I concur in the opinion of Judge WILLARD BARTLETT and also in the expression of his personal view as to the power of the legislature to modify or regulate the franchise given by the state for the location of the plaintiff's railroad in the city of New York. There is this marked distinction between the present case and that of People v. O'Brien (111 N.Y. 1). There the franchise granted was that of a street surface railroad, and the repeal of the right to maintain a road in the street was destructive of the franchise. There is no franchise in this case to do the business of a street railroad, and the permission to occupy the street was solely as a means for running from one terminus of the road to the other; nor did the franchise to maintain the road include an unqualified right to maintain it on the surface. The "power reserved to the legislature to alter, amend or repeal a charter authorizes it to make any alteration or amendment of a charter granted subject to it, which *Page 225 will not defeat or substantially impair the object of the grant, or any rights vested under it, and which the legislature may deem necessary to secure either that object or any public right." (Close v. Glenwood Cemetery, 107 U.S. 466, 476.) Under this doctrine the Supreme Court of the United States upheld the validity of an act of the legislature of the state of Connecticut compelling a railroad company to abolish, at its own expense, all grade crossings as a valid exercise of the police power. (N.Y. New England R.R. Co. v. Bristol, 151 U.S. 556.) So, in the case before us, I think it clear that the legislature may so regulate the plaintiff's railroad in the city of New York as to remove the constant menace and danger to life occasioned by its present operation.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER and CHASE, JJ., concur with WILLARD BARTLETT, J.; GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur with CULLEN, Ch. J.
Judgment affirmed.