author: Boardman, J. :

text:
    DANIEL A. BULLARD, Appellant, v. THE SARATOGA VICTORY MANUFACTURING COMPANY, Respondent.

      Mill owners — rights of, as to detention of water.

    The defendant was the owner of a dam, and drew therefrom water to run his mill, and the plaintiff drew water from a dam situated on the same stream, below that of the defendant. The surplus waters from defendant’s dam was sufficient to furnish the supply needed for the plaintiff’s mill, except in times of drought, when defendant was obliged to shut the gates of his mill during the night to accumulate a supply for the next day, thereby cutting off the sup. ply from plaintiff’s mill during the time defendant’s reservoir was filling. Defendant’s mill was run only during the day, while that of plaintiff was run night and day. In an action brought to restrain the defendant from cutting off the flow of water during the night, the referee found that the detention was necessary, and for the sole purpose of enabling the defendant to propel its machinery during the day, and that such detention and use of the water was reasonable. Held, that the injury sustained by the plaintiff, by reason of such detention, was one for which the law afforded no remedy.
    The plaintiff was only entitled to the use of a limited quantity of water. Held, that it rested upon him to show that the quantity used by him was less than that to’which he was entitled.
    Appeal from a judgment in favor of the defendant, entered upon tbe trial of this action by the court without a jury.
    The action was brought to restrain the defendant from the use of certain appliances, by means of which it is enabled to maintain at its mill a uniform flow of the waters of Fish creek throughout the entire year, and for damages. The plaintiff runs a paper mill propelled by water from this creek, and the defendant owns and operates a cotton factory about one mile above him on the same creek. The plaintiff claimed that the defendant wrongfully and unreasonably detained the water of the creek at its mill, and sought to prevent and restrain it from so doing.

      E. Fitch Bulla/rd, for the appellant.

      Edgar L. Fxirsman, for the respondent.
   Boardman, J. :

In Clinton v. Myers (46 N. Y., 517, 618) the Court of Appeals adopts the rule as held by the Supreme Court of Massachusetts in Gould v. Boston Duck Company (13 Gray 442). Grover, J., states the doctrine of that case, thus: A party has a right to erect a dam across a stream upon his land, and such machinery as the stream, in its ordinary stages, is adequate to propel; and if the stream, in seasons of drought, becomes inadequate for that purpose, he has the right to detain the water for such reasonable time as may be necessary to raise the requisite head, and accumulate such a quantity as will enable him to use the water for the purpose of his machinery.” Farther on it is said: “ By so doing the party is not liable to an action by an owner below, whose machinery does not require for its operations all the water at an ordinary stage, but only such as naturally flows during seasons of drought, though to some extent injured by being deprived of the natural flow.”

' It is believed these principles are applicable to this case and are fatal to the plaintiff’s right of recovery. It is not controverted that defendant had the right to erect dams and to utilize the natural reef of rock as dams in the manner in which it has been doné. The machinery of defendant wras beyond doubt of just proportions to the size of the stream in its ordinary stages of water. For about nine months of the year the ordinary flow of water would 'be sufficient to carry defendant’s machinery for twenty-four hours in each day. During seasons of drought it was inadequate and the machinery could only be propelled during the day time by retaining the water in reservoirs during the night, for the next day’s use. This the defendant has done and has thus made an advantageous use of the water. The plaintiff, desiring to run his paper mill day and night, is, in seasons of drought, thus deprived of water for a short time, while defendant’s ponds are filling up. This is an injury for which there is no remedy, if the detention is necessary to the defendant’s reasonable use and enjoyment of its mill privilege above.The learned judge at Special Term has found that the detention was for the sole purpose of enabling the defendant to use the water to propel its machinery, and that the water has not been unreasonably detained or discharged, and the use by the defendant of such water has been, and is, reasonable. If these conclusions of facts are warranted, it is an end to plaintiff’s case. There is an abundance of evidence to sustain them. Indeed, I do not well see how it is possible to find otherwise.

The plaintiff, however, insists that the defendant should not close its gates at night entirely, since a part of the water might be allowed to flow through the gates and still enough be detained to fill defendants reservoirs before morning. I think the argument is more specious than sound. I know of no rule of law creating such an obligation on the xqxper ownei\ But the idea is quite impracticable. The power of saving just so much water as will suffice to fill the reservoirs, depends on the amount of water passing. That amount varies from day to day. The defendant has observed the law if he has not unreasonably detained the waters. ■ What form of instructions could the court give, founded on the partial opening of defendant’s gates ? How much should they be left open ? What kind of a sliding scale could be inserted into an injunction order that would be just to plaintiff and defendant and yet capable of observation? What evidence is there in the case to justify or establish any such direction ? No; the whole project is experimental, indefinite, uncertain and incapable of any practicable application. It would be of no service except to breed law suits. (13 Gray, 442.) I do not deem it necessary to say more on this point. The opinion of the learned judge on the trial is quite satisfactory and conclusive.

There is another suggestion having great force, apparently. The plaintiff by his deed is only entitled to a specific quantity of water. There is no evidence in the case that he has not at all times had as much water as by his deed he is entitled to. The defendant charges that the plaintiff uses a much greater amount than he has any legal right to; that such amount is necessary to run his machinery, and hence in times of drought he suffers for the want of such excessive quantity, while the ordinary leaking and flow from defendant’s reservoirs and dams, would give him all that he could legally claim. The decision contains no findings of fact upon this point, nor do I find in the evidence the necessary means for determining it. It would seem, however, quite clear that the plaintiff ought not to recover, if he receives and uses or can use all the water to which he is entitled by the terms of his conveyance. The plaintiff, to establish his cause of action, should prove the deficiency. He has not done so. (Gould v. Boston Duck Co., 13 Gray, 442; Tourtellot v. Phelps, 4 id., 370; Bigelow v. Battle, 15 Mass., 313; Hetrich v. Deachler, 6 Penn., 32.)

There are no exceptions on the admission or rejection of evidence that call for an examination. I think all such rulings were correct. But in equity cases courts rarely disturb a judgment by reason of the admission of improper evidence, or on account of the questions being objectionable as leading. In the present case the evidence objected to is inappreciable in its amount and in its effect. The same facts are proved elsewhere without objection, and indeed are substantially conceded throughout the trial.

We think tbe judgment is eminently right and proper, and should be affirmed, with costs.

Learned, P. J., and Sawyer, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Boardman, J.: Learned, P. J. :

license: Public Domain

text:
    ELIJAH B. SMITH and THE FIRST NATIONAL BANK OF ELMIRA, Appellants, v. JOHN T. RATHBUN and NEWTON P. FASSETT, Executors of SIMEON BENJAMIN, Deceased, and JOHN T. RATHBUN, Respondents.

      Judgment on demurrer — order refusing, not appealable — Amendments to pleadings —power of referee to allow — Duty as to retrn'n of pleading.

    An order of the Special Term denying a motion for judgment on the ground of the frivolousness of a demurrer, is not appealable to the General Term.

