Dry Dock, East Broadway & Battery R. R. v. Mayor of New York

Majority

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The Dry Dock, East Broadway and Battery R. R. Co., The Eighth Avenue R. R. Co., The Ninth Avenue R. R. Co., The Sixth Avenue R. R. Co., App’lts, v. The Mayor, Etc., of the City of New York et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed January 23, 1888.)

Headnote

T. Injunction—Action mat be maintained to prevent multiplicity of suits or irreparable disturbances op business by a corporation.

An action may be maintained for an injunction to restrain the commission of unlawful acts which would be productive of a multiplicity of suits or irreparably disturb and derange the business of the plaintiff, but before such a remedy can be granted a clear legal right to it must be presented.

2. Street railroads in the city op Hew York—Rights under Laws 1860, chap. 512, § 4.

The Dry Dock, etc., R. R.- Co. was incorporated by Laws 1860, chap. 512, and by section 4 of that act it was made the duty of the mayor, common counc'l and officers of the city of Hew York to do such acts within their respective departments as might be needful to promote the construction and protect the operation of the railroad, dnd it was further declared that any act or thing done in violation of this act should be inoperative and void. Held, that this requirement was fully satisfied by permitting and protecting the construction of the railroad and its subsequent use and operation, although the city authorities might interfere and prevent the sanding of the tracks.

8. Same—Limits op rights' under Laws 1860, chap. 512, § 2.

It is provided by section 2 of that act that the railroad shall be subject» to such reasonable rules and regulations in respect thereto as the common council of the city of Hew York may, from time to time, by ordinance? prescribe. Held, that this was meant to retain for the common council all] its authority over the streets through which the railroad should be constructed, except the rights created by the charter to usa the streets so far. as that should be necessary for the construction and operation of the rail-" road.

4. Common council op Hew York city—Power in regard to streets— Law's 1882, chap. 410, § 86, subds. 2 and 7.

Held, that this construction of the charter was supported by Laws 1882, ' chap. 410, § 86, subds. 2 and 7, whereby power was given to the common council of the city of Hew York to make ordinances not inconsistent with the laws and constitution of the state to regulate the use of the streets, highways, roads and public places by foot passengers, animals, vehicles, cars and locomotives, and to regulate and prevent the throwing or depositing of ashes, .offal, dirt, etc., in the streets.

5. Same—Extent to grant made by.

The common council granted to these plaintiffs the right to use sand

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upon their railroads, between the first day of November and the first day of April of each year. Held, that this operated as a prohibition from using sand in that manner in either of the other months of the year.

6. Street railroads in the city or New York—Right to injunction.

Held, that the charters of the other plaintiffs were no broader than that of the Dry Dock, etc., R. R Co., and their claim, being derived from their charters, was not capable of being maintained.

Appeal from interlocutory judgments sustaing demurrers to the complaints of each of the several plaintiffs.

John M. Scribner, for app’lts; Francis M. Scott, for resp’ts.

Each of the plaintiffs is a railroad corporation created under the Laws of this state to construct and operate street railroads in the city of New York. They severally claimed the right to sprinkle sand upon their respective railway tracks when the pavement became smooth, or slippery, and might be made more safe for use by the horses drawing the cars, in this manner. They were allowed to use sand upon their tracks, as that might become necessary to provide secure footing for their horses, between the first of November and the first of April in each year, on receiving a permit from the mayor. This right or privilege was secured by an ordinance of the city adopted for that purpose. But what the plaintiffs desired to downs to use sand in like manner upon the tracks during the-other months. But an order had been issued by the police department of the city directing the police officers to prevent the use of sand upon the tracks during these months of the year, and to arrest persons, who might be engaged-in its use during such months.

The plaintiffs commenced these actions to restrain the execution of this order, asserting the right on their part to-use sand during the months not included in the ordinance, tupon a general claim of right to that extent. And in support of their actions it was alleged that the safety of their horses and the speed and control of the cars were dependent upon this use of sand upon the tracks. But the court at the trial of the demurrer to the complaints held other.wise, and that neither of the complaints stated facts sufficient to constitute a cause of action.

There can be no doubt but that an action might be maintained for an injunction to restrain the commission of unlawful acts which would be prod active of a multiplicity of suits or irreparably disturb and derange the business of the plaintiffs. Third Avenue R. R. Co. v. Mayor, 54 N. Y., 159 ; People v. Dwyer, 90 id., 402; Poughkeepsie Gas Light Co. v. Citizens’ Gas Co., 89 id., 493, 497; People v. Canal Board, 55 id., 390.

