PARKER, P. J.
When this case was before us on the former appeal, the question presented was whether this defendant was relieved by the provisions of the contract of April 26, 1892, from paving be[585] tween the rails, etc., as is required by the provisions- of the general railroad law. The argument of the defendant the Binghamton Railroad Company then was that it was a-company with which the parties of the first part to that contract had become merged and consolidated, and that therefore, by its express terms, the contract inured to its benefit, and, further, that the tracks over which this controversy arises, viz., those then operated by the Court Street & East End Railroad Company, were an addition and extension of the tracks of such contracting companies, and that therefore the terms and conditions of such contract, by its express provisions, applied to them. We then held that the benefits which were to inure to the successors and assigns of the contracting companies, or to one with which they might thereafter consolidate, were no broader than were thereby given to such companies themselves, and that, very clearly, the exemption, or modification of the statutory liability so given did not extend beyond the tracks then being operated by them, or to such additions or extensions of those tracks as might thereafter be made, and that,, conceding that such exemption would inure to the benefit of this defendant, as a company with which those contracting companies had. consolidated, nevertheless, inasmuch as the tracks in question had subsequently to the contract been acquired from a separate and independent company by this defendant, and were therefore tracks not then used by such contracting companies, nor ones as to which either of'them had any interest or owed any duties, they could not be deemed' extensions or additions, to the tracks referred to in the contract, and' hence none of the provisions of such contract should be deemed applicable thereto. That conclusion resulted in depriving the defendant of any advantage under such contract, as to the tracks in question, and required a new trial. No suggestion was then made that either of the contracting companies had any interest in the tracks-then operated by the Court Street & East End Railroad Company,, or in its line, or any rights under its own charter to extend its tracks-over any part of that line; and all of the rights which this defendant then claimed over the tracks in question were claimed in its answer' to have been derived by consolidation with the Court Street & East End Railroad Company. Upon this appeal, however, and after a second trial, this fact is called to our attention, and this further question is presented: The Binghamton & Port *Dickinson Railroad Company,, which was one of the parties to such contract, was given the right, by the charter under which it was organized, to build its tracks over the street in question, as well as over several other streets in the city of Binghamton. That charter was acquired in 1868. It built and operated a line over the other streets, but never took any measures-whatever to build over the street in question. In 1886 the Court Street & East End Railroad Company organized under the general act. In the certificate which it filed to so organize, it named the-street in question as a part of its line, and subsequently laid and operated its tracks over the same, and had been doing so for many years-prior to the contract in question. Such was the situation when such contract was executed. The defendant now claims that after the Binghamton & Port Dickinson Railroad Company had become merged. [586] and consolidated with it, which was some two years after the contract was executed, and during which time the Court Street & East End Railroad Company had continued to operate its road over the street in question until it also was consolidated with the defendant, it (this defendant) tore up the track so1 used by such company, and built a double track over the street in question, under and in pursuance of the franchise given by its charter to the Binghamton & Port Dickinson Railroad Company. Such new tracks connect with the old trades of the latter company at Court street, and hence it claims that the tracks over which this controversy arises are clearly an “extension or addition” to the tracks of one of such contracting companies, and therefore are within the provisions and benefits of such contract. The trial court has so found, and the question is now presented whether this new finding should work a change in our decision.
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PARKER, P. J.
When this case was before us on the former appeal, the question presented was whether this defendant was relieved by the provisions of the contract of April 26, 1892, from paving be[585] tween the rails, etc., as is required by the provisions- of the general railroad law. The argument of the defendant the Binghamton Railroad Company then was that it was a-company with which the parties of the first part to that contract had become merged and consolidated, and that therefore, by its express terms, the contract inured to its benefit, and, further, that the tracks over which this controversy arises, viz., those then operated by the Court Street & East End Railroad Company, were an addition and extension of the tracks of such contracting companies, and that therefore the terms and conditions of such contract, by its express provisions, applied to them. We then held that the benefits which were to inure to the successors and assigns of the contracting companies, or to one with which they might thereafter consolidate, were no broader than were thereby given to such companies themselves, and that, very clearly, the exemption, or modification of the statutory liability so given did not extend beyond the tracks then being operated by them, or to such additions or extensions of those tracks as might thereafter be made, and that,, conceding that such exemption would inure to the benefit of this defendant, as a company with which those contracting companies had. consolidated, nevertheless, inasmuch as the tracks in question had subsequently to the contract been acquired from a separate and independent company by this defendant, and were therefore tracks not then used by such contracting companies, nor ones as to which either of'them had any interest or owed any duties, they could not be deemed' extensions or additions, to the tracks referred to in the contract, and' hence none of the provisions of such contract should be deemed applicable thereto. That conclusion resulted in depriving the defendant of any advantage under such contract, as to the tracks in question, and required a new trial. No suggestion was then made that either of the contracting companies had any interest in the tracks-then operated by the Court Street & East End Railroad Company,, or in its line, or any rights under its own charter to extend its tracks-over any part of that line; and all of the rights which this defendant then claimed over the tracks in question were claimed in its answer' to have been derived by consolidation with the Court Street & East End Railroad Company. Upon this appeal, however, and after a second trial, this fact is called to our attention, and this further question is presented: The Binghamton & Port *Dickinson Railroad Company,, which was one of the parties to such contract, was given the right, by the charter under which it was organized, to build its tracks over the street in question, as well as over several other streets in the city of Binghamton. That charter was acquired in 1868. It built and operated a line over the other streets, but never took any measures-whatever to build over the street in question. In 1886 the Court Street & East End Railroad Company organized under the general act. In the certificate which it filed to so organize, it named the-street in question as a part of its line, and subsequently laid and operated its tracks over the same, and had been doing so for many years-prior to the contract in question. Such was the situation when such contract was executed. The defendant now claims that after the Binghamton & Port Dickinson Railroad Company had become merged. [586] and consolidated with it, which was some two years after the contract was executed, and during which time the Court Street & East End Railroad Company had continued to operate its road over the street in question until it also was consolidated with the defendant, it (this defendant) tore up the track so1 used by such company, and built a double track over the street in question, under and in pursuance of the franchise given by its charter to the Binghamton & Port Dickinson Railroad Company. Such new tracks connect with the old trades of the latter company at Court street, and hence it claims that the tracks over which this controversy arises are clearly an “extension or addition” to the tracks of one of such contracting companies, and therefore are within the provisions and benefits of such contract. The trial court has so found, and the question is now presented whether this new finding should work a change in our decision.