    A referee has the same power to allow amendments as the court upon the trial of an action.
    Such amendments maybe allowed either to meet an immaterial variance between the pleadings and the proof, or for any other purpose, provided it does not change substantially the cause of action or defense.
    When a party claims to be taken by surprise, or misled to his prejudice, by the amendment, proof of such facts must be furnished; without such proof the variance will not be deemed material.
    A referee is not obliged to wait until all the evidence is introduced before allowing an amendment to cure a variance, but may permit such amendment to be made at the commencement of the trial, so as to make the pleadings conform to the evidence which the party proposes to introduce.
    Where a referee allows -a plaintiff to amend his complaint by adding thereto allegations which do not substantially change the cause of action set forth therein, he cannot allow the defendant, who has theretofore answered, to interpose a demurrer thereto.
    Where a referee has allowed a defendant to serve a demurrer to a complaint so amended, the plaintiff is not confined to an appeal from the order of the referee, but may move at Special Term to have the demurrer stricken out.
    Rule 26 does not apply to such a case, and the plaintiff is not obliged to return the demurrer.
    Although the terms upon which an amendment is allowed rest in the discretion of the referee, yet if he impose terms which he has no authority to impose, it ceases to be a matter of discretion, and his mistake may be corrected.

      Appeal from an order denying a motion to set aside a demurrer, served during the trial of tire cause, as irregular and unauthorized, or to adjudge it to be frivolous.
    The action was commenced in 1869 by Elijah B. Smith, as sole plaintiff. The complaint alleged, among other things, “that in or about the month of November, 1863, a banking association and corporation, known as the First National Bank of Elmira, was organized and incorporated and commenced doing business in the city of Elmira, in pursuance,,of an act of congress passed February 25,1863, and had continued to do banking business at Elmira, aforesaid, ever since under said act, and the amendatory and subsequent acts of congress authorizing such banking; that the capital stock consisted of 1,000 shares of the nominal or par value of $100 each; that the plaintiff in this action, at the time of the organization of said bank, owned, and still owns, fifty of said shares; that from the time of the first organization of said bank until in October, 1867, Samuel B. Yan Campen was the president, one Simeon Benjamin was vice-president and the defendant John T. Bathbun was a director of said bank ; that until in or about the month of October, 1867, the business of said bank was profitable, the shares of stock greatly increased in value, and became and were of the market value of $150 each.
    And on his information and belief the plaintiff further says and charges, that in and prior to 1867 the said Yan Campen, in violation of his dirty as jiresident of said bank, and contrary to law, loaned from the funds of the said bank to divers individuals and to insolvent persons, without sufficient security, large sums of money, “ exceeding at times one-tenth of the capital of the bank, whereby the said bank sustainéd great losses; and that he, the said Yan Campen, borrowed, or took, from the funds of the bank for his own private use, and appropriated to his own use large sums, varying from $1,000 to $75,000 at a time; that he was insolvent at the time and unable to pay his debts; that he, the said Yan Campen, as such president, made untrue quarterly reports of the condition and resources of the bank, representing worthless securities, or securities of little value, transferred by himself to the bank, to be other and valuable securities, and so reporting the same ; and that the said Yan Campen, as such president, was guilty of other acts of misconduct, of all of which the plaintiff was ignorant, whereby, and by reason, of the acts before mentioned, the said banking association sustained great losses and the said shares of stock became, and were and now are, of little or no value.
    “And on his information and belief the plaintiff further says, that the said Simeon Benjamin and John T. Bathbun, while such officers of said bank, in and prior to 1867, were informed and knew of the doing of the said wrongful acts by the said Yan Campen, that he had thus violated, and was violating, his duty as such officer of the bank; that they negligently permitted and allowed him to do and aided, countenanced and assisted him in so doing and concealed the facts from the plaintiff and other stockholders, and allowed and permitted and assisted the said Yan Campen to so draw out, loan and use and waste the funds and property of said association, the said bank, and to remain and act as president thereof and thus defraud and injure the plaintiff, whereby the plaintiff has sustained damages to the amount of $6,888.44, with interest thereon from July 27, 1867, when dividends were last paid on said shares of stock.”
    The defendants Bathbun and the executors separately demurred to the complaint. The court at Special Term overruled the demurrer. From the order entered thereon the defendant appealed to the General Term, where that order was reversed with leave to plaintiff to amend by adding, or bringing in, the First National Bank as a party on payment of costs, which was done. The defendants then moved at General Term to change or modify the order by striking out the bank ás a party, which motion was denied.
    The amended complaint having been served the defendants answered it; and the cause being thus at issue on the defendants’ answer was, by consent, referred to the Hon. Sterling G. Hadley, as sole referee, to hear and determine the same.
    On the 20th of November, 1876, the cause was brought to trial before the referee. On the second day of the trial the plaintiffs asked to amend their complaint by adding after the words “ Simeon Benjamin was a vice-president ” the words “ and a director.”
    The defendants’ counsel objected, but the referee allowed the amendment. No amended complaint was made or served;.but the defendants’ counsel, then, before any further testimony was taken, in pursuance of an order of the referee, served upon the plaintiffs’ attorney a demurrer, by or for both defendants, to the whole complaint. Plaintiffs’ attorney insisted, at the time, that defendants had no right to serve the demurrer at that stage of the case, or because of that amendment, and gave notice that he should move to strike it out or set it aside.
    The referee, then, against the remonstrances of plaintiffs’ counsel, adjourned, or suspended, the trial of the cause to await such disposition as might be made of the demurrer.
    Before the expiration of twenty days the defendants’ counsel served, by mail, an amended demurrer. The plaintiffs’ attorney immediately gave notice that he declined to accept or receive it, or to recognize the right of the defendants’ attorneys to serve it; and on the papers in the case showing the above facts the plaintiffs’ counsel made a motion to strike out or set aside the demurrer as irregular or unauthorized, or in case the court should refuse to strike it out or set it aside, then that the demurrer be adjudged frivolous.
    The court denied the motion to strike out, and also refused to adjudge the demurrer frivolous.
    From that decision and every part of the order this appeal was brought.

      E. EL Berm, for the appellants.

      E. Bocwxbnan Smith, for the respondents.
   Boardman, J.:

The questions arising upon this appeal involve, first, the nature and effect of the amendment to the complaint and the power of the referee to allow it, and, second, the regularity and validity of the demurrer. The question as to the frivolousness of the demurrer cannot be considered here. That has been passed upon by the Special Term, and its decision is clearly not appealable. (Dabney v. Greeley, 12 Abb. [N. S.], 191.)

