author: Ward, J.

text:
    David Scott, Pl’ff, v. Mary Scott et al., Def’ts.

      (Supreme Court, Erie Special Term,

      Filed December, 1893.)

    Will—Life Beneficiaby.
    A life beneficiary, where the use of property is bequeathed to him for life, with remainder over, will he allowed to take possession on giving security for the protection of the remainder-men.
    Action for the construction of a will.

      John IS. & Guthbert W. Pound, for pi’if; John T. Murray, for def’t Mackey ; W. II. Ransom, guardian ad litem, for infant def’ts.
   Ward, J.

This is an action brought by the plaintiff, as the executor of the last will and testament of Eliza Jane Mackey, deceased, for the construction of the will of the deceased. Site died on the 13th day of May, 1890, and her will was admitted to probate by the surrogate of Niagara county on the 20th of May, 1890, and letters testamentary were duly issued to the plaintiff, David Scott, as her executor. The will was in fact made the 2d day of September, 1885. The will was as follows :

“First. I give and bequeath to my executor hereinafter named the sum of $100, with the interest or income of which to take suitable care of, and keep in good repair and condition, the cemetery lot in the Chestnut Ridge Cemetery, in the said county of Niagara, where my late husband is buried. Second. I give, bequeath, and devise to my daughter Mary Scott, wife of David Scott, the use of one-third part of all my property and estate for and during her natural life, and subject to such use I give and devise said one, third part to her daughter, Luella Scott forever. Third. I give-bequeath, and devise to my daughter Eliza Jane Dumville, wife of Joseph Dumville, the use of one third part of all my property and estate or and during her natural life, and subject to such use I give and devise the said one-third part to her children forever. Fourth. I give, bequeath, and devise to my son Wilfiam EL Mac-key, the use of the remaining one-third part of all my property and estate for and during his natural life, and subject to such use I give and devise the said remaining one-third part to his child or children forever; but, should my said son die without any child or children him surviving, then it is my will that said remaining one-third part shall go to my said daughters and their children, or the survivor or survivors of them, to have and to hold the same as hereinbefore bequeathed and devised in the second and third clauses of this will. Whatever my son may be owing me at the time of my decease is to be treated in the settlement of my state as an advancement to him Lastly, I make, execute, and appoint my son-in-law David Scott, of the said city of Lockport, to be executor of this my last will and testament, hereby revoking all former wills by me made.”

The testatrix left no real estate, but left personal property, consisting of bonds and mortgages, notes, a small amount of household furniture, and some money in bank, to the amount of $82, 231.95. There remains of said estate, after the payment of funeral expenses and debts, the sum of about $32,000. The testatrix left, her surviving, the defendant Mary Scott, the defendant Eliza Jane Dumville, and the defendant William EL Mackey, being her only children, and grandchildren, the children of Eliza Jane Dumville, —Lillian Dumville, Florence A. Dumville, and Nettie E. Dumville—and Luella Scott, the daughter of Mary Scott. The son, Yrilliam K. Mackey, has no children. The plaintiff claims, as executor, that he should have the control and disposition of the property of the deceased, and pay over to the several life owners during their lives' the use of the one-third of the property given to each. The defendant William K. Mackey claims that his third should be paid to him; that he should control it during his life, without interference from the executor. The children of Eliza . Jane Dumville, represented by their guardian, desire that the executor should continue in control of the property, as claimed by him. The executor has given no security for this large amount of property, or any portion of the same. The defendant Mackey contends that after deducting the $100 for cemetery purposes, and the expenses which should come out of the corpus of the estate, he has a right, under the will, to one-third of the estate, without giving security, and that it is the duty of the executor to pay it over to him. I think the conditions of this will are satisfied by giving the children of the deceased the use of their respective shares. The legacies are in no sense specific, but general, and the executor under his general powers, unless otherwise directed by the court, can take control of this fund for that purpose, keep it invested, and pay over the interest to the life owners thus acting as trustee for both the life owners and the remainder-men. This would, perhaps, be the ordinary course, and would not be interfered with, if we had anything but the personal responsibility of the executor for this large sum of money. The parties all seem to have the utmost confidence in the executor ; the deceased evidently had full confidence in him ; but many years may elapse before the life owners shall cease to exist, and in the changes and dangers of business affairs it cannot be said that misfortune or harm might not come to this executor, and the fund be lost, or some portion of it. Mor do I feel disposed to compel him to give security if I had the power. The court has undoubted power to direct the executor to pay over to the life owners their respective shares of the estate upon their furnishing adequate security. 2 Woerner, Adm’n, § 456; Tyson v. Blake, 22 N. Y. 558; In re Gillespie, 18 Abb. N. C. 41; Monfort v. Monfort, 11 Week. Dig. 543 ; DeRivas v. DeHerques, 12 Week. Dig. 87 ; Smith v. Van Ostrand, 64 N. Y. 282 ; Livingston v. Murray, 68 N. Y. 492, 493 ; Bliven v. Seymour, 88 N. Y. 478. The rule borne out by these cases is thus laid down in Smith v. Van Ostrand, 64 N. Y., commencing at the bottom of page, 281, and is as follows :

