Mayor of New York v. New York & H. R.

Van Brunt, P. J. We have searched in vain in this record to find any' ground upon which the plaintiff can predicate a recovery. This action was brought to recover the cost of paving a portion of Madison avenue between" 125th and 135th streets, adjoining and between tracks used and occupied by the defendant in the operation of a railroad along Madison avenue at that point. It appears that the defendant was incorporated by a special act passed' by the legislature in 1831, and under this act the defendant’ was given power to construct a single or double track railroad in certain parts of the city of New York, but not without the permission of the mayor, aldermen, and com-' monalty of the city of New York. Under various statutes and ordinances of the common council prior to 1858, the defendant acquired the right to lay its-tracks in certain streets of the city upon condition of paving the streets in and about its rails in a satisfactory and permanent manner. By an ordinance off the common council approved in December, 1858, the defendant was authorized to lay a double track from its track at Fourth avenue and Forty-Second street, up that street to Madison avenue, and up Madison avenue to Seventy-Ninth street, or as far as the avenue might from time to time be opened. This ordinance of the common council was ratified by the legislature in 1859. And in 1872 the legislature passed an act authorizing and requiring the defendant to extend its tracks in Madison avenue from Seventy-Ninth to Eighty-Sixth street, and from that point northerly as far as the avenue might from time to time be opened. Section 2 provided that in the construction, use, and operation of the tracks and extensions therein authorized the company-should have the same rights and privileges which it then possessed and exercised under former grants and laws. Section 3 provided for the appointment by the supreme court of commissioners to appraise and determine the amount of compensation to be paid annually, or in a gross sum, to the city forth e rights and privileges granted by the act. It is urged upon the part of the plaintiff that, as the law of 1872 confers-certain rights and privileges upon defendant with respect to the route north of Eighty-Sixth street on Madison avenue, the acceptance by the defendant of such rights and privileges carried with it certain duties and obligations, which, although not mentioned in words in the law itself, are impliedly contained therein, the most important of which is the obligation to keep the street-through which its tracks are laid in a reasonably safe and proper condition; and in support of this proposition we are referred to the case of Mayor, etc., v. Eighth Ave. R. Co., 118 N. Y. 389, 23 N. E. Rep. 550. The facts in the case cited are, however, entirely different and distinct from those which prévail in the case at bar. By reason of proceedings which took place prior to* the year 1874, the privilege had been acquired by the Eighth Avenue Railroad Company to construct its track through Eighth avenue to the Harlem river, and an agreement was entered into by which it had been agreed-that the cars-run upon said line should be annually licensed by the mayor, and the proprietors of the road should pay for such license such sum as the common council might determine; and in pursuance of this authority the common council fixed the license fee for the cars, and the same was paid by the defendant from 1860 down to and including the year 1874. In that year the legislature passed an act requiring the Eighth Avenue Railroad Company to extend its track to the-' 69 Harlem river, and said act provided that, when the extension should be completed and put in operation, the company should use and maintain and operate its railroad during the term for which the company was incorporated, “subject only to the provisions of the general railroad act of this state, with its amendments, which are applicable to the railroad and extension hereby granted, except as herein provided.” The claim for license fees for the cars having been made by the city, it was claimed by the railroad company that by this act it w.as relieved from such payment, there being no provision in the general railroad act for the payment of such a license fee. And it was held by the court that the acts under which the railroad company had acquired its right to run and the general railroad act should be construed together, and that the condition insisted upon was one which was prescribed in the grant which it originally received, and which it explicitly recognized and performed up to the time of the passage of the act of 1874, and it was because of this express agreement upon the part of the railroad company to pay this license fee that it was held to this liability. In the case at bar no such feature exists. The right to the extension from Seventy-Ninth street northward on Madison avenue sprang into existence with the act of 1872, and no burdens whatever were placed upon the acceptance of this franchise, except that it should pay the compensation to be determined by commissioners appointed by the supreme court. To ingraft another obligation upon the part of the defendant would be to impose a burden in addition to that which has been prescribed by che legislature. The defendant was not in the situation of the Eighth Avenue Railroad Company, who had agreed to pay these license fees upon its railroad as operated to the Harlem river. It would seem, therefore, that there is no basis for the claim advanced against the defendant in the ease at bar. It may be, and probably is, the fact that the railroad company was more diligent in looking after its interests than were the legislators, who were bound to protect the corporation of the city of New York in legislation of this character. But this omission the courts cannot supply. Without some obligation existing upon the part of the defendant which can be found in the legislation which culminated in its right to build its railroad over the portion of the streets, the subject-matter of this legislation, the liability sought to be enforced against it cannot be established. We are of opinion, therefore, that the exceptions should be overruled, and the defendant have judgment upon the verdict, with costs. Andrews, J., concurs.