author: Mullin, J.

text:
    The Fort Plain Bridge Company v. Solomon Smith, and others.
    It is competent for the legislature", after granting a franchise "to one person or corporation, which affects the rights of the public, to grant a similar franchise to another person or corporation, the use of which shall impair or even destroy the value of the first franchise, although the right so to do may not be "reserved in the first grant; unless the right to do so is expressly prohibited by the first grant.
    Where the charter of a bridge company prohibited the erection of any other bridge within a mile of that to he erected by the grantees, and the section containing that prohibition was subsequently repealed; Held, that the grantees of the franchise stood in precisely the same position, in reference to a second bridge, that they would have done if no such prohibition had been contained in their charter.
    Assuming that the Mohawk river is a public highway (though it is no longer navigable, except to a very limited extent), and that a bridge over it is an obstruction to navigation and therefore a public nuisance, yet no one has the right to abate it, or to sustain an action for damages occasioned by the erection' thereof, unless he has himself sustained some damage not suffered by the rest of the community.
    Though a bridge over a navigable stream may be a nuisance to those navigating it, it does not follow that it is a nuisance as to others who do not navigate it.
    The Fort Plain Bridge Company having no exclusive grant of the right to maintain their bridge over the Mohawk river and take toll, it follows that every other "bridge built over the stream, which does not impede navigation, is lawfully erected, and is not a public nuisance; and no action for damages will lie, for its erection.
    If it does impede or impair navigation, it is a nuisance as to those navigating, but not as to any others.
    There are three cases in which authority from the legislature is necessary to erect a bridge over a stream: 1. Where the stream is navigable. 2. Where the state owns the bed of the stream; and 3. Where the right to take toll is desired.
    Where the bed of a stream belongs to the state, no person has the right to use the same without its consent; but so long as the state officers make no objection to such appropriation, no individual or corporation has a right to complain of it.
    This is an appeal by the plaintiff from a judgment of the supreme court, rendered in favor of the defendant, in the fourth district.

      The action was brought to restrain the defendants from erecting a free bridge across the Mohawk river at Fort Plain, in the county of Montgomery, to the injury of the franchise and property of the plaintiff, and for general relief, it being claimed that the acts of the defendant were unlawful. After issue joined, the cause was tried by a referee, who gave judgment for the defendants. The leading facts of the case are as follows: In 1827 the plaintiff was incorporated by an act of the legislature, and authorized to erect a toll bridge for public use, across the Mohawk river at the village of Fort Plain. In pursuance of this act a bridge was erected, and has been ever since maintained for public use, and for the use of which the plaintiff was authorized to collect and has been accustomed to collect a reasonable toll, and by this means have been in the receipt of an annual revenue of about §500. In the sixth section of the act giving the plaintiff the authority to construct the bridge, there was a restriction against the erection of any other bridge within a mile on either side. This section was repealed by an act of the legislature passed' April 15th, 1857. In July, 1857, the defendants, without having obtained any special authority from the legislature, commenced the construction of a free bridge designed for public use, across the Mohawk, at Fort Plain, just above and within forty-nine feet of the bridge of the plaintiff, locating two stone piers to support it in the channel of the river. They had previously acquired the right to the land upon each side of the river upon which each end of the bridge rests, and the proper authorities of the town of Palatine, upon the one side, had laid out a public road to connect with the bridge on that side, and the trustees of the village of Fort Plain had opened a public street to connect with the other end, upon the southerly side of the river. The object and effect of these proceedings was to utterly destroy the value of the plaintiffs’ franchise and property, inasmuch ás all traveleis pass over the defendants’ bridge, and none over that of the plaintiffs. The referee found the fact, that the Mohawk was a public riv.er, and that for a long time prior to the construction of the Erie canal, it had been used for the purposes of public navigation, for the transportation of persons and property, and formed part of an extensive line of internal communication between Utica and Schenectady, conducted by means of different water craft. That since the completion of the Erie canal, in 1825, the actual navigation of the river had ceased, except that at various times rafts of logs and lumber had been floated down, up to as late a period as 1852. At points in the river above the plaintiffs’ bridge, the state had caused to be erected dams, totally obstructing navigation at those places, and from the ponds made by these dams water is drawn, in the dry seasons of the year, for the supply of the Erie canal.
    The judgment directed by the referee having been affirmed at a general term of the supreme court, the plaintiff appealed to this court.

      John H. Reynolds, for the appellant.
    I. By the common law grants of franchise, without any provision making them exclusive, were construed as exclusive, so far as to protect the grantee from any interference, directly or indirectly, which tended to impair the value of the franchise. This rule obtained as against the government as well as individuals, and any invasion of a franchise was a nuisance, for which the aggrieved party had his remedy at law by action on the case, for the disturbance, or by bill in equity, and an injunction to restrain the injurious act. (3 Kent’s Com. 495, and note [8th edition, pp. 573, 574, and note]; Yard v. Ford, 2 Saund. R. 172; 2 Blackstone’s Com. 37, 3; id. 218, 219; Tripp v. Frank, 4 Term R. 666; Keeble v. Heckirengall, Holt’s R. 20; Croton Turnpike Road v. Ryder, 1 John. C. R. 611; Newburgh

      Turnpike Company v. Miller, 5 J. C. R. 111; Dartmouth College v. Woodward, 5 Wheaton R. 518; Huzzey v. Field, 2 Cromp, Meeson and R. 432.)
    1. This doctrine is so far modified by recent decisions that it may now be claimed that where the grant of franchise does not express that it is an exclusive privilege, it will not be so construed as against the sovereign, and perhaps not as against individuals in the exercise of a purely private right.
    2. The case of the Charles River Bridge v. Warren Bridge (11 Peters, 420), arose upon two conflicting grants, by the legislature of Massachusetts, and the decision was that the prior grant of a franchise, not in its terms exclusive, did not preclude the legislature from granting another franchise, to be exercised so- near the first as to interfere with and destroy it. This case does not determine that the proprietor of a franchise, granted by the sovereign, not in its terms exclusive, has no remedy against a disturber, who is proceeding to exercise a franchise, without any authority of government.”
    3. The case of the Auburn and Cato Flank Road Company v. Douglass (5 Selden, 444), arose between a plank road company, operating under the general statute, and the owner of land adjoining the plank road; and the question was whether the company could, in any respect, limit or restrict the use, which the owner might make of his land, prejudicial to the interests of the corporation, and it was held that it could not take any right, as against an adjoining land owner, by implication.
    4. The doctrine of these cases does not necessarily affect the plaintiff’s right of action, for here the complaint is that the defendants, without authority from the government, are by their acts usurping a right of sovereignty, vested in the state, by the erection of a public bridge over a public river. We insist that these acts amount'in law to a public nuisance, which may be abated by the public authority, and as" they injuriously.affect;the plaintiff,-a private action is- maintainable.
    II. The Mohawk river is a public navigable river,-‘so far at least as.to - subject the right of the adjoining owners to the servitude-of the public, for. all-the "purposes of passage or" navigation. This has been adjudged-by the court of last resort as the law.applicable to this river. (Canal Commissioners v. The People, 5 Wend. 423, 438,-et-seq.; The People v. Canal Appraisers, 13 Wend. 355; The Canal Appraisers v. The People, 17 Wend. 571.)
    •1. It is matter of history that prior'to the completion of the Erie-canal, the Mohawk river, between Schenectady and-Utica, was actually navigated by scows and'other vessels in the transportation of property.
    2. -Aud it is equally notorious that for át least a century ■the government-of the colony and state have claimed and ¡exercised jurisdiction over it as a public river. (See 17 Wendell, 571; Opinion of Senator Beardsley, pages 574, .609-10-11; Opinion of Senator Tracy, p.'575,-624; also Statutes cited, p. 578.)
    ■ 3. It is, in legal sense, a navigable river; -the public right of navigation exists, and the riparian owner holds, -subject, in all respects, to this public servitude. In its natural state it was a navigable river. The fact that it is .not actually used for purposes of navigation,-or "that dams* 'and other obstructions have -been permitted by the -legislature, does not change the character of the river, or the public dominion over its waters. (Browne v. Scofield, 8 Barb. 239; Arundel v. McCullock, 10 Mass. R 70; Commonwealth v. Charlestown, 1 Pick. 180; Charlestown v. Middlesex, 3 Metcalf, 202; The Enfield Toll Bridge Company v. The Hartford and New Haven Railroad Company, 17.Conn.40, 54.)
    4. And-every obstruction by a private person in waters over which the -public jurisdiction exists, is a public nuisance, and may he abated by the public authority, and if specially injurious to any particular person, a private action can be sustained. (5 Wend. 449; Ex parte Jennings, 6 Cowen 518; Lansing v. Smith, 4 Wend. 9, 24, 25; Browne v. Scofield, 8 Barbour, 239; Angell on Water Courses, 5th edition, § 756; Rose v. Graves, 3 Dowl. Pr. Cases, n. s. 61.)
    5. The result must therefore follow that if it be determined that the act of the defendants in placing their piers in public waters without legislative authority be a public nuisance, and by means of this wrongful act the plaintiffs are threatened with an injury peculiar to themselves, a private action to redress or prevent the threatened injury may be maintained.
    • 6. And the application of this remedy is as proper in the case of a corporation, whose legal rights are invaded or threatened, as in the case of a private person.
    m. The acts of the defendants amount to the usurpation of a franchise, and an invasion of the rights of sovereignty vested in the people of the state, and the plaintiffs are entitled to be protected against the consequences of this unauthorized assumption of the public prerogative.
    1. The defendants propose to erect a bridge for the use of the public, over a public river, and connect it with public roads, for the use of all the citizens of the state. It is in no sense a private structure. (4 John. Ch. 150, 160; 5 Id. 101, 110; 1 Pick. 87; 7 Id. 515; Harg, L. T. 11 Ch. 6.)
    2. A bridge is a mere substitute for. a ferry (per Savage, Ch. J. 15 Wend. 133), and the right to establish a public ferry is a franchise vested exclusively in the sovereign, and no person without sovereign authority can establish a' public ferry. (Ex parte Jennings, 6 Cowen, 518, note; 5 Selden, 454, per Selden, J.; Blissett v. Hart, Willes, 508; The Croton Turnpike Company v. Ryder, 1 J. C. R. 611; The Newburgh Turnpike Company v. Miller, 5 Id. 101; 3 Kent’s Com. 459, note.)

