
    In the Matter of the Application of the Seaboard Telegraph and Telephone Company, Respondent, for a Writ of Mandamus, Directed to Henry S. Kearny, as Commissioner of Public Buildings, Lighting and Supplies of the City of New York, Appellant.
    
      Permit to authorize a telegraph company to repair its wires in Sew York city—it may be compelled by mandamus—application to an existing company of the requirement that a permit be obtained.
    
    It is the duty of the commissioner of public buildings, lighting and supplies of the city of Hew York to issue, upon the application of a telegraph and telephone company, which has acquired the franchise and lines of a similar corporation, and which desires to repair such lines, the permit required by section 584 of the Greater Hew York charter (Laws of 1897, chap. 878) even though such lines may have been out of use for some time, and although the necessary repairs will require the replacing of a considerable part of the system; if the commissioner refuses to perform this duty, a writ of mandamus will issue to compel him to do so.
    
      Qucere, whether section 584 of the Greater Hew York charter applies to repairs, as distinguished from original construction, in the case of a corporation whose system was in operation before that charter was enacted.
    Appeal by Henry S. Kearny, as commissioner of public buildings, lighting and supplies of the city of Hew York, from an order of the Supreme Court, made at the Queens County Special Term
    
      and entered in the office of the clerk of the county of Queens on the 22d day of July, 1901, granting a peremptory writ of mandamus, requiring him to issue to the Seaboard Telegraph and Telephone Company a permit to repair, replace and put in order its lines of poles and wires.
    
      William J. Qa/rr [Louis H. Hahlo with him on the brief], for the'appellant.
    . Henry A. Monfort, for the respondent.
   Hirschberg, J. :

The matters in respect to which the appellant claims, issues of fact were raised, requiring the issuance of an alternative instead of a peremptory writ, are either inconclusive on the question of the right to the relief, or involved conclusions by way of opinion rather than facts by way of defense. Conceding that the. relator’s system of lines and wires has been out of use for a short period owing to the financial difficulties of the. relator’s predecessor in interest, and for a longer period since by reason of the .appellant’s refusal,to authorize its repair,, the fact affords no justification for the refusal to permit its lawful restoration. If in its present condition, it is a menace to life or property, the necessity for its repair is imperative and furnishes reason for granting rather than refusing the permit as suggested, by Mr. Justice Gareetson in the opinion at Special Term, which will be found on page 286 of this volume.

The parties have argued the appeal upon the assumption that the permit is required by section 584 of the Greater New York charter (Laws of 1897, chap. 378). So far as applicable that section reads as follows : It shall be unlawful, after the passage of this act, for any person or "corporation to take up the pavement of any of the streets and parks of said city, or to excavate for the purpose of laying underground any electrical conductors, or to construct subways, unless permission in writing therefor shall have been first obtained from the said commissioner of public buildings, lighting and supplies, endorsed by the commissioner of highways. And except with a like permission therefor no electrical conductors, poles, wires or other electrical devices or fixtures shall be constructed, erected, strung, laid or maintained above or below the surface of any street, avenue, highway or other public place, in any part of said city.” It is not pretended but that the system in question was lawfully constructed and maintained before the creation of the present city, and it cannot be disputed that the law requires the person or corporation owning' or operating it to keep it in repair. If a live wire were out -of order, or a pole dangerously decayed, the duty to repair would at once exist, and it would be a narrow construction of the statute which would make the discharge of that duty dependent upon the procurement of a permit. The rules of the appellant’s department require the removal of broken and dead wires, and wires, poles and fixtures not actually in use, and as" good reason exists why a permit .should be required to enable those interested to comply with these rules, as in the case of the legal duty arising from injury in ordinary wear and use.. In this case, however, it may be assumed that from lapse of time the repairs required have become so extensive as to require the replacing of a considerable part of the system, and that in the view of both parties the procurement of the permit is, therefore, an indispensable prerequisite.

