
    The Coney Island and Brooklyn Railroad Company, Resp’t, v. The Brooklyn Cable Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    Railroad companies—License to use another’s track.
    An agreement by one railroad company with another, whereby the former hires to the latter and its assigns the right to run cars upon its tracks upon certain terms and conditions, is not a lease, but a mere license or privilege, and the party hiring can either keep the right or part with it by assignment, but it cannot keep the right and sub-let it to other parties to be used conjointly.
    Appeal from a judgment enjoining the defendants from running cars on plaintiff’s tracks.
    The following opinion was delivered at special term:
    “ Bartlett, J.—On May 1, 1871, the Coney Island and Brooklyn Bailroad Company and the Park Avenue Bail-road Company entered into an agreement in writing, whereby the former agreed that the latter company, and its assigns, might use one track of the Coney Island and Brooklyn Bailroad Company on Water street, between Main and Fulton, on certain terms and conditions in said agreement specified. In 1874 the Park Avenue Bailroad Company consolidated with the Greenwood and Coney Island Bailroad' Company, "forming the Prospect Park and Coney Island, and subsequently this corporation sold its horse-railroad routes in Brooklyn to the Atlantic Avenue Bailroad Company. These various companies have successively run the cars of what is known as the ‘Vanderbilt Avenue Line,’ over the tracks of the plaintiff in Water street, under the agreement of 1871, already mentioned. ¡Recently, however, the Atlantic Avenue Bailroad Company has assumed to assign to Tom L. Johnson and Alexis I. DuPont the right to use, jointly with the Atlantic Avenue Bailroad Company, the tracks of the plaintiff in Water street, and Johnson and DuPont have executed a further-assignment of the same right to the defendant the Brooklyn Cable Company. By virtue of the authority thus acquired the Brooklyn Cable Company is now running cars, which it has obtained for the purpose from the Brooklyn Crosstown Railroad Company, over the Water street tracks of the-plaintiff. This action is brought to restrain the further use of these tracks by the defendants, and the present motion is an application for a preliminary injunction.
    “ I do not think the agreement of 1871 was designed to give more than one company the right to make use of the plaintiff’s railway. The contract ran to the Park Avenue Railroad Company ‘and its assigns.’ This did not mean that the Park Avenue Railroad Company could retain the right itself, and bring in any number of other companies to-share the privilege with it. It could keep the right, or it could part with it by assignment; but it could not retain, the right itself, and multiply the beneficiaries. This is-what its successor in interest, the Atlantic Avenue Railroad Company, has tried to do by the assignment through Johnson and DuPont to the Brooklyn Cable Company, whereby the Atlantic Avenue Company assumes to convey the-privilege of using the tracks jointly with itself. In my opinion, the assignment cannot be deemed effectual to give-the Brooklyn Cable Company any right to use the track in question, so long as the Atlantic Avenue Railroad Company retains the right. In this view it becomes unimportant to pass upon the validity of the sale of the franchise of the Prospect Park and Coney Island Railroad Company to the Atlantic Avenue Railroad' Company, but were it necessary to determine that question, I should be inclined to hold that the sanction of the legislature made the transfer legal. Under the circumstances, a case for an injunction against the Brooklyn Cable Company is made out, unless that corporation shall acquire the right to use 1,000 feet of the plaintiff’s line under the general street surface-railroad act of 1884. Upon the papers before me on this motion, I am not prepared to hold that they can or cannot obtain such rights; and as it is intimated by counsel that' they desire to acquire it, if it is determined that they do not possess it already, I think they should be afforded an opportunity to do so. Unless they take the proper legal steps to this end, however, within ten days, an injunction will issue as prayed for, and an injunction will issue in case such proceedings are unsuccessful. As the Brooklyn Crosstown Railroad Company does not appear to be using the tracks of the plaintiff, but has only lent or rented its cars to the Brooklyn Cable Company, which uses them thereon, there is no occasion for any restraining order as to the-second defendant.”
    
      James C. Church, for app’lts; Bergen & DyJcman, for tesp’t.
   Pratt, J.

Nothing need be added to the able opinion of the learned judge who tried this case. All the facts are therein fully stated and we concur in the law therein expressed.

This general term in February last passed upon a • case in many respects similar to this in which it was held that under such a contract the party hiring a right to run upon the tracks of another railroad could keep the right or part with it by assignment, but it could not retain the right itself and multiply the beneficiaries. Brooklyn Cross-Town R. Co. v. Brooklyn City R. Co., 22 N. Y. State Rep., 56.

The contract here is a mere license or privilege for hire. It is not a lease conveying an interest in the realty, but an agreement containing mutual stipulations in the nature of a license. It is clear the intent was to permit the first licensee to run its cars over the tracks mentioned. Had it been designed to cover any more than such a privilege other terms would have been used to indicate such an intention.

It seems unreasonable to say that such an agreement can be divided up into' a large number of parts so as to increase the use of the tracks many fold and still the compensation remain at the same fixed price.

Again, the covenants in the agreement about time tables indicate that but one party was intended to use the road under the agreement.

The word assigns was used in the agreement to cover the case of the Park avenue railroad selling out all its franchises so that its assignees would succeed to its rights under the agreement. It was not used in the sense of giving a right to sub-let or to convey a privilege to other parties to use the tracks while the Park avenue road retained the right to use them.

But it is claimed by defendants that the Park avenue railroad company and its assignees acquired other franchises and that the agreement must be held to extend to them while in use by the Park avenue company, and that it was competent for them to lease or convey such franchises, and that such conveyances carried the right to run cars under said agreement, but this contention not only contains the vice of splitting and multiplying- the privilege contained in the agreement among different owners, but it is inconsistent with the statute conferring the franchise, Section 2 of act of 1874 which provides: “That in the use of such railroad upon the routes herein designated’’ the company may use tracks already laid but must agree with the owner or have compensation fixed by commissioners. It seems plain that the existing agreement did not extend to cover such newly acquired franchise.

Neither for the same reason can it be successfully claimed that the agreement became appurtenant to the franchise granted to the Park Avenue Railroad by chapter 448 of Laws of 1874.

The agreement was made to fit the existing circumstances, and it could not be made to cover material changes not provided for in its terms, or within the intent of the parties at the time it was made. The question is not whether a corporation can sell or assign its franchises, but whether the agreement in question became vested in the defendant so that it can enforce it against the plaintiff. As we have before stated, this agreement was not a lease, and is, therefore, not a subject of sub-letting to different parties, to be conjointly used with the original parties.

Judgment affirmed, with costs.

All concur.  