It is clear that the referee had power to allow the amendment in either of two cases: First, if it was to meet an immaterial variance between the pleadings and the proof (Code, §§ 169, 110); second, if it did not change substantially the cause of action. (Code, § 113.) To decide whether the amendment falls within these cases we must consider the nature of the complaint. The gist of the complaint is, that the defendants “ negligently permitted and allowed ” the president to do the wrongful and fraudulent acts set forth, “ and aided and countenanced and assisted him in so doing,” by reason whereof the plaintiffs were damaged in their property. It alleges, therefore, both negligence and fraud. Now we might consider both of these allegations as being, in effect, but one cause of action; and this seems to have been the view taken by the court in the decision of the former demurrer. (66 Barb., 402.) It is there said “ the acts set forth in the complaint are fraudulent acts.” And again, “ I am also inclined to hold, that when directors * * * knowingly and in violation of their duty commit fraud, * * * or knowingly allow it to be done by one or more of their associates or chosen officers, they become answerable mdivicfooally to stockholders or other beneficiaries of the fund, on the basis of fraud.” It is plain, I think, from this language, that while the com-t puts the responsibility on the basis of fraud, it means by fraudulent acts,” not merely acts fraudulent per se, but also, willful negligence, in permitting and allowing such acts. I do not think, therefore, that the decision will bear the construction put upon it by the defendants’ counsel, viz., that a part of the directors of a corporation may” be sued by the stockholders for fraud, but not for negligence. Whether the acts complained of were fraudulent or only willfully or knowingly negligent, the gist of the allegation is, that they were wrongful, tortious acts, based upon fraud, and for which the guilty person was responsible in damages. But suppose that these are separate causes of action; they were none the less alleged in the complaint before the amendment was made. The most that can be said is, that they were not properly separated; and that the cause of action for negligence was defectively and incompletely stated. It cannot be said that it was not stated at all. Now the amendment was made to remedy this defect, to complete and fill out the cause of action which the plaintiff intended and endeavored to allege, but did not allege in full. There was no new cause of action alleged nor any radical change made in the issue presented. It follows, therefore, that this amendment might be allowed, either as. an allegation which did not change substantially the cause of action, or as an amendment to meet a variance between the pleadings and the proofs that plaintiffs expected to introduce. The amended complaint could have been met on the trial by a corresponding amendment to tbe answer not introducing a new defense, thus effectually protecting defendants’ rights, and the trial could have proceeded. But if defendants wer’e taken by surprise or were misled to their prejudice, they had a remedy, viz., to make proper proof of that fact, and thereupon they would have been 'entitled to an adjournment and upon application to the court, to the privilege of answering or demurring. Such proof is indispensable. Without it no variance will be deemed material. (Catlin v. Gunter, 10 How., 315; S. C., 11 N. Y., 368.) No such proof was made in the present case.

But defendants claim that this was not a case of variance at all. They do not rest this claim upon the ground that the cause of action is unproved in its entire scope and meaning, so as to be deemed a failure of proof under section 111 of the Code, but upon the ground that no proof was made upon the trial that Mr. Benjamin was a director. Evidence, however, was repeatedly offered to show that Mr. Benjamin was a director, and it was excluded by the referee because the fact that he was a director was not alleged in the complaint. It was to meet this state of things that the amendment was made. The referee was not obliged to wait until all the evidence was in before allowing the amendment; he could make it also before the evidence began, so as to make the complaint conform to the proofs the plaintiffs proposed to introduce. Such an amendment was made in Therasson v. Petersen (22 How., 98), and the court, on appeal, held that it was proper.

If the foregoing views are correct, the defendants had no right to demur arising fi’om the nature or effect of the amendment. It introduced no new cause of action ; it did not change substantially the issue involved, and it did not surprise or mislead the defendants to their prejudice. This conclusion is supported by the case of Therasson v. Petersen (ante), In that case the answer;was amended on the trial to meet the proofs defendants expected to introduce. Plaintiffs made no proof of surprise or prejudice, but merely proposed to demur to the amended answer on the ground of insufficiency. Leave to demur was refused," and upon appeal, the General Term sustained the refusal.

But it is said that the amendment was “ in matter of substance,” and that under 2 Revised Statutes (Edm. ed., 442, § 2), the defendants were entitled to answer, and by implication, to demur. This provision of the Revised Statutes is, no doubt, still in force, but it must be construed in connection with the subsequent provisions of the Code. The cases cited by defendants’ counsel do not sustain their position. In Harriott v. Wells (9 Bos., 631) the judge at Special Term says: the right to answer amendments under the chancery system was absolute,” but speaking of the practice under the Code, he says: If the variance was immaterial no amendment was necessary. If made under section 110 of the Code no amendment was necessary or .proper. But if, under section 113, the amendment substantially changed the claim, the aiiiendments were necessary and could only he allowed (if) at all by the court ” (that is, at the Special Term), and then a right to answer must exist.” (Rage 633.) That case was tried before a referee, and the amendment allowed by him substantially changed the claim. The complaint was on a sealed contract and averred a strict performance of all the conditions necessary to establish a cause of action. The proof showed failure in the performance of a condition precedent, and plaintiff gave evidence to show a waiver by defendants of this condition. The referee allowed plaintiff to amend by alleging this waiver; that is, he allowed him to allege a new parol contract, thus changing substantially the issue. Defendants asked to amend by setting up a new defense to this new issue, viz., the statute of limitations, whereupon the referee referred the whole matter to the Special Term. It is plain that the referee erred in allowing the amendment. He would have erred still further if he had allowed the new defense. But the Special Term allowed the new defense, and the General Term affirmed its decision. With this decision we have no fault to find. The Special Term has the power to allow a new cause of action, or a new defense, but a referee or the court, on the trial, has not. (Ford v. Ford, 53 Barb., 525.) In the case of the Union Bank v. Mott (19 How., 267; S. C., 11 Abb., 42), also- cited, the amendment inti’oduced a new cause of action. It was allowed by the referee, but his order was set aside by the court at Special Term. The court then, on motion, allowed the amendment to he made, but in the absence of cause shown, did not allow the defendants to answer anew or to demur. Tbe General Term, however, on appeal, allowed them to answer. These are the principal cases cited by defendant’s counsel in this connection. Instead of supporting his position they bear distinctly against it. If we are to construe the provisions of the Revised Statutes in question in accordance with these and the other decisions-under the Code, I think an amendment “in matter of substance ” must be taken to mean where there is a material variance, or a new cause of action alleged, or a substantial change made in the claim, and that even then leave to answer will be given only on application.to the Special Term. In the case of a trial before a referee there are still other reasons why a demurrer should not be allowed. It does more than introduce a new,defense; it changes the issue from one of fact to one of'law, strikes out the answer, and, in effect, vacates the order of reference, for there is no issue of fact left for the referee to try.

A question is made in this case, whether the referee actually gave the defendants leave to demur, and a mass of affidavits is introduced upon either side. Defendants claim that he did, at the same time that he gave leave to amend the complaint. This the plaintiffs deny. I am satisfied, upon examination of these affidavits, and from the stenographer’s report, that the ireferee intended to give and, as matter of fact, did give leave to demur. In view, however, of the conclusion arrived at, it does not seem to me of much inqportance. If he did not, the demurrer is clearly unauthorized. If he did, the conclusion defendants seek to draw, that, therefore, the demurrer is neither unauthorized nor irregular, and must be sustained, does not follow; for he exceeded his authority so palpably that his order must be disregarded. The same considerations dispose of the view that leave to amend the complaint was given, only upon condition that defendants should have leave to demur, and that the terms upon which the amendment should he granted were discretionary with the referee and not subject to review. But the discretion of a court or referee is not purely arbitrai’y. It must be regulated by legal principles, and it can be exercised only within the limits prescribed. When it is said that a referee may impose terms in his discretion on allowing an amendment, it merely means that he may do so within his lawful powers. If he exceeds his authority and imposes terms he has no lawful power to impose, it ceases to be a matter of discretion, and his mistake may be corrected.

Have tbe plaintiffs mistaken their remedy? Defendants insist tbat they should have appealed from tbe order of tbe referee instead of moving to set aside tbe demurrer. There is no doubt tbat an appeal would be tbe most regular course to take, but it is not tbe only course. In Ford v. Ford (53 Barb., 525), it is held, tbat where an order is made by a referee which be has no authority to make, tbe aggrieved party is not restricted to an appeal for redress, but is entitled to a more expeditious and less expensive mode, viz., be may move, at Special Term, to set it aside. Tbe same reason given applies in the present case, and I see no good cause why the plaintiffs should not be allowed to move to strike out tbe demurrer, more especially as it is in effect tbe same as moving to set aside tbe order. It is asking tbat tbe order be disregarded. At least it does not seem to me to be so irregular as to justify us in bolding tbat tbe motion ought to have been denied on that account.

