Plaintiff in error, which was also plaintiff in the court below, and we shall so refer to it, brought suit against the city in the supreme court of the county of New York. It alleged the following: It is a corporation duly formed and organized under the laws of the state of New York, and engaged in the operation of automobile stages upon routes extending along Fifth avenue and other streets in the city of New York, under and in pursuance of certain acts of the legislature of the state, having acquired, under various acts, all the property rights and franchises of the Fifth Avenue Transportation Company, Limited.
The city is a municipal corporation, organized under the laws of the state, and exercises its powers through officers and departments.
The plaintiff has operated stages upon its routes, and has used the interior of them for the display of advertising signs or matter, for many years. In May, 1905, with the complete substitution of automobile stages for horse stages, which was affected in July last (1907), it began to utilize and now utilizes, the exterior of its stages for such purposes, which it is able to do by reason of the necessary difference in form of the new vehicle and in the consequent increase of space adapted to use in the display of advertising matter, and from such use it is enabled to secure a substantial income from portions of its property not susceptible of being used otherwise for the purpose of its business.
The city, through its various officials, has interfered with such advertising, and intends to interfere with the operations of plaintiff's stages, and to prevent it from maintaining advertising signs upon the exterior thereof, which will materially impair plaintiff's business, reduce its income, interfere with the exercise of its rights and franchises under the laws of the state, and 'infringe its constitutional right to freedom in the use of its property.' The damage to plaintiff will be irreparable, and no adequate compensation therefor can be obtained at law.
A permanent injunction was prayed.
The city answered, denying some allegations and admitting others, and set out a number of ordinances which precede that in controversy, and set out the latter as follows:
'No advertising trucks, vans, or wagons shall be allowed in the streets of the borough of Manhattan, under a penalty of $10 for each offense. Nothing herein contained shall prevent the putting of business notices upon ordinary business wagons, so long as such wagons are engaged in the usual business or regular work of the owner, and not used merely or mainly for advertising.'
And it alleged that it was its duty to prevent 'the display of the advertisements on the outside of the stages operated by complainant of Fifth avenue.'
After hearing, a judgment was entered dismissing the complaint. It was affirmed successively by the appellate division and by the court of appeals.
The trial court found that plaintiff had succeeded to all of the 'rights, privileges, franchises, and properties' of the Fifth Avenue Transportation Company, having the right to use automobile power instead of horses. The franchises of the transportation company were to carry passengers and property for hire; to establish, maintain, and operate stage routes for public use in the conveyance of persons and property, and to receive compensation therefor. It had other franchises not material to mention.
'The automobile omnibuses now operated over the routes of the plaintiff herein have two decks, on the lower of which are longitudinal seats for sixteen passengers, and on the upper deck there are transverse seats for eighteen passengers. There is a stairway leading from the rear platform of the lower deck to the upper deck. Said stairway has a screen extending from the top to the bottom.
'The space used for advertising purposes on the vehicles of the plaintiff herein is leased to the Railway Advertising Company, under an agreement dated May 11, 1907, from which the plaintiff herein receives the sum of $10,000 per annum, plus the sum of $200 per bus for exterior advertising. There was an agreement dated May 15, 1905, relating to interior advertising.'
Advertising signs of various colors are upon the stairs of the elevated vailways, in places on the elevated structures in the city of New York, and on the walls of the underground stations of the subway railroad company.
The advertising signs on plaintiff's coaches have no relation to their operation or to the physical comfort, convenience, or health of the passengers or the public, and are merely an incident to the use of the stages in the operation of the franchise belonging to it for the transportation of passengers.