
    The New York and Long Island Railroad Company, Respondent, v. John H. O’Brien, as Fire Commissioner of the City of New York, and Others, Appellants.
    First Department,
    November 22, 1907.
    Railroad — incorporation of New York and Long Island Railroad Company valid — right to construct tunnel — consent of local authorities — constitutionality and construction of Railroad Law — license by local authorities for storage of explosives and use of streets for constructing tunnel not revocable unless abused.
    The incorporation of the New York and Long Island Railroad Company, organized in 1887 under chapter 140 of the Laws of 1850 and the acts amendatory thereof and supplementary thereto, was valid, and that company is a legally existing corporation entitled to sue.
    Chapter 10 of the Laws of 1860, prohibiting the construction or operation of railroads in, upon or along streets of the city of New York except under legislative authority and regulation did not prevent said railroad from building of operating its road in Queens county nor from tunneling the East river to the exterior bulkhead line of the city of New York and under private property in that city.
    Although the provisions of the so-called Tunnel Act (Laws of 1880, chap. 582) which allowed commissioners to authorize railroads to tunnel under the city of New York without the consent of the local authorities and owners of one-half in value of the property hounded, were in violation of section 18 of article 8 of the New York Constitution and, therefore, void,- yet the other provisions of said act allowing tunneling under said city on obtaining the consents required . by the Constitution were valid. Hence, when the New York and Long Island railroad was. incorporated in 1887 there was a valid and existing law under which it could acquire the right to tunnel under the city of New York, and said company was not formed for an illegal purpose because its certificate of incorporation contemplated the construction of a.tunnel under said city.
    The consents of the mayor and’ aldermen of the city of New York given in December, 1890, to the construction of a tunnel under Forty-second street by the New York and Long Island railroad were not impaired by the adoption of section 16 of the Railroad Law which went into effect May 1,1891, although said section was not then retroactive, for existing prior rights were preserved by the saving clause in section 181 of the Railroad Law, and said section 16 was thereafter made retroactive by the amendment of chapter 702 of the Laws of 1892. Hence, said railroad having thereafter obtained the necessary consents of the property owners in New York city and the consents of the local authorities and property owners of the adjoining cities under which the tunnel was to run, is entitled to construct such tunnel.
    
      The requirement of chapter 14Ó of the Laws of 1850 that the certificate of railroads incorporated thereunder should state the places from which and to which, the road was to he constructed, should he construed to mean that the certificate was only required to state the towns, cities or villages from and to .which the road was to run, and any detailed description of the termini in such places waa unnecessary'surplusage. Hence, the consent of the local authorities of the city of New York to the construction of a tunnel by the New York and Long Island railroad was not ineffectual because the tunnel did not follow the exact, route expressed in the certificate ot incorporation. Said railroad was entitled to change the route by complying with section 13 of chapter 565 of the Laws of 1890.
    The so-called Cantor Act (Laws of 1886, chap. 642), substantially re-enácted in article 4 of the Railroad Law, providing that local authorities cannot consent to the construction of a street railroad except upon the condition that the franchise he sold at auction, etc., applies only to street surface railroads-and not'to an underground tunnel railroad, a large part of which is under the East river and required the purchase' of private property!
    As said New York and Long Island railroad was incorporated in 1887, contracted for the construction pf its road in 1890; began work thereunder in' 1898 and had then expended over ten-per cent of its capital, and as the-time for the completion- of the road was extended by various statutes to Januaiy 1, 1907, its charter was not forfeited by lapse of time under the amendment to the Railroad Law of 1850, made .by chapter 775 of the, Laws of 1867, requiring railroads to begin construction within five years and to complete the same within ten years from incorporation, etc.
    The New York and Long Island Railroad Company was not required to obtain, in addition to .the consents of the local authorities and property owners to the construction of the tunnel aforesaid, the consent of the department of docks of thq city of New York to tunnel under the 300-foot strip of land, under water granted to the' city by the Land Commissioners, pursuant to chapter 137 of the Laws of 1870,, as amended by chapter 574 of the Laws of 1871.
    As said New York and Long Island Railroad Company is entitled, to construct the tunnel aforesaid, permits issued by the fire commissioner of the city of New York to thé contractor constructing the tunnel to store explosives in the city, and the consent of the superintendent of buildings permitting the ■maintenance of temporary buildings used in the construction of the'tunnel, cannot be revoked on the theory that the railroad was not duly incorporated or entitled to build the tunnel,, in the absence of any infraction of the rules or regulations governing the issuance and. continuance of-such permits, and said railroad is entitled to a permanent injunction restraining such revocation.
    Appeal by the defendants, John II. O’Brien, as fire commissioner of the city of New York, and others, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county, of New York on the 26th day of December^ 1906, upon the decision of the court, rendered after a trial at the New York Special Term, granting a permanent injunction restraining the defendants from revoking certain permits theretofore granted, and from otherwise interfering with the plaintiff in the construction of its tunnel and railroad.
    
