THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. in addition some abstract propositions of law which furnished the ground of its charge upon the facts. A judge who rightly tells the jury that if they find a certain condition of facts, then they must find for the plaintiff, and if they do not so find them, then for the defendant, is not obliged to charge the abstract principles of law which support such directions. A learned disquisition upon the law is rarely helpful to the jury. I think it is usually better for the court to refrain from it, and instead to tell the jury what issues of fact they must settle; how they must settle them one way or the other according to their finding upon disputed facts, and how they must adapt their verdict to the conclusions they reach upon the facts. This is a case of assault and battery. The judge did not need to give an abstract definition. He did much better when he said to the jury: "The plaintiff says that he was struck with a shovel and knocked down. If you find that to be true, and that he had not made an assault upon the defendant with a hay knife, then the defendant is liable for some damages." When he marked "charged" the request "that the plaintiff must prove by a preponderance of evidence that the defendant assaulted him without justification," he practically covered the request that he marked "refused;" "that the burden of proof rests upon the plaintiff throughout the entire case." It was not necessary to confuse the jury with this proposition nor with the other one, "that the defendant is presumed innocent" - a proposition defective, because it omits the words "until the contrary be proved." (Code Crim. Proc. 389.) Of the seventeen requests made by defendant, the court marked eight of them as "charged," and these eight gave to the defendant, in their application of the law to the facts as the jury might possibly find them, all the protection to which he was enti tled. I think the court so fully assented to the proper instructions applicable to the concrete case that the defendant has no cause of complaint in the refusal of the court to distract the jury by also giving the abstract propositions of law. I advise an affirmance. Judgment and order reversed, and a new trial granted, costs to abide the event. App. Div.] THIRD DEPARTMENT, MARCH TERM, 1897. THE COLONIAL CITY TRACTION COMPANY, Respondent, v. THE KINGSTON CITY RAILROAD COMPANY, Appellant, Impleaded with Others. A street surface railroad company must procure the consent of the local authorities before it can apply to the court for the use of the tracks of an existing road. Section 91 of the Railroad Law, as amended by chapter 545 of the Laws of 1895, forbidding the extension or operation of a street surface railroad or of its branches unless "the consent of the local authorities having control of that portion of the street or highway upon which it is proposed to build or operate such railroad shall have been first obtained," is to be construed in connection with section 102 of the Railroad Law, as amended by chapter 693 of the Laws of 1894, restraining a street railroad corporation from constructing, extending or operating its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, without first obtaining the consent of the corporation owning and maintaining the same-except for a distance not exceeding 1,000 feet, if the court, upon application, is satisfied that the public convenience requires it. The effect of these provisions is that before a street surface railroad can have the right to operate its road through any street in a city it must procure the consent of the local authorities, although another company is already operating its road through such street, and that it must procure the right to the use of such street as a part of its route before it can commence proceedings to secure the right to use the property of another company upon and as a part of such route. PARKER, P. J., and LANDON, J., dissented. APPEAL by the defendant, The Kingston City Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 20th day of August, 1896, upon the decision of the court rendered after a trial at the Ulster Special Term. The petitioner is a corporation organized April 22, 1896, for the purpose of constructing, completing and operating a street surface railroad in the city of Kingston, and it acquired by purchase, upon a foreclosure sale, all the property, rights and franchises of the Colonial City Electric Railway Company. Such latter company was organized as a street surface railway company, and was operating about four and one-half miles of electric railroad in the city of Kingston at the time of such sale. About one-half of such road was THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. upon the easterly, and the other half upon the westerly, end of the city. The system of tracks upon the east end is not connected with that upon the west end, because, in order to do so, it was necessary to cross the tracks of the West Shore, and of the Delaware and Ulster railroads at points where each of such roads had five tracks, and the company had not been able under the statute (§ 2, chap. 239, Laws of 1893) to effect a crossing at grade of such roads. The defendant, The Kingston City Railroad Company, is a corporation organized June 7, 1879, and is now, and for a long time has been, operating a surface railroad in such city by electricity, and occupies Broadway with its tracks. Such tracks cross the West Shore railroad tracks in Broadway at grade. The petitioner, by extending its tracks through Broadway from Prince street on the east, to Cedar street on the west, could connect its road on the east with that on the west by crossing only three tracks