City of New York v. Interborough Rapid Transit Co. , 109 N.Y.S. 885 ( 1908 )

Scott, J. (dissenting):

I dissent. In my opinion the contract under which the defendant operates the rapid transit railway partakes much more o.f the character of a grant from the public than of a lease, as the latter term is ordinarily used, and it is too well established to justify discussion that a grantee from the public takes nothing from implication which is not to be by fair construction found in the terms of the grant itself. The railway and the structure in which it runs are the property of the city of New York and their use is granted to the contractor solely to the end that the railroad may be operated for the benefit and use of the public. All that the third chapter of.the contract, denominated the lease, purports to grant to the contractor is the “ railroad ” and the agreement of the latter is to equip, maintain and operate the “railroad.” There cannot be found anywhere within the lines of the contract any express agreement to lease the structure for general purposes, or for any purpose other than that of operating a railroad, which while it may carry with it the right to use the structure for such purposes as are naturally and customarily connected with railroad operation, does not include the right to use the structure for the carrying on of a' business not germane to, nor connected with the operation of a railway in the structure. The purely negative condition that the contractor may not “ make any use of the railroad or any part of it, or of its equipment, which shall to any extent or in any way interfere with such use to its fullest capacity for passengers,” cannot be transformed into a positive covenant that the structure may be put to any use, whether connected with the operation of the road or not, which would not interfere with its use for passengers.

There are numerous ways in which a railroad property may be used for railroad purposes other than the carrying of passengers, and since the rapid transit road was intended primarily for passenger trafile, the condition quoted was undoubtedly inserted for greater caution to insure that however the road might be operated, the carrying of jiassengers should always be the first consideration. If the ducts used for the transmission of electricity for sale had been built by the contractor at his own expense as part of the equipment a different question would perhaps be presented, but they were not so built. They constitute a part of the city’s property, built with the city’s money and leased to the contractor solely for the purpose of operating the railroad, the public necessity for which created the sole authority for the expenditure of the public money for such a proposal. (Sun Publishing Assn, v. Mayor, 152 N. Y. 257.) It is quite true that there are many more ducts in the structure than can be presently used in the operation of the railroad, and that the use of the ducts for carrying wires does not injure the structure, and that the company can now manufacture more electricity than is needed to operate the railroad at the present time, and, therefore, the city cannot be said to be injured to any appreciable extent by the use of the ducts for the transmission of the electricity for sale. That, however, is not the question with which we have to deal, but it is the broad question whether or not, under his contract, the contractor or his assignee may use the structure for other purposes of private gain than the operation of the railroad for which the structure was erected and leased. The development of science is rapid, and the ingenuity .of man is unlimited; and if it be now established that the contractor or his assignee may use the structure belonging to the city for any purpose whatever except that of maintaining and operating the rapid transit railway, it is impossible to foresee to what uses it may hereafter be put. The case, much relied on by defendants, of New York Mail & Newspaper Transportation Co. v. Shea (30 App. Div. 266) is of slight assistance in determining the question we are now called upon to consider, which is solely as to the scope and construction of the contract between the city and the contractor. It may be authority for the proposition that it is competent for the city by an unambiguous contract, and for a proper consideration, to grant to the defendant the right to use the subway ducts in the manner and for the purpose it is now using them.

In my opinion the interlocutory judgment should be affirmed, with costs.

Clarke, J., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.