      Theodore Connoly of counsel [Terence Farley with him on the brief] [Francis K. Pendleton, Corporation Counsel], for the appellant's,
    
      Morgan J. O’Brien of counsel [George W. Wickersham with him on the brief] [Strong & Cadwalader, attorneys], for the respondent.
   Clarke, J.:

The New York and Long Island Railroad Company, a corporation organized in 1887 for the purpose of constructing and operating a railroad from Long Island City, in the county of Queens-, by a tunnel under the East river to New York city, in the county of New York, entered into a contract with the Degnon Contracting Company for the construction .of its tunnel. Said contractor in August, 1905, upon giving four several bonds in the sum of $5,000 each, obtained from the fire commissioner of the city of New York four several licenses to use and keep explosives to be used in the prosecution of said work in conformity with the ordinance to regulate the sale, use and transportation of explosives in the city of New York, adopted May 13, 1902, and approved by the mayor of said city May 19, 1902. In October and Hovember, 1905, the superintendent of buildings of the borough of Manhattan issued to said Degnon Contracting Company four certain permits for temporary buildings to be used in connection with the construction of plaintiff’s railroad and tunnel. On the 22d day of January, 1906, the inspector of combustibles of the fire department of the city of New York delivered to the Degnon Contracting Company a letter stating, “ By direction of the Corporation Counsel your permits have this day been revoked and you will discontinue all blasting operations and cause to be removed from your various magazines in Long Island City, Man-of-Warman’s Reef, 42nd street east of 1st Ave. and 42-nd street west of 3rd Ave., all explosive material.” The ordinance alluded to provided that “ The said fire commissioner shall have power to revoke the license ’ or licenses in case in his judgment there is an infraction of the provisions of this ordinance or of the regulations of the Municipal Explosives Commission.” Ho infraction of said provisions was proved, nor- was it claimed or alleged on behalf of the.individual defendants or on behalf of the city of New York that there had been any such infraction.

On the 24th of January, 1906, the superintendent of buildings of the borough of Manhattan wrote to the 'Degnon Contracting Company: " In accordance with the request of the Mayor, based on an opinion of the Corporation Counsel, I hereby revoke the following permits ” (enumerating them) “ for temporary buildings to be used in connection with the construction of the New York and Long Island Bailroad tunnel under 4-2nd street, for the reason that the right to build this tunnel is disputed.”

Thereafter the jilaintiff brought this action to enjoin and restrain the defendants from in any respect molesting or interfering with the plaintiff or the said Degnon Contracting Company in the construction of plaintiff’s tunnel and railroad, or in- the use and keeping of combustibles in connection therewith, or in the maintenance of such buildings and structures pursuant to the permits theretofore issued for that purpose, and from revoking or attempting to revoke or set aside said licenses or permits or any of them. It obtained an injunction' pendente lite and a judgment upon the trial' at Special Term making such injunction permanent, from which judgment "the defendants here appeal.

The individual defendants are administrative officers Of the.city. In the performance of their administrative functions, upon due application and in strict conformity to the provisions of law, they issued to a contracting company certain permits necessary to it for the prosecution of the work which the company had under construction. Said administrátiye'officers, not of their own motion, not .in the exercise of their judgment as such administrative officers, and not for any infraction of the rules or regulations governing the issuance and continuance of such permits, undertook to revoke them upon direction of the mayor upon the.grounds, as was sought to be established upon the trial, first, that the New York and Long Island Railroad Company was not a. legal' corporation ; and, second, that it had no right to construct its tunnel, upon which it had expended a very large amount of money.

