The relator has obtained a peremptory writ of mandamus requiring the Consolidated Telegraph and Electrical Subway' Company to grant'to the Long Acre Electric Light .and Power Company space in its subway ducts for the placing of the electrical conductor therein, extending-through various streets in the city of New York. The proceeding was instituted bv an order to show cause based upon affidavits and a peremptory writ was granted upon motion. To entitle the relator to writ of mandamus it must show' 1 y undisputed facts a clear legal right to the relief demanded. (People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360.)
If any question of fact upon which the relator’s right to relief depends is presented, or. if' there is a serious doubt about its legal right to such relief, the peremptory writ should be denied and an alternative writ granted. I think upon the facts as they appeared before the court below the relator had not a legal right to the relief that it asks for. The relator’s claim is as the owner of a franchise granted by the board of aldermen to the American Electric Manufacturing Company." It appeared that the American Electric Manufacturing Company was incorporated under the Manufacturing Corporation Act of 1848. (Laws of 1848, chap. 40, as amd.)
On the 31st day of May, 1887, the board of aldermen passed a resolution by which permission and authority were granted to the American Electric Manufacturing Company to locate and erect poles and hang wires and fixtures thereon, and to place, construct' and use wires, conduits and conductors for electrical purposes in the city of New York in, over and under the streets, avenues, wharves, piers and parks therein specifiéd according to sucli plans as may be directed, approved or allowed by and subject to the powers of the electrical subway commissioners-and subject to the provisions of chapter 499'of the Laws of 1885, and under the supervision of the *93commissioner of public works and of the department of public parks, within the respective'territorial jurisdictions. Mothing seems to have been done under this resolution by the American Electric Manufacturing Company • but on the 18th day of April; 1888, there was executed an instrument by which the American Electric Manufacturing Company granted unto one Townsend, his executors, administrators and assigns, “ the sole and exclusive right and privilege to operate for all purposes under the franchise, privilege, permission, authority or right granted to it by the Board of Aldermen of the City of Mew York, by a resolution adopted by the said Board on the 31st day of May, 1887, to locate, erect and set up poles and hang wires' and fixtures thereon, and to place, construct and use wires, conduits and conductors for electrical purposes in the City of Mew York, in, ?ver and under the streets, avenues, wharves, piers and parks therein or adjacent thereto, according, to such plans as may be directed, approved or allowed by and subject to the powers of the Electrical Subway Commissioners, and" to the provisions of Chapter 499 of the Laws of 1886.”' Subsequent to the execution of this instrument on the 14th day of March, 1889, there was incorporated under the Manufacturing Act of 1848, as amended, the- American-Electric Illuminating Company, and on the 19th day of April, 1889, Townsend assigned and transferred to this corporation “ any right, title and interest I have and hold o may have and hold as, trustee for such American Electric HI uminating Company, or individually in and to and under the paper writing and assignment, dated April 18th, 1888, made by the American Electric Manufacturing Company, a company duly organized under the laws of the State of Mew York, unto me, and the rights, permission, privilege, franchise and authority therein referred to.” It appeared that subsequent to the execution of the instrument by Townsend and in and about the year 1889, the American Electric Illuminating Company, in the regular course of its business, duly installed an office and an electric lighting station at 426 East Twenty-fifth street, borough of Manhattan, in the city of Mew York, and within said building it installed and operated a complete electric light producing equipment, and in and upon certain streets in the city of Mew York it strung wires and poles, some of which were erected and owned by it and others had been formerly erected and used by the East Mi ver Electric Light *94Company and the Thomson-Houston Electric Light Company, and by means of such electrical equipment it supplied to the public electric light under its franchise, grant, permit, license and contract to the full extent for which its facilities were equal, and continued so to do for a period of more than one year thereafter, and .until its poles, wires and lamps, together with the poles, wires and lamps of other companies in the city of New York, were cut down and removed by order of the board of electrical control and the . commissioner-of public works. It is also alleged that by such action on the part of the city of New York the American Electric Illuminating Company was injured and its property destroyed, and. there being no electrical subways in that section of the city of New York at that time it became incapacitated from furnishing its' customers in said streets and avenues with electricity for light and all other purposes. Subsequently, and in the year 1897, judgment was obtained against this company. A receiver was appointed who sold out all the property and rights of the company, and the rights thus sold' were-acquired by the relator. So far as appears, the relator simply holds whatever right it acquired under the sale, by the receiver 'of the property, franchise, and rights of the American Electric Illuminating Company.
