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People ex rel. Postal Telegraph Cable Co. v. Hudson River Tel. Co.

19 Abb. N. Cas. 466 Court N. Y. Supreme Court, Albany Special Term ; English

Delivered by Parker, J.

Contents

Majority

p. 466
PEOPLE ex rel. POSTAL TELEGRAPH CABLE CO. v. HUDSON RIVER TEL. CO.
N. Y. Supreme Court, Albany Special Term ;
May 1887.

Headnote

1. Mandamus to telephone company to allow me of instrument.] A telephone company, incorporated for the purpose of transmitting) messages by telephone, is a public servant and cannot so use the invention as to withhold from one citizen the use which it accords to another ; and it may be compelled by mandamus to place one of its telephones in the relator’s office for use, on compliance with its usual terms and reasonable regulations.[1]
2. Telephone company; transmission of messages for competitor.] Neither the general rules of law, nor the statute (L. 1848, c. 265,
p. 467
§ 11; 2 R. S. 7th ed. 1719), require a telephone company to receive and transmit over its own line messages taken by a rival company for transmission in the course of its regular business.
3. The same; reasonable regulations.] A regulation, therefore, of a telephone company, by which a subscriber is required as a condition of having an instrument for use, to agree that the instrument shall not be used for any part of the work of calling, transmitting or delivering any message, in respect of which any toll has been or is to be paid to any party other than the telephone company, is reasonable and valid.
4. The same; use of telephone in other business.] A general messenger business, although carried on by a telephone company at its regular offices, being a distinct business, and not essential to the conduct of its system of transmitting messages by telephone, for which purpose it was incorporiitcd, is not entitled to protection from rivals desiring to use its telephones for their own messenger business; and a regulation, therefore, which prohibits a subscriber from using the telephone for calling messengers except from its own offices, is unreasonable and void.
Motion for mandamus.
The material facts appear in the opinion.
Nathaniel O. Moak (Martin D. Conway, attorney) for the relator.
I. Defendant being engaged in business of a public nature was bound to furnish a telephone, to be used in the usual manner, to all persons or corporations applying and complying with its proper rules and regulations.
“A railroad company being a common carrier is bound to receive and carry the goods of all persons alike, without injurious discrimination as to terms and rates. It must receive and carry for express companies the articles known as express matter, without discrimination in favor of itself or any other express company. If the railroad .company engages in the business of express carriage itself, it must d<^ so on terms of perfect equality with all other express carriers.” Southern Express v. Memphis, etc. R. R. Co., 2 McCrary Circ. Ct. 570, where the charter of the railroad
p. 468
contained a provision that “ the said company should have the exclusive right of transportation or conveyance of persons, goods, merchandise or produce over said railroad by them to be constructed.” The railroad company was conducting the express business and refused, after having done so for several years, to carry the express company’s matter. The latter brought suit to restrain the railroad from i'efusing to carry such matter, “ on payment by complainant of reasonable compensation therefor.”
The court held that the charter provision did not authorize the company, though it was itself conducting an express business, to refuse to carry any proper' matter offered for transportation by an express company.
See also Sandford v. R. R. 24 Penn. St. 378 ; New England, etc. v. Maine Cent., 57 Maine, 188, 194-5.
In McCoy v. Cincinnati, etc. (11 Am. L. Rec. 267) it was held that “ a railroad company is bound to transport over its road and deliver to all stockyards at a"certain point-reached by its line all live stock consigned, which shippers desire to consign to them, upon equal terms, and in like manner ; and it cannot bind itself to perform this duty for one to the exclusion of another and competing yard.”
In Hays v. Penn. R. R. ( 12 Fed. Rep. 309 ; s. c., 22 Am. Law Reg. N. S. 88) it was held that “ a railroad, though owned by a corporation, is, in a qualified sense, a public highway, constructed for public uses, and everybody constituting! part of the public, for whose benefit it was authorized, is entitled to an equal and impartial participation in the use of the facilities it is capable of affording. A discrimination in the rates of freight between the same points, resting solely upon the amount of freight offered by the respective shippers, is unreasonable and unjust.” j A gas company is bound to furnish gas at the same rates, to all consumers who apply and are ready and willing to pay therefor. Shepard v. Milwaukee, 6 Wis. 539 ; People ex rel. Kennedy v. Manhattan Gas Co., 45 Barb. 136 , Gaslight Co. v. Colliday, 25 Md. 1 . See cases collected, note 30 Eng. Rep. 571-2.
p. 469
