author: Marvin, J. Wright, J.

text:
    Plato v. Reynolds et al.

    If a bill of exchange, payable in a specified length of time after date or on a day certain, be presented for acceptance on the day it is due, and if acceptance be then refused, no further demand of payment is necessary to charge the drawer or indorser.
    It is inadmissible to discredit a witness by contradicting him in respect to a merely collateral fact, as to which he testified on cross-examination without objection.
    Appeal from the Supreme Court.. Action on a bill of exchange for $3,627.10, drawn by Reynolds & Wagner, the defendants, on Peter Uhler, payable to the order of Miles & Bartlett, one day after its date, September 8, 1856. The trial was before a referee.
    The consideration of the bill was the sale and delivery, by the payees to the drawers (the defendants), of 393 stock hogs. These hogs were purchased on the 2d September, 1856, at the drove yards in New York, and sent to Uhlersville, in Pennsylvania, where they arrived on the 4th September. Some of them exhibited symptoms of disease on the way; four died before reaching Uhlersville; and over seventy died within ten days thereafter. The disease of which they died was bog cholera, and the yards in New York, in which the hogs were kept before the sale, had been used for keeping hogs which had this disease. All of the hogs alive on th.e 14th September were, by agreement between Miles & Bartlett, the vendors,, Peter TJhler, and Reynolds & Wagner (the defendants), returned to New York, and there delivered (together with other hogs purchased about the same time, by the same parties, of Cassius Stiles) to Miles & Bartlett, who sold the hogs so delivered to them for account of Reynolds & Wagner, and realized from such sale the sum of $2,286.83, over and above charges.
    The referee ordered judgment for the plaintiff, which was affirmed at general term, and the defendants appealed to this court. The questions raised, and such other facts as are material, sufficiently appear in the following opinions.
    B. W. Bonney, for the appellants.

      Amasa J. Parker, for the respondent.
   Marvin, J.

A question much litigated on the trial was, whether the hogs were sold by Miles with a warranty of soundness. Dalton was the agent of the defendants and made the purchase, and testified that Miles guaranteed that the hogs were sound. On cross-examination by plaintiff, he stated that he bought a lot of hogs the same day of Cassius Stiles; that he warranted them; that witness believed he gave about the same warranty Miles gave. Stiles was a witness for the plaintiff, and stated that he did not warrant the hogs he sold to Dalton; that he told Dalton they were healthy to all appearance. The witness was then asked: What was said, if anything, between you and Dalton about warranting the hogs ? The defendants objected to this question, the objection was overruled, and the defendants excepted. The answer was, that Dalton said, Now I buy these hogs for sound hogs. Mr. Pratt, who owned them and was present, replied, I sell them for sound hogs now, but I won’t warrant them ; a week from now, I will not say what they will be. This was after the hogs were weighed. Whatever the contract was between Dalton and Stiles, it had no connection with the contract between Dalton, the agent of the defendants, and Miles; it was entirely collateral and in no way. involved in the issue tried. The authorities cited by the defondants’ counsel, show that a witness cannot be cross-examined as to any distinct collateral fact, for the purpose of afterwards impeaching his testimony by contradicting him; and if the witness answered such question, the answer must be taken as conclusive, and no evidence can be afterwards admitted to contradict it. This rule will not exclude the contradiction of the witness as to any facts immediately connected with the subject of inquiry. (1 Stark. Ev., 134, § 22; 1 Greenl. Ev., §§ 448, 449; Harris v. Wilson, 7 Wend., 57; Howard v. The City Fire Ins. Co., 4 Denio, 502.) Questions touching facts not involved in the issue, may sometimes be put to the witness upon cross-examination, for the purpose of affecting his credit or discovering the truth, and the latitude of inquiry rests generally in the sound discretion of the court. His answers, however, will be conclusive, and he qannot, touching these collateral facts, be contradicted by other witnesses. (See case last cited, and Stark. Ev., part 2, §§ 22, 28, and 1 Greenl. Ev., § 449.)

Spencely v. De Willott (7 East, 108) is a case generally cited in support of these rules. In that case, it was not permitted to cross-examine the witness as to other contracts, made the same day, with other persons, in order to show that the contracts in question were of the same nature and not usurious, if the witness should answer one way, or to contradict him if he answered the other -way. In that case the court say, what ever contracts the witness might have entered into with other persons for other loans, they could not be evidence of the contract made with the defendant, unless the witness had first said that he had made the same contract with the defendant as he had made with those persons, which he had not said.

• In the case we are considering, the witness Dalton stated that Stiles warranted the hogs he bought of him, and he believed that Stiles gave about the same warranty Miles gave. This statement was all made, however, upon cross-examination, and all the facts it includes were collateral and come within the rule making the answers conclusive. The case put in East., supra, is when the witness states, in his direct examination, for the purpose of proving the contract and its terms, that he made a contract the same as another conti act made with another person. In such a case, the terms of the contract made with the person referred to, would undoubtedly be open to inquiry, for the very purpose of ascertaining the terms of the contract in issue. In my opinion, the referee erred in permitting the witness Stiles to'state the contract between him and Dalton, and what was said about warranting the hogs. This testimony had no relevancy to the issue and it was not competent to impeach Dalton. The credit of Dalton, as a witness, was very material to the defendants, and it was undoubtedly much affected by this illegal evidence. The judgment should, for this reason, be reversed, and there should be a new trial.

[The learned judge then proceeded to discuss another question, in respect to which the majority of the court differed from him, as follows:]

There is another question in the case, which I have examined with some care, and as to which I am in some doubt. The action is upon a bill of exchange, drawn by the defendants upon one Uhler, who resided in Pennsylvania. It bears date Hew York, September 8, 1856, and is payable one day after date. It became due on the 12th September, and on that day it was presented to the drawee, Uhler, for acceptance, and Uhler refused to accept. Ho presentment for payment was made, and the question is, Was the presentment for acceptance in due time ? The position of the defendants’ counsel is, that the bill was due when it was presented, and that it was too late to present it for acceptance. He cites Chitty on Bills, and Story, and Kent’s Commentaries. Chitty (p. 272) says: “ The holder of a bill always has a right to present for and insist on acceptance, even so late as the day before the bill falls due.” Story (§ 231) says: “If the bill be drawn, payable at a certain time after date, it must be presented before, or at the time when, it arrives at maturity.” He cites Gaupy v. Hardin (7 Taunt., 159), in which the bill was payable thirty days after sight; also Bachellor v. Priest (12 Pick., 398), in which the bill was payable four months from date, and it was presented for acceptance more than a month before it was due, and acceptance was refused. It was held that the bill was presented for acceptance in due season. Also, Townsley v. Sumrall (2 Pet., 170), in which it was held that a bill payable at a given time after date, need not be presented for acceptance, and that payment may be at once demanded at its maturity. These cases do not touch the question whether presentation for acceptance on the day the bill is due, is in time.

Kent, in his Commentaries (vol. 3, 82), says: “A bill payable on a day certain after date, or on demand, need not be presented for acceptance before the day of payment or demand, and if not presented previously for acceptance, the right to require acceptance becomes merged in, or, as Pardessus says, confounded with, the right to demand payment; but if presented before it becomes due, and acceptance be refused, it is dishonored, and notice must then be given, forthwith, to the parties whom it is intended to charge.” He cites Bank of Washington v. Triplett (1 Pet., 25), and Allen v. Suydam (20 Wend., 323, 324). These were cases against agents for neglect to present the bills promptly for acceptance. They do not reach the point in question here. Chancellor Walworth, in Allen v. Suydam, in speaking of the general rule, says that the drawer or indorser of the bill is not discharged by the neglect of the holder to present the same for acceptance immediately, or until the time when it becomes due and payable. In another connection he says, if the holder neglects to present the bill for acceptance until it becomes due, and the drawer fails in the meantime, the drawee may then refuse to accept. This is the case cited by the plaintiff’s counsel in this case. He also cites Edwards on Bills, 387.

The language of the chancellor would seem to imply that the bill may be presented for acceptance on the day it becomes due. • There was no such point in the case, and no authority in support of such position is cited. I think that the question made in this case was not present in the chancellor’s mind at the time of writing.

In the absence of any controlling authority, we must examine the question upon principle. And the question is not simply whether a bill of exchange may be presented to the drawee for acceptance at the time it is due, but it also includes the question whether the drawers will be liable upon the refusal to accept at that time and notice of such refusal, no demand of payment being made.

