Mayor of New York v. Eighth Avenue Railroad

Patterson, J.: On the trial of this cause a verdict was directed for the defendant and it was ordered by the court that the exceptions be heard in the first instance at the General Term. The action was brought to recover the cost of paving and regulating so much of the carriageway of Chambers street from Park row to Greenwich street in the city of New York as is included in the space between the tracks of the defendant corporation’s railroad and for a distance of eight feet in width on either side thereof. There is no dispute as to the facts relating to the single question which we conceive to be the determinate one in the case. It is sought to hold the defendant liable upon an alleged contract with the city to pay for certain repairs to the roadway in which the railway tracks are. laid and on which the defendant’s road is operated, when the necessity for making such repairs exists, and this obligation it is claimed results from the terms o*f the instruments or grants which constitute the authority under which the defendant built and now maintains and operates its railway. That part of the railway to which this action relates was not built under an original franchise, but is an extention of the defendant’s road. The original grant or authority to the defendant to construct and operate a railway in the city of New York was derived from a resolution of the common council passed December 3, 1851, by which certain named persons and those associated with them and their successors and assigns were authorized to lay a railroad track on certain streets in the city of New York (not including Chambers street) upon certain terms and conditions, among which was one that they should keep in good repair the space between the track and the space outside the same on either side for at least eight feet in width. Under that resolution the persons [86] named therein, On Or about the 6th of September, Í851, executed an agreement providing that they, their successors and assigns, Would faithfully observe and perform and . keep All the terms and conditions and stipulations therein contained including the one referred to with reference to repairs to the street. On the 13th of December, 1852, another resolution of the common council of the city of New York was passed, which gave to those same persons and their associates and assigns the right to extend their railway along other streets in the city of New York, among them being Chambers street, between Church street and W est Broadway. The defendant, the Eighth Avenue Railroad Company, is the assignee of the persons named in these resolutions, and it has assumed all the covenants and stipulations, terms and conditions upon which the right or franchise to build and operate the róad and' éxténsion Was granted. About the T6th of April, 1889, the commissioner of public works "of the city of New York was authorized and directed to repave the. carriageway of Chambers street, between' Park row and Greenwich street, and accordingly entered into an agreement with a contractor to do that work, and the carriageway, which included the space between the tracks of the defendant’s road and eight feet on either side thereof, was repaved, and the city, by this action, calls upon the defendant to reimburse it for What is substantially claimed to be the defendant’s contribuidve share .of the cost and expenses of that repaving. The . precise question relates to the liability of the defendant .to pay the demand thus made upon it by the city. If any obligation. exists at all it must be by virtue of some contract, express or implied. The improvement was made upon'that part of the defendant’s road which is included in the extension authorized and permit-, ted by the resolution of the common council of 1852. There can be no doubt as to. the obligations of the defendant with reference to street repairs along its main line, but there is nothing in the' resolution of the common council of 1852 which binds those to whom the concession was then made, or their successors or assigns, to the identical terms of the grant made by the resolution of 1851. It is alleged in the complaint in this action that the right to build, maintain and operate the extension was conceded Upon the same terms as those pertaining to the original grant, 'but'there-is nothing in the [87] terms of the resolution authorizing the extension which incorporates in it any of the provisions of the resolution of 1851. There being no stipulation between the parties, nor any provision of law from which an implication of liability can be drawn, it is not for the court to impose upon the defendant an obligation it did not assume. The question raised does not differ from that which was discussed and passed upon in the case of The Mayor v. The N. Y. & Harlem R. R. Co. (46 N. Y. St. Repr. 349), affirmed by the Court of Appeals (139 N. Y. 643), and what was said in that case respecting the distinction between the original grant and the extension, and the latter being upon the same terms and conditions as those of the former, applies here. It is claimed, however, by the" plaintiff that enough appears in the record .of the action of the common council of 1852 to show that the grant of the authority to build the extension of the defendant’s line in Chambers street Was accepted with the knowledge and understanding, on the part of those to whom the concession was made, that the terms of the original grant respecting repairs to the street should be included as one of the conditions upon which the right to' build the extension was granted. It' is sought to sustain that view by reference to another resolution which was passed contemporaneously with that which conferred the right to build the extension and which is said to form part of that resolution. It appears that on December 13, 1852, two resolutions which had been passed by the common council were approved by the mayor. The first is that which contains the authority to the Eighth Avenue Railroad Company to extend its rails, and the second one which provides that the Sixth Avenue Railroad Company upon paying to the Eighth Avenue Railroad Company one-half of the cost of that portion of their road lying between Varick street and West Broadway, and of keeping it in repair from time to time thereafter, and also half of the cost of the repairs from time to time of the extension authorized in the first resolution, shall be at liberty to use and own half of the same and run its cars thereon, etc. The argument is made by the plaintiff that this second resolution of December, construed in connection with the other resolutions conferring authority upon the defendant corporation, shows that the covenants and conditions of the original grant concerning repairs were in the contemplation of [88] the parties at the time the two resolutions of 1852 were passed. It is said, that unless that second resolution means that the Eighth and the Sixth Avenue Railroad Companies are bound to repair, the space between the tracks and eight feet on either; side- thereof, it is devoid of sense; but that is merely begging the question. The subject-matter óf the second resolution of 1852 is the joint use by the Sixth Avenue and the Eighth Avenue- Railroad Companies of .a certain portion of thé Eighth Avenue Railroad’s line, and the terms upon which the Sixth Avenue Railroad Company is permitted to use that portion. The, reimbursement to the Eighth Avenue Railroad Company of one-half of what it paid to construct that portion and of what it might from time to time cost the Eighth Avenue Railroad Company to keep its road in repair, are all the conditions upon which the city granted to the Sixth Avenue Railroad Company the privilege to run its cars over a part of the same line to which it had already conceded rights to the Eighth Avenue Railroad Company. It imposes no obligation upon the Eighth Avenue Railroad Company; it does not provide- for one single act or thing to be done by the Eighth Avenue Railroad Company respecting repairs; it does not compel it to make repairs to the roadway nor the street, and the natural significance of the word “repairs” in that connection relates merely to such repairs as would be required for- the maintenance of the defendant’s road. One-half the cost of construction and one-half the cost of the repairs to keep that construction in condition are the terms upon which the Sixth Avenue Railroad Company acquired the privilege of running its cars over the Eighth avenue" tracks between the streets mentioned. The resolution does not contain either directly or indirectly any reference whatever to keeping the street or the pavement on the street or any portion of that pavement in repair, and even construing all- the resolutions of the common council relating -to the subject together, there can be no implication of such a contract' as the plaintiff seeks to have established in this, action. We are, therefore, of the opinion that the obligation, contained in the resolution of 1851, to keep the carriageway on the line of the defendant’s road in repair, was not made a, condition of the extension, and that the--direction of a veidict for the defendant was right, and [89] that the exceptions of the plaintiff should be overruled and judgment thereon directed for the defendant, with costs. Van Brunt, P. J., Rumsey, Williams and Ingraham, JJ., concurred. ' Exceptions overruled and judgment ordered for the defendant, with costs.