author: Ruger, C. J.

text:
    Ellis R. Thomas et al., Resp’ts, v. Thomas J. Evans et al., App’lts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Recovery of land through defective title—Reimbursement for improvements made.
    A claim to recover back property which has been fairly sold and paid for at its full value, and the consideration of which has accrued to the benefit of plaintiffs, without offering to render compensation to one who, honestly believing himself to be its lawful owner, expended large sums in its improvement, and which now constitutes its greatest value, is unjust and inequitable, and a court of equity may charge the remainder-men with the reimbursement of moneys actually and honestly expended for the benefit of the estate.
    2. Same.
    In 1841, Evans, in right of his wife, came into possession of the property in question. Previous to the year 1860 all of the remainder-men had ■ arrived at years of maturity, and were aware that he claimed to be absolute owner, but for over twenty years they not only neglected to dispute such claim, but permitted the defendant to go on in apparent security as to his title, and make improvements upon the property and deal with it as his own. Meld, that the circumstances bring the case within the principles compelling reimbursement to him of all the moneys laid out, both purchase-price and improvements.
    Appeal from judgment of supreme court, general term, second department.

      George H. Starr, for app’lts; Wm. G. Cooke and Wm. C. Wallace, for resp/bs.

         Reversing 35 Hun, 668 mem.

   Ruger, C. J.

In July, 1841, Thomas Thomas died, leaving him surviving Catharine Thomas, his widow, and four children, aged, respectfully, three, five and six, and Sarah Thomas, who has since died intestate. At the time of his death, Thomas owned in fee eight small city lots in Williamsburg, six of which were situated on South First, and two of lesser value, on South Second streets, and with the exception of two lots on South First street, were vacant and unimproved. So far as appears from the case, Thomas had no other property, real or personal, and such as he had he devised to his widow for life, with remainder to his four children. By the will he appointed his wife executrix, and John L. Bulkley executor, of his estate, and authorized them to sell the whole or any part of his real estate when they may deem best for those interested therein, either at public or private sale, and invest the proceeds in bonds and mortgages or other securities as they may believe best.” He also appointed his wife guardian, of all of his fchildren. In December, 1841, the widow intermarried with the defendant Evans, and lived with him as his wife until the year 1878. a period of thirty-seven years, and nearly twenty years all of the children had arrived at maturity.

It is conceded that, by the will, the widow took a life-estate in the property of her husband, and that, upon her marriage with Evans, he became entitled to the enjoyment of her interest therein, and that the four children took a vested estate in remainder in such property. Between the years 1841 and 1850 the defendant Evans made considerable improvements upon the property on South First street, and rendered some of it productive which before was a burden and expense to the estate. For the purpose partly of paying the liability of the estate to Evans for these improvements, and partly to raise money to meet anticipated assessments, upon the property, the executors, in 1850, sold and conveyed to Evans, for the agreed price of $1,000, the two vacant lots on South Second street. Three hundred and fifty dollars of this sum was applied as a payment to Evans for the expenses incurred by him, and the balance of $650 was secured by a mortgage upon the property given by Evans to the executors. The price paid was a fair consideration for the land, and all parties then supposed that Evans acquired a valid title under the power of sale contained in the will. Subsequently, however, upon attempting to raise money upon the lots for building purposes, Evans was advised that, by reason of his relationship with one of the grantors, his title was defective, and thereupon he consented to institute an action to have such title declared void, and to reinstate the power of sale in the executors. Such proceedings were thereupon had in the supreme court that judgment was rendered declaring the conveyance from the executors to Evans null and void, and reinstating them with the interest attempted to be conveyed.

Between 1850 and 1854, heavy assessments were levied upon the property of the estate for municipal improvements, and the executors had no means to pay them. These assessments were mainly levied upon the lots on South First street. At the request of the executors, Evans advanced, some money to pay them, but the estate was still unable; to meet the other burdens upon the property. Undler the circumstances, the defendant Evans, under an agreement with one Swackhamer that he would repurchase the property,, and repay him its costs, and such money as he should expend upon it, with a bonus of §500 for his risk and trouble, induced Swackhamer to enter into a contract of purchase of the two lots on South Second street with the executors for the price of $2,000. In 1853 the executors conveyed the property to Swackhamer, receiving therefor $300 in cash, Swackhamer’s note for $700, and a release by Evans to the executors of their indebtedness to him for money advanced and expended for assessments and improvements upon the property. The price paid was more than the value of the property, and the Thomas estate received the full .benefit thereof. It does not appear that the executors had any knowledge of the agreement between Evans and Swackhamer; or that any of the parties had any doubt but that Swackhamer acquired a valid title to the property by the-conveyance. Upon receiving his deed, Swackhamer exe>cuted a mortgage upon the property to third parties for the sum of $4,500, which sum was wholly expended in erecting three substantial brick dwellings upon the two lots. In 185 C, in accordance with his agreement with Evans, Swackhamer conveyed the property to him receiving in payment therefor the sum of upwards of $7,000. Immediately upon receiving his deed, Evans caused it to be placed upon record, and from that time forward claimed to be the absolute owner of the property. Since Evans’ occupation of the lots, he has continued to make additions to and improvements upon them, the value of which, including the original cost of the houses as found by the trial court, exceeded $9,000 a.t the time of the trial. In 1879, Evans conveyed to each of the two other-defendants, Catharine J. Scofield and Jessie E. Scofield, one of the houses erected on the two lots on South Second street as a gift out of consideration of love and affection for them as his daughters..

This action was brought by two of the remaining children of Thomas, the other one refusing to join therein as a plaintiff, in April, 1881, for the purpose of vacating and annulling-the deed given by the executors to Swackhamer, and all subsequent conveyances of the property, and having it adjudged that the two lots, with their improvements, were the property of the plaintiffs, and requiring the defendants to release and convey the property to them, and that the defendant Thomas J. Evans render an account of all of his transactions with the estate of Thomas Thomas, and be decreed to pay to the plaintiffs such sums as might be found, due upon such accounting. The fight to relief was based exclusively upon the allegation in the complaint that the defendant Evans obtained title to the property from the executors “for the purpose of enabling the executors more conveniently to manage the said estate through the defendant Thomas J. Evans, and with a view to increase the revenue for the said real estate, and to put the title thereof in the said Thomas J. Evans as trustee for the said Catharine Evans, and the children of the said Thomas Thomas, deceased.”

Upon the trial no proof was offered by the plaintiffs of the existence of the trust and agreement alleged in the complaint, but the action was sustained upon the ground that the conveyance by which the land was transferred from the executors of Thomas to Swackhamer was not a valid exercise of the power of sale given to them by the will of Thomas, and constituted a cloud upon the title of the true owners, which should be removed. The decree also denied to the defendant the right to compensation for the improve-, ments made to the property by him. The ground upon which this conclusion was reached, is stated to be that Evans was not a bona fide purchaser of the premises. This conclusion was based upon the finding of law made by the,, trial court that neither Evans nor the other defendants were bona fide purchasers of the land.

It is not entirely clear what the trial court meant by this finding of law; but,. if it was intended to convey any other idea than that it was simply a legal deduction from the assumed fact that the conveyances to Swackhamer and Evans were void by reason of the alleged invalidity in the execution of the power of sale, it is contrary to the findings of fact made by the court, and is unsupported by any evidence in the case. It was found by the trial court that from 1856 Evans always claimed to be the absolute owner of the property; and that this claim was known to and acquiesced in by the plaintiffs appears from the allegations of the complaint. It is therein averred that the plaintiffs have all been for many years of full age, and have not requested the transfer of said title to them because of the positive assurance they all had from the said defendant, and from the said testatrix in her life-time, that the same was held for the estate, and because their mother, the said testatrix, was entitled to the income of the same until her death.” This excuse, so far as it alleges any assurance from the defendant Evans, or his wife, of the existence of a trust, is not, as we have seen, supported by the evidence. It also appears that some, if not all, of the surviving children of Thomas, after their majority, had knowledge of the expenditures that the defendant Evans made, not only upon the property in dispute, but also upon the other real estate remaining unsold, and, so far from making any objection thereto, actually requested them to be made.

A careful perusal of the evidence in the case shows us that Evans, m the right of his wife, came into the possession of the eight lots in 1841; and, although both he and the estate were destitute of means to improve it, or to pay the taxes or assessments levied thereon, it was so managed as to make it more valuable and productive, and to preserve for .the remainder-men the greater part of the estate. In the meanwhile he provided a home for the widow and children of Thomas, and educated and supported the children, not only until their majority, but some of them until. long after that time. Under these circumstances, it is not strange that the remainder-men have hesitated so long to assert any rights to the two lots ip question; and that one of them refused altogether to become a party to the proceeding.

A claim to recover back property which has been fairly sold and paid for at its full value, and the consideration of which has accrued to the benefit of the plaintiffs, without offering to render compensation to one who, honestly believing himself to be its lawful owner, expended large sums in its improvement, and which now constitutes its greatest value, seems to be unjust and inequitable. We are of the opinion that the purchase price originally paid for the land, and the value of the improvements, to the extent that they have added to its permanent value, constitute an equitable claim; and that, even if the plaintiffs should establish an equitable right to the property, it would not entitle them to judgment therefor except upon the condition of refunding to the defendant Evans the amount so expended.

