Among other things required by the statute (section 14, c. 140, Laws 1850) is that the petition shall state that it is the intention of the company in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association. By section 15 of the same act any person who is interested in the proceedings may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it. The petition contained this statutory requirement, and the answer, by the sixteenth paragraph thereof, controverted it. The special term has, in effect, excluded all evidence that was offered in behalf of the city to controvert this allegation of the petition, and to establish its affirmative allegation that the petitioner was not in a condition to and did not intend to construct the railway. The testimony of Mr. Swayne, the cross-examination of Mr. Bobert Bliss, and of Andrew Dwinneile, if these witnesses had been permitted to answer the questions propounded to them, was designed to show what was actually in issue between the parties; that the company, in fact, had no stability or capital, and had not done any act during the 15 years since its incorporation to show a bona fide purpose to construct its railway. Good faith is an essential element to granting a petition of this character. Otherwise the courts would be lending themselves to mere speculative projects of gentlemen who, having ascertained by inquiry through a commission what money they must expend for right of way, may thus be enabled to sell such rights or negotiate the stock and securities. Forth e error in rejecting this evidence, we should in any event feel constrained to reverse the order made at the special term.
But there are other reasons why this petition should not have been granted, which, if correct, would dispense with the necessity of a new trial. By the first maps filed, and under the act of 1872, there was no purpose on the part of the company to occupy any portion of Broadway below Union Square. Indeed, a careful reading of that act would lead quite irresistibly to the conclusion that it was the intention of the legislature to prohibit such occupation by the petitioner throughout Broadway, except to cross it at or near Forty-Second street, and such prohibition was in fact and in words accomplished, unless the right was reserved to the petitioner to erect a branch of its main line through this part of the city under the following clause in that act, viz.: “Also from a point south of Forty-Second street, on and to connect with the line heretofore described, easterly and northerly to the Grand Central depot at *116Forty-Second street and Fourth avenue. ” By virtue of this clause, and under an assumed authority derived from the act of 1881, the petitioner has now filed its map by which it claims the right thus to construct the railway upon Broadway from Chambers street to Forty-Third street, and thence to the Grand Central depot. When the charter of the petitioner was granted to it originally there was no prohibition in the constitution of this state against the right of the legislature to permit the occupation of streets by railroads. By the amendment, however, of the constitution of 1874 (article 3, § 13) the legislature was prohibited from authorizing the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained, or in case the consent of such property owners cannot be obtained, the general term of the supreme court in the district in which it is proposed to be constructed might, upon application, appoint commissioners, etc. As it seems to us, the petitioner is attempting to evade this constitutional prohibition through a misapplication of the act which it secured to be passed by the legislature in the year 1881. The right to complete the railway permitted by the act of 1872 cannot, under the act of 1881, be enlarged so as to give in effect to this corporation a right to lay its tracks where it did not possess that right prior to the constitutional prohibition. It cannot be permitted to the petitioner, under the guise of constructing a railway under its original charter, to occupy portions of the streets in the city of Sew York for which, by the constitution of the state, it is required, first, to obtain the consent of a majority in value of the property owners, and the consent also of the authorities of the city. Sor does the act of 1881 purport to give any warrant for the contention of the petitioner. It is not the laying down of tracks authorized by the act of 1872 which is the object of this petition, but rather the laying of an entirely new railroad. In this respect the case differs, at all important points, from the case of In re Railway Co., 70 N. Y. 361. In that case there was no attempt to extend the routes secured by the charter of the company. In no sense can the Broadway portion of the streets covered by the maps of the petitioner be deemed a branch of the main line which it was authorized to construct. The meaning of the clause above referred to, by which the first branch running to the Grand Central depot might be located south of Forty-Second street, is that it should connect with the main line, which had in terms been authorized by the legislature in the description given in the act.
For these reasons the order appealed from should be reversed, and the application of the petitioner denied, with costs.
Van Brunt, P. J., concurring. Bartlett, J., taking no part.