People ex rel. Oneida Telephone Co. v. Central New York Telephone & Telegraph Co.

The defendants, by their demurrer, concede that it was the duty of the defendant company to furnish the relator with a telephone upon'its demand, and tender of the proper payment; that it refused to perform that duty. Counsel for the defendants concedes that the defendant, company is liable to the relator either for

“Every such corporation shall receive despatches from and for other telegraph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by individuals for transmitting despatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith, and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such despatch and entitled to have the same so transmitted.”

Suppose, as the relator’s petition will permit us to do, that the relator has 5 miles of wire in the village of Oneida, and none elsewhere, and that the defendant company not only has the like amount in the same village, but 5,000 miles of wire extending over the whole state; that the defendant company charges an individual $15 per quarter yea-r for installing a telephone in his office, and allowing him to use it to send messages to any place where said defendant’s lines extend. The individual might send not more than one message a. day. If the relator can, for the same price, procure unlimited service for its patrons, it might daily send a thousand messages, and thus compel the said defendant to do the relator’s work, not only for inadequate compensation, but also deprive it of the patrons upon which it depends. The relator could thus make its profits at the said defendant’s expense. Does the statute contemplate this? It does not, in terms, direct one company to install its telephone in its rival’s office. It must receive and transmit its rival’s messages upon payment of the usual charges; but, if that means that it must also furnish its rival with an instrument in the latter’s office, such meaning must be implied, because such is the usual course of business. If the relator, a corporation just starting in business, has this right, it is clear that the damages for withholding it are not susceptible of adequate computation in advance, for it cannot be foretold what its damages will be; and if it is not permitted to enter upon such business successive suits after intervals of time would not be helpful, for its damages would remain conjectural. Therefore it cannot be sáid that it has an adequate remedy at law; that is to say, if the statute has not limited its damages to the penalty. At the common law one common carrier could not demand as of right that it be permitted to use its rival carrier’s property for the benefit of its own business. Express Cases, 117 U. S. 1 , 6 Sup. Ct. 542 , 628; Barney v. Steamboat Co., 67 N. Y. 301 ; People v. Hudson River Tel. Co., 19 Abb. N.

Assuming that it is the duty of the defendant company to render the like service to the relator as to an individual, it is plain that the relator here seeks by mandamus to compel the defendant to render much more than the like service,—it seeks an inequality of advantage under pretense of equality. The difference is not merely in degree, but in substance and result. The case of relator is not within the spirit of the statute, and therefore not within the statute itself. No doubt the defendant company could have made regulations limiting the relator to- its individual business, excluding that of its customers. Shepard v. Telegraph Co., 38 Hun, 338 . But it does not appear to have done so, and whether it is practicable to do so we are not informed. It seems to be clear that the relator’s application does not contemplate such regulations. But assuming that section 103 has changed the common-law rule as to rival companies,, and imposed upon the defendant company the duty to install an instrument in the relator’s office, it has also imposed the penalty for its violation. As, without the statute, neither the duty nor the remedy would exist, the remedy prescribed by the statute is exclusive. Stafford v. Ingersol, 3 Hill, 38 ; Lowry v. Inman, 46 N. Y. 119 . Thus the relator has an adequate remedy at law for all the damages the law allows it. See In re Baldwinsville Telephone Co., 24 Misc. Rep. 221 , 53 N. Y. Supp. 574 . We think mandamus will not lie.

Interlocutory judgment affirmed, with costs. All concur, except PABKEB, P. J., and MEBWIN, J., dissenting.