On the 22d of July, 1887, Walter S. Gurnee and others duly made and acknowledged certain artibies of association pni'suant to the act (Laws of 1850, chap. 140) entitled “An act to authorize the formation of railroad corporations and to regulate the same,” passed April 2d, 1850, and the acts amendatory thereof and supplementary thereto, which said certificate was duly filed and recorded in the office of the Secretary of State on the 30th day of July, Í88T. The articles provided that the company was to continue in existence for ninety-nine years; that the places from and to which said railroad was to be maintained and operated were as follows: “ Commencing. in Long Island City, Queens County, N. Y., at a point on or near the line of Borden Avenue and distant about one mile from the East River; thence partly under ground and partly in cutting to the East River; thence under the East River by means of a tunnel, and under streets and lands in the city of New York, County of New York, to a connection ivitk the New York Central and Hudson River Railroad at the corner or at a point near the Hinth Avenue and 30th Street; with a branch on the north to a connection with the New York Central and Hudson River Railroad, at or near the Grand Central Depot, in said city of New York, and a branch southerly to connect with what is now known as the Hudson River tunnel in the vicinity of Washington Separe in said city of New York. The length of said railroad, as nearly as may be estimated, is five (5) miles, and the same is intended to be constructed within said counties of Queens and New York., The amount of capital-stock of said railroad company shall be one hundred thousand dot-, lars consisting of one thousand shares of one hundred dollars each.,”’

The appellants claim that in 1881, at the time of the. filing, of these articles of association, the building of such an underground road was prohibited by law, and that as the corporation, was, organ-, ized for an illegal purpose, it never had a legal inception and was not, and is not, a legal corporation, and, therefore, has no power to sue.

It is true that chapter 10 of the Laws of 1860 provided that “it sl4a.ll pot Tpe Ipvfn) hereafter to lav, construct or operate any raih road in, upon or along any or either of the streets or avenues of the . city-of New York, wherever such 'railroad may commence or end, ' except under the ' authority and subject to the regulations. and restrictions which the. Legislature may hereafter grant and provide.” (See also Consol. Act [Laws of 1882, chap. 410] § 19.43.)

It is conceded, as it must be, that, although this railroad .was not • exclusively at the time of its incorporation a New York city road, nor in the ordinary meaning of the words a street railroad at all, yet, as the statute affected a railroad in, upon or along some of the streets of the city of New York, wherever it should commence .or end, that if there did not exist legislation subsequent to the act of • 1860 which authorized the construction of this road it could not have been lawfully built “ in, upon or along ” any street in the city of New York. (People ex rel. New Yorlc City. & Westchester R. Co. v. Comrs., 81 App. Div. 237; affd., 176 N. Y. 577; People ex rel. New York, N. H. & H. R. R. Co. v. Comrs., 81 App. Div. 242; affd., 175 N. Y. 516; Matter of New York District R. Co. 107 id. 42; Matter of Washington Street A. & P. R. R. Co., 115 id. 442.)

The prohibition contained in tire act o'f 1860 applied only to so much of the railroad as was to be built' “in, upon or along any or either of the streets or avenues of the city of New Yoik,” and did not affect the right of the railroad corporation to build or operate its road in Queens 'county or under the East river. It could have constructed its road to the exterior bulkhead line of the city of New York on the East river and then under y>ri vate" property in the city Of New York without coming within tins prohibition.'

The Legislature did pass thereafter- the so-called Tunnel Act (Laws of 1880, chap. 582), entitled: “An act. to provide for excavating and tunneling and bridging for transportation purposes within villages and cities, of this State.”- Section 1, of this act provided': “ Whenever according to the route and plans adopted' by any railroad company heretofore or hereafter formed under any special act. of the Legislature of this State, or under chapter one hundred and forty of the laws of-eighteen .hundred and fifty,, entitled: ‘An act to authorize the formation of railroad corporations' and to regulate the same,’ and all acts supplementary thereto or. amendatory thereof for the building of its railroad, it shall, be necessary or proper to build said road, or any part of the same underground, or to tunnel or bridge any river or waters, it shall be lawful for said company to enter upon and acquire title to and use such lands under water, and uplands, except on or along any canals owned by the State, as shall be necessary for purposes herein mentioned, and they shall have the power to construct, erect and secure the necessary foundations and other structures which may be required for the operating of such road or connecting the same with another, and for maintaining the same * * * and provided further, that whenever such road, or any part of the same, is intended to be built within the limits of any city or incorporated village of this State and .to run by means of a tunnel underneath any of the streets, roads or public places thereof, the said company, before building the same underneath any of said streets, roads or public places, shall obtain the consent of the owners of one-lialf in value of • the property bounded on the line * * * and of the proper authorities having control of said streets, roads or public places. * *

