
    The People of the State of New York ex rel. The Brooklyn Union Gas Company, Respondent, v. Martin W. Littleton, as President of the Borough of Brooklyn, and Others, Appellants.
    Second Department,
    January 12, 1906.
    Municipal corporation — resolution of common council of former city of Brooklyn, giving consent to franchise—mandamus to compel president of borough of Brooklyn to allow gas company to connect mains.
    A resolution of the former common council of the city of Brooklyn purporting to confer a right upon a ga's lighting corporation to use the streets at a time when said common council had power tp confer such right, and which would be meaningless if given any other construction, must be taken as giving the required consent of said common council, and mandamus lies against the president of the present borough of Brooklyn to compel him to issue.and deliver permits to such gas company to connect gas mains.
    Appeal by the defendants, Martin W. Littleton,'as' president of the borough of Brooklyn, and others, 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 25th day of October, 1905, granting a peremptory writ of mandamus commanding the appellants to issue and deliver to the relator permits to open Flatbush avenue in the thirty-second ward of the borough of Brooklyn for the purpose of connecting certain gas mains.
    
      James S. Sell [John J. Selany with him on the brief], for the appellants.-
    
      William W. Dykeman, for the respondent.
   Per Curiam :

To sustain the order which this appeal.brings up for review it is not necessary to assert the broad doctrine that a franchise to light the streets of a. city extends with the enlargemént of the city so as to embrace territory not within its boundaries when the franchise was originally granted. That doctrine finds support in sbme of the language in the case of St. Louis Gaslight Co. v. City of St. Louis (46 Mo. 121), although there was an element of estoppel in that case' sufficient of itself to sustain the conclusion reached. We should' hesitate to affirm this order, however, if the adoption of this principle were necessary to uphold the position of the relator in the present case.

The question presented by the appeal is whether the Brooklyn Union Gas Company has acquired' a franchise to supply gas to the territory which formerly constituted the town of Flatlands and subsequently became the thirty-second ward of the city of Brooklyn and is now included within the limits of the city of New York. It appears that in 1897, before the original Greater New York charter (Laws of 1897, chap. 378) took effect, the common council of the city of Brooklyn duly adopted resolutions contemplating and providing for the execution of contracts with the Brooklyn Union Gas Company for the lighting of territory in the said thirty-second ward. At that time the common council of Brooklyn, like the common council of New York, was vested with the power to give the consent requisite, to confer a franchise upon a gas-lighting corporation. (Ghee v. Northern Union Gas Co., 158 N. Y. 510, 516.) No particular form in which such consent must be given was prescribed by law. (People ex rel. New York & Richmond Gas Co., v. Cromwell, 89 App. Div. 291. 294.) We think that the action of the Brooklyn common, council, in passing the resolutions to which reference has been made, may fairly be regarded as the giving of the required consent; and in this view the action of the court at Special Term, in granting the peremptory writ of mandamus, was clearly correc.t. Any other interpretation of the resolutions would make them ineffective and meaningless, and would attribute to the common council an intention of- putting the relator to trouble and expense for the benefit of the people of the city, and,' at the same time, denying to it any possible return for its labor, material and expenditure.

The order should be affirmed, with ten dollars costs and disbursements. , .

Hibsohberg, P. J., Woodwaed, Jenks and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and. disbursements.  