I think there is a serious doubt as to the right of this relator to the franchise granted by the city of New York to the American Electric Manufacturing Company. Assuming that that company was in possession of a legal franchise to use the streets of .the city of New York for its wires, conduits or conductors, it never formally assigned such franchise to Townsend. I know of no power of the' . holder of a franchise to grant to an individual a new franchise. While it may be assumed that the owner of a franchise, unless in some ivay restricted, can assign its franchise, so that Avhen the assignee has constructed the necessary appliances to use the ^franchise, his right to operate the franchise Avill not be interfered with,: it does not appear that the owner of a franchise Avould be authorized to grant to another the right to use the franchise. . The American Electric Manufacturing Company.by this instrument did not divest itself of the franchise. .. If it could grant to Townsend the right to exercise the franchise I can see no reason why it could not give a similar grant to any other person and thus grant franchises *95If such, a grant would be sufficient to confer upon the grantee a right to use the franchise granted, there would apparently be two persons authorized to use the franchise, and this might be indefinitely extended to as many persons as the original grantee should desire. What, as I view it, the board of aldermen granted, assuming that their grant was valid, was the power to this corporation, organized under the laws of the State, to exercise a certain franchise. Certainly that corporation had no authority to grant sub-franchises to individuals or corporations to use the streets of the city of New York without the consent of the State or city.
I also think that this relator is not now in a position to "exercise any franchise, even assuming that it had acquired the franchise granted to the American Electric Manufacturing Company. It is not claimed that this relator has acquired the property or plant which the American Electric Illuminating Company operated in the year 1889, or that that "plant has been in existence, or can be used by the relator. It claims to have acquired under a sale by a receiver whatever right the American Electric Illuminating Company had at the time that the sequestration proceedings were instituted. Now, the only authority granted by the resolution of the board of "aider-men was to place, construct and use wires, conduits and conductors for electrical purposes in, over and under the streets, avenues, wharves and parks “ according to such plans as may be directed, approved or allowed by and subject to the" powers-of the Electrical Subway Commissioners.” Before this company, or any one having acquired the right of this company to exercise such a franchise, would exercise it, the “plans” must be' approved or allowed by the board of electrical control, or those public officers who have succeeded to its duties. It is not given any right to use the streets of New York, except in accordance with plans so approved; and until such plans are approved, no right exists under the resolution to use the streets or operate the franchise. It ajipears that no such plans have been prepared or approved; and that the relator "is not in a position to exercise the franchise, and, therefore, it seems to me that the relator having no authority when the application was made to use the franchise, no mandamus could be granted. I think this defendant was entitled to insist that before a mandamus should be granted the relator should show a clear legal right to use the streets *96of the city of New York under the franchise granted by the board of aldermen. It appears in opposition, to this motion that there, are no unoccupied ducts in the streets through which the relator séeks to place its. electrical conductors. Under its contract with the city of New York, which has been ratified by the Legislature, the defendant is bound to construct ducts in the streets, if unoccupied ducts do not exist, when demanded by any corporation or individual entitled to use the streets of the city for electrical'conductors. If this mandamus is granted this corporation will be compelled to construct for the use of the relator electrical' conductors, although it , does not appear that the relator is authorized, to use the ducts when constructed, or will ever be authorized to exercise the franchise to furnish electricity to the public. The rules of the commissioner of water supply, gas and" electricity, who has succeeded to the powers of the board of electrical control, apply only to the permission of a person authorized to use the streets, and have no application to the approval of the plans for the exercise of franchises, which,, as I read the resolution of the .board of aldermen, constituted a condition precedent to the exercise of any franchise. But these rules seem to contemplate an application to the commissioner before the defendant can be required to supply ducts. Rule ! provides that no wires, cables or other electrical conductors shall be placed in any subways^. Conduits or ducts now constructed, or hereafter to be constructed,, without the written consent of the commissioner of water supply, gas and electricity being first obtained,- and that whenever any duly, authorized corporation or person-desires or is required to 'place electrical conductors underground, application must be made to- the commissioner of water supply, gas and electricity on forms provided for that, purpose for such, accommodation as may be desired, and if the commissioner acts upon such application favorably, he will issue the necessary authorization in the event that the unused facilities of existing'subways aré insufficient to meet legitimate requirements, and provision is then made for the-construction of electrical subways and for the-application for space in the subway, to -be made to the subway company; and it is then provided that when application has been made and space assigned for conduits underground, the written consent of-the commissioner must be obtained /-before. any conductors are placed in the space so assigned. Under these rules it *97would appear that the right to use the streets must first be approved by the commissioner, and the right to apply to the subway company must be predicated upon such approval by the commissioner. To s ly that the court can grant a mandamus to the subway company, requiring it to allow a corporation space in its subway before the commissioner has acted favorably upon an application for a permit for the use of the streets underground, seems to me to be a violation of these rules.
I do not think, therefore, that this relator is in a position to ask for"this mandamus, and that the court below should have denied the application.
Laughlin, J., concurred.
Order affirmed, with ten dollars costs and disbursements. Order filed.