      3. The fact, that the bridge proposed to be erected by the defendants is to be free of toll, does not make it any the less the. exercise of a franchise. It is not necessary to the creation of a franchise, that the grant should authorize the grantee to exact toll. It is the nature of the right or privilege which is to be exercised, that determines - the question whether it is or is not a franchise, and not the extent of the profit which the grantee may derive from its exercise.
    Franchises are special privileges conferred by government on individuals, and which do not belong to the citizens of the country, generally, by common right. (Bank of Augusta v. Earle, 13 Peter’s U. S. 515; Angell and Ames on Corp. § 4.) In England, it is said that a franchise is a royal privilege, or branch of the king’s prerogative, subsisting in a subject by a grant from the crown. (3 Greenleaf’s Cruise, title Franchises.)
    2. The exercise of a franchise without legislative authority, is a usurpation and a public nuisance " and like every other nuisance subjects the party not only to a public prosecution, but to a private suit by any person specially injured thereby.” (Per Selden, J., 5 Selden, 444, 445.)
    6. The plaintiff’s franchise was granted by the proper public authority. It may not be regarded exclusive as against the -sovereign, or those who may be vested with the sovereign rights; but it cannot be doubted that the' proprietor of a franchise is to be protected against the consequence of all wrongful acts. The whole extent to which the ancient doctrine of the common law has been modified in this respect is, that the grantee of a franchise is at all times subject to have his franchise rendered valueless by the grant of another, to be exercised so near as to destroy the first. But no court has ever held, that a private person may, of his own motion, set up a rival franchise, and thus substantially destroy a legislative grant.
    IV. The Mohawk river being a public river, the defendants hacl no right to undertake the construction of a bridge over it for public use, and the erection is a public nuisance, causing special and peculiar injury to the plaintiff, and indeed the erection was designed to destroy the plaintiff’s franchise; and such has been the effect.
    1. The plaintiff’s right does not depend upon the question how far the erection of the bridge by the defendants constitutes an obstruction to the navigation of the river. (Inhabitants of Charlestown v. County of Middlesex, 3 Metcalf, 202, per Ch. J. Shaw, 205, 206.)
    2. And upon an indictment as for a nuisance, the defendants could not defend by showing that the bridge was, on the whole, a public benefit. (Rex v. Ward, 4 Adolph. & Ellis, 384; Regina v. Betts, 22 Eng. L. & Eq. 240.)
    3. Here, by the usurpation of a public right and the commission of an unlawful act the plaintiff is threatened with peculiar injury, and the remedy of the plaintiff cannot be destroyed by saying after all the wrongful act benefited the public.
    4. If the defendants had undertaken to erect a bridge and collect toll the act would unquestionably be unlawful. The fact that it was a free bridge, only made the erection more injurious to the plaintiff. (Aikin v. W. R. R. 20 N. Y. 379, per Selden, J.)
    Y. The case was a proper one for the interference of a court of equity, by injunction, to prevent irreparable injury. (Angell on Water Courses, 5th ed. § 444, et. seq.;Story Eq. Jur. § 925; Smith v. Adams, 6 Paige, 435; Mohawk Bridge Company v. U. & S. R. R. Company, 6 Paige, 554.)
    1. But as the supreme court refused to restrain the erection by an injunction, and at the time of the trial it appeared that the defendants’ bridge had in fact been constructed and had destroyed the entire value of the plaintiff’s property, damages should have be.en awarded the plaintiff according to the case made at the trial, without regard to the prayer of the complainant. (Marquat v. Marquat, 12 N. Y. 336; Emery v. Pease, 20 N. Y. 62.)
    2. But if the only remedy of the plaintiff is in a court of law, by action for damages, the judgment given in this action should be without prejudice to such action at law.

      John K. Porter, for the respondents.
    I. At the time the free bridge was erected, the plaintiffs had no exclusive right to maintain a bridge across the Mohawk at Fort Plain.
    1. They never had any such exclusive right, except under the' sixth section of the act of 1827. That section is as follows: “And be it further enacted that it shall not be lawful for any person or persons to erect a bridge or establish or keep a ferry across the said river, within one mile from the place where the said bridge shall be erected and built, other than persons residing within that distance, in their own boats, for their own convenience merely.” (Laws of 1827, 208, chap. 209, § 6.)
    2. The sixth section was repealed by the act of 1857. (2 Laws of 1857, 38, chap. 498.)
    3. The authority of the legislature to repeal the restriction is unquestionable.
    (1.) The ninth section of the act of 1827 was as follows: “And be it further enacted that the legislature may, at any time, alter, amend or repeal this act.”
    (2.) “Where, however, a state legislature reserves to itself in the very charter it grants .to a private corporation the right of altering, amending or repealing the act of incorporation, a subsequent repeal of such act of incorporation will be valid and constitutional. Such a reservation in the charter of a corporation, upon common law principles, would not be a condition repugnant to the grant, but a limitation to the grant. And if such a reservation at common law would be repugnant to the grant, it is competent for a state legislature to alter this rule of the common law. And the reservation of such a power in a legisla tive grant would of itself change the law in relation to that particular grant.” (McLaren v. Pennington, 1 Paige, 102, 109.)
    (3.) This question, mooted in the case of the Oliver Lee & Go. Bank, has been settled finally by the ultimate tribunal on questions arising under the federal constitution. (Sherman v. Smith, 1 Black’s R. 587.)
    (4.) The uniform policy of this state, for nearly forty years, lias been against making irrevocable grants of corporate franchises and public monopolies; and the reservation in the case of this corporation, and subsequent legislative revocation of the monopoly, is only one of innumerable illustrations of this policy. (1R. S. 601, § 8; Constitution, art. 8, § 1.)
    II. The monopoly expressly granted to the plaintiffs, having been expressly revoked, they can claim no exclusive right by implication.
    1. “ Legislative acts granting franchises to corporations are to be construed strictly according to their terms; and the grantees in such acts take nothing by implication, either as against the power making the grant, or against other corporations or individuals.” (Auburn Plankroad Co. v. Douglas, 5 Seld. 444.)
    2. The cases holding a contrary doctrine have been considered and over-ruled, as well in this court as in the supreme court of the United States. (5 Selden, 444; 11 Peters, 521-3, 548, 9.)
    3. Even in the absence of a reservation of the right of alteration or repeal, it was recently held in this court that a similar prohibition could bé repealed, and that, though the legislature has power to grant an irrevocable monopoly to a bridge company, “nothing but plain English words will do it.” (Chenango Bridge Co. v. Binghamton Bridge Co. 27 N. Y. Rep. 87.)

