#### Matter of the Application of the Baldwinsville Telephone Co. for a Peremptory Writ of Mandamus.

(Supreme Court, Onondaga Special Term,

July, 1898.)

Telephone companies — Refusal to furnish facilities to rivals — Suspension of exercise of franchise — Mandamus.

The provisions of section 103 of the Transportation Corporations Law (Laws of 1890, chap. 566), enacting that “ Every such (telephone) corporation shall receive dispatches from and for other * **** telephone lines or corporations * * * and, on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same,” do not authorize the court, upon the mere refusal of a telephone corporation operating a line in a village and extensively outside thereof, *222to place a telephone in the office of a village telephone Company and establish connections therewith, to compel such, action by.a writ of peremptory mandamus; and' the remedy of the party aggrieved is either by an action for the penalty or by one for damages.

Such a refusal is not an absolute refusal to transmit the message. The contention that the refusal of the corporation constitutes a suspension of the exercise of its franchise is not tenable, as the refusal is only one to employ the franchise for the' benefit of a particular person, and hence affords no ground of action.

Application for a writ of peremptory mandamus.

Woods & Smith, for application.

W. S. Andrews, opposed.

Hiscock, J.

This is an application for a writ of peremptory mandamus compelling the Central Few York Telephone & Telegraph Company to place in the office of the petitioner.“ one of its telephone instruments with the usual proper wires and connections and to allow said Baldwinsville Telephone Company the proper, usual and customary use of said telepMliei“linstrument, wires and connections.” r

The petitioner is a corporatio*4®perating a telephone system in the village of Baldwinsville. The defendant is likewise a corporation operating a similar system in said villagg and also> extensively outside* thereof. •. \ ■ *\*,

It is claimed by the petitioner that it has duly requested the defendant to place .a telephone connection in its office so as to give it the usual telephone connections over its system, but that although it has offered to pay therefor, and subscribe to the usual regulations so far as legal,' such request has been refused. Concededly no telephone has been furnished by defendant. It has. filed upon this application affidavits setting forth various facts with reference to said request which, it is claimed, affords a sufficient basis for such refusal. :

Those, affidavits .wherever they raise any issue with the allegations of the petition are, of course, controlling in determining the question whether the writ asked for should issue, and possibly some of the contentions by defendant that petitioner did not properly execute the lease tendered to it, and did not properly offer to pay rental in advance, etc., are meritorious. Outside of these claims, however, the further one is made that even assuming defendant to be *223in default as urged by petitioner, this is not a proper case for relief by mandamus and the conclusion reached in favor of that contention renders it unnecessary to consider the others.

Petitioner bases its claim for relief upon the general obligations which the defendant corporation, by entering upon a public telephone business, has assumed of treating and performing service for all people alike; and, as especially imposing this obligation, upon the provisions of section 103 of “ The Transportation Corporations Law,” which reads as follows: “Every such (telephone) corporation shall receive dispatches from and for other * * * telephone lines or corporations * * * and on payment of the usual charges by individuals for transmitting dispatches as established • by the rules and regulations of such corporation, transmit the same, etc.”

It has been held that a reasonable construction of this statute does not require one telephone company to supply .connections with its system to another company so that the latter may utilize the connected system as part of its own, and transmit thereover its own messages on payment of the merely nominal sum required of ordinary subscribers. People ex rel. Postal Tel. Cable Co. v. Hudson River Tel. Co., 19 Abb. N. C. 466, 479.

Under that construction and the facts set forth in the moving papers, petitioner’s rights are to be measured by those secured to an ordinary person seeking to employ defendant’s telephone system.

It is further to be observed that this application'is based solely upon a refusal to place a telephone in and establish connections with petitioner’s office. There has been no refusal to receive or transmit messages other than that involved in the refusal to establish these connections.

The statute does not in terms require a telephone company to receive for transmission messages at the office of a proposed customer by means of a telephone specially placed there. The terms employed, especially, grouping together as they do telephone and telegraph companies, would be quite apt in making the duty simply to receive and transmit messages at and from a general office. The usual custom, however, is to place the telephone as desired by the customer, and much of the value comes from that arrangement. It seemed to be assumed by the defendant upon the argument that the statute contemplated receiving and transmitting messages through a telephone so placed, and that a refusal to make such connections amounted to a failure to receive and transmit messages as required.

*224Adopting this assumption the question is concisely presented whether a private person, upon his own behalf simply, can by mandamus compel the transmission of a telephone message. As indicated above, I do not believe that he can.

Several authorities from other states have been cited to sustain the proposition that hé can. In many of them, however, the facts and circumstances were materially different from those presented here, and in still others the question apparently was not raised of'the propriety of this form of remedy, if the moving party ■ was entitled to relief. Only one case from the courts of this state has been cited as an authority directly bearing upon this subject, that of People ex rel. Postal Telegraph Cable Co. v. Hudson River Telegraph Co., 19 Abb. N. C. 466, already referred to. That case Unquestionably granted relief such as is asked here and upon largely similar facts. In that case, however, apparently by the counsel, and certainly by the court, there was no discussion of the , question now raised, whether it was proper to grant relief by mandamus. The right of the relator to any relief was contested and considered, but it seems to have been assumed that if it was entitled to any remedy it was proper to give it in the form asked and adopted by the court. ■,

Passing from these authorities cited upon the specific subject of the application of this writ to telephone companies to the general principles governing its use, it seems to be clearly settled as the law of this state that mandamus will lie against a private corporation when there is no adequate remedy by ordinary action or where the corporation has suspended the exercise of its franchise, People ex rel. Ohlen v. N. Y., L. E. *&*W. R. R. Co., 22 Hun, 533; People ex rel. Walker v. Babcock, 16 id. 313.

In addition, it has been intimated, if not decided, that a corporation having undertaken the discharge of public and quasi-municipal obligations such as furnishing water or gas, may, like.a public officer, by mandamus be compelled to. perform its offices. People ex rel. McGrath v. Green Island Water Co., 56 Hun, 76, 78.

Outside of these exceptions a party will be left to his ordinary remedy by action.

I do not see how the present case comes within either of the first two exceptions, which alone could be applicable.

'- There is nothing to indicate that the petitioner herein, or that, generally, a person desiring to send a telephone message could not, by damages or otherwise, secure adequate relief against a telephone *225company refusing to fulfill its obligations. There would seem to be no more difficulty in arriving at some proper measure of damages in such a case, than in one arising upon the failure of a railroad or express company to properly transport goods which are the ones above cited. The statute already quoted has by its terms provided, without special proof for what, under ordinary circumstances, would be liberal damages, in fixing a penalty of $100 for each failure upon the part of the company to properly act.

Again, the failure by a corporation to perform its duty at the request and for the benefit of, a single person is not such a suspension of the exercise of its franchises as will sustain the writ. That is simply a refusal to employ them for the benefit of that, particular person. That is decided in the case of People ex rel. Ohlen v. N. Y., L. E. *&*W. R. R. Co., *supra.*And the distinction between the status of a private individual seeking to mandamus a corporation for a failure to serve him, and the People proceeding against a general suspension of corporate obligations is clearly recognized and the principles above stated affirmed in People v. N. Y. C. & H. R. R. R Co., 28 Hun, 543, 554.

The application for the writ of mandamus herein is denied, with costs.

Application denied, with costs.