It was found by the trial court that the purchase price was mainly paid in relieving the land from the assessments imposed upon it. These assessments were a charge upon all of the land; and the interest of the remainder-men, as well as that of the life-tenant, was liable to be sold therefor. It is provided by statute, in the case of real property in which several persons have successive interests, incumbered by taxes and assessments rendering it liable to sale therefor, that, upon the application of any of the parties interested, the court may order a sale of the fee, or a part thereof, for the purpose of discharging the liens upon the remainder. Laws 1841; chap. 341; Laws 1855, chap. 327; Jackson v. Babcock, 16 N. Y., 246; Dikeman v. Dikeman, 11 Paige, 484. Thus the property of the plaintiffs was legally liable for the payment of these assessments. Although the method provided by statute was not pursued, we see no reason why a court of equity, called upon to settle the equitable rights of the parties, should not charge remainder-men with the re-' imbursement of moneys actually and honestly expended for the benefit of their estate, and which they were legally liable to pay. The general rule applicable to the relation of life-tenants and remainder-men does not authorize the former to charge the latter with the cost and expense of permanent improvements put upon the property by them during the life-tenancy. Dent v. Dent, 30 Beav., 363; Moore v. Cable, 1 Johns. Ch., 385. This rule is founded upon principles of justice having reference to the rights and interests of remainder-men, ana should not be inconsiderately impaired or evaded. It is also the general rule that municipal assessments for permanent improvements upon land are apportionable between the life-tenant and the remainder-men according to the circumstances of the case and their respective interests in the property (Stillwell v. Doughty, 3 Bradf., 359; Peck v. Sherwood 56 N. Y., 615); while the ordinary taxes of government are properly chargeable to the life-tenat alone (Deraismes v. Deraismes, 72 N. Y., 154; Cairns v. Chabert, 3 Edw. Ch., 312).

Such are the rules applicable to those relations when they are open and acknowledged, and no special circumstances exist authorizing the application of principles of equity to reimburse one who in good faith has increased the intrinsic value of the property by expending his own means in making permanent erections and valuable additions thereto under the belief that he was its lawful owner. Such circumstances are held to exist when a trustee or mortgagee in possession, supposing in good faith that he has acquired title in fee to the property, goes on and deals with it as his own, and makes improvements which are of permanent benefit to the property. Putnam v. Ritchie, 6 Paige, 390; Mickles v. Dillaye, 17 N. Y., 86.

In the Putnam Case the chancellor laid down the rule, as expressed in the head-note, that “when industrial accessions have been made to property in good faith by a person who has the legal title to the property, so that the real owner is compelled to resort to a court of equity to assert his equitable title to such property, this court acts upon the civil court rule of natural equity, and compels the complainant to compensate the adverse party for such industrial accessions or improvements, as a condition of granting the equitable relief asked for in the suit.” This was the case of a guardian in socage of infants having a leasehold estate in fee in certain lands, which lease, during the infancy of the wards, was for a good consideration, surrendered by such guardian to the heir of the lessor. It was held that a guardian in socage has no right to surrender a lease in fee belonging to his wards; but that when the legal title is in a trustee, or when the guardian of an infant has complete, legal control over the property so as to place it fully within the power of the chancellor as the general guardian of infants, the court may sanction the acts of the trustee or guardian, although not strictly legal, if the same are done in good faith, and for the benefit of the estate of the infant.

In Mickles v. Dillaye (17 N. Y., 86), the rule weas applied, to a mortgagor who attempted to redeem from a mortgagee in possession under a voidable sale, and the rule adopted is expressed in the head-note of the case as follows: “ When valuable and permanent improvements have been made in good faith by a person standing upon the legal footing of a mortgagee in possession, but who supposed himself to nave acquired the absolute title, and such mistake was favored by the omission of the owner, for several years before and after the improvements, to assert any interest in the premises, the mortgagor, on asking the aid of equity to redeem, will be compelled to allow the value of the improvements, though exceeding the rents and profits received.” In Bright v. Boyd (1 Story, 478), lands had been sold by an administrator, but the sale was void because he had not given security according to the statute. The heir sued the purchaser and recovered possession pf the land. The purchaser then filed his bill in equity to recover from the heir the value of certain improveinents, including the cost of building a large dweling house which he had in good faith put upon the premises while occupying them. Judge Story referred the case to a master to take an account of the enhanced value of the premises, with a strong intimation that the plaintiff was entitled to recover that expense, but postponed the final decision of the question until the coming in of the master’s report. Judge Denio, citing this case in Mickles v. Dillaye, entertained some doubt whether it could be sustained here except upon the principle of estoppel against one fraudulently standing by and seeing another expend money upon his land, although he expressly approved the rule laid down by the chancellor in Putnam v. Ritchie. In the same case he also approved of the doctrine laid down by Judge Hand in Wetmore v. Roberts (10 How. Pr. 51). In that case the defendant had bought the premises from one who had purchased them upon a sale on a prior mortgage, in the foreclosure of which a junior mortgagee had not been made a party. Upon a foreclosure of the junior mortgage, it was held that the premises should be sold, and the defendant should be paid from the purchase money, not only the amount due on the elder mortgage, but also for improvements made by him during his occupation of the property.

In Miner v. Beekman, (50 N. Y., 339), it was said by Grover, J., that “when a plaintiff has permitted his right to satisfy a mortgage to remain dormant for nearly thirty years,,during which others have paid the assessments and taxes, and made improvements in the belief that they had title under a foreclosure of the mortgage, he cannot complain that, as a condition of regaining possession, he is compelled to account for and pay such taxes, assessments, and for such improvements, according to the just and enlightened principles of courts of equity.

Pomeroy, in a note to section 1242 of his work on Equity Jurisprudence, states the rule as follows: “When a person in peaceable possession under claim of lawful title, but really under a defective title, has in good faith made permanent improvements, the true owner, who seeks the aid of equity to establish his own title, will be compelled to reimburse the occupant for his expenditure.” ' Many authorities are cited in support of the proposition.

In Ford v. Knapp, (102 N. Y., 135), the principle is laid down that in an action by a co-tenant out of possession for a partition of the premises upon which the other tenants in common have paid taxes and made improvements in good faith, which have largely increased the value of the property, the amount of such taxes and improvements shall, in case of “sale of the property,-’ be first deducted from the gross sum received, and paid to the improving tenants, and the balance only divided among the parties according to-their respective interests. The case was decided upon the rule “that one who seeks equity must do equity,” and that-the tenant out of the actual occupation, who seeks a court of equity to award him partition, is entitled to relief only upon condition that the equitable rights of his co-tenant shall be respected.

We think the circumstances of this case bring it within the principles of the cases above cited. Previous to the year 1860, all of the remainder-men had arrived at years of maturity, and were aware that the defendant Evans claimed to be the absolute owner of the property in question. For over twenty years they not only neglected to dispute such claim, but permitted the defendant to go on in apparent security as to his title, and make improvements upon the property, and deal with it as his own. There seems to exist here the natural equity which entitles a party who has in good faith, with his own means, improved the property of another, to reimbursement by the parties benefited thereby, but this equity is strengthened by the conduct of the owners,' who stood by and saw such party, without notice or objection, incur expense under the belief that he was improving .his own property. We are therefore of the opinion that the trial court should have imposed, as the condition of any relief to the plaintiffs, the reimbursement by them to Evans of the original price paid by Swackhamer for the lots, and. also of such sums as were expended by Swackhamer and Evans in their improvements, so far as they have increased the value of the land; and, in case Evans is charged with the rents received from the property since the death of the life-tenant, he should be allowed interest on the amount payable to him.

The plaintiffs have sought their remedy in equity, and that course seems to have been requisite as the condition of a right to the relief demanded. The deed from the executors to Swackhamer apparently conferred the legal title under the power of sale contained in the will. The purchaser was under no responsibility for any misapplication by the executors of the consideration paid by him for the land, and was entitled to rely upon their apparent power to receive such consideration, ana to convey the land given to them by the will. 3 R. S. (1st ed.), § 66, p. 2183.

‘ We have altogether refrained from discussing the question as to whether the conveyance by the executors to Swackhamer was a valid execution of the power of sale. There seems to be much reason for saying, under the peculiar condition of this property, its unproductive character, and the want of means in which the testator left his family, the liability of the property to be sold for taxes and assessments for municipal purposes, that the real limitation intended to be put by the testator upon the power of sale was contained in the words that it should be sold when his executors “may deem best for those interested therein,” and not in the language by which they were directed “ to invest the proceeds in bonds and mortgages or other securities as they may believe best.” Some diversity of opinion, however, exists among the members of the court upon this question, and we therefore refrain from determining it, believing that the point decided will substantially dispose of the case upon a, retrial.

The judgments, both interlocutory and final, of the courts below, are reversed, and a new trial ordered, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The Mayor, etc., of the City of New York, Resp’t and App’lt, v. John H. Starin et al., App’lt and Resp’ts.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Ferries—Mat act as common carriers.
    Ferrymen may combine with the ferry business, the business of a common carrier carrying freight and merchandise, without the presence of the owner or custodian, like other carriers engaged in the transportation of such freight, and as to such freight, they are under the duties and obligations of a common carrier.
    3. Same.
    Any person who invades the franchise of another by running a ferry is liable for any damage he causes such other person; but if he fails to establish and maintain his ferry, he cannot restrain any other person from, operating the ferry, or recover any but nominal damages.
    3. Same—New York city—Montgomerie charter, § 15—Ferry to Staten Island.
    In 1730, letters patent, called the “Montgomerie charter,” were given to the city of New York, section 15 of which granted to the city full power as to establishing, etc., of ferries around Manhattan Island, to run therefrom to Nassau Island, thence back to Manhattan’s; and also from the said island, Manhattan’s, to any of the opposite shores all around the same island, etc., etc. Held, that the intention was that the city should have the exclusive ferry franchises all around the city, including those to Staten Island, and the right to establish, control and receive the revenues of all the ferries between the two places.
    4. Same.
    The common law rule that all gratuitous grants by the sovereign of exclusive privileges and franchises, should be strictly construed, and that ambiguities operate against the grantee, is not fully applicable to the grant of a ferry franchise, for the ferry must be maintained for the convenience of the public.
    5. Same—Assertion oe right by city.
    The fact that the city at anytime asserted its exclusive right to the ferry franchises, is of far greater significance than the fact that on one or many occasions it failed to assert or enforce its right. ■
    6. Same.

