(dissenting.) The contract between the parties, which was dated June 1, 1882, so far as material to the questions presented upon this appeal, provided as follows: (1) The plaintiff granted to defendant the right to use its railroad tracks on Ninth avenue, in the city of Brooklyn, from Fifteenth street to the plaintiff’s depot at Greenwood Cemetery, for the term of 21 years, free of charge, and agreed to construct at defendant’s expense all new tracks, stands, sidings, switches, and turnouts necessary to facilitate the operation of defendant’s road. (2) Defendant agreed to operate and run cars to the plaintiff’s depot during the spring, summer, and fall months, to connect with all ferryboats at Hamilton ferry, and to run on same time table as plaintiff to Fulton ferry, connecting with all trains at said depot to and from Coney Island. (3) It was mutually agreed that the agreement might be terminated by either party upon six months’ notice if at any time during the term thereof the defendant should use or permit the use of steam as a motive power on its road between Coney Island beach and Ninth avenue and Fifteenth street in the city of Brooklyn. At the time of making the agreement the plaintiff owned and operated a steam railroad to Coney Island from Brooklyn, having a depot at Ninth avenue and. Twentieth street. It operated a horse road from the depot to Fulton ferry, and also possessed a franchise to construct a horse road from its depot aforesaid to Hamilton ferry. The - defendant owned a horse road from Coney Island to Brooklyn, having one terminus at Fulton ferry and another at Hamilton ferry. The agreement was performed by defendant until January 1, 1890, when, having reconstructed its road from Prospect Park to Coney Island, so as to operate it with electricity, it ceased running its cars from the ferries to plaintiff’s depot, and ran them all to its own depot at Prospect Park. The court found as a fact that plaintiff had fully performed the agreement on its part, and enjoined defendant from operating any of its cars unless during the spring, summer, and fall months of the remainder of the term of the agreement it either ran its cars to plaintiff’s depot, making the connection as provided in the contract, or should run detached or “jigger ” cars from its main line at-Ninth avenue and Fifteenth street to said depot, and so operate them as to connect with cars on the main line, and transport to the depot all passengers who so desired, without delay, inconvenience, or expense.
I am unable to agree iii the construction put upon the contract by my associates, to the effect (1) that steam used in generating electricity used in defendant’s trolley system is fairly within the meaning of the provision which permitted either party to terminate the contract when defendant should use steam as á motive power on that part of its road between Coney Island and Ninth avenue and Fifteenth street; or (2) that it was within the contemplation of the parties and the fair meaning of the contract that plaintiff should continue to operate the Vanderbilt Avenue Line, and that there should be no greater rivalry for passenger traffic between the Twentieth street depot and Fulton ferry than that which would naturally result from the plaintiff’s desire to work in harmony with defendant.
The use of steam as a motive power did not ipso facto terminate the-*1051contract. The provision was permissive only, and there is no evidence that defendant ever served the notice required, or ever claimed that the condition was created which permitted the termination of the contract. In view of the recent decision of the court of appeals in the case of Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 32 N. E. Rep. 148, it would seem unnecessary to argue that the propulsion of cars by electricity was not using steam as a motive power. In that case defendant was authorized .by law to propel its cars by the use of “any mechanical or other power except steam.” It adopted and used electricity, applying it by the overhead trolley system, and it was held that it was acting within its authority.
The conclusion that the defendant should continue to operate the Vanderbilt Avenue Line is not based upon any express provision of the contract, nor do I think it can be fairly implied from anything contained in the agreement or in the situation of the parties at the time the contract was entered into. No greater reason exists for this conclusion than for one that it was contemplated that plaintiff should not sell or operate the Hamilton avenue road. The defendant knew that the plaintiff possessed the Hamilton avenue franchise, and offered to purchase it, and of course it knew that plaintiff was operating the road to Fulton ferry. The sale of the Hamilton avenue franchise was refused, unless defendant purchased both lines. This, it áppeared, it was unwilling to do. At the time of making the contract the parties were, therefore, actual competitors for the travel to .and from Fulton ferry, and prospective competitors over the Hamilton avenue route; and, as the contract contains no covenant that plaintiff would not operate both of these routes, it must be assumed that such a contingency was within the contemplation of both parties when the agreement was made.
