SECTIONS OF THE CODE OF CIVIL PROCEDURE CITED. PAGE. Code C. P. chap. 14, tit. 1, art. 5.. 157 Code C. P. § 1035 chap. 17, tit. 6........ 464 chap. 23, tit. 1. 118-122, 124 § 66.... 424-428, 611, 612 PAGE. 193 . SECTIONS OF THE CODE OF CRIMINAL PROCEDURE CITED. PAGE. Code Cr. P. pt. 5......... 139, 140 Code Cr. P § 470b PAGE. 888 RULES CITED. PAGE. PAGE. General Rules of Practice, rule 39.. 905 Calendar Rules, Richmond county. 212 General Rules of Practice, rule 82.. 376 213, 215 Cases DETERMINED IN THE APPELLATE DIVISION OF THE SUPREME COURT OF THE State of New York. CITY OF JAMESTOWN, Respondent, v. HOME TELEPHONE COMPANY, Appellant. Fourth Department, March 4, 1908. Municipal corporations - statutory construction - repeal of special act - Transportation Corporations Law - local power to regulate telephone company - demurrer. Special and local laws are not deemed repealed by general legislation unless the intent to do so is clear. Ordinarily an express repeal by some intelligible reference to the special act is necessary. The Transportation Corporations Law does not either expressly or by implication repeal the provision in the charter of the city of Jamestown (Laws of 1886, chap. 84, tit. 3, § 9, subd. 46) by which the common council is empowered "to prevent" the setting out or stringing of telephone poles and wires. Although a municipal corporation which possesses only power to "regulate" the erection of telephone poles and wires cannot exact compensation as a consideration for a franchise, yet a corporation empowered to prevent" the erection or operation of such system has authority to bind such company to pay a percentage of its gross earnings to the city as a condition to the granting of a franchise, and such condition, having been accepted, is binding upon the company. Hence, the complaint in an action by the city of Jamestown to recover percentages so agreed to be paid cannot be said to fail to state a cause of action upon the theory that the city had no right to make the contract. APPEAL by the defendant, the Home Telephone Company, from an interlocutory judgment of the Supreme Court in favor of the APP. DIV.- VOL. CXXV. 1 [Vol. 125. Fourth Department, March, 1908. plaintiff, entered in the office of the clerk of the county of Chautauqua on the 6th day of April, 1907, upon the decision of the court, rendered after a trial at the Chautauqua Special Term, overruling the defendant's demurrer to the complaint, interposed on the ground that the complaint fails to state facts sufficient to constitute a cause of action. The action was commenced on the 12th day of October, 1906, to recover certain percentages of the gross earnings of the defendant, which has installed and is engaged in operating a telephone system or plant in the plaintiff city, the plaintiff alleging that such percentages are due and owing to it from the defendant under and by virtue of an agreement or condition contained in the franchise granted to the defendant and which was duly accepted by it, and which agreement or condition it expressly agreed to keep and perform. The demurrer interposed raises the issue that the agreement or condition contained in the franchise was imposed by the plaintiff without authority of law; that there was no consideration for the same and, therefore, that it was void. The defendant insists that it is entitled to exercise all the rights and privileges granted or conferred by such franchise, but as matter of law it is absolved from all obligation to keep and perform the agreement made by it to pay to the plaintiff any percentage of its gross earnings. Arthur C. Wade, for the appellant. Eleazer Green, for the respondent. MOLENNAN, P. J.: The plaintiff is a municipal corporation, created by chapter 84 of the Laws of 1886. Subdivision 46 of section 9 of title 3 of said act, which constitutes the plaintiff's charter, provides that the common council of the plaintiff shall have power "To prevent or regulate the setting and stringing of telegraph and telephone poles and wires in said city." The defendant is a domestic corporation, organized and existing under and by virtue of chapter 566 of the Laws of 1890, known as the "Transportation Corporations Law." App. Div.] Fourth Department, March, 1908. On the 17th day of June, 1901, the plaintiff, by resolution of its common council, granted a franchise to the defendant which authorized it to install, construct, maintain and operate a telephone system and plant in said city upon certain conditions and subject to certain restrictions and regulations therein specified. The 17th clause of such grant or franchise, and which is the sole subject of this controversy, is as follows: "It is also made a condition for the granting of this franchise, and the company by its acceptance hereby agrees to pay to the City of Jamestown one per centum per annum of its gross earnings at and after the time that the said company shall have in operation one thousand (1,000) revenue earning telephones; and whenever said company shall have two thousand (2,000) revenue earning telephones in actual operation, it shall pay to the City of Jamestown two per centum per annum of its gross receipts, and said company waives the right to have said percentages deducted from any taxes, according to the provisions of the Tax Law, and agrees to pay such percentages in addition to all taxes." Said defendant company, by its president and secretary, so authorized by vote of its directors, accepted said franchise. The franchise so accepted contained the provision: "Whereas, the terms, regulations and conditions contained in said ordinance or franchise are in the form requested by said company (the defendant) and approved by said city, now, therefore, "In consideration thereof and of other good and valuable considerations passing to said company, including One Dollar ($1.00) paid to said company by said city, the receipt whereof is hereby acknowledged, the said 'The Home Telephone Company of Jamestown, N. Y.,' party of the first part hereto, accepts said franchise and the privileges thereby granted, and said company hereby covenants on its part to fully perform all the conditions of said franchise and to conform to all its regulations and limitations, and not to ask, charge or collect more than the rates therein mentioned." Thereafter, as appears by the allegations of the complaint (all of which must be assumed to be true), under the ordinance and franchise thus granted to it, the defendant installed and constructed a telephone system or plant in the city of Jamestown, and has ever since maintained and operated the same. |