(178 N.Y.S.) state to much competition, resulting in what is generally known by communities to be practical bankruptcy, and almost universal applications for increases in fares; and undoubtedly in recognition of this situation, and of the inequity of permitting competing bus lines to use, without license fee or public service regulation, the highways and streets, for which in many instances the railroad companies had been required, by the terms of their franchise, and under the general Railroad Law, to pave, the law was restored in its general features to that of 1913, and the option was given every village and town to bring itself within the provisions of the amended section requiring local consents and certificates of public convenience and necessity from the Public Service Commission. This review of the legislation disposes of the suggestions of counsel for defendant that anything sinister exists in the amendment of 1919. * * It is also pertinent to suggest that in addition to the positive and direct requirement contained in section 25, "that any person who * * ** bus line * * * * operates a * * * * " * or route * * described in the next succeeding section of this act wholly or partly upon and along any street in any city * must obtain the commission's certificate, the provisions of section 26, applicable alone to cities contains, in the same language, the requirement later made applicable to towns and villages, that no bus line shall be operated "nor receive a certificate of public convenience and necessity," until the owner had obtained the consent of the local authorities. If the Legislature did not, by these words, intend to confer jurisdiction upon the Public Service Commission as to the portions of bus lines and routes in towns and villages, then the language of the Legislature above quoted must be held to be without any meaning what It was clearly the legislative intention to restore the jurisdiction of the Public Service Commission over bus lines, not only in the places described in section 25, prior to the amendment of 1915, but to extend to the towns and villages of the entire state the local right and option. to supervise, regulate, and prescribe the terms on which motor bus lines might be operated over their highways, afford the protection which such regulation and control would provide, and incidentally protect the investments of those who were operating existing interurban railway lines from such form of competition as is shown to be adopted by the defendant in this suit. The Legislature has clearly recognized the necessity of vesting in the Public Service Commission authority to pass upon the question as to the convenience of and necessity for such competing lines, and the power to supervise and control their operation. Unless defendant has come under the jurisdiction of the Public Service Commission, he may so operate that his competition. will make plaintiff's operation impossible, because of the financial loss resulting, and thereby the service guaranteed to the public through the supervision of the plaintiff by the Public Service Commission may be destroyed. [2] I am also of the opinion that defendant became a common carrier under the provisions of the 1919 amendment, and as such, under section 53 of the Public Service Commissions Law, was required to obtain a certificate of public convenience and necessity before exercising its franchise granted by the village of Lewiston. Section 26, prior to the 1919 amendment, described bus lines carrying passengers "in competition with another common carrier which is required by law to obtain the consent of the local authorities of said city to operate over the streets thereof." The 1919 amendment provided that any town or village may adopt a resolution "providing that the provisions of this section shall apply to such town or village." The amendment thus added to the bus line operated in cities, and which by section 25 were made common carriers, who must obtain certificates of public convenience and necessity, such bus lines as compete with other common carriers required by law to obtain the consent of local authorities of towns and villages. This made such bus lines, including the defendant, common carriers, and as such were brought within the provision of section 53 of the Public Service Commissions Law, which would require the certificate of convenience and necessity, regardless of the requirements of section 25 of the Transportation Corporations Law, to the same effect. The Public Service Commissions Law, in section 53, provides: shall any such • "Nor common carrier exercise any franchise or right under any provision of the railroad law, or of any other law * without first obtaining the permission and approval of the proper commission." Defendant's counsel admitted upon the argument that the 1919 amendment made defendant a common carrier, a perfectly obvious conclusion. As such he was required by the provision of both the Public Service Commissions Law and section 25 of the Transportation Corporations Law to obtain a certificate of public convenience and necessity. As a