In Friedman v. Gold & Stock Telegraph Co. ( 32 Hun, 4 ), a suit brought to restrain the removal of two instruments in plaintiff’s place of business, it was held that a public corporation should make no distinction in respect to persons who wish to partake of the privileges which it was created to furnish, and owes the duty impartially to grant to all, who comply with its rules, the privileges furnished.
In Smith v. Gold & Stock Telegraph Co. ( 42 Hun, 454 ), plaintiff brought suit to restrain the removal of a “ ticker,” or reporting instrument, maintained and operated by the defendant, and from doing or failing to do any act which would in any way interfere with the receipt by plaintiff of the quotations of the New York Stock Exchange.” The court (pp. 455-6) said : “ It has been settled for hundreds of years that an innkeeper is bound to receive the guest who applies for accomodations. So is it well settled that a common carrier'must receive and transport goods offered him for that purpose impartially and without discrimination between parties applying. These obligations do not rest on contract, but on the ground that when one is engaged in a business, public in its nature, he must, if public policy requires, serve the public impartially. The occasions for the application of this familiar principle are- by no means diminished by the formation of corporations which carry on a great part of the business of the country. And in applying these rules to a corporation, the charter of the corporation is not solely to be consulted in arriving at the measure of its obligations to the public. When the charter provides that a corporation shall engage in some specified public occupation, no doubt a reference thereto will be an easy way to establish its obligations to perform such service. But we do not accede to the doctrine that when engaged in a business concerning the performance of which its charter is silent, a corporation is freed from the obligations which ordinarily attach to a natural person engaging in such occupation. Had defendants in. the present action answered that collecting and distributing
p. 470
commercial intelligence being foreign to the objects for which they are incorporated, they had in consequence abandoned that branch of their business and withdrawn their ‘tickers’ from all offices except the plaintiffs, we should not hold that they could be compelled to carry on the business for his benefit. But so long as collecting and supplying quotations is carried on by them, as it is conceded to be at present, they should render equal and impartial service to those who comply with reasonable regulations.”
In State ex rel. American Union Telegraph Co. v. Bell Telephone Co. ( 11 Cent. Law J. 359 ), the relator applied for a mandamus compelling the defendant to place a telephone in its office. ¡Respondent filed its return “ alleging that it had acquired the right to use the telephone under a license granted by the American Telephone Company, the owner of the patent,-by whose terms it was provided, 1. That the respondent’s "patrons should not use the telephone for “ transmitting messages for which any toll is paid to any one but the respondent, nor for transmitting market quotations, or news for sale or publication; ” 2. That the respondent should not connect any of its offices with any telegraph company’s office or line, and that no' telegraph company should be allowed to become a subscriber. The court (Thayeb, J.), ruled that the second clause, if enforced as valid, would compel the respondent to discriminate against a class of individuals or corporations,—to withhold facilties for the transaction of business from one class of citizens which it accords to others. This was contrary to law and public policy. A public servant cannot avoid the performance of any part of the duty it owes to the entire public,-by any contract or obligation which it may enter into, even with the patentee of an invention. If this were not so, such corporations might readily avoid the performance of any public duty that became inconvenient or burdensome and it would become possible to discriminate at pleasure, either against individuals or
p. 471
classes. This conclusion did not deprive tin invento!' of any of the privileges intended to be secured to him by letters-patent. lie may grant an exclusive or a restricted license. But such conditions which it may contain will be inoperative if they go beyond the limit of the governmental grant and seek to compel the licensee to disregard a public duty. The court, therefore, awarded a peremptory writ of mandamus, compelling the respondent to place a telephone in the relator’s office, on the same terms that it supplied instruments to other subscribers.