      Held, that the acts of 1839-45 and 1848, creating corporations to operate ferries between Sew York and Staten Island, give no right to interfere with the franchises of the city, and before the ferries could be operated the corporations were bound to acquire the right from the city as owner of the ferry franchises.
    51 Same.

      Held, that as the defendants were wrong doers, having no right whatever to operate a ferry between the same points on Staten Island and the city, they were not in a position to assail the resolution by the city establishing the ferry or the lease thereof, or the arrangement between the city and the railroad company. It was sufficient against these defendants that ferries were in fact established and operated, and thus that the duties of the city, as owners of the franchises, to the public were discharged.
    8. Same
    A judgment against, defendants, who, in addition to being engaged in ferrying, also carried on the business of a common carrier.of freight between the city and Staten Island, which restrained them from transporting any property, either as freight or with the owner or custodian accompanying it: Held, too broad; they should be merely restrained from maintaining a ferry between the two points.
    Appeal from supreme court, general term, first department.
    This action was commenced to restrain the defendants from maintaining and operating a ferry between the city of New York and Staten Island. The plaintiffs allege in their complaint that, under what is called the “Montgomerie Charter,” the city of New York has the exclusive ownership of the ferry franchises between it and Staten Island, and the exclusive right to establish and regulate the ferries, with power to let, sell or otherwise dispose of them; that in violation of its rights, the defendants were operating a ferry between New York and Staten island, and that they thus intercepted and unlawfully appropriated profits,rents and ferriage fees which belonged to it; that, before the commencement of the action, it had duly established a ferry between it and Staten Island, which it had leased to the Staten Island Rapid Transit - Railroad Company for a term of years expiring on the 1st day of May, 1893, and that under and in consideration of such lease it received from the railroad company an annual rental of $10,000 for wharf privileges, together with 14f per centum of the gross receipts of the ferry franchise; that, by reason of the unlawful operation of the ferry by the defendants, the revenues and profits of the ferry established and leased by were seriously diminished; and that, .unless the defendants were restrained from their unlawful operation of the ferry, it would suffer great damage and injury; and the plaintiffs prayed judgment that the defendants, and each and every of them, and their agents and servants, be restrained by the order and injunction of the court from operating a ferry between the city and Staten Island, and that an account might be taken of the damages suffered by the city by reason of the unlawful operation of the ferry by the defendants. Besides other matters and defenses alleged, in their several answers the defendants put in issue the claim of the city of the exclusive ownership of the ferry franchise between it and Staten Island, and its exclusive right to lease the ferries, and denied that they were operating any ferry, and alleged that they were engaged in the transportation of goods, merchandise and passengers upon the public waters between Staten Island and New York, with steamboats duly enrolled and licensed under the laws of the United States for carrying on a coasting trade.
    ■ The issues thus framed were brought to trial at a special term of the supreme court, which decided the case in favor of the plaintiffs, as against the Independent Steamboat Company, and dismissed the complaint as to the other defendants. A judgment was entered against the Independent Steamboat Company perpetually restraining it from operating any ferry between the city and Staten Island, and adjudging that it should pay to the city, for the damages caused to it for its unlawful acts, the sum of $338.73, besides the costs of the action. From the judgment entered upon the decision of the special term against it, the Independent Steamboat Company appealed to the general term, and the plaintiffs appealed from so much of the judgment as was adverse to them, and the general term affirmed the judgment. Then the plaintiffs and the Independent Steamboat Company both appealed to this court.

      Noah Davis, James McNamee and Adolph L. Pincoffs, for app’lts; James C. Carter and W. W. MacFarland, for resp’ts.

       Affirming 42 Hun, 549.

   Earl, J.

In the consideration of this case it is important first to determine what a ferry is. In a general sense, it is a highway over narrow waters. In 2 Washburn on Beal Property (3d ed.), 269, it is said: “Ferries-—that is, rights of carrying passengers across streams or bodies of water or arms of the sea, from one point to another, for a compensation paid by way of a toll—are by common law deemed to be franchises, and cannot in England be set up without the king’s license, and in this country without a grant of the legislature as representing the sovereign power, and do not belong to the riparian proprietors of the .soil.” A ferry franchise is property, an incorporeal hereditament, and as sacred as other property (Conway v. Tay lor's Executor, 1 Black, 603); and the right to a ferry does-not depend upon the right to or the property in the waters over which it passes, or in the soil under the water, or upon the shore at either end of the ferry. In re Fay, 15 Pick,., 243, 253. A ferry is a continuation of the highway from: one side of the water over which it passes to the other, and is for the transportation of passengers or of travelers, with their teams and vehicles, and such other property as they may carry or have with them. Broadnax v. Baker, 94 N. C., 675. In a strictly ferry business, property is always-transported only with the owner or custodian thereof; and ferry-men who do nothing but a ferry business, and have nothing but a ferry franchise, are bound to transport no other property; and, in the transportation of persons with their property, they are not under the obligations of a common carrier, but are bound only to due care and diligence. Wyckoff v. Queens County Ferry Co., 52 N. Y., 32. But they may combine, and usually do combine, with the ferry business the business of a common carrier, carrying freight and merchandise without the presence of the owner or custodian, like other carriers engaged in the transportation of such freight; and, as to such freight, they are under the duties and obligations of a common carrier. As ferry-men they are under a public duty to transport, with suitable care and diligence, all persons with or without their vehicles and other property; and as comInon carriers it is their duty to carry all freight and merchandise delivered to them.

No one has the right to set up a public ferry, and charge tolls for the transportation of persons and property, without the license of the sovereign; and at common law it is believed that one so doing was guilty of a crime, and he could be proceeded against by writ of quo warranto; and so by our Penal Code, it is enacted that “ a person who maintains a ferry for profit or hire upon any waters within this state, without authority of law, is punishable by a fine not exceeding twenty-five dollars for each time of crossing or running such ferry.” Section 416. And any person who invades the franchise of another by running a ferry is hable for any damage he causes such other person, and may be restrained by the judgment of a competent court. The owner of a ferry franchise is bound to exercise his franchise for the public convenience; and, if he fails to do so, his franchise may be forfeited by the sovereign for non-user, and at common law he could be indicted. If he fails to establish and maintain a ferry, he could not in a civil action restrain any other person from operating the ferry, or recover any but nominal damages for his so doing. No-court would restrain the operation of a ferry which was demanded by the public convenience, simply because the franchise belonged to another who neglected or refused to use it. So, also, if the owner of an exclusive ferry franchise does not establish sufficient accommodations for the public, he may be proceeded against by the sovereign, and compelled to discharge his public duties, or his franchise may be forfeited. ' It is, therefore, undisputed that if the plaintiffs have the ferry franchise which they claim, and the defendant the Independant Steamboat Company has established and was engaged in operating a ferry between New York and Staten Island, then this judgment was right, and ought to be affirmed.

Manhattan Island, afterwards the city of New York, is an island formed by the Hudson river on one side, and Spuyten Duyvel creek and the Harlem and East rivers on the other sides; and Staten Island is in the waters south of New York, the nearest point of which is about five miles from Manhattan Island. It is about fourteen miles in length, eight miles in width at its widest point, and contains about fifty square miles.

The first charter of the city of New York was granted by Governor Nicolls on the 12th of June, 1665, but it contained nothing on the subject of ferries. On the 27th of April, 1686, Thomas Dongan, lieutenant-governor of New York under King James II., gave to the city of New York what is known as the “Dongan Charter,” granting a ferry which had before been established, now known as Fulton Ferry,” from New York city to Long Island, defining the boundaries and jurisdiction of the city, and granting full power “to establish, appoint, order and direct the establishing, making and laying out, ordering, amending, and repairing of all streets, lanes, alleys, highways, watercourses, ferry and bridges in and throughout the said city of New York and Manhattan’s Island.”

On the 23d of January, 1708, Cornehus Seberingh, of Nassau, now Long Island, presented to Viscount Canbury, ■governor of the provinces of New York and New Jersey, a petition, indorsed by many citizens, for letters patent for another ferry between the city and Nassau Island to the south of Fulton ferry.

On the 5th of February, 1708, the mayor, aldermen and commonalty of the city of New York presented their petition to Governor Canbury protesting against the grant of any ferry as prayed for by Seberingh, on the ground that the ferry between the city and Nassau Island had been theretofore granted to them by the crown and was now their property, and that to grant the petition of Seberingh would destroy their ancient ferry, and remove the chief income and support of the corporation. This petition led to the refusal of Seberingh’s request, and a petition of the city, presented April 8, 1708, effected the granting of what is known as the “Canbury Charter,” dated April 19, 1708. That charter was asked for and granted upon. the theory previously expressed in a petition by the mayor, aldermen and commonalty to Governor Canbury in 1702, that the Dongan charter gave only one ferry which extended beyond the limits and jurisdiction of the city, viz., the one now called “Fulton Ferry;” and the Canbury charter therefore extended that grant so as to include the land under water to high-water mark on the Nassau Island side as far south as Red Hook, and the right to establish other ferries be tween the shores of Manhattan and Nassau Islands as far south as that point.