      4. The plaintiffs have, therefore, since the repealing act, no exclusive rights in this regard—and no legal rights whatever under the act, as against the defendants—except to exact toll from them, if they choose to cross the plaintiffs’ bridge.
    III. The title of the defendants to the bed of the river as riparian proprietors, was absolute, except so far as it might be “subject to the servitude of the public interest for passage or navigation,” and in. this respect no injury to the plaintiffs, past or prospective, was either proved or alleged. (Commissioners of Canal Fund v. Kempshall, 26 Wend. 404.)
    1. “The public right is one of passage, and nothing more, as in a common highway. It is called by the cases •an easement; and the owner of the adjoining land has a right to use the land and water of the river, in any way not inconsistent with this easement. If he make any erection rendering the passage of boats, &c., inconvenient or unsafe, he is guilty of a nuisance; and this is the only restriction which the law imposes upon him.” (Ex parte Jennings, 6 Cowen, 527, 8.)
    ' 2. “ The owner of land may put it to any use which does not infringe some fixed legal right of another; loss or damage to one person, arising from the use made by another of his property, being damnum absque injuria, unless the former has previously acquired some legal right to restrict the use which the latter shall make of his property. When no such right of restriction exists, it is immaterial what may be the motives of the proprietor for dealing with his property in a particular way.” (Auburn Plankroad Co. v. Douglass, 5 Seld. 444.)
    3. At the conclusion of the opinion in the Chenango bridge case, Judge Wright said: “ Upon the whole, I do not think the-plaintiffs were entitled to sustain the action. The grant to them was of the right to maintain a bridge across the Chenango river at or near Chenango Point, and take certain rates of toll for crossing it; and this was the •whole grant. There was no monopoly over the waters of the Chenango river above and below their bridge given to them; nor any undertaking by the state, in the act incorporating them, not to sanction competition, nor to make improvements that might diminish their income. In this respect they have no rights to be impaired, and consequently none which the courts are called upon to protect." (27 N. Y. Rep. 104.)
    IV. The erection of the free bridge by the defendants on their own.land, was therefore plainly lawful, in respect to the rights of the defendants under the legislative grant.
    1. The act incorporating the plaintiffs assumed that others, in the absence of a prohibition, might lawfully, and of right, erect a bridge on either side; and the exercise of this right was accordingly restricted, for one mile above and below, by the sixth section since repealed. (Laws of 1827, 208, § 6.)
    2. This legislative assumption is in harmony with the general understanding of the law; and the fact found by the referee, that of the fifteen bridges erected from time, to time across the Mohawk between Utica and Schenectady, five only were built by special legislative permission, should be deemed, in connection with the acquiescence of the public and the state authorities, as controlling evidence of the law, as an express declaratory act.
    3. The legislative sanction of this bridge by the act of 1860, has the force of a declaratory law, in harmony with the decision of the court below; and the plaintiffs cannot claim to be prejudiced by a decision in accordance with a statute, which would be decisive of the judgment in case of a future trial. (Session Laws of 1860, 400; White v. Coventry, 29 Barbour, 305.)
    4. The plaintiff’s objection to the bridge is,' that it enables the public to pass toll-free; but the dedication of a free bridge to public use, is no more the usurpation of a franchise, than the dedication of a school house and burying ground.
    5. Free bridges have been uniformly distinguished in this respect from toll bridges and ferries, which at common law the owner was bound to repair.
    6. Thus “ if a man make a bridge for the common good of all the subjects, he is not bound to repair it;' for no particular man is bound to reparation of bridges by the common law, but ratione tenuroe or preseriptionis.” ■ (2 Coke’s Institutes, 701.)
    7. “Magna Charta only extends to prevent the subject from being compelled to erect new bridges—‘ non distringatur f acere pontes’—not to exempt him from repairing those already erected, in case they be public benefits. This is the grand criterion. If a man erect an useless or a mere ornamental bridge, neither he nor the public are bound to sustain it; and if it is principally for his own benefit, and only collaterally of benefit to others, as in the case cited of the bridge to the mill, the public"have nothing to do with it. But where it is of public utility, as is expressly found in the present case, the public, which reaps the benefit, ought to sustain the burden of repairing it. Else it would be a great discouragement to public spirited persons to erect a beneficial bridge, provided they must either repair it themselves, or it must run to ruin.” (The King v. The West Riding of Yorkshire, 2 W. Black. R. 686, 7.)
    8. The erection of a free bridge on a stream not navigable, is simply the use by a party of his own for a lawful and beneficial purpose.
    V. The plaintiffs" are" not entitled to a reversal, on the theory that the bridge is, contrary to the finding of the referee, an unlawful obstruction to navigation, and therefore a public nuisance.
    1. This is not the ground of the action, nor the case made in the pleadings. (Brazill v. Isham, 2 Kernan, 9; Field v. Mayor of New York, 2 Selden, 179.)
    2. The, plaintiffs are not, and do not claim to be navigators, or to have been subjected to, or threatened with, any injury in respect to navigation.
    3. The river, which was once navigable at this point by the aid, of improvements under state authority, has for more than a quarter of a century ceased to be navigable, through drainage by state feeders, and permanent obstructions to navigation interposed by authority of the sovereign.
    4. It is found as matter of fact that the bridge did not obstruct navigation, and would not have obstructed it even if the river had been navigable.
    5. The plaintiffs cannot tack a claim of special injury, to a public nuisance which is not found, and did not exist.
    6. The river at this point was not, in the legal sense, a navigable stream, at the time of the construction of the free bridge. (Curtis v. Keesler, 14 Barbour, 518; Munson v. Hangerford, 6 Barbour, 265, 270; Canal Commissioners v. The People, 5 Wendell, 448.)
    7. Upon the facts found, the plaintiffs plainly could not have been convicted under an indictment for nuisance, which alleged that the river was neither navigated nor navigable.
    8. Even if the river had been navigable, they could not have been lawfully convicted under an indictment which alleged the fact here specially found, that the bridge was not an obstruction to navigation; for it is only “prima facie f that an obstruction in a navigable river is a nuisance per se. If it be not injurious to navigation, it is not unlawful. A public nuisance which neither annoys nor injures the public, wTould be a legal anomaly. (Hart v. Mayor of Albany, 3 Paige, 213; Mohawk Bridge Company v. Utica & Schenectady Railroad Company, 6 Paige, 555; The King v. Russell, 13 Eng. Com. Law R. 254, 266.)
    9. “An injunction to the building of a bridge will not be granted, unless the evidence clearly shows that the bridge, if erected, would be an obstruction to the navigation of the river.” (Hutchinson v. Thompson, 9 Ohio Rep. 52.)
    10.. To constitute the structure a nuisance, it must be a present, substantial obstruction to actual navigation. (Peckham v. Henderson, 27 Barb. 210, 211; City of Rochester v. Curtiss, 1 Clarke’s C. R. 344.)
    11. “ Where the court is satisfied that the matter .complained of is not a nuisance, the injunction is immediately refused, or dissolved.” (Eden on Injunctions, 160.)
    12. In the case of the City of Rochester v. Curtiss, the plaintiffs having a bridge, the abutments of which narrowed the channel of the river, asked an injunction to restrain the defendant from constructing a wall immediately above—encroaching as much and no more on the river—on the ground that it endangered their bridge, &c., and also that it was a purpresture obstructing the river, which was by law declared a public highway. Held, that the danger from the erection of the wall was nothing as long as the abutment of the- bridge was continued, and that no injunction should be allowed, as long as the city continued their own obstruction by the abutment,” As to the other ground of complaint, the court said: “The river is a highway only for particular purposes, viz: for the purposes of navigation; and the-river at this point is not navigable. An injunction will not, therefore, be allowed on this ground.” (1 Clarke’s Chancery Rep. 344; Hecker v. New York Balance Dock Company, 24 Barb. 215.).
    13. Where the owners of a mill dam at Stillwater, on the Hudson, sued for damages caused by the. erection of a darn- immediately above, Livingston, J., said: “Whatever their pretensions to build a dam and mills adjoining their own land may have been, it must be conceded that, as far as the public is concerned, the defendants had the same right opposite their ground, provided it could be done without injury to the navigation of the river.” (Palmer v. Mulligan, 3 Caines, 313.)
    14. The two instances in a period of twenty-three years, in which logs were got through Fort Plain, do not make the river at that point a navigable stream. (Munson v. Hungerford, 6 Barb. 265; Curtis v. Keesler, 14 Barb. 511.)
    15. The plaintiffs not being interested in navigation, were in no position to assert the rights of navigation, or to demand that the defehdants be restrained, in that regard in the use of their own property.
    16. “The remedy to prevent the erection of a purpresture and nuisance in a bay or navigable river is by injunction at the suit of the attorney general.” (People v. Vanderbilt, 25 Howard’s Practice Rep. 140, 142; In court of appeals.)
    VI. In no view of the casa were the plaintiffs entitled, upon these findings, to a decree for a perpetual injunction.-
    1. Every intendment of law as well as fact is to be made in support of the judgment, on appeal. (Carman v. Pultz, 21 N. Y. 547; Viele v. Troy and Boston Railroad Co., 20 N. Y. 184.)
    2. The application was one to restrain the defendants in the use of their own property—one never to be granted except in extreme cases. (Lasala v. Holbrook, 4 Paige, 169; Myers v. Gemmel, 10 Barb. 537.)
    3. They failed to present to the court -below a case of clear and undoubted legal right. (Fisk v. Wilber, 7 Barb. 395, 401, 2.)
    4. Their remedy by action was ample, if they could maintain their claims in a court of law. (Jerome v. Ross, 7 John. C. R. 315; Fisk v. Wilber, 7 Barb. 395.)
    5. Works of a public nature are not arrested by injunction, unless in cases of clear illegality and imminent and irreparable injury. (Drake v. Hudson River Railroad Company, 7 Barb. 508; Livingston v. Tompkins, 4 John. C. R. 415; Gibbons v. Ogden, 17 John. 488.)

