Opinion
Argued April 29, 1909
Decided June 8, 1909
Joseph W. Taylor for appellant.
James Breck Perkins and B.B. Cunningham for respondent. William W. Webb, Corporation Counsel, for the city of Rochester, intervening.
Upon the petition of the Home Telephone Company of Rochester, N Y, of which the plaintiff is the successor in interest, the city of Rochester entered into a contract with said telephone company in which it granted to said telephone company "The right to establish, construct, maintain and operate a system or lines of telephones for public and private use in the city of Rochester, New York, and to construct conduits, subways and manholes and to erect poles, place wires, conductors, cables, and all necessary equipments and appliances and to make house and building connections upon, along, in, over and under the streets, avenues, lanes, squares, alleys, parks, bridges, aqueducts and public places in said city, and to repair, replace, enlarge and extend the same for the business and purpose of providing means of communication between buildings, structures and places public and private in said city and for such other purposes as shall be consistent with and necessary to the successful conduct of such business."
Such grant was made reserving to the city certain rights within its police power and also upon condition that the telephone company "shall not during the life of this franchise charge to any subscriber within the present city limits for the use of said telephones any sum in excess of $48.00 per year per instrument upon metallic circuits and unlimited use day and night." The agreement was voluntarily entered into by said telephone company after application duly made by petition as stated for such grant.
It is quite clear that such grant gives to said telephone company greater rights than it had under the Transportation Corporations Law resulting simply from the incorporation of the company. The grant to the telephone company was a sufficient consideration to uphold the covenant on its part not to charge any subscriber more than $48.00 per year per instrument as stated. Such covenant inures to the benefit of the plaintiff's subscribers who are within the limits of the city of Rochester as such limits were defined at the time when the covenant was made, and it is also binding upon the plaintiff, the successor of the covenantor in the agreement.
The validity of the said covenant is not affected by an extension of the defendant's wires. The question of further charges, if any, for telephone service extending beyond the limits of the city of Rochester as defined when the covenant was made is not now before us.
The judgment should be affirmed, with costs.
GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, HISCOCK and CHASE, JJ., concur.
Judgment affirmed.