Opinion
May Term, 1902.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.
When this case was before us on the former appeal, the question presented was whether this defendant was relieved by the provisions of the contract of April 26, 1892, from paving between the rails, etc., as is required by the provisions of the General Railroad Law. (Laws of 1890, chap. 565, § 98, as amd. by Laws of 1892, chap. 676.) The argument of the defendant, the Binghamton Railroad Company, then was, that it was a company with which the parties of the first part to that contract had become merged and consolidated, and that, therefore, by its express terms, the contract inured to its benefit; and further that the tracks over which this controversy arises, viz., those then operated by the "Court Street and East End Railroad Company," were an "addition or extension" of the tracks of such contracting companies, and that, therefore, the terms and conditions of such contract, by its express provisions, applied to them. We then held that the benefits which were to inure to the successors and assigns of the contracting companies, or to one with which they might thereafter consolidate, were no broader than were thereby given to such companies themselves, and that, very clearly, the exemption or modification of the statutory liability so given, did not extend beyond the track then being operated by them, or to such additions or extensions of those tracks as might thereafter be made; and that, conceding that such exemption would inure to the benefit of this defendant railroad company, as a company with which those contracting companies had consolidated, nevertheless, inasmuch as the tracks in question had subsequently to the contract been acquired from a separate and independent company by such defendant, and were, therefore, tracks not then used by such contracting companies nor ones as to which either of them had any interest or owed any duties, that they could not be deemed extensions or additions to the tracks referred to in the contract, and hence none of the provisions of such contract should be deemed applicable thereto. That conclusion resulted in depriving the defendant railroad company of any advantage under such contract as to the tracks in question, and required a new trial. No suggestion was then made that either of the contracting companies had any interest in the tracks then operated by the "Court Street and East End Railroad Company," or in its line, or any rights under its own charter to extend its tracks over any part of that line; and all of the rights which this defendant company then claimed over the tracks in question were claimed in its answer to have been derived by consolidation with the "Court Street and East End Railroad Company." Upon this appeal, however, and after a second trial, this fact is called to our attention, and this further question is presented: The "Binghamton and Port Dickinson Railroad Company," which was one of the parties to such contract, was given the right by the charter under which it was organized to build its tracks over the street in question as well as over several other streets in the city of Binghamton. That charter was acquired in 1868 (Laws of 1868, chap. 501). It built and operated a line over the other streets, but never took any measures whatever to build over the street in question. In 1886 the Court Street and East End Railroad Company organized under the general act (Laws of 1884, chap. 252). In the certificate which it filed to so organize, it named the street in question as a part of its line, and subsequently laid and operated its tracks over the same, and had been doing so for many years prior to the contract in question. Such was the situation when such contract was executed. The defendant railroad now claims that after the Binghamton and Port Dickinson Railroad Company had become merged and consolidated with it, which was some two years after the contract was executed, and during which time the Court Street and East End Railroad Company had continued to operate its road over the street in question until it also was consolidated with the defendant, it, this defendant railroad, tore up the track so used by such company and built a double track over the street in question, under and in pursuance of the franchise given by its charter to the Binghamton and Port Dickinson Railroad Company. Such new tracks connect with the old tracks of the latter company at Court street; and hence it claims that the tracks over which this controversy arises are clearly an "extension or addition" to the tracks of one of such contracting companies, and, therefore, are within the provisions and benefits of such contract. The trial court has so found, and the question is now presented whether this new finding should work a change in our decision. If the defendant company's right to build the tracks in question existed only by virtue of franchises acquired from the Binghamton and Port Dickinson Railroad Company, then we should assume that it was extending their tracks when it built the ones in question; but, if from this record it appears that it might have acquired from its consolidation with the Court Street and East End Railroad Company the right to build such tracks, then we ought not to assume