
    The Port Jervis, Monticello & New York R. R. Co., App’lt, v. The New York, Lake Erie & Western R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed May 12, 1890.)
    
    Bailboads — Use of terminal facilities.
    By an arrangement between the predecessors of the parties a connection was to be made at Port Jervis, the Erie company to furnish terminal facilities free of charge and to furnish rolling stock for a certain compensation per mile. There was no written agreemen , and it did not appear that any time was fixed for the duration of i he contract. After a time certain charges were made for the terminal facilities, but they were not enforced Plaintiff being about to make connection with a competing road, defendant refused to furnish facilities and broke the connection with plaintiff. Held, that the agreement as to terminal iacilities was so uncertain that a court of equity could not with adequate precision determine its terms and conditions, and hence the same could not be enforced.
    Appeal from judgment dismissing the complaint on the merits.
    Action to secure to plaintiff a permanent right to use defendant’s property at Port Jervis for terminal facilities without compensation and to recover moneys paid for such use.
    Plaintiff’s road was constructed in 1870 by the Monticello & Port Jervis Eailroad Company. Its track connected with the Erie railway at Port Jervis and an arrangement was made with the Erie company to operate it with the Erie rolling stock at ninety cents a mile, and this arrangement continued until 1875, when the Monticello road was sold on foreclosure and the company reorganized under the name of the Port Jervis & Monticello Eailroad Company.
    The trains on the Monticello Eoad used the Erie tracks from the junction to the turn table and the engines were there turned. The Port Jervis & Monticello Company operated its road, furnishing its rolling stock,, and made an arrangement with the receiver of the Erie Company, by which certain charges were made for the use of the turn table and cars, but until further notice no charge was to be made for the use of the terminal facilities otherwise than as specified.' When the present defendant took possession a charge of fifty dollars per month for terminal facilities was made, but its payment was not enforced for the reason, as claimed, that the Monticello Company was unable to pay. The Monti■cello Company used the yard and tracks for the passage and storage of trains, the turn table for turning its engines, the passenger station for its passengers, the sale of its tickets and the checking .and handling of baggage,.and the freight station for receiving, handling and delivery of its freight.
    Plaintiff entered into an agreement with the defendant for the use of the terminal facilities theretofore enjoyed by the Monticello Company for $100 per month, such payment to cover services of agents. It paid that charge from November, 1886, to March 1, 1888. In the latter part of 1887 the plaintiff made .arrangements for building an extension of its road to the Ontario A Western, and when the ■ defendant was advised that it was the purpose of the plaintiff to bring a competing road upon its tracks and into its station at Port Jervis, it insisted that the terminal facilities at that place should be paid for at their value which it. fixed at $300 per month, commencing March 1, 1888. The plaintiff paid that charge for March, 1888, and then ceased paying anything. No further payments being made plaintiff was notified. that the privilege of using defendant’s property was withdrawn.
    On the trial of this action, plaintiff claimed that it had a vested,, permanent and inalienable right to use defendant’s property without compensation, and based such claim on certain conversations between two of the directors of the original Monticello Company and Fisk and Gould, at the time president and vice-president of the Erie Railway Company. It was conceded that no written instrument existed giving any such right, and it was uncontroverted that no action was ever taken by the directors of either company claiming or granting such right. The trial justice found, as a fact, that no such right existed as the plaintiff asserted. He, however, stayed all proceedings of the defendant, on the decision, for sixty days, to give the plaintiff opportunity to move for a commission to fix the terms on which the plaintiff might connect its road with that of the defendant/-under ‘the Statute in such cases. "The plaintiff did not avail itself of the privilege thus given, and after the expiration of the sixty days judgment was entered dismissing the complaint on the merits.
    
      1\ F. Bush, for app’lt; L. F. Carr, for resp’t.
   Pratt, J.

The testimony at the trial was, to some extent, conflicting, but the decision made was abundantly sustained by proof, nor can we say that there is any preponderance of proof in favor of the appellant. On the contrary, we are of opinion .that if the utmost credit be given to the testimony introduced by plaintiff, it does not show an agreement that equity can enforce ; for if it be conceded that an understanding was reached that terminal facilities should be accorded without charge, we do not find that any time was specified during which that arrangement should continue. Other arrangements were also made, and the Erie might claim, with much show of fairness, that the continuance of the terminal facilities without charge was to be limited to the duration of the other portions of the agreement.

Where so much is uncertain, a court of equity has not the means of establishing, with adequate precision, what were the terms and conditions of the agreement, if it be that one was definitely made.

We must, therefore, affirm the judgment.

Dykman, J., concurs.  