Pettit v. McClellan , 97 N.Y.S. 320 ( 1905 )

Laughlin, J.:

This is- also a- taxpayer’s action,, and it "is brought to enjoin action upon the petitions of the Atlantic Telephone -Company for consent to the use of certain streets for the construction of an overhead or lindergrou-nd telephone line, arid by the New York and Port Chester Railroad Company, the Nassau ‘Electric Company, the Southern Boulevard’ Railroad Company and the Union Railway Company of 'New York city, for constent to the use and occupation of certain public streets of the. city for the construction of street surface railways. The questions presented are the Same as those presented in Wilcox v. McClellan, argued and decided herewith' (110 App. Div. 37S), except that neither the Rapid Transit Act (Laws of 1891, chap. 4) nor the amendments thereto have any bearing on the appli- • cation upon which action is sought to be enjoined herein and, of course, the provisions of section 18 of article 3 of the Constitution with respect to the consent of the local authorities to the construction and operation of street railways have no direct application to the petition of the telephone compapy. Neither, however^ claims any distinctioh in principle or that the act can be upheld in part, and both unite in asking a decision on the broad ground as to the jurisdiction of the Legislature to vest those powers in the board of estimate and apportionment to the exclusion of the board óf aider-men. Even if the amendments to section 5 of the Rapid Transit Act made by chapter 631 of the Laws of 1905 should be void on account of the provisions concerning the vote on the application by which a minority might grant the.consent, yet, since the provision on that subject contained in the amendments, to section 74 of the city charter (Laws of 1901, chap. 466) made by chapters 629 and 630 of the Laws of 1905 would in-all cases require at least a majority vote, still power would exist in the board of estimate and apportionment to grant these applications. The decision in the Wilcox case, adverse to the plaintiff, is decisive of the questions presented by this appeal.

• It follows that the judgment should be affirmed, with costs to the respondents, and the order, so far as appealed from, should be affirmed, with ten dollars costs and disbursements to the respondents.

O’Brien, P. J., Patterson, Ingraham and Clarke, <TJ., concurred.

, Judgment affirmed, with costs; order affirmed, with ten dollars costs and disbursements.