In Louisville Transfer Co. v. Am. Dist Tel. Co. (24 Alb). L. J. 283-4), it was held: “That the employment of a telephone company is public, and such a company is bound to serve the public without discrimination. The plaintiffs were proprietors of public omnibuses and carriages, and the defendants were a telephone company and also proprietors of public carriages. The defendants were restrained from removing their telephones from the plaintiffs’ offices, and from refusing to transact the plaintiffs’ telephone business pursuant to a contract ■ between the parties. The court, Edwaeds, Chancellor, said: ‘ That the real contention between the plaintiffs and defendants is confined to their carriage and coupe services; defendant insisting that as against plaintiff, a rival in that business, it has the right to a monopoly in the use of its own telephone methods of communicating and receiving orders for coupes ; that a mere rival in one branch of its business cannot force it to afford it the facilties which it has provided for another branch of its business. Upon the facts appearing upon the petition and affidavits of plaintiff, it is the opinion of the court that defendant is engaged in two distinct employments—one in operating a telephone exchange, and the other in operating a carriage or coupe service. Plaintiff and defendant are nut rivals in the former business, and as to that part of defendant’s business, it occupies the same position toward plaintiff as it does toward the rest of the public ; that defendant is a quasi public servant, and as such is bound to serve the
p. 472
general public, including plaintiff, on reasonable terms, with impartiality; that defendant is governed by the principles of .the law of common carriers. See Bennett v. Dutton, 10 N. H. 481 ; New England Express Co. v. Maine Central R. R. Co., 57 Me. 188 ; S. C., 2 Am. Rep. 31 ; Sanford v. Railroad Co., 24 Penn. St. 378 ; and MacDuffie v. Railroad, 52 N. H. 447 ; S. C., 13 Am. Rep. 72 ; Munn v. Illinois, 4 Otto, 113. The principles announced in an opinion by Judge Thayek, in American Union Telegraph Co. v. Bell Telephone Co,, should determine this .controversy. The move fact that defendant may possess dual powers, and is operating or carrying on two distinct kinds of business, cannot exempt it from the general rule goveriug such corporations, with reference to the general public; and to deteaniue the rights of the plaintiff, defendant must be considered as a telephone company and as a transfer company. See Claxton’s Admr. v. Lexington & Big Sandy R. R. Co., 13 Bush. 638 . The law must adapt itself to the new subjects that arc brought within the rango of judicial action. And courts must reason by analogy from things that are settled, in order to establish principles to govern things that are unsettled. (4 Am. L. Reg. [N. S.], 193). The rule that defendant is bound to serve all the public alike, under like circumstances, is the one applied by the court in this case, and plaintiff is a part of the public, and defendant, as to its telephonic business, is a distinct person from itself as a transfer company, so far as the rights of others are to be determined. The rights of plaintiff do not depend upon contracts, but the general principles before stated. Defendant had a right to terminate its contract with plaintiff, but as it holds out as the servant of the public, it must act with perfect impartiality toward its customers.”
In the Bell Telephone Company v. State ex rel. Baltimore & Ohio Tel. Co. (7 East. Rep. 672 ; 35 Alb. L. J. 4), the facts were that “ the Baltimore & Ohio Telegraph Co. applied to the Bell Telephone Company of Philadelphia—both corporations chartered under the general Penn
p. 473
sylvania corporation act of 1874—Jora telephone instrument and telephone connection at its Philadelphia office, and offered to compensate in the usual rates paid by others. The telephone company refused to comply with the request, •whereupon the telegraph company applied for a mandamus. The telephone company resisted upon the grounds that it occupied merely the station of a licensee of the telephone instruments, etc., they belonging- to a Massachusetts corporation, and that, by the terms of its contract under which it received its license, it was not allowed to rent the use of its telephone appliances and facilities to persons transmitting news, messages, etc., for compensation in competition with a certain corporation, ‘to wit,’ the Western Union Telegraph Co. Held, that the telephone company could not thus shield itself from the performance of its duty to serve the public impartially' and without discrimination.
The cases were reviewed at length by the court below (7 East. Rep. pp. 674-7) and its conclusion approved by the supreme court (p. 679).
In State ex rel. American Union Telegraph Co. v. Bell Telephone Co. ( 36 Ohio St. 296 ), it was held that “each company operating a line or system of telephones in this State is required to receive dispatches from and for telegraph and other companies without discrimination. A contract between the telephone company and the owner of telephone instruments to the effect, that in the use of such instruments by the company, discrimination shall be made as between telegraph companies, is void as against public policy as declared by the statute.”
See the doctrine fully discussed in Jordan v. Overseers of Dayton ( 4 Ohio, 294 ) and Patterson v. Kentucky ( 97 U. S. 501 ). The doctrine of these cases may be stated thus: the right, to enjoy a new and useful invention may be secured to the inventor and protected by national authority against all interference ; but the use of tangible property which comes into existence by the application of the discovery is not beyond the control of State legislation, simply