• The appellants claim that this act was unconstitutional. In Matter of New York District R. Co. (42 Hun, 621; 107 N. Y. 42) it appeared that the New York District Railway Company had been incorporated under the act of 1850 for the purpose of constructing a tunnel railroad wholly within the then city of New York, and having failed to secure the consents of either the local authorities of that city or of the owners of the property abutting on the streets through which it proposed to build its road, applied to the General Term of the Supreme Court for the appointment of commissioners, whose report, confirmed by the General Term, was, by the terms of the act of 1880, made a substitute • for both the consents of the local authorities and of the property owners. It was held that so much of said act as substituted the favorable determination of the commissioners, when confirmed by the General Term, for the consent of both the local authorities and the property owners, was unconstitutional. Mr. Justice Barrett, in writing the opinion of the General Term, said: “ Having thus concluded that the act of 1880, in the particulars discussed, is unconstitutional, I do not think that the petitioner’s case is within the principle that when part of an act is constitutional and: part unconstitutional, that part which is valid should be upheld, provided it is separable from that which is invalid.' This principle would enable the petitioner to..proceed Under the act up to the point where an application, for the / appointment of. commissioners is essential. It may obtain file con- ’' sent of the local' authorities and of the requisite number of jiro.perty. owners. These provisions are valid.and separable from what follows. But when an application for the appointment of commissioners becomes necessary, the petitioner must take the provision on that head as it is. The court cannot sever the effect which the ac’t gives ■■ to the confirmation of the commissioners’ judgment. We cannot say '.that there shall be a constitutional effect when the act declares that there shall be an unconstitutional one. * * * The act" does 'not substitute the confirmation of the commissioners’ judgment for. the consent either of the local authorities or of the property owndrs, but ■ for that of both.” And the Court of Appeals, Judge Finch writing for a unanimous court, expressed the same views. He said he could not see his way clear to adopt the' conclusion that only so much of the act of 1880 was invalid as made the order of the court con-' " firming the report of the commissioners stand for the consent of the' authorities and that the order might be granted and stand for the • consent of the property owners alone, and concluded, “it is not, the case of two independent provisions, one of which may be rejected . ■ without affecting the remainder of the act, for we cannot lessen the effect of the order without maiming the orderfitself and its statutory ." character. Yery possibly, the ctet may stand, as ah authority for the construction of an underground street railway upon the condition-of the assent of the city authorities and the half of abutting . / values,, and rejecting all the provisions for.the. appointment of commissioners, whose order shall be a substitute. Further than that We ■ do not deem it our duty to go.”

This is a clear recognition of that principle of statutory construe, ■ tión as stated by Judge Cooley (Const. Lim. [7th ed.] 246): “ Where,therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void, also' unless all ' the provisions are connécted in subject-matter, depending on each-: other, operating together for the same purpose, or otherwise so 'corny : nected together in meaning that it cannot be presumed .the Legislature would have passed the one without the other.’’

The constitutional provision is contained in article 3, section 18, as follows: “ Do.law shall authorize the construction or operation of a street railroad except upon the "condition that the consent of the owners of one-half in value of the property bounded on and the consent also ofithe local authorities having the control of that portion of a street or highway- upon which it is proposed to construct or operate such railroad be first obtained. * * * ”

This provision of the Constitution is complete in itself. Recognizing the serious effect of a street railroad upon adjacent property, and also upon the city, by the conferring of what from its nature must be an exclusive franchise, it prohibited such construction without the consent of one-half of the owners of property and the local authorities. What was intended to be obtained and what was regarded as essential was the consent of the public authorities and of private persons interested. Realizing, however, that a great public improvement might be blocked or frustrated by selfish private interests, it provided in the alternative that for the consent of the necessary number of property owners should be that of commissioners appointed by the court when confirmed by the court.

