
    The People ex rel. The Monticello Telephone Co., Relator, v. The Board of Trustees of the Village of Monticello, Defendant.
    (Supreme Court, Sullivan Trial Term,
    August, 1901.)
    Telephone corporation — How far the discretionary power of village trustees over poles and wires may he controlled by the court —- Motion papers, for a mandamus, which failed to show a relator — • L. 1890, ch. 566, § 103; 1897, ch. 414, § 89, subd. 9; Code C. P., § 1994. v
    Notwithstanding the fact that the Transportation Corporations Law gives a telephone company" a franchise, direct from the Legislature, to use the public streets for constructing and maintaining its lines, the Village Law gives village trustees power to regulate the erection of the poles and the stringing of the wires, and as this latter power involves discretion, the Supreme Court, while able to compel its exercise in a proper case, cannot by mandamus control the particular method of the exercise.
    Where it appeared that village trustees had materially embarrassed or prevented a telephone company in its legal right to use the village streets and had long delayed passing any ordinance in the matter, the court refused to grant the company, in the first instance, a peremptory writ of mandamus requiring the trustees to grant it a permit to erect poles, string wires and conduct business in the village, but gave it leave to renew the motion on other papers if the passage of such an ordinance should be unduly delayed.
    In view of the provisions of Code C. P., § 1994,- that a State writ awarded upon the application of a private person must show that it was issued upon the relation of that person, the defect, in the motion papers of the company, that they are entitled only in the name of “ The People ” and do not name the company as relator or in any manner, is a mere irregulárity which does not dimmish the right to the writ, upon a proper case made, and cannot in such case preclude its subsequent issue iti the form required by the Code.
    Application for a peremptory writ of mandamus.
    John D. Lyon, for relator.
    Charles H. Stage, for defendant.
   Chester, J.

A preliminary objection is made to the granting of this application on the ground that the moving papers are entitled in the name of “ The People ” without a relator.

I think this defect-in the moving papers is unimportant, because no writ has been issued, and if the court allowed a writ to issue upon the application of this company it would only permit it to,issue with the company as relator as required by section 1994 of the Code of Civil Procedure.

The company asks for a peremptory writ requiring the defendant to grant to it a permit to erect poles, string its wires and conduct its business in the village of Monticello according to the terms of its written application presented to the hoard of trustees of such village.

The laws defining the rights of telephone companies and the powers of the hoards of trustees of villages seem reasonably clear. The Transportation Corporations Law (L. 1890, ch. 566, § 102) gives to telephone companies' the right to erect, construct and maintain the necessary fixtures for their lines upon any of the public roads, streets and highways within the State. And this has been held to he a franchise directly from the Legislature to the corporation, to use the public streets for constructing and maintaining its lines. Barhite v. Home Telephone Company, 50 App. Div. 25. But, notwithstanding this, the Village Law (L. 1897, ch. 414, § 89, subd. 9) confers upon boards of trustees of villáges power “ to regulate the erection of telegraph, telephone or electric poles, or the stringing of wires in, over or upon any of the streets or public grounds.” This is a power involving discretion upon the part of the board of trustees and the exercise of this discretion cannot be controlled by mandamus. While the courts can compel the exercise of the power the particular method of its exercise cannot be controlled by mandamus. People ex rel. Harris v. Commissioners, 149 N. Y. 26.

Manifestly neither the court, nor the board of trustees of the village has any right to grant the request of this company to string its wires upon poles belonging to other companies, as appears by the application filed by the company with the board of trustees it has requested the privilege of doing.

It appears' very clearly here by the papers used on this application that the board of trustees have sought to either prohibit entirely or to embarrass the telephone company very materially in its rights to use the streets for the purposes of its company and have delayed passing any regulations for that purpose a long time. It was not unreasonable, however, for the trustees to require the filing with them of a map by the telephone company showing where it desired to locate its lines and poles before passing an ordinance regulating their erection.

I have concluded, after examining the papers presented, to deny this motion for a peremptory writ of mandamus, without costs, and to grant leave for a renewal of the application upon other papers if the passage of such ordinance should be unduly delayed.

' Motion denied, without costs, with leave to renew application upon other papers.  