      6. Thus, in the case of Barnes v. Calhoun, where an injunction was sought against interfering with a stream by the erection of a mill, flooding the land of an adjoining proprietor, the court said: “If the plaintiff, indeed, were without any other remedy, we should feel ourselves bound to interpose in his behalf; for the act contemplated by the defendant is an admitted wrong.” But even on this state of facts, it was held that it was discretionary with the court to grant or refuse a decree for an injunction; and the bill was dismissed on the ground that a court of equity “ w ill only act in a case of necessity, where the evil sought to be prevented is not merely probable but undoubted; and it will be particularly cautious thus to interfere, where the apprehended mischief is to follow from such' establishments and erections as have a tendency to promote the public convenience.” (2 Iredell’s Equity Rep. 199, 201, 2.)
    7. The bridge had been constructed long before the hearing, and an injunction would have been ineffectual by way of prevention—the only purpose for which it is legitimate.
    8. A court of equity has jurisdiction to a certain extent in cases of public nuisance, although it has been rarely exercised. The common law courts have an undisputed jurisdiction over public nuisances, by indictment; and a court of equity ought not to interfere in a case of a misdemeanor, when the object sought can as well be attained in the ordinary tribunals. The injunction is a preventive remedy. If the injury be already done, the writ can have no operation; for it cannot be applied correctively so as to remove it. It is not used for the purpose of punishment, or to compel persons to do right, but simply to prevent them from doing wrong. (Attorney General v. New Jersey Railroad Co., 2 Green’s C. R. 136.)
    9. In the case last cited, which was an information filed in behalf of the state against the defendants, in respect to a bridge across the Passaic, seriously obstructing navigation, Chancellor Yroom said: “I cannot avoid the conclusion that the nuisance complained of in the information, and which it appears to be the object of the relators either' to prevent or abate, is already there. The thing is done; and the application to this court, if not too late, would be unavailing even if granted.” He adds: “The relators insist that they have made the application as soon as practicable; that they confided in the agreement of the company as to the width of the draw, and were deceived. Admitting this to be all true, it is not perceived that the case is varied. If the nuisance be erected before the party has time to prevent it, the only remedy is to have it abated; and .whether it be accomplished by the deception of the party or by other means, the province of the court remains the same.” (2 Green’s C. E. 141, 2.)
    VII. But it is a fatal .objection on appeal, that on the facts found the relief demanded was not matter of legal right; and this court will not review the exercise by the court below of its discretion, in refusing its aid by injunction, and leaving the plaintiffs to their remedy at law. (City of Georgetown v. Alexandria Canal Company, 12 Peters, 92; Hart v. Mayor of Albany, 9 Wendell, 572, 585; Mohawk Bridge Co. v. Utica and Schenectady Railroad Co., 6 Paige, 555.)
   Mullin, J.

The 6th section of plaintiff’s charter, which prohibited the erection of a bridge within a mile of the plaintiff’s bridge, having been repealed, the plaintiff stands in precisely the same position in reference to the defendants’ bridge, that they would have done if no such prohibition had ever been contained in their charter. The right of the legislature to thus alter and modify the plaintiff’s charter cannot be questioned.

Since the case of The Charles River Bridge v. The Warren Bridge (11 Peters, 420), it has been understood to be the law, that it is competent for the legislature, after granting a franchise to one person, or corporation, which affects the rights of the public, to grant a similar franchise •to another person or corporation, the use. of which shall impair or even destroy the value of the first franchise, although the right so to do may not be reserved in the first grant; unless the right so to do is expressly prohibited by the first grant. (Mohawk Bridge Company v. Utica & S. R. R. Company, 6 Paige, 554; Oswego Falls Bridge Company v. Fisk, 1 Barb. Ch. R. 547.)

. These propositions dispose of the principal questions in this case. But it is urged that the Mohawk river is a public stream, and that the defendants have no right to bridge it without authority of the legislature.

On the facts found in this case, the Mohawk river is not navigable, except to a very limited extent. Its capability for navigation has been very materially lessened within the last thirty years; hence the rules of law which applied to it then do not apply to it now.

But assuming that it is a public highway, and that the bridge is an obstruction to • navigation, and therefore a public nuisance, yet no one has the right to abate it, or sustain an action for damages occasioned by the erection, unless he has himself sustained some damages not sustained by the rest of the community. (Pierce v. Dart, 7 Cowen, 609; Lansing v. Smith, 8 Cowen, 146; 9 Wend. 315; 6 Hill, 292; 3 B. & C. 556; 4 M. & S. 101; 19 John. 223; 37 Barb. 301.)

If the plaintiff’s business was navigating the river, or if the new bridge endangered the safety of the plaintiff’s bridge, then a right of action to restrain the erection, or for damages might be maintained, depending on the nature of the injury done or apprehended.

But because a bridge over a navigable stream may be a nuisance to those navigating it, it does not follow that it is a nuisance as to others who do not navigate it.

The plaintiff having no exclusive grant of the right to maintain their bridge and take toll, it follows that every other bridge built over the stream which does not impede navigation, is lawfully erected and is not a public nuisance, and no action for- damages will lie for its erection. If it does impede or impair navigation, it is a nuisance as. to those navigating, but' not to any others. The rights of the plaintiff are not, in contemplation of the law, injured by the new bridge, and hence they are not entitled to either an injunction or damages.

But it is said the defendants could not legally erect their bridge without authority from the legislature, and hence any person injured may resist its erection, or recover damages therefor. There are three cases in which authority from the legislature is necessary to erect a bridge over a stream. One is when the stream is navigable; 2d, when the state owns the bed of the stream; and 3d, when the right to take toll is desired.

It was decided by the court of errors in The Canal Appraisers v. The People (17 Wend. 571), that the bed of the Mohawk belonged to the state, and of course the defendants have no right to use .the property of the state for their own benefit, without its consent. But I do not understand what right the plaintiffs have to complain of this appropriation of the bed of the stream, while the state officers make no objection to it.

I ain free to say that I would be glad to see the old common law restored, which denied to the legislature the power to take away or impair a franchise granted by it; but the law is settled the other way, and we must conform to it. If the common law principle was restored, however, it would be no protection to owners of franchises, as under the power reserved by the legislature to amend or repeal its acts, the same result can be attained.

The judgment must be affirmed, with costs.