p. 474
because the patentee acquires a monopoly in his discovery. “ The sole operation of the statute is to enable him to prevent others from using the products of his labors without his ■consent; but his own right of using it is not enlarged or , affected.” The property of an inventor in a patent machine, like all other property, remains subject to the paramount claims of society, and in the manner of its use may be controlled and regulated by State laws when the public welfare requires it.
II. Mandamus is a proper remedy. State ex rel. Am. Union v. Bell Telephone, 11 Cent. L. J. 359 ; People v. Manhattan, etc., 45 Barb. 136 ; People v. N. Y. Cent., 23 Hun, 543 , 546, 555 ; Bell Telephone v. Baltimore & Ohio Tel., 7 East Rep. 672 ; 35 Alb. L. J. 4; Atwater v. Delaware & Lackawanna R. R., 4 East Rep. 191-2 ; Scofield v. Railway, 43 Ohio St. 571 ; 54 Am. Rep. 846 ; People v. Rochester, etc., 76 N. Y. 294 , 299-300 ; People v. Albany, etc., 24 N. Y. 261 . The damages are too uncertain and too difficult of ascertainment for a suit at law to afford an adequate or complete remedy. Morey v. Metropolitan Gaslight, 38 Super. Ct. (J. & S.) 185, 188-190; Smith v. Gold & Stock, 42 Hun, 456 . “ Private persons -may, without the intervention of the government law-officer, move for a man"damus to enforce a public duty not due to the government as such.” Union Pacific v. Hall, 91 U. S. 343 , 355, and numerous authorities cited.
So mandamus lies to compel a railroad company to build a fence between its line and that of an adjoining owner (Queen v. Trustees, 1 Q. B. 860; Moses on Mandamus, 155 ; People v. Rochester, etc., 14 Hun, 371 ; aff’d 76 N. Y. 294 .)
D. Cady Herrick, for the defendant.
I. A peremptory "mandamus will not issue except in a case of clear and unquestionable legal right (People ex rel. Slavin v. Wendell, 71 N. Y. 171 ).
II. The defendant is itself a licensee, holding its right
p. 475
to use the telephone under strict limitations. The patentee has a right to limit the use of the telephone (Seymour v. McCormick, 16 How. [U. S.] 480-9 ; Bloomer v. McQuewen, 14 How. [U. S.] 530-49; Adams v. Burk, 17 Wall. [U. S.] 453). No statute can compel the licensee to exercise any greater right than he has lawfully acquired. It cannot compel him to trespass upon the reserved rights of the licensor; it cannot compel him to confer a right he does not himself possess (American Rapid Telegraph Co. v. Connecticut Telephone Co., 49 Conn. 352 ; S. C., 44 Am. Rep. 237 ). There cannot be such a dedication to public use in a patented article of this kind as to cause the patentee to lose control over it, and subject it to tlio use of any and every one who applies for it. Its only value to the patentee or to any one is by having a large number of persons use it, but by thus putting it to the only practicable use it is capable of, the owner of the patent does not lose control over it and subject himself to all the obligations of a common carrier ; if that were so his patent would be no protection to him at all. The reasoning of the case of Munn v. Illinois, 94 U. S. 113 , cannot apply to a patented article. That ease arose out-of State legislation regulating warehouse charges, and the court re stated the common law doctrine as to private property devoted to public use'as follows:—“when the owner of property devotes it to a use in which the public has an interest, he in effect grants”to the public an interest in such use and must to the extent of that interest submit to be controlled by the public, for the common good, so long as he maintains the use. He may withdraw his grant by discontinuing the use.” This rule cannot apply to a patented article like the one in question; because, first: permitting a large number of people to use is not granting it to the public; second : because the method of protecting mentioned is not available, because to discontinue its public use is to practically destroy it. It is not an invention that can be made use of in private; it is for the purpose of enabling -many people to communicate with each other.
p. 476
III. The relator has no right to the use of the defendant’s property to enable it to compete with the defendant, or to interfere with the defendant’s business of collecting messages.
An inn-beeper is not obliged to admit and entertain one engaged in soliciting his customers for another inn (Jencks v. Coleman, 2 Sumner, 221). A carrier may carry on a business not inconsistent with that of a common carrier, and may exclude one who attempts to carry on the same business (Barry v. O. B. H. Steamboat Co., 67 N. Y. 301 ). The defendant has a right to protect itself, to use its license for its own profit. It has a right in connection with the business to engage in getting messages to be taken to telegraph offices, and relator has no right to be placed in a position to interfere with that business (Barry v. O. B. H. Steamboat Co., 67 N. Y. 301 ). The carrying of messages as contemplated by the relator will interfere with defendant’s business ; where now it gets toll on each message it will be deprived of it. It has a right to limit the subscriber to his owirindividual use (Shepard v. Gold & Stock Tel. Co., 38 Hun, 338 ).

