App. Div.]

First Department, March, 1916.

Henry J. Smith, for the appellants.

William J. Clarke, for the respondents.

SCOTT, J.:

The order appealed from denies plaintiffs' motion for an injunction pendente lite restraining the president of the borough of Manhattan from removing or interfering with the intake and discharge tunnels and coal-conveying devices erected under and over Exterior street along the East river between Seventy-fourth and Seventy-fifth streets, connecting with plaintiffs' power house abutting on said Exterior street. The tunnels are used to supply and discharge the water required for condensing purposes in the power house, amounting to 200,000 gallons per minute and are laid from said power house under said Exterior street to the East river. The coalcarrying device is in the form of a bridge erected over Exterior street about forty feet above the surface with a coal-hoisting device on the dock opposite the power house. The conveyers carry from 700 to 1,000 tons of coal per diem. The power house is erected on Exterior street between Seventy-fourth and Seventy-fifth streets, occupying the whole block front, and supplies the entire elevated railway system of the plaintiffs with power, except on a portion of the Sixth and Ninth avenue lines. The use of the intake and discharge tunnels and the coal conveyer is necessary, as matters now stand, for the operation of the power house.

It was made quite clear on the argument that there is no real desire on the part of the defendants to compel the removal and discontinuance of the said tunnels and conveyer, but their claim is that plaintiffs have erected and are using said devices without lawful authority, and wish to compel plaintiffs to apply for and obtain from what defendants insist is the proper municipal authority a permit or franchise to continue the use and maintenance of said facilities.

There is nothing in the case which will require the taking of any evidence, the facts being all admitted, and the determination of the questions involved, being dependent upon certain statutes and written documents of record, will, therefore, be determinative of the action. The authority upon which plain

First Department, March, 1916.

[Vol. 172. tiffs rely consists of two agreements between the plaintiff Manhattan Railway Company and the board of docks, one dated May 31, 1900, and the other dated July 27, 1910, and a permit or authorization from the Public Service Commission dated September 27, 1913. By the agreements above referred to the said Manhattan Railway Company is given the right "to construct and maintain, during the term of the lease hereby demised and any renewals thereof, intake and discharge pipes for condensing purposes under the Marginal Street and through the bulkhead wall, and to erect on said bulkhead suitable coal receiving and ash discharging devices, with the privilege of placing coal and ash conveyors under and over the Marginal Street."

If the board of docks had power to grant to the railway company the right to cross the whole of the marginal street by its tunnels and coal conveyer there seems to be no doubt, and as I understand it no question is made, that the agreements constitute a sufficient permit and authorization so to do. The defendants claim, however, that, in so far as concerns the westerly sixty-five feet of said marginal street, the board of docks had no such power, and, therefore, that as to said portion of the street its attempted authorization was ineffective. The question involved is, therefore, merely as to which city department has been vested with power and authority to grant a permit for such structures.

Exterior street was laid out and established by chapter 697 of the Laws of 1887, as amended by chapter 272 of the Laws of 1888 and chapter 257 of the Laws of 1889. The 1st section of that act, as amended in 1888, reads as follows: "§ 1. There shall be laid out and completed upon and after the filing of a plan therefor, and as provided by this act, an exterior street of one hundred and fifteen feet in width, extending along the westerly shore of the East river in the city of New York, from the centre line of East Sixty-fourth street, as such line is and would be, if extended eastwardly into the East river, to the northerly line of East Eighty-first street, as such line is and would be if extended eastwardly into the East river."

By the 2d section of the act the board of the department of docks was intrusted with the duty of determining upon a plan

App. Div.]

First Department, March, 1916.

for the said street, and it was provided that the plan, when approved by the commissioners of the sinking fund, should be "the plan according to which said street shall be laid out and completed." By the 4th section, as amended in 1889, it was provided that "the grades of the whole of said exterior street shall be fixed by the said board of the department of docks with the concurrence of the commissioner of public works," and as to the charge and control of the street when laid out it was provided as follows: "That portion of said street lying and being between its westerly line and a line drawn parallel with such westerly line, and sixty-five feet easterly therefrom, shall be and remain under the exclusive charge and control of the department of public works, as is now provided by law for the other public streets in the city of New York, and the remaining portion of said street lying easterly of said sixty-five feet line shall be and remain under the exclusive charge and control of the said department of docks."