That the relator is the lawful owner of the franchise under which the system has been constructed and heretofore maintained is-undoubted. In People ex rel. Woodhaven Gas Co. v. Deehan (153 N. Y. 528) it was conceded that a franchise to a gas company to lay conductors in the streets and carry on business (p. 532) “ is property that cannot be destroyed or taken from it or rendered useless •by the arbitrary act of the village authorities in refusing the permit to place the conductors under the streets. (People v. O'Brien, 111 N. Y. 41; City of Brooklyn v. Jourdan, 7 Abb. N. C. 25.) ” The principle was enunciated that while the authorities could enact reasonable regulations with respect to all interference with the streets, they could not lawfully refuse to permit the exercise of a right which had been expressly granted under the sanction of law.

To the same effect were the decisions in People ex rel. O'Brien v. Keating (55 App. Div. 555) and Ghee v. Northern Union Gas Co. (158 N. Y. 510). In the. latter case the court said (p. 524): “We have had no difficulty in reaching the conclusion that the consent that is necessary to confer a franchise upon a gas-lighting corporation can be given only by the municipal assembly through appropriate ordinances, but that when the consent has been granted to a corporation duly created, by which a corporate franchise, which is property, has been acquired, the administrative officers must be applied to for a permit that will allow the corporation to exercise such rights in order that the public convenience may be subserved. The permission forms no part of the franchise and is not essential to its existence, and, if refused, the granting of it may be compelled' by mandamus, as, indeed, it has been in a number of cases, but the officers to whom application must be made may, within reasonable limits, fix the time when work on the streets may be begun, determine what portion of a street shall be first opened, how.much of it may be left open at- a time, the depth of the trench and other details, the careful regulation of which is of first importance to a metropolitan city like Hew York.”

The appellant’s refusal to give a permit in this case is in effect a-condemnation of the relator’s property and a confiscation of its fran-cliise. It proceeds, upon the theory that the corporate right to maintain the system and carry on the business has been forever lost by non-user. The’ right so to adjudge is not vested in the appellant by the charter, and is - not essential to the discharge of his lawful duties. It is true, as stated by the learned justice at Special Term, that he may reasonably and lawfully prescribe the time, method and conditions under which the work of repair shall be done, although he may not deny absolutely the right to do it. It is unnecessary that this right of regulation and control by the appellant of the time, mode and conditions of the work should be recited in the writ. It exists independently of the writ by statute and by virtue ■of the police powers of the municipality, and the Writ must be deemed to be granted subject to it. Nor is it necessary that the Writ should be modified so as to provide in any definite way for the protection of life and property during the progress of the work, in which regard the power of the municipal authorities is as ample as its exercise is imperative.

The order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      The following is the opinion of Garretson, J., delivered at Special Term: Garretson, J.:
      " There seem to be no valid reasons presented by the respondent why the'writ asked for should not issue.
      The relator is the owner of the franchise for the construction and operation of the lines described in the. papers. No forfeiture of' its rights is shown. They have not been lost to it by abandonment, nor is the fact that the poles and wires are in disrepair and have been so for a considerable period of time a reason for denying the permit; on the contrary, these conditions call for the granting of it, that the liability of accident and injury to the public may be removed. Neither is it a relevant answer to the relator’s application that there is another line of similar wires upon some of the same streets. These have been constructed since the lines of. the relator were put there. Therefore, rule 1 of the department, that “ two lines of poles bearing conductors of a like class shall not be erected in any street or-avenue,” has not been violated by relator and will not be by permitting it to repair, replace and put in order its line's.
      The commissioner ■ expressly admits that he has denied the permission asked for. While the court will not seek to control his discretion in this or a similar case it will enforce the relator’s general rights, leaving it to the commissioner to prescribe the time, method and conditions under which the work shall be done, (People ex rel. O'Brien v. Keating, 55 App. Div. 555.) The relator having the right thereto, the need therefor being absolute and essential to the exercise of the right (Greater New York charter [Laws of 1897, chap. 378], § 584), I am of the opinion that the refusal to issue the permit is unreasonable.
      The circumstances do not justify the denial of the writ on the ground of loches. The relator made an effort to secure the permit within a comparatively short time after it acquired the franchise and property by purchase from the predecessor corporation.
      Motion granted, with twenty-five dollars costs.
     