On the 6th of Novemoer, 1712, the petition of John Dove and John Bellue, of Richmond county, which embraced Staten Island, to Robert Hunter, governor of the provinces of New York and New Jersey, praying for a license to the end that they might not be molested in operating their ferry from Sand Bay, bn the easternmost part of Richmond county, to New York city, Long Island, and other adjacent places, was read in the governor’s cbuncil. It is apparent that the ferry was already in operation.

On April 2, 1713, Governor Hunter directed the preparation of letters patent to the petitioners for a ferry as prayed for, between Staten Island and New York city, and Staten Island and Long Island, for a term of twenty years; and on that day such letters patent, with the right to receive ferriage fees, were accordingly granted to Dove and Bellue.

In 1730 the mayor, aldermen and commonalty of the city of New York petitioned John Montgomerie, governor of the provinces of New York and New Jersey, for a new charter confirming and adding to their rights and privileges. In their petition they represented that the city “had grown large and populous, and had a fair prospect of a numerous accession of inhabitants;” and, among other things, they prayed that “the corporation aforesaid may have the sole power and authority of appointing ferries around this island, with the profits, benefits and advantages arising therefrom, with such fees as shall be regulated by act of assembly.” Thereafter the governor’s council agreed that the petition as presented should be granted, with some modifications. The petition as to the ferries was agreed to, except that the fees of ferriage should be appointed by governor and council, or by act of assembly. Thereupon Governor Montgomerie directed his majesty’s attorney-general for the province of New York to prepare a patent for a charter to the city pursuant to the petition, and the report of the council thereon made, and allowed and approved by the governor.

Thereafter, in the same year, the letters patent called the “ Montgomerie Charter,” were executed under the great seal of the province of New York, and delivered to the city of New York. That charter, among other things, contained in section 15 the following provision: And we do further, for us, our heirs and successors, give, grant, and confirm unto the mayor, aldermen and commonalty of the said city of New York, and their successors forever, that the common council of the said city for the time being, or the major part of them (but no other person or persons whomsoever without the consent, grant or license of the said common council of the said city for the time being, or the major part of them), from time to time, and at all times hereafter, shall and may have the sole, full and whole power and authority of settling, appointing, establishing, ordering, and directing, and shall and may settle, appoint, establish, order, and direct, such and so many ferries around Manhattan’s island, alias New York island, for the carrying and transporting people, horses, cattle, goods, and chattels from the said island of Manhattan’s to Nassau island, and from thence back to Manhattan’s; and also from the said Island Manhattan’s to any of the opposite shores all around the same island, in such and so many places as the said common council, or the major part of them, shall think fit, who have hereby likewise full power to let, sell, or otherwise dispose of, all or any of such ferries to any person or persons whomsoever; and the rents, issues, profits, ferriages, fees, and other advantages arising and accruing from all and every such ferries, we do hereby fully and freely, for us, our heirs and successors, give and grant unto the mayor, aldermen, and commonalty of the city of New York, aforesaid, and their successors, forever, to have, take, hold, and enjoy the same to their own use, without being accountable to us, our heirs or successors, for the same, or any part thereof.”

The sovereign was competent to grant, and the city m receive, the ferry franchise. Such a franchise is property, and the sovereign power is just as able to make an unrevocable grant of it as of any other property. If it can grant a ferry franchise for a term of years, it can do so forever. By so doing it does not part with any political or governmental function. It still may regulate the conduct of the ferry for the public good, and control the tolls to be charged; and it can resume the proprietary right in the franchise only by exercising the right of eminent domain, or by forfeiture enforced through regular judicial proceedings. By this grant the city did not merely receive the political right to establish and regulate ferries, but it received the property in the ferry franchises as it received the other property granted to it by its various charters; and we do not find any evidence in the record that what it so received it has ever lost or been deprived of.

The principal point to be determined in this case is the meaning of the words contained in the fifteenth section, “ the opposite shore all around the same island;” the contention of the defendants being that the shores of Staten Island are not opposite shores within the meaning of the grant. At the date of the Montgomerie charter, Staten Island contained about 1,300 inhabitants, and the city of New York about 8,000. New York was then a growing and enterprising city, with a brilliant future before it, and there was no other organized community of any considerable importance in its vicinity. It was an island to be reached only by crossing the waters which surrounded it. The ferry which it already owned to Long Island yielded a large share of the revenue needed for the expenses of the city government. There had been other applications by individuals for ferry franchises which might and probably would interfere with the revenues which the city was then receiving, and which might divert revenues which were needed by the city, or might come to it, for its municipal expenses, if it owned and could control all the ferry franchises around the city.. There was just as much reason for bestowing upon the city all the ferry franchises around it as the ferry franchises to Long Island. There was no reason whatever, while conferring upon it all the other ferry franchises, for excepting those between it and Staten Island. A ferry was already in existence between it and that island, and hence the ferry franchises between it and that island could not have escaped the attention of those who asked for and who made the grant. In its petition the corporation prayed for the exclusive ferry franchises “around the island.” The minutes of the governor’s council show that the language of the petition was carefully scrutinized, and they recommend that the exclusive ferry franchises “around the island,” without any limitation or qualification, should be granted. The governor approved of the action of his counsel, and ordered the attorney general to prepare a grant in pursuance thereof. There is no indication whatever that he intended to make any change in what the council had thus agreed to and recommended; and the inference is that the attorney general, having no independent authority of his own to vary or limit the terms of the proposed grant, meant to embody in the grant or charter what the governor and council had agreed to. He was ordered to prepare a charter giving to the city the exclusive ferry franchises all “around the island,” and we must suppose he intended to obey that order, and that the language which he used was intended to embrace the ferry franchises all around the city. The language used indicates a plain intention to grant such ferry franchises, and the words “ opposite shores ” may have been inserted because, under the Dongan charter, the city had the right “to establish ferries and bridges in and throughout the said city of New York and Manhattan’s Island;” and the words “opposite shores ’’-may have been inserted to distinguish the ferries granted under the Montgomerie charter from those previously granted under the Dongan charter.

The language as to the ferries in the Dongan charter was not without meaning, as there was at that time upon Manhattan Island a body of water two miles in circumference, and fifty feet deep, having its outlet in the Hudson river, covering land where the commerce of a continent now ebbs and flows. But ferries, in a broad and general sense, always run across narrow waters between opposite shores. A highway comes to the water on one side, and crosses by a ferry to the other side, which, according to the common and ordinary use of language, may be called the opposite side. Thus, from whatever point a ferry could be operated to or from the city, it would be from one side of the water to the opposite shore on the other side. The persons who were concerned with this grant of ferry franchises did not intend to limit the right of the city to ferries from some point in the city to a point diametrically opposite. They were concerned with a grant for all time, and the plain purpose was to secure to the city all the ferry franchises to and from it.

Our construction of the fifteenth section of the charter as to ferries is made still clearer by a reference to the language of section 37. That is the section in which property rights are expressly granted to the city. It grants the city hall and jail, "market-houses, the great dock, crane-wharf, sewer, powder-houses, “and the ferry and ferries on both sides of the East river, and all the ferries now and hereafter to be established all around the island of Manhattan, and the management and rule of and all fees, ferriage and perquisites to the same, or any part thereof, belonging or to belong; and also the ferry-house on Nassau island, with the barns, stables, pens, or pounds and lot of ground thereto belonging, and also all the grounds, soil, and land between high-water and low-water mark on the said island of Nassau, from the east side of the place called Wallaboute to the west side of Bed Hook; and also to make laws and rules for the governing and well ordering of all the ferries now erected or established, or hereafter to be erected or established, around the said island of Manhattan’s.” Whatever doubt there might be as to the meaning of section 15-read alone, is removed when its language is considered in connection with the language of section 37, in which there is no limitation of ferry franchises to opposite shores, but in which such franchises are granted all around the island. We are, therefore, of opinion that it is reasonably certain, taking into consideration the topographical situation of the city, all the circumstances attending the grant, the language used in the various documents, the two sections of the charter, and the purpose apparently sought to be accomplished, that the intention was that the city should have the exclusive ferry franchises all around the city, including-the ferry franchises between it and Staten Island.

We do not fall to recognize the rule of the common law' which requires that all gratuitous grants by the sovereign of exclusive privileges and franchises should be strictly construed, and that any ambiguity in such grants must operate against the grantee, and in favor of the sovereign or the public. Langdon v. Mayor, 93 N. Y,, 129; Mayor v. Broadway, etc., Railway Co., 97 id., 275. But this-common-law rule in its strictness is not fully applicable to the grant of a ferry franchise, because that is never with-) out consideration; for it imposes upon the grantee the obligation to maintain a ferry with suitable accommodations for the convenience of the public (Hussey v. Field, Gale, 165; Letton v. Goodden, 14 Law T. [N. S.], 298); and for the further reason that the charter itself enjoins that it* shall in all things “be construed, -taken, and expounded most benignly and in favor of, and for the most and greatest advantage, profit, and benefit of, the said mayor, commonalty, and the city of _¡New York.” The question is,, what did the sovereign which owned these franchises, and had the right to grant them, mean by the language used?' And, so far as there is any ambiguity in that language, the injunction of the sovereign is that it shall be construed most benignly and favorably to the city.