It was also provided that "The said street, and the bulkhead forming its outer edge, shall be and remain at all times a public exterior street or wharf, for free and common use except as herein otherwise provided, and the same and the wharfage and emoluments arising from the use thereof shall be the property of the corporation of the city of New York."

I have quoted thus fully from the act establishing Exterior street to emphasize the fact, which seems to me to be of consequence, that but a single street one hundred and fifteen feet wide was provided for, not a street sixty-five feet wide, and a dock or wharf fifty feet wide, although a part of this street was ordained to remain under the charge of the department of public works, and a part under the charge of the department of docks.

The important legislative enactment bearing upon the question now under consideration is section 819 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466, and Laws of 1913, chap. 327). This section was derived from section 712 of the New York City Consolidation Act (Laws of 1882, chap. 410), which was itself frequently amended, and always in the direction of extending and increasing the authority and jurisdiction of the department of docks

First Department, March, 1916.

[Vol. 172. over the water front of the city and the lands adjacent thereto. (See Laws of 1884, chap. 517; Laws of 1887, chap. 567; Laws of 1890, chap. 482; Laws of 1892, chap. 158; Laws of 1893, chap. 397.) Finally section 819 of the charter conferred upon the commissioner of docks a broader power respecting marginal or exterior streets than had ever before been conferred upon the department of docks. It provided as follows: "The commissioner of docks shall have exclusive power to regulate the use of marginal streets so that the land and buildings upon all such marginal streets may be used to the best advantage in connection with the wharves and bulkheads; and the commissioner of docks shall have the power to regulate, by license or by any other suitable means, the transfer of goods or merchandise upon, over or under all such marginal streets; except that the said commissioner of docks shall not, under this section, have any power in respect to, or jurisdiction over, the public driveway authorized by and constructed under chapter one hundred and two of the laws of eighteen hundred and ninetythree and acts amendatory thereof [the speedway on Harlem river]."

It may well be true, as insisted by defendants, that this new enactment did not change or attempt to change the status of any street, or to convert the westerly sixty-five feet of Exterior street from a street into a wharf or bulkhead. Doubtless that sixty-five feet still remained a part of the street system of the city and so far as concerns its care and general control continued to be in the charge of the borough president, as successor to the former department of public works. But the power to regulate its use in regard to the transfer of goods, wares and merchandise upon, over and under it was distinctly conferred upon the commissioner of docks. I can find neither in the act of 1887 establishing Exterior street, nor in the sections of the charter from which I have quoted, any warrant for holding that the power given by the charter to the commissioner of docks was intended to be limited to the outer fifty feet of the street. Exterior street, as already pointed out, was established as one street of the width of one hundred and fifteen feet, and the authority to lay it out and to establish its grade for its whole width was from the first given to the dock

First Department, March, 1916.

App. Div.] department, and so far as I can find from an examination of the statutes, it has never ceased to be a single street for its whole original width. The declared purpose of the charter in conferring upon the dock commissioner power to regulate its use is "so that the land and buildings upon all such marginal streets may be used to the best advantage in connection with the wharves and bulkheads." The lands and buildings upon a marginal street must of necessity lie upon the in-shore sides of such streets, and the wharves and bulkheads must, of like necessity, lie upon the off-shore sides. If the commissioner of docks is to regulate the use of such streets so that the lands and buildings may be used to the best advantage in connection with the wharves and bulkheads, and to that end is given power to regulate by license or other suitable means the transfer of goods and merchandise upon, over or under such marginal streets, that power to be effectually exercised must extend to the whole street lying between the lands and buildings on the one hand, and the wharves and bulkheads on the other. To confine it to the outwardly fifty feet of an one hundred and fifteen-foot street would be to neutralize the statute and prevent the doing by the dock commissioner of that which he is expressly authorized to do. To so hold is not in conflict with, but entirely in accord with Vilias v. Featherson (94 App. Div. 259), cited upon the briefs of both appellants and respondents. That case had to do primarily with the question whether or not the dock department could lease dock property for commercial purposes unconnected with water front usage, but in the course of the discussion reference was had to section 819 of the charter in the following language: "The further provision of section 819 of the charter that the commissioner of docks should have the exclusive power to regulate the use of marginal streets so that the land and buildings upon all such marginal streets might be used to the best advantage, in connection with the wharves and bulkheads, did not refer to the land and buildings in the marginal streets, but to the abutting land and buildings, thus emphasizing the intention that these streets should be so used in connection with the wharves and the abutting land and buildings thereon as would best conserve the general purposes of commerce. For that