
    (74 Hun, 124.)
    NEW YORK CENT. & H. R. R. CO. et al. v. FLYNN et al.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    Railroad Companies—Right to Use Grounds—Hackmen.
    Laws 1890, e. 565, § 34, providing that a railroad company shall give no preference for the transaction of the business of a common carrier on its cars, or in its depots, or on its grounds, to any persons competing in the same business, or in the business of transporting property for themselves or others, does not require a railroad company to allow all hackdrivers alike to use its grounds as a standing ground to solicit business at its depots, when they have no contract with a passenger.
    Appeal from special term, Albany county.
    Action by the New York Central & Hudson River Railroad Company and the Consolidated Transfer Company against James Flynn and others for injunction. From an order granting a temporary injunction, defendants appeal.
    Affirmed.
    Argued before PUTNAM and HERRICK, JJ.
    
      George T. Kelley, (Edwin Countryman, of counsel,) for appellants.
    Harris & Rudd, (Hamilton Harris, of counsel,) for respondents.
   PUTNAM, J.

The decision of this case depends upon the construction to be given to the following provision, contained in section 34, c. 565, Laws 1890, viz.:

“No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations or corporations competing in the same business, or in the business of transporting property for themselves or others.”

The defendants claim that under the statutory provision above quoted they have the right to go upon the grounds of plaintiff described in the complaint for the purpose of soliciting employment in their business as hackmen of passengers arriving on trains on plaintiff’s road, and that plaintiff cannot exclude them therefrom. It is clear that the defendants have no right upon plaintiff’s premises unless such a right is conferred by the above-quoted statutory provision. They do not claim to go thereon for the purpose of transacting any business with the plaintiff as a common carrier or otherwise. They wish to enter on said premises for the purpose of contracting with passengers leaving plaintiff’s depot. They do not desire to employ plaintiff to carry passengers or freight, or to make any contract whatever with it. They wish free access to the premises in question for the transaction of business with other parties. The order from which the appeal is taken was not intended to prevent the defendants from leaving passengers or freight at plaintiff’s depot, or from taking passengers or freight therefrom; but it prohibits defendants’ hacks and employes from remaining on plaintiff’s premises—from making such premises a standing ground for the purpose of soliciting patronage—while so engaged in seeking employment on said premises, they having no contractual relations with plaintiff or its passengers.

Does the statutory provision above quoted prevent the plaintiff, under the circumstances, from controlling the use of its grounds? Under a somewhat similar statutory provision, and in a similar case, the supreme court of Massachusetts, in Railroad Co. v. Tripp, 147 Mass. 35, 17 N. E. 89, held the following doctrine:

“The defendant was allowed to use the depot for any business that he had with the plaintiff. But he had no business to transact with the plaintiff. He had no merchandise or baggage to deliver to plaintiff or to receive from it. His purpose was to use the depot for the purpose of soliciting contracts with incoming passengers for the transportation of their baggage. The railroad company may be under obligation to the passenger to see that he has reasonable facilities for" procuring transportation for himself and baggage from the station where his transit ends. What convenience shall be furnished to passengers within the station for that purpose is a matter solely between them and the company. The defendant is a stranger both to the plaintiff and the passengers, and can claim no rights against the plaintiff for the use of its station, either in his own right or in the right of the passenger. * * * The statute, in providing that a railroad corporation shall give to all persons equal facilities for the use of its depots, obviously means a use of right. It does not intend to prescribe who shall have the use of the right, but to provide that all who have a right to use it shall be furnished by the railroad company with equal conveniences. The statute applies only to relations between the railroads as common carriers and their patrons. It does not enact that a license given by a railroad company to a stranger shall be a license for all the world.”

While the question involved is not free from doubt, and the Massachusetts statute differs somewhat from ours, we are inclined to adopt the views above quoted as applicable to this case, and as expressing our views thereon. We should regret to be compelled to give any other construction to the statute in question. It would be unfortunate if railroad corporations, as against hackmen, should have no control over their premises. A construction of the statute is to be regretted that would give in our cities and villages all the hackmen of the place the absolute right to intrude upon and make a stand of the premises of railroad corporations for the purpose of soliciting passengers; that in fact allows a mob of hackmen around railroad depots, and prevents a railroad corporation from adopting proper regulations to protect its passengers from undue solicitation and annoyance when leaving its grounds. See, also, Jencks v. Coleman, 2 Sumn. 221; Barney v. Steamboat Co., 67 N. Y. 301-303.

The meaning of the statutory provision under consideration is, as above suggested, not entirely clear; but we think it should be construed to mean that no preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be given by railroad corporations to any one of two or more persons' competing in the same business, or in the business of transporting property, while having contractual relations with said railroad corporation as a common carrier.

Since writing the above we have been referred to the very able and exhaustive opinion of Justice Green in the case of Railroad Co. v. Sheeley, (not reported,) in which the learned justice reaches a conclusion sustaining an action against hackmen similar to this-It follows that the order should be affirmed, with costs and disbursements.  