Opinion
Argued April 24, 1920
Decided June 1, 1920
William P. Burr, Corporation Counsel ( John F. O'Brien of counsel), for appellant. Harold W. Bissell and Lansing P. Reed for respondent.
Defendant received from the board of rapid transit railroad commissioners of the city of New York, pursuant to authority delegated to it by the state, a certificate to construct and operate its subway under certain streets, including Sixth avenue; also in connection therewith "to construct and maintain exits from the tunnel at the surface of * * * Fourteenth Street near the westerly side of Sixth Avenue, Twenty-third Street near the westerly side of Sixth Avenue, * * * provided that the same shall be constructed in substantial accordance with the drawings or plans submitted to the Board by the said Company." The city authorities consented thereto and the defendant has accepted and performed the conditions of the grant. It constructed such exits with covered shelters known as kiosks, one on the northerly sidewalk and one on the southerly sidewalk of each street, which serve both as exits and entrances to the subway stations below. Some years thereafter both of the streets and the roadways thereof were widened, with the result that the kiosks were left standing within the new lines of the roadway. The controversy arose over the demand of the city that defendant should remove its kiosks from the roadway and relocate them on the new sidewalks at its own expense. The defendant maintained that the location thereof could be changed only with its consent. It was agreed that the city should reconstruct the kiosks and pay the expense in the first instance, leaving the question of who should bear the expense to be determined in this action. The city claims therefor the sum of $27,514.43. On the agreed statement of facts, the Appellate Division gave judgment for the defendant on the ground, as stated in the opinion, that there was a definite contract, a consent irrevocable in its nature, and a location by the public authorities, such as to constitute property in defendant which could not be taken from it without the just compensation required by the Constitution save in reliance upon the police power, and that no delegation of police power, sufficient to authorize the city to compel the relocation at the expense of the defendant was shown. The correct rule is thus suggested that "the state might relocate them in the exercise of the police power, but not the municipality." (CARDOZO, J., in Stern v. Internat. Ry. Co., 220 N.Y. 284, 296.)
The question is as to the regulative power of the local authorities on the facts before us. Were the kiosks, as first located, mere incidents or appurtenances of defendant's franchise which became encroachments when the roadway was widened and which the city might, therefore, order out of the streets under its general power to regulate their use and to preserve the safety and welfare of the people within the city? If so, then the proper city authorities might compel their removal when they became an obstruction to the public use. ( Stern v. Internat. Ry. Co., supra.) But, on the other hand, was their location of the substance of the franchise? Was such location so specific that it became a matter between the state and the defendant? If so, even though a proper regard to the public convenience and safety dictated their removal, the state alone could command the defendant to make the changes or authorize the city to act. ( People ex rel. City of New York v. N.Y. Railways Co., 217 N.Y. 310.)
I think that the latter contention must prevail. The certificate issued by the board of rapid transit railroad commissioners to defendant, by the terms of the statute, became a contract between the city and the defendant on condition that the consent of the local authorities having control of the streets be first obtained. The local authorities could either unqualifiedly approve or disapprove the same, but their approval is free from all limitations other than those contained in the Rapid Transit Act (L. 1891, ch. 4, as amended) or the Constitution.
The city concedes that the defendant's franchise thus acted upon constitutes a contract, but it urges that the original location of the kiosks is not so fixed as to shift the risk of change from the company; that, therefore, defendant should be required, when directed by the municipal authorities, to make such changes therein as public convenience or security from time to time requires, at its own cost and charge. ( Matter of Deering, 93 N.Y. 361.)
This contention might prevail if the right to build kiosks on the sidewalk were so vague and general as to create no right to any fixed location and were made subject to such reasonable regulations in regard thereto as might from time to time be prescribed. This court has, however, recently gone to the extent of holding that the mere practical location of railroad tracks in the streets under the general terms of a franchise precluded the city from changing such location on grounds of public safety and convenience, in the absence of a clear delegation of specific authority, because the right to locate the tracks came from the state. ( People ex rel. City of New York v. N.Y. Railways Co., supra.) One may obtain from the state, with the consent of the city, a right to such an exclusive use of a street as necessarily excludes or limits the power of the municipality thereafter to interfere. The question here is whether the city agreed, by fair inference, as one of the terms of its contract with the defendant, that the latter should not be disturbed in the location of its kiosks. ( New Orleans Gas Light Co. v. Drainage Commission, 197 U.S. 453.)
The city says that its right to widen and alter streets is paramount to the right asserted by the defendant. But the city may not take private property in widening and altering streets without compensation therefor. Defendant has a property right, a right arising out of contract, to maintain its kiosks where they were first located. That right is subject to the police power of the state which needs not now to be delimited. Every reason of public policy requires that grants of street rights be held subject to such reasonable regulations as the public safety and convenience may require, but suffice it to say that it will not now be assumed, by "avoidable implication," that the city has obtained from the state the authority that it now asserts.
The implication that the city may direct the defendant to remove and reconstruct its kiosks is not only avoidable; it is impossible. The local authorities have consented without limitation to the exact location and the location of such permanent and costly structures is not an incidental act like the temporary location of trolley poles in the middle of the street, which afterwards become dangerous, or the laying of water or gas pipes somewhere below the surface, or the stringing of wires and overhead structures. ( Chace Trucking Co. v. Richmond Light R.R. Co., 225 N.Y. 435.) The state alone may say, or authorize the city to say, when the exits as they were first placed become an unreasonable interference with the free use of the streets for the usual street purposes. ( Village of Carthage v. Central N Y Tel. Tel. Co., 185 N.Y. 448.) As an incident to widening the street, the city should bear the expense of relocation.
The judgment appealed from should, therefore, be affirmed, without costs.
HISCOCK, Ch. J., COLLIN, McLAUGHLIN, ANDREWS and ELKUS, JJ., concur; HOGAN, J., not voting.
Judgment affirmed.