But, while there is scarcely a doubt as to the meaning of the language used, yet that meaning is not so absolutely certain that there is not room for construction. The defendants, therefore, claim that to ascertain the meaning of the language, and the extent and operation of the grant, resort may be had to the practical interpretation given to the grant by the subsequent acts and conduct of the parties in reference thereto. People v. Mauran, 5 Denio, 389; Goodyear v. Cary, 4 Blatchf., 271; Smith v. People, 47 N. Y., 339; Easton v. Pickersgill, 55 id., 315; Knapp v. Warner, 57 id., 668; Power v. Village of Athens, 99 id., 601; Duke of Beaufort v. Mayor, etc., of Swansea, 3 Exch., 413; Hastings v. Ivall, L. R. 19 Eq., 578; Canazos v. Trevino, 6 Wall., 785; Drummond v. Attorney General, 2 H. L. Cas., 837; Mayor v. Hart, 95 N. Y., 451. If the practical construction of the charter by the parties interested, as evidenced by their acts, as to the ferry franchises granted thereby, had been uniform, it would have been entitled to great, if not controlling, weight; but if that construction has not been uniform, and if the acts of the parties interested indicate conflicting views, and speak an uncertain language, and thus simply raise doubts, then they furnish no aid whatever, and throw no light upon our researches into the meaning of the provisions of the charter.

It is to be noticed, in the first place, that no one ever expressly disputed the exclusive right of the city to these ferry franchises prior to 1878, when the defendant Starin first disputed it. The fact that the city at any time asserted its exclusive right to these ferry franchises is of far greater significance than the fact that on one or many occasions it failed to assert or enforce its right. The city might on many occasions, from favoritism, corruption, or inattention on the part of its officers, or because the ferry franchises were not sufficiently valuable to receive attention, omit to assert and enforce its rights. But omission to assert its rights, or passive submission to the invasion thereof, can have but little bearing in the construction of this grant. When, however, the city from time to time asserted and exercised its right, claiming the exclusive franchise, such acts show beyond question how the city understood its rights under the charter. One or more ferries between New York and Staten Island were in operation at the date of the Montgomerie charter. On the 24th of November, 1847, one De Hart, of Staten Island, presented a petition, not to the city, but to the governor of the colony of New York, under the crown, stating that he had been 'actually engaged in conducting a ferry from Staten Island to New York, and that other residents of Staten Island had "threatened to set up other ferries, to the injury of his ferry, and praying his majesty’s letters patent to erect his ferry into a public ferry, and also a grant of certain vacant and unpatented land between high and low water mark. At that time, Chief Justice De Lancey, who is supposed to have been chiefly instrumental in procuring for the city the Montgomerie charter, and Edward Holland, the mayor of the city, were members of the governor’s council. A petition and caveat in opposition to the petition of De Hart by owners of property on Staten Island, and by persons who had been used to carry travelers from that island to the city, was presented to the governor.

On the seventh of December, 1748, one Solomon Comesj who had purchased De Hart’s farm and water front, and who had kept up the transportation business between that point and the city, renewed De Hart’s petition to the governor, asking, however, not only the ferry franchise, but also the land between high and low water mark for one mile on each side of his water front. The petitioner and-the parties opposed were heard by counsel on several different days before the governor’s council; and, after a full hearing, the council advised the governor to grant the petition, and on the 14th of August, 1749, his majesty’s letters patent for the ferry thus recommended were granted to Comes. They granted to him the soil between high and low water mark, as prayed for, and the exclusive franchise of a ferry between his land, and the land for one mile westward thereof, and the city, for twenty-one years, and from the expiration of said term until letters patent should be obtained for the establishing or keeping of a ferry or ferries within the mile or limits aforesaid.”

It is undoubtedly a very significant fact, of which no satisfactory explanation can be given, that this petition should have been presented to the governor, and not to the city, and that these letters patent should have been granted by the governor, representing the crown, and that the rights of the city to these franchises under the Montgomerie charter should thus have been entirely ignored. As the mayor of the city was a member of the governor’s council, this petition, and the action thereon, must have been fully known to the city, and yet no protest seems to have been made by the city against it. But the city, up to that time, had not yet established any ferry between New York and Staten island, and it may have been supposed that until the city chose to exercise its franchise the concurrent power in reference thereto remained in the crown. At that time the franchise could probably not be made a source of profit to the city, and it may have been supposed that it never could be made a source of revenue, and therefore it may be that the city did not deem it important to., intervene or protest. But one of the main features of the petition and the letters patent was the title to the land between high and low water mark. That was deemed evidently one of the essential incidents to the ferry franchise prayed for, and the city was powerless to grant that, and that may furnish the reason why the petition was presented to the governor instead of the city. But, whatever the reason was for the action of the governor and his council in granting these letters patent, it does not appear that in the proceedings resulting in the patent any one questioned or disputed the right of the city under the Montgomerie charter. It does not appear that any ferry was set up or run by Comes under his patent, nor what became of the ferry franchise thus granted to him; and it is not claimed that it is now in existence in the ownership of any one. It is difficult, at this late day, after the lapse of nearly 140 years, to determine precisely what significance the granting of these letters patent to Comes should have.

If there were nothing more, and particularly if the other acts of the sovereign power and the city were in harmony with this, the defendants would have much reason for the construction of the Montgomerie charter for which they contend. But five years and one-half after the granting of the letters patent to Comes, on January 16, 1755, at a meeting of the common council of the city of New York, presided over by the mayor, Edward Holland, who was a member of the governor’s council at the time of the granting of the letters patent to Comes, a committee was appointed “to inquire into the' properest method for the erecting and establishing of a ferry to and from this city to Staten Island and any other place.” On the seventh of March thereafter, at a meeting of the common council, the committee thus appointed unanimously reported “that it is their opinion the best and properest method to. let and to establish said ferry is to treat with those persons living on Staten Island who have.a grant from the crown to ferry from said island to this city, or any other persons who incline to form said ferry.” The report was read and approved by_ the common council, and the same persons were appointed “ a committee to treat with proper persons for the letting of the ferry to be erected and established to and from this city to Staten Island, or any other place, for a term of years not exceeding five, and make report thereof to this board with all convenient speed.” This action of the common council is very significant. It shows that the members thereof, including Mayor Holland, understood that the city possessed the right to farm and let the ferries between New York and Staten Island; and they clearly did not suppose that they were invading the prerogatives of their sovereign in assuming to establish and control such ferries. As the city did not own any landing-place on Staten Island, it was doubtless deemed best to treat with persons fiving there who liad landing-places, and who but a short time before had received the ferry grant from the crown. The intention evidently was to give any persons who were then operating the ferry the preference; but, if such persons refused to deal with the city, then the intention was to farm the ferry to any persons who were inclined to take it. Here was a very significant assertion on the part of the city of its ownership and right to control the ferry franchises between the city and Staten Island. The records-of the common council do not show any subsequent report-of the final committee appointed to treat for the letting of. the ferry, or that the action of the common council resulted in the establishing of any ferry. There is no evidence that any action was thereafter taken by the common council until March, 1785, when the ferries from the city to Staten Island were put up for sale at vendue, and sold for the term of three years for twenty pounds per year.

From 1823 to 1831 the city had a tenant who ran a ferry from the city to the north shore of Staten Island, eight years; from 1827 to the commencement of this action it-had tenants who had been running a ferry from the east-shore of Staten Island, fifty-seven years; and from 1877 to the commencement of this action it had tenants who ran a ferry which it established in 1875 to the north shore of Staten Island, seven years. It is undoubtedly true that from 1730 to 1875 unauthorized ferries were from time to time run between the city and Staten Island; but during most of the time the population of Staten Island was so-small, and the traffic and intercourse between it and Hew York so unimportant, that the city could not derive any revenue by assuming control of the ferries. The public convenience was served if ferries were maintained and operated by any one. During a large portion of the time the city received some revenue, which may have been deemed satisfactory, from the rental of slips and wharfs to-persons who were operating the ferries; but during all this time, with the single exception of the grant to Comes, the-sovereign authority never assumed to control or interfere with the ferry franchises between the city and Staten Island, and no one but the city assumed the right to establish ferries and let them. At all times after 1730, whenever the city saw fit to assume control over the ferries to Staten Island, or to establish them, or to create revenue by leasing them, it asserted its authority over them without any question or denial of its right from any quarter.

There is nothing, therefore, in the contemporaneous or subsequent treatment of these ferries by the city, or in the practical construction of the grant contained in the Montgomerie charter, as evidenced by the acts'of the city, or of the sovereign, which in any way limits the fair import of the language contained in the grant. The subsequent history of these ferries, to which we have referred, shows quite plainly that the city has at all times claimed the ferry franchises between it and Staten Island, but has not at all times seen fit to assert its claim. An appeal to such history, therefore, in no way sustains the contention of the defendants.