As we have seen, it is not necessary, as to the liability of the drawer, that the bill should be presented for acceptance. If it is duly presented for payment, and payment is refused, and the-drawer has notice, he remains liable. If duly presented for acceptance, and there is a refusal to accept, notice must be given to the drawer, and the holder may at once resort to him by action, though the time for the payment of the bill has not arrived. It seems to me, however, that if the holder waits until the bill is due before presenting it for acceptance, that he should then demand payment, and if payment is refused, he should give notice of those facts to the drawer, and that unless he does so, the drawer will be discharged. The time having arrived when the holder is entitled to payment, and not having previously required acceptance, the duty is devolved upon him of demanding payment of the drawer, and in case of refusal to'pay, of giving notice of such demand and refusal. Why require acceptance, when, if the bill is accepted, he will be,obliged, at once, to demand payment, in case he intends to preserve the liability of the drawer? I can see that a holder of a bill may be willing to discharge the drawer, and look to the acceptor alone and give him indulgence, and in such a case he may present the bill for acceptance on the day it is due, and if accepted, the acceptor will be liable, and as to him, no demand of payment need be made. The undertaking of the drawer is, that in case the bill is duly presented for acceptance, the drawee will accept, and that he will pay the bill upon due presentment for payment, whether it has been presented for acceptance or not; and if the drawee refuses to accept upon due presentment for such purpose, or refuses to pay, in case payment is demanded at the maturity of the bill, and notice of such refusal is given, then that the drawer will pay. His liability is conditional. In my opinion, if the holder neglects to require acceptance until the bill is due, in the language of Kent, his right to require acceptance becomes merged in or confounded with the right to demand payment.

I think, as the evidence appeared in this ease, that the defendants, as drawers of the bill, were discharged, and that the referee erred in refusing to nonsuit the plaintiff, and that for this reason the judgment should be reversed, and there should be a new trial.

Wright, J.

The bill which was drawn, payable one day after date, was presented* to the drawee for acceptance on the day it matured; acceptance was refused, and it was protested for non-acceptance. The certificate of the notary states that on the same day (12th September) he forwarded written notice, by mail, to the drawers (the defendants) and indorsers (Miles & Bartlett), informing them of the non-acceptance thereof. It was also proved that on the following day the payees (Miles k Bartlett) received the original draft, with notices of protest for themselves and the defendants, and caused such notice to be served on the latter that day. The drawee also informed one of the defendants, on the 12th September, at the office of the payees, that he had not accepted or paid the draft. In view of this proof, I think the referee did not err in refusing to dismiss the complaint, and in deciding that the bill was duly presented and protested, and that due notice was given to the defendants to charge them as drawers. The defendants claim that the draft being due when presented, and demand made by the notary, it was then too late to present it for acceptance, and presentment for acceptance of a bill which is due, is not sufficient to charge the drawers. But it is well settled that the holder of a bill, payable a specified length of time after date, or on a day certain, need not, for the purpose of charging the drawers and indorsers, present it for acceptance until it becomes due and payable. It may be presented before or at the time of its maturity. (Edwards on Bills, 387; Story on Bills, § 231; Allen v. Suydam, 20 Wend., 321; S. C., 17 Id., 368.) The evidence to show notice was enough, if credited, to justify the finding of the referee. He had, in the first place, the certificate of the notary that he forwarded, on the day it was protested, written notice by mail to the drawers, of the nonacceptance of the" draft. It was furthermore shown that the original draft, and notices of protest for non-acceptance, were received in Hew York by the payees, and that the notice directed to the defendants was served on them by a clerk of the payees and indorsers; and the proof tended to the conclusion that this service was on the 13th September, the day following the presentment and protest. It likewise appeared that on the 12th September, one of the drawers was verbally informed by the drawee that he had dishonored the bill.

A written or verbal notice to the drawers, of the nonacceptance of the draft, the day following the presentment and demand, was sufficient to charge them. Indeed, in this case, it is not clear that any notice to the drawers, of the dishonor of the bi^I, was necessary, they being the original debtors.

It conclusively appears that neither the defendants, nor TThler, for whom the hogs were purchased, e-ver realized any value or advantage whatever from the sale and delivery of the hogs. But this alone would be no defence if they were not warranted sound, healthy, and free from disease; or if they had not been, before the sale, exposed to, and at the time of such sale were- not affected with the disease called cholera, and those that died did not die of any contagious disease contracted before the sale, there would be no failure, wholly or in part, of the consideration of the bill in suit. The defendants would not be absolved from liability, if without fault or error on the part of tlie vendors the speculation resulted disastrously to the vendees. Were we at liberty to look at the evidence," and form our own conclusions of fact therefrom, it is possible that we might differ with the referee in respect to his finding. But the facts found by him cannot be questioned in this court. (Bond v. Spelman, 4 Comst., 284; Griscom v. The Mayor of New York, 2 Kern., 586; Western v. The Genesee Mutual Insurance Company, 2 id., 258.) He has' found that Miles & Bartlett did not, oh the sale ,of the hogs to the defendants, warrant theni to be sound, héalthy and free from disease, but refused to do so;- and that before such salé they had not been exposed to, and at the time thereof were not affected with any cholera; arid that those of them which died after the' sale and delivery to defendants did not die of any contagious disease contracted before the sale. This is substantially a finding that the hogs were sold without any warranty that they were free from disease, and that in fact at the time of the sale and delivery,- they were not infected with any contagious disease, subsequently .causing the death of any of them. Of .course, if they were sold without warranty, arid were not infected at the time of such sale with the disease of which some of them afterwards died, occasioning thereby a loss to the defendants, there could be no pretext for repudiating the contract of sale, or alleging a total or partial failure of consideration • for the draft. So, also, if there were a warranty, arid the hogs were free from disease and infection at the time of sale and delivery, but subsequently contracted a contagious disease, of vihich some of them died, there would be no breach of warranty, and no ground for questioning the consideration of the draft. There was no error, therefore, in the legal conclusion of the referee, upon the facts found by him, that the sale and delivery of the 393 hogs were a good consideration for the drawing of the bill in question, • and that srich consideration had not failed wholly or in part.

There was a single objection by the defendants on the trial to the admission of evidence. This objection the court regards as well taken, and of sufficient importance to require a re-trial -of the casé. One Cassius Stiles; a hog dealer in the city, about the time of the purchase from Miles & Bartlett, sold to thé defendants, for Uhler, 133 hogs. Dalton, who acted for defendants in the purchase of both lot's, and who swore to Miles & Bartlett’s warranty, and what Miles said about the hogs, on his cross-examination by plaintiff’s counsel, testified “ that he bought a lot of hogs of Cassius Stiles the same day; he warranted them; he believed that he gave about the same warranty Miles • gave.” Subsequently Stiles was produced as a witness by the defendants. On his cross-examination by the plaintiff he testified to the sale of his lot of hogs. The question was then put to him: “ What was said between you and Dalton about warranting the hogs? The question was objected to by defendant’s counsel, the objection overruled, and the witness proceeded to narrate the conversation and statements made at the time his hogs were sold. Any inquiry as to Stile’s sale was, of course, collateral and irrelevant to the issue, and the plaintiff could not cross-examine Dalton as to a warranty made by Stiles, merely for the purpose of contradicting, him by other evidence, if he should deny it, thereby to discredit his testimony. If a question relative to a distinct collateral fact be put and answered, evidence cannot afterwards be adduced for the purpose of contradiction. This was the effect of the question objected to and the reply. On the plaintiff’s cross-examination, Dalton had testified “that Stiles warranted his hogs; he believed he gave about the same warranty Miles gave.” This was a collateral fact; and it was not competent to contradict the witness in respect thereto. He could not thus be impeached or discredited. It was important to discredit Dalton, as he was the only witness who testified to Miles & Bartlett’s warranty; but it could not be done bj contradicting him as to a collateral matter.

For this error the judgment must be reversed, and a new trial ordered, with costs to abide the event.

All the judges, except Marvibt, J., agreed that a refusal to accept on thé day payment is due is equivalent to a refusal to pay, and renders a demand of payment unnecessary. On the question of evidence, all the judges concurred.

Judgment reversed, and new trial ordered.


source: Caselaw Access Project

author: Denio, Ch. J. Marvin, J.

license: Public Domain

text:
    Martha Hall v. Stryker, Sheriff, &c.
    One sued, for seizing goods under an- attachment may defend by proving that a prior sale by the defendant in the attachment to the claimant was made in fraud of creditors.
    In the affidavit to procuré the attachment, it is a sufficient statement of the applicant’s title that he is the owner of the demand against the debtor, “ under assignment to F. H.,” an assignee of the original creditor.
    .Whether the plaintiff in the action for seizing the goods is at libertyto controvert the indebtedness of the defendant in the attachment suit to the plaintiff therein, qucere.

      It seems that, as against third persons, the affidavits on which the attachment issued, if sufficient to give jurisdiction to the officer granting it, establish the character of the plaintiff therein as "a creditor, and that it lies upon a claimant of the goods to establish the validity of the transfer to himself.
    ■ Appeal from the Supreme Court. The action, which was commenced December 81, 1857, -was in the nature of trespass de bonis asportatis, for a quantity of household furniture, two wagons, &c. The defendant justified the taking, as sheriff of Kings county, under, an attachment issued by a justice of the Supreme Court, according to the provisions cif section 227 and the succeeding sections of the Code of Procedure, in an action brought by DeWitt & Hay against Robert Hall, the brother of the plaintiff, who was alleged to be the owner of the goods.
    On the trial, the" plaintiff proved the taking of the property by a deputy of the defendant, on the 1st day of December, 1857, at 10 o’clock in the morning, at E. Hall’s house in Flat-bush ; and she produced a bill of sale to her, purporting to have been executed by Hall, dated the-day of 'November, 1857, and proved, by him; that it was executed on the 30th of that month. He also testified that its consideration was $1,000, which he owed her for money lent. The bill of sale embraced other property besides that which was taken by the deputy, and was expressed to be in consideration of one dollar.

