I concur on the ground that the plaintiff, in the absence of any right under section 91 of the Railroad Law to extend its route, or to operate its road over the locality in question, is not in a position to demand, under section 102, the use of the tracks of the defendant.
Judgment reversed and complaint dismissed, with costs.
*204Herrick, J.:A motion is made for a reargument in this case upon the ground that the court, in commenting upon the case of The People v. Brooklyn, F. & C. I. R. Co. (89 N. Y. 15), and showing the distinction between the facts in that case and the one at bar, overlooked the fact that one of the companies here succeeded to the rights of a company that was organized prior to the adoption of that section of the Constitution, which prohibits the extending or operating of surface railroads through the streets of cities without obtaining the consent of the municipal authorities.
That fact appears in one of the exhibits in the case, and was overlooked by the justice writing the prevailing opinion, and the attention of the court was not called to it either in the briefs or by the arguments of counsel. I fail to see, however, that such fact makes any difference in the conclusion heretofore arrived at.
In the case of The People v. Brooklyn, F. & C. I. R. Co. the defendant had by contract been authorized to operate its trains over the road of another company which had acquired the rights of a railroad company organized prior to the adoption of the section of the Constitution under consideration, and which had the right to lease its road or tracks to other railroad companies.
The plaintiff in this case occupies no such position as the defendant did in that case. The defendant in this case, not the plaintiff, has succeeded to the rights and franchises of a railroad corporation organized prior to the adoption of said section of the Constitution.
The plaintiff was organized in 1896, and succeeded to the rights of a company organized in 1893, and is, therefore, subject to the restrictions of the Constitution and Railroad Law as they existed'in 1893, and by such Constitution and law it was prohibited from extending or operating its road without the consent of the local authorities, and whatever right the defendant may possess to lease the use of its tracks to other railroad -companies, cannot be asserted for it and in its behalf by another corporation; neither can such right be asserted in antagonism to it.
The only authority for the plaintiff’s proceeding is the Railroad Law, so called, passed in 1890, known as “ chapter 39 of the general laws,” and its amendments, and that law provides simply for the condemnation of the right to use the tracks, not to condemn *205the franchises or any other rights of the defendant, nor to coerce it into exercising its right to lease its tracks to any other railroad company, and any rights to be obtained by the plaintiff in these proceedings will be obtained under and by force of such law, and not under or by force of the laws under which the defendant or its-predecessor was organized, or by force of anything which the defendant has voluntarily a right under its charter to do.
What the plaintiff can obtain is not a “ coerced lease,” so to call it, under which it can exercise all the rights and privileges that it is. assumed the defendant possesses and has the right to grant by lease or contract, because it obtained them prior to 1874, but simply those rights which the Railroad Law in force in 1893, and as since amended, can under the Constitution confer, and under the Constitution the very first step is to obtain the consent of the local authorities; the statute can confer no right until that consent is. obtained.
Counsel having upon the motion for a reargument fully presented their views, there is no occasion for a further hearing, and seeing no sufficient reason to alter the decision heretofore made, the motion should be denied.
All concurred, except Landon, J., dissenting.
Motion for reargument denied.