The plaintiff owned or controlled the following franchises for passenger travel between Brooklyn and New York ferries and Coney Island on and prior to June, 1892: One for a horse railroad from Fulton ferry via Park, Vanderbilt, and Ninth avenues to a depot at Ninth avenue and Twentieth street, Brooklyn, generally known as “Culver’s;” the other, also for a horse railroad, from Hamilton ferry via Fifteenth street and Ninth avenue to said depot. The road was built and operated by plaintiff on the former line, called the “Vanderbilt Avenue Line.” The latter franchise had not been practically used. From this depot (Culver’s) it carried passengers by an ordinary surface road to Coney Island, at West Brighton, its Cars being drawn by locomotive steam engines. The defendant owned and operated two lines of horse cars,—one from Fulton ferry, by way of Smith, Jay, and Ninth streets, to Ninth avenue, and thence via Ninth avenue to Fifteenth street, where it turned off towards Coney Island, and ran down the old Coney Island road to Coney Island, where it turned westward, and terminated near the terminus of plaintiff’s steam road; the other from Hamilton ferry, through Hamilton avenue, via Fifteenth street to Ninth avenue, where it joined its former line, and thence its passengers were carried over “the southerly *1047portion” of its own line to Coney Island. It is thus apparent that defendant’s line, while in competition with plaintiff’s lines, was nevertheless practically limited to city business, for it ran within five blocks of plaintiff’s depot, and its passengers would there leave its cars and take the plaintiff’s “rapid transit,” getting over the five blocks as best they might. Defendant’s were, therefore, in a certain sense, a feeder to plaintiff’s steam road, unless it adopted some method of rapid transit on the southerly portion of its line. Plaintiff had made an arrangement with the Iron Steamboat Company, by which its excursion tickets were good' over its steam and horse-car road to bring passengers from Coney Island to Fulton ferry; but the defendant was nevertheless bound to make some user of its franchise from Ninth avenue to Coney Island in order to save it, but at little, if any, profit. It was therefore apparent that both parties would be gainers, and the public as well, if defendant was enabled, for the time being at least, to carry its passengers over these five blocks, and deliver them at plaintiff’s steam railway depot.
With this idea in view, the two companies entered into the contract which plaintiff seeks now to have specifically performed by our decree. It provides that from June 1,1892, for a term of 21 years, the defendant may use plaintiff’s tracks on Ninth avenue, from Fifteenth street to its depot, (Culver’s,) free of all charge for rent, repairs, or alterations, but that such license should not interfere with plaintiff’s stands for its own cars-, or the operation of its own road, by which was intended the Vanderbilt Avenue Line. The defendant covenanted that it would run its horse cars to this depot, and therefrom to Fulton and Hamilton ferries, respectively, by time tables prepared by plaintiff, so far at least as the Ninth avenue lines were in common, during the spring, summer, and fall months. The plaintiff convenanted to construct certain additional facilities at or about its depots for defendant’s exclusive use, and that its own cars should not unnecessarily interfere with defendant’s, and to pay the cost of these additional facilities. It was also agreed that the tickets issued by the Iron Steamboat Company, taken from passengers on plaintiff’s steam trains, should be good over defendant’s lines, the plaintiff accounting to defend for its part of the holder’s transportation. This contract also provided that if defendant at any time used or permitted steam as a motive power on the southerly end of its line, then, on six months’ notice, the contract should be terminated, at the option of either party, and in that event the plaintiff would repay defendant the cost of said additional terminal facilities at the Culver depot. We think it apparent that the plain purpose of this contract, so far as it affected the parties thereto alone, was to avoid competition for through Coney Island travel, to enable plaintiff to obtain the benefit of defendant’s Hamilton avenue line, with'perhaps its better facilities from Fulton ferry, as a feeder for its steam road, to save the necessity of building its proposed road to Hamilton ferry; and that it was to continue only so long as the two companies wrere not competitors for the through Coney Island travel, and that it should terminate when they again came into practical rapid transit competition. True, the power of this limitation is expressed with reference to steam as motive power, but that form of *1048expression, as it seems to us, was used only because steam was then the only means in practical use as a motive power for rapid railway travel. The central thought of these parties in this respect was the avoidance for the time being of competition by any means on those portions of their lines which were practically adjacent, viz. the southerly portion of defendant’s line, as compared with that part of plaintiff’s line which ran from Culver’s depot to the island. It can scarcely be said that they intended to exclude the use of a cable propelled by steam power, for in that case the steam would be active agent in energizing the otherwise inert cable. The distinction between locomotive steam as power and steam as motive power on railroads was recognized so far back as 1871, (see chapter 609. See, also, Sea View Railroad Case, 84 N. Y. 313; People v. Newton, 48 Hun, 477, 1 N. Y. Supp. 197;) and it is a fact that this distinction had been drawn bjr the court of appeals in the Sea View Railroad Case in March, 1881, (84 N. Y. 313,) and yet it would occasion quite as much surprise to find that these parties thought of a steam cable system as of electricity when they made this contract. We repeat that the use of the term “steam as motive power” seems only another form of referring to rapid transit by whatever power accomplished as means of bringing these parties into competition on the southerly part of their lines. In this view, it seems to us that the steam used by defendant in generating the electricity used in its trolley or overhead system is fairly within the contemplation of the parties. But, as already indicated, we do not base our judgment on that alone.