      The defendant gave in evidence the attachment issued under the hand of a justice of the Supreme Court, dated the 30th ¡November, 1857, and proved its delivery to the sheriff at 4 o’clock on that day. It recited an application made to the justice by DeWitt C. Hay, the plaintiff, for an attachment against Robert Hall, defendant; that it appeared, by affidavit, that a cause of action existed in said action in favor of the plaintiff against the defendant, for the recovery of $3,500 and interest, which affidavit, it was stated, specified the amount of said claim and the grounds thereof, and showed that the said Robert Hall had disposed of, or was about to dispose of his property, with intent to defraud his creditors; and it also recited that the plaintiff had given the undertaking required by law. It thereupon commanded the sheriff to attach the defendant’s property, or so much thereof, &c., and" to proceed according to law. The defendant also, pursuant to the ruling of the judge, holding it to be necessary, produced the affidavits on which the attachment was issued. The only point made upon them related to the transfer of the demand to the plaintiff, it being shown to have been originally a demand existing against Hall in favor of one Angus Cameron. The statement on that subject in the plaintiff’s affidavit was, “ that deponent is now the owner and holder of said demand, under assignment to Frank Hay, to whom said Cameron had transferred it by assignment, bearing date said 1st May, 1857.” There was also an affidavit of Frank Hay, relating an interview had by him with the defendant Hall, at a time when the defendant had called upon him in relation to the demand of Cameron, “ which (the affidavit states) was then owned by deponent under an assignment dated said May 1, 1857.”The plaintiff’s counsel objected that the affidavits did not show the plaintiff, D. C. Hay, to be the owner of the demand. The judge allowed the exception, and excluded the affidavits; upon which the defendant, after excepting to the ruling, offered in evidence an order of the Supreme Court at special term, ón a motion made by the defendant Hall, in the action in which the attachment was issued, to set it aside. It was to the effect that upon reading and filing affidavits, and hearing counsel for bdth parties, it Was ordered “ that on plaintiff filing an affidavit, by way of amendment to the affidavit on which the attachment was granted, showing that the plaintiff was owner by assignment of the demand sued on,-and paying.the defendant -seven, dollars costs of the motion,-said motion be denied.” In connection with this 'Order, the defendant in-the present action offered to produce the-affidavits used on the motion; and to show-a compliance with its terms by filing the-affidavit- and paying the costs; and he also offered to make proof of the debt'of Cameron against -Hall, and of the two assignments by which it was transferred-to Hay, the plaintiff in the suit- commenced by attachment. ■ The judge excluded the’evidence, on an objection by the’plaintiff’s-counsel, and .the defendant-exempted. The defendant .gave further evidence touching the lona fides of the-bill of sale,; and,he offered evidence tending to show that it was-not actually- executed until, after the attachment was' delivered -to the' sheriff to be executed, which was excluded by the judge, on the plaintiff ’s objection, on the ground that the attachment bound thegoods only from the time of their actual seizure, -and the defendant’s counsel excepted. The Case'closed-by a ’statement that “the cause was-submitted to the jury, the court-instructing them that as the right of the creditors had, by the rulings during ■ the- trial, been- excluded from- the case; the oily questions in issue were the taking of the property, the title-of the plaintiff to it, and its-value; that there was no-reason to- doubt the delivery of the-bill of gale as-Hall had testified to it, and the possession of the plaintiff under it. To so much of the charge as related to the value of the proper ty; the defendant’s counsel then and there-excepted, claiming that the measure of the- damages was only the loss by reason of the deprivation of the use of the • property.” -The verdict was-for the plaintiff for- $l,178.-96; -and it was ordered that the exceptions-should be first heard at-a-gen eral term,-and that ’judgment-should be there rendered.
    The court at general term ordered, judgment for the plain tiff 'With'.costs,-and-the defendant appealed.

      S. P. Nash, for the appellant.

      James L. Campbell, for the defendant.
   Denio, Ch. J.

The only question discussed in the opinion of the general term, upon rendering the judgment of the Supreme Court, which is appealed from, was, whether, upon the assumption that, the attachment was regular and operative against Hall, the sheriff could justify the seizure of property which Hall had conveyed to the plaintiff before such seizure, Upon showing that the conveyance was fraudulent against the creditors of Hall. Having come to the conclusion that property fraudulently conveyed could not be taken under such process, it was unnecessary for .that court to consider the questions which arose upon the validity of the attachment. Having arrived at a different opinion upon the point on which the case was there determined, we are obliged to pass upon some of thé other exceptions.

Waiving any discussion of the effect of that process, if it should be found to" have been issued upon insufficient grounds, we come directly to the consideration of the alleged defect in the affidavits which were laid before the justice. It was sufficiently proved by them that an indebtedness had existed in favor of Cameron against Hall, and the point of the objection was, that it was not shown that the cause of action upon such indebtedness had been transferred, so as .to become vested in Dewitt C. Hay, who. sued out the attachment. • It is suggested, with some probability, that a clerical mistake had occurred, by which the word “ to ” after the word “ assignment ” had been changed from, the word “ from.” If the sentence had been written in the way which the supposition assumed to have been intended, the transfer would have' been more precisely and circumstantially set forth; but we must read it as it.actually appears in the paper. The allegation in the affidavit, as it stands, is positive, that the deponent, when. he applied for the attachment, was the owner and holder of the demand which Cameron formerly had against Hall, the character of which is briefly set out in the preceding part of the affidavit, and. it appearing to be a demand arising upon contract, and,' therefore, assignable in its nature. The affidavit proceeds with an attempt to state the manner in which the demand became vested in the deponent; and the statement is, that he is such owner and holder under an assignment made by Cameron to Frank Hay, the date of which is given. It is not to be understood as an allegation, that the deponent took his title by means of that assignment alone, but only that he derived it from, or held it under that instrument. It is the same form of expression which is commonly used to indicate the source of title of a person to any specific, real or personal estate. He is said to hold under a deed which is designated, or a person who is named, without a detail of the mesne conveyances. The import of the whole statement is, that “Hall owed Cameron such a sum. Cameron assigned- the demand to Frank Hay, and I am now the holder and owner of the demand under that assignment, that is, by title derived from Frank Hay.” It would, perhaps, have been more satisfactory if the conveyance by which the title had ■ passed from Frank to the applicant had been stated; but this was a matter submitted to the judicial discretion of the justice, and he held it sufficient If the affidavits, after setting out a cause of action, had stated only that it had been vested in the plaintiff, who had become the holder and owner of it, I am satisfied that it would have conferred jurisdiction upon the justice to issue the attachment. The statute, by requiring the application for such process to be passed upon by -a judicial officer, assumes that a judgment,.in its nature judicial, is to be exercised, and unless the affidavits are wholly defective upon some point which is necessary to be established, the process cannot be impeached as void for want of jurisdiction in the magistrate issuing it. (Van Alstyne v. Erwin, 1 Kern., 331.)

The point upon which the case was decided at the general, term is one of considerable importance. Conveyances made with intent to defraud creditors, pass the title as between the parties, and are void only against the creditors of the party making the conveyance. As against them such conveyances are utterly void. It is, moreover, a general rule of law that creditors at large cannot challenge such a conveyance. As they cannot, without process against the debtor, interfere with the possession of his goods, if he had made no conveyance of them, so the fact of his having made a conveyance, with intent to defraud them, gives them no greater rights. The transfer being void as to them, the law considers the property quoad them, as still the property of their debtor, and if they would seek its application towards the satisfaction of their debts, they must' resort to the same legal remedies which would be necessary if it were really the property of the debtor. But when the creditor has procured legal process, such as the law allows a creditor to have against the property of his debtor, he has acquired the standing of a creditor in respect to all the property of his debtor; and that which he has conveyed with the intent forbidden by the law (the conveyance being void), is as much his, in the judgment of the law, and as fully subject to the process, -as if the conveyance had not been made. Under certain circumstances, the law has, upon motives of policy, allowed an ex parte determination as to the existence of the debt, and permitted process to issue against the debtor’s property upon such determination, providing, however, for sufficient security to the debtor, if upon a regular trial the alleged creditor shall fail to establish thé existence of the demand. One of the cases in which this summary procedure may be taken is where the debtor has assigned any of his property with intent to defraud his creditors. Suppose he has assigned, as Hall did in this case, the whole of his goods, it cannot be doubted that the creditor would be entitled to the attachment on establishing the fraud. It is one of the cases expressly provided for in the statute. It might be the baldest cover, a mere gift executed by delivery with a declared purpose to cheat his creditors, yet the title would pass as between the parties, and the remedy which the law has provided would be utterly ineffectual if the property could not be seized on the attachment.