Tbe objection tbat plaintiffs ought to have returned tbe demurrer to defendants’ attorneys is not well taken. Rule 26, cited by counsel, has no application whatever. Tbat has reference to pleadings or other papers objected to either because they are not folioed or not legibly written, or because they are letter-press copies; and tbe provision is tbat they must be returned within twenty-four hours or tbe objection will be considered waived. Tbe case of Rogers v. Rathbun, (8 How., 466), also cited, held tbat an amended complaint which tbe defendant proposed to disregard ought to have been returned, or notice given to tbe plaintiff tbat defendant intended to disregard it as unauthorized. Now, in tbe present case, tbe plaintiffs gave notice on tbe trial tbat they considered tbe demurrer as unauthorized, and again, immediately upon tbe receipt of tbe amended demurrer, plaintiffs’ attorney wrote to defendants’ attorney tbat be should disregard it as. unauthorized. Besides, I think tbe plaintiffs bad a right to elect'whether they would return it and treat it as an absolute nullity, or move at Special Term to strike it out. (Fredericks v. Taylor, 52 N. Y., 596.)

It is not necessary to consider defendants’ preliminary objections to tbe affidavit of tbe referee. Tbe only question affected by it, viz., whether leave to demur was given by tbe referee, has been decided in defendants’ favor.

In any view of tbe ease I think tbe demurrer is irregular as to the defendant Rathbun. The oi’iginal complaint alleged that he was a director, and the amendment did not and could not affect the cause of action alleged against him. It affected only the executors of Benjamin. If the considerations hereinbefore stated are just, the demurrer was equally illegal and invalid as to the executors of Benjamin. The amendment allowed to the complaint was not of a character to change the cause of action. It was not a material variance. The referee had, therefore, the power to allow it. But it did not follow, nor was-it true, that the defendants, for that reason, had the right to answer or demur of course. The referee had not the power to grant the defendants that piúvilege, and no case was made by virtue of which they could apply to the court therefor.

We conclude, therefore, that the order of the Special Term should be reversed, with ten dollars costs and expenses of printing, and the demurrer to the complaint, as amended on the trial, should be stricken out as irregularly and improperly interposed, with ten dollars costs of the motion to plaintiffs.

Learned, P. J. :

Concurring with the views of my brother Boardman, I remark that the power of the referee to allow amendments is that possessed by the court “upon such trial.” This does not mean a change of the issue from one of fact to one of law. The referee should have amended the complaint as requested; should have amended the answer (if any amendment was rendered necessary by this mere insei’tion of the word “ director ”) and should have proceeded with the trial. There could have been no surprise on the defendants. They well knew'the fact that Benjamin was a director. Indeed their affidavits show that they had looked forward to the possibility of such an amendment.

The object of this freedom of amendment is to facilitate the trial of the facts, not to afford opportunities for delay.

Present — Learned, P. J., and Boardman, J.

Order reversed, with ten dollars costs and printing disbursements, and motion granted with ten dollars costs.


author: Learned, P. J.:

text:
    JAMES HORTON, Respondent, v. ELMON HOWE, Appellant.

      Subscription for 'making fain' grounds' — destruction of' grounds — right of action aacrruing to subscribes'.

    The plaintiff and others signed a paper -whereby they promised and agreed to pay to the defendant the sum set opposite their names, such subscription being for the purpose of defraying the expenses of grading, fencing, etc., a fair ground upon land belonging to defendant. The instrument provided that the subscribers should, when the net receipts of the grounds amounted to the sum subscribed by each, receive back in full the amount subscribed. Thereafter, the plaintiff paid fifty dollars to defendant, and received from him a receipt, entitling plaintiff to the privilege of driving upon the'track at all times, unless the amount so subscribed was repaid.
    Defendant subsequently ploughed up and planted trees on the track, and constructed another one at a different place on his farm. In an action by the plaintiff to recover the amount paid by him, held, that it was not necessary for all the subscribers to join in the action, but that each might maintain a separate action.
    That it was not necessary for the plaintiff to prove any special damage sustained by the breaking up of the track, but that he was entitled, in view of the fact that that sum was to be paid to him out of the net receipts of the grounds,- to recover the full amount of his subscription.
    Appeal from a judgment of the County Court of Otsego county in favor of the plaintiff, entered upon a verdict directed by the court. This action was brought by the plaintiff to recover the sum of fifty dollars, subscribed by him in pursuance of the following agreement:
    “ For value received, and in consideration of the covenants hereinafter mentioned, we, the subscribers, hereby promise and agree to pay unto Elmon. Howe the sums set opposite our respective names by the 1st day of July, a. d. 1867. Said subscription is for the purpose of raising funds to defray the expense of grading, fencing and of fixing all other necessary appurtenances for a fair ground to be located upon the farm of'Elmon Howe, in the town of Worcester, county of Otsego and State of New York, upon the farm now occupied and owned by said Elmon Howe.
    “• The express condition of this subscription is, that the persons hereby signing this subscription, and hereby donating to the said enterprise, shall, when the net receipts of the grounds amount to the sum subscribed by each, receive back in full the amount hereby given and subscribed by them, if requested; and further agree that said persons hereby signing this instrument are to receive back from said Elmon Iiowe at any time he, the said Elmon Howe, may wish to refund to each the sum so subscribed; and said track not to be used on Sunday and in damp and muddy weather, and at all other times when the subscribers wish.
    “Dated Worcester, May 4, 1867.”
    On August second he paid the fifty dollars and received the following receint .•
    “Worcester, August 2, 1867.
    “ This is to certify that James Horton has this day paid to Elmon Howe fifty dollars, which is the amount of his subscription to the pleasure grounds, to be situated upon the farm of Elmon Howe; which amount entitles him to the privilege of driving upon the track at all times, except Sundays and wet and muddy weather, unless the amount so subscribed is received back.
    « ELMON HOWE.”
    The track was located and used by the public in the summer of 1867 and down to 1872 and 1873, when the defendant planted trees across the track and ploughed up a portion of it, at the same time constructing a track upon another portion of his farm.
    In 1874 plaintiff demanded the return of his money, and upon defendant’s refusal to pay brought this action to recover the same.

      Samniel H. Grant and James A. lynes, for the appellant.

      Lamont <& Balter, for the respondent.
   Learned, P. J.:

It is insisted by the defendant that all the subscribers should have joined and should have brought an action in equity. But we see no reason for this. The claim of each was distinct against the defendant and there were no joint rights. By the receipt which the defendant gave, he agreed that the plaintiff should have a right to use the track. This language referred to the track then about to be constructed. When its situation was once fixed and it had been constructed, the defendant could not destroy it and prevent its use, even though he constructed another track somewhere else, without incurring a liability to the plaintiff.

It may be said that his liability was to be measured, not by the money paid by the plaintiff, but by the actual damages sustained by him through the disuse of the track. But we must notice that, in the subscription paper, there is an agreement that the money paid by the plaintiff shall be refunded to him, whenever the net receipts of the track are sufficient for that purpose. The defendant, by destroying the track, has prevented himself from receiving any thing for its use. He has therefore, by his own act, taken away the possibility for which the plaintiff contracted ; that of obtaining a return of his money from the net receipts. It cannot now be ascertained whether those receipts might not hereafter be sufficient to repay the plaintiff. It does not then rest with the defendant to say that his acts have not injured the plaintiff to the extent of the money paid. And we may notice also that the defendant reserved a privilege of repaying this money and therefore cutting off the plaintiff’s rights to the track.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and Osborn, J J.

