Brooklyn, Queens County & Suburban Railroad v. City of New York

182 A.D. 32, 169 N.Y.S. 355, 1918 N.Y. App. Div. LEXIS 7826

Opinions

Per Curiam:

Plaintiff’s rights to be valued were its property and franchises in the plank road and tollgates in Jamaica avenue from Pennsylvania avenue, Brooklyn, to Grand street, Jamaica, as of August 16, 1897. It asks this because of the concession purporting to relieve it from obeying section 98 of the former Railroad Law,

* which concession proved to be void, valueless and wholly ineffective, after the consolidation of the city of New York with the county of Queens. Such consolidation had been enacted May 4, 1897 (Laws of 1897, chap. 378), to take effect January 1, 1898. Plaintiff’s new franchise upon Jamaica avenue, granted when the Legislature had enacted consolidation, carried with it a privilege of the use of the avenue with no corresponding obligation to repair its pavement. The value of such dispensation from obeying the Railroad Law it now estimates at $237,147.60. This capitalized value of its unlawful dispensation from obeying the statute has been equated with the value of its prior rights surrendered. Here is a double error; one item of the new grant is made to measure the whole surrendered rights. Further, an illegal concession, naturally valuable in proportion to its disregard of public law, is taken to gauge and weigh the value of plaintiff’s original franchise and property. In a different form, plaintiff would thus get the very fruits of what has been adjudged void because illegal.

Without attempting to determine whether the action may be maintained upon any theory other than that adopted on this first trial, we send back the case for a new trial to allow plaintiff to proceed as advised.

The judgment is, therefore, reversed, and the findings of fact made (except those setting forth the introductory history of these transactions) are severally reversed, with the conclusions of law, and a new trial granted, costs of this appeal to abide the final award of costs.

Thomas, Mills and Putnam, JJ., concurred; Rich, J., read for modification and affirmance; Jenks, P. J., hot voting.

Gen. Laws, chap. 39 (Laws of 1890, chap. 565), § 98, as amd. by Laws of 1892, chap. 676; now Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), § 178, as amd. by Laws of 1912, chap. 368.— [Rep.