Our attention has been called to several acts of the legislature which are supposed to impugn the exclusive right of the city to the ferry franchises between it and Staten Island; and they are chapter 182 of the Laws of 1839, chapter 363 of the Laws of 1845 and chapter 257 of the Laws of 1848. These acts were all similar, and their simple purpose was to create corporations to operate ferries between the city and Staten Island. But they have no right to the corporations thus organized to interfere with the franchises of the city, or with the property of the littoral owners on Staten Island. Before the corporations thus formed could operate their ferries, they were just as much bound to acquire the right from the city, as owner of the ferry franchises, to operate the ferries, as they were bound to acquire property for landing-places at both ends of the ferry. It may be that the legislature did not have in mind the rights of the city when these acts were passed, else they would have expressly saved such rights, as they did in the acts, chapter 315 of the Laws of 1849, chapter 680 of the Laws of 1873, and chapter 193 of the Laws of 1884. But it cannot be asssumed that the legislature intended, by the acts of incorporation referred to, to unlawfully confiscate or interfere with the property rights of the city.

Our conclusion, therefore, is that the city had the exclusive ownership of the ferry franchises between it and Staten island, and the right to establish, control, and receive the revenues of all the ferries between the two places.

A further point is made on behalf of the defendants that the city had not lawfully established a ferry to Staten island, and that it had not executed a legal lease of any ferry to the Staten Island Rapid Transit Railroad Company. The resolution establishing the ferry and the lease are assailed upon various grounds which it is not important particularly to notice. It is sufficient that the city owned all the ferry franchises to Staten island, and that it was engaged in operating a ferry between it and several places on the shores of that island under a contract which gave it a share of the profits of the business. The defendants were wrong-doers, having no right whatever to operate a ferry between the same points on Staten island and the city, and they are not in a position to assail the resolution or the lease, or the arrangement between the city and the railroad company. If the resolution or lease is illegal or invalid,' the question of the validity of the one or the other may be raised by the lessor or the lessee, or possibly by the suit of a tax-payer, or the attorney-general, in the name of the people against the proper parties. But a mere wrong-doer, having no rights whatever, cannot appropriate the franchises of the city, because it has not, in the management of them, observed the provisions of its charter. It is sufficient, as against these defendants, that ferries were in fact established and operated, and thus that the duties of the city, as owner of the franchises to the public, were discharged. If the city had failed to establish, or cause to be operated, any ferry for the public accommodation from any of the places between which and the city of New York the Independent Steam-Boat Company was operating its ferry, we would have had a different question to deal with; but no complaint is made that the ferry service between Staten island and the city is not adequately performed, under the city, for the public convenience.

It cannot reasonably be questioned that the Independent Steam-Boat Company was operating a ferry between the city and Staten island. It was engaged, at regular times, with boats adapted to the purpose, in transporting, in consideration of tolls paid, travelers, with and without their personal property, over the waters between the city and that island. So far it was engaged in the ferry business, and its coasting license gave it no authority to invade the ferry franchises of the city. But it also carried on the business of a common carrier of freight between the city and the island; and that business it could do without any wrong to the city. The judgment, therefore, against the steam-boat company is too broad, as it restrains the company from transporting any property between the city and Staten island, whether such property be transported merely as freight, or with the owner or custodian who accompanies the same.

The judgment of the court below dismissing the com plaint as to all the defendants but the steamboat company, should not be disturbed. Those of the defendants who-merely chartered boats to the steamboat company to be used in its business did not violate the rights of the plaintiff, and were in no sense proper parties to the action. The other defendants, who were mere agents and servants of the steamboat company, were not necessary parties, because they could be restrained by any injunction issued against the principal and master. Pond v. Sibley, 7 Fed. Rep., 129; Davis v. Mayor of New York, 1 Duer, 451; High Inj., §§ 1435, 1438, 1440. While the agents and servants, in such a case, may be joined as defendants, they need not necessarily be joined; and, as the court below has not deemed their presence in this action as parties defendant necessary or important, we have no occasion to interfere with its determination in that respect.

In the very able and laborious briefs submitted to us, and in the arguments of the learned counsel, many views were expressed which we are not able to notice particularly without exceeding the reasonable Emits of a judicial opinion. We have given them careful attention, and think' we have written enough to justify the conclusion which we have reached.

The judgment of the general term should, upon the appeal of the Independent Steamboat Company, be modified as to the restraint imposed upon that company so as to restrain it only from maintaining and operating any ferry between the city and Staten Island; and, as so modified, the judgment should be affirmed, without cost» to either party upon that appeal. Upon the appeal of the plaintiffs from so much of the judgment as dismissed the-complaint, the judgment should be affirmed, with one bill of costs to the respondents.

All concur.


author: Danforth, J.

text:
    In the Matter of the Sale of Real Estate of John P. Dodge, deceased, and others, App’lts, v. Joseph T. Stevens, Resp’t.

      (Court of Appeals,

      Filed June 7, 1887.)

    1. Infant, sale of real estate of—Contingent remainder.
    John P. Dodge devised the premises in question to his widow, but in case she remarried, to his daughter Catharine in fee. The mother married in 1879. But in 1870 the interest of the daughter was sold through a special guardian to Julia A. Coulter, by order of the court. A purchase-money mortgage was taken by the guardian. In 1879, he foreclosed and bid in the property in his own name, but gave a receipt as special guardian. He again mortgaged the premises to Stevens to secure a debt' ue from the testator, but Catharine obtained a cancellation of the mortgage and a conveyance to her of the title. Stevens now claims that Catharine’s title stands upon her father’s will, as the sale to Coulter was without jurisdiction and void. Held, error, that appellants' interest as devisee was the subject of sale, and the title passed to Mrs. Coulter in 1870, that as more than three years elapsed after the granting of letters, before this application, in 1883, the premises conveyed were not liable to sale under them, Laws 1873, chapter 311. Andrews, J., dissenting.
    3. Same.
    It is of no consequence that subsequently the title again vested in the plaintiff. It was enough that it was at one time vested in a purchaser for value and in' good faith. It was at that time freed from liability for the testator's debts, and that liability did not again attach.
    3. Same—2R. S., 194, §170—“Seized.”
    3 Revised Statutes, p. 194, section 170, related to “the conveyance of lands by infants, and the sale and disposition of their estates,” and when it provided for an application by such a person to the court for the sale or disposition of “ his property,” the words “ seized of any real estate ” must be taken to have had the same meaning as similar words in other sections, and the word “seized” to be equivalent to “ owning.”
    Appeal from supreme court general term, third department.

      Petition for sale of real estate of JohnP. Dodge, deceased.

      Geo. W. Weiant, for app’lt; T. F. Bush, for resp’t.
   Danforth, J.

The proceedings which led to this appeal were commenced before the surrogate of Sullivan county on the fourth of December, 1882, and resulted in a decree (1) establishing the claim of Stevens as a creditor of the decedent John P. Dodge, by virtue of a bond executed by him to one Curtis, and through various mesne assignments transferred to the petitioner; and (2) directing a sale of certain real estate, called the “Dodge Farm,” for the purpose ■of paying the debt so established. Catharine E. Dodge, an infant, was a contestant. She claimed to be the owner of the farm, and also that the right of the petioner to maintain the proceeding was barred by the statute of limitations. Upon appeal to the supreme court, the decree of the surrogate was affirmed, and from the judgment there rendered she now appeals to this court. Both parties claim through John P. Dodge, and the questions presented are twofold: First, as to the character of the appellant’s interest in the land; second, whether the proceedings to subject it to sale are within the statute. John P. Dodge died leaving a will which in May, 1869, was admitted to probate, and letters testamentary issued to John A. Thompson as executor. The testator devised the premises now in question to his wife so long as she remained his widow, and in case she should not again marry he gave them to her in fee, but in ■case she remarried then he devised the same to his daughter Catherine, the appellant, in fee. It was held, in a former controversy between the parties who are now before us, that the mother took a fee in the farm determinable upon her remarriage, and the daughter a contingent fee, depending upon the remarriage of her mother; and, that event having happened in February, 1879, she then became, so far as the will was concerned, seized of an absolute estate in the farm. Dodge v. Stevens, 94 N. Y., 209. It then appeared, however,—and the same facts are now before us,— that in 1870, the daughter being an infant, her interest was gold through a special guardian, by order of the court, to one Julia A. Coulter, and in pursuance thereof a conveyance was made to the purchaser. At the same time the mother also conveyed her interest to the same person. The consideration for the two conveyances was $7,300, $5,000 of which was secured by a bond and mortgage running to the special guardian. In 1879 he foreclosed the mortgage, and on the sale bid in the premises in his own name for $5,00ti, but giving a receipt as special guardian for the purchase pionoy. He afterwards mortgaged the property to Stevens to secure a debt due him from the testator, and which it is to be inferred is the same debt for the enforcement of which these proceedings are instituted. Stevens undertook to foreclose that mortgage, and Catherine, in an action against him and Thompson, obtained a judgment for the cancellation of the mortgage, and a conveyance to her of the title acquired by Thompson on the foreclosure of the Coulter mortgage, declaring the premises to be her property. That action proceeded upon the ground that, in taking title to himself, Thompson was guilty of a violation of trust, and the purchase voidable at the election of the cestui que trust. Nothing more was decided. The sale to Coulter was not impeached, although claimed by the defendant Stevens to have been invalid. He reiterates the claim now, and in answer to the appellant’s contention,"that her title stands not alone upon her father’s will, but upon the foreclosure of the Coulter mortgage, asserts that the proceedings for the sale, in pursuance of which it was given, were without jurisdiction and void. We think this view should not prevail.