The argument principally urged in the opinions of the Supreme Court, and by the plaintiff’s counsel, is that .there can be no-proper adjudication of the fact.of-indebtedness upon an ex parte hearing in the absence of the parties to be.affected by the determination. I think this is an.objection which, if at all founded, lies against the statute. As-regards the debtor, ' confessedly, the debt is.allowed to be established on the ex parte hearing, to the extent of authorizing-the seizure-of his property. As regards the alleged fraudulent assignee, .it .is objected that he is allowed -no standing in court, and cannot be heard or allowed- to produce, evidence upon the question of the existence of the indebtedness when.the issues come on to be. tried, and'it is urged that .thus a. question vital to -his title is determined conclusively, on a trial to which he is not a party, and,'in which he. cannot regularly • intervene. - -The property which has been -assigned to. him. should not, it is said, be appropriated to the plaintiff’s alleged debt,, uni ess the fact of such debt is judicially established; .and-it cannot -be established, so as to affect him in. a suit to- which'he is a stranger. This argument assumes, and X think, properly, assumes, that in his action. against - the sheriff, or the party who has promoted the seizure, 'the attachment, if regularly issued, is conclusive, and that he-can only litigate the question of the validity, of the transfer to himself. That question is open to. him. If his purchase was unaffected by fraud, he need not wait-for the determination of the principal case," but may resort to the-same remedies which any .party is entitled to, whose property is wrongfully taken or converted. In-such an action, though he cannot controvert the process upon any ground except, the want of jurisdiction in the officer issuing it, the question of the indebtedness of -his vendor -will necessarily arise, as-fraud pannot be predicated of a conveyance made by-a--party who is free -from debt; and in this way the existence of the debt upon Which the attachment may be granted will generally be brought in question. But he-is not left solely-to an action, for he is entitled, to a summary inquiry as to the ownership of the property, and if it is found to be his,-or in other words, if his itle is found to be free -from fraud, he may have it immediately returned to him, with the expenses of the proceedings. (Code, § 233; R. S., 5th ed., vol. 3, p. 80, §§ 10-12.) A case may happen, it is true, where the conveyance was made with intent to defraud the creditors of the party making it, and yet on the trial it may turn out that the plaintiff will fail to recover in the attachment suit; and the provision for security does not extend to the indemnity of a fraudulent purchaser whose goods have been seized. This may have been a casus omissus in the act, or it may be that the legislature did not think it sound policy to indemnify such a purchaser against the temporary inconvenience of having the property withheld from him during the pendency of the suit against the defendant in the attachment. The possibility of such a state of things as I have supposed does not prove to my mind that a creditor, clothed with due process of attachment against his debtor, and thus invested with the legal character of a creditor, may not lawfully cause to be seized property which that debtor had fraudulently conveyed. That he may seize it seems to me to follow from the sentence of nullity which the statute of frauds pronounces against such conveyances, quoad the creditors of the party conveying.

The specific objection, that the purchaser-has no day in court to controvert the creditor’s debt, would apply with the same force where the seizure was under an execution issued on a judgment. In that case the judgment would be conclusive as to the judgment creditor’s debt, though theré, as in this case, the fraudulent grantee would have no opportunity to try the question of its existence. (Candee v. Lord, 2 Comst., 269.) This was the unanimous opinion of the judges of this court in the case cited, though the judgment turned upon another point. The opinion of Judge Gardiner and the points presented by the appellant’s counsel in that case fully explain the views upon that question which I now entertain.

But the defendant’s counsel in the present case offered to prove the existence of the attaching creditor’s debt, and the evidence was excluded. I consider such proof .unnecessary, but the offer to give it would seem to meét the main difficulty which has been suggested by the defendant’s counsel. In Damon v. Bryant (2 Pick., 411), the court in Massachusetts considered that the seizure of the goods of a fraudulent purchaser under an execution against his vendor, could not be justified without such proof. This, I think, was contrary to the law as understood in this State, but if sound, it would not aid the plaintiff in his case. The opinion which I entertain was pronounced against in the Supreme Court, in Olwte v. Fitch (25 Barb., 428). The case is, however, too recent to be regarded as a binding authority, and, besides, the court considered that the sale which, was there drawn in question, was perfectly Iona fide, which consideration was sufficient alone to warrant the judgment.

The cases referred to in the Supreme Court, which hold that a sheriff justifying, under a fieri facias, the seizure of property which the defendant had conveyed before the levy, must produce the judgment upon which the execution issued, do not appear to me'to have a strong bearing upon the present case. (Parker v. Walrod, 16 Wend., 514, and cases referred to by the chancellor.) A fi. fa. issues at the instance of the party,' without any actual authority of the court other than the judgment. But an attachment is process actually awarded by the officer signing it. In the former case it seems proper that the judgment should be produced where goods of a third person, who has a formal title from the debtor, are seized. Such third person cannot move to set aside the execution, and it is, therefore, reasonable that the creditor should show the judgment, in order to put -himself in a position to contest the sale. But the reason does not hold where the process does not presuppose any judgment upon which it is based, but emanates directly from an officer authorized to take proof of the debt.

The case of Frisbey v. Thayer (25 Wend., 396) does not seem to me to have any application to this case. A landlord caused goods to be seized under a distress warrant, which the tenant had mortgaged in actual good faith to- a party under whom the defendant acted. The mortgage was executed while the property was .on the demised premises, where they remained for some time after the giving of the mortgage; but the seizure for rent was made off the premises but within thirty days after the removal. The action was trover by the officer who served the distress warrant. The court refused to charge that the mortgage was void, for-want of an immediate change of possession. The points decided were, that the statute requiring a possession to accompany sale and mortgage did not apply when the property was seized on a distress warrant, and that the act authorizing a landlord to pursue goods removed from demised premises for thirty days after the removal, applied only to such as belonged to the tenant at the time of the removal, and not to such as he had previously sold or mortgaged.

The remedy by distress was one which the law gave to a party himself, and his warrant was not in the nature of process issued by courts or officers upon proof of the creditor’s debt. A landlord did not present himself in the character of a creditor within the meaning of the act. His rights were peculiar, arising out of the law.of landlord and tenant, and were not, as the court held, of the same nature as those of common creditors seeking to enforce process for their debts.

I am of opinion, upon the whole case, that the attachment was a justification to the officer, provided he could maintain by proof that the property seized belonged to Robert Hall as against his creditors; and that the judgment of the Supreme Court should be reversed.

Marvin, J.

The statute declares, that every conveyance of an interest in lands, &c., or in goods, &c., made with intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts or demands, &c., with like intent, as against the persons so hindered, delayed or defrauded, shall be void. (2 R. S., 137.)

It is well settled, in cases where the sheriff is sued for taking goods, by one not a party to the judgment, that he cannot defend under the execution alone. This directs him to take the property of the person against whom the execution is issued, and of course, if he takes the goods of another person, the execution will be no defence.

If the plaintiff .in such action shows a prima facie title, the sheriff cannot attack such title, without producing the judgment upon which the execution was issued. There must have been a judgment or there could have been no execution, and , the judgment is the b.est evidence of the relation of creditor and debtor, and no other evidence, in such a case, will be received. Upon, the production of such evidence, the sheriff as defendant, or any one having a right to avail himself of the judgment and execution, may raise and litigate the question of fraudulent sale by the judgment debtor to the plaintiff The judgment establishes conclusively the relation of creditor and debtor, and all are bound by it. It cannot be impeached or questioned collaterally, in the action by a third person for taking the goods as the goods of the judgment debtor. (Candee v. Lord et al., 3 Comst., 269.)

The Court of Chancery would not entertain jurisdiction Upon a creditor’s bill, until the creditor had'proceeded to judgment. As to the statute relating to the remedy in Chancery, it clearly requires that the creditor should have exhausted his remedy by judgment and execution. (2 R. S., 173.)

Does it follow, in all cases, that the relation of creditor and debtor must be established by judgment, before a sale made by the debtor can be questioned, on the grotind of fraud as to the creditors of the vendor ?

In certain actions and under certain circumstances specified, among which are those against a defendant who has absconded or concealed himself, or is about to remove any of his property from this State, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, any of his property, with intent to defraud creditors, as mentioned in the act, the plaintiff may have the property of such defendant attached, as a security for the satisfaction of such judgment as the plaintiff may recover. The warrant of attachment may be obtained from a judge of the court in which the action is brought, or a county judge. It must be made to appear, by affidavit, that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof; and certain other facts specified. (Code, §§ 227-229.)

The warrant of attachment requires the sheriff to attach and safely keep the- property of the defendant; and he is required to proceed in all respects in the manner required of him bylaw in cases of attachment against absent debtors. (§ 231.)