Judgment affirmed, with costs.


text:
    THE TROY AND BOSTON RAILROAD COMPANY, Respondent, v. THE BOSTON, HOOSAC TUNNEL AND WESTERN RAILROAD COMPANY and WILLIAM L. BURT, Appellants.

      Temporary injunction — when refused.

    Some seventeen years since, the plaintiff, by a contract, became possessed of the rights and interests of the Albany and Vermont Railroad Company in its roadbed, which ran generally in the same direction, but at places two or three miles distant from plaintiff’s road. At that time the plaintiff took up the tracks from a considerable portion of this route and ceased to use it, the road-bed being in most cases enclosed and used by the adjoining owners. Recently the defendant having acquired the rights and titles of some of the adjacent owners in and to the said road, entered upon the same and commenced to grade and lay tracks thereon, intending to operate the road when completed.
    This action was brought by the plaintiff to restrain the defendant from so doing. Held, that it was not a proper case in which to grant a temporary injunction.
    Appeal from an order granting an injunction restraining tbe defendant from building upon or operating as a railroad, or from in any manner interfering with tbe former road, built by tbe Albany Northern Railroad, lying' between tbe Hudson river and Eagle Bridge, in tbe county of Rensselaer. Tbe plaintiff claimed title to tbe premises in question through a contract or lease made by it with tbe Albany and Yermont Railroad Company some seventeen years before tbe commencement of this action.

      James Gibson, for tbe appellants.

      EseJc Oowen, for tbe respondent.
   Learned, P. J.:

In tbe view which we take of this appeal it is not necessary to inquire very carefully wbat may be tbe rights of tbe respective parties on a final decision upon the merits.

This appeal is brought from an order granting an injunction pending the action. Such an injunction is not a matter of right, but of discretion, and should be granted with great caution. It by no means follows that, because it appears probable that the plaintiff will finally recover, therefore the court should restrain the defendant before the trial and decision of the case. The frequent granting of injunctions pending the action is the cause which has thrown so much discredit on this remedy.

In this present case the plaintiff claims, by virtue of a lease or contract, to own the road-bed and generally the rights which formerly belonged to the Albany and Yermont Railroad Company. The plaintiff became possessed of these rights about seventeen years ago. At that time it removed the rails from the road-bed for a considerable part of the route owned by the Albany and Yermont Railroad Company. That portion of the road the plaintiff has not in any way used from that time to the present. The owners of land along the road have generally inclosed the parts adjoining to their own property, as if the use had been abandoned for railroad purposes. This strip of land or road-bed is not generally adjacent to the road of the plaintiff. It lies, as stated on the argument, in places two or three miles distant therefrom. The plaintiff does not aver in the complaint that it is in possession of this apparently abandoned road-bed. But it alleges its intention at some future time if business requires to use this roadbed again.

After this long disuse of this piece of the road-bed and this actual resumption of it by the adjacent owners, the defendant has purchased from these owners, or some of them, their title thereto, whatever that may be, and is proceeding to construct a railroad thereon. It is the intention of the defendants to operate that road when completed. This will create a rivalry with the business of the plaintiff. The plaintiff has obtained an injunction forbidding the defendants from proceeding with this work, and the defendants appeal.

An injunction is sometimes granted to restrain trespassers, on the ground of preventing a multiplicity of suits. But as the plaintiff does not aver possession of the premises, it is not seen how trespass could be maintained, and this ground of the injunction seems insufficient.

So in some cases the owners of the property have, on a final decree, restrained the construction of a railroad in a street in front of their property. In such cases the owners have been in possession of the property, and the construction of the road has been held to be an invasion of rights which they possessed, as well as claimed. In those cases, too, the land which the plaintiffs held had not been taken for railroad purposes, although it was subject to the easement of ordinary travel.

But in the present case the plaintiff, who has been out of actual possession of this land for seventeen yéars, seeks to restrain an entry upon the land, made under conveyances from those who were last in actual possession. To justify such an injunction, pending the action, it should appear that the acts done, and to be done, by the defendants will work such injury to the plaintiff as cannot be compensated, or that they will prevent the final judgment in the action from being effectual. Such does not seem to be the case here. If the defendants are re-grading and laying down rails, these acts do not permanently injure the land. If the land belongs to the plaintiff, the affixing of rails and sleepers thereto will tend rather to increase its value, by making it more fit for the purpose for which it was originally laid out and jirejiared. These acts will put the road in good condition for that very use of it, which the plaintiff avers that it contemplates at some future day.

It may be said that the defendants, after putting this road in order, will proceed to operate it and therefore should be enjoined; but there is no need even in that view of an injunction pending the action. The only damage to the plaintiff would be from loss of business. That could be compensated in damages; sufficiently so, at least, as to all that can be done before a trial and judgment.

The defendants evidently go on with this work at their peril, in case they have no right to the land. They are improving property to which it may appear that they have no title; while if they have a right to the land the injunction operates as a great injury to them; much greater than any possible loss which can be. suffered by the plaintiff jaending the action.

, The railroad act provides for the right of a road to form connections with other roads. If then this road, when constructed, is a necessary link in the route of the defendants it would seem that they would have a right of connection over it; although it may be decided to belong to the plaintiff. The legislature did not intend that a railroad companymwning a certain line of road should block up all passage over it by refusing to connect with other roads. It . is unreasonable that tbe plaintiff should neither use this road-bed itself nor permit others to use it. Certainly they should not do this by an injunction pending the action, when the final judgment can redress all injuries which they may be shown to have suffered if they should establish the rights they assert.

Without, therefore, making any decision on the merits of the case as they may appear on the trial, we think that this is not a case where during the action the defendants should be enjoined.

The order appealed from should be reversed, with ten dollars costs and printing disbursements.

Present — Learned, P. J., Bockes and Osborn, J.L

Order reversed with ten dollars costs and printing disbursements; and motion for injunction denied, with ten dollars costs.


author: Per Ouriam:

text:
    CHARLES H. CLEARWATER, Respondent, v. NICHOLAS H. DECKER, Impleaded, etc., Appellant.

      Discontinuance — when it should not he allowed.

    After the evidence in a case has been agreed upon and submitted to the justice trying the same, and a motion to open the case and take further evidence has been denied by him, a discontinuance of the action should not be allowed.
    Appeal from an order discontinuing' this action on the application of the plaintiff. After this action had been commenced it was agreed to submit the same to the justice trying the case upon a statement of facts agreed upon by the parties. Subsequently an application was made by the plaintiff for leave to change and alter the form of the submission, which was denied.
    Thereafter the plaintiff applied, upon notice, to another justice for leave to discontinue the action, which was granted. From this order this appeal is taken.

      Samuel G. Courtney, for the appellant.

      Alfred C. Chapin, for the respondent.
   Per Ouriam:

The evidence had been agreed upon by stipulation and had been submitted to the judge who was trying the case. A motion was subsequently made before him, which was, in effect, a motion to open the case and take further or other evidence. This motion he denied. All the evidence in the action therefore was before the judge. Nothing remained except the argument of counsel. Under these circumstances we think that the plaintiff should not have been allowed to discontinue. The case was in possession of the court for trial. To permit a discontinuance at that time was to permit the plaintiff to -withdraw the case from one judge who had heard (or might have read) the evidence, and to bring on a new action before some tribunal thought to be more favorable.

