Opinion
January 24, 1913.
De Witt Clinton and Spencer Clinton, for the appellants grade crossing commissioners. Adelbert Moot and H.Z.M. Rodgers, for the appellant International Bridge Company.
Jeremiah J. Hurley and Clark H. Hammond, for the appellant City of Buffalo.
Philip A. Laing and J.H. Madden, for the respondents.
We have first to determine whether the order of February 15, 1912, by which this action was converted from one in behalf of plaintiffs as property owners on Dearborn street to one by them as taxpayers in behalf of the city of Buffalo was properly granted.
The question of the power of the court to permit such an amendment need not be considered. Assuming that the power exists and that the matter rests in the judicial discretion of the court, the question is, was that discretion properly exercised in this case? Giving such permission to serve the amended complaint and to make and file the necessary bond to convert the action from an individual action into a taxpayer's action was granting a favor, for plaintiffs' time to amend had expired. Amendments such as these are to be granted only "in furtherance of justice," as the section of the Code conferring the authority expressly provides (§ 723). Was it in furtherance of justice that plaintiffs should be permitted to litigate in behalf of the public against the closing of this part of Dearborn street, after the Legislature had by the special act expressly affirmed and ratified the same and made the same entirely legal and valid against all the world except these two plaintiffs? The power of the Legislature to close or authorize the closing of this street by special act is not questioned. The courts, we think, are bound to assume that this special act was passed in the public interest, and that the public inconvenience, and the special inconvenience of those living in the immediate vicinity who were deprived of the use of this street across those railroad tracks, were duly considered by the Legislature and determined by it as outweighed by the public safety in doing away with this grade crossing of fourteen railroad tracks. Nevertheless, plaintiffs have been permitted, not as matter of right but as a favor, in furtherance of justice, not to plaintiffs alone but to them as taxpayers representing the city of Buffalo and its inhabitants, to so change the form of their action as that they may prevent this special act of the Legislature from having any effect whatever to validate the elimination of this particular grade crossing.
We think the discretion of the courts should be exercised in this case to give effect to the fair intent of this legislative act as fully as may be, reserving only to plaintiffs the right to maintain and assert in this action such individual or property rights as they may have. The relief which has been granted to plaintiffs in this case is not based upon any personal or property rights peculiar to themselves. While they are each property owners upon Dearborn street, it was held at the trial that it was not necessary for plaintiffs to show an injury to themselves to maintain this action, and it was further held that it did not appear that plaintiffs had suffered any injury peculiar to themselves. ( 76 Misc. Rep. 649.) So the action proceeded and was determined entirely upon the ground that the city of Buffalo and its inhabitants and taxpayers had the right to have this closed portion of Dearborn street reopened for public use. The Legislature has, in effect, said that the city of Buffalo, its inhabitants and taxpayers, other than these two plaintiffs, have no such right. This result has been brought about by the exercise of the judicial power to grant amendments in furtherance of justice.
We think that the claims of justice in this case require that full effect should be given to the act of the Legislature, and that plaintiffs should not have been permitted to change the form of their action so as to proceed in behalf of the city and its other inhabitants, as to whom the supposed illegal action of the grade crossing commissioners had been made entirely legal and valid before such change was made, and none of them could, on their own account, have maintained such an action.
Our conclusion is that the order permitting plaintiffs to amend their complaint and convert this action into a taxpayers' action was improvidently granted.
It is contended by respondents that the special act does not apply because by its terms it ratifies and affirms only the official acts of the grade crossing commissioners "in making and executing any contracts with any railroad company," whereas the contract involved here is made with the International Bridge Company. This contention, we think, should not be sustained. The bridge company is, we think, a railroad company within the intent and meaning of this act. It maintains and operates railroad tracks across Dearborn street and Niagara street and over its bridge across the Niagara river. This is exclusively a railroad bridge, and these tracks are used by connecting railroads across this bridge. Such was the construction given by the Supreme Court of the United States in United States v. Delaware Hudson Co. ( 213 U.S. 366) as respects the application of the Hepburn Act, so called, to the defendant in that case, which had been chartered as a coal mining company and authorized to construct a canal to transport its coal, and many years later authorized to construct a railroad for the transportation of its coal and as incident to its coal mining business. It was held to be a railroad company within the intent and meaning of that act, and we think it should be held that the defendant bridge company is a railroad company within the intent and meaning of the special act in question.
Without considering the other questions presented upon these appeals, our conclusion is that the order permitting plaintiffs to amend their complaint and to make and file a bond nunc pro tunc should be reversed, and that the judgment appealed from should be reversed and a new trial ordered, with separate bills of costs to the defendants appearing by separate counsel to abide the event.
All concurred, except KRUSE and ROBSON, JJ., who dissented in a memorandum by KRUSE, J:
If, in eliminating the grade crossing at Niagara street, it was necessary to close Dearborn street, I think the grade crossing commissioners had power to contract with the defendant bridge company, as was done, for closing that street, and that the city is justified in permitting the same to remain closed. But the evidence seems to show, and the trial judge finds, that the closing of Dearborn street was not a necessary part of the grade crossing work in Niagara street. Assuming, as I think we should, that it was necessary to raise the tracks eight inches at Dearborn street, that did not make it necessary to close the street as has been done.
It is contended, however, that the validating statute (Laws of 1911, chap. 358, § 15), which ratifies and confirms the official acts of the grade crossing commissioners in making contracts with any railroad company to carry out the plans of the commissioners, has the effect to ratify the contract for closing Dearborn street. I agree with the learned counsel for the bridge company that his company is within the general provision of the act. It seems to me, however, that the exception therein contained, which provides that the section shall not affect any action or proceeding pending in any court, takes this action out of the effect of that provision. The summons was served before the act was passed, although the undertaking necessary in a taxpayer's action was not given until afterward. That was not done until an order was made at Special Term permitting that to be done nunc pro tunc, and allowing plaintiffs to amend their complaint. That order, as well as the judgment itself, is challenged upon this appeal, the contention being that there was a new cause of action substituted for that set forth in the original complaint. I think the change was in procedure, or form of the action, rather than in substance. The purpose of the action, and the relief sought, is the same in the amended complaint as in the original complaint. Furthermore, I am of the opinion that a strict taxpayer's action was not necessary, and that the giving of the undertaking and the allegations respecting the same may be regarded as mere surplusage.
If Dearborn street was not lawfully closed at this point, it was the duty of the city to prevent obstructing the street, and to take action to open it after it had been closed, but the city contends that it was lawfully closed, and refuses to open the same. In such a case, when the city itself refused to protect the rights of the public to the use of the street, the plaintiffs had the right to bring the action and make the city a party under the rule that where a trustee refuses to perform his duties the cestui que trust may bring the action to enforce the obligation enjoined upon the trustee. ( Overton v. Village of Olean, 37 Hun, 47.) Whether the question is to be determined by the original complaint or by the amended complaint, or by the mere service of the summons alone, I think the cause of action was saved by the exception.
I may add that if the plaintiffs are not entitled to the relief awarded by the judgment, I do not see how they can maintain the action at all so far as anything is disclosed by this record, and the complaint might as well be dismissed here.
ROBSON, J., concurred.
Judgment reversed and new trial granted, with costs to appellants to abide event.