The plaintiff commences his action against the defendant, and the sheriff is required to attach and safely keep the property of the defendant. He is not authorized to take the property of any one other than the defendant, and if he does he is a trespasser. But if he takes property claimed by a person other than the defendant, how is such claim to be tried ? and what will be the issues ? The claimant sues the sheriff, and gives evidence of a purchase, by him, of the defendant in the action in which the attachment has been issued. If the purchase was in good faith, he has a good title, but if made with intent to delay, hinder or defraud the creditors of the vendor or other persons of their lawful suits, damages, &c., it was, as to such creditors or other persons, void, and as to them, the title of the property remained in the vendor, and the sheriff had not only the right, but was required, to attach and safely keep the property so sold. The sale is only void as to creditors or other persons specified in the statute, and no other persons have a right to question it. The question, however, constantly is, what shall be the evidence that the party who or in whose right the sale is attacked, is in fact a creditor, &c. And, as we have seen, in cases where the property has been taken on execution, the most numerous class of cases, the best and only evidence is, the judgment upon which the execution was issued, and that is conclusive. It is said, that in case evidence not conclusive is received, the trial will involve an issue between persons not parties to the action, and that any decision upon-such issue will not bind such parties; and this is undoubtedly so. But it will not follow that the legislature Could not dispense with the evidence by judgment, to establish the relation, of creditor and debtor, and it seems to me that it has done so, in a class of provisional remedies, in short, in this case. It has provided when and under what circumstances a plaintiff may have an attachment against the property of the defendant in the action. The statute carefully specifies what “ shall appear by affidavit,” and when such facts are made to appear, and an undertaking, as required by the statute, has been given, the warrant of attachment may be issued, requiring the sheriff to “ attach and safely keep the property of the defendant, as a security for the satisfaction of such j udgment as the plaintiff may recover.” In my opinion, the warrant" of attachment, when properly issued, is a complete protection to the sheriff or the plaintiff, in any action brought against him, provided he can show that the sale of the goods by the defendant in the action in which the attachment is issued to the plaintiff suing the sheriff, was fraudulent as to the creditors of such vendor and defendant, and that the affidavits, assuming them sufficient, upon which the warrant of attachment has been issued, must be regarded as establishing the character of the plaintiff as a creditor, in such action against him or the sheriff, by a third person, to recover the goods attached or their value.

It must be kept in mind, that the goods attached, or the proceeds of such as may be sold, are to be kept by the sheriff, “ as a security for the satisfaction of such judgment as the plaintiff may recover.” It is very clear, that the defendant in the attachment action cannot maintain any action for the. taking of his property, and thus precipitate the trial of the issue whether he was the debtor of the plaintiff. That issue must be tried in the action against him, and, if he prevails on the trial, his property will be restored to-him. And, in my opinion, one claiming title to the property attached, by purchase from the defendant in the attachment action, cannot raise the question that such defendant, his vendor, was not a debtor of the plaintiff suing out the attachment, or call upon such plaintiff or the sheriff in án action against him, to establish the relation of creditor and debtor between his vendor and the party suing out the attachment. And, unless he can maintain his title upon the ground that it is valid as against the creditors of his vendor, he must await the trial of the issue between the plaintiff attaching the property, and the defendant, his vendor.

I think Candee v. Lord (2 Comst., 269), in principle, quite instructive in this case. The principle established is, that a judgment obtained without fraud or collusion, is conclusive evidence in suits between creditors in relation to the property of the debtor, of the indebtedness of the latter, and of the amount of such indebtedness. Though such creditors were not parties to the record, Judge Gardiner says that the judgment rendered upon default, confession, or after contestation, without fraud or collusion, is, upon all questions affecting the title to his property, conclusive evidence against his creditors to establish, first, the relation of creditor and debtor between the parties to the record, and, second, the amount of the indebtedness. Other cases show that such judgment is conclusive evidence of the relation of creditor and debtor, in cases arising between the creditor and the vendee of such debtor, blow it seems to me that whenever one purchases property, with intent to defraud the creditors of the vendor, he takes it subject to the statute authorizing the property of his vendor to be seized, upon an attachment issued in an action against his vendor, and if the property he purchased shall be taken upon such attachment, he cannot, in an action against the sheriff, dispute the facts proved by the affidavits upon which the attachment was issued, but that such facts are as conclusive against him in the action brought by him as they would be in an action brought by the defendant (his vendor) against the sheriff: that such facts are as conclusive, in the action against the sheriff, to establish the relations between the plaintiff and defendant in the action in which the attachment is issued, as a judgment is in establishing the relation of creditor and debtor between the parties to the record. One who purchases property, with intent to defraud the creditors of his vendor, cannot complain that it is taken on attachment, under a special statute requiring certain facts to be .proved, and held until his vendor, if he sees fit, makes defence against the claim and defeats the action. The vendee has no right to appear in such action and make defence, nor can he compel his vendor to do so; and in the absence of collusion or fraud, he will, as to the question of creditor and debtor, be bound by their acts-and the judgment rendered between them. If he is an honest purchaser, then he will recover, whatever may have been the relations between his vendor and the party suing him, and the question of Iona fides in the purchase may be tried in his action against the sheriff.

All the cases cited by the learned judge delivering the opinion of the court below, were cases of the taking of the property on execution, except Frisbey v. Thayer (25 Wend., 396), which has no application to the present cáse. The ques - tion in that ease arose under the statute authorizing a landlord to pursue and distrain goods removed from the demised premises, except where the goods had been sold before seizure, in good' faith', &c. The tenant had mortgaged the goods, and the mortgagee had removed them before they were seized by the distress warrant. It was held that the goods could not be distrained: that the mortgage was valid between the parties as to the landlord, unless fraudulent in fact: that the property was not the property of the tenant, and that the statute making mortgages void as to creditors and subsequent purchasers, was not applicable; the learned judge adding, quite unnecessarily, “ as the question there can only arise between judgment creditors and the mortgagee.” Belknap v. Hastings (1 Den., 190.) was a case of distress for rent. Numerous questions were involved and litigated, some of them touching the validity of an assignment; and it was held that persons justifying under a distress warrant are not in a condition to impeach a conveyance made by the tenant on the ground of fraud against creditors. To enable a landlord to take such 'objection, he must, like any other creditor, obtain judgment and issue execution. The landlord in these cases had proceeded under the statute relating to a distress warrant .for rent, and the cases were not embraced by the statute. He could no more distrain as a creditor than any other creditor could issue execution without a judgment. His special remedy, by distress, was as landlord. If he sought to recover the rent by action, he must, of course, resort to the same remedies given to other creditors, and it was not necessary to specify and limit such remedies. It is undoubtedly true that a simple creditor pursuing the ordinary remedy by action, without an attachment, cannot attack a sale made by his debtor as fraudulent,; until he has obtained judgment. But no such question as we are now considering was present to the minds of the learned judges delivering opinions in the cases just cited.

For the reasons already stated, I think the judgment should be reversed, and there should be a new trial, costs to abide event.

Davies and Wright, Js., concurred; Selden, Rosekrans and Balcom, Js., thought that the question whether the plaintiff in the attachment was a creditor in point of fact is open to inquiry until he has obtained a judgment; and Rosekrans, J., thought that the party defending under the attachment was bound to give evidence of the debt on which it professed to be founded. Emott, J., expressed no opinion on that question. All the judges were for reversal on the principal question.

Judgment reversed, and new trial ordered.


author: Selden, J. Rosekrahs, J.

text:
    Milhau et al. v. Sharp et al.

    The corporate authorities of the city of New York have no power to confer upon individuals, by contract for an indefinite period, the franchise of constructing and operating a railroad in the public streets, for their private advantage.
    The powers of the corporation, in respect to the control and regulation of the streets, are held in trust for the public benefit, and cannot be abrogated nor delegated to private parties.
    A resolution of the common council, authorizing private persons to construct and operate a railroad upon certain conditions, without limitation as to time, or reserving a power of revocation, is not a license nor an act of municipal legislation merely, but a contract, which, if valid, it could not abrogate.

