The main question raised on this appeal by the defendant railroad company is, whether, on the undisputed evidence, it rested under any liability to keep the pavement in repair, within the statutory limits, on Court street, between Fulton and Joralemon streets, in the borough of Brooklyn, or, whether the city of New York is solely liable. The city of New York insists that the railroad company is ultimately liable to pay the judgment which the plaintiff has recovered herein.
The plaintiff was injured December 29th, 1900, by reason of driving into an opening negligently left in Court street, between Fulton and Joralemon streets, alongside the track of the defendant railroad company, whereby he was thrown to the pavement and severely injured. The jury rendered a verdict in favor of plaintiff and against both defendants for $3,750.00, upon which judgment was entered and unanimously affirmed by the Appellate Division.
The first point raised by the railroad company is, that its paving obligations, as successor by lease of the Brooklyn City Railroad Company, were fixed by the franchise contract of the latter, the terms of which cannot be changed except with the consent of the contracting railroad company, its successors or assigns; that legislation changing this agreement in any respect would be unconstitutional as impairing the obligation of the contract.
It appears that the Brooklyn City Railroad Company constructed the railroad in question in the year 1854. The so-called franchise contract is a resolution of the common council of the city of Brooklyn, passed December 19th, 1853, which recites that the various individuals named therein were the lowest bidders under the resolutions adopted by the common council on the 16th day of the last preceding September, for constructing the various lines of railroads mentioned. It also recites that the persons named, and others associated with *Page 203 them, were duly incorporated under the Railroad Law of 1850, by the name of the Brooklyn City Railroad Company, for the purpose of constructing, maintaining and operating said lines of railroad with a double track for public use in the conveyance of persons and property; also, that the railroad company desired the assent of the corporation of the city of Brooklyn to the construction, maintenance and operation of the railroad. The resolution then follows, giving the assent of the city and the names of the various streets through which these railroad lines were to run, including the location involved in this action. This assent was given, subject to various conditions unnecessary to refer to in detail, as to the character of the track, roadbed, cars, rate of fare and other matters.
The following was among the conditions named: "The pavement to be kept in thorough repair by said company within the tracks and three feet on each side thereof with the best water stone, under the direction of such competent authority as the common council may designate."
The articles of incorporation of the Brooklyn City Railroad Company, under the act of 1850, are not in evidence. We have only the resolution referred to and a brief exhibit which states that the Brooklyn City Railroad Company has leased to the defendant company, for a term of nine hundred and ninety-nine years, the street railroad on Court street, in the city of Brooklyn; also all franchises, rights and assignments of whatsoever nature then or thereafter possessed or owned by the lessor. This lease is dated February 14, 1893.
In 1854 (Chap. 140) the legislature passed an act entitled "An act relative to the construction of railroads in cities," which provided, in substance, that the common council of cities should not thereafter permit to be constructed any street railroad without the consent thereto of a majority in interest of the owners of the property upon the streets in which such railroad is to be constructed being first had and obtained.
It was also enacted as follows: "After such consent is obtained, it shall be lawful for the common council of the *Page 204 city in which such street or avenue is located to grant authority to construct and establish such railroad, upon such terms, conditions and stipulations, in relation thereto, as such common council may see fit to prescribe."
It was also further enacted as follows: "This act shall not be held to prevent the construction, extension or use of any railroad, in any of the cities of this state, which have already been constructed in part; but the respective parties and companies, by whom such roads have been in part constructed, and their assigns, are hereby authorized to construct, complete, extend and use such roads, in and through the streets and avenues designated in the respective grants, licenses, resolutions or contracts under which the same have been so in part constructed, and to that end the grants, licenses and resolutions aforesaid are hereby confirmed."
This latter legislation seems to indicate that the original resolution of the common council of the city of Brooklyn, passed the previous year, needed confirmation and legislative approval. Be that as it may, we are of the opinion that the original resolution of the city of Brooklyn in evidence, relating to keeping the pavement in repair between the tracks and three feet on each side thereof with the best water stone, cannot be regarded as a private contract between the Brooklyn City Railroad Company and the municipality, but is rather in the nature of charter legislation which may be at any time amended as the legislature deems necessary in view of changed conditions and the interests of the general public.
When the Brooklyn City Railroad Company agreed to pave and keep in repair a certain portion of the street occupied by its tracks, it undertook to discharge, in part, a duty imposed upon the municipality by the legislature.
In City of Brooklyn v. Brooklyn City Railroad Co. (47 N.Y. 475,485) the court said: "Thus a municipal corporation, by the conferring and acceptance of a charter with powers of opening and controlling streets and ways, has put upon it the correlative duty to the public of keeping those ways in repair, so that they may be safe for the passage of the *Page 205 public. When one contracts with that corporation to keep any portion of those streets in repair, in consideration of a license to use them to his benefit in an especial manner, he in effect contracts to perform that duty to the public in the place and stead of the municipality, and the way is given over to him for that purpose, and he takes it into his care and charge therefor, and his failure to perform his contract is a failure to do that duty, and the damages which naturally and proximately result from nonperformance, are all the damages which naturally and proximately fall upon the corporation from the duty not being performed."