“ When a life estate is bequeathed in a sum of money, with remainder over, the legatee is entitled only to the income, and the principle, subject to the life estate, belongs to the remainder-man ; a.nd, unless otherwise directed by the will, it is the duty of the executor either to invest the money, and pay the interest to the first legatee during life, and preserve the principle for the remainder-man, or, on paying it over to the legatee, to require security from him for the protection of the remainder-man in respect to the principal.”

And again, in Livingston v. Murray, 68 N. Y. 492, 493, the court says:

“ When the remanider-man is willing and able to give security for the fund, it has been considered just that he should receive it so that he could manage it and reap all the income he could make, free from the charge of commissions by an executor or trustee. In such case care should be taken to secure the corpus of the fund or estate for the remainder-man, and the security taken should be adequate for that purpose.”

I have reached the conclusion that if tjie owners of the life estate give adequate and satisfactory security, to be approved by a justice of this court, to those entitled to the remainder, within three months from the entry of the judgment herein, they should be respectively entitled to take one-third of the estate, deducting the $100 mentioned in the first clause of the will, the expenses of the executor, and any taxes which may have been assessed or may have been paid by the executor, together with such fees as the executor may by law be entitled to receive, into their own care and •control. In the case of William K. Mackey, a bond should be executed to his sister, Mrs. Dumville and her children, and also another bond to Mrs. Scott and her daughter; and in case he should have a child, who would be entitled to take under the will upon his decease, that he shall also execute a bond as security to such child, in such amount, in such form, and under such conditions as the court may hereafter prescribe. That the security to Mrs. Dumville and her children shall be equal to double the amount of one-half of the property received by him from the executor, and the security to be given to Mrs. Scott and her daughter shall be double the amount of the remaining half received from the executor. That the security given by the other life owners, respectively, Mrs. Scott and Mrs. Dumville, to the persons entitled to take the remainder of their estates, shall be in double the amount received by them, respectively. That each instrument of security shall be executed by at least two sufficient sureties, who shall be freeholders within this state, and each shall justify in a sum equal to the amount of the bond. That any party interested in the estate can at any time apply to the court to increase such security, or to substitute other sureties upon the,' bond, or any of them. That each of said bonds shall be in substance, and to the effect, that said owner of the life estate shall carefully .preserve the property by him or her received, and only have and receive the use thereof, so that at the decease of the life owner the principle of the estate received by him or her shall be unimpaired and complete, •and not diminished or decreased by any act of the said life owner. I do not assume to indicate the exact form for of these bonds, but they may be prepared and submitted to the court for approval. Any of the persons entitled to the use of this property for life may permit his or her share to remain with the executor, and in that" «vent the executor will keep the share secured properly and safely invested at interest for the benefit of the parties interested, and pay over to the life owner the interest or use of the property invested. The order may be entered, confirming the referee’s report herein, and carrying out the views and purposes herein «xpressed. If the parties interested cannot agree upon a proper order to be entered, settlement of this order may be made upon eight days’ notice.