It seems to be quite apparent that an improper provision providing a substitute for the consent of the local authorities can be stricken- from the act as unconstitutional without in any way affecting the remainder of its provisions to which can be applied the constitutional provisions of consent. •

It seems to me, therefore, that in 1887, when this corporation was formed under the act of 1850 and the acts amendatory thereof and supplementary thereto, there was valid and existing law under and in conformity with which it had a right to construct and operate the road contemplated by it, and, therefore, that it was then a legal corporation organized for legal purposes.

On the twenty-third of December the board of aldermen of the city of New York passed, and on the . 31st of December, 1890,. the mayor approved, an ordinance assenting to the construction of a double-track railroad by the New York and Long Island Railroad Company in, by and through a tunnel beneath the surface of Forty-second Street, from its easterly end to a point therein between Tenth and Eleventh Avenues, in said city, with such connections, branches, turnouts, sidings and switches as may be requisite and necessary, in accordance with the plans and profiles of such railroad heretofore deposited with this board, or such modification thereof as shall be' approved by the Commissioner of Public Works of such City.” The ordinance also provided that the company shall pay annually to ■ the city of New York' three per centum of its,gross earnings or receipts from transportation of persons and property, on its railroad within said city; such payment to be exclusive of all taxes levied by and payable to the city of New York on the real or personal property, capital stock or income of said company.”

The Legislature, in the general scheme of codification and revision of the statutes, passed the Railroad Law (Laws of 1890, chap. 565), which became a lav/ June 7, 1890, to take effect, however, May 1, 1891.' Section 16 of that act embodied the provisions of the Tunnel Act of 1880 and corrected the unconstitutional feature passed upon in the. District Railway Co. Case (supra). This section, as thus passed, provided that when according to the route and p>lan adopted by any railroad corporation hereafter incorporated for the building of its road, * * * ” etc., thus making the provisions applicable only to corporations thereafter incorporated.

This provision could not have impaired the validity of the consent granted to plaintiff by the city of New York in December, 1890, for section 181 of the act expressly provides that no repeal by it of any prior law specified in the schedule annexed, which included the Tunnel Act of 1880, should “ affect or impair any * * * right accruing, accrued or acquired * * * prior to May first,eighteen hundred and ninety-one.” Further, the mistake in the language of the act of 1890 was corrected by chapter 702 of the Laws of 1892, which specifically, amended section 16 of the Railroad Law so as to read : “ When according to the route and plan for the building of its road adopted by any railroad corporation, including corporations organized under chapter one hundred and forty .of the laws of eighteen. hundred, and fifty, and the acts amendatory thereof and supplementary thereto, it shall be necessary or proper to build it or any part of it underground or to tunnel * * * any river or waters * * *.” This provision was necessarily retroactive, for the act of 1850 had been repealed by the Railroad Law of 1890, and, furthermore, the obvious purpose of the act in this regard was to make section 16 of the act of 1890 conform to the. provisions of the act of 1880 which it was in tented to re-enact in the General Laws.'

The consent of the local authorities of the city of New York was, therefore, authorized by law at the time it was given by the ordinance alluded to. The consent of the local authorities of .the city of Long Island City was given by ordinances passed by the board of aldermen on the twentieth of October and approved by the mayor on the 27th of October, 1891, and subsequently the plaintiff duly obtained the necessary consents of the owners of the property bounded on the streets of its proposed route both in New York and Long Island cities: i