It cannot be assumed that when the Brooklyn City Railroad Company, in the year 1853, for its own convenience in operating horse cars on its tracks, agreed to lay a pavement suitable for such purpose, that the municipality released control of the street for all future time as to the character of the pavement, as it possessed no such power. It appears that after many years the motive power was changed and the convenience and safety of the public required a different kind of pavement.
In Milhau v. Sharp (27 N.Y. 611) this court decided that the powers of a municipal corporation, in respect to the control and regulation of its streets, are held in trust for the public benefit and cannot be abrogated nor delegated to private parties.
This court has recently recognized the principle in Village ofMechanicville v. Stillwater Mechanicville Street RailwayCo., decided at the St. Lawrence Special Term in July, 1901, and reported in 35 Misc. Rep. 513. This case was affirmed in the Appellate Division (67 App. Div. 628) and in this court (174 N.Y. 507) without opinions. The learned judge at Special Term stated: "The defendant claims that a contract was made and a franchise given, specifying the kind of paving to consist of small stone between the rails and twenty inches outside, which could not be altered by the legislature or by the requirements of the situation, and that chapter 494 of the Laws of 1901 (§ 1) ratifies pre-existing *Page 206 contracts with street railway companies in cities of the third class, towns or villages."
It appears that the two so-called franchises were given to the defendant and contracts made by it with the village in pursuance of the resolution of the trustees, each providing that the space between the rails and the space of at least twenty inches outside of the said rails on both sides of the tracks should be paved with small stone, and that the same should at all times be kept in good condition. Some years thereafter a notice was served by the village requiring a six-inch excavation filled in with sand or gravel and covered with vitrified paving brick. The railway company declined to conform to this notice.
This court has thus held that it was competent for the municipality, acting under delegated legislative power, to require, after a change in condition and the lapse of some years, a different material in paving the street under the agreement of the railway company. This construction has received legislative recognition in the revision of the Railroad Law (Laws of 1892, chap. 676, § 98). That section provides, in substance, as follows: "Every street surface railroad corporation so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so,and in such manner as they may prescribe."
This brings us to the consideration of the second point raised by the railroad company, which is, in substance, that if it be assumed that the resolution of the common council of the city of Brooklyn in December, 1853, was not a private contract between the city and the railroad company, and that by reason of section 98 of the present Railroad Law the defendant company would be subject to its conditions, under ordinary circumstances, that nevertheless certain provisions of the charter of the city of Boooklyn and action taken thereunder *Page 207 relieved the defendant company from the obligation to pave the street between its tracks and for a distance of two feet upon either side and to keep the same in repair at the time and place of the accident in question.
Section 50 of the charter of the city of Brooklyn was amended by chapter 1008 of the Laws of 1895, and again by chapter 771 of the Laws of 1896. The latter amendment does not affect the section as to the question now presented. The material portions of that section as so amended read as follows:
"The said board of estimate shall each year include in their estimate of the amount required to be raised for city purposes the amount necessary to meet, during the year, any existing contract for the cleaning of streets, and also the proper proportionate amount of the sums estimated as required to be expended under the provisions of section 46 of this title, and also such an amount as they may deem necessary and proper for the purpose of repairing and also improving the condition of the streets and avenues of the city by repaving the same, and the amount included in the annual tax levy of the city for the purpose of repaving shall be expended by the commissioner of city works, with the consent and approval of the mayor, in repaving any street or avenue of the city or portion thereof, with granite blocks or Belgian or other improved pavement. The common council may also upon the petition of a majority of the property owners, or the owners of a majority of the property to be affected, or by a three-fourths vote of the board of aldermen and the consent of the mayor without such petition, repave with asphalt, granite or other improved pavement, any street already paved at the expense of the property owners. One-half of the cost of such repavement shall be borne by the city at large and the other half by the property benefited. * * * Provided, however, that in all cases where a surface railroad is laid and operated through any such street, one-fourth of the cost of such repavement shall be assessed upon such railroad, and one-fourth thereof on the other property benefited within the district of assessment." *Page 208
The charter of Greater New York went into effect January 1st, 1898, and the amended charter January 1st, 1901. It was provided in the former (§ 49, subd. 21) and in the latter (§ 49, subd. 17) as follows: "And the board of aldermen shall also fix the annual license fee, not exceeding the sum of twenty dollars, for each street or horse car daily operated or used in that portion of the city heretofore known as the city of Brooklyn. * * * The said license fees shall be taken in full satisfaction for the use of the streets or avenues, but the same shall not release said company from any obligations required by law to keep such streets and avenues, or any part thereof, in repair, which said obligations and the contracts, laws or ordinances, creating and enforcing the same, are hereby continued in full force and operation. But nothing in this subdivision contained shall be construed to release any railroad company in the city of New York, as constituted by this act, from any duty or obligation existing at the time this act takes effect by virtue of any law, ordinance or contract."