All the judges concurring, judgment affirmed.


source: Caselaw Access Project

author: Davies, J. Mullin J.

license: Public Domain

text:
    Lois Stover, Administratrix, and Daniel Fish, Administrator, &c., v. David H. Flack.
    6y a verbal agreement between S. and F., it was agreed that S. should subscribe for $1,000 of the capital stock of a manufacturing corporation, one-half of which should belong to each; that S. should hold the same on joint account, and receive the dividends thereon, F. to pay the interest annually on $500, one-half the amount paid; that when S. should want the $500 he was to notify F.; and if F. did not pay, S. should sell the stock, and F. would pay the difference between the sum received on such sale and the par value of the stock. S. accordingly subscribed for $1,000 of the stock, in his own name, and paid therefor. It was a part of the bargain that the agreement should be put in writing, but it never was. A few years later the company became insolvent, and the stockholders being called on to pay an amount of debts equal to the stock held .by them, S. paid $1,000.

      Held, 1. That the company having become insolvent, and its stock worthless, S. was not .bound to sell it; and F. was clearly liable for one-half the price paid for the stock. ' •
    2. That S., being the nominal owner of the whole stock, was liable to pay $1,000 in satisfaction of the debts of the company, and was not bound td wait until he was sued, and judgment recovered, before he paid; and that having paid $500 on that account, which F. was equitably bound to pay, he could recover it back from F.
    3. That the statutory exemption of executors, guardians, and others, trustees of an' express, trust, from liability for the debts of a corporation in which they hold stock in their fiduciary capacity, does not reach such a case.
    4. That although F. might have insisted on the performance of the condition that the agreement should be reduced to writing, it was competent for him to waive it, by recognizing his liability on the contract, although it had never been reduced to writing and signed.
    5. That F.’s liability for the $500 paid by S. on account of debts, did not accrue until the stock was paid by S.; and that the statute of limitations did not begin to run until such payment was made.
    The facts in the case, which seem to have been established by the verdict of the jury arc: That in 1852 a corporation was organized under the general act of 1848, (Laws of 1848, chap. 40,) called the Diamond Mills Manufacturing Company. That the plaintiff's intestate, Peter Stover, took and subscribed towards the capital stock thereof, ten shares, of the nominal or par value of one thousand dollars. That said stock' was taken under an arrangement made with the defendant previous to the sub-, scribing for and taking the same, that the plaintiff’s intestate should subscribe for and take the stock, and pay for the same, on joint account. That the intestate should hold the stock, and that the defendant should pay him semiannually the interest on one-half of the purchase money, and that the defendant should be entitled to all the dividends which the intestate might receive on that portion of the stock belonging to the defendant. It was further understood that if Stover, the plaintiff’s intestate, desired to realize the money advanced for the defendant in the purchase of the stock, he might go into the market and sell the same, after giving the defendant notice; and the defendant was then to have the right to pay the money advanced and take the stock; and if the stock sold for less than par, the defendant was to pay the deficiency, and if it sold for more than par, he was to have .the surplus. At the time, this arrangement was entered into, it was understood that, the parties were thereafter to meet and have it reduced to writing. This was never done, Stover having died soon after the arrangement was entered into. Stover, in execution of this agreement, subscribed for and took the stock, and agreed to pay $1,000 therefor. Such payment was made, by the company purchasing flax of Stover, and on the 23d of March, 1853, a settlement was made between the plaintiffs and the company, at which time the company had received $1,272.82 in flax, and after deducting the amount of Stover’s subscription for the' stock, $1,000, the company paid to the plaintiffs the balance. It is stated in the case that the amount subscribed by Stover for the, stock was proved to have been paid by his estate, and that the company became insolvent. It was also ¡Droved on the trial that on the 29fch of September, 1856, a. judgment was recovered against the company for $7,992.57, upon which an execution was issued, and the same was returned unsat- , isfied. That a circular was issued by the officers of the • company to its stockholders, showing the company.insolvent exceeding $20,000, and that all its estate, real and personal, had been sold, and requiring each stockholder to pay upon the outstanding debts of the company a sum equal to the amount of their respective subscriptions. That on the 28th of February, 1859, the plaintiffs, as the representatives of said Peter Stover, paid the further sum of $1,000 towards the discharge of the debts of the company, pursuant to said circular and its requirements. Verdict for the plaintiffs for $500 paid for the defendant’s stock on the 23'd of March, 1853, and interest thereon from that day, and for the $500 paid on the 28th of February, 1859, on account of the debts of the company, and interest thereon from that day, making $1,374.32. The defendant moved for a new trial, on the judge’s minutes, which was denied, and the judgment was affirmed at the general term. This action was commenced on the 22d of March, 1859. .

      W. A. Beach, for the appellant.

      John K. Porter, for the respondent.
   Davies, J.

One ground of defense interposed is the statute of limitations, and that has no application, except to the payment of the stock. It is contended, on the part of the defendant, that such payment was made by Stover in his lifetime by the delivery of the flax, and that such purchase of the flax by the company from Stover, produced an indebtedness on his part to the company for the stock. But it is to be borne in mind that Bradshaw, the treasurer of the company, testified that in fact such application of the mutual indebtedness was not made until the 23 d day of March, 1859, when a settlement of the indebtedness of the company to Stover for the flax purchased, and his indebtedness to it for the stock, was made between the company and the plaintiffs as the representatives of Stover, and a balance being found due to the plaintiffs, the same was paid to them. But a conclusive answer to this view is found in the statement of the case, that this stock was paid for by the estate of Stover. This necessarily implies that it "was not paid for by Stover in his lifetime, but by his representatives after his death, and there is no ground for any suggestion that they paid for it at any other time, or in any other manner than by the adjustment and settlement of accounts on, the 23d of March, 1853, as detailed by Bradshaw. The defendant’s liability did not accrue until the stock was paid for by Stover, or his representa- ' tives; and the statute consequently did not commence to run until such payment. It being made as we have seen, on the 23d of March, 1853, and this action having been commenced on the 22d of March, 1859, this ground of defense has entirely failed. Neither does the statute of frauds interpose any difficulty in the way of the plaintiff’s recovery. He did not become a purchaser of the stock from their intestate. The authority given by the defendant was, that Stover should subscribe, take and pay for the stock in his, Stover’s name, and that the defendant was to own the one-half part thereof. This arrangement constituted Stover his' agent for those purposes, and the law implies a promise on his part to repay to Stover whatever sum he should advance and pay for the defendant’s stock. Although the stock stood in the name of Stover, it became and was the defendant’s stock. By virtue of this arrangement he became a stockholder in the company, and as such, liable to contribute and pay towards the discharge of the debts of the company, an amount equal to the amount of the stock so taken and owned by him. (Burr v. Wilcox, 22 N. Y. 551.) The money paid for the stock was so much money paid, laid out and expended for the defendant, and at Ms request. The defendant was not entitled to a transfer of the stock until payment of the amount paid therefor. If he wished to terminate his liability under the arrangement proven, it was Ms duty to have required the plaintiffs to sell the stock, and if there was any deficiency, to pay the same. From the facts testified to on the trial, it is quite apparent that the defendant was willing to let the stock remain with the plaintiffs under the arrangement made with their intestate. Without any call from the defendant, no duty was imposed on them to sell the stock, • and it beinsr shown on the trial that the same was worthless and of no value, they were not precluded from calling upon the defendant for payment, without making such-sale. It would have been an idle ceremony, and in no manner could have'tended to the benefit or advantage "of the defendant. This reservation of the right to sell and charge the defendant with the deficiency, was made for the benefit of Stover, to secure him for the moneys advanced, and not as a condition of the defendant’s liability. It was a cumulative remedy to ensure a reimbursement to Mm of the money advanced for the defendant, and did not in any sense, impair his right to call upon the defendant for repayment. We must take the whole agreement together ; and by its terms we find that the defendant expressly promised to pay to the deceased the cost of over one-half of the stock taken by him. The agreement actually made, and in compliance with the terms óf which the deceased subscribed for the stock, and incurred the liabilities of a stockholder, was not abrogated, or rendered ineffectual by reason of the parties thereto not having subsequently reduced the same to writing, as was contemplated to be done, at the time the same was entered into. We have seen that it was not essential to its validity that it should have been in writing, and the omission, or the unwillingness of the party to reduce the same to writing, did not terminate the obligations, which the agreement actually made created.

Stover was liable to the extent of the stock standing in his name, for the debts of the company. The creditors of the company under the authority of JBwt v. Wilcox (supra), could also have compelled the defendant to contribute to the amount of stock actually owned by him, although standing in Stover’s name. Ho question appears to have, been made on the trial, that the company was insolvent, and that the amount held by each stockholder was necessary to be contributed for the payment of its debts. The payment was made by the agent on account of his principal, and no point was made on the trial, that the defendant was not liable to reimburse the same, if he was adjudged to be the owner of the stock purchased under the arrangement proven. We think clearly he was, and that he was legally bound, not only to pay the sum advanced in payment of the stock, but also the amount paid by the plaintiffs to discharge the statute liability, created in favor of the creditors of the company.

