People ex rel. Eastern Parkway Co. v. Kennedy

over this small portion of the track than such as was used upon the entire line. We are clearly of opinion that the appellant has no such power to interfere with the franchise.of the Brooklyn Heights Railroad Company. This company, as the successor to the rights and franchises of the Bushwiclc Railroad Company,, granted by the board of aldermen of the city of Brooklyn in December, 18.70, has the right to construct and operate its lines over Kingston avenue (formerly Hudson avenue), and it has so constructed and operated its lines as fast as the local authorities have thrown the same open to the public use. Eastern parkway, which is a parked street or boulevard, was laid out some years after the granting of the franchise to the Bushwick Railroad. Company, and in 1895 was placed under the control of the park department of the then city of Brooklyn, and is now under the control of the like department of the city of New York. In 1903 the Brooklyn Heights Railroad Company laid its tracks from St. John’s place to the Eastern parkway, intending to continue its lines to Malbone street,, the old city line, to which its original franchise extended; this being necessary in carrying out its agreement with the relator, which had undertaken the work of grading and preparing Kingston avenue for the: purpose, of inducing this extension of the lines. When the Eastern parkway was reached .the railroad company made an application for permission to cross the same, and the permission was granted'; but it was coupled with a condition that “no motor cars nor any other cars or conveyances except those used for express, repairs, construction and conveyance of passengers and material now in ordinary use shall be permitted, and that all cars shall cross the track, singly, except where, an accident has occurred making it impossible for a car to be conveyed singly, the intent being to forever prohibit the use of. trains operated by steam, electricity or any other power.”

The railroad company not unnaturally refused to accept this permit, and the matter was allowed to rest until the present proceeding was instituted. The franchise granted to the Bushwick Railroad Company to construct and operate its lines over Kingston avenue from Fulton street to the city line, coupled with the. actual construction and operation of such line, as fast as the avenue was opened to public use, vested in. that corporation and its: successors the right to continue its. lines across the Eastern parkway, subject, to such

reasonable rules and regulations in respect-to the location of the tracks, etc., as should be prescribed by the local authorities having charge of such parkway. We fail to find in any statute to which our attention is called any prd vision authorizing the. commissioner of parks to modify the right of the Brooklyn Heights Railroad Company to operate its lines in any manner consistent with its charter and the laws of this State. It is tme that under the provisions of section 616 of the revised charter of the city of New York (Laws of 1901, chap. 466) and section 2 of title 16 of the charter of the former city of Brooklyn (Laws of 1888, chap. 583, as amd. by Laws of 1897, chap. 702) the department of parks is given the “ exclusive government, management and control-of-all the parks, squares and public places in the city,” which is now the borough of Brooklyn, including the Eastern parkway, and the said department of parks is given full and exclusive power “ to determine the particular location of any railroad track which is now or may hereafter be placed upon such roads, streets, avenues, circles, concourse, parkways or boulevards, or upon any road, street or avenue under the control of said department, provided, however, that no such railroad track or tracks shall be placed upon any such road, street or avenue, parkway, boulevard, concourse or circle without the consent thereto of the commissioner of parks.” But this must be understood to relate to the matter of determining the location of such tracks, and not to the method of enjoying a franchise granted under legislative authority. That construction of a statute should be avoided which will injuriously affect existing rights, and one given which will harmonize its objects with the preservation and enjoyment of all such rights. (Suburban Rapid Transit Co. v. Mayor, etc., of New York, 128 N. Y. 510 .) The Brooklyn Heights Railroad Company having a vested right to construct its lines to the city limits along Kingston avenue, which right antedated the construction of the Eastern parkway, it must be assumed that the legislation giving control of this parkway to the park department was made subject to the rights which were then in existence, and that it did not confer any authority upon the commissioner of parks to make any restrictions upon the method of operating the street surface railroads which would cross súch parkway. The commissioner, as a condition of his consent, could undoubtedly require any reasonable compliance with his sug

gestions as to the location and construction of the tracks; he might very properly specify the kind of paving which should be laid, and might make suitable regulations in reference to any matters connected with the location or construction of the tracks, but here his discretion ends. He cannot go beyond this and determine how the corporation shall discharge its duties to the public in the operation of its lines; that is a matter wholly outside of the scope of the office of a commissioner of parks, and the consent having been given, coupled with limitations which the commissioner was not authorized to impose, we are of opinion that the mandamus has been properly granted, and that the order appealed from should be affirmed. (See People ex rel. Ziegler v. Collis, 17 App. Div. 448 , 454.)

The order appealed from should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements. .