Again, we think that the changed circumstances of the parties render it inequitable that the extraordinary remedy of specific performance should be applied. While, it is true that there is no covenant on the part of plaintiff -to maintain the status quo of the contract, it still plainly contemplated that the plaintiff should continue to operate the Vanderbilt Avenue Line, and that there should be no greater rivalry for the passenger traffic between the Culver depot and Fulton ferry than that which would naturally result from plaintiff’s desire to work in harmony with defendant, and within the spirit of its covenant that its cars and track should be so operated as not unnecessarily to interfere with defendants. So long as that relation existed, the plaintiff was directly interested to avoid conflict, and to be fair in all its terminal arrangements as means to an end, viz. the increase of traffic for its own road; and this personal interest might well have been relied on by defendant as means of securing a generous—at least a fair—arrangement of running times, departures, arrivals, etc. Indeed, as already remarked, the contract subordinated defendant to time tables prepared by plaintiff for those five blocks, and that, of course, affected the whole of both its lines. But the plaintiff afterwards sold out its Vanderbilt Avenue Line to a rival street-railway company, and the evidence pretty plainly shows that the defendant was thereafter materially obstructed in its own terminal facilities at the Culver depot by the acts of this new owner and operator of that line. Without intending any reflection upon the management of this new operator of that line, it was but natural that it should consult its own convenience to a greater degree—or, rather, that it should not *1049consult defendant’s convenience to the same extent as it would have been to plaintiff’s interest to do if it had remained the owner and operator of the Vanderbilt Avenue Line. Nor was this complaint' purely technical or insignificant. The evidence fairly shows that defendant’s earnings were materially and immediately decreased after that change, .and to any other cause than the preference exhibited by travelers for the Vanderbilt Avenue Line, arising out of defendant’s inability to start and progress its cars with the same promptness and frequency as when plaintiff controlled the terminal facilities. We think that the spirit of this ■contract was that defendant should not be subjected to the temptations ■of greater rivalry in this respect than that which existed immediately when the contract was made. It subjected its entire business at that point, which had practically become the eastern terminus of both its lines, even to the time table of plaintiff. This was a subordination having its origin in personal confidence, predicated on identity of interest ■and common purpose. But by this change defendant was subjected to the time-table arrangements- made by a stranger, a business rival, who was under no restraint, or, if under any, it was not predicated upon the same guaranty of fairness; and the best evidence of the change is the decreased earnings of defendant’s business. And it would seem to have ■been the object of this action to fasten just this subordination upon defendant, unless we have mistaken the object of some of plaintiff’s requests for findings. Thus the plaintiff has deprived defendant of a material and valuable part of the. plain consideration of this contract, and yet it seeks the extraordinary remedy of specific performance to enforce its side of the bargain when it can no longer give that which it promised, or, at least, created the expectation that it would give. Perhaps it may be thought that we have gone too far in predicating judgment upon the assumed fact of actual and serious damage to defendant upon these terminal inconveniences and disappointments. But the result will be the same in any view, because defendant requested findings on these points, which the court refused, manifestly for the reason that it deemed them immaterial. We think they were material, and that, if the fact had been found according to defendant’s contention, it would alone have been an answer to the plaintiff’s right to require specific performance of such covenants as these were. We therefore direct a new trial, with ■costs of this appeal to the defendant to abide the event.