of the West Shore road, and avoid crossing at all the Ulster and Delaware road. After obtaining the property at foreclosure sale, the petitioner applied to the city authorities for leave to extend its road through Broadway, in order to make such connection. The right to do so was refused, and the petitioner thereupon commenced this proceeding under the provisions of section 102 of the Railroad Law (Chap. 565 of the Laws of 1890) as amended by chapter 693, Laws of 1894, for leave to use the tracks, poles and wires of the Kingston City Railroad Company, through Broadway, between Prince and Cedar streets, a distance of about 900 feet, for the purpose of making such connection. It made no attempt to obtain the consent of any of the adjacent owners of property upon Broadway, either to construct its own road upon such street, or to use that of the defendant, and had failed, as above stated, in its application to the city authorities. The court at Special Term granted to the petitioner the right asked for, and appointed commissioners as provided by such section. And from such judgment the Kingston City Railroad Company has appealed to this court. A. T. Clearwater, for the appellant. G. D. B. Hasbrouck, for the respondent. THIRD DEPARTMENT, MARCH TERM, 1897. App. Div.] HERRICK, J.: The proceeding sought to be reviewed here is in effect a condemnation proceeding for the purpose of securing the right to use the defendant's property. Before a corporation can resort to condemnation proceedings, it must have complied with all the statutory requirements necessary to entitle it to take such proceedings. It would seem to be a self-evident proposition that, before a corporation can institute legal proceedings to secure the use of property, it should first secure the right to use such property after it has obtained it. If it is necessary to procure the right to construct or operate a road upon or over a given route, then, before it can condemn property upon that route, it must procure the right to the use of that route. (Matter of Rochester Electric R. Co., 123 N. Y. 351; Matter of Saratoga Electric Railway Co., 58 Hun, 287.) In this case the plaintiff has received from the city of Kingston consent, commonly called a franchise, to build and operate a road through certain specified streets of such city; Broadway, from Prince street to Cedar street, is not one of such streets. The Constitution (Art. 3, § 18) provides that "No law shall authorize the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad, be first obtained." And it is further provided that in case such consent cannot be obtained, that then application may be made to the Appellate Division of the Supreme Court. Section 91 of the Railroad Law, as amended by chapter 545 of the Laws of 1895, provides that a street surface railroad, or the branches thereof, shall not be extended or operated unless "the consent of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad shall have been first obtained." Another section of the law that it is important to consider in this case is section 102 of the Railroad Law, as amended by chapter 693 of the Laws of 1894, which provides that "No street surface railroad corporation shall construct, extend or operate its road or tracks THIRD DEPARTMENT, MARCH TERM, 1897. [Vol. 15. in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, except for necessary crossings, or, in cities, villages and towns of less than one million two hundred and fifty thousand inhabitants, over any bridges, without first obtaining the consent of the corporation owning and maintaining the same, except that any street surface railroad company may use the tracks of another street surface railroad company for a distance not exceeding one thousand feet, and, if in a city having a population of less than thirty-five thousand inhabitants, except Long Island City, for a distance not exceeding fifteen hundred feet, and in cities, villages and towns of less than one million two hundred and fifty thousand inhabitants, shall have the right to lay its tracks upon, and run over and use any bridges used wholly or in part as a foot bridge, whenever the court, upon an application * shall be satisfied that such use is actually necessary to connect main portions of a line to be constructed or operated as an independent railroad, or to connect said railroad with a ferry or with another existing railroad, and that the public convenience requires the same, in which event the right to use shall only be given for a compensation to an extent and in a manner to be ascertained and determined by commissioners to be appointed by the courts as is provided in the Condemnation Law, or by the Board of Railroad Commissioners in cases where the corporations interested shall unite in a request for such board to act." * * There is no conflict between the provisions of the Constitution and section 91 and section 102 of the Railroad Law. The provisions of the Constitution and of section 91 of the Railroad Law are for the purpose of protecting property owners and for preserving in local authorities control over the streets and highways within their jurisdiction. The provisions of section 102 are for the purpose of protecting the rights of railroad corporations already in existence; and the Constitution and these two sections must all be construed together, so as to make one harmonious and complete law. The plaintiff relies upon section 102 of the Railroad Law as entirely regulating its rights in this case, and the opinion of Mr. Justice PARKER coincides in its contention, that where a railroad has a franchise to construct and operate a road through a public street, the consent of the municipal authorities and property owners to the |