The appellant contends that the consents of the local authorities were ineffectual because the route consented to in said ordinances is not the route expressed in the certificate of incorporation. The act of 1850 (§ 1) provided that the certificate should state the places from which and to which the road is to be constructed or maintained and operated. In my opinion the word places ” in the act was merely for the purpose of fixing the termini by naming the towns, villages or cities from and to which the road should run, and that the certificate having stated that the road was to commence in Long Island City, Queens county, arid extend to New York city, New York county, the rest of the description of the termini and route was shrplusage, unnecessary to the validity of the ¿ertificate and unimportant in fixing the actual route of construction. The statutes requiring the consents of - the property owners and of the local authorities required those consents to be obtained before construction. After the local authorities of the city of New York had given, their assent to the construction upon a prescribed route the board of directors, by a vote of two-thirds thereof, resolved to alter and change the route and profile of its map in the then city and county of New York so as to conform to the route authorized by the aforesaid ordinance of said city, and on' August 13, 1891, it duly made and filed the certificate of such change in the clerk’s office of said county. This, in accordance with section 13 of chapter 565 of the Laws of 1890, providing as follows: “ Every domestic railroad corporation may, by a vote of two-thirds of all its directors, alter or change the route or any part of the route of its road or its termini, or locate such route or any part thereof, or its termini, in a county adjoining any county named in its certificate of incorporation, if it shall appear to them that the' line can "be improved thereby, upon making and filing in the clerk’s office of the proper county, a survey, map and certificate of such alteration or change; * * * but neither terminus can be changed, under this section, to any other county than one adjoining that in which it was previously located. * * * Any railroad corporation may by a vote of its directors change the grade’of any part of; its road, except in the city of Buffalo, in such manner as it may deem' necessary to avoid accidents and to facilitate the use of such road. * * * Mo portion of the track pf any railroad, as described in. its certificate of incorporation, shall be abandoned under this section.” It also duly filed resolutions and maps required- in Long Island City.

Subsequently and in 1905, the directors, pursuant to the provisions of the same section, took proceedings to change the gradé cf its road in each of the'boroughs of Manhattan and Queens, with the formal approval of the presidents of these boroughs, • and the requisite maps, profiles and certificates of the alteration of such lines were filed in the clerk’s, office of each of the said counties.

The appellants claim that the provisions of the Cantor Act (Laws of 1886,' chap. 642), providing that the local authorities cannot give their consent to the construction, maintenance,. use, operation or extension of a street railroad except upon the condition that the right, franchise and privilege of using such street, road, avenue, park or public place shall be sold at auction to the bidder who will agree to give the largest percentage per annum of the gross receipts of said company or corporation to the city, apply, and that as concededly no such condition was attached to the consents of the local authorities of Long Island and Mew York cities, the said consents were illegal, void and of no effect. The Cantor Act ivas, repealed by chapter 565 of the Laws of 1890, but analogous provisions were re-enacted in section's 91, 92 and 93 of said act, where they appear in article 4 under the heading, Street' Surface Railroads.”

Section 90 of the act (as amd. by Laws of 1892, chap. 676; Laws of 1893, chap. 434, and Laws of 1895, chap. 933), provides: “The pro visions of this article shall apply to" every corporation which under the provisions thereof or of any other law has constructed or shall construct or operate or has been or shall be organized to construct or operate a street surface railroad * * * for public use in the conveyance of persons and property for compensation, upon and along' any street, avenue, road, highway or private property, in any city, town or village, or in any two or more civil divisions of the State, and every such corporation must comply with the provisions of this" article.”

Whatever else this road maybe, it is not a street surface railroad. It is an underground tunnel road, a large portion of its route being beneath the East river, and it having been required to purchase a considerable amount of private property. It does not seem to come within the language nor within the intent of the statute referred to^

The appellants claim that the plaintiff has forfeited its rights by lapse of time. By amendment to the Railroad Law of 1850, made by chapter 775 of the Laws of 1867, it was provided that the corporate existence and powers of the company should cease if it should not within five years after the filing of its articles of association begin the construction of its road and expend thereon ten per cent of its capital, or should not finish its road and put it in operation within ten years from said time.

The articles of association were filed on the 30th of July, 1887; the company entered into a contract for the construction of its road in June, 1890; work was begun thereunder; and by July 30, 1892, upwards of ten per cent of the capital had been expended. The time for completion had been extended by chapters 700 of the Laws of 1895; 647 of the Laws of 1899; 617 of the Laws of 1901; 487 of the Laws of 1902; 597 of the Laws of 1903, to January 1, 1907. As this case was commenced in February, 1906, and tried in June of the same year, the time limit for completion had not expired.

The further claim is made that the plaintiff never obtained the consent of- the department of docks to cross a 300-foot strip of land under water which was granted to the city pursuant to chapter 137 of the Laws of 1870, as amended by chapter 574 of the Laws of 1871.