matter of fact, the provision of section 25 of the Transportation Corporations Law, stating that such a common carrier “shall be required to obtain a certificate of convenience and necessity for the operation of the route or vehicles proposed to be operated, and shall be subject to all the provisions of said law applicable to common carriers," is entirely superfluous, as when, by the preceding matter in said section 25, a bus line was made a common carrier within the meaning of that term as used in the Public Service Commissions Law, then as a natural result the Public Service Commission acquired jurisdiction, and the requirement of section 53 of the Commissions Law became operative. Such very evidently was the understanding of the draftsman of section 26 of the Transportation Corporations Law, which, as variously amended, always provided that the bus line should not operate "nor receive a certificate of public convenience and necessity" until the local authorities had granted their consent. The amendment of 1919 is as effective in adding bus lines operating over routes through towns and villages to the bus lines operating within the city as if the first sentence of section 26 had been amended by adding thereto, after the word "city," the words "towns or villages." The bus lines operating in towns or villages became common carriers within the meaning of the term used in the Public Service Commissions Law, because such bus (178 N.Y.S.) lines are such lines as are mentioned in section 25 as "described in the next succeeding section of this act." [3] The words of the amendment, "nor receive a certificate of public convenience and necessity," show clearly the legislative intention that such a certificate should be obtained by the defendant. If that were not the legislative intent, the words are meaningless and ineffective for any purpose, and such a construction of the statute urged by the defendant violates all recognized rules for the interpretation of statutory enactment. The defendant's demurrer is overruled, and judgment on the pleadings ordered, directing that a permanent injunction issue as pleaded for in the complaint, with the costs of the action. (108 Misc. Rep. 172) PARTOLA MFG. CO. v. CONGRESS WAREHOUSE & FORWARDING CORPORATION.* (Supreme Court, Special Term, New York County. July, 1919.) 1. LANDLORD AND TENANT ~134(2)—MERGER OF LESSER ESTATE IN FEE SIMPLE OF TENANT. Where defendant, owning several properties, including an uncovered yard, inclosed by a brick wall, and a platform and scales in a brick build. ing, having a door opening on inclosed space, leased all the properties to plaintiff, with a covenant that defendant would not use premises, except for storage of merchandise, etc., or obstruct the lights, or make any alterations without plaintiff's consent, and plaintiff leased the yard to defendant for same term for storing of trucks, etc., omitting the restrictive covenants in defendant's lease to it, there was no intention to prevent a merger of the lesser estate granted to defendant in its larger title of fee simple absolute. 2. LANDLORD AND TENANT 134(6)—INJUNCTION RESTRAINING USE OF PREM ISES DENIED. Where there was no intention to prevent a merger of a lesser estate leased by plaintiff to defendant in defendant's larger title of fee simple absolute, an injunction pendente lite restraining defendant from continuing to construct a roof over uncovered yard leased to it, and from constructing a brick wall along side wall of an office building, formerly leased by defendant to plaintiff, will be denied, because defendant's acceptance of the lease merged all that it contained in defendant's fee, and there was no violation of any of plaintiff's rights. Action by the Partola Manufacturing Company against the Congress Warehouse & Forwarding Corporation. On motion for injunction. Motion denied. Hovell, McChesney & Clarkson, of Brooklyn (Sidney A. Clarkson, of Brooklyn, of counsel), for the motion. Wing & Wing, of New York City (Arthur K. Wing, of New York City), opposed. LUCE, J. This motion seeks to restrain the defendant, during the pendency of the action for a permanent injunction, from continuing the building operation on premises Nos. 179-181 West Houston street, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Order affirmed App. Div. --, 179 N. Y. Supp. 941. 178 N.Y.S.