
    In the Matter of the Petition of the New York Cable Railway Company.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 18, 1887)
    Street railroad—jurisdiction of court—Consent of property owners.
    Where under the street railroad act the court acquires jurisdiction, for certain purposes, only because of the refusal of the owners of one-half in' value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate the railway to consent thereto: Held, that there must be placed before the property owner, before he can legally be asked to consent, those necessary materials which the statute has prescribed as being necessary for him to form an intelligent judgment as to the merits of the proposed scheme That where no legal application for such consent has ever been made there could have been no refusal, and the court would be without jurisdiction
    
      Motion for relieving and order to show cause why report of the commissioners previously appointed by this court in this matter should not be remanded to them for further hearing.
    
      Everett P. Wheeler, Joseph U. Choate and Robert Sewell, for motion; Aaron J. Vanderpoel, Waldo Hutchins, William C. Trull and others, opposed.
   Van Brunt, P. J.

It is not necessary to discuss the various points which were presented in opposition to the granting of these motions upon the argument thereof, but simply to consider one which seems to show that this court has no jurisdiction whatever to entertain the present applications.

It appears from the act under which this proceeding is taken that the jurisdiction of this court depends entirely upon the refusal of the owners of one half in value of the property bounded on that portion of the street or highway upon which it is proposed to construct or operate the railway or railways, to consent thereto.

It further appears from the decision of the court of appeals upon the appeal to that court from the judgment of this general term, which judgment we are asked to re-open that the rapid transit commissions must exercise the power of deciding upon the plans of construction and that such decision had not up to that time been made and consequently had not been made at the time the consents were applied for, the refusal to grant which was supposed to have conferred jurisdiction upon this court. It was further held that such decision and determination as to plans of construction was necessary in order that those who consent to the construction of the road, whether they be the local authorities, the property owners or the supreme court commissioners, may know to what kind of a road they are consenting, to what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable.

It may be added that the rapid transit commissioners must exercise the power of deciding upon the plan of construction in order that those property owners to whom application is made for this consent may act intelligently, that they may know to what kind of a road they are are asked to consent, to what degree the streets will be obstructed thereby, of what efficiency the proposed mode of construction is capable, and to what particular objections the method of construction proposed is subject, from which some other method of construction might be free.

In the case at bar the court of appeals has decided that the plans for the construction of the road claimed to have been adapted by the rapid transit commissioners were fatally defective and were no plans at all and did not comply in many material respects with the requirements of law.

That such pretended plans attempted to give to the board of directors of the corporation the right to determine questions the exclusive exercise of which belonged to the rapid transit commissioners. That- they utterly failed to convey that information to the property owners upon the route to which they were entitled before they, could be asked to give their consent.

It may be that it was because of this very 'want of knowledge as to the plans proposed to be used in the construction of these roads the want of any determination as to whether the roads should be surface or elevated that the property owners along the proposed routes have refused their assent. The court of appeals says that the necessary materials were not before the property owners when they were applied to for their assent in this matter to enable them to form an intelligent judgment whether the scheme proposed should or should not be assented to.

As this court acquires jurisdiction only because of the refusal of property owners to consent, there must be placed before the property owner, before he can legally be asked to consent, those necessary materials which the statute has prescribed as being necessafy for him to form an intelligent judgment as to the merits of the proposed scheme, and as under the decision of the court of appeals such matrials did not exist at the time the property owners were applied to for their consent in this matter, no legal application for such consent has ever been made, there has been no refusal and this court is entirely without jurisdiction.

The motion must, therefore, be denied with costs.

Brady and Daniels, JJ., concur.  