The relator is engaged in the transmission of messages by telegraph ; the defendant, in the transmission of human speech by means of the telephone. In addition, both relator and defendant carry on a general messenger business in the city of Albany, and each are duly organized under and by virtue of statutes of this State.

By the moving papers it appears that the relator demanded of the defendant that one of its telephones be placed in .the office of The Postal Telegraph Cable Company, and at the same time offered to pay any sum required for the privilege of having and using such telephone, and further promised to “comply with all the rules and regulations, regulating and controlling all persons, corporations and companies having or using said telephone,” and that the defendant refused, and still refuses, to comply with such demand.

p. 477
Thereupon the relator moved the court fora, peremptory mandamus directing the defendant, on payment to it, by relator, of its usual charges and compliance with its proper regulations, to place one of its telephones in relator’s office.

The owner of a patent has the right to determine whether or not any use.shall be made of his invention, and, if . any, what such use shall be. When however he determines upon its use his legal duty to the public requires that all persons shall, in respect to it, be treated alike, without, injurious discrimination as to rates or conditions. A common carrier is bound to carry all articles within the line of its business, for all persons upon the terms usually imposed (Bank v. Adams Express Co. 1 Flippin [S. C.] 212). When a railroad company establishes commutation rates for a given locality it lias no right to refuse to sell a commutation ticket to a particular individual of such locality (Atwater v. Delaware, Lackawanna R. R., 4 East. Rep. 186). A gas company must furnish gas at the' same rates to all consumers who apply and are ready and willing to pay therefor (Shepard v. Milwaukee, 6 Wis. 539 ; People ex rel. Kennedy v. Manhattan Gas Co., 45 Barb. 136 ). And a telephone company is not permitted to withhold facilities for the transaction of business from one class "of citizens which it accords to others (State ex rel. American U. T. Co. v. Bell T. Co., 11 Cent. L. J. 359).