Subdivision 10 of section 99 of chapter 137 of the Laws of 1870, as amended bv section 6 of chapter 574 of the Laws of 1871, provided that “The Commissioners of the Land Office are hereby authorized to convey by proper instruments in writing, necessary for the- purpose, all the property, right, title and "interest of the People of the State of New York in and to the land under water used and taken by the said board for the construction of wharves, docks, piers, . bulkheads, basins and slips under this act, whenever said Commissioners may be required by said board "to make such conveyance' to the ■ mayor, aldermen and commonalty of the city of New York.”

The. board of commissioners of the department of docks did require in writing the Land Commissioners to convey, and a "patent was issued September 28, 1871, of “ all the property, right, title and interest of the People of the State of New York in the land covered by water lying' within and westerly of an exterior line * * * .beginning at the intersection of the west line of the west pier of the Staten Island Ferry, East River, . * * * thence around Corlaer’s Hook to foot of Grand street, three hundred feet outside of the pier-head line established by * * * chapter 763 . * * *, Laws 1857, * * . * and parallel therewith, until said line intersects the prolongation of the south line of East Sixty-fifth street * * ■*,’ which includes the locus, in quo.

On January 5, 1891, a patent was issued giving and. granting unto the New York and Long Island Railroad Company; its. sticces-' sors and assigns, a right of way ninety-nine feet in width and fifty'feet in height within which to construct a-tunnel for the.use and operation • of the above-named- parties’ railroad beneath the waters of the East river “ upon and along the route of said railroad between the city of New York and Hunter’s Point in Long Island City, * * together with all"and singular the rights, heredita-" menta.and appurtenances to the same belonging or in any wise "appertaining.”

On the 28th of June, 1905, the plaintiff obtained permission from the War Department for the construction of its tunnel and to sink two vertical shafts on the southerly end of Blackwell’s Island or Man of War reef, and to erect there necessary staging'not exceeding 100 feet in width and éOO feet in length, and on July 8, 1905, upon payment of $5,000, obtained from the. Land Office of the State of New York permission to sink said shafts on Man of War reef. The corporation counsel advised the Attorney-General upon said application to the Land Office that “ so far as the City of New York is concerned, there is no objection to the issuance by the Commissioners of the Land Office of a permit to sink a shaft as requested by said Railroad Company.?’ So that it appears that at various times since the organization of this company and the inception of its work it has received recognition and consents from the National and State governments, from the local authorities of Long Island City and New York city, and from one-half of the property owners abutting upon its line. Notwithstanding thesé facts, and the investment of capital and the expenditure of large sums.of money in the prosecution of the enterprise so recognized and consented to, the city now claims that by reason of the grant in 1871 of the 300-foot strip of land under water there is an absolute bar to the right of the company to connect its line under the East river with its tunnel in the borough of Manhattan, and that no power is lodged anywhere in any city board or authorities to permit it. Carried to its logical conclusions, this contention, if sound, isolates the island of Manhattan absolutely, from New Jersey and from Long Island by way of underground approach, and affects all the tunnels finished, building or proposed. A grant to the city to facilitate commerce, to develop its resources and encourage the solution of its transportation problems, made in 1871, is to create a far worse obstacle than the rivers which surround the city, for they may be bridged — although it would seem, if the city’s position is right, that even abutments and piers for bridges could not be placed upon the land included within this grant — and deny to the public for all time any development along the great lines of tunne improvement which lias marked the progressive efforts of the last decade to reduce the isolation of the city and cheapen the ways of approach to it.

Such a construction is not to be adopted unless it is the only one possible. The act of 1871 empowered the Commissioners of the Land Office to convey to the city the interest of the People in and to land under water used and taken by the dock boárd for the construction • of wharves, docks, piers, bulkheads, basins and slips under this act.”

The grant conveys unto the Mayor, Aldermen and Commonalty ° of the City of New York, all the property, right, title and interest of the Peojile of this State in and to the land under water,” etc. Subdivision 2 of section 99 of chapter 137 of the Laws of 1870; as amended by section 6 of chapter 574 of the Laws of 1871, provides that the department of docks shall have exclusive charge and control of all the wharf property belonging tp the city, including all the wharves;, piers, bulkheads and structures thereon and waters adjacent thereto, and all the slips, basins, docks, water-fronts, lands" under water and structures thereon, and the appurtenances, easements, uses,, reversions and rights belonging thereto, "which are no w owned or possessed by the said corporation, or to which said. corporation is or may become entitled, or which said corporation may acquire under the provisions hereof or otherwise. This control was continued by the Consolidation Act (Laws of 1882, chap. 410, § 711), charter of 1897 (Laws of 1897, chap. 378, § 818), and the revised charter (Laws of 1901, chapter 466, § 818, as amd. by Laws of 1904, chap. 741).