On the 20th day of January, 1896, while the former charter of the city of Brooklyn was in force the common council passed a resolution which was read in evidence, in part as follows: "Resolved, that this common council intends to repave Court street from Joralemon street to Fulton street (through which said street a surface railroad is laid and operated) with asphalt pavement, pursuant to the provisions of chapter 1008 of the Laws of 1895. Resolved, that the district of assessment for such improvement be and the same is fixed on the property lying on and along the lines of said Court street, between Joralemon street and Fulton street, on each side of said Court street, between the points above specified, including the said railroad on said Court street, between Joralemon street and Fulton street, upon which district one-half of the cost of such improvement will be assessed pursuant to the provisions of said statute as follows: One-fourth of the cost of said pavement shall be assessed upon said railroad and one-fourth thereof on the other property benefited within the district of the assessment aforesaid." *Page 209
On the 15th day of June, 1896, the report of the committee on grading and paving was made to the common council of the city of Brooklyn and was read in evidence. The material portion reads as follows: "The Committee on Grading and Paving, to whom was referred the matter of repaving Court street, from Joralemon street to Fulton street, with asphalt pavement, pursuant to the provisions of Chapter 1008 of the Laws of 1895, report * * * Resolved that this common council does hereby determine and decide to repave Court street, from Joralemon street to Fulton street, with asphalt pavement, pursuant to the provisions of Chapter 1008 of the Laws of 1895, and the said improvement is necessary and proper * * *."
Thereafter and on the 4th day of September, 1896, the city of Brooklyn entered into a contract with the Brooklyn Alcatranz Asphalt Company under said section 50 of the charter, as amended, by which the asphalt company agreed to lay the pavement in question, and to maintain the said work in good condition and to the satisfaction of the commissioner of public works for the period of five years from the final completion and acceptance thereof.
The defendant railroad company claims that by reason of these proceedings, under the charter, and by virtue of other provisions contained in that instrument, unnecessary to consider in detail at this time, it is relieved from liability.
There is no evidence in this record that the railroad company was assessed and paid its one-quarter of the tax to meet the expense of this repaving, but we are of opinion it must be assumed for the purposes of this case that such was the fact, as it appears that the city of Brooklyn, by its contractor, the asphalt company, proceeded to repave Court street with asphalt in pursuance of the resolution of the common council, to which reference has been made.
It is argued that while it may be admitted that the railroad company was relieved from all expense, other than the tax imposed upon it, for repaving Court street with asphalt, including the space between and alongside its tracks, that *Page 210 nevertheless it rested under the obligation to keep that pavement in repair, when completed, under section 98 of the Railroad Law.
This contention rests, in part, upon the somewhat technical point that the resolution of the common council, under which the city proceeded, referred only to repaving, and that the provision in the contract between the city and the asphalt company, requiring the latter to maintain its work in good condition for the period of five years from its final completion and acceptance, was not embraced within the municipal scheme.
We are inclined to a more liberal construction and hold that, as section 50 of the charter, as amended, contemplates raising money for repairing as well as repaving streets, the railroad company, during the five years succeeding the completion of the work by the asphalt company under its contract with the city, rested under no obligation to keep in repair the street within the statutory limits referred to in section 98 of the Railroad Law.
It must be assumed that the city discharged its duty and exacted from the railroad company its share of the expense for repaving and keeping in repair the street for five years, and it would be inequitable to impose upon the defendant company the obligation to repair, which, under ordinary circumstances, might rest upon it.
The railroad company as a taxpayer under this special assessment is entitled to every benefit secured by the city in its contract with the asphalt company.
There is no privity between the railroad company and the asphalt company, but the former having presumably paid its share of the tax for the expense of the work of repaving and repairing, may assume that the city will see to it that all repairs are made during the term of its contract with the asphalt company.
If the asphalt company failed or refused to perform the city would nevertheless be liable, so far as the railroad company is concerned, to keep the pavement in repair until the expiration of the contract. *Page 211
As the accident to the plaintiff occurred in December, 1900, it is apparent that the contract with the asphalt company was still in force, as the period of five years had not expired.
In view of the very imperfect condition of this record, concerning the transactions between the city and the railroad company in the premises, we express no opinion as to the legal situation which came into existence on the expiration of the contract with the asphalt company.
The city of Brooklyn is primarily liable in this action, and must pay the judgment recovered by the plaintiff.
The judgments and orders appealed from should be reversed and the complaint dismissed as to the defendant, The Brooklyn Heights Railroad Company, with costs against the plaintiff, and affirmed as to the City of New York, with costs to the plaintiff, to be paid by the city.