The New York Legislature in 1909 authorized the city of New York to grant the defendant railroads such franchise rights as might be reasonably required for suitable track and station facilities in the vicinity of One Hundred and Forty-ninth street in New York city. Pursuant to this legislation, the railroads submitted plans and in 1917 these plans were approved by the city, and an agreement was entered into between the city and the railroads confirming the franchise obligation and providing that the railroads should pay the city $55,000 in the event of a final adjudication in favor of the latter upon an agreed statement of facts. Since 1917 the defendants have failed to construct the station. Nor has the $55,000 been paid. Finally, in 1935, the city instituted this suit for specific performance and to recover the $55,000. An answer was interposed by the defendants and, on a motion by the city, the Special Term struck out the fourth separate defense. The Appellate Division has affirmed and certified to this court the general question whether that defense is sufficient in law.
I believe that the Special Term and the Appellate Division have reached the correct result in granting the motion to strike out the fourth separate defense. Courts should not construe pleadings too strictly, especially on motions to strike out, but where the matter pleaded in an answer does not under any construction constitute a defense, the plaintiff is entitled to have it struck out.
The fourth defense is pleaded as a complete defense to the cause of action, yet admittedly it does not constitute a defense to the demand for judgment for the $55,000. This alone furnishes sufficient ground for affirming the decision already reached.
Turning, however, to a consideration of the defense as applied to the demand for specific performance, again it is found to be inadequate. It contains three separate elements: First, that the funds which the defendants will need for the erection of the station can be raised only *Page 299 by the issuance of securities and that under Federal statute such securities cannot be issued without obtaining the permission of the Interstate Commerce Commission, which permission will not be granted unless it is shown that the issue is for some object compatible with public convenience and necessity; second, that neither public convenience nor necessity require the construction of the station, and that the stopping of trains at such a station will interfere with the proper operation of the railroads and the efficiency of their service; and third, that the defendants cannot afford to construct such a station.
The fact that the necessary funds will have to be raised by the issuance of securities, and that permission of the Interstate Commerce Commission will be necessary before such securities can be issued, does not constitute a defense to this action for specific performance. The Interstate Commerce Commission has no jurisdiction over the erection of stations, such jurisdiction remaining in the States, and at most the approval of the plans by the Interstate Commerce Commission may be necessary. (SeeInterstate Commerce Comm. v. United States ex rel. LosAngeles, 280 U.S. 52; Atchison, T. S.F. Ry. Co. v. RailroadComm., 283 U.S. 380.) Certainly it is no defense to an action for specific performance of a contractual obligation to say that permission for the issuance of securities will be necessary and that such permission if applied for may be denied, in the future, by the Commission.
Nor does the allegation that the defendants cannot afford to erect the station constitute a defense. Neither poverty nor difficulty of obtaining the money has ever been recognized as a defense to an action on a contract.
Although the defendants admit that the fourth defense, when drafted, was intended only to raise the question of the necessity for obtaining permission to issue securities from the Interstate Commerce Commission, they now contend that the language of the defense is so broad that it also raises the defense that the erection of the station is contrary to public necessity and convenience. *Page 300 By statute the Legislature authorized the erection of a station at or in the vicinity of One Hundred and Forty-ninth street, subject to the approval of the plans by the city. This amounted to a finding that public convenience and necessity would be served by such a station. (City of New York v. Brooklyn CityR.R. Co., 232 N.Y. 463; Village of Fort Edward v. HudsonValley Ry. Co., 192 N.Y. 139.) The making of such a determination is a legislative function, and although it is generally delegated to the Public Service Commission, the Legislature always has the power to make the determination for any particular case.
The Legislature made the determination that public necessity and convenience would be served by the construction of the station, and authorized its erection, and the city cannot be forced to turn again to the Public Service Commission, which the Legislature itself created, to request it to confirm the determination of the Legislature. It is true that many years have elapsed since the statute was enacted, and conditions may have changed during that time. Nevertheless, any argument that public necessity and convenience will no longer be served by the erection of the station must be directed to the Legislature and not to the courts. (Public Service Comm. v. Westchester StreetR.R. Co., 206 N.Y. 209, 220; Matter of Staten Island R.T. Ry.Co., 220 App. Div. 80; affd., 245 N.Y. 643.) At least two legislative sessions have been held since the commencement of this suit, and apparently no action has been taken by that body or the defendants.
This suit by the city is based on its contract with the defendants. There has been long delay on the part of the defendants, and perhaps the city has been overly patient. Whether unexplained delay may be evidence of waiver or acquiescence in non-performance, we do not have to decide. The defendants neither claim that they have been harmed by the delay nor do they plead waiver or abandonment. The defense merely states that *Page 301 public convenience and necessity will not be served. That question, as already noted, is in the case at bar one for the Legislature and not for the courts.
The case of Delavan v. Duncan (49 N.Y. 485) does not appear to be in point. It involved the question whether specific performance should be granted to private individuals where laches and other acts on the part of the plaintiff make it inequitable to grant such relief. The pleading involved herein makes no reference to lapse of time nor laches. Moreover, it is doubtful whether mere delay is sufficient ground for denying specific performance where the plaintiff is a municipality and the object of the suit is to require the erection of a station which the Legislature has determined is required by public convenience and necessity. If the defendants were obligated to erect this station they should not be in a better position through failure to keep their agreement.
In addition it may be pointed out that evidence in support of an appeal to the discretion of a court of equity to withhold relief or to grant it upon conditions in accord with justice and equity, need not be pleaded in the answer. (Miles v. DoverFurnace Iron Co., 125 N.Y. 294.) There is no valid reason for drawing a distinction between that case and the case at bar.
The order appealed from should be affirmed, with costs. The certified question should be answered in the negative.
O'BRIEN, HUBBS and LOUGHRAN, JJ., concur with RIPPEY, J.; LEHMAN, J., concurs in opinion, in which CRANE, Ch. J., concurs; FINCH, J., dissents in opinion.
Orders reversed, etc. *Page 302