#### The People of the State of New York, Respondent, *v.*The New York Central and Hudson River Railroad Company, Appellant.*

First Department,

December 5, 1913.

Municipal corporation — section 181 of the Sanitary Code of the city of New York—prosecution of railroad company for allowing smoke to be discharged from locomotives — evidence — authority of city to regulate use of locomotives.

A railroad company expressly authorized by statute to operate its road by steam locomotives within the city of New York should not be convicted of a violation of section 181 of the Sanitary Code of said city, in allowing smoke to be discharged from locomotives while starting fires therein in its roundhouse, located within the city, where there is no evidence that there was an excess of smoke over that necessary, or that fires could be started in the locomotives by any other method than that used by the defendant so as to produce less smoke.

It was error to exclude evidence offered by the defendant to show that it used the best method for lighting fires, and that it would be impossible to operate its trains without having the roundhouse located at the place in question.

The city of New York has no power to regulate the use of locomotive engines by a company expressly authorized by statute to operate its road within the city so as to unreasonably interfere with or make impossible the use of the engines.

Appeal by the defendant, The New York Central and Hudson Eiver Bailroad Company, from a judgment of the Court of Special Sessions of the City of New York, Part One, rendered against it on the 13th day of January, 1913, convicting it of a violation of section 181 of the Sanitary Code. (See Code of Ordinances of the City of New York, pt. 1, chap. 14.)

*William Mann,*for the appellant.

*William E. C. Mayer,*for the respondent.

*

 See *People*v. *New York Ndison Co.*(159 App. Div. 186).— [Rep.

Ingraham, P. J.:

It does not appear that the constitutionality of section 181 of the Sanitary Code was challenged in the trial court, but it has *330been on the argument of the appeal. We do not deem it necessary to pass upon the constitutionality of the section in deciding this appeal.

The defendant is a domestic corporation authorized to operate a line of railroad in the city of New York and expressly authorized by law to operate its railroad by steam locomotives. That seems to have been conceded by the plaintiff upon the trial of the action. The defendant railroad company was organized under chapter 917 of the Laws of 1869. The various acts originally incorporating the railroad companies which were consolidated in the defendant corporation are referred to in the opinions in the case of *New York Central & H. R. R. R. Co.*v. *City of New York*(142 App. Div. 578; affd., 202 N. Y. 212). The result of these various acts was to confer upon the defendant a franchise to operate a steam railroad on certain streets in the city of New York, the motive power being steam locomotives. The State has thus by its superior power authorized the defendant to use steam locomotives within the city of New York for the purpose of operating the franchise granted to it. In the case above cited the question was whether the city of New York had power to require a railroad company to remove certain of its tracks in certain avenues in the city of New York, the claim of the plaintiff in that case being that the right to occupy the streets was derived from the State and the Legislature and that such right had never been taken away and could only be taken away by the power that granted it, *i. e.,*the State itself. The court stated its conclusion as follows: *“*The question upon which this litigation turns is whether the plaintiff can lawfully be put off the streets by the city of New York. The act of the Legislature which permitted the Hudson Eiver Eailroad Company to go there sixty-five years ago and which the Legislature has seen fit to leave in full force and effect ever since, compels us to answer that question in the negative.” (202 N. Y. 224.) The defendant thus operating its road under legislative authority maintained in the city of New York a roundhouse which was used for the purpose of storing its locomotives used in operating its railroad. That roundhouse had been in existence for many years.

Some time before September, 1912, a Sanitary Code had been *331passed by the board of health and by section 1172 of the charter (Laws of 1901, chap. 466) the Sanitary Code that was in force in the city of New York on the 1st of January, 1902, was declared to be binding and in full force except as it may from time to time be revised, altered, amended or annulled as therein provided; and authority was given to the board of health to add to it and to alter, amend or annul any part of the said Sanitary Code and to therein publish additional provisions for the security of life and health in the city óf New York. This section of the charter was amended by chapter 628 of the Laws of 1904, and thereby the Sanitary Code which was in force May 1, 1904, was made a chapter of the Code of Ordinances, and no amendment of said Code thereafter made took effect until a certified copy thereof was filed with the city clerk. In September, 1912, section 181 of the Sanitary Code then in force provided as follows : “No person shall cause, suffer or allow dense smoke to be discharged from any building, vessel, stationary or locomotive engine or motor vehicle, place or premises within The City of New York, or upon the waters adjacent thereto, within the jurisdiction of said City.”