      Such a contract, if valid, conveyed, it seems, an immediate freehold interest in the streets, and a right to the exclusive use of the rails to be laid upon them, in perpetuity; and is void because it would deprive the corporation of its power to control and regulate such use.
    It is no answer to the application for an injunction, that the wrong complained of is a public nuisance, if it subjects the plaintiff to a special injury, not common to the public.
    The finding of fact, that a proposed railroad “will be specially injurious to the property of the plaintiffs, and other property similarly situated,” construed as showing a special and direct injury to each of the plaintiffs in severalty, not a remote one, and not merely a common or public nuisance.
    This action was brought by four persons, inhabitants of the city of Mew York, severally owning lots with valuable buildings thereon, situated upon Broadway in that city, and claiming to own the fee of the land in front of their several buildings to the centre of the street, subject only to the public easement, or right of way over it; the object of the action being to prevent by perpetual injunction, the defendants from laying a railway track in Broadway and running cars thereon for the carrying of passengers in pursuance of a resolution of the common council of that city.
    The plaintiffs stated that their lots and buildings were very valuable, and that they had been accustomed to pay large taxes thereon; that Broadway is an ancient street,' opened about 150 years ago by the then owners of the lahds over and through which it passes, for their own convenience, and was by them allowed to be used by other citizens and travelers as a common public street or thoroughfare, and has ever since continued and still is, such public street or thoroughfare; that a large portion of the trading and commercial business of said city (greater than that of any other street) is transacted in said street; and that the street is constantly thronged with all kinds and descriptions of vehicles and passengers.
    The resolution of the common council, passed on the 29th. of December, 1852, declared that the defendants. and those who might from time to time be associated with them, all of whom were therein designated as associates of the Broadway railway, had the authority and consenc of the common council to lay a double track of railway in Broadway and Whitehall or State street, from the South Ferry to Fifty-ninth street, and to continue the same from time to time along the Bloomingdale road to Manhattanville, which continuation they were required to make as directed by the common council. Such tracks were required to be laid under the .direction of the street commissioner, in or near the middle of the street, the outer rails not exceeding twelve feet six inches apart, and the rails laid even with the pavement, the inner portion'of the rail being of equal height with the outer, with grooves not exceeding one inch in width, or such other rails as should be approved by the street commissioner or common council, on such grades as then were or might thereafter be established by the common council; and the said associates were required to keep in good repair the space between the rails and one foot on each side; and to use no motive power except horses below Fifty-ninth street.
    The associates were required to place new cars on the road with all the modern improvements for the convenience and comfort of passengers; and to run cars thereon every day, both ways, as often as the public convenience might require, under such direction as the common council might from time to time prescribe. They were also required, in all respects, to comply with the directions of the common council, in the building of such railway, and in the running of the cars thereon.
    It was provided that no higher rate of fare should be charged for the conveyance of passengers from any one point to any other point along said route, and such combined system of routes as might thereafter be adopted, by means of cars and transverse omnibusses, than five cents for each passenger.
    The twelfth and thirteenth articles of the resolution were as follows: •
    “ Twelfth. In consideration of the good and faithful performance of all these conditions, stipulations and requirements, and of such other requirements as may hereafter be made by • the common council for the regulation of the said railway, as aforesaid, the said associates shall pay, for ten yearn from the date of opening the said railway, the annual license fee for - .each car, now allowed by law, and shall have a license accordingly; and after that period shall pay such amount of license fee, for further licenses, as the corporation, with permission of the legislature, shall then prescribe; or, in default of consenting thereto, shall surrender the road, with all the equipments and appurtenances thereto belonging, to the said corporation, at a just and fair valuation of the same.
    “ Thirteenth. Within a reasonable time after the passing of this resolution, the said associates, or a majority in interest thereof, shall form themselves into a joint stock association, which association shall be vested with all the rights and privileges hereby granted, and shall have power, by the votes of at least a majority in interest of the associates, to frame and establish articles of association and by-laws, providing for the construction, operation and management of the said railway, the mode of admitting new associates, and of transferring the shares or interests of any of the associates to new associates or assigns, the number, duties, mode of appointment, tenure and compensation of officers, the manner of making contracts, amending the by-laws, and calling in assessments from the associates, and generally the means and mode of establishing the railway and carrying it on, and of controlling and managing the property and affairs of the said association.”
    By the fourteenth article it was provided, that the association should not be deemed dissolved by the death or act of any associate, but his successor in interest should stand in his place; and the rights of each associate should depend on his own fulfillment of the conditions imposed on him, by the restrictions of the resolution, of the articles of association and by-laws of the association; and in case of his failure to fulfill the same, after twenty days’ notice in writing to him to do so, his rights should be forfeited to, and devolve upon the remaining associates. Also, that said associates should incorporate themselves under the general rail road act whenever two-thirds in interest of the associates should require it
    By the fifteenth article, the associates whose'names were set forth in the resolution, were required, by writing, to be filed ; with the clerk of the common council, to signify their accept anee thereof, and agree to conform thereto; and all new asso- ■ ciates or assigns, duly admitted according to the provisions of the articles of association and by-laws, should be deemed parties to such agreement
    The foregoing are the leading features of the resolution; but there were other provisions containing more minute directions in regard to the laying of the track, and the structure and management of the cars.
    The plaintiffs alleged that the defendants, immediately after the passing of the resolution by the common council, signified their acceptance thereof, and agreed to conform thereto, by writing, filed in accordance with the resolution. That the defendants, under color of the authority contained in said resolution, threatened to enter upon Broadway, and take up the Russ and other pavements, and dig up and subvert the soil in that part of Broadway between Whitehall and Fifty-ninth streets (including the portion, thereof belonging to the plaintiffs), to take possession of said street, and lay down and establish a railroad therein, and run cars thereon, for their own private interest and emolument, to the great injury and damage of the plaintiffs and other property owners on and in said street, and to their and each of their property; and without making to them or either of them any compensation therefor; and without paying or providing for the payment to them or either of them, of the damages resulting to them and their property, arising from the taking of their land lying in the street, and from laying said railway thereon.
    That the laying of the railway would require at least four months, during all which time the street would be rendered almost wholly impassable, to the great injury of the plaintiffs and others having occasion to travel in said street. That the street was too narrow (its average width not exceeding forty feet) to admit the establishing of such railway, consistently with the rights and. interests of citizens, and if established, it would be a public nuisance.
    That if the defendants were allowed to take up the pavement, and establish such railway, not only would the Russ pavement, lately laid in the street at great expense to the plaintiffs, be destroyed, but the lots owned by the plaintiffs would be seriously and irreparably injured and damaged, by means of the obstruction caused by the cars to the passage of vehicles, &c., in the street, and the consequent diversion of travel and business to other streets. That the effect would be to take from Broadway the large commercial trade carried on therein, thereby causing a depreciation of the value of all the lands and buildings located on said “street, and the rents and income thereof. The title of the corporation of the city to the fee simple of the streets, and the power of the common council to pass the resolution, were denied, and it was insisted that the resolution and the acceptance of it were of no binding force, and conferred no power on the defendants to construct or establish the contemplated railway.
    It was also charged that the common council acted corruptly in passing the resolution •? that they rejected propositions from responsible persons, to pay to the corporation from. $100,000 to $250,000 per annum for the privilege of building the railway, and of conveying passengers on the same or more favorable terms ; and that the resolution was passed in violation of an injunction previously issued by the Supreme Court, and served upon many of the members of the common council by whose votes it was passed, forbidding its passage.
    The defendants, in their answer, insisted that the street belonged to the corporation in fee'simple absolute ; and alleged that the common council had power to regulate the streets, to lay down rails', and to pass the resolution in question. They denied any knowledge of the plaintiffs’ title to the street or to lots situated upon it. They denied the fraud alleged in the passing of the resolution; stated that the propositions mentioned by the plaintiffs were made in bad faith, and intended to stop the building of the road; that such propositions would not have produced the amount stated; and that the defendants’ proposition was the most advantageous to the city. They also stated that it was their design to make their railway a trunk line, and to establish lines of omnibuses on the cross streets, at convenient distances ; and they had been required, by a committee of the common council, before the passage of the resolution, to make an agreement to purchase six of the principal lines of omnibuses running upon Broadway, at an expense of $450,000. That the railway would not occupy exclusively the street; that the street was not too narrow to admit the railroad without impediment to travel; that it would not be a nuisance, or injurious to the plaintiffs or the public; that it would take but two months to build it; that only fifteen feet of the pavement need be taken up ; that there would be abundant space each side of the pavement taken up, for vehicles to pass; that the road would relieve Broadway, and would not injuriously affect the value of street property ; that the defendants had no notice of the suit in which the injunction was obtained, or of the proceedings in it.
    The trial was had at the October special term in Hew York, in 1853,. before Mr. Justice Habéis, without a jury, who found that Broadway was opened as a street at different periods, commencing prior to 1695, all below Union place having been opened before 1813. That the plaintiffs were severally owners and occupants of buildings fronting upon said street, and of the lots upon which the buildings were erected, as particularly set forth in the complaint, and had been such owners for several years; and had, during such time, severally paid taxes upon such property to an amount exceeding $250 per annum, as stated in their complaint. That the establishment of a railroad in Broadway would be specially injurious to the said property of the plaintiffs, and other property similarly situated on the same part of Broadway.
    There were other findings of fact, but they are not essential to the determination of the questions presented on this appeal.
    It was also decided, as a matter of law, that the resolution in question was not a legislative act, but a contract, and was ■ not within the powers conferred upon the common council, and was, therefore, absolutely void; and conferred no authority whatever upon the defendants to enter upon Broadway and establish a railroad therein. The perpetual injunction prayed for was accordingly granted.
    Exceptions were taken to the several findings, and, on appeal to the court at general term, the judgment of the special term was affirmed, and the defendants brought the present appeal.

      David, Dudley Field, for the appellants.

      William Allen Butler, for the respondents.
   Selden, J.

