Hatfield v. . Straus , 189 N.Y. 208 ( 1907 )

I agree in the result of Judge O'BRIEN'S opinion; I also adopt as part of this memorandum the opinion of Mr. Justice CLARKE in the Appellate Division. This case involves questions of far-reaching importance. The defendants R.H. Macy Company claim to have obtained the consent of the city of New York, through its board of estimate and apportionment, to construct, maintain and use two spur surface railroad tracks, as follows: A spur track from the northerly surface railroad in West Thirty-fourth street, between Broadway and Seventh avenue, in the borough of Manhattan, across the sidewalk and into the store of R.H. Macy Company on the northerly side of West Thirty-fourth street; also a spur track from the easterly surface railroad track in Webster avenue, in the borough of the Bronx, between Two Hundred and Thirty-sixth street and McLean avenue, in the said borough, to the building of R.H. Macy Company on the easterly side of Webster avenue north of the northerly side of Two Hundred and Thirty-sixth street. The distance between these termini, according to the official maps of the city of New York, is at least ten miles, allowing twenty blocks to the mile. These spur tracks are to be connected with the street surface railroad tracks in West Thirty-fourth street and Webster avenue, respectively, and R.H. Macy Company are authorized, subject to certain restrictions, to transport their goods, wares and merchandise from their downtown place of business to their distributing station in the borough of the Bronx over these many miles of intervening street railway tracks.

The plaintiffs, as owners of a private residence located immediately west of the store of R.H. Macy Company on West Thirty-fourth street, object to the construction of the spur track in the vicinity for good and sufficient reasons, which have been duly considered in the opinions to which reference has already been made. There is, however, a broader question which affects the property holders of the city of New York and calls for careful judicial scrutiny. Are our already overcrowded streets and railroads to have imposed upon them an additional easement, viz., the transportation of freight — of goods, wares and merchandise — and that, too, not by legislative grant, but by the consent of the board of estimate and apportionment? It is argued that this consent of the board is not a franchise. It runs for ten years and can be renewed; the facts that it is non-assignable and revocable do not militate against the legal conclusion that the consent is to all intents and purposes in the nature of a valuable franchise. This court has held that the right to construct and operate a street railway is a franchise which must have its source in the sovereign power. Also that the legislative power over the subject has this limitation: the franchise must be granted for the public, not for private purposes. (Fanning v. Osborne, 102 N.Y. 441.) The proposed spur tracks, if constructed as contemplated, would clearly be a public nuisance. Whether the consent of the board of estimate and apportionment be regarded as in the nature of a franchise or as a license, it is absolutely void. (Potter v. Collis, 156 N.Y. 16. ) If the claim of the appellants were to be sustained, then, as suggested in the opinions, the proprietors of every department store in the city would assert the right to lay spur tracks and transport freight through the already overcrowded streets.

Judge O'BRIEN has clearly pointed out the scope of the present inquiry in view of the questions certified. The first question requires this court to determine whether the board of estimate and apportionment had the power to grant the permit under the charter of Greater New York; the second question involves the power of plaintiffs to maintain this action. If the board had no power to grant the permit and the plaintiffs are entitled to maintain this action, then the injunction must stand. If the contrary result is reached, the present state of the record does not raise the question whether the trolley lines involved are authorized to transport freight in the streets of the city of New York.

The names of the companies over the tracks of which it is contemplated to conduct this freight traffic and the charters under which they are operated do not appear in the record before us. The tendency of the modern trolley line to carry freight through the crowded streets of large cities, in the absence of charter authority, is a growing evil.

I vote for affirmance; the first question to be answered in the negative and the second question answered in the affirmative.