The record does not show that this section of the Sanitary Code was introduced in evidence on the trial before the Court of Special Sessions, but no point is made of this by the defendant. Nor does it appear that this provision of the Sanitary Code was in force at the time of the adoption of the charter or whether it was afterwards passed by virtue of the powers therein conferred upon the board of health. In September and October, 1912, smoke issued from this roundhouse caused by the lighting of fires in these locomotive engines, and this proceeding was commenced against the defendant by the issuing of a summons by a city magistrate requiring the defendant to attend and answer for a violation of this section of the Sanitary Code. The examination before the magistrate resulted in the holding of the defendant for trial. The trial came on before the Court of Special Sessions where the defendant was convicted, and from the judgment entered thereon the defendant appeals.

The defendant operating this franchise under the express authority of the State, which authorized it to use within the *332city of New York locomotive engines propelled by steam, there was granted to the defendant all incidental powers and authority to effectively operate the franchise granted so far as it was necessary to generate steam in its locomotive engines.

It is quite clear that neither the city of New York nor any of its departments had power to compel the defendant to cease operating its railroad trains through these streets in the city of New York, or prohibit the use of locomotive engines in the . operation of its road or the exercise of its franchise, and if so no city ordinance or regulation could be passed by any department of the city government which would so restrict the use by the defendant of its locomotives as to substantially prevent the free exercise of the authority granted by the Legislature. The Sanitary Code provides that “no person shall cause, suffer or allow dense smoke to be discharged from any building * * * locomotive engine or motor vehicle, place or premises * * * within the jurisdiction of said city.”

Assuming that the city authorities had power to regulate the use of locomotive engines within the city of New York, that power to regulate could not extend so as to unreasonably interfere with or make impossible the use of such locomotive engines by the defendant. Steam cannot be generated on a locomotive engine without the application of heat in some form. At the time of the passage of the various acts under which the defendant is authorized to use steam locomotives-upon its road within the city the use either of wood or coal upon the locomotive engine was the method of generating steam. It is clear that the ignition of this fuel is always accompanied by more or less smoke, and in a prosecution under this ordinance it was competent for the defendant to show by competent testimony that the best method for lighting the fires was that adopted by the defendant, although it necessarily was accompanied by a certain amount of smoke, and that the method actually adopted by the defendant caused as little smoke as was possible to obtain the desired result. Upon the trial the defendant offered to show that it was impossible to operate its trains except by having the roundhouse located as the defendant’s roundhouse was located; that at the time the fires were being built they caused the smoke complained of, *333and that the railroad could not be operated without causing smoke. All this testimony was objected to by the plaintiff, the objection was sustained, and the defendant excepted. It was then proved that the method of kindling fires used by defendant had been adopted in consequence of the orders of the Public Service Commission of this State; that there is no other method of kindling a fire which would cause less smoke; and that a fire cannot be started in an engine without causing some smoke. The defendant also offered to show that the method adopted in kindling these fires produced less smoke than was produced in other roundhouses where other methods were adopted. None of this testimony was denied, but the court seems to take it as a matter of confession that the defendant had been causing smoke, and on this testimony found the defendant guilty.

The testimony for the prosecution was confined to showing that smoke came from this roundhouse and these locomotive engines. There was no evidence to show that there was an excess of smoke over that necessary for the operation of the locomotive engines, and no evidence to show that by any other method than that adopted by the defendant could a fire be started in a locomotive engine which would produce less smoke than that produced by the locomotive engines of the defendant.

The court not only erred in excluding the evidence to which reference has been made, but also in convicting defendant on the evidence received.

My conclusion, therefore, is that the judgment should be reversed and fine remitted.

McLaughlin, Laughlin and Clarke, JJ., concurred; Scott, J., concurred in result.

Judgment reversed and fine remitted. Order to be settled on notice.