Prospect Park & Coney Island Railroad v. Coney Island & Brooklyn Railroad

BARNARD, P. J.,

(concurring.) The conditions under which the parties contracted are as completely changed as if the defendant used steam as a motive power. A covenant not to use steam would not be broken by the use of electricity; but when the use of electricity made the roads competing as fully as if propelled by steam, and the use of steam made the contract terminable by either party, the use of electricity is within the spirit of the contract. The conditions are changed in •other respects, so as to render the specific performance inequitable by reason of and in consequence of the sale of the plaintiff’s road to the Atlantic Avenue Railroad Company. The judgment should be reversed, and a new trial granted, costs to abide event.