Ordered accordingly.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    Katharine L. Knox, Pl’ff, v. Henry Nobel, Def’t.

      (Supreme Court, New York Special Term,

      Filed January 8, 1894.)

    1. ExECTJTOBS, BTC.—INFANT.
    An infant cannot be appointed an administrator or executor.
    2. Same—DiSAFFiBMiite Oonteact.
    Where an infant, to whom letters of administration were granted, executed a transfer of property of the estate, he may, after attaining majority, sue individually to set aside such transfer.
    Demurrer to the complaint in an action to rescind a contract.

      Luden Birdseye, for pl’ff; Henry ICropf, for def’t.
   Ingraham, J.

The defendant demurs to the complaint upon two grounds: (1) That the plaintiff has not the legal capacity to sue, in that the cause of action alleged in the complaint, if any, is vested in and belongs to the personal representative of Henry Niesterman, deceased; (2) that the complaint does not state facts, sufficient to constitute a cause of action.

The objection that there is a defect of parties defendant is not taken; and, if such defect exists, it is waived. Code, § 499. The question to be determined on this demurrer, therefore, is whether or not the complaint alleges facts sufficient to constitute a cause of action in favor of this plaintiff, individually, against the defendant. The complaint alleges, in substance, the following facts: That the plaintiff was the widow of Niesterman, who died several years ago; that, at the time she was an infant, she applied for and obtained letters of administration upon his estate, and as such administratrix executed an instrument which transferred to the defendant all of the interests of her husband, whose administratrix she claimed to be, in and to a certain business which had, prior to his death, been conducted by the husband of the plaintiff and the defendant as co-partners. The plaintiff alleges such infancy ; alleges facts tending to show that fraud had been committed upon the plaintiff, by which she was induced to execute such agreement ; alleges the invalidity of the agreement by reason of her infancy at the time, and also because of the fraud complained of; and askes to have the agreement rescinded. The question is whether or not the letters of administration issued by the surrogate to the plaintiff when she was an infant conferred any authority upon the plaintiff to act as administratrix; in other-words, whether or not such letters were actually void when they attempted to constitute a person who was incapable of becoming an administrator such administrator. The defendant claims that, the surrogate having, by the granting of the letters to the plaintiff, adjudicated all of the facts necessary to sustain the granting of such letters, such adjudication is conclusive, not only as to the fact that he was required to determine—as to whether or not he would grant letters upon the estate of the deceased—but also as to the competency of the person appointed administrator to act, and that such decision cannot be attacked collaterally. This principle is now well established in this state, so far as applies to any fact that was necessary to be adjudicated upon by the surrogate after he had acquired jurisdiction of the parties to the proceeding and of the subject-matter, and I think, clearly, it applies, so far as it affects the relationship of the proposed administrator, and his right under the statute to receive letters. That, however, is not the question here. It is whether or not a person who was deemed by the law incapable of action or making any contract can be, by a decree of the surrogate, clothed with full power to act. Suppose, for example, that the surrogate had issued letters to a person who had died before the letters were issued, but whose death was unknown to the surrogate; could it be claimed for a moment that any letters of administration upon the estate had been granted? Or suppose that the surrogate had issued letters constituting a person judicially declared to be insane administrator of an estate; could it be claimed that those letters were valid, and that the estate was bound by any act of the lunatic, because he was acting as executor or administrator? And in what respect does the power of an infant to act, either individually or in a representative capacity, differ from that of a person judically declared a lunatic? It is a general principle that offices where judgment, discretion, and experience are essentially necessary to the proper discharge of the duties they impose—offices of pecuniary and public responsibility—eannot be held by infants; so, an infant cannot be appointed an administrator or an executor. See 10 Amer. & Eng. Enc. Law, p. 615, and cases there cited. The case of Carow v. Mowatt, 2 Edw. Ch. 58, was a case where the widow, who was an infant, was appointed administratrix of her deceased husband’s estate; and the vice chancellor seemed to assume that the appointment was void, saying:

“ The appointment may, from personal disability, have been irregular and void; but after such disability is removed, if he will continue to hold the office and act in the trust, a court of equity, regarding him as trustee, will compel him to account for his receipts after the time of arriving at full age, although no account will be directed in respect to the assets which came to his hands during infancy,’’—-citing Hindmarsh v. Southgate, 3 Russ. 324.

It would seem to me that the appointment of an infant is absolutely void, not because of any defect in the proceedings by which the appointment was made, or the absence of any facts that the surrogate was required to determine to justify the issuing of letters, but because the person designated to act as administrator was incapable by law of acting. His act would not bind him individually, and therefore cannot be held to bind the estate. He could not be compelled to account for money that came into his hands during infancy, Carow v. Mowatt, supra; and it would seem to me to follow that, the granting of letters being void when granted, in order to constitute the person administratrix, a new appointment was necessary after the disability had been removed; and that would follow from the ground upon which the vice chancellor, in the case above cited, placed the liability of the person appointed administrator for moneys received by him after he became of age. It was not that he was liable as administrator, but because the court of equity would fasten a trust upon him for the moneys that he had received when he was of age, where he assumed to act as administrator without authority. See, also, Hindmarsh v. Southgate, 3 Russ. 326. I think, therefore, in this case, that no valid letters of administration were issued upon the estate of the deceased, and, so far as appears, there is now no legally appointed administrator of this estate. That being so, what is the condition of the parties? The plaintiff, while an infant, made a contract by which she assumed to act as administrator of an estate of which she was not such-administrator, and received, upon the execution of that contract, a sum of money from the defendant. I think it clear that had she been an adult, and capable of making a valid contract, and had assumed to act as executor without authority, she would have been personally liable for any injury that the person with whom she contracted sustained by reason of her want of authority; so that, but for her infancy, she would be individually liable to the .defendant in case the contract that she attempted to make as administrator was illegal because of her want of authority to act. Such being the case, upon her arrival of age, or within a reasonable time thereafter, she was bound to disaffirm that contract; and she now individually comes into court, and asks that that contract be declared invalid, both on account of infancy at the time it was made, and because she was induced to execute it by fraud. It seems to me that she has a cause of action, as an individual, to have that contract declared to be invalid. The estate has no interest in the question whether or not she (the plaintiff), as an individual, is liable to the defendant for any damage sustained by him because she was not what she pretended to be, namely, the administratrix of that estate. Upon the death of one of the partners, the property of the partnership vested in the surviving partner. The personal representative of the deceased partner did not become the owner of any portion of the copartnership property. He had a right to apply to a court of equity to compel the surviving partner to account for the property that came into his hands, and to pay such representative the share of the deceased partner after the payment of debts. Such relief cannot be obtained in this action, because the personal representatives of the. deceased are not parties to the action ; but there is, I think, as before stated, a good cause of action in the plaintiff when she asks the court to adjudge that this contract which she made, by which she attempted to act as administrator of the estate, but which was void, because she was not the legally appointed administrator, be declared void as to her individually, and to impose no obligation or liability upon her. I think, therefore, that the demurrer must be overruled, and judgment ordered for the plaintiff, with costs, with leave to the defendant to withdraw the demurrer, and answer over within 20 days, upon payment of costs.


author: Rumsey, J.

text:
    George Warner, Pl’ff, v. Arsino B. Warner et al., Def’ts.

      (Supreme Court, Monroe Special Term,

      Filed December, 1893.)

    Former Adjudication—Pendency of Another Action.
    Where a defendant in an action for partition has not been served, its pendency is no ground for the abatement of a subsequent action brought for the same purpose by such defendant.
    Plea in abatement in an action for partition that another action is pending between the parties for the same cause.