The authorities cited establish the principle that a public servant, as the defendant is, cannot so use the invention protected by the government, as to withhold from one citizen the advantages which it accords to another; and it follows that the relator in this case on compliance with the usual terms, and reasonable regulations of the defendant, is entitled to have mandamus issue directing the placing of one of its telephones in relator’s office.

. The defendant’s papers contain a copy of the agreement which.it requires its subscribers to sign before giving to them a telephone for use, such agreement containing the rules and regulations, which the defendant has determined must form

p. 478
a condition precedent to the placing or using oí' one of its telephones.

Upon the argument, relator’s counsel contended that a portion thereof was unreasonable, and that to comply therewith Would substantially deprive his client from receiving any benefit to its business by the use of the telephone.

The clauses in the agreement to which, objection was 1 'made wore : First, “ They are not to be used for .... any part of the work of collecting, transmitting, or delivering any message in respect of which -any toll' has been -or is to be paid to any party other, than the Exchange.[3] Second. ¡Nor for calling messengers except from the Central Offioe.”

As to the first: Both parties are engaged in the attempt to extend their business to the utmost possible limit. They are alik,e interested in securing as many customers as possible'for their respective lines, and to a considerable extent they are competitors in the same territory for tlie business of transmitting messages.

¡¡Slow, while the rule is well settled that a common carrier must serve the public impartially, still it must be borne in mind that its duty is to the public, and not to other and competing common candors. One common carrier cannot demand, as a right, that it be permitted to use a rival common carrier’s property for the benefit of its own business-(Express Cases, 117 U. S. 1 ; Jencks v. Coleman, 2 Sumner, 221; Barry v. O. B. H. Steamboat Co., 67 N. Y. 301 ).

The relator in this case, however, contends that the statute, under which the defendant-was incorporated, makes it the duty of the defendant to permit such use of its telephone as the relator’s business requires.

The statute, among other things, provides that “ it shall be the duty of the owner or the association owning any telegraph line doing business within this State, to receive dispatches from and for other telegraph lines and associations,

p. 479
and from and for any individual, and on payment of their usual charges for individuals, for transmitting dispatches, as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith.”[3] ,

It is.clear thai. the provision quoted makes it the duty of the defendant to transmit over its wires, any and all messages which the - relator may desire to have transmitted, on payment of their usual charges to individuals. It seems equally clear that it was not intended to and does not, authorize the relator to transmit its own messages over defendant’s wires, on payment of the merely nominal sum required of its ordinary subscribers.

Such a rule would result unjustly to the defendant, as it would enable the relator to enter into competition with defendant in the transmission of messages over its own wires. With equal propriety it could demand that it be connected with the wires of the Western Union Telegraph Company, on payment of a proper charge, and that then it he permitted to use in its own way, and at its own convenience, the wires and property of its competitor for its business.

Such a construction as the relator contends for is not in accordance with either the letter or spirit of the statute. What the statute commands of corporations doing business in this State is, that they shall, send any message presented by another telegraph company, for tlyit purpose, on payment of the proper and usual charges. Should defendant -.refuse at any time to send a message presented by the relator for that purpose, the law affords an adequate remedy for the violation of the statute. No' claim is made that the defendant has ever -refused to send messages for the relator, and the only question in respect to the transmission of messages in controversy here is, Can the relator demand the right' to transmit them according to its own pleasure % Neither the rules established by the courts, nor the statute

p. 480
referred to justify such a holding, and in that respect, therefore, the rules and regulations of 0the defendant seem to be reasonable and proper.