that those tracks are an extension of the tracks referred to in such contract, unless it clearly appears from the facts in the case that the franchise, under which they were actually built, was derived from the Binghamton and Port Dickinson Railroad Company. If it had appeared that the defendant company, claiming the franchise to build over such street from the Binghamton and Port Dickinson Railroad Company, and that the Court Street and East End Railroad Company had invaded such right and was occupying such street without right, and in violation of such franchise, had taken any measures to oust the latter company therefrom, or to repudiate even their right to be there, then it would clearly appear that their claim, at least, was to extend the tracks of one of the contracting companies. But, as a matter of fact, it is claimed in its answer — which still stands without amendment — that its rights over the street in question are derived from the Court Street and East End Railroad Company. The validity of that company's occupation of that street is not questioned; and, on the pleadings in this case, it seems to stand admitted that the right to maintain tracks on that street belonged to the latter company and passed from it to this defendant company. Now, what facts are shown to overcome that admission? The president of the defendant company testifies that it built the double tracks over the street in question, under the franchise derived from the Binghamton and Port Dickinson Railroad Company's charter. But that is a mere opinion, and somewhat weakened by his verification of the answer above referred to; and, therefore, we should look for facts upon which such opinion may be sustained. It is claimed that the defendant company got permission of the city to build the double tracks over that street. But the Court Street and East End Railroad Company had acquired the right to build a double track as much as it had acquired the right to build a single track there, and there is nothing in the fact that it got such permission to indicate which franchise the defendant company claimed to be acting under. So, also, it is claimed that no consents were acquired from the adjacent owners, thus indicating that it was proceeding under the Binghamton and Port Dickinson Railroad Company's charter, which required no consents. But the Court Street and East End Railroad Company had procured all the consents which were necessary under its charter to authorize the street to be occupied by a railroad, and, hence, if the defendant company were proceeding under its charter no additional consents need have been procured. Neither of these facts even tends to dispute the direct claim set up in the answer that this defendant company derived its rights in the street in question from the Court Street and East End Railroad Company. No fact proven in the case contradicts or overcomes that concession, and nothing, therefore, warrants the conclusion that the tracks in question were built in pursuance of the franchise derived from the Binghamton and Port Dickinson Railroad Company's charter. They now, as they did before, appear to have been built under the authority set up in the answer, and can no more now than before be deemed to be an extension of one of the contracting company's tracks. Under this view it does not become necessary to determine whether the Binghamton and Port Dickinson Railroad Company had, at the time of the contract, any rights left over the street in question; nor whether, under the conditions as they then existed, the contract should be construed to include the possible right of such company to oust the Court Street and East End Railroad Company and extend its own tracks over a street so occupied by such other company. It is probable that neither party to that contract contemplated any right to extend over that street, especially as the city, one of the parties, had already granted to the Court Street and East End Railroad Company the right to occupy it under its charter. But that question need not be discussed, since I am of the opinion that the defendant railroad has, in fact, made no effort to extend any tracks under the franchise given to the Binghamton and Port Dickinson Railroad Company. Concede that it might have done so, if it had desired, that right would not justify the conclusion that the tracks over which this controversy arises are an extension of any tracks referred to in the contract. I understand that the defendant company's right to an exemption from the assessment sought to be imposed upon it by this plaintiff, and the action of the city in reference thereto, are based upon the theory that the contract above referred to controls. What would be the action of the city did it not suppose itself bound by that contract, does not appear. The plaintiff has the right to test the validity of that contract, as applied to these tracks, and to succeed in this action, provided it must be held that such contract does not fix the liability of the defendant company with reference to the street in question. The judgment must be reversed and a new trial granted, costs to appellant to abide the event. All concurred, except Smith, J., dissenting upon grounds stated upon former appeal, and Fursman, J., dissenting in an opinion.