¥e are referred by the plaintiff to the case of Cummins v. Bennett (8 Paige, 81). There had been no trial in the case; nor had a trial been commenced before the court.

We think the order should be reversed, with costs.

Present — -Learned, P. J., Bockes and Osborn, JJ\

Order reversed with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs.


author: LEARNED, P. J.: Bocees, J.: Osborn, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MATTHEW D. FREER, Respondent, v. THE CANAL APPRAISERS, Appellants.

      Oemal Appraisers — •refusal to malee return to canal bowd— mandamus.

    Upon an appeal by a claimant to the canal board from a decision of the Canal Appraisers, the latter refused to make a return to the appellate tribunal, on the grounds, first, that the appeal was not taken in time; and, second, that the relator had settled his claim and given a release in full therefor.

      Held, that both of these questions were to be considered and decided by the appellate tribunal and not by the Canal Appraisers, and that a momda/rrms should issue compelling the Appraisers to make the required return.
    Appeal from an order made at the Special Term, granting a writ of peremptory mandamus compelling the appellants to make a return to tbe canal board in tbe matter of tbe respondent’s appeal from a decision made by them.

      Par her de Countryman, for tbe appellants.

      N. A. Halbert, for tbe respondent.
   LEARNED, P. J.:

Tbe Canal Appraisers constitute a tribunal to decide on certain matters between the State and claimants. They passed upon a claim of tbe relator. He appealed from their decision to the canal board. On such appeal it is tbe duty of tbe appraisers to make a return to tbe canal board. They refuse to do this. Their reasons are two: First, that tbe appeal was not taken in time. Second, that tbe parties, that is, tbe people and tbe relator, have settled tbe claim.

Now it appears to us that these are questions properly to be decided by tbe appellate tribunal, viz., tbe canal board. It would be unreasonable if tbe inferior tribunal could deprive tbe superior tribunal of tbe right to review, by deciding that tbe appeal was not taken in time, or that tbe cause bad been settled. For instance: an appeal lies from this court to tbe Court of Appeals; would it be proper for a clerk of this court to refuse to make a return, after a notice of appeal bad been served, on tbe ground that it bad not been served in time, or that tbe parties bad settled ? Clearly not. Those would be matters for tbe Court of Appeals to decide in that case. They would have to pass upon their jurisdiction of tbe case. And so in this case, it is not for tbe Canal Appraisers or their clerk to decide that tbe right of appeal is gone. That must be decided by tbe canal board.

But it will be said that it is for this court to decide these questions on this motion. "We think not. Tbe question is, what ought tbe canal appraisers to have done? If they ought to have made tbe return for tbe reason that it did not be with them to decide tbe questions above mentioned, then we have nothing to do with those questions on this motion. We ought not on this motion to pass on questions which are to be decided by tbe canal board. Whether or not those questions may eventually come to us, after a decision by the canal board, we need not now inquire. The question now is, what, under the facts before them, was the duty of the Canal Appraisers ? They certainly had not the right to pass on the fact of the alleged settlement. It is true that a mandamus could not issue in a doubtful case. But what is in doubt here? Not the question whether the appeal is in time, nor whether the parties have settled. Those are matters with which we have nothing to do, because the canal appraisers had nothing to do with them. The only question is whether, when a notice of appeal had been served on the inferior tribunal, it ought to send the papers to the appellate tribunal, or ought itself to decide whether the appeal is well taken, and if it should decide in the negative ought to deprive the appellate tribunal of the opportunity of passing on the question.

Of course there might possibly be cases where the appeal was so utterly improper, or so clearly barred, that in an exercise of discretion we might refuse a manda/irms, leaving the party to his common law action. But we do not think that this is such a case. If an issue were raised and tried in this proceeding, as we think, the question would be, not whether the appeal was too late, or whether the claim was settled, but whether the canal appraisers were authorized to try those facts and to refuse a return if they found the facts against the relator.

."We do not see that any harm can be done if the Canal Appraisers make the return. The canal board, if they think that the appeal is taken too late, or that the claim is barred by settlement, can so decide. Whatever right of review of their decision is given by law, directly or indirectly, can then be had.

We think the order should be affirmed, with ten dollars costs and disbursements.

Bocees, J.:

I agree with my brother Osborn, that on the papers before us it is made to appear very clearly that the relator accepted the award made by the canal appraisers in full satisfaction of his claim ; and that he should be held to such acceptance as a finality. But, I think, with Mr. Justice Learned, that this question was not for the appraisers, and is not for us now on this appeal, but rests with the appellate tribunal to determine. It will not do for an inferior court or tribunal to undertake to decide upon the validity of an appeal taken from its judgment, by refusing to make return. The question of the regularity and validity of an appeal in a case where an appeal is authorized by law must, in reason and propriety, be determined by the appellate tribunal.

I must concur with Mr. Justice Learned, that it does not He with the Appraisers to say that the appeal was not brought in time, or that the relator had settled and accepted satisfaction of the subject-matter of this controversy, and therefore refuse to make return. Those questions are as I think for the appellate tribunal, when the record shall have been certified to it, by a .return to the appeal.

Osborn, J.:

I regret that I cannot concur with my older and more experienced brethren in the disposition that should be made of this case. I cannot escape the conviction that the court at Special Term erred in awarding a peremptory mcmdct/nms to the relator.

Aside from the point raised, that the appeal from the award of the Canal Appraisers to the canal board was not taken in time, which seems to be in some doubt, the papers show quite clearly, if not conclusively, that the relator accepted the amount found due him in full satisfaction of any and aU demands against the State. The receipts he gave purported to be receipts in full, and the fact appears that he was notified that a certificate could not be awarded or payment made, unless he (relator) accepted the same in full of his demand. This was one of the regulations of the State, and a very proper one too, that if the claimant received the amount awarded him he must give a receipt and release in full of all demands on which and for which the award to him was made. The number of claimants is of course very large. The amount demanded is also very large, and it could hardly be expected that in the majority of instances the claimants will be satisfied with the amount awarded them. If in such cases they may be permitted to receive the amount awarded, give receipts in fuH, and then bring and prosecute appeals in hope of obtaining greater amounts, the State is surely placed at a disadvantage that can only work injustice.

In this case it is true the relator denies that he agreed in terms to accept the award in full, but the preponderance of evidence is that he did, and he did give receipts purporting to be in full of all his claims and demands.

Under such circumstances I do not think a - peremptory mandamus should issue. To entitle a party to such a writ the facts upon which the same is asked must be reasonably clear and free from doubt.

For the reasons already given the order at Special Term should be reversed, with ten dollars costs and printing disbursments, but without prejudice to the rights of the relator to apply again to the Special Term for an alternative mandamus, if he shall be so advised.

Order affirmed, with costs.


text:
    ALEXANDER McMILLEN, Respondent, v. TIMOTHY C. CRONIN, Executor, etc., of HOLLIS BRUCE, Deceased, Appellant.

      Sight of wa/y — right of the owner of the easement to repa/i/r the way.