      T. D. Wilkin, for pl’ff; Arthur & Sutherland, for defts.
   Rumsey, J.

This action was begun on the 3d day of July, 1893, by the service of summons, and the usual other proceedings by which an action of this nature is commenced. Its object was for the partition of certain property situated in the county of Monroe. No other defendant except Arsino B. Warner appears; and he answers, admitting all the facts alleged in the complaint, and setting up as a defense only that another action is pending for the same cause between the same parties. The single question presented is whether that defense can stand upon the facts.

The undisputed facts are that on the 31st day of March, 1893, Arsino B. Warner caused to be filed in the clerk’s office of Monroe county, summons, complaint, and notice of the pendency of action for the partition of the same property which is sought to be partitioned in this suit. The parties to that action are the same as in this action, except that the plaintiff in that action is Arsino B. Warner, and George Warner is a defendant. On the day on which the notice of pendency was filed, summons was served upon one of the defendants, and shortly thereafter summons was served upon other defendants. George Warner was not served, nor did he know that any defendant had been served with summons, but he did know that complaint and notice of pendency was filed. On the 3rd day of July, 1893, that being the condition of Arsino Warner’s action, George Warner caused this action to be begun, and summons to be served upon the proper parties. Thereupon, and after summons in George Warner’s action had been served upon him, Arsino Warner completed the service of the summons in his action by serving these defendants whom he had not served before, including George Warner; and then he answers, setting up the defense that another action is pending for the same cause between the same parties. There is no doubt that, if his action was pending at the time when this action was begun, it is a complete answer to the plaintiff’s suit. The only question presented, then, is whether, as against George Warner, Arsino B. Warner’s action had been begun on the 3d day of July, when summons in this action was served upon Arsino Warner.

In ordinary cases, it is a proposition not be be disputed, that under the Code the mere issuing of summons is not the commencement of an action, for ordinary purposes. Kerr v. Mount, 28 N. Y. 659. It is quite true that for certain purposes the court is deemed to have acquired jurisdiction by the granting of a provisional remedy. Code Civil Proc. § 416. But that jurisdiction is conditional, and it is liable to be lost unless it is followed by the actual service of a summons. The section of the Code above cited provides expressly that a civil action is commenced by the service of a summons. It necessarily follows, from that, that unless the summons has been served the action is not commenced, as to any given defendant, and so the courts have held. Haynes v. Onderdonk, 5 Thomp. & C. 176; Boylston v. Wheeler, Id. 179. Indeed, although it was provided in the Code of Procedure (section 139) that the courts should be deemed to-have acquired jurisdiction “from the time of the service of the summons in a civil action, or the allowance of a provisional remedy,” still it was then held that the action was commenced for the purpose of acquiring jurisdiction over the defendant only by the service of summons, and that until summons was served the court had no jurisdiction to enter judgment against a defendant, although a provisional remedy had been allowed against him. Ex parte Griswold, 13 Barb. 412. So, under the Code of Procedure, for several years, there was no provision as to when the notice of pendency should become operative, and it had been held that it. only became operative, as to any defendant, after the service of summons upon him. In applying that rule, it was-held, that after the filing of lis pendens and complaint, but before service of summons upon him, a person named ás defendant in a foreclosure action, having deeded away his interest by recorded deed, and being afterwards served with summons, his grantees were not bound, because the court had not acquired jurisdiction over him for any purpose until the service of summons upon him. Trust Co. v. Dickson, 9 Abb. 61. The rule was laid down by Judge Ingraham, in that case, that, until summons was served upon each defendant, jurisdiction, as to him, was not acquired. Certainly, an action cannot be commenced, as to any man, until such jurisdiction has been acquired that, without doing anything more, a judgment can be entered against him, either personally, or such a judgment as would bind his interest in the property which is the subject of the action. So long as neither of these things can be accomplished, the party cannot be said to be in court, and the action has not been commenced against him. ' It is claimed in this case that the action was begun in such a way as to give the court jurisdiction by the filing of the notice of pendency of action and the complaint and service of summons upon one of the defendants. That is undoubtedly true as to all those persons1 who were served with summons, but until summons was served upon George Warner the court, certainly had no jurisdiction over him. There was nothing to prevent the plaintiff in that action from procuring an amendment of the summons and the other proceedings, and striking out his name as a party, if he had seen fit to do so; and if judgment happened to be entered without any further proceedings in the matter, while it would have been good as against every party served, it would have had no effect upon George Warner’s interests. As to him, certainly, until summons was served upon him, the action was a complete nullity. It was so held in the case of Haynes v. Onderdonk, 5 Thomp. & C. 176. In that case the court held that the filing of a copy of the summons and complaint, with a notice 'of pendency of action, was not a commencement of the suit, for any other purpose than that of affording constructive notice to subsequent purchasers from the defendants.

