Nassau Electric Railroad v. White

The plaintiff alleges in its complaint that it is a street-railway company, duly incorporated and authorized to lay and operate its railroad on Ocean avenue, in the Thirty-first ward, formerly Gravesend. The complaint also sets forth that the company obtained the consent of the highway commissioners of Gravesend before the town was taken into the city, and that it obtained the constitutional consent of the property owners. The latter two allegations are denied in the answer in a manner authorized by the Code (§ 500). The company applied to the defendant comissioner of city works for a permit to enable it to proceed with the construction of its tracks on Ocean avenue. The commissioner refused to grant the permit until he was satisfied that a majority of the property owners had given their consent, whereupon the president of the plaintiff, by letter, declined to give the commissionér any information in relation to consents. The complaint (paragraph 6) sets forth that the defendant is commissioner of the department of city works, and as such commissioner has such charge of the streets as is conferred by the charter, and that

I am clear that the plaintiff has mistaken its remedy. When the commissioner refused to issue the permit, the plaintiff should have appled for a mandamus to compel him so to do, and on the hearing of that proceeding, the question would arise whether the commissioner is right or wrong in his contention. It has always been the custom in this city for parties to apply for a permit to the officer who represents the city in the care of streets, whenever such party desired to open the streets. The reason of the custom is that the city, by virtue of the acceptance of its charter, is responsible to travelers for the condition of its streets. This liability is established by a long line of authorities, from Weet v. Village of Brockport, 16 N. Y. 161 , note, and Conrad v. Village of Ithaca, id. 158, down to almost the last volume of the reports of the court of appeals. However, it is not necessary to put my decision on any custom, for the plaintiff’s counsel substantially concedes, by the allegations in the complaint before quoted, that it cannot proceed without a permit, but the contention is that the commissioner unjustly7 refused to grant one. The ordinance of November 24, 1890, also expressly provides that a permit is necessary in order that a railroad company may disturb the streets. Several cases are reported where corporations claiming to be duly incorporated and authorized to use the streets of New York city- have applied for a permit to the commissioners of public works. In the case of People v. Thompson, 98 N. Y. 6 , the lower courts held that the New York & Brooklyn Bridge Company was entitled to the permit, which decision was reversed by the court of appeals. In the case of People, ex rel. Third A. R. R. Co. v. Newton, 112 N. Y. 396 ; 21 St. Rep. 8 , the railroad company claimed to have authority of law to lay a cable road on Third avenue, but the court of appeals held that the commissioner was right in his refusal to issue a permit. The same company, after legislation, obtained its permit. 121 N. Y. 536 ; 31 St. Rep. 693 . Even though a street railway company has the right to construct its tracks, its work is subject to the supervision of the officer of the city who has the care of its streets. Otherwise, the company could take possession of the street, unnecessarily incumber it, and lay its tracks as its officials pleased, irrespective of the rights of the public. It may be claimed that an injunction be issued the commissioner from

Motion for an injunction denied.