Hudson v. Forty-second Street, Manhattanville & St. Nicholas Avenue Railway Co.

Headnote

Railroads — contract — action by receiver of street railway company to recover rent for use of portion of tracks by another street railway company.

Hudson v. Forty-second St., M. & St. N. Ave. Ry. Co., 208 App. Div. 767 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 6, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The complaint alleged in two separate causes of action the making of the two written agreements between the Central Park Company and the Forty-second Street Company, dated, respectively, June 14, 1886, and May 29, 1889, whereby the Forty-second Street Company was granted the right to use certain portions of the Central

Park Company’s tracks on Tenth avenue and First avenue, in the borough of Manhattan, city of New York; and that the defendant Forty-second Street Company used said tracks between August 6, 1908, and December 23, 1912, and has failed to pay the rental fixed by the said agreement. The amended answer set up separate defenses to each cause of action in the complaint to the effect that no cause of action can be predicated upon the two agreements sued upon because the two agreements were abrogated, canceled and disaffirmed long prior to the period for which the rental is sought and because the horse car tracks which were the sole subject-matter of the agreements were destroyed and removed long prior to August 6, 1908, which is the beginning of the period in question here. The amended answer also set up as a separate defense that the plaintiff’s alleged cause of action was included in the assets and property covered by the mortgage made by the Central Park Company, and which was sold under the decree of foreclosure and sale, and are now owned by the Belt Line Railway Corporation.