Long Island City v. Long Island Railroad , 15 N.Y. Sup. Ct. 58 ( 1876 )

GILBERT, J.:

By title 3, chapter 1, section 14, subdivision 5 of the charter of Long Island City (Laws 1871, chap. 461, p. 905), power has been granted to the common council thereof to make an ordinance to regulate the use of streets, etc., by railways, but by section 19, title 11 of that charter (Laws 1871, 982) it is provided that nothing therein shall be construed as granting to the mayor or common council of said city, or either of them, or to any officer of said city power to prohibit or control in any manner the use of steam power on any railroad from any part of Long Island to the East river, and such railroad shall have an unobstructed right to run to the East river with their locomotives and cars, but shall furnish suitable guards or signals at the street crossings, for the proper protection of the public. It is conceded that the defendants’ railroad is one of those which are protected by this section. The legal effect of that provision, we think, is to except those railroads from the operation of the grant of power first mentioned. The common council cannot control the use of steam power by the defendants on their railroad, nor obstruct their right to run to the East river with their locomotives and cars. The ordinance passed by the plaintiff requires the defendants to station flagmen at all points where the railroad crosses a -street, avenue, road or public place, and as it applies only to companies using steam power, is a direct attempt to control the use of that power on their road, and if carried out would necessarily obstruct the right which the defendants acquired by virtue of their act of incorporation. Eor any addition, by means of an ordinance, to the duties or burdens imposed by law on the defendants, would necessarily be an exercise of control over, and restrictive of the right before enjoyed by them.

We think, therefore, that the ordinance transcends the power vested in the common council, and upon that ground the judgment must be affirmed.

BarNArd, P. J., dissented. Present — Baruard, P. J., Gilbert and DtKMAN, JJ.

Judgment affirmed with costs.