-11 and from doing any act in connection with said premises, excepting the storing of defendant's trucks therein, or any other act without plaintiff's written consent. The defendant is the owner in fee of Nos. 179, 181, 183, and 189 West Houston street, and Nos. 1, 3, and 5 Congress street, Manhattan borough. By lease dated August 29, 1918, the defendant leased to the plaintiff Nos. 1, 3, and 5 Congress street and Nos. 179, 181, and 189 West Houston street for a term of 5 years and 7 months, beginning October 1, 1918, and ending May 1, 1924. Nos. 179, 181 West Houston street was an uncovered yard, inclosed by an 8-foot brick wall, having exits on West Houston street and Congress street, protected by sliding doors entirely inclosing the openings. There was also on the plot a platform scale adapted for weighing trucks, the beam of which was in a brick one-story building formerly used by the defendant as an office, and situated upon No. 1 Congress street. This brick building has three large windows, three smaller windows, and one door opening upon this brick inclosed space. The smaller windows admit light into water-closets. There is some doubt if, on October 1, 1918, the defendant delivered possession of Nos. 179 and 181 West Houston street to the plaintiff. On January 15, 1919, the plaintiff leased, by a written instrument, to the defendant Nos. 179, 181 West Houston street for a term ending May 1, 1924; that being the termination of defendant's lease to plaintiff of the whole premises. The defendant has commenced the construction of a roof over these premises, and as a part of the work is engaged in constructing a brick wall, parallel to and distant about 6 inches from the side wall of the office building, containing the windows and door heretofore described. The scale has been removed, the scale pit filled, and preparations made for a 550-gallon gasoline tank below the surface. The plaintiff seeks this injunction because of irreparable damage suffered by destroying the light of the side windows and the ventilation of the water-closets, and the breach of the covenant in the lease of plaintiff to defendant, which restricts the premises demised "for storing of trucks and any other purpose to which the landlord [plaintiff] may agree." The lease of plaintiff to defendant omits the following clause, contained in the defendant's lease to the plaintiff: "Third. That the tenant will not use, or permit to be used, any part of the demised premises for any business or purpose other than the storage and sale of noncombustible chemicals, or any other merchandise or articles not more hazardous or injurious to the building, or assign this lease or use the roof of said building, obstruct the lights or skylights thereof, injure or disfigure the said building in any way, or make any alterations therein, or allow the same to be done, without first obtaining the written consent of the landlord, or permit to be displayed upon any part of said premises the sign of any real estate broker." [1, 2] The removal of the scale is also counted upon to sustain the injunction; but as the scale was upon the premises demised to defendant by the lease of January 15, 1919, the removal cannot injure the plaintiff, since the defendant had no right to use it. The destruction of the plaintiff's light is answered by the defendant's allegation that the office building has ample windows opening upon Congress (178 N.Y.S.) street for the front room of the office, and a skylight for the rear room, and the uselessness of the door is apparent, since it leads only to the premises demised to defendant. The defendant is constructing this roof in connection with a building it is erecting upon No. 183 West Houston street. Much stress is placed by the defendant upon the omission from the lease of January 15, 1919, above quoted, and he argues that the omission signifies the plaintiff acquiesced, if it did not consent, to the defendant's building operation. Had there been a simple surrender of the premises demised to the defendant, there would be no doubt but that the defendant then would hold the premises freed from any covenants, and at liberty to use its premises as if no lease had been made by it to the plaintiff. Unless there be in this lease of plaintiff such clause or clauses as may prevent a merger, the acceptance of the leasehold by the defendant merged all it obtained from plaintiff in the larger title of fee simple absolute. The plaintiff at best has only a leasehold interest in the premises demised to it by the defendant in the August instrument. With the exception of the restriction limiting the use of the premises demised to the defendant "for storing of trucks and any other purpose to which the landlord may agree," and the omission of the third clause, already quoted, the two leases contain identical clauses, particularly the term of each lease being coterminous. The situation of the parties, the leasehold interest of the plaintiff in the premises, the coterminous expiration of the leases, the deduction of the rent reserved in the January 15th lease from the rental fixed in the August lease, and the payment of the difference by plaintiff to defendant, all indicate there was no intention of the parties to prevent a merger of the lesser estate, granted to defendant in its larger title of fee simple absolute. If merged, then the defendant holds its title freed from any limitation imposed by the lease of January 15th. There is such merger, and therefore the defendant has not violated any of plaintiff's rights. The importance of this decision to the parties is apparent, since no appeal can be heard till October, and ere then the building causing this litigation will be completed and occupied, and because of this importance the moving papers have been carefully studied. Motion is denied, with $10 costs. Motion denied, with $10 costs. |