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People ex rel. Brooklyn Union Gas Co. v. Littleton

96 N.Y.S. 444 Court N.Y. App. Div. Decision date 1906-01-12 English

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p. 444
(110 App. Div. 728)
PEOPLE ex rel. BROOKLYN UNION GAS CO. v. LITTLETON, President of Borough of Brooklyn, et al.
(Supreme Court, Appellate Division, Second Department.
January 12, 1906.)

Headnote

Gas—Franchises of Gas Company.
The common council of a city, having the power to confer a franchise' on a gas lighting corporation, by passing resolutions contemplating and providing for execution of contracts with a gas company for lighting, certain territory of the city gives the consent requisite to confer a franchise on the company.
Appeal from Special Term, Kings County.
Mandamus by the people of the state of New York, on the relation of the Brooklyn Union Gas Company, against Martin W. Littleton, as. president of the borough of Brooklyn and others. From an order granting a peremptory writ commanding defendants to issue and deliver to relator permits to open Flatbuslx avenue in the Thirty-Second Ward of the borough of Brooklyn for the purpose of connecting certain gas mains, defendants appeal.
Affirmed.
Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, and RICH, JJ.
James D. Bell, for appellants.
William N. Dylcman, for respondent.

To sustain the order which this appeal brings up for review it is not necessary to assert the broad doctrine that a franchise to light the streets of a city extends with the enlargement of the city so as to embrace territory not within its boundaries when the-franchise was originally granted. That doctrine finds support in some of the language in the case of the St. Louis Gas Light Co. v. The City of St. Louis, 46 Mo. 121 , although there was an element of estoppel in that case sufficient of itself to sustain the conclusion reached. We should hesitate to affirm this order, however, if its adoption were necessary to uphold the position of the relator in the present case.

The question presented by the appeal is whether the Brooklyn Union Gas Company has acquired a franchise to supply gas to the territory which formerly constituted the town of Flatlands, and subsequently became the Thirty-Second Ward of the city of Brooklyn, and is now included within the limits of the City of New York. It appears that in 1897, before the original Greater New York Charter (chapter 378, p. 1, of the Laws of 1897) took effect, the common council of the city of Brooklyn duly adopted resolutions contemplating and providing for the execution of contracts with the Brooklyn Union Gas Company for the lighting of territory in the said Thirty-Second Ward. At that time the common council of Brooklyn, like the common council of New York, was vested with the power to give the consent requisite to confer a franchise upon a gas-lighting corporation. Ghee v. Northern Union Gas Co., 158 N. Y. 510 , 516, 53 N. E. 692 . No particular form in which such consent must be given was prescribed by law. People ex rel. N. Y. & R. Gas Co. v. Cromwell, 89 App. Div. 291 , 294, 85 N. Y. Supp. 878 . We think that the action of the Brooklyn common.

p. 445
council, in passing the resolutions to which reference has been made, may fairly be regarded as the giving of the required consent; and in this view the action of the court at Special Term, in granting the peremptory writ of mandamus, was clearly correct. Any other interpretation of the resolutions would make them ineffective and meaningless, and would attribute to the common council an intention of putting the relator to trouble and expense for the benefit of the people of the city, and; at the same time, denying to it any possible return for its labor,, material, and expenditure.

Order affirmed, with $10 costs and disbursements.

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