Page images
PDF
EPUB

Digest.

and Hudson River R. R. Co., ante, 382.)

2. The Long Island Railroad Company was incorporated April 24, 1834 (chap. 178, Laws of 1834), and by virtue of an act of the legislature, passed April 2, 1836 (chap. 94, Laws of 1836), it, on the first day of December, 1836, leased a road belonging to the Brooklyn and Jamaica Railroad Company, a corporation formed under chapter 256 of Laws of 1834. Until the consummation of the proceedings had under and in pursuance of chapter 484 of Laws of 1859, the Brooklyn and Jamaica railroad and its lessee, the Long Island Railroad Company, had a right to operate a railroad by steam over and upon lands, the principal part of which is now Atlantic avenue, in the city of Brooklyn. When the act of 1859 was passed, the defendant, "The Long Island Railroad Company," reached the East river by a tunnel under the surface of Atlantic avenue. The act of 1859 (chap. 484, Laws of 1859) was entitled "An act to provide for the closing of the entrances of the tunnel of the Long Island Railroad Company in the city of Brooklyn, and restoring said street to its proper grade, and for the relinquishment by said company of its right to use steam power within said city." The provisions of this act were substantially carried out.

The

agreement of the commissioners appointed under the act of 1859, providing for the closing of the tunnel and the surrender of the right to use steam upon the avenue, was with the Brooklyn and Jamaica Railroad Company, who, as the lease originally executed by them to the Long Island Railroad had been surrendered, are styled therein "the assignees of the Long Island Railroad Company, within the true meaning and intent of both the said acts,' to wit, the said act of 1859, and another relating to the same sub

[ocr errors]

ject, passed March 23, 1860. The contract required the tunnel to be closed, and the various things done which the law of 1859 enjoined, and the Brooklyn and Jamaica Railroad Company relinquished its right to use steam within the corporation limits of the city of Brooklyn," and agreed that steam power shall not be used or permitted upon its road, or any part thereof, within the limits of the city of Brooklyn," after the happening of an event specified in the agreement. To this contract the Long Island Railroad assented, "so far as it has any right so to do, and so far as it has any interest therein." The compensation which the Brooklyn and Jamaica Railroad Company received under this agreement was $125,000, which was levied upon a district prescribed by the said act of 1859, and which was supposed to be specially benefited by the abandonment of the use of steam power upon Atlantic avenue. On April 5, 1855, the Brooklyn and Jamaica Railroad Company executed to Samuel Willetts, Robert Ray and Alexander Hamilton, Jr., as trustees, a mortgage to secure its bonds to the amount of $100,000. This mortgage covered all its property, including that leased to the Long Island Railroad Company. On the 21st of March, 1872, a decree of sale (in a suit to foreclose this mortgage) was made, such sale to be subject to a certain agreement or release made between the Brooklyn and Jamaica Railroad and the Long Island Railroad Company, dated April, 1860" (it being an agreement between those two companies, and not the one between the Brooklyn and Jamaica Railroad Company and the commissioners appointed under the act of 1859), "and subject also to the provisions of the act of 1859," and subject also to the provisions of a certain other act passed April 16, 1860, entitled "An act authorizing the Brook

[ocr errors]

Digest.

[blocks in formation]

29th day of April, 1872, in pursuance of the act, entitled "An act to authorize the formation of railroad corporations and to regulate the same," passed April 2, 1850, a railroad corporation was formed under the name of "The Atlantic Avenue Railroad Company of Brooklyn." To this corporation, on the 28th day of February, 1874, William Richardson, the purchaser at the foreclosure sale, conveyed the property bought thereat, and which in the deed is described as "all and singular the railroad of the Brooklyn and Jamaica Railroad Company, extending from its commencement at the ferry at the foot of Atlantic street, in the city of Brooklyn, in Kings county, to its termination in the village and town of Jamaica, in the county of Queens, including all its appendages and the depot lots in the village of Bedford, and the right to construct branches to Flushing or Flatbush, as secured to the said The Brooklyn and Jamaica Railroad Company by their act of incorporation.'