For the purpose of preventing the running of the statute of limitations, the Code provides that the delivery of the summons to the sheriff, with the intention that it shall be actually served, is equivalent to the commencement of the action. Code Civil Proc. § 399. But it is to be noticed that such delivery is not called a commencement of the action, but it is called, in that section of the Code, “ an attempt to commence an action,” and that section is to be limited to the statute of limitations, and not to be further extended. Trust Co. v. Dickson, 9 Abb. 61, 64. No way is provided in the Code by which any person can be brought into court in any action until summons has been served upon him, either personally or by some mode of substituted service. Nothing of this kind was ever attempted to be done by Arsino Warner, as far as George was concerned. As to him, the action simply stood, and he was in the situation of having his right to transfer his property tied up for sixty days from the 31st of March, by the filing of the notice of pendency without being able, in any way, to have any steps taken to prevent it. No action can be said to be pending against a man, when he has not been served with process, or in any way brought into the case, or put in such a situation that he can take any action to defend his rights therein. While he knew that the notice of pendency and complaint was filed, he did not know that any defendant had been served with summons; and he had no reason to suppose, after the sixty days had expired, that any step was taken by Arsino Warner to continue the action which he had sought to begin. I do not regard this as very material to the decision of this case; because the knowledge of George Warner is not important, in my judgment, in deciding this question. But whether it be important or not, if it should be held that the mere filing of the complaint and lis pendens, with the service upon one defendant, was sufficient to give the court jurisdiction as to every other defendant, and to make the action pending as to him, whether he were served or not, it would not be difficult for any party who desired to prevent the partition of lands to postpone it indefinitely. The intent of the law clearly, is that, when one has commence and action for partition of real property, he shall complete his service with all possible speed. He is permitted sixty days within which to do it, during which the lien acquired by the filing of his notice is kept effective by the law. The purpose of that, as is apparent, is to enable him to make the necessary inquiries as to the residence of the defendants, and to complete service by publication in such eases as it shall be necessary; and the keeping go.od of the lien during that time implies the intent on the part of the lawmakers that the service should be completed by the time it expires. Various inconveniences are suggested by the counsel for the defendant as likely to arise, if it were held that the action was not made pending by the filing of the notice of pendency. All these are more specious than real. If each tenant in common should commence an action, the court would have no difficulty, upon motion, in consolidating the actions, or in making such direction as would assure an orderly procedure in them. But the argument ab inconvenienti is not of very much force' in these cases. The question must always turn upon the construction of § 416 of the Code of Civil Procedure that the action was not commenced, as to any defendant, until service of summons has been made upon him. The result is that, so far as George Warner was concerned, there was no action pending at the time the summons was served upon him in this case. The remedy of Arsino Warner was, I think, either to appear in this action, and seek to enforce his rights here, or to move that the two actions might be consolidated, which I have no doubt the court would have the power to do, in such a case as this.

Upon the question raised here, the judgment of the court must be for the plaintiff; but as, outside the issue of another action pending, there has practically been a default on the part of Arsino Warner, as well as the other defendants, the usual order of reference should be made, that the court, upon the coming in of the report of the referee, may order such a judgment as is proper. Judgment accordingly.


author: Green. J.

text:
    New York Central and Hudson River Railroad Company, Pl’ff, v. William Sheeley et al., Def'ts.

