Scudder v. Interurban Street Railway Co.

96 A.D. 340, 89 N.Y.S. 1115

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1904
• Status: Published

Opinions

Hatch, J.:

The question which I regarded as controlling the decision in . Topham v. Interurbam, St. R. Co. (96 App. Div. 323) is not presented by the present record. The lease made in this case shows it to have been subsequent to May 1, 1891, and it is not claimed that there were any other leases made of the Third Avenue railroad or the Metropolitan Street railway prior thereto ; consequently such question is not involved. Heither does the pleading nor the proof in this case raise the question of compliance with section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, renumbered § 104 and amd. by Laws of 1892, chap. 676) by showing that suitable regulations were made for the issuance of transfers in the promotion of the public convenience, as is expressed in the Topham case.

It follows, therefore, that the determination of the Appellate Term should be affirmed, with costs.

Patterson and Laughlin, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.