    Where one has a right of way over the lands of another, he may do whatever is suitable and proper to put the said way in good order, provided it be done without unnecessary inconvenience to the owner of the fee.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought to recover damages for an assault and battery. The defense interposed was that the plaintiff was trespassing upon defendant’s ground and refused to leave the premises.
    The locus i/n quo had been used as a private way from plaintiff’s premises, over defendant’s land, to the public highway, for more than sixty years, a gate having always been maintained near the highway and also at plaintiff’s line. It was claimed by defendant that plaintiff had removed his gate and thereby forfeited, the right to use the way. At the time of the assault the plaintiff was engaged in repairing the way.

      M. Fairchild, for the appellant.
    In this case the right of private way claimed by the plaintiff being established only by user, is governed entirely by the user; and as the way had never been worked, the plaintiff had no right to work it, and was wrongfully there for that purpose, plowing, turnpiking, ditching, etc. ("Washb. on Easements, 20.) The extent of the right acquired by twenty years’ user is conclusively governed by the user. (Corning v. Gould,, 16 Wend., 531, and cases cited in the opinion of Cowen, J.; 3 Kent, 420, note d, in 7th ed; id., 424, note 1, in 7th ed.) The owner of a right of private way, by prescription, has no right to cut ditches to repair. (Gwpers v. McKee, 1 Strob., 164; Washb. on Easements, 72.) Where a way is claimed by prescription the character and extent of it is fixed and determined by the user under which it is gained. The extent of a usage of a way is evidence only of a right commensurable with the use. (Washb. on Easements, 72.)

      K W. Russell, for the respondent.
   Learned, P. J.:

The defendant insists that as the plaintiff had removed certain gates, which had been at the ends of the way used over the defendant’s land, he had thereby lost the right of way. We see no connection between that act and his right of way. The plaintiff was not engaged in such removal, when the assault was committed.

The defendant also insists that, as it did not appear that the way had ever been repaired, the plaintiff had no right to repair it. It was not shown-affirmatively that no repairs had ever been made. But further it was established that the plaintiff had a right of way over the defendant’s land. This was proved by the use thereof for sixty years and the right was not denied. It would seem strange, if the plaintiff had such a right of way, that he might not put it into such condition as to be conveniently passable. If not, it might cease to be a way, by becoming utterly impassable.

If a right of way is given in a place where one cannot go without doing some work, it is lawful to make the way by digging and laying a foundation. (Big. 8, 1,. 10.) This rule of the civil law is one of its “luminous principles” on the subject of servitudes. We see no reason why it should not be the law now. There is no evideuce in this ease that the plaintiff was doing any thing that was not suitable and proper to put the way in good order, without unnecessary inconvenience to the owner of the fee.

In the case of Capers v. McKee (1 Strob., 164), cited by the defendant, the person entitled to the right of way was constructing a ditch at the side of the way, and such construction does not appear to have been necessary to the use of the way, although it may have been desirable. It would seem also to have been an inconvenience to the owner of the land. That case is not like the present.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and.Osborn, JJ.

Judgment affirmed, with costs.


author: BoakdMAN, J.: Sawyer, J.

text:
    WILLIAM B. THORPE, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Drawing-room ca/rs — liability of railroad company drawing cars under contract with ca/r company.

    The defendant entered into a dbntract with Webster Wagner, by which Wagner agreed to place upon defendant’s road certain drawing-room cars at his own cost and keep the interiors thereof in good order, Wagner’s conductors and porters thereon to be carried free of charge by the railroad company. The defendant’s conductors had a right to enter the cars for any purpose connected with the management of the train, and for the collection of fares, and to the assistance of Wagner’s conductors and porters in enforcing good order; but not otherwise to interfere with the business of such cars. In consideration of the railroad company hauling and making certain repairs to the cars, Wagner agreed to pay it twenty per cent of the gross receipts.
    In an action brought by the plaintiff against this defendant the railroad company, to recover for injuries sustained by reason of his alleged wrongful removal from the drawing-room car by the porter thereof, held, that the defendant was liable for any injuries so sustained by him.
    Appeal from a judgment entered on a verdict in favor of tbe plaintiff at tbe Cayuga Circuit.

      The plaintiff, on July 20,1871, entered defendant’s train at Syracuse. To the train was attached in addition to the ordinary cars a .Wagner drawing-room car, which latter was run upon defendant’s road under the provisions of the contract hereinafter set forth. Tbe drawing-room car was in charge of a porter employed by Wagner. The train was in charge of defendant’s conductor. The plaintiff passed through the ordinary cars, and finding no seats, entered the drawing-room car, having paid to defendant’s conductor the regular fare to Auburn. The porter of the drawing-room car demanded additional fare for riding in that car, which plaintiff declined to pay, at the same time refusing to leave the car, on the ground that there were no seats vacant in the other ears, but saying he would do so when there were seats to be had. The porter thereupon removed the plaintiff from the drawing-room car while the train was in motion. The evidence as to excessive force having been used and as to there having been vacant seats in the other cars was conflicting. The jury found for the plaintiff. A motion was subsequently made at Special Term for a new trial and was denied.
    The following is the contract under which the Wagner cars were run upon the defendant’s road:
    “Agreement made the first day of January, one thousand eight hundred and sixty-nine, between the New York Central Railroad Company, of the first part, and Webster Wagner, of the second part:
    “ For the purpose of the establishment and maintenance of a line of compartment or drawing-room cars upon the Ne,w York Central Railroad, and to secure to the public the advantage^ thereof and of all existing improvements in connection with the business of compartment or drawing-room cars, it has been agreed as follows, viz.:
    “1st. The said Wagner shall, at his own cost, place upon the said railroad as many compartment or drawing-room cars as the business of the company shall from time to time require, and shall, at his own cost, keep in thorough repair the furniture of the cars, and maintain the interior of said cars at all times in good and cleanly order. He shall also keep the exterior of the cars properly painted and varnished, the railroad company furnishing shop room and doing the painting and varnishing at cost. All other repairs are to be done by the railroad company at their expense, but in case any car shall be so deteriorated or damaged by age, derailment, collision or fire as to be unworthy of repair the railroad company shall not be obligated to repair the same.
    “The number of cars requisite for the accommodation of the traffic shall be determined by the superintendent of the railroad company, who shall also have at all times the power to decide whether any of such compartment or drawing-room cars shall be in other than good running order, and who shall also determine the location of such compartment or drawing-room ears in the trains.
    “ The conductors and porters in charge of the compartment or drawing-room cars shall be carried without charge; the railroad company not to be liable for injuries to the persons of such conductors and porters, the said Wagner undertaking to indemnify and save harmless the said railroad company from all liability to the employes of the compartment or drawing-room cars when in charge thereof or when traveling on any part of the road on the business appertaining to the compartment or drawing-room cars. The conductors of the railroad trains shall have the right at all times to enter such compartment or drawing-room cars for the purpose of collecting the fares of the passengers, or for any purpose connected with the management of the train, and the conductors and porters of the compartment and drawing-room cars shall at all times assist the conductors of the railroad trains in enforcing the good order and discipline of the road. The conductor of the train .shall not be at liberty to interfere in any way with the matter of the distribution of compartment or drawing rooms, and shall not interfere in any manner with the business of the compartment or drawing-room cars except for the purpose of collecting the fares or tickets of the passengers, and in aid of the good order and discipline of the road. The said Wagner shall give his personal attention to the management of the business, and in case of his death his personal representatives or the owners of the compartment or drawing-room cars shall at their own expense employ some suitable person, acceptable to the raiboad company, to take the general charge of the said compartment or drawing-room cars and the business thereof.
    “ The said Wagner is to indemnify and save harmless the said railroad company from any liability to patentees of alleged inventions in respect of compartment or drawing-room cars, and is at his own expense to procure tbe requisite licenses for any sucb inventions wbieb may be used in said compartment or drawing-room cars. Tbe said "Wagner shall not assign tbis contract without tbe consent of tbe company.