If the defendant’s right to build the tracks in question existed only by virtue of franchises acquired from the Binghamton & Port Dickinson Railroad Company, then we should assume that it was extending their tracks when it built the ones in question; but if, from this record, it appears that it might have acquired from its consolidation with the Court Street & East End Railroad Company the right to build such tracks, then we ought not to assume that those tracks are an extension of the tracks referred to in such •contract, unless it clearly appears from the facts in the case that the franchise under wrhich they were actually built was derived from the Binghamton & Port Dickinson Railroad Company. If it had appeared that the defendant, claiming the franchise to build over such street from the Binghamton & Port Dickinson Railroad Company, and that the Court Street & East End Railroad Company had invaded such right, and was occupying such street without right and in violation of such franchise, had taken any measures to oust the latter company therefrom, or to repudiate, even, their right to be there, then it would clearly appear that their claim, at least, was to extend the tracks of one of the contracting companies. But as a matter of fact, it is claimed in its answer, which still stands without amendment, that its rights over the street in question are derived from the Court Street & East End Railroad Company. The validity of that company’s occupation of that street is not questioned, and, on the pleadings in this case, it seems to stand admitted that the right to maintain tracks on that street belonged to the latter company, and passed from it to this defendant. Now, what facts are shown to overcome that admission? The president of the defendant testifies that it built the double tracks over the street in question under the franchise derived from the Binghamton & Port Dickinson Railroad Company’s charter. But that is a mere opinion, and somewhat weakened by his verification of the answer above referred to, and therefore we should look for facts upon which such opinion may be sustained. It is claimed that the defendant got permission of the city to build the double tracks over that street. But the Court Street & East End Company had acquired the right to build a double track, as much as it had acquired the right to build a single track, there, and there is nothing in the fact [587] that it got such permission to indicate which franchise the defendant claimed to be acting under. So, also, it is claimed that no consents were acquired from the adjacent owners, thus indicating that it was proceeding under the Binghamton & Port Dickinson Company’s charter, which required no consents. But the Court Street & East End Railroad Company had procured all the consents which were necessary, under its charter, to authorize the street to be occupied by a railroad; and hence, if the defendant were proceeding under its charter, no additional consents need have been procured. Neither of these facts even tends to dispute the direct claim set up in the answer that this defendant derived its rights in the street in question from the Court Street & East End Railroad Company. No fact proven in the case contradicts or overcomes that concession, and nothing, therefore, warrants the conclusion that the tracks in question were built in pursuance of the franchise derived from the Binghamton & Port Dickinson Railroad Company’s charter. They now, as they did before, appear to have been built under the authority set up in the answer, and can no more now than before be deemed to be an extension of one of the contracting company’s tracks. Under this view, it does not become necessary to determine whether the Binghamton & Port Dickinson Railroad Company had at the time of the contract any rights left over the street in question, nor whether, under the conditions as they then existed, the contract should be construed to include the possible right of such company to oust the Court Street & East End Railroad Company, and extend its own tracks over a street so occupied by such other company. It is probable that neither party to that contract contemplated any right to extend over that street, especially as the ■city—one of the parties—had already granted to the Court Street & East End Railroad Company the right to occupy it under its charter. But that question need not be discussed, since I am of the opinion that the defendant has in fact made no effort to 1 extend any tracks under the franchise given to the Binghamton & Port Dickinson Railroad Company. Concede that it might have done so if it had desired; that right would not justify the conclusion that the tracks over which this controversy arises are an extension of any tracks referred to in the contract.
I understand that the defendant’s right to an exemption from the assessment sought to be imposed upon it by this plaintiff, and the action of the city in reference thereto, are based upon the theory that the contract above referred to controls. What would be the action of the city did it not suppose itself bound by that contract, does not appear. The plaintiff has the right to test the validity of that contract, • as applied to these tracks, and to succeed in this action, provided it must be held that such contract does not fix the liability of the defendant with'reference to the street in question.
The judgment must be reversed, and a new trial granted; costs to appellant to abide the event.
KELLOGG, and CHASE, JJ., concur. SMITH, J., dissents, upon grounds stated upon former appeal.