In the present aspect of this case, there are but two material questions presented for consideration:

1st. Had the common council authority to grant to the defendants the right to construct and maintain a railway through Broadway, upon the terms specified in their resolution of December, 30th, 1853 ?
2d. If that, grant was not valid, have the plaintiffs shown such prospective special injury to their rights as entitles them to the relief granted by the Supreme Court ?

The first question was distinctly presented to this court and decided adversely to the validity of the grant, in the case of Davis v. The Mayor, &c., of New York (14 N. Y., 506). The position of the defendants’ counsel, that the decision in that case is not to be regarded as an adjudication upon this point, may be correct, as the judgment of the court, as finally pronounced, did not necessarily involve that question. Five of the judges, however, declared the resolution void, and I entertain no doubt of the correctness of that opinion. It is not necessary now to decide the question, about which two of the judges in that case differed in opinion, involving the power of the common council, or of the corporation of Hew York, in any manner, or under any circumstances, to authorize the construction and use of railways in the streets of that city. This case involves, not the general power of the corporation over the streets, but only the question whether the common council had authority to grant the particular privilege which the-defendants claim. In determining that question, the provisions of the resolution granting; those privileges must be regarded as indivisible. I allude only to the essential features of the plan. The thirteenth and fourteenth articles, which assume to authorize the creation of a joint stock association, and to provide for the transfer and forfeiture of shares, and the general management of the affairs of such association, may he disregarded without touching upon the main objects of the resolution. I therefore lay out of view those articles, as having no bearing upon the question as to the validity of those parts of the resolutions upon which the defendants rely. The provisions giving the right to lay the track of the railway, determining its location, width and manner of construction, the quality of the cars, the times of their running, the motive power to be used, the maximum rates of toll to be charged, the amount of license fees to be paid, and the duration of the privileges granted, are all parts of a single scheme, which are incapable of separation. The whole scheme is valid, or no part of it. These privileges, whether they create a monopoly or not, constitute a franchise. The definition of franchise, by Bouvier, is a “privilege conferred by grant from the government, and vested in individuals.” Kent says (3 Com., 458), “ The privilege of making a road, or establishing a ferry, and taking tolls for the use of the same, is a franchise.” Railroads certainly do not form an exception. (3 Paige, 45; 14 N. Y.) Monopoly is not an essential feature of a franchise. A corporation with banking powers would be no less a franchise, if there were no law restraining private banking, which alone gives to banking corporations the character of monopolies. The granting of franchises was a part of the prerogatives of the British Crown (Finch’s Law, 164), which, on the severance of the colonies from Great Britain, became vested in the people, and no franchise can be created in this State, without authority to create it derived from the people through the legislature. The corporation of Eew York can grant ferries (or at least could do so. prior to the act of May 14, 1845, on the subject), because that power has been expressly granted to it (1 Hoff. Est., and Rights of the Corporation of New York, 285, 281, 286; Benson v. The Mayor, &c., 10 Barb., 223), but neither the corporation nor the common council has been authorized to create a franchise of the character of that described in the resolution under consideration. It follows that the resolution, relating to a subject not within the powers of the body passing it, is merely void.

On other grounds, without reference to its character as creating a franchise, the resolution is equally objectionable. It was not, as has been insisted, an act of legislation, but on the contrary, it possesses all the characteristics of, and was in fact, a contract. It was held to be a contract in the case of The People v. Sturtevant (9 N. Y., 273), and but a slight examination of its provisions is requisite to show the correctness of that decision. Prior to its acceptance by the defendants, the resolution was only a proposition, having no binding force whatever. It was certainly not then a law, and since that time the common council have taken no action upon it. Upon its acceptance (if valid), it became a contract between two parties, binding each to the observance of all its provisions. It was something more than a mere executory contract between the parties. It amounted also to an immediate grant of an interest, and, it would seem, of a freehold interest in the soil of the streets to the defendants. The rails, when laid, would become a part of real estate, and the.exclusive right to maintain them perpetually is vested in the defendants, their successors and assigns, I say perpetually, because there is no limitation in point of time to the continuance of the franchise, and no direct power is reserved to the corporation to terminate it. Indirectly such termination might, perhaps, be effected, after the expiration of ten years, by making the exercise of the privileges so burdensome through the increase of license fees as to compel their abandonment. This, however, could only be accomplished through the aid of State legislation; and if we assume that the laws of the State in that respect are to remain unchanged, the privileges granted are perpetual. The title to the rails when permanently attached to the land, and such right in the land as may be requisite for their perpetual maintenance, are therefore granted to the defendants by the resolution. The exclusive use of the rails when laid for the purpose for which they were designed, would also, as I think, belong to the defendants. Other people might drive across them, and to some extent along them, with ordinary carriages, but they would have no right to run cars upon them for their own convenience or profit. Any use which the public could have of them, not exercised through the defendants’ franchise, would depend upon the fact that the rails would not éntirely exclude from the ground they might occupy, the character of a public street. The public might continue to pass over the track (when not in use by the defendants), but' that must be done with such inconvenience, more or less, as the rails might occasion. No direct benefit could be derived by the public, or by individuals not interested in the road, from its construction, otherwise than through the use of the cars to be run upon it. Indirectly, other benefits might arise, and possibly of sufficient magnitude to overbalance the inconvenience arising from its construction and use. Whether this would be so or not, is a question the solution of which does not belong to this tribunal, and I should express no opinion in regard to it if I had formed any. So far as that question is involved in the present case, it is already conclusively determined against the defendants, and my present purpose is only to show the importance, the exclusive character, and the permanency of the powers conferred, or attempted to be conferred, upon the defendants by the resolution. If that resolution should be sustained, no power would remain in the corporation to remove the railway after its construction, if it should prove to be a nuisance, or to reduce the rate of fare, if it should be found unreasonably high, or to compel the introduction of any improved method of conveyance, if at any future time such method should be invented, without the consent of the defendants or their successors; and the powers of the corporation over the street in many other respects would be abridged. Those powers were given to the corporation as a trust, to be held and exercised for the benefit of the public, from time to time, as occasion might require, and they could neither be delegated to others, nor effectually abridged by any act of the corporate authorities. (The People v. Kerr, 27 N. Y., 188; Presbyterian Church v. Mayor, &c., 5 Cowen, 538; Coates v. Mayor, &c., 7 id., 585; Goszier v. Corporation of Georgetown,. 6 Wheat., 593.) Such trust is, in this respect, governed by the general principle, that the duties of a trustee cannot be delegated without express power for that purpose conferred by the author of the trust. (Hill on Trustees, 175, 540, Phil, ed., 1846.)

The defendants’ counsel insists that the resolution is not a 'contract, but a license, revocable at the pleasure of the common council. This position cannot be reconciled with the decision in The People v. Sturtevant, supra, nor with the principle declared by the Supreme Court of the United States, in the Dartmouth College case (4 Wheat., 519), and other kindred cases, in substance, that grants of such franchises, though made by acts in form legislative, become, when accepted and acted upon, contracts, not subject to be recalled or modified, except in accordance with express reservations contained in the grants. Ho-such reservation is made by the resolution in question, and the privileges which it grants, if within the power of the common council, are already beyond the control of any future act of that body. (Smith’s Com., §§ 252, 253.) Ho reservation of that kind, however, would have been of any service, as it could not supply the defect of power. The resolution is, therefore, void, for the reasons that it purports to create a franchise which the common council had no power to create; to vest in the defendants an exclusive interest in the street, which the common council had no power to convey; and to divest the corporation of the exclusive control over the street, which has been given to it as a trust for the use of the public, and which it is not authorized to relinquish.