Expectant future estates, as defined in the statute, axpressly include all remainders, whether vested or contingent (1 Rev. Stat., art. 1, tit. 2, pt. 2, chap. 1, §§ 9-11, 13), and as such, are descendible, devisable and alienable in the same manner as estates in possession. Id., § 35; Lawrence v. Bayard, 7 Paige, 75; Miller v. Emans, 19 N. Y., 384; Moore v. Littel, 41 id., 66. Catherine was, however, an infant, and so incapable of conveying; and the question is, as the respondent insists, “not what may be aliened by the voluntary act of parties interested, but what may be sold through a statutory proceeding.” The statute then in force (2 Rev. Stat., 194, art. 7, tit. 2, pt. 3, chap. 1, § 170) provides that “any infant seized of any real estate, or entitled to any term for years in any lands, may, by his next friend or by his guardian, apply to the court for the sale or disposition of his property,” and that “any sale or conveyance made in good faith by the guardian, in pursuance of an order of the court, shall be valid and effectual as if made by such infant when of full age.” In behalf of the respondent, it is argued that, as the devise to Catherine was to take effect only on a future contingency—the remarriage of her mother—her interest or right is not within the statute. If that is so, the decision of the court below is correct, for the power of the court to order the sale of an infant’s estate is purely statutory. If it had no jurisdiction, then the sale to Coulter is of no importance, and the appellant’s title is that of devisee only. If it had jurisdiction, its exercise is not open to criticism, and the appellant’s title will stand under the sale to Coulter and by virtue of the act of 1873, infra. In re Jones (2 Barb. Ch., 22), it appeared that the father of certain infants devised his entire estate to his wife for life, remainder to his children. During the wife’s life they applied for a sale of the real estate, stating that they had no other property,, and that a sale was necessary for their support. The application was denied;, the chancellor saying: “ It was not the practice of the court to authorize the sale of a future interest in real estate belonging to infants except under very special circumstances.” No doubt was expressed as to the power to do so, but sufficient reasons were assigned against its exercise.

In Jenkins v. Fahey (11 Hun, 351), the will at the bottom of the controversy gave Cornelia, the testator’s daughter, an estate for life in lands whereof he died seized, remainder to her issue living at her death, with power, in default of issue, to appoint the fee by will. She married and had children. One of these, Ida, an infant, in pursuance of proceedings under the above statute, conveyed all her interest in the premises to one Bush. The supreme court held that under this statute a sale could be ordered only in those cases where the infant was in actual possession of the land, or entitled to the immediate possession thereof, and that, neither expectant estates nor estates in remainder could be sold; and as, at the time of her application for leave to-sell her real estate, Ida had neither the actual possession of the land, nor the legal right to its possession, her interest-'was not divested by the sale, and Bush got no title. Upon appeal the judgment was reversed (73 N. Y., 355), the court saying: “There is the same reason for subjecting the: estates of infants in remainder or reversion to the jurisdiction of the court, and authorizing a sale where the interest- or necessities of the infant require or make a sale expedient,, as in estates in actual possession, ” and held that a remainder-man was to be deemed seized in law of his estate. In that-case it also appeared that the interest of Ida was subject to the contingency that other children might be born to Cornelia, in which case her interest would be diminished to the extent of their shares. Taggart v. Murray, 53 N. Y., 233. So the question of her estate was as uncertain as that of the plaintiff in this case.

And although, in the case cited, the remainder was said to be vested, no stress was laid upon that circumstance, nor did the court consider what the law would be in case of' a mere contingent remainder. I think the statute permits no different construction in the two cases. The interest or right of the plaintiff was a “contingent future estate,” “a contingent remainder in fee, ” an estate ‘ ‘in expectancy;” but however, characterized, it was by the very language and classification of the statute an estate in land. 1 Rev. Stat., 722 It is expressly made “descendible.” 1 Rev. Stat., 735, § 35. The daughter Catherine, therefore, was, as to it, a proper stock of descent. Dying intestate, her heirs would take the remainder, to be distributed in the same manner as an estate in possession. The term “real estate,” as used in the statute, relating to the “title to real property by descent ” (1 Rev. Stat. c. 2, pt. 2, p. 751, § 27), is declared to include every estate, interest, and right, legal and equitable, inlands, etc., except such as are extinguished by the ■death of an intestate, seized or possessed thereof, or in any manner entitled thereto. The statute under which the proceedings in question were taken (2 Eev. Stat, 194, § 170, supra), relates to “the conveyance of lands by infants, and the sale and disposition of their estates,” and when it provides, in language before quoted, for an application by such a person to the court for the sale or disposition of “his property,” the words, “seized of any real estate ” must be taken to have the same meaning as similar words in the sections before cited, and the word “seized,” to be equivalent to the word “owning.” So, also, the “real estate,” or “property” over which, by these words,"the court is given jurisdiction, can have no limit that the definition supplied by the statutes {supra), does not require.

The appellant’s interest as devisee was, therefore, the subject of sale, and the title to the real estate in question passed to Mrs. Coulter on the 19th of April, 1870, by the conveyance executed under the order of the court. More than three years elapsed after the granting of letters of administration on the estate of the testator before the application at the bottom of these proceedings was made, and the premises so conveyed are, therefore, not liable to sale under them. Laws 1873, c. 211. It is of no consequence that subsequently the title again vested in the plaintiff. It is enough that it was at one time vested in a purchaser for value and in good faith. It was at that moment freed from liability for the testator’s debts, and that liability did not again attach.

The other question, that of the statute of limitations, is not without difficulty; but, in view of the conclusion already reached as to the other proposition, it requires no discussion.

The judgment of the supreme court and of the surrogate should be reversed, and the application denied.

All concur, except Andrews, J., dissenting.


author: Per Curiam.

text:
    Samuel C. Reed, Resp’t, v. Francis Trowbridge, App’lt.

      (Court of Appeals,

      Filed June 14, 1887.)

    Appeal to court op appeals—Amount in controversy—Code Civ. Pro., § 191.

      G. W. Porter, for Appl’t; Theo. F. Miller, for Resp’t.
   Per Curiam.

The amount in controversy is the sum of $1,465.47, which the jury allowed to the plaintiff. His right to recover that sum was strenuously disputed and resisted by the defendant. The jury gave him a verdict of only $200.47. But that balance was reached by applying, in diminution of the $1,465.47, the undisputed counter-claim of the defendant, amounting to the sum of $1,265. But for the allowance by the jury of the $1,465.47, the defendant would have had judgment for his counter-claim. The matter in controvery, therefore, under section 191 of the Code, is more than $500, and the case is appealable to this court. Motion denied, with $10 costs.

All concur/


author: Andrews, J.

text:
    Harrison R. Johnston, Resp’t, v. Thomas F. Donvan et al., App’lts.

      (Court of Appeals,

      Filed June 21, 1887.)

    1. Parties to foreclosure—Application to be made—Code Civ. Pro., §§ 452, 1671.
    It is no answer to an application to be made a party to an action of foreclosure, that the plaintiff was not in fault in bringing the action against the person having the record title, or that, if the action had proceeded to judgment, the petitioner would have been bound thereby.
    2. Same—Failure to record deed.
    The real owner of real property does not forfeit his right to be made a party to the action, and to defend his title in that character, because he has omitted to record his deed, provided his application is made in due time.
    Appeal from order of supreme court, general term, first department, affirming orders of special term denying motions of Silas J. and James V. Donvan, to be brought in as parties defendant in foreclosure proceedings.

      Geo. C. Holt, for app’lts; Hamilton Wallis, for resp’t.

       Reversing 6 N. Y. State Rep., 861.

   Andrews, J.

The petition of Silas J. Donvan and James V. Donvan to be made parties defendants was denied on the merits. We think it should have been granted. Section 452 of the Code of Civil Procedure declares that ‘•where a person'not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. ”

The action was for the foreclosure of a mortgage on real property, executed by Thomas F. Donvan, one of the defendants in the action, to whom the premises were conveyed by the mortgagee, March 31, 1880. Prior to the commencement of the action, and on the twentieth day of February, 1883, Thomas F. Donvan conveyed the mortgaged premises to the petitioner, James V. Donvan, by deed, subject to the mortgage, and containing a covenant of assumption by the grantee. The deed to James V. Donvan had not been recorded at the time of the commencement of the action, but he then held, and still holds, the legal title to the mortgaged premises. The facts presented by the petition made a case as to the petitioner, James V. Don-van, which was directly within section 452 of the Code/ He had an interest in the subject of the action, and his title to the land would or might be affected by the judgment which the plaintiff sought therein. The application was made before the time for answering had expired, and-no laches in making the application are imputable to the petitioner. It is no answer to the application that the plaintiff was not in fault in bringing the action against the person having the record title, or that, if the action had proceeded to judgment, the petitioner would have been bound thereby. Code, § 1671. This is not the test of the right of the real party in interest to be made a party to the litigation upon his application under section 452. He is not compelled to commit his defense to the hands of a stranger to the title, and the real owner of real property does not forfeit his right to be made a party to the action, and to defend his title in that character, because he has omitted to record his deed, provided his application is made in due time. It appears from the petition that the original conveyance to Thomas F. Donvan was taken by him in trust for his brothers James V. Donvan and Silas J. Don-van, the petitioners, and that the subsequent conveyance by Thomas F. Donvan to James V. Donvan was taken by the latter in trust for himself and his brother Silas, and that the land was originally purchased by them as partners, and the title taken in the name of the defendant Thomas for their joint benefit. It is claimed that no valid trust was shown either in Thomas, the original grantee, or in,James V., and also that the petitioners are not in a position to defend against the mortgage. These are questions which may be litigated on the trial. It is not proper, on a motion of this kind, to pass upon the merits of the controversy.

