Coney Island & Brooklyn Railroad v. Brooklyn Cable Co. , 60 N.Y. Sup. Ct. 169 ( 1889 )

Pratt, J.

Nothing need be added to the able opinion of the learned judge who tried this case. All the facts are therein fully stated, and we concur in the law therein expressed. This general term in February last passed upon a case¹ in many respects similar to this, in which it was held that under such a contract the party hiring a right to run upon the tracks of another railroad could keep the right, or part with it by assignment, but it could not retain the right itself, and multiply the beneficiaries. The contract here is a mere license or privilege for hire. It is not a lease conveying an interest in the realty, but an agreement containing mutual stipulations in the nature of a license. It is clear the intent was to permit the first licensee to run its cars over the tracks mentioned. Had it been designed to cover any more than such a privilege, other terms would have been used to indicate such an intention. It seems unreasonable to say that such an agreement can be divided up into a large number of parts, so as to increase the use of the tracks many fold, and still the compensation remain at the same fixed price. Again, the covenants in the agreement about time-tables indicate that but one party was intended to use the road under the agreement. The word “assigns” was used in the agreement to cover the case of the Park-Avenue Railroad selling out all its franchises, so that its assignees would succeed to its-rights under the agreement. It was not used in the sense of giving a right to sublet or to convey a privilege to other parties to use the track while the Park-Avenue road retained the right to use them. But it is claimed by defendants that the Park-Avenue Railroad Company and its assignees acquired other franchises, and that the agreement must be held to extend to them while in use by the ParlcAvenue Company, and that it was competent for them to lease or convey such franchises, and that such conveyance carried the right to run cars under said agreement; but this contention not only contains the vice of splitting and multiplying the privilege contained in the agreement among different owners, but it is inconsistent with the statute conferring the franchise, (section 2, act 1874,) which provides “that in the use of such railroad upon the routes herein designated” the company may use tracks already laid, but must agree with the owner or have compensation fixed by commissioners. It seems plain that the existing agreement did not extend to cover such newly-acquired franchise. Neither, for the same reason, can it be successfully claimed that the agreement became appurtenant to the franchise granted to the Park-Avenue Railroad by chapter 448, Laws 1874. The agreement was made to fit the existing circumstances, and it could not be made to cover material changes not provided for in its terms, or within the intent of the parties at the time it was made. The question is not whether a corporation can sell or assign its franchises, but whether the agreement in question became vested in the defendant, so that it can enforce it against the plaintiff. As we have before stated, this agreement was not a lease, and is therefore not a subject of subletting to different parties to be conjointly used with the original parties. Judgment affirmed, with costs.

1 Brooklyn Crosstown R. Co. v. Brooklyn City R. Co., 3 N. Y. Supp. 901.