the terms and conditions of the consents, the principal one of which was the completion and operation of the road within two years. Since it does not appear from the complaints in these actions that plaintiff has given a bond as required by section 2 of the consents, the injunctions therein cannot be continued. See authorities last above cited.

The injunctions sought should be refused moreover upon the merits as well as upon the principles governing injunctions pendente lite. The consents of the local authorities are in the nature of franchises or contracts. These consents do not expressly provide that the defendant municipalities shall not grant the right of operating a street railway upon the designated highways to any other corporation than the plaintiff, but plaintiff contends that they must be deemed to contain such negative provision by necessary implication. It is not necessary to determine the correctness of this contention in order to determine plaintiff’s right to injunctive relief. The plaintiff is asking the aid of a court of equity to compel the defendant municipalities by means of an injunction to specifically perform the assumed negative provision in the consents. To entitle the plaintiff to a specific performance, or to an injunction which will have the same effect, equity requires that it shall show fulfillment of the agreements on its part. Plaintiff does not. show that it has constructed its road within the time prescribed by section 3 of the respective consents, but on the contrary it appears that the plaintiff has not yet constructed any portion of its road. Whether or not the failure of plaintiff to construct its road within the time prescribed by the consents, as a matter of law, effects a forfeiture of its franchise, the nonperformance by plaintiff of the agreement on its part furnishes a sufficient reason for denying it equitable, relief.

Motion denied, with costs.  