The remaining question is, whether the plaintiffs have shown such prospective and special injury to their rights, as likely to result from the construction of the railway, if such construction should be allowed, as to entitle them to the perpetual injunction granted by the judgment appealed from. The material facts found by the judge at the trial, bearing upon this question, are as follows: That the plaintiffs were severally owners and occupants of buildings fronting on Broadway, and of the lots of land upon which said buildings were erected, as particularly set forth in the complaint, and that the establishment of a railroad in Broadway would be specially injurious to said property of the plaintiffs, and other property similarly situated in the same part of Broadway. The defendants do not deny that they design to construct the railway, and threaten to enter upon Broadway and take up the pavement for that purpose, as alleged in the complaint, and they claim to justify their action, in this respect, under the resolution of the common council. There is no express finding either way upon the question (upon which the parties in their pleadings are at. issue) whether the plaintiffs own the fee simple of the lands in front of their respective buildings, to the centre of the street, or not. If it should be considered that such title in the plaintiffs was necessary to justify the finding, that the railroad would be specially injurious to their property, this court would be bound to infer, in support of the finding, that that fact was established. Carman v. Pultz, 21 N. Y., 537; Grant v. Morse, 22 id., 323.) It was held in this court, in the case of The People v. Kerr, supra, that the plaintiffs had no title to the lands over which the streets passed, in front of their lots, and therefore could not maintain an action to prevent the construction of a railroad in such streets. It appeared, however, in that case, that the lands in front of the plaintiffs’ lots, were taken for the street, under the act of 1813, and it was held that where streets were opened under the act, the fee of the lands was vested in the corporation. In the present case, it appears that all that part of Broadway which is below Union place, was opened as a street prior to 1813, and no evidence is furnished to us of the extent of the interest taken by the corporation in streets so opened. We must, therefore, hold in accordance with the general rule, that the proprietors of adjoining lands own to the centre of the street. It is not found that the plaintiffs’ lots were situated below Union Place, but that fact was not questioned by the defendants’ counsel, except as to one lot, and if his statements as to that were correct, it would not impair the rights of the parties arising from their ownership of the other lots. Even if it should be held that there is no distinction in respect to the title of the corporation, between streets opened prior to 1813 and those opened since that date, the general rule that the fee is vested in the corporation would not be absolutely incompatible with a remaining fee in adjoining proprietors, under special circumstances, and it must be inferred, in support of the finding, if it could not otherwise be justified, that such special circumstances had been shown. “ Judgments are not reversed in this court, because, the facts found by a referee, or judge, do not affirmatively sustain them. On the contrary, the judgments of subordinate courts are presumed to be. right, unless it appear that a rule of law has been violated, after assuming that the facts have been viewed in the most favorable light which the case will admit of.” (22 N. Y., 324, 325.) This rule also forbids an adoption of the inference suggested by the defendants’ counsel, that the injury to the plaintiffs’ property, mentioned in the finding, might not arise from the obstruction of the street, but from making the way too easy to other parts of the city, or other cause too remote to constitute a ground of action. We can only infer from the finding of an injury, that it is what the law regards as an injury, such inference not being expressly contradicted by any statement in the case. Assuming, therefore, as we must from the case, that the defendants were about to construct a railroad along Broadway, in front of the plaintiffs’ buildings, over lands to which they had no title, subject to the easement of the street;, and that such railroad, when constructed, would be specially injurious to the plaintiffs’ property, the right of the plaintiffs to a perpetual injunction to prevent such injury ■ would appear to be free from doubt. Judge Stoey, speaking of private nuisances, which will-justify the interference of a court of equity, says: “ There must be such an injury as from its nature is not susceptible of being adequately compensated by damages at law, or such as from its continuance or permanent mischief must he a constantly recurring grievance, which cannot be otherwise prevented but by injunction." (2 Story’s Eq., § 925.) In the case of Williams v. The New York Central Railroad Company (16 N. Y., 97, 111), which was a case similar to the present, except that the railroad had been built, and was in use, and damages were claimed for past injuries, as well as a perpetual injunction against their continuance, it was said, in the opinion of the court: “Although the plaintiff had a remedy at law for the trespass, yet as the trespass was of á continuous nature, he had a right to come into equity, and to invoke the restraining power to prevent a multiplicity of suits, and can, of course, recover his damages, as incidental to this equitable relief." The application in such cases is as appropriate to prevent the injury, where it is threatened, as to arrest it after it has commenced. (Corning v. Lawrence, 6 Johns. Ch., 439; Angel on Highways, § 283; 2 Story’s Eq., §§ 825, 826, 924.)

It is insisted by the defendants’ counsel, that the finding of the judge at the special term shows that the injury complained of was a public and not a private nuisance, and that, consequently, a private action to prevent or restrain it could not be maintained. It is not an available objection to actions of this nature, that the wrong complained of constitutes a public nuisance, provided the plaintiffs are subjected by it to any special injury, not common to the public, or to large classes of people. (Doolittle v. Supervisors of Broome county, 18 N. Y., 160; Corning v. Lawrence, 6 Johns. Ch., 439; 2 Story Eq., § 924; Waterman’s Eden on Injunctions, 267, 268.) This principle is not controverted, but it is insisted that the finding that the railroad “will be specially injurious to the property of the plaintiffs, and other property similarly situated in the same part of Broadway," shows the case to be one of public nuisance only, without any special injury to the plaintiffs that “the finding of a special injury to one, and to others similarly situated, is the finding of a common and like injury to all, and that such a common injury is a common or. public nuisance.” This is not a fair interpretation of the finding at the special term, and is entirely inadmissible under the liberal rule applicable to such cases, laid down in Carman v. Pultz, and Grant v. Morse, above referred to. The fair meaning of the language is,.that the railroad would be specially injurious to the property of each of the plaintiffs in severalty, and in like manner specially injurious to the separate property of others similarly situated; that although the cause of the injury would be common, the special injury to each would be several and direct, and not merely consequential. This interpretation of the language in question, which is the natural and obvious one when it is read in connection with the other facts of the case, answers the objection of the defendants’ counsel, and renders it unnecessary to examine particularly the numerous cases referred to on the argument. In none of them has it been held that an injunction to prevent a public nuisance could not be obtained by a private individual, suffering or likely to suffer a special injury from it not common to other people, under circumstances which would entitle the same person to an injunction if the nuisance were a private one merely. The judgment of the Supreme Court should be affirmed.

Rosekrahs, J.

It has been decided in this court that the common council of the city of Mew York had no power to pass the resolution under which the defendants were about to construct a railroad upon Broadway in that city. (4 Kern., 506.) In the case of The People v. Kerr, decided in this court in June, 1863, Wright, J., delivering the opinion of the' court, said that the power of governing and regulating the use of the streets in the city of Mew York is vested in the legislature ; that it. is a part of the governmental or political power of the State in no way held in subordination to.the municipal corporation, and that if the legislature could not authorize the use of the streets for the purposes of a railroad, as prescribed by the act of 1860, the power existed nowhere. It has abo been decided in this court that the use of the streets in the city of New York, for the purpose of a railroad, is a new use, inconsistent with the original purpose of a street and with the public easement therein, and unless expressly authorized by law, creates a-public nuisance; and that when such new use is' threatened, an action .to enjoin and restrain such use may be maintained by any owner of property on the street to whom such, nuisance would be specially injurious. The fact was found in this case that the plaintiffs were severally owners and occupants of buildings fronting upon Broadway, and of the lots of land upon which such buildings are erected, and that the establishment of a railroad in that street will be specially injurious to the property of the plaintiffs and other property similarly situated. It is objected, on the part of the defendants, that this finding of fact is not sufficient to justify the interference of the court by injunction to restrain the defendants from building the road, for" the reason .that it shows that the injury is not peculiar to the plaintiffs, but is common to all. The reasonable construction of this finding is, that the injury to result from the threatened railroad will be specially injurious to the property of the plaintiffs in Broadway, and to other property on Broadway in front of which such railroad may be constructed. I do not understand that thé injury referred to is such a common injury as will preclude the parties affected by it from claiming the interference of the court by injunction to restrain it. The rule, as laid down by Story, in his-Equity Jurisprudence (vol. 2, §924), is as follows: When private individuals suffer an injury quite distinct from that of the public in general, in consequence of a public nuisance, they will be entitled to an injunction, and relief in equity. The injury which the public in general would sustain by the erection of the nuisance would be the ’ interference with their free enjoyment of the -public easement. Such injury would be common to all the public. The injury to result to the owners of property upon the street along which the road was proposed to be constructed would be the obstruction to the enjoyment of their property, thereby causing a depreciation in its value. This is the special injury which the plaintiffs allege in their complaint. It is one peculiar to the owners of property abutting upon the street, which does not affect in the least the public in general. In Corning v. Lawrence (6 Johns. Ch., 439), the chancellor sustained the bill for an injunction to restrain the defendants from obstructing Vesey street, and distinguished the case from that of The Attorney General v. Utica Insurance Company (2 Johns. Ch., 371), saying that there was a special grievance to the plaintiff, affecting the enjoyment of his property and the value of it.

It certainly would have been no objection to the granting of relief to the plaintiff in that case that the property of a number of other persons upon the same street, similarly situated, was injured, and its value impaired by the same cause. In Lansing v. Smith (4 Wend., 10), the chancellor held that every individual who suffers actual damage, whether direct or consequential," from a public nuisance, may maintain an action for his own peculiar injury, although there may be many others equally damnified.

To entitle a party to relief by injunction who is sustaining or about to sustain a peculiar injury from a public nuisance, it is also necessary that the injury should be such as cannot be well or adequately compensated in damages at law, or such as, from its continuance or permanent mischief, must occasion a constantly recurring grievance, which cannot be otherwise prevented but by injunction. The injury to the property of the plaintiffs, to result from the unlawful act threatened by the defendants, brings the case within the rule, in every particular.

It would be extremely difficult, if not absolutely impossible, to determine the damages which the plaintiffs would sustain upon each successive day that the railroad should be in operation. They could not be well or adequately compensated in damages. But if this was not so, the case is clearly within the last clause of the rule, by reason of the injury being continuous in its nature, and constantly recurring.

The judgment should be affirmed. All the judges concurred for affirmance—Emott, J., putting his opinion as to the invalidity of the resolutions on the ground that the effect of the whole scheme was to create a corporation.

Judgment affirmed.