
    William Irvine, Appellant, v. The Atlantic Avenue Railroad Company, Respondent.
    
      Brooklyn -r- the consent of the common council is, notwithstanding chapter 825 of the Laws of 1896^necessary to the construction of a switch upon its streets.
    
    Section 52 of title 15 of chapter 583 of the Laws of 1888, added by chapter 825 of the Laws of 1896, providing that “it shall not be lawful for any person or corporation to open or otherwise disturb or interfere with the surface of any street or avenue in the city of Brooklyn without first obtaining a permit from the department of city works. * *" * The commissioner of said department * * * shall * * - grant such permits to all persons or corporations who may otherwise lawfully perform the same,” does not' operate to repeal, nor is it inconsistent with, the ordinance of the city of Brooklyn which provides that “no permit shall be granted to any railroad company for the purpose of laying any railroad tracks, sidings, switches or turnouts in the streets or avenues of said city, except upon the consent- of this common council.”
    Appeal by the plaintiff, William Irvine, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of May, 1897, granting the defendant’s motion- for a new trial, and deferring, until after such new trial is had-,, the motion made by the plaintiff to punish the defendant and the Nassau Electric Railroad Company for contempt of court.
    
      
      Hugo Hirsh, for the appellant.
    
      Henry Yonge [Clarence J. Shearn with him on the brief], for the respondent.
   Bradley, J.:

In this action, brought in 1894 for injunctive relief, the defendant was, by the judgment, enjoined from using or maintaining the switch or siding constructed by it on Ninth avenne between Union and Carroll streets in the city of Brooklyn, and from refusing to forthwith remove such switch or siding.' This judgment was affirmed (10 App. Div. 560) and an appeal has been taken to the Court of Appeals. As proceedings upon the judgment were not stayed, the plaintiff moved the court to punish the defendant for contempt. At the same time the defendant moved the court for modification of the judgment and for other relief. The motions were heard together, and the court made the order appealed from, opening and vacating the judgment and granting a new trial to enable the defendant to introduce evidence relating to consents which had been obtained since the trial in .reference to the construction and maintenance of the switch. The order also continued the injunction until the determination upon the new trial.

It was within the power of the court to grant the new trial if any available reason had arisen since the trial -to relieve the defendant from the continuance of the injunction awarded by the judgment. No reason appears to us for the modification of the views entertained of the case when it was here on. appeal from the judgment, so far as relates to the situation existing at the time of the trial. It was then suggested in the opinion of the court that if any legal authority should be obtained to maintain the siding, application could be made to open the judgment. The Nassau Electric Railroad Company having, in 1896, as lessee, succeeded to all rights of the Atlantic Avenue Railroad Company, made the application resulting in the order in question. Ninth avenue came within the operation of the statute which provides that the department of parks shall have the exclusive power to determine the particular location of any railroad track placed upon the avenue. (Laws of 1888, chap. 583, tit. 16, § 2, subd. 5.) The application of the Nassau,Electric Railroad Company was founded upon the fact that such department, by its commissioner, had determined and designated the location for tlie switch on the avenue between Union and Carroll streets, and that the permit had been obtained from the department of city works to do it.

It is urged, on the part of the railroad company, that such designation and permit constituted all that was requisite to enable it to construct and maintain the switch there. They are not effectual to support such claim or right to do so, if the ordinance remains in force which provided that “ no permit' shall be granted to any railroad company for the purpose of laying any railroad tracks, sidings, switches or turnouts in the streets or avenues of said city, except • upon the consent of this common council.” It is, however, insisted that the ordinance was repealed by the provisions.of chapter 825 of the Laws of 1896, that it shall not be lawful for any person or corporation to open or otherwise disturb or interfere with the surface of any street or avenue in the city of Brooklyn without first obtaining a permit from the department of city works. * * * The commissioner of said department * * * shall * * * .grant such permits to all persons or corporations who may otherwise lawfully perform such work.” This is an added section to title 15 of chapter 583 of the Laws of 1888, and is numbered 52. There is nothing in express terms in the act excluding the necessity of any consent on the part of the city before then requisite to the right to lay railroad tracks in its streets, and, therefore, the question is one qf the construction and effect of the new section.