We think the courts erred in denying the motion, and the orders of the special and general terms should therefore be reversed, and an order entered granting the application of the appellants, with costs.

All concur.


author: Rapallo, J

text:
    The People of the State of New York ex rel. New York, Ohio and Western Railroad Company, et al., Resp’t., v. Alfred C. Chapin, Comptroller, et al., Assessors, Appl’ts.

      (Court of Appeals,

      Filed June 21, 1887.)

    1. Railroad commissioner—Assessment for support of—"Main track"—Laws 1882, chap. 853, § 18.
    Laws 1882, chapter 353, section 18, provides that the 'expenses of railroad commissioners shall be borne by the several railroad companies according to their means, to be assessed * * one-half in proportion to its net income, and one-half in proportion to the length of the main track or tracks on road. Held, that this means the distance between two points i. e., the length of the road.
    Appeal from supreme court, general term, third department.

      Denis O’Brien, attorney-general, for Chapin and others, appl’ts; John B. Kerr, for resp’t.

       Reversing 42 Hun, 239 ; 3 N. Y. State Rep., 728.

   Rapallo, J

We do not deem it necessary to discuss the point raised by the appellants, that their determination complained of was not reviewable on certiorari, because we are satisfied that they correctly construed the statute by virtue of which the apportionment of expenses sought to be reviewed was made. Laws 1882, chap. 353, § 13. That section provides that the salaries and expenses of the board of railroad commissioners shall be borne by the several railroad companies according to their means, to be apportioned by the comptroller and state assessors, who shall assess upon each of said corporations “its just proportion of such expenses, one-half in proportion to its net income for the year next preceding that in which the assessment is made, and one-half in proportion to the length of the main track or tracks on road.” The relators contend that where, between two terminal points, there are laid two or more parallel tracks, all of them are main tracks, and that the assessment is to be made, not according to the length of those tracks,—that is, the distance between the two terminal points,—but according to the aggregate of the lengths of all the rails laid on all the tracks. The appellants determined that the “length of the main track or tracks” meant the distance between two points, i. e., the length of the road, and in this we think they were right. Where several tracks are laid between the same points, and parallel with each other, the length of all must be the same, and length is the quality according to which the apportionment is required to be made, not the quantity or number of miles of rail laid.

It is argued that the use of the terms “main track or tracks ” indicates a different intent, and that, if it had been intended that only a single track should be measured, the term “main track” would have been used. We do not think this argument by any means conclusive. Supposing that the statute had exclusive reference to railroads which were operated only between two points, but between those two points some of them had numerous parallel tracks, there would be more force in the argument; yet it would not be conclusive, for, if all those tracks are to be considered as main tracks, it would only be descriptive of the road to speak of the length of its main tracks, and would not indicate that all the lengths of those parallel tracks were intended to be aggregated. But when it is considered that, although the statute embraced some roads which had only one line, it also embraced other roads which were operated between several different terminal points, in different directions, and that each line had a main track, it is obvious that, if all of these main tracks were to be included, accuracy of expression required that the terms “length of main track or tracks” should be employed, and their use indicates no intention that anything but the length of each road, including its several branches and auxiliary lines, if any, should be considered.

The judgment of the supreme court should be reversed, and the proceedings of the appellants affirmed, with costs against the relators in both courts.

All concur.


author: Finch, J.

text:
      In re First Presbyterian Church of Buffalo

      (Court of Appeals,

      Filed June 21, 1887.)

    1. Religious Corporations— Sale op church.
    Where the deed of property to a church was absolute and without condition or reservation, there is no trust imposed upon it thereby which will prevent a majority of those constituting the corporation from obtaining an order for a sale and directing that the proceeds be applied to the puruose of providing another place of worship.
    2. Same—Consent of presbytery.
    Where the presbytery declined, on request of the minority, to interfere, but gave its consent to the sale, provided a majority of the congregation should so decide in public meeting assembled, which they did, and petitioned the court for the sale, Held, that in granting the order no rule or usage of the Presbyterian denomination was violated. As to whether the presbytery had any jurisdiction, qumre.

    -3. Same—Lack op proper registry.
    Full notice of the meeting was given, and a chance given to every one entitled to vote. Held, that in such a case the mo.e and manner of making the registry was of very little importance.

      4. Same.
    This court has no concern with the merits of such a controversy, and will not decide whether the sale is wise or prudent.
    Appeal from supreme court, general term, fifth department.

      J. M. Humphrey, for app’lt; Spencer Clinton, forresp’t.
   Finch, J.

Upon the petition of a majority of those who constitute the religious corporation known and organized as the “First Presbyterian Church of the Town of Buffalo, ” the supreme court has made an order consenting to a sale of its real estate, and directing the proceeds to be applied to the purpose of providing such other place of worship as the society shall direct. On the appeal from this order, four different reasons are submitted as furnishing just cause for a reversal

It is first claimed that the property cannot be sold, and a good title to_ it cannot be given, by reason of a trust imposed upon it. The deed to the corporation is absolute, and without condition or reservation. It created no trust beyond that general duty which the law puts upon a corporation of using its property for the purposes contemplated in its creation. That sort of trust is not one which fastens upon the land and inheres in the title, going with it where it passes or restraining alienation, but founded solely upon' the corporate character of the grantee, and so justifying the control which the statute gives to the courts. The title of the church is an absolute fee, which it can transmit to a vendee with the judicial consent and approval. When that occurs, the proceeds take the place of the land, and become the corporate property, which the court, by a suitable direction, devotes to the proper uses and purposes which the corporation was framed to subserve, ana to accomplish which its property was bestowed. It is in no respect diverted from the religious corporation, or even from its denominational uses, and, so far as there is an element of trust, a sale is consistent with and not destructive of it.

It is next said that the acts of 1875 and 1876 have so far changed the then existing law as to prevent a transfer of the property except in accordance with the rules and usages, of the denomination, and that those rules and usages require the precedent approval of the presbytery. Before those amendments were made, it had been settled that a religious corporation held its temporalities wholly free from the domination of any ecclesiastical authority, and by a tenure so independent that it could change its creed and denominational character without losing its hold upon its property. Doubtless, the acts of 1875 and 1876 were intended to restrain in some degree that sort of diversion of church property from one set to another, for the provision is that the trustees shall hold ánd administer it according to the rules and usages of the denomination to which the church members of the corporation belong, and shall not divert it to the support of some other disconnected institution. It is not important to take the measure of this new legislation, or even to challenge the construction which the general assembly has apparently put upon one of its own canons, for no authority in the church has ever held or pretended that a society could not sell its land with the precedent consent of the presbytery, The interference of that, body was sought by the minority of the society in the present case. The majority declined to appear or to recognize the authority invoked.

The presbytery determined that it “ was thus left to makeup a deliverance by such light as it had,” and decided two things: First, “that it is not certain that the sale and. removal of the church would necessarily be attended with disastrous results if a large majority of the congregation should vote in favor of removal,” and the presbytery “ cannot, therefore, interfere to prevent a sale of the property * * * but it would advise the majority to proceed with caution and tenderness;” and, second, that an application to the court for leave to sell without a previous vote of a majority of the society in favor of such action is not in accordance with Presbyterian usage,” and that no further-steps should be taken “unless authorized by a vote of the congregation in public meeting assembled.”

Waiving, therefore, the interesting question whether the presbytery had jurisdiction at all, it is enough to say that it. gave its consent to proceeding with the sale, provided only that a majority of the congregation should so decide in public meeting assembled, and that the steps in that direction should be taken “with caution and tenderness.” The-majority took the advice, if they did not concede the jurisdiction. The pending application to the court was withdrawn. The trustees called a meeting of the congregation to consider and decide the question of a sale. Notice of that meeting was read from the pulpit for three successive Sundays prior thereto. At the meeting two of the elders presided. The vote was by ballot, and the qualification of the voters that provided by statute. Of these there were-137 entitled to vote. Eighty-five votes were cast, of which sixty-six were in favor of sale and nineteen opposed. Fifty-two members of the society entitled to vote did not do so; but twenty-four of those signed a paper of approval, produced with the petition to the court. It is upon that petition, presented after the vote, that the order here assailed. rests. It is entirely clear that in granting it no rule or usage of the Presbyterian denomination was violated; the presbytery itself having so determined.

But it is said, thirdly, that the vote was illegal for want of a proper register. There is no force in this objection, for a very obvious reason. Full and formal notice of the meeting and its purpose was given, as we have seen. Everyone entitled to a vote had opportunity to offer it, and the case shows that but one vote offered was refused, and there is not a particle of evidence that such vote should have been received, not a word of proof that any vote received should have been rejected. In such a case, the mode and manner of making the registry is of very little importance. It only becomes so when it excludes a lawful vote, or admits hn unlawful one. No such question is presented.

It is finally argued that the meditated sale is unwise and imprudent, and likely to. bring disaster upon the church. That opens the merits of the controversy, with which we can have no concern. The courts below have exercised their discretion upon the facts presented, and with their conclusion we must be content. Undoubtedly, much may be said for and against the wisdom of the proposed sale and removal. Removing an old church has something of the peril of transplanting an old tree. It may take kindly to the new soil, or the roots may be so torn as never to heal; but the risk is with the majority of the society, whose interests are immediately involved, and whose judgment fairly formed and ascertained should prevail. Since we ought not to decide upon the merits, we shall not obtrude our advice.

The order should be affirmed, with costs

All concur.