Title is in the- city; jurisdiction to regulate and control .in the dock department for the purpose for which such jurisdiction is vested, namely, promotion and regulation of the commerce of the port ;■ and no use that the plaintiff will make of the .property conveyed to the city of New York by this grant can interfere with the use of the property for the promotion and regulation of commerce. As to whether the consent of the board of aldermen heretofore given is sufficient authority for the construction of this tunnel through this narrow strip of land under water at a depth of seventy-five feet below high water, need not now be determined. That consent was given By the governing board of New York city. The city held the title to the property in its corporate capacity, and so far as the property was not needed for docks, basins or slips,, it seems the city has the same rights over it as over any other of its land. If it purchase land for a court house or a police station, and in time such structure was not needed upon? that site, the land would still be held by the city in its proprietary capacity and subject to its disposal. The block on Fifth avenue between Fortieth and Forty-second streets, formerly the site of a reservoir, has been recently appropriated for another public use, namely, a public library.

Chapter 789 of the Laws of 1895, authorizing the construction of the new East River bridge, provided in section 4, “ The said commissioners are also hereby authorized to acquire so much of the land under water, or otherwise, of the East river as may be necessary for the construction of the piers and towers of the bridge hereby authorized to be constructed, * * * and the Commissioners of the Land Office of the State of New York are hereby authorized to convey to said cities such land under water that may be necessary for tlie construction of said bridge as may still remain the property of the State.”

By chapter 338 of the Laws of 1892, the East River Gas Company of Long Island City was empowered “ to lay and maintain * * * conductors, mains and pipes under and across the East river and across any intervening land belonging to the city of New York or to private persons,” and also “ to acquire by condemnation or purchase such real property, public or private, or right, interest or easement therein, for the laying and maintaining of its mains, pipes and conductors as may be necessary in the exercise of the powers hereby conferred.” In pursuance of that authority, the said company was engaged in constructing a tunnel between the foot of One Hundred and Tenth street, Manhattan, to Astoria, L. L, and, therefore, through lands under water conveyed to the city by the State under the patent hereinbefore referred to. It instituted condemnation proceedings to secure easements and rights of way against the city and the State of New York, and the report of said commissioners was before this court and was confirmed in Matter of East River Gas Co. (119 App. Div. 350). The said tunnel, although at an average depth below tide water of 208 feet, upon the city’s contention here, is as much an invasion of the city’s rights as the tunnel in the case at bar, which is 15 feet below tide water. No such question was raised and the report of the commissioners and their award for the easements granted were confirmed.

. The contention of the city that the grant of additional property and rights to it, instead of facilitating the growth and expansion of its commercial and • transportation facilities has been to contract them within adamantine bands which no 'power can pierce is so unreasonable as to demonstrate its Unsoundness.

For the purposes of this suit it is unnecessary to decide where the power is lodged. The permits at bar were not revoked because the permission of the dock department had not been granted to •pierce this strip of land under water. We have seen that the corporation was duly organized and legally existing, that it had the necessary permits to enter upon the construction of its tunnel, that when issued the said permits were issued in accordance with law, and that their revocation was arbitrary and based upon no violation of the rules and regulations governing the subject.

Some of the questions that were here raised, and some others that might be suggested, do not .properly belong in this suit. If the company is a trespasser or if it has forfeited its franchise by matters arising since the commencement of this action and which are not before us, there are appropriate remedies. We have to deal with what is properly before us, that is, the attempted revocation of the permits which this action was brought to restrain.

The judgment appealed from should be affirmed, with costs.

Patterson, P. J., Ingraham, Laughlin and Houghton, JJ., concurred.

Judgment affirmed, with costs. 
      
       Sic.
     
      
       Amd. by Laws of 1892, chap. 676, and Laws of 1897, chap. 235.— [Rep.
     
      
       These sections have been amended several times.— [Rep.
     
      
       Amd. by Laws of 1896, chap. 612.— [Rep.
     