The main tracks of this road were laid in Ninth avenue by the Prospect Park and Coney Island Railroad Company upwards of twenty years ago, as the successor of the Park Avenue Railroad Company, pursuant to the franchise or right granted to the latter company to do so by the provisions of chapter 600 of the Laws of 1870. But, as was said in the opinion of the court upon the review -before referred to, the provisions of chapter 448 of the Laws of 1874, authorizing the construction and maintenance of switches and side tracks upon certain streets and avenues, did not' include Ninth avenue within the permission so given. Those- statutes have no significance bearing upon the question presented here for consideration. It has been the policy of the law to make the right to lay railroad tracks in the streets of cities dejiendent upon the consent of the municipalities. This was provided for by the General Railroad Law of 1850 (Chap. 140, §§ 23, 28, subd. 5), as well as by the recent Railroad Law, and for that purpose the common council of a city has been treated as its representative body.

The legislative power of the city is vested in the common council, and as such it has the power and is charged with the duty of enacting ordinances. This ordinance, when enacted, had within its purposes the force and effect of law, and its observance by all the city authorities was legally required. And it is provided by the charter of the city that .the commissioner of city works, as the executive officer of that department, shall be under the direction and control of the common council, except so far as such control is qualified. (Laws of 1888, chap. 583-, • tit. 15, §§ 1, 51.) These provisions in that respect apply equally to the newly-added section 52. By its provisions no further restriction upon the power of the common •council is expressly made. And while the power to enact any ordinances providing for consent to lay railroad tracks in the streets of the city might by statute be taken away and the authority be vested in the commissioner of city works, relieved from the control of the common council to prevent it from being done, it is not seen that this was within the purpose of the act of 1896. To take such power from the common council and thus repeal the ordinance upon the subject, the legislative intent must quite clearly appear in the provisions of the act.

If the import of the act fairly construed is that, in the respect in question, the authority of the common council was superseded and vested in the commissioner of city works, then such effect should be given to the act. Then it would be deemed to have prescribed the only rule to be observed in that respect. But repeal by implication is not favored, and such will not be deemed the effect of the later statute unless it be inconsistent or repugnant to the earlier •one. (Bowen v. Lease, 5 Hill, 221; People ex rel. Kingsland v. Palmer, 52 N. Y. 84.) And, as was said by Judge Finch in Matter of the Administration of Curser (89 N. Y. 403), repeal by implication must rest upon very clear and definite reasons. * * * It must be the necessary solution of an inconsistency not otherwise to be solved.”

By the application of this canon of construction to the provisions of chapter ,825 of the Laws of 1896, it seems quite clear that they did not operate to repeal the ordinance before mentioned: They are not inconsistent with its continued effect as such. The commissioner is required by this statute to grant pérmits to corporations which “ may otherwise lawfully perform such -work.” Whether the corporation may otherwise lawfully do so is dependent on whatever is prerequisite to the permit of the commissioner from which the consent of the common council is not by any repugnancy excluded. This duty, mandatory in character, vested in the commissioner, is executive merely and is entirely consistent with the purpose of the ordinance. This provision for permits of the commissioner of city works must be treated as an additional' authority, thus represented, to disturb the surface of the streets, without any retrenchment of anything on the part of the municipalty then existing to permit the lawful performance of the work there.

In the view taken, the consent of the common council was necessary to enable the company to put in and maintain the switch or siding; and as that has not been obtained a new trial would be entirely useless to. defendant.

The order should be reversed.-

All concurred, except Goodrich, P. J., not sitting.-

Order reversed, with ten dollars costs and disbursements.  