
    The Mayor, etc., of New York, App’lt, v. The New York & Harlem Railroad Co., Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1892.)
    
    Bailboad—Street—Laws 1872, chap. 825—Paving.
    Defendant, at various times, acquired the right to lay its tracks in streets of the city below Seventy-ninth street, on condition that it should pave the street about its tracks in some cases, and that it should grade in others. In 1872 an act was passed by the legislature authorizing and directing it to extend its road on Madison avenue above Seventy-ninth street as far as the avenue might be opened. The act provided that it should have the same rights and privileges as under former grants and laws, and also provided for the appointment of commissioners to determine the amount to be paid for the rights and privileges thereby granted. Held, that the act imposed no duty upon defendant to pave between its tracks on that portion of the road.
    Motioh for new trial on exceptions ordered to be heard in the first instance "at the general term.
    
      E. H. Hawke, Jr., for motion ; H. H. Anderson, opposed.
   Vah Brunt, P. J.

We have searched in vain in this record to find any ground upon which the plaintiffs can predicate a recovery.

This action was brought to recover the cost of paving a portion of Madison avenue between One hundred and twenty-fifth and One hundred and thirty-first streets adjoining and between tracks used and occupied by the defendant in the operation of a railroad along Madison avenue at that point

It appears that the defendant was incorporated by a special act passed by the legislature in 1831; and under this act the defendant was given power to construct a single or double track railroad in certain parts of the city of New York, but not without the permission of he mayor, aldermen and commonalty of the city of New York.

Under various statutes and ordinances of the common council prior to 1858 the defendant acquired the right to lay its tracks in certain streets of the city upon condition of paving the streets in and about its rails in a satisfactory and permanent manner. By an'ordinance of the common council approved in December, 1858j the defendant was authorized to lay a double track from its track at Fourth avenue at Forty-second street, up that street to Madison avenue and up Madison avenue to Seventy-ninth street, or as far as the avenue might from time to time be opened., This ordinance of the common council was ratified by the legislature in 1859. • And in 1872 the legislature passed an act authorizing and requiring the defendant to extend its tracks in Madison avenue from Seventy-ninth to Eighty-sixth street, and from that point northerly as far as the avenue might from time to time be opened. Section 2 provided that in the construction, use "and operation of the tracks and extensions therein authorized the company should have the same rights and privileges which it then possessed and exercised under former grants and laws. Section 3 provided for the appointment by the supreme court of commissioners to appraise and determine the amount of compensation to be paid annually or in a gross sum to the city for the rights and privileges granted by the act.

It is urged upon the part of the plaintiff that as the law of 1872 confers certain rights and privileges upon defendant with respect to the route north of Eighty-sixth street, on Madison avenue, the acceptance by the defendant of such rights and privileges carried with it certain duties and obligations, which although not mentioned in words in the law itself are impliedly contained therein; the most important of which is the obligation to keep the street through which its tracks are laid in a reasonably safe and proper condition. And in support of this proposition we are referred to the case of The Mayor v. Eighth Ave. R. R. Co., 118 N. Y., 389; 29 St. Rep., 17.

The facts in the case cited are, however, entirely different and distinct from those which prevail in the case at bar. By reason of proceedings which took place prior to the year 1874, the privilege had been acquired by the Eighth Avenue Railroad Company to construct its track through Eighth avenue to the Harlem river, and an agreement was entered into by which it had been agreed that the cars run upon said line should be annually licensed by the mayor, and the proprietors of the road should pay for such license such sum as the common council might determine; and in pursuance of this authority the common council fixed the license fee for the cars, and the same was paid by the defendant from 1860, down to and including the year 1874.

•In that year the legislature passed an act requiring the Eighth Avenue Railroad Company to extend its track to the Harlem river, and said act provided that when the extension should be completed and put in operation, the company should use and maintain and operate its railroad during the term for which the company was incorporated, “ subject only to the provisions of the general railroad act of this state with its amendments which are applicable to the railroad and extension hereby granted, except as herein provided.”

The claim for license fees for the cars having been made by the city, it was claimed by the railroad company that by this act they were relieved from such payment, there being no provision in the general railroad act for the payment of such a license fee. And it was held by the court that the acts under which the railroad company had acquired its right to run and the general railroad act should be construed together, and that the condition insisted upon was one which was prescribed in the grant which they originally received, and which they explicitly recognized and performed up to the time of the passage of the act of 1874; and it was because of this express agreement upon the part of the railroad company to pay this license fee that they were held to this liability.

In the case at bar no such feature exists. The right to the extension from Seventy-ninth street northward on Madison avenue sprang into existence with the act of 1872, and no burdens whatever were placed upon the acceptance of this franchise except that they should pay the compensation to be determined by commissioners appointed by the supreme court.

To engraft another obligation upon the part of the defendant would be to impose a burden in addition to that which has been prescribed by the legislature. The defendants were not in the situation of the Eighth Avenue Railroad Company which had agreed to pay these license fees upon their railroad as operated to the Harlem river.