On

the 26th of March, 1877, the Atlantic Avenue Railroad Company leased to the Long Island Pailroad Company, "its successors and assigns, all the railroad of the party of the first part, extending from its eastern terminus in the village of Jamaica, westward to the city line of the city of Brooklyn in Atlantic avenue, and thence

[ocr errors]

along said avenue to a point in Atlantic avenue in the city of Brooklyn, 250 feet east of the easterly line of Flatbush avenue, said 250 feet to be measured along a line in the centre of Atlantic avenue," and also sundry other property as is in the lease specially provided. By chapter 187 of the Laws of 1876, it was declared it shall be lawful for the Atlantic Avenue Railroad Company of Brooklyn, and for the Long Island Railroad Com pany, as lessee from the Atlantic Avenue Railroad Company of Brooklyn, of that part of the railroad of said Atlantic Railroad Company which extends from the junction of Atlantic and Flatbush avenues, in the city of Brooklyn, eastwardly along said Atlantic avenue, to the city line, to run cars over said railroad, upon Atlantic avenue, from the city line of Brooklyn to Flatbush avenue, by steam power, subject to such rules and regulations as to rate of speed and public safety "as from time to time the commoa council of the city of Brooklyn may prescribe." Under this law the defendants were, when this suit was commenced, adapting and changing the horse railroad track to that of a steam railway, and are now propelling cars thereon by steam. Against this the plaintiffs ask an injunction, because, as they allege, by the acts closing the Atlantic tunnel, and the agreements thereunder, the defendant, the Long Island Railroad Com. pany, has agreed never to run cars propelled by steam over such route, and that the property was purchased at mortgage foreclosure sale charged with such a prohibition and also because, as is claimed, the act of 1876 is unconstitutional:

Held, first, that the Long Island Railroad Company has not made any agreement or promise obligating itself not to use steam either upon Atlantic avenue or elsewhere.

Digest.

Second. As the decree in the foreclosure suit provided that the sale was subject to the provisions of the agreement between the two companies, and as such agreement only obligated the Brooklyn and Jamaica Railroad Company to the Long Island Railroad Company not to use steam cars upon the avenue, which agreement was for its own benefit, and as it had not bound itself to any one in the same direction, it follows that when the Long Island Railroad Company acquired title to the road way there was no prohibition as to them preventing a legislative license for the use of steam power thereon. The Long Island Railroad Company cannot be bound by the provision in the, mortgage foreclosure decree, because the contract was to and with it, and not by it.

Third. As to the other exceptions and reservations contained in the decree of foreclosure relating to the acts under which the tunnel was closed-nothing therein contained prevented these defendants, or either of them, from acquiring a future right to use steam upon the avenue. surrender of a right existing by its owner is no covenant against a future acquirement thereof, any more than a sale of present interest in any property or business is an agreement against a future repurchase.

The

Fourth. That no contract whatever existed by force of the act of 1859 preventing the state in the future from conferring the right to use steam on Atlantic avenue, Brooklyn, upon the defendants. Nor can one legislature by a law deprive a succeeding one, in a matter of public policy, from changing or altering the enactment.

Fifth. That no agreement has been made either with the people, the city of Brooklyn or the owners of the property in the district taxed under the act of 1859, which will justify the maintenance of this action.

VOL. LX 82

Sixth. That a railroad corporation cannot, by contract, when no statute authorizes it so to do, bind itself to a particular mode of propelling power, regardless of the interests of the people, which may require it to adopt a different

one.

Seventh. The statute (Laws of 1876, chap. 187) under which the defendants claim the right to use steam upon the avenue, is not obnoxious to section 1 of article 14 of the Constitution of the United States, declaring, among other things, that no state can "deprive any person of life, liberty or property without due process of law," nor to section 6 of article 1 of the Constitution of this state, which likewise provides that "no person shall be deprived of life, liberty or property without due process of law."

*

Eighth. That when, as against the owners of the land, the right to operate a railroad has been acquired, the mode of such use, whether by steam or otherwise, is a matter within legislative control, and in regulating such use, no right of property is infringed upon, to which the above cited provisions from the federal and state Constitutions are applicable.

[blocks in formation]

Ninth. That the act (Laws of 1876, chap. 187) is not unconstitutional under section 18 of article 3 of the Constitution, which prohibits the legislature from passing "a private or local bill granting to any corporation, association or individual the right to lay down railroad tracks; or granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever." (The People agt. Long Island Railroad Company, ante, 395.)

[ocr errors]
[ocr errors]

3. The act of 1876 confers "no right to lay down railroad tracks.' The privilege so to do was one already enjoyed by both defendants as already existing railroad corporations. The act gave legis

Digest.

lative permission to use steam as a motive power on railroad tracks already constructed, the right to relay and repair which was an incident to the original grant. Such a legislative permission to an existing corporation is not covered by the above constitutional provision. (Id)

4. Nor do the defendants obtain

under the law an "exclusive privilege" or "franchise." The prohibition is to a grant which in words is exclusive. It may be true that conferring upon A. authority to do an act, may practically prohibit B. from doing the same thing, because the latter may be unwilling to compete with the former; but so long as B. is left free to act, and nothing has been done which, if valid, would enable A. to enjoin B., because he (A.) has an exclusive right, the provision in the Constitution is not violated.