This action has been twice tried. On the first trial the court at Special Term dismissed the complaint on the merits. On appeal to this court the judgment was reversed and a new trial granted. ( 61 App. Div. 323.) That decision was put upon the ground that the Court Street and East End Railroad Company was an independent corporation owning and operating a road over a portion of Court street in the city of Binghamton, and was not a party to the agreement of April 26, 1892, between the city of Binghamton, and the Binghamton Street Railroad Company and the Binghamton and Port Dickinson Railroad Company, and that the subsequent consolidation in 1894 of the Binghamton Railroad Company and the Court Street and East End Railroad Company did not, therefore, relieve the former from the legal obligation which rested on the Court Street and East End Railroad Company to pay that portion of the expense of paving that part of Court street occupied by it imposed by section 98 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676; Gen. Laws, chap. 39), and in this connection it was also held that the provisions of the agreement of April 26, 1892, do not extend to the Court Street and East End Railroad Company's tracks, notwithstanding that by its terms it is made to apply to any company "with which" the Binghamton Railroad Company might thereafter become "merged or consolidated." If the question had not already been determined by that decision I would be inclined to concur in the dissenting opinion of Mr. Justice Smith for the reasons stated by him. On the trial now under review, however, new evidence was introduced and a different theory adopted. It is now made to appear that the franchise of the Binghamton and Port Dickinson Railroad Company originally applied to and embraced that part of Court street as to which the present controversy exists. By an agreement dated the 11th of August, 1892, the Binghamton Street Railroad Company and the Binghamton and Port Dickinson Railroad Company were consolidated under chapter 39 of the General Laws (Railroad Law), and thereupon took the name "Binghamton Railroad Company." By section 72 of this law it is provided that upon such consolidation being effected "all the rights, privileges, exemptions and franchises" of each of the corporations thus consolidated shall be deemed to be transferred to and vested in the new corporation. It is clear, therefore, that whatever right and franchise, if any, the Binghamton and Port Dickinson Railroad Company then had to lay tracks in Court street became vested in the Binghamton Railroad Company, and the trial court has found, upon sufficient evidence, that the tracks in Court street were laid under and by virtue of the franchise of the Binghamton and Port Dickinson Railroad Company. This court decided in Davidge v. Common Council ( 62 App. Div. 525) that the agreement involved in this action is valid, and was legally confirmed by the Confirmatory Act of 1893 (Chap. 231). The only important inquiry, then, is whether that company had lost such right and franchise by abandonment, nonuser or failure to construct within the time prescribed by its charter. I think it had not. The charter (Laws of 1868, chap. 501) required the construction of the road to be commenced within one year from the passage of the act, and it completion within five years from such commencement. In 1869 the period of commencement was extended two years. (Laws of 1869, chap. 447.) In 1871 the time within which the construction must be begun was extended to May 1, 1872. (Laws of 1871, chap. 379.) This necessarily carried with it an extension of five years from that date for the completion of the road, to May 1, 1877. The company did not lay tracks on the part of Court street here involved within that time, nor at all until after November 16, 1896. Neither the charter of 1868 nor the subsequent acts impose a penalty or declare a forfeiture consequent upon a non-compliance with these requirements. A quasi public corporation, such as the Binghamton and Port Dickinson Railroad Company, cannot at will abandon a portion of its road nor relinquish its right to operate such portion. Abandonment, nonuser, a failure to construct, may, indeed, expose it to a forfeiture of its franchise, but in the absence of express provisions in the law under which it is organized, such forfeiture can be declared only by the Legislature or by the court at the suit of the People ( Trelford v. Coney Island, etc., R.R. Co., 6 App. Div. 204; People v. Albany Vermont R.R. Co., 24 N.Y. 261; Application of Brooklyn E.R.R. Co., 125 id. 439, 440), and until forfeiture is declared its corporate existence, powers and rights are as full, complete and enforcible as if it has fully complied with every legal requirement. So long as it remains a corporation at all it necessarily possesses every right, privilege and power bestowed upon it in the act creating it. The Binghamton Railroad Company having by the consolidation in August, 1892, acquired the right of the Binghamton and Port Dickinson Railroad Company to lay tracks in Court street at the place in question, might do so under the charter of that company, and the agreement of April 26, 1892, as legalized and confirmed by chapter 231 of the Laws of 1893, applies to and embraces the same. The judgment ought, therefore, to be affirmed.