The conclusion that the rights of the defendant were impaired by the sale to the Atlantic Avenue Company is opposed to the findings that the sale was made subject to the defendant’s rights, and that plaintiff had fairly performed all its obligations of the contract. These findings have evidence to support them, and, in the absence of a certificate that all the evidence is contained in the case, are not subject to our review. Aldridge v. Aldridge, 120 N. Y. 614, 24 N. E. Rep. 1022. There was no legal obstacle to the sale to the Atlantic Avenue Company, and unless it violates some provision of the contract was not a thing which constituted a defense to this action. That it was not considered as violating or impairing defendant’s legal rights under the contract is conclusively shown by the fact that defendant never made any objection to it, but, on the contrary, continued without complaint to perform its contract for four years after the sale was made.
It is also claimed that the contract is ■ not one of which the court should decree specific performance; that the situation has materially changed since the agreement was made, and that the plaintiff should be" left to his remedy at law. The discretion which courts of equity exercise to decree or deny specific performance in cases of this character is not an arbitrary or capricious one. It rests upon well-settled rules of equity procedure. Where the contract is a fair one, and the situation at *1052-the time when specific performance is asked is one which the parties may fairly be said to have contemplated or foreseen, and where performance inflicts no undue hardship on the defendants, and gives no undue advantage to the plaintiff, and where the construction of the instrument is clear, and the breach clear, then performance must be decreed, and the court would not be justified in refusing it. But when, for causes ■not. chargeable to the defendant, an enforcement of the agreement would work an injustice, or defeat the ends contemplated by the parties, or when the surroundings of the property have materially altered, or the situation of the parties with reference to the subject-matter of the contract has so changed that the covenant sought to be enforced is not applicable to the state of things existing at the time of the trial, and would cause no benefit to the plaintiff, and impose a hardship on the defendant, in such a case a decree for performance may be denied, and the plaintiff left to pursue his remedy for damages. As bearing upon the changes in the situation of the parties to this action two facts are referred to: (1) The sale to the Atlantic Avenue Company of the plaintiff’s horse-car lines, and their operation by that company; and (2) the introduction of electricity as. a motive power on railroads. The first fact needs no consideration, for the reason, as already pointed out, ■that it was a thing within the contemplation of the parties at the time -of making the contract, and there is no finding that either plaintiff or the Atlantic Avenue Company violated the contract. The introduction of electricity as a motive power operates in this ease solely to benefit the- defendant, and affords it no ground to refuse to perform its contract obligation. The parties at the date of the agreement each owned a road between Brooklyn and Coney Island, but, by reason of the defendant’s being a horse road exclusively, it could not successfully compete with the plaintiff. The agreement was beneficial to the defendant, in that by it it was enabled to enjoy part of the travel between the two places. By the use of electricity, defendant is now enabled to successfully operate its road to Coney Island south of Prospect Park, and carries passengers at a less rate of fare than plaintiff does upon its steam road, and it has obtained a large part of the travel which has been diverted from plaintiff’s road. The decree made in this case does not interfere with this operation of defendant’s road. It is left free to use electricity as a motive power, and to operate its road to Coney Island, and take up passengers along its lines in the city, and carry them to its depot at Prospect Park; but it compels it to deliver at plaintiff’s depot such passengers as use its horse roads in the city, -and desire to take the steam road to the island. This it is permitted to do by using transfer or “jigger” cars on Ninth avenue from Fifteenth street to the depot. The evidence of the case discloses no reason why it should not perform that obligation, and to permit it to violate its agreement, and divert all the travel over its horse road to its own electric cars, would give to it all the benefits arising from the use of this new motive power, and impose all the hardships upon the plaintiff. I am of the opinion that the covenant sought to be enforced is applicable to the present situation of the parties, and should be enforced, and, consequently, the judgment should be affirmed, with costs.