      “ 2d. In consideration of tbe service performed by tbe New York Central Railroad Company in hauling said compartment or drawing-room cars, in cleaning tbe exterior thereof, in tbe furnishing of fuel and light therefor, and of their undertaking, in respect of tbe repairs to tbe trucks and brakes and tbe exterior of said cars, tbe said Wagner agrees to pay to tbe New York Central Railroad Company each and every month twenty per cent of tbe gross receipts' and earnings derived by him from tbe business (first deducting from tbe sum of sucb gross receipts tbe amount paid by tbe said Wagner as tbe patent or license fee for tbe patented inventions used in sucb compartment or drawing-room cars). Said Wagner is to keep books of account of sucb receipts and earnings, and exhibit tbe same and all vouchers appertaining thereto to the treasurer of tbe New York Central Raikoad Company whenever required by said treasurer.
    “ Tbe said payment of tbe twenty per cent of tbe gross receipts and earnings is to be made to tbe treasurer of tbe New York Central Railroad Company on or before tbe tenth day of each month.
    “ 3d. Tbis agreement shall continue for tbe term of ten years from tbe first day of January, 1869, and during tbe continuance thereof no other party than tbe said Wagner or bis assigns shall be allowed to run compartment or drawing-room ears on said railroad ; but this provision is not to prohibit tbe said company from permitting tbe compartment or drawing-room cars of other railroads to run thereon from Buffalo and Suspension Bridge to Rochester, as they are now run, upon sucb terms as may be agreed upon between said New York Central Railroad Company and such other railroads.
    “THE N. Y. CENTRAL RAILROAD CO.
    “D. TORRANCE, Y. P.
    iu.sMWp.] “W. WAGNER.”

      Hct/rris c& Ooolc, for tbe appellant.

      Hollm, Tracy, for tbe respondent.
   BoakdMAN, J.:

It was submitted to tbe jury to find, (1) whether the cars were-in such rapid motion as to render it unsafe and imprudent for the porter of the Wagner car to remove the plaintiff from that car to another in the rear; (2) whether, for this reason, the plaintiff was justified in refusing to pass back into the other car; (3) whether, if the porter was right in forcibly removing the plaintiff from the Wagner car, he did not use more force than was necessary for that purpose. To have given the plaintiff a verdict the jury must have found, either that it was unsafe to pass from one car to another while the cars were in motion, or that the porter used excessive force. In either event the cause of action against some one was established. It was also submitted to the jury to find whether the plaintiff was a trespasser or wrongfully in the Wagner car. That fact may have been of importance in getting at the amount of damages, but I think it was not material in respect to the right of recovery. Even if plaintiff had been a trespasser in the Wagner ear the porter could not remove him from the car in a dangerous and unsafe manner or use excessive force. (Rounds v. Del., Lack. and W. R. R. Co., 64 N. Y., 129.)

The jury has determined that the removal of plaintiff from the Wagner car at the time and under the circumstances and in the manner was wrongful. A cause of action is found to exist in favor of the plaintiff. Is it against the defendant ? If the porter had been defendant’s servant no reasonable doubt could exist as to its liability under the facts proved. (Rounds v. D., L. and W., ante; Cosgrove v. Ogden, 49 N. Y., 255; Jackson v. Second Avenue R. R. Co., 47 id., 274.) It may well be that Wagner is liable; of that we need not now consider.

The legislature of this State has given to the defendant certain franchises. It cannot divest itself of its responsibility under the laws for the proper exercise of its duties. The arrangement between the defendant and Wagner was private and personal. When Wagner’s car was put into the train it became a part of defendant’s train, was under the control of its conductor, was in his care and custody. The defendant and not Wagner ran the train. In effect Wagner, by his agreement, supplied the defendant with certain cars to be used for the joint interest of Wagner and defendant. Tlie Wagner cars were run for joint account. Why, then, are not Wagner’s servants in these drawing-room cars also the servants of defendant ? Why shall not the defendant be held responsible for the wrongful act of Wagner or his agents while upon its road and under its control % The Illinois Central Railroad was held liable for an injury to one of its own passengers on its own road, caused by the fault of a train of the Michigan Central Raih’oad running on the same road by the owner’s permission. (Railroad Co. v. Barron, 5 Wall. [U. S]., 90, 104, and authorities cited.) Drawing-room cars, under a contract like that in evidence in this case, were seized for taxes against the company owning the road but not the cars. (Kennedy v. St. Louis, etc., R. R. Co., 62 Ill., 395; 7 Am. Railway Cases, 346.) The owner of a road was held responsible for the use of a patented improvement on cars run on its road, though another road held all its stock, provided the cars and worked the road under a special contract. (York, etc., R. R. Co. v. Winans, 17 How. [U. S.], 30, especially top of page 40; see, also, Railroad Co. v. Brown, 17 Wall. [U. S.], 445, 450, 451; 1 Redf. Law of Railways, chap. 22, § 1, p. 598; Macon and Augusta R. R. Co. v. Mayes, 49 Georgia, 355.)

From the authorities cited we are led to the conclusion that the defendant was liable for the acts of the porter of the Wagner car, to the same extent as if he had been hired by, and was in the immediate employment of, the defendant.

The learned justice charged the jury, in substance, that plaintiff-was bound to occupy a vacant seat in the common car, if there was one, but if there was none he had the right to enter the drawing-room car. To the latter part of this proposition the defendant excepted.

The correctness of this charge is only of importance upon the amount of damages, and the same is true of the refusal to charge to be hereafter noticed. Perhaps even in that respect it may not be material whether the plaintiff was rightfully in the Wagner car or not. He was on defendant’s train. He was entitled to a seat. He takes the first he finds, as the jury, by its verdict, says. When requested to pay the extra twenty-five cents he notified the porter that there were no vacant seats in the other cars, and that he would go in there as soon as he could get a seat. I think the charge, under the facts, was correct. If so it was also correct to refuse to charge that it was the plaintiff’s duty to ask the conductor for a seat before passing into the drawing-room car. The fact is evident that there were not seats enough in the ordinary cars for the passengei’s therein, and that the conductor could not give seats to all. The jury, by its verdict, has so found. There is evidence to sustain such finding. This appeal is from the judgment alone. Every fact found by the jury against the defendant is conclusive. The defendant’s jnoposition, then, is that the plaintiff should have asked the conductor for a seat when there was none to his knowledge vacant, and that a failure to do this made plaintiff a trespasser in going into the Wagner car. I think he was wrongfully there only when he refused, upon demand, to pay the extra fare, and unreasonably declined to leave the car.

These are all the questions presented for consideration, and the reasons above given lead to an affirmance of the judgment, with costs. '

Learned, P. J., concurred.

Sawyer, J.

(dissenting):

I do not think the porter on the Wagner car was defendant’s servant; nor that the contract establishes it any more than a percentage to a salesman by way of salary makes him a partner.

Judgment affirmed, with costs.