People ex rel. New York Underground Railway Co. v. Newton

Majority

p. 584

The People ex rel. The New York Underground Railway Company, App’lt, v. John Newton, Com’r of Public Works, et al., Resp’ts.

(New York Superior Court,

General Term,

Filed December 1, 1890.)

Headnote

Mandamus—Permit to construct underground railroad.

The right of relator to construct its road is not so free from doubt as to entitle it to a mandamus to compel the granting of a permit for its construction.

Appeal from a final order made by the special term, after a verdict, upon a trial of an issue of fact joined upon an alternative writ of mandamus. The alternative writ directed the commissioner of public works to return why he should not be commanded

p. 585

to grant his permit to relator to construct its railroad underground throughout the length of Lafayette place, and why he should not also be commanded to grant his permit for the construction of the same railroad under the streets upon a line described, beginning at City Hall and ending at Forty-fifth street.

The return to the writ, among other things, set forth that the railroad company had filed five several maps therein described, whereby its road, was located ; that the company did not control sufficient means to enable it to build its railroad, and had not suf ficient capital or credit; that it was not the intention of the company, in good faith, to construct and operate a railroad on the line mentioned in the writ; that the company did not begin the construction of its railroad, nor spend ten per c ent. of its capital thereon, nor finish it within the time limited by Laws of 1867, chap. 775 ; that the attorney general had brought an action in the supreme court to dissolve the relator.

The jury having found certain facts under the direction of the court, the special term, by final order, denied the mandamus as to both permits, upon the grounds: First, that relator is forbidden by chap. 582 of the Laws of 1880 from building its railroad until it has obtained the consent of the owners of one-half in value of the property bordered on the line, and of the proper authorities having control of said streets, roads or public places. Second, because relator has not proved that it is its intention, in good faith, to construct, maintain and operate the railroad on the line proposed, and that it has or controls sufficient pecuniary means to perform the work; that the route is not defined with sufficient precision, and that the relator should have filed a map by which its route is more particularly defined, and' by which it is determined and fixed whether it is so located as to be within the streets named, or east or west thereof, and at what points its route is to intersect the streets.

Henry D. Sedgwick, for app’lt; William H Glar/c, for resp’ts.

At the close of the trial of this case the relator applied to the trial judge for judgment in its favor.

This motion was founded on the alternative writ of mandamus theretofore granted, on the return and supplemental return thereto and on the findings of fact.

The trial judge denied the application of the relator and closed his opinion thus:

“ Upon the whole case the conclusión is inevitable that the right of the relator to the relief demanded is so doubtful that the application for a writ should be denied. The defendants are therefore entitled to a final order or judgment denying the application and dismissing the alternative writ, with costs.”

After a careful examination of the findings, together with the briefs of the respective counsel on this appeal and of the authorities cited by them, I am convinced that the conclusion arrived at by the learned trial judge is in all respects correct.

It is the indisputable rule of law that a peremptory writ of

p. 586

mandamus should never be granted unless in a case where its purpose is to give effect to a clear legal right. People ex rel. Mygatt v. Supervisors, etc., 11 N. Y., 563 ; People ex rel. Perkins v. Hawkins, 46 id., 9; People ex rel. Martin v. Brown, 55 id., 191.

In the case at bar the right which the relator seeks to enforce is not only not free from doubt, but the weight of reason and authority is against it.

The project which the relator in this case seeks to promote by the aid of a writ of mandamus is one which threatens the city of Rew York with serious disturbance and widespread inconvenience, with results of doubtful advantage.

The occasion demands on the part of the court great circumspection and caution, and thus the dictates of a wise forbearance unite with the principles of law in opposition to the relator’s demand.

Ro reason is apparent why the rights of the relator should not be ascertained and asserted by regular action at law and no urgent necessity is shown for a resort to the sudden and peremptory interposition by mandamus.

The order and adjudication of the trial judge are in all things affirmed for the reasons set forth in his written opinion, the relator to pay the respondent’s costs of this appeal

Sedgwick, Gh. J., concurs.