Brooklyn, Queens County & Suburban Railroad v. City of New York

Plaintiff’s rights to be valued were its property and franchises in the plank road and tollgates in Jamaica avenue from Pennsylvania avenue, Brooklyn, to Grand street, Jamaica, as of August 16, 1897. It asks this because of the concession purporting to relieve it from obeying section 98 of the former Railroad Law,* which concession proved to be void, valueless and *36wholly ineffective, after the consolidation of the city of New York with the county of Queens. Such consolidation had been enacted May 4, 1897 (Laws of 1897, chap. 378), to take effect January 1, 1898. Plaintiff’s new franchise upon Jamaica avenue, granted when the Legislature had enacted consolidation, carried with it a privilege of the use of the avenue with no corresponding obligation to repair its pavement. The value of such dispensation from obeying the Railroad Law it now estimates at $237,147.60. This capitalized value of its unlawful dispensation from obeying the statute has been equated with the value of its prior rights surrendered. Here is a double error; one item of the new grant is made to measure the whole surrendered rights. Further, an illegal concession, naturally valuable in proportion to its disregard of public law, is taken to gauge and weigh the value of plaintiff’s original franchise and property. In a different form, plaintiff would thus get the very fruits of what has been adjudged void because illegal.

Without attempting to determine whether the action may be maintained upon any theory other than that adopted on this first trial, we send back the case for a new trial to allow plaintiff to proceed as advised.

The judgment is, therefore, reversed, and the findings of fact made (except those setting forth the introductory history of these transactions) are severally reversed, with the conclusions of law, and a new trial granted, costs of this appeal to abide the final award of costs.

Thomas, Mills and Putnam, JJ., concurred; Rich, J., read for modification and affirmance; Jenks, P. J., hot voting.

I dissent, and, except for a modification of the judgment to which I believe the defendant to be entitled, I would vote to affirm upon the opinions of the learned justice at Special Term. The agreement made it obligatory upon the plaintiff’s predecessor, and consequently upon it, to repair that portion of the avenue between its tracks or elsewhere, and restore the surface of the road as nearly as practicable to its former state of usefulness, as promptly as practicable, in all cases where it should “ open, tear up, excavate or in any manner interfere *37with the surface of such road for the purpose of relaying or repairing its tracks or appurtenances or otherwise.” The judgment restrains the city from beginning or prosecuting an action for reimbursement for repairing the avenue, even although such repairs were made necessary by the act of the plaintiff .in tearing up the street for the purpose of relaying or repairing its tracks; and I think it should be modified by adding to the 1st paragraph the following: Unless repairs are made necessary by the act of the plaintiff in opening, tearing up, or in any manner interfering with the surface of said avenue for the purpose of relaying or repairing its tracks or appurtenances, or otherwise, and have been made by the defendant after demand upon the plaintiff to perform- its agreement by repairing and restoring the surface of the street so excavated, torn up or interfered with, as nearly as practicable to its former state of usefulness, and its refusal or omission so to do, thus securing to the city its rights under said agreement. I, therefore, vote to modify the judgment accordingly., and as so modified to affirm, without costs to either party in this court.

Judgment reversed, and the findings of fact made (except those setting forth the introductory history of the transactions) are severally reversed, with the conclusions of law, and a new trial granted, costs of this appeal to abide the final award of costs. Order to be settled on notice.