We arrive at the conclusion, therefore, that the judgment should be affirmed.

Mullin J.

The agreement, to enforce which this action was brought, seems to have been that the testator should subscribe for $1,00.0 of the capital stock of the Diamond Mills Manufacturing Company, one-half of which should belong to the defendant, the testator to hold the same and receive the dividends thereon, the defendant to pay the interest annually on the $500, and when the intestate wanted the $500 he was to notify the defendant, and if he did not pay, the intestate should sell the same, and the defendant would pay the difference between the -sum received on such sale and the par value of the stock.

A few years after the intestate subscribed for the stock, the company became insolvent, and the stockholders were called on to pay an amount equal to the stock held by them to pay the debts of the company, and the intestate paid $1,000, and $500 of that sum is also claimed in this suit. It was a part of the bargain that the agreement should be put in writing, but it never was.

By the contract the intestate paid for the defendant, and at his request, $500, which was to be repaid by the defendant. One-half of the stock subscribed for became and was the property of the defendant, although it stood in the name of the intestate. It was tendered to the defendant before suit brought, and thus the liability of the defendant perfected, so far as the ownership of the stock was .concerned.

By the contract the intestate was bound to sell the stock, and in that way reimburse himself so much of the amount paid as the stock would bring on the sale. No sale was made, and hence it is claimed a condition precedent to a recovery in this case has not been performed.

But it clearly appears that the company had become insolvent, and its stock utterly worthless; there was nothing to sell. The defendant was clearly liable for one-half the amount paid for the stock.

The intestate, being the nominal owner of the whole stock, was liable to the company, or the creditors, to pay $1,000 in satisfaction of the debts of the company. On the facts proved, there is no reason to doubt the power of the creditors to enforce the payment of this sum; and that being so, the intestate was not bound to wait until he was sued and judgment recovered, before he paid.

But it is said that the intestate was a trustee of the defendant’s share of the stock, and hence not liable to be sued for it. Neither the company nor its creditors had any notice of any trust, and whether the intestate might have paid his own half and on informing the company or creditors of the manner in which he held the defendant’s share, have given it or them a right of action against the defendant, is not very important. While it stood in the intestate’s name he was liable for the whole; and he has paid $500 for the defendant’s benefit, which the defendant was equitably bound to pay.

It is just and right that executors, administrators, guardians of minors, and others, trustees of • express trusts, should not be liable for debts of a corporation in which they hold stock in their fiduciary capacity. But there is ho reason why a person holding stock ás the intestate held that belonging to the defendant, should be exempt. The statute exemption does not reach the case.

It is said the contract as to the stock was never binding because by its terms the agreement was to be put in writing, and it was not. Conceding that the defendant might have insisted on the performance of this condition, it was competent for him to waive it; and he seems to have repeatedly recognized his liability on the contract, although it had never been reduced to writing and signed.

After a careful consideration of all the points raised by the defendant’s counsel, I can discover no grounds on which the judgment can be reversed. It is therefore affirmed, with costs.

Johnson, J., was in favor of a reversal. All-the rest of the judges being for affirmance, judgment .affirmed.


author: Johnson, J.

text:
    The People ex rel. Nathaniel Huntting v. The Commissioners of Highways of East Hampton.
    A certiorari does not lie to an inferior tribunal, except to remove proceedings which remain before it. ' *
    In order to procure a reversal of an order of commissioners of highways, ordering the removal of fences as being an encroachment in a highway, on certiorari, it is necessary that the order should be brought up and made a'part of the record.
    The order cannot be brought up on a certiorari directed to the jul'y which determined the question as to the encroachment; they having no custody of the order, or power to make a return of it.
    The jury are no longer a legal body, after their verdict or finding is signed • and they have separated. Hence a return, signed by one of their number, several months afterwards, is no return of the jury as a body or tribunal. In such a proceeding there is no such officer as foreman, authorized to represent the.panel of jurors, and to act for them.
    Where a certiorari is-directed to the jurors, the commissioners of highways cannot become parties by appearing voluntarily and defending their ■ proceedings as commissioners.
    The office of the writ of certiorari is merely to bring up the record of the proceedings, to enable the supremo court to determine whether the inferior court has proceeded within its jurisdiction, and not to correct mere-errors in the course of proceedings, mo

      Appeal from a judgment of the Supreme Court in the second district, affirming the proceedings of the defendants for the removal of obstructions of a highway in said town.

    The case does not show what steps had been taken by the defendants as highway commissioners, except what appears in the return of one of the jurors to the certiorari. The certiorari was issued out of the supreme court, directed to “Edward T. Conklin," and five other persons, naming them “‘jurors, greeting;" and recited that the court “ being willing for certain causes to be certified of the trial before you, as a jury summoned and empaneled under and by virtue of a precept issued by Henry B. Tuthill, Esq., a justice of the peace, on the application of the commissioners of highways of the town of East Hampton, returnable on the 19th of August, 1859, to determine whether Nathaniel Huntting had encroached upon the highway as charged against him. in an order of the said commissioners, dated June 11, 1859, as also all the pleadings and proceedings remaining before you on the said proceeding between the parties aforesaid.” The writ then commanded them to certify without delay “ the said trial, with a copy of the certifícate made and signed by you on the said trial, and the pleadings and proceedings, and all other things touching the same, as fully and amply as the same remain before you,” <fcc. To this writ, Edward T. Conklin who describes himself as “ foreman of the jurors in the annexed writ mentioned,” makes and signs a return, in which he states what took place upon the trial before them. Setting forth the evidence offered by the commissioners, and the objection to it by the relator, and his offer to show that the record, produced by the commissioners as evidence of the highway, ivas invalid, and that the public had no right of way under it, “and therefore, the fence erected was not an encroachment on a highway.” It then recites the objection to the offer by the counsel for the commissioners, and the decision of the jury upon the offer “that they could not pass upon the validity of the record, but only on the fact of the erection of the fence on the alleged highway, the extent, by whom and when erected.” To this is annexed a copy of the certificate made and signed by the jurors at the close of the trial, finding and certifying the encroachment, and specifying the particulars thereof in due form. On the 5th of October, 1860, the relator procured an order for a further return by the jurors. To this order the said Conklin as “foreman,” makes an additional return substantially like the first, setting out somewhat more fully the relator’s offer, and the grounds and reasons assigned by his counsel, and also the answer of the counsel for the commissioners, and his objections, and their decision that the evidence offered was irrelevant, and that they would not hear it, or any of it, “ to which decision " the relator’s counsel excepted.” To this amended or further return is annexed a copy of the order of the commissioners of said town, dated the 1st of April, 1833, which was read in evidence before them from the town records. This purports to be an order upon a proceeding of the commissioners under the act regulating highways in Suffolk county, “ to survey, stake out, and record such width of highway as appears to be necessary for public convenience.” This order describes the width and course of the road in question by a particular description. It is then stated, as part of the case, that at the argument before the supreme court, in order to obviate a postponement of the case, to enable the relator’s counsel to obtain a further return, it was admitted by the defendants’ counsel as a fact “that the jury did not find that any of the land south-easterly of the fence was a highway;” that they refused to entertain the question whether it was a highway or not; and that this fact should be considered by the court as part of the return made by the jurors. The proceeding to remove the encroachment, was under the act of February 23 d, 1830, regulating highways in the counties of Suffolk, Queens and Kings. The order of the commissioners of highways on the subject of the encroachment is not returned, and does not appear in any part of the case. The supremo court affirmed the proceedings, and the relator appealed to this court.

      Miller and Tuthill, for the appellants.

      W. P. Buffett, for the respondents.
   Johnson, J.

The proceedings to remove encroachments upon a highway in the counties of Suffolk, Queens and Kings, under the act of 23d February, 1830, applying to those counties exclusively, are identical with the proceedings for the same purpose in other parts of the state, under the revised statutes, except that in the first named act only six jurors out of the twelve summoned are drawn to serve as the jury and try the question.