Tenth. That if there is a defect in the title to any of the land occupied by the defendants, such defect does not justify this action, but each owner of the land wrongfully held must seek his remedy by suit brought in his own name.

RECEIVER.

1. A receiver in supplementary proceedings may employ on his behalf the attorney of the party for whose benefit the proceedings are instituted (Overruling Branch agt. Branch, 49 How., 196; and Cumming, Receiver, agt. Edgerton, 9 Bosw., 685). (Baker agt. Van Epps, ante, 79.)

2. The payment of a judgment by the debtor, after the appointment of a receiver in supplementary proceedings, does not ipso facto discharge the receiver. The receiver may have a claim for expenses incurred in the exercise of his authority, which may be required to be paid before the prop

erty held by him can be taken out of his possession. (Crook agt. Findley, ante, 375.)

See CORPORATIONS.

Bliven agt. Peru Steel and Iron
Company, ante, 280.

REFEREE.

1. Where two causes against the same defendants were referred by consent and the referee had heard and determined the first in favor of the plaintiff, a number of questions involved in the second cause being also involved in the first case; on motion by defendants:

2.

Held, that the order of reference should be vacated and a new referee substituted. (Conley agt. Petrie et al., ante, 299.)

In July, 1877, a claim against the estate of a deceased person was, pursuant to the statute, referred to J. L. Angle, Esq., to hear and determine. The trial was commenced on the 4th day of September, 1877, and continued by adjournments until December 22, 1877, when it was suspended without day. On December 20, 1877, the said J. L. Angle was appointed a justice of the supreme court, to fill a vacancy therein, and on December twenty-second he accepted the said office, and entered upon and continued to discharge the duties thereof until the expiration of the term for which he was appointed, viz.: December 31, 1878.

On August 10, 1878, the said J. L. Angle, as referee as aforesaid, made and filed his report in the case. Upon an appeal from an order denying a motion to vacate the report, on the ground that the referee was incompetent to act as such while holding the office of a justice of the, supreme

court:

Held, that the prohibition contained in section 25 of article 6 of the Constitution was absolute and peremptory, and prevented any

Digest.

justice of the supreme court from acting as a referee.

That the facts that the trial of the action had been commenced before he was appointed a justice of the said court, and that he acted without making any charge for his services, did not relieve him from the said prohibition. (Countryman agt. Norton, 21 Hun, 17.)

3. That the provision could not be waived by any stipulation or acts on the part of the defendant. (Id.)

4. That as the referee had since ceased to be a justice of the supreme court, his report should be set aside, and either party should be allowed to proceed with the reference on the evidence and proceedings as they stood on the 22d day of December, 1877. (Id.)

5. Under general rule No. 30, the testimony taken before a referee must be filed with his report, and until this is done the filing is incomplete, and the time within which exceptions to the report must be filed and served does not begin to run. (Pope agt. Perault, 22 Hun, 468.)

6. If the stenographer deliver his notes to the referee to be examined by him and used as the basis of his report, he cannot limit the effect of such delivery, and it is the duty of the referee to file them with his report, even though the fees of the stenographer remain unpaid. (Id.)

7. To sell in action for partition; duty of, as to securities to be taken for the purchase-price; what acts of the beneficiaries amount to a ratification of his act in taking an unauthorized security instead of cash. (See Wiggins agt. Howard, 22 Hun, 126.)

8. When it cannot be ordered without the consent of the parties; the right to order one is not affected

[merged small][ocr errors][merged small][merged small][merged small][merged small]

2

The only effect of the last clause of the said section is to authorize the court to appoint a referee to decide some of the issues, less than the whole, or to report findings upon one or more specific questions of fact.

In no case can the court order the compulsory reference of an action where the trial will not require the examination of a long account or will require the decision of difficult questions of law. (Dane agt. Liverpool, &c., Ins. Co., 21 Hun, 259.)

Action for a breach of the covenants contained in a lease; when it involves the examination of a long account, so as to authorize a compulsory reference thereof; interposition of a counter-claim in such an action does not prevent its reference (Code of Civil Procedure, sec. 974). (See Brooklyn, &c., R. R. Co., 21 Hun, 273.)

3. Upon a reference as to surplus moneys in a foreclosure suit, the referee has authority to inquire as to the validity of conveyances or liens; and conveyances as well as

« PreviousContinue »