But before it can be issued, a clear legal right to it must

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be presented on the part of the plaintiff, and the existence of that right is denied in each of these cases. The action in favor of the Dry Dock, East Broadway, etc., presents the grounds upon which this right has been asserted more favorably than either of the other actions, and it may therefore be more appropriately considered for the disposition of the appeals. This company was incorporated by chapter 512 of the Laws of 1860, and by section 4 of the act it was made the duty of the mayor, common council and officers of the city to do such acts within their respective departments as might be needful to promote the construction and protect the operation of the railroad. And it was declared further that any act or thing done in violation of this act should be inoperative and void. " And under this enactment the plaintiff claims to have become invested with the right to use sand in this manner upon its tracks without the liberty or assent of the common council or other officers of the city. But the enactment has not been made in such language as to sustain this position. All that has been required by it is, that the mayor, common council and officers of the city, should promote the construction and protect the operation of the railroad. But this language is fully satisfied by permitting and protecting the construction of the railroad and its subsequent use and operation, and that will be accomplished, although the city authorities may interfere and in this manner prevent the sanding of the track. Preventing that, clearly in no manner prevents the construction or operation of the railroad, as that was provided for in the act.

That prevention violated no provision of the act, for all that it provided for in this respect was the construction, operation and use in the streets of the railroad. And these objects will be attained, although not as completely so, without sanding the tracks, as they will be, by doing so. What the charter designed, was to give .to the company the right to use the streets so far as that might be necessary for the construction of its road and its subsequent use. Beyond that it was designed to subject the company to the control of the common council of the city having the general supervision over the use and management of the streets. This design is clearly evinced by the second section of the act, declaring that the railroad should “be constructed on the most approved plan for the construction of city railroads, and shall be run as often as the convenience of passengers may require, and be subject to such reasonable rules and regulations in respect thereto as the common council of the city of New York may, from time to ordinance was

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designed to retain for the common council all its authority" over the streets through which the railroad should be constructed, except the rights created by the charter to use the streets so far as that should be necessary for the construction and operation of the railroad. Beyond that the entire control had been reserved in this manner to the common council of the city, and that body has exercised its authority by the enactment of the ordinance mentioned in the complaint.

This construction of the charter is further supported by the powers conferred by the legislature upon the common council, which have now been expressed by subdivisions 2 and T _ of section 86 of chapter 410 of the Laws of 1882, consolidating the several statutes relating to the city. By subdivision 2 of this section power has been given to the common council to make ordinances, not inconsistent with the laws and constitution of the state: “To regulate the use of the streets, highways, roads and public places by foot passengers, animals, vehicles, cars and locomotives, and “ To regulate and prevent the throwing or depositing of ashes, offal, dirt, etc., etc., in the streets.” The charter of the company as it has been considered harmpnizes entirely with these subdivisions of section 86 of the consolidation act.

For while it secures to the company the right so to use the streets as they lay down and operate a railroad over them, it still reserves to the common council the power by ordinance to declare the manner in which the streets shall be used by the animals and cars of the company. The authority reserved to the common council is the same as that generally mentioned and included in the second sec tian of the charter of the company. And in this manner it is the common council and not the courts that has been given the authority to prescribe and declare how the streets shall be used by the animals and cars of the company. It is true that the common council would have no authority for prohibiting the use of the streets by the company. The right to use them for the railway and the passage of the cars.of the company has been paramountly secured. But subject to that the common council may regulate the manner in which the streets of the city shall be used by the animals and the cars employed upon the railway. And it is under this authority that the ordinance has been passed and maintained permitting the use of sand upon the railroads between the first day of November and the first day of April of each year. And by its enactment in that form, it operates as a prohibition on "the company for using sand in that manner in either of the other months of the year. Such a prohibition is to be implied from the enactment

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creating the privilege limited in this manner. It is all that the common council deemed it proper to concede. And by making this concession, the ordinance is to be construed as restricting the privilege to the periods of time mentioned in it. And as this power of regulation has been given solely to the common council of the city, it must be exercised by it and not by the courts.

The remedy of the plaintiff is to apply to that body for the liberty which it is the object of its suit to secure.

In the complaints of the other three plaintiffs no special privilege of this nature has been claimed to be derivable from their charters. Their powers are certainly no broader or greater than those of the Dry Dock Company. And as that has not the right without the assent of the common council to sprinkle sand upon its tracks during the months not included in the ordinance, it follows that these companies cannot claim the right.

The case appears to be not one for an injunction for another reason, and that is that it is not at all times that the tracks are required to be sapded, but only when that may become a precautionary act by reason of the pavements being worn so smooth as to prevent a secure footing for the horses used m drawing the cars. When they may become so smooth as to require the use of the sand upon them must be a matter of proof. The fact is one which ordinarily would become a subject of dispute. It might very well be asserted that the track was in the condition when other persons, particularly the officers sought to be restrained, would deny that it was so or that there was either necessity or propriety for using sand upon the tracks. And an injunction could not properly be issued vesting the right to determine such a dispute in the officers of the railroad company. But if it should be issued at all, it would necessarily be required to be expi’essed in such language, for it could not be made dependent upon a reference of the dispute, or the ascertainment of the fact, by any tribunal or body of officers, before the injunction itself should be restraining and operative. To secure the right to do what may prove to be necessary is not the office of an injunction, but of an ordinance of the city declaring what may, or may not, be done in this respect, and prescribing what regulations the railroad company shall observe in using sand upon its tracks. In neither case has the right to an injunction been sustained by the facts disclosed by the complaints, and the judgments should be affirmed, with costs, of one appeal and the disbursements in each of them.