It would seem therefore that there is no basis for the claim advanced against the defendant in the case at bar.

It may be, and probably is the fact that the railroad company was more diligent in looking after its interests than were the legislators who were bound to protect the corporation of the city of New York in legislation of this character. But this omission the courts cannot supply. Without some obligation existing upon the part of the defendant which can be found in the legislation which culminated in their right to build their railroad over the portion of the streets, the subject matter of this legislation, the liability sought to be enforced against them cannot be established.

We are of opinion therefore the exceptions should be overruled and the defendant have judgment upon the verdict, with costs.

Andrews, J., concurs.

O'Brien, J.

The action was brought to recover the cost of paving a portion of Madison avenue between One hundred and twenty-fifth and One hundred and thirty-first streets, adjoining and between tracks used and occupied by the New York & Harlem Railroad Company in the operation of a street railroad along Madison avenue.

The defendant was incorporated by chap. 263 of the Laws of 1831, and it was authorized, upon obtaining the permission of the plaintiff, to use a single or double track railroad i.n certain parts of the city. In 1832 the city consented to the building of defendant’s railroad from Twenty-third street to Prince street by an ordinance which provided for an agreement to be entered into between the city and the railroad company, and which required as a condition upon the part of the company that it should pave the streets in and about the rails “ in a satisfactory and permanent manner and keep the width of twenty feet of said paving, including the rails, in good repair at all times during its continuance in use thereof. ”

In 1851 another agreement was entered into, by which the company was authorized to lay its tracks in Chatham street, under an agreement that provided that the company would grade all th<* portion of the street occupied by the track and four feet on each side thereof and keep the same in good repair at its own expense.

In 1858 another ordinance was passed authorizing an extension of. the road up Forty-second street to Madison avenue, and up Madison avenue to Seventy-ninth street. Nothing is said in this last ordinance with regard to- paving or grading to be done by the company.

In 1872 an act of the legislature authorized the extension from Seventy-ninth street to Harlem river, and provided for compensation to be made for such right and privilege; and, thereafter, upon proceedings had in the supreme court, commissioners were appointed to ascertain the amount of compensation which should be paid by the railroad company, which report was confirmed in 1885.

It is contended by the appellant that chapter 825 of the Laws of 1872, which contains the privilege last referred to, and which authorized the extension of the defendant’s route from Seventy-ninth street to Harlem river, should be so construed as to impose upon the defendant the obligation of paving the streets between its tracks and on each side thereof to the same extent as was imposed by the ordinance and agreement relating to the building of the defendant’s road south of Twenty-third street. It is insisted that when the privilege of extending defendant’s railroad north of Twenty-third street was granted by the legislature by this act, the obligation imposed upon defendant as to paving between its tracks south of Twenty-third street was extended by implication to the tracks north of that point; in other words, that the extension of the privileges carried with it an extension of all liabilities and obligations. It will be noticed, however, that the rights granted to the railroad company from time to time affecting four different sections of its route as at present operated imposéd different duties and obligations. If the argument in regard to all the obligations imposed by ordinance or agreement in reference to tracks south of Twenty-third street are to be extended to all that portion of the route north of Twenty-third street, then not only the obligation of paving, but also of grading and the other-duties imposed, should be included among the obligations to be assumed by the company in respect to its road north of Seventy-ninth street. In other words, the same argument which would require an extension of the obligation to pave north of Seventy-ninth street would also apply to all other obligations imposed by the terms of the ordinances and agreements relating to the route south of Seventy-ninth street.

However liberally we may construe in favor of the public, and strictly against the grantee, the privileges conferred by chapter 825 of -the Laws of 1872, we have been referred to no authority where, in the absence of any ambiguity or obscurity in the terms-of the grant, the court is at liberty to interpolate into the contract made between the state and the railroad company a condition which the legislature itself did not include.

We think it clear from authority that, in order to enforce the claim here made by the city, some specific obligation imposed upon the company, either by its charter or special agreement, or the law, should be pointed out. This the plaintiff has failed to-do. And we think that in construing the act of 1872 and the court proceedings thereunder, it must be held that they ’constituted the grant of a new franchise to the defendant, the compensation for which was fixed by the commissioners, which was the-agreed price to be paid therefor, and that the common council has no power to impose, as a further condition, price or compensation, the obligation that the company shall pay for the paving of the avenue between its tracks.

We have been referred to some cases in which it has been held, that where a corporation uses a highway for its special benefit it. must maintain the same in reasonable repair. These, however, related to railroads operated by steam, and involved an entirely different principle from the one for which the plaintiff here contends, which is, that it is the duty of a street railway to keep the space between its tracks in a reasonably safe condition, although no provision -to that effect is contained in its charter or in any city ordinance, or imposed by legislative act.

This view we do not think can be supported by authority, and we are, therefore, of opinion that the disposition made by the learned trial judge in directing a verdict for the defendant is correct ; and we think, accordingly, that the exceptions should be-overruled and judgment ordered for the defendant, with costs.  