The object which the relator sought to accomplish by the writ of certiorari, and proceedings under it, was to procure a reversal of the order of the commissioners of highways, ordering the removal of the relator’s fences, as an encroachment, and the subsequent proceedings under that order. In order to do this, it was necessary that that order should have been brought up and made part of the record. That order lay at the foundation of all the proceedings, and unless brought up by the return, the entire end and aim of the certiorari imist necessarily fail. Of course this order could not be brought up on a certiorari directed to the jury. They had no custody of it. It did not belong to them or remain with them, and they could make no return of it. It is quite apparent that the jury is not the body to which a certiorari should be directed in such a case. They merely come to try a disputed question of fact between the commissioners and the occupant of the land, upon evidence produced before them by either party litigant, and certify their finding. The certificate is to be filed in the town clerk’s office, and that is an end of their power and authority in the matter. Ho part of the record belongs to them, or remains with them, and they can return nothing other than what has been returned here, a mere narrative of the proceedings before them. This is no record, in any legal sense, of the proceedings by which the relator's fence was determined to be an encroachment. A certiorari does not lie to an inferior tribunal except to remove proceedings which remain before it. (The People v. Supervisors of Queens, 1 Hill, 195.) The writ in question did not properly bring up this certificate of the finding of the jury, even. They were no longer a legal body, after their verdict or finding was signed, and they had separated, but mere individuals. All their official functions had ceased entirely. And a return signed by one of their number, several months afterwards, was no return of the jury as a body or tribunal. In such a proceeding there is no such officer as foreman, authorized to -represent the panel of jurors, and act for them. Where -the writ of -certiorari is improperly directed, or returned, nothing can be removed by it. (Bac. Ab. Certiorari, I. Pede v. Foot, 4 How. Prac. Rep. 425.) The writ having been erroneously directed, and the return -a nullity, ,'as most obviously it is, the supreme court acquired no jurisdiction over the subject matter. There was nothing before -it to reverse or affirm. The -defendants seem to have appeared and defended their proceedings as commis;sioners, though the writ was not directed to them, -nor were they required by it to appear or answer. It is difficult to see how they could become parties. But no question of this Mild seems to have been raised, on either side, •and the proceedings were affirmed in favor of the defend.ants. The relator has evidently mistaken wholly the office -of this writ, which is merely to -bring up -the -record of the proceedings, to enable the supreme -court to determine whether the inferior tribunal has proceeded within its jurisdiction, and not to correct mere errors in the course of the proceeding. Here the object -seems to have been to bring into review the -alleged erroneous rulings of the jury in receiving or rejecting evidence offered on .the -hear-dug -before them, as though it were a bill of .-exceptions. Such-questions do not arise and can not be reviewed on certiorari. (Birdsall v. Phillips, 17 Wendell, 464.) It is •evident enough that both the defendants and-the jury -had jurisdiction in the matter before them. -But the proceedings not being before the supreme -court,' there was nothing for them to affirm. Their judgment should have been a dismissal ‘ of the writ, or that the relator take nothing by it.

The judgment of the supreme court must, therefore, be reversed, and the case remitted to that court, with directions to dismiss the proceedings, but without costs to either party.

All the judges concurring, judgment accordingly.


author: Hogeboom, J.

text:
    Aaron L. Phelps v. William Wait and Nathan Wait.
    A joint action will lie againt principal and agent, for a personal injury-caused by the negligence of the latter (in the absence of the former), in the course of his employment.

      Appeal from a judgment of the Supreme Court, entered upon the report of referees, in favor of the plaintiff, for three hundred and seventy-five dollars.

    The action was brought against father and son, standing in the relation of master and servant, to recover damages for personal injuries caused by the negligence of the son, while driving, the horses of his father.

      E. F. Bullard, for the appellants.

      John K. Porter, for the respondent.
   Hogeboom, J.

This action is brought to recover damages for personal injuries sustained by reason of negligence on the part of the defendants. The plaintiff was crossing a street in the village of Waterford. The defendant, Nathan-Wait, was driving a pair of horses attached to a wagon, which came in collision with the plaintiff, prostrated him and passed over his body. The horses and wagon belonged to the defendant, William Wait, in whose employment, and whose son the other defendant was. Three questions are made in the case:

1. Was the defendant Nathan guilty of negligence?

2. Was the plaintiff also guilty of negligence?

3. Will a joint action lie against the principal and the agent, for the negligence of the latter (in the absence of the former), in the course of his employment?

On the first two questions, very little doubt can arise, and they have been determined as questions of fact in the plaintiff’s favor by the referees who tried the cause. The plaintiff was crossing a public street in Waterford with ordinary care, and with no reason to apprehend danger. When so crossing there was at first no vehicle in sight with which there could be any prospect of collision. The defendant engaged in an altercation with a drunken man, and his attention being engrossed by him, he drove suddenly and rapidly out of the yard,.and run over plaintiff. It was a case of negligence on the part of defendant, and of no want of proper care on the part of the plaintiff. The cases of Steves v. Oswego & Syracuse Railroad Company (18 N. Y. 422), and Johnson v. Hudson Railroad Company (20 N. Y. 65), present no facts or rules of law which interfere with the plaintiff’s right to recover in this case. .

The case was retained for examination principally upon the other point—the supposed misjoinder of parties—arid to enable the defendants’ counsel to supply a reference to authorities showing that in analogous cases principal and agent could not be sued together. The current of authority is certainly the other way, and in favor of the right to join these parties. And I have been unable, after a somewhat diligent examination, to find any reported case holding a contrary doctrine. The question was carefully considered by the supreme court in the leading case of Wright v. Wilcox (19 Wendell, 343), and has since been followed in several other cases. (Montfort v. Hughes, 3 E. D. Smith’s Rep. 591; Suydam v. Moore, 8 Barbour, 358; Hewett v. Swift, 10 Am. Law Reg. 505.)

. The defendants’ counsel refers to a riianuscript case in the supreme court, in the 4th judicial district, Vernam v. Gibson (& Farnham, which is supposed to hold a contrary rule; hut we.have not been favored with the opinion of the court, and unless it is based upon some other principle than those discussed in the cases already adverted to, it must be regarded as overborne by the weight of authority. The judgment should be affirmed.

All the judges concurring, judgment affirmed.


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    Andrew McCotter v. John Jay and others.
    Where foreclosure proceedings are entirely regular, and free from fraud, they can not be. disturbed, or set aside, without some legal reason.
    Want of knowledge of the time and place of sale, on the part-of one who was a party to'the foreclosure suit, and was therefore hound to use due diligence in obtaining information of the sale, in order to protect his rights, affords no sufficient reason.
    If a party is equitably entitled to relief against foreclosure proceedings, it is by way of ■motion, addressed to the favor or discretion of the court, to
    <• open the biddings at the sale.
    He can claim no legal or absolute, right; and if permitted to come in at all,, can he allowed to do so only on terms.
    Those terms can not properly he adjusted in an action brought to set aside the sale as unfairly and inequitably conducted.
    This action was brought to set aside a sale of mortgaged premises as unfairly and inequitably conducted on the part of the defendant, Jay; also two deeds of conveyance, of the mortgaged premises to. two others of the. defendants,, Weeks and Hoff; and also a mortgage'executed by the last named persons to the other defendant, Hulse, after the purchase under the mortgage sale. The mortgaged- premises were sold under legal proceedings regularly conducted,. to foreclose a mortgage executed by one Michael C. Coss to the plaintiff, which mortgage the plaintiff transferred to the Mechanics’ Fire Insurance Company, and on such transfer guaranteed the payment thereof. Jay was subsequently appointed receiver of the latter company, and as s.uch receiver foreclosed the mortgage. His attorney purchased the premises at the foreclosure sale, and assigned his bid to the defendant, Weeks, who took the. sheriff’s deed on the foreclosure, and afterwards sold one-half of the property to the defendant, Hoff. The plaintiff was not aware of the foreclosure sale, and claims that it was wrongfully aud inequitably concealed from him by the attorney of the receiver. There was, however, no evidence of fraud, and so the judge found as a question of fact, -and 'also of law, at the trial, and dismissed the complaint, with costs. On appeal his decision was affirmed at the general term. The plaintiff then appealed to this court.

      George Miller, for the appellant.

      W. P. Buffett, for the respondents.
   Hogeboom, J.

There appear to be several insuperable difficulties in' the way of the plaintiff.

1. The foreclosure proceedings were entirely regular and free from fraud. They cannot, therefore, be disturbed or set aside without some legal reason.

2. Ho sufficient reason appears in the case. The plaintiff's want of knowledge of the time and place of the sale is entirely attributable to his own negligence. He was a party to the foreclosure suit, and was bound to due diligence in obtaining information of the 'Sale, in order to protect his rights.

