Opinion
Argued April 18, 1898
Decided June 7, 1898
B.F. Einstein for appellant. James C. Bergen for respondents. Charles A. Collin and William F. Sheehan for "Associated Trolley Companies."
William Williams, William B. Anderson and James W. Eaton for Thomas E. Stillman.
The inquiry is presented at the outset whether the questions certified by the Appellate Division are properly before us for determination. In Grannan v. Westchester Racing Assn. ( 153 N.Y. 449) this court held that if a question certified is stated in terms so broad that it will admit of one answer under one set of circumstances and a different answer under another, or if it presents merely an abstract proposition, and no facts are disclosed in the record which show that it arose in the case, it will decline to answer it. In the case of Baxter v. McDonnell ( 154 N.Y. 432, 436) the doctrine of that case was reaffirmed and it was said: "While we are confined to the question certified, it is our duty to examine the record not only to see that it actually arose, but also to see how it arose, so that we can decide it as it was presented to the courts below. In other words, we should ascertain all the facts that raise the question, so that it can be decided as an existing issue between the parties and the danger of passing upon merely abstract propositions may thus be avoided." Testing the first question certified by these rules it becomes obvious that it is not involved in the case before us. In substance the question is whether the trustees of the New York and Brooklyn bridge were authorized to permit railroad companies to enter and construct their railroads upon and cross the bridge with their cars. No such question is involved in the present controversy. The right to make the contract entered into between the trustees and the railroad corporations was not challenged but conceded. This action was not based upon its illegality or a want of authority in the trustees, but upon an affirmance of the contract, and the relief sought was to prevent the defendants from disregarding it by building otherwise than in accordance with its provisions.
Therefore, the first question presents merely an abstract proposition, and no facts are disclosed in the record which show that it arose in the case. The doctrine of the cases cited requires this court to decline to answer it. It is quite manifest that the question thus certified does not relate to this case, but to another between the defendants and different plaintiffs. As the decision of that question does not properly arise, the consideration of it should be postponed until we have a case before us requiring its determination. That question was not even passed upon by the court below, which is another reason why it should not be here considered.
This brings us to the consideration of the second question. While it is doubtful if that question presents any proposition which was in issue between the parties, still, as it was decided by the Appellate Division, and was made the basis of the order appealed from, it is perhaps proper that it should be considered at this time. That question involves the construction of section four of chapter 663 of the Laws of 1897, and an examination of the provisions of section 598 of the charter of the city of New York, to determine whether it affects or in any way controls the provisions of the former statute. The first proposition to be considered then is whether, under section four, the trustees of the New York and Brooklyn bridge had the right to prepare plans and specifications regulating the operation over the bridge of the cars of the corporations referred to therein, where they were different from or in conflict with the plans recommended by the expert engineers mentioned in that act. By the original contract the tracks across the bridge were to be constructed in substantial conformity with the plans recommended to the trustees by the engineers. On the twenty-ninth of September a new contract was made which was supplemental to that. By the latter the original plans were modified. The elevated structures for bringing the tracks crossing the bridge into the station at the New York terminus were dispensed with, and the tracks were to enter the station or terminus on the roadway, and were to be connected by curves or loop tracks upon the surface of the approach crossing the passageway used by pedestrians. The contract also provided that there should be constructed under the loops or tracks subways by which passengers might, if they desired, pass beneath, instead of waiting while the cars were crossing the passageway.
It is said by the learned Appellate Division that it was this proposed construction and operation of the tracks and cars which the injunction order restrained. This is true, although the complaint asked for no such relief. The only relief asked in the complaint is that the trustees be required to construct the tracks according to their contract by providing tunnels or subways. Without considering the question whether the learned Appellate Division and the learned judge at the Special Term properly changed the claim of the plaintiff from that alleged in the complaint to that stated in the injunction, we will consider the question determined by the Appellate Division. First, then, did chapter 663 of the Laws of 1897 confer upon the trustees power to provide plans and specifications relating to this subject, which were not in substantial conformity with the plans recommended by the expert engineers? As we have seen, the variation between the plans recommended and those specified in the contracts lies chiefly in the change by which the loops or tracks pass over the passageway for pedestrians at grade, instead of crossing upon an elevated structure above such passageway. Section four of that statute confers upon the trustees the right and imposes upon them the duty to prepare plans and specifications regulating the operation of cars upon the bridge. It empowers them to prepare such plans and specifications as they shall deem best adapted to promote the public comfort and convenience, and to subserve the purposes for which the bridge was constructed. It then declares that, except as otherwise provided by the trustees, the plans and specifications shall be in substantial conformity with those recommended by the engineers. Here is an express provision conferring upon the trustees the absolute right to make such plans and specifications as they shall deem best adapted to the purposes for which the bridge was constructed. The only limitation upon that power is that the prepared plans shall be in substantial conformity with those of the engineers. But to that limitation there is an express exception as to matters which shall be otherwise provided in the plans and specifications prepared by them. This exception is unlimited and includes the right to vary the plans recommended, as shall be otherwise provided by the trustees. The limitation is modified by the exception. The limitation is that it shall be in conformity with the plans recommended, while the exception in effect provides that the limitation shall not be effective where the trustees provide otherwise. Thus, it is obvious that the legislature intended to confer upon the trustees the absolute right to make such plans and specifications as they deemed best, but that they should be in substantial conformity with the plans recommended, unless the trustees should provide otherwise. Hence, the statute conferred upon them the right to provide plans which were not in conformity with the plans and specifications of the engineers, if they deemed such plans best adapted to promote the public comfort and convenience, and to subserve the purposes for which the bridge was constructed If they were not in conformity with the plans of the engineers, still, if they were the plans of the trustees, they were to control. If, however, the plans of the trustees were in conformity with the plans recommended, the latter were to be made a part of the contract. We are, therefore, of the opinion that the Appellate Division construed this statute correctly, and properly held that under it the trustees had a right to make the contract and the plans and specifications made to carry it into operation, and that the injunction was properly vacated.
But it is said that section 598 of the charter of the city of New York, which declares that the passageway of the bridge now set apart for foot passengers shall remain free and open to all pedestrians going and coming at all times, should be read and construed in connection with the statute we have already considered. The purpose of that provision of the statute was to establish a department of bridges, to provide for the appointment of a commissioner, to define his authority, and to declare the Brooklyn bridge a public highway. It also authorized the municipal assembly to adopt tolls, prudential and police regulations in regard thereto, subject, however, to the express provision that the passageway of the bridge should be free and open to pedestrians coming and going at all times, thus prohibiting the municipal assembly from interfering with the bridge in that respect. The object of that statute was not to establish the rights of pedestrians on the bridge, or to insure the continuance of that right, or to interfere with the general powers and duties of the commissioner or trustees of the New York and Brooklyn bridge. But its obvious purpose was to forbid the making by the municipal assembly of any regulations which should prevent the free and open use by pedestrians of the passageway now set apart for foot passengers. This is rendered quite obvious when we remember that sixteen days after the passage of that act, chapter 663 was enacted, which conferred upon the trustees the powers and imposed upon them the duties to which we have adverted. That was the latest statute upon the subject, and evidently was intended to cover the whole subject, and to furnish the only law upon it. Hence, if the contention of the appellant, that the provisions of section 598 are inconsistent with the provisions of chapter 663, were correct, the former must be regarded as repealed by necessary implication, so far as it is not in harmony with the provisions of the latter. ( Heckmann v. Pinkney, 81 N.Y. 211.)
It follows that the order of the Appellate Division should be affirmed, the second question answered in the affirmative, and the first question should not be answered.
All concur.
Order affirmed.