The objection that so much of defendant’s regulations as prevents the use of the telephone by a subscriber for the purpose of calling messengers except from the Central office, is unreasonable, seems to me to be well taken. The defend-' ant urges that the messenger business as conducted by it is ¡profitable, and for that reason it is desirable that it should be retained as free from competition-as possible ; and in aid of its position invokes the rule as established by the courts, that it owes no such duty to its rival as the permission to use its property" for the purpose of a competing business, would constitute. The rule cannot be questioned, but the •application is faulty. The messenger business, although /carried on by the same company and at the same offices, is nevertheless a distinct and separate business, and in no wise "essential to the conduct of the defendant’s system of transmitting messages by telephone, for which purpose it was incorporated. To extend the rule protecting its business from rivals, so as to include any other business in which it might see fit to engage, could result in great injustice to the public. A livery stable, provision store, meat market, and other classes of -business "could be added in the course of time, and by amending their rules so as to include each new business in the samepmmncr as the messenger service is now attempted to be protected, a monopoly could be created at the expense of tradesmen and merchants, and to the detriment of the public generally.

In Louisville Transfer Co. v. Am. Dist. Tel. Co. (24 Alb. L. J. 283-4), both parties were engaged in the carriage and conpé service, and the defendant insisted upon the right to a monopoly in the use of its own telephone methods of communicating and receiving orders for coupés. The court held otherwise, and granted an injunction restraining defendant "from removing the telephone, and from refusing to transact plaintiff’s business. The decision of the court in

p. 481
that case Is applicable to the question here involved, and its p/easoning is approved.

It follows : First. That the relator is entitled to a mandamus directing and commanding the defendant to place a telephone in its office on compliance with defendant’s rules and regulations, and payment by it of defendant’s proper charges;

Second. That so much of defendant’s regulations as provide that the telephone shall not be nsed ior calling messengers except from the Central Office,” are unreasonable, and need not ho acceded to by the relator.

Third. As it was stated upon the argument that a review of the decision was intended, an application for a stay under section 2989 (Code Civ. Pro.) will be enteráis w-b

Order to be settled on four days’ notice by either party.[3]

* The court ott notice and hearing settled the order to be cntcr.ed -is follows; It is ordered that a peremptory mandamus in the usual form issue out of and under the seal of this court to the said defendant, the Hudson River Telephone Company, commanding and requiring it on payment to it by the relator, the Postal Telegraph Cable Company, of its usual and proper charges, and on compliance with its proper rules and regulations, to place one of its telephone instruments, with the usual and proper wires and connections, in the principal oL'icc of said Postal Telegraph Cable Company, at No. 46 State street, in the city of Albany, and to allow said Postal Telegraph Cable Company a proper and the usual and customary use of said telephone instrument, wires and connections. It is further ordered and determined that so much of the regulations of the Hudson River Telephone Company as prevent the relator from making the usual and ordinary use of the telephone, except for the transmission of messages, for which toll has been or is to be paid, are ¡unreasonable, and need not be acceded to by the relator. It is further ordered that the relator, the Postal Telegraph Cable Company be allowed, and recover of the defendant, the Hudson River Telephone Company, as ailoived by section 20SO of the Code of Civil Procedure, fifty dollars costs as upon a motion. It is further ordered that after three months’ use of said telephone *482 by relator, the defendant may apply oñ eight days’ notice to the court for a settlement of what shall bo a reasonable compensation for the use of said telephone on papers to be served. If the parties differ as to what contract the defendant may require from the relator, either party may apply to the court on eight days’ notice to settle the terms thereof. The defendant may have a stay of thirty days of any proceedings under this order.

Footnotes

  1. * The telephone company.
  2. * L. 1845, c. 265, § 11, as amend, by L. 1855, c. 559; same stat. 2 R. S. (7 ed.) 1719.

Cases cited