3. He does.not allege that he was misled or legally surprised. .

4. If equitably entitled to relief, it was by way of motion addressed to the favor or discretion of the court, to open the biddings at the sale. He can claim no legal or absolute right, and if permitted- to come in at all, can be allowed to do .so only on terms.

5. These terms cannot properly be adjusted in this action. The complaint is not framed with such an aspect. The plaintiff has no legal and proper standing in court. He has no lien upon the premises, and no equitable interest therein. He shows no fraud, and cannot therefore ask to set aside the sale as a matter of right, even if as a mere guarantor of the debt he would be permitted to file a bill for such a purpose. He makes no title to relief, even upon motion, inasmuch as he is plainly guilty of laches, and fails otherwise to present sufficient grounds for the equitable interference of the court.

The judgment should be affirmed, with costs.

All the .judges concurring, judgment affirmed.


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    Henry E. Hooker v. Eagle Bank of Rochester.
    It is not necessary, in order to charge a corporation for services rendered, .that the directors, at a formal meeting, should either have formally authorized or ratified the employment.
    For many purposes the officers and agents of the corporation may employ persons to perform services for it; and such employment, being within the scope of the agent or officer’s duty, hinds the corporation.
    In other cases, if an officer employs a person to perform a service for the corporation, and it is performed with the knowledge of the directors and they receive the benefit of such service, without objection, the corporation is liable upon an implied assumpsit.
    In equity, a parol assignment of a claim or demand enables the assignee to sue in his own name.
    Under the code an assignment, valid as an equitable assignment, is equally valid at linv.
    In April, 1854, the defendant owned a lot of land in the city of Rochester, the buildings on which had been destroyed by fire, and it intended to erect on said premises a new building in a part of which its banking house was to be located. Kauffman & Bissel were architects, in Rochester, at the same time; and Bissel, one of said firm, had entered into a contract with said defendant for the purchase of a part of said premises, on which the defendant was to erect a new building, but this agreement was rescinded before the transactions hereinafter mentioned. K. & B. prepared, plans and specifications for the new building, under a contract, as is alleged in the complaint, with the defendant to furnish the same and superintend the work, for the sum of $1,000. The excavation of the cellar and construction of a sewer on said premises were let to one Potter, who had entered into a contract for said work, and he performed work according to the plans and specifications furnished by K. & B., and was paid upon estimates made by them.
    In the spring of 1855 the bank sold the said premises to one Chappel, who assumed the contract with said Potter, and agreed to pay a small sum to one Austin, an architect, for work done in reference to said building, and also to pay to IC. &’B. a sum for like services not then liquidated, not exceeding, however, $50. Chappel dismissed IC. & B. and employed another architect, although they were, as they allege, ready and willing to go on with the work. The complaint contained two causes of action; one on a special contract to pay $1,000 for the services to be rendered by IC. & B.; the other on a quantum meruit. The assignment to the plaintiff from K. & B. was not in writing, and evidence of the assignment was objected to on that ground.
    On the trial evidence was given on the part of the plaintiff, who was assignee of the demand from K. & B., tending to prove an agreement by the defendant, through its president and two other officers, to employ and pay IC. & B. for preparing plans,’&c„ $1,000; and on the part of the bank, tending to show that no such agreement Avas made. It was shown that at the time IC. & B. were dismissed from the work one-half of the work Avas done. The defendant moved for a non-suit on the grounds:
    1st. That no cause of action had been proved.
    2d. That neither of the issues had been proved.
    3d. The assignment to the plaintiff was not in writing, and therefore Avas invalid.
    The motion was denied and the defendant’s counsel excepted. The defendant’s counsel requested the court to charge the jury that the plaintiff could not recover unless he proved an express contract between K. & B. and the defendant, and that such contract could be made only by the directors acting as a body, or by some person to Avhom they had delegated a power to make a contract. That the defendants could not be charged on an implied contract. That there was no evidence that Cheney or Bacon, two of the directors, jointly or individually, were authorized by the defendant to' make any contract with K. & B., and that their acts and admissions are insufficient to charge the defendant.
    The court charged in substance that the plaintiff could not recover on the special contract, unless he proved an express contract between K. & B. and the bank to do the work at the price named. That the defendant could only contract by resolution of its board of directors, or by its officers acting within the scope of their authority. But that, if no express contract was proved to employ K, & B. and pay them the $1,000, a contract might be implied from the request of the bank, or its officers, to K. & B. to do the woi’k. And upon the performance óf services in pursuance of such request, and the subsequent ratification thereof by the bank, the bank was bound to pay so much as the services were reasonably worth.
    The defendant’s counsel excepted to that part of the charge in which the jury were told that a contract might be implied, and to the refusal to charge as requested. The jury found for the plaintiff $500, for which sum judgment was rendered,- and the same was affirmed at a general term of the supreme court sitting in the seventh district, and the defendant ■ appealed.
    --, for the appellant.

      T. O. Montgomery, for the respondent.
   Mullin, J.

Proof was given, on the trial, tending to prove an express contract by the defendant to employ Kauffman' & Bissel as architects to make plans, &c., for the new building, and to pay them therefor the sum of $1,000. The jury, by finding for the plaintiff $500 only, must have found, there was no express promise to pay K. & B. $1,000, but they have found an agreement to employ them; that they, K. & B., have performed services for the defendant, and that such services are reasonably worth $500. It is not necessary, in order to charge a corporation for services rendered, that the directors, at a formal meeting, should either have formally authorized or ratified the employment. For many purposes the officers and agents of the corporation may employ persons to perform services for it, and such employment, being within the scope of the agent or officers’ duty, binds the corporation. In other cases, if an officer employs a person to perform a service for the corporation, and it is performed with the knowledge of the directors and they receive the benefit of such service without objection, the corporation is liable upon an implied assumpsit. (Danforth v. Schoharie Turnpike Co. 12 J. R 227; Dunn v. Rector of St. Andrews, 14 id. 118; Long Island Railroad Co. v. Marquand, 6 Legal Obs. 160; Fister v. LaRue, 15 Barb. 323; 7 Cowen, 540; 9 Paige, 496; 17 N. Y. 449; 22 Wend. 348; 20 Wend. 91; 4 Cow. 645; Angel & Ames on Corp. §§ 7, 8.) There was sufficient evidence to authorize the verdict.

Sundry objections were made to the evidence of the witness Potter, taken on commission. It appeared that he had entered into a contract with the defendant to build the foundation of the new building, and perform other Avork connected fhereAvith; and, in his ansAvers to some of the interrogatories, he spoke of the contract, and it Avas objected that the contract should have beeil produced. The interrogatories did not call for the terms of such contract, nor do they even mention a contract. The witness, in stating his connection Avith the building, spoke of his. contract, but did .not give, nor propose to give, the terms of it. There wras no ground whatever for the objection, and it Avas properly overruled.

The same witness was asked whether he had seen plans and specifications made by IC. & B. He replied that he had. The defendant’s counsel objected that the papers should be produced, and this objection was overruled. The Avitness Bissel testified that the plans, &c., were left with some of the officers of the bank, and the architect employed after K. & B. were discharged used some of them. The judge might well presume the papers in the defendant’s custody; and if so, the bringing of the suit was sufficient notice to produce them. These objections were properly overruled.

The defendant moved for a non-suit on several grounds, all of which are disposed of by the legal propositions above advanced, except one, and that is, that the assignment from K. & B. to the plaintiff, being without writing, was void.

A chose in action might at law be assigned without writing, so as to enable the assignee to enforce the debt or demand assigned in the name of the assignor, if there was a valuable consideration and a delivery of the thing assigned. (Ford v. Stuart, 19 J. R. 342; Briggs v. Dorr, 19 J. R. 95; Prescott v. Hall, 17 J. R. 284.) Such an assignment, in equity, enabled the assignee to sue in his own name.

A book debt is a chose in action and assignable; (Dix v. Cobb, 4 Mass. 508;) and may, like any other chose in action, be assigned by parol. (Jones v. Witter, 13 Mass. 304; Briggs v. Dorr, id. 95, and cases cited; 2 Cases in Chancery, 7, 37; Dunn v. Sell, 15 Mass. 485.)

Under the code, an assignment valid as an equitable assignment is equally valid at law. (Code, § 111.)

The charge was right, and the judgment must therefore be affirmed, with costs.

All the judges concurring, judgment affirmed.