
    The City of New York, Appellant, v. Interborough Rapid Transit Company, Respondent.
    First Department,
    December, 1905.
    Stay of proceedings — when action by city of New York against Rapid . Transit Company should not be stayed.
    An action by the city of New York against the Interborough Rapid Transit Company .to compel the. removal of weighing machines, etc.', from subway . stations should hot be stayed pending the determination of a prior action brought by said Interborough Rapid Transit Company against said city to restrain the latter from interfering with such machines, because the action by the city is, by statute, entitled to a preference, and in the prior action the hoard of rapid transit commissioners, whose.powers in the- premises should be determined and who may have greater control. Of the subway than - even the city itself or any of its other officers, had not been made a^party.
    Appeal by the plaintiff, The City of Hew York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York On the 24th day of October, 1905, granting the defendant’s motion for a stay of proceedings.
    
      George L. Rives, for the appellant.
    
      Pratt A. Brown, for the respondent.
   Houghton, J.:

Prior to February, 1905, various city officials had protested against the Interborough Rapid Transit Company placing advertising signs and vending and weighing machines in the stations of the subway, and notice had been given by city officials to the company to remove them. Thereupon the Interborough Rapid Transit Company brought action against the city of Hew York and John Ahearn, president of the borough df Manhattan, to restrain Ahearn and the city and its officers and servants from interfering with the signs or machines, and an injunction during the pendency of the action was granted to that effect.

Thereafter the board of rapid transit railroad commissioners of the city demanded that the Interborotigh Company remove from the subway stations all weighing and vending machines. That order not being complied with, .in June, 1905, the present action was. brought by direction of such board. Issue was joined, and thereupon the defendant moved that trial be stayed until the trial of the prior action brought by it against the city and the president of the borough, and the court granted the motion on the theory that the first action covered all and more than was involved in the second one, and hence it should be first tried.

The order should not have been made. By section 9 of the Rapid 'Transit Act (Laws of 1891, chap. 4, as amd. by Laws of 1895, chap. 519), a preference, in trial, is given to this action. The action first brought is entitled to no such privilege. The question involved is one of public importance and a speedy determination is desirable, which can only be had by the trial of this later action.

In addition, the board of rapid transit railroad commissioners is not a party to the prior action, and the exact powers it possesses cannot be determined therein. “ It is possible that under the provisions of the Rapid Transit Act whatever control is reserved to the city over the subway is vested in that board, and that any specific direction by it, with respect to the use of the subway and its stations, may have greater force and be entitled to stricter obedience than the same direction and command on the part of the city or any of its officers.. Indeed, the complaint of the Interborough Company in the former-' action alleges that the president of the borough and the. city are without jurisdiction over the subway, and that such jurisdictior V confined to'the board of rapid transit railroad commissioners, who gave to the company the right to maintain signs and Weighing and vending machines in the various stations thereof. These questions in their broadest sense can be speedily determined on the trial. of this action, even though the maintenance of signs is not strictly involved.

The order is reversed, with ten dollars costs and disbursements.

O'Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred. ' ■ ■ ■ '

Order reversed, with ten dollars costs and disbursements.  