      (Supreme Court, Albany Special Term,

      Filed December 6, 1893.)

    1. Raibkoad Cobpobations.—Chap. 565 of 1890.
    A hackman is not a common carrier within the meaning of section 34, chap. 565 of 1890.
    2. Same.
    This statute does not prevent the granting of any exclusive privilege to one individual in respect to carrying on his business.
    3. Same.
    The company by the common law, is under no obligation, as a common carrier, to afford any acccommodations to hackman for the transaction of their business.
    4. Same - Compensation.
    When the company offers to allow all the hackman the same privileges and facilities in its depot on paying a certain compensation, the court will not inquire into the reasonableness of such compensation.
    Motion bv defendants to dissolve an injunction restraining them from entering upon plaintiff’s station grounds in the city of Niagara Falls.

      Harris & Harris, for pl’ff; King & Morgan, for def’ts.
   Green. J.

This action was brought to restrain the defendants from entering upon the plaintiff’s station grounds at the city of Niagara Falls. The complaint and affidavits upon which the injunction herein was granted, and the papers used on this motion, if true, establish a right to the relief prayed for. The plaintiff is a railroad corporation and the defendants are hackmen. The plaintiff has offered, and still offers, to admit the defendants to the privileges of its station grounds at Riagara Falls upon their complying with the terms and conditions exacted by the plaintiff. The defendants have not offered to comply with these conditions, claiming that they are unreasonable, and that they have a right to enter upon said grounds, and carry on their business thereon, notwithstanding the plaintiff’s protest, by virtue of the provisions of section 34 of the railroad law. Upon the complaint and affidavits showing these facts an injunction was granted pending the action, restraining the defendants from the acts complained of. This motion is to dissolve that injunction.

The injunction was properly granted. The complaint and affidavits upon which the injunction was granted, if true, establish a right to the relief prayed for. Where the injury resulting or likely to result is irreparable in its nature, either in respect of being compensated pecuniarily, or because from the circumstances no estimate of the damages can be made with reasonable accuracy, the inadequacy1 of legal remedies is sufficiently apparent. A temporary injunction will be'granted in the first instance pending an adjudication of the legal rights, though the same be in dispute. 1 Spell. Extr. Belief, § 336. The irreparable damages here meant usually result from repeated wrongs of a continuing character, resulting in damages which cannot be estimated by any accurate standard, and can only be conjectured. Against such wrongs as these, courts of equity rarely refuse to grant relief by injunction. Courts of equity do not ordinarily restrain the commission of a mere trespass. There must be some great vexation from continued trespass, or some irreparable mischief which cannot easily be measured by damages. Id. § 340. Where numerous acts are being committed, and their continuance threatened, by one person on the land of another, (and, a fortiori, by many persons,) which acts constitute- trespass, and the injury resulting from each is or would be trifling in amount, as compared with the expense of prosecuting actions at law to recover damages therefor, injunction will lie to restrain the trespass, not alone because of the irreparable nature of the general course of wrong, nor yet for the reason that a multiplicity of suits or protracted litigation would result; but for both reasons; in other words, because a law court furnishes no adequate means for a complete redress, while in equity not only may^the whole matter of compensation be settled, but the present and future rights of the parties determined and adjudicated, in the same proceeding. Id. § 342. But, whatever be the true reason for interfering, the inadequacy of the legal remedy must be shown to warrant relief by injunction, which is equivalent to saying that from the nature of the injury, or from the fact that its continuance or frequent repetition is threatened, it is irreparable at law. Id. § 343. It is the general principle that the legal remedy which warrants a refusal of relief by injunction must be plain and adequate; in other words, ns practical and efficient for attaining the ends of justice and its prompt administration as that in equity. The test of equitable jurisdiction in the application of this principle to a particular case usually depends on 'the character of the case as disclosed in the proceedings. Id. § 370. As a general rule, an injunction will not lie in a naked-case of trespass, where there is no priority of title, and where there is a legal remedy for the intrusion. There must be something particular in the case so as to bring the injury-under the head of “quieting possession,” or to make out a case of irreparable mischief. Livingston v. Livingston, 6 Johns. Ch. 500. In Dyeing Establishment v. Fitch, 1 Paige, 97, a preliminary injunction to restrain a party from running a steamboat and landing his passengers at complainant’s dock was dissolved. The court there held that a preliminary injunction before answer rests in the discretion of the court, and ought not to be granted unless the injury is pressing and the delay dangerous. The learned judge, in his opinion, says:

“I can-readily see that retaining the injunction may produce great injury to defendants, and for which they would be entirely without remedy, if it should finally appear that they were only in the exercise of their legal rights.” ■- f

But in that case the defendant claimed that the place was a public dock, and that all persons had a right to make use of it, and it does not appear that there was any other dock near for. the landing of passengers,, and, if defendants in that case were restrained, it would not only injure their business, but would also be a detriment to the traveling public. We think the case at'bar is clearly distinguishable from the case above cited, and in the manner as above indicated.

Where a motion is made to dissolve an injunction, the case must be viewed in the same manner as if it were an original application for the injunction, and opposed by defendant’s counsel. If the complainants were now asking for this preliminary injunction, is this a case in which it would be proper for this court to grant their application ? Dyeing Establishment v. Fitch, 1 Paige, 97. We are of the opinion that in this case this question must be answered in the affirmative. We have formed this opinion from careful examination of the law, relative to the granting of preliminary injunctions, as above referred to, and also from the examination of the important questions raised by the parties upon this motion. It becomes necessary to construe the statute upon which the defendants rely in determining the questions here presented; and in construing that statute we naturally are led to the examination of the statutes preceeding the one in question which relate to the same subject-matter and which led to the .enactment of the statute in question. Chapter 49 of the Laws of 1867 was designed to apply only to associations or companies competing in the - business of transporting property on railroad cars, either for themselves or others; and as to them no preference for the transaction of business relating to or connected with such transportation, either upon the cars or in the depots or buildings or upon the grounds of the railroad corporation, should be granted to any one of them; but each of such associations shall be afforded equal terms of accommodation, privileges, and facilities in the transportation of property. We think this the true interpretation derivable from reading the whole section together. This provision was amended, and substantially re-enacted, by chapter 565, Laws 1890, § 34. There is a change in the phraseology, and a few words added. The last clause of § 34 provides that “ no preference for the transaction of business upon its cars or in its depots or buildings or upon its grounds shall be granted by any railroad corporation to any one •of two or more persons, associations, or corporations, competing in the same business or in the business of transporting property for themselves or others.” The first and only other clause relates to the giving notice of time for starting and running trains, and the accommodations to be furnished for the transportation of passengers and property. According to § 182, the provisions of § 34 must be construed as a continuation of the provisions of § 36 of the act of 1867, “ modified or amended according to the language employed, and not as new enactments.” As we have said, the words in the act of 1867, “ competing in the business of transporting property for themselves or others,” had reference only to the transportation of property upon railroad cars, and were not ■designed to apply to associations or companies engaged simply in the carrying of goods to or from the depots, or to and from different points in cities or villages. That this was the evident intention of the legislature appears from the repeated use of the words, “such competing companies or associations,” in the second clause of the second sentence of § 36. But since that clause has been embodied in separate section (35) in the act of 1890, and the words quoted have been expunged, it becomes necessary to ascertain and •determine the true interpretation to be given § 34 of that act separately considered with reference to the terms in which it is •expressed, and also regarding the provisions of the act of 1867, from which it was imported. What is meant by the phrase, “competing in the business of transporting property for themselves or others ?” To whom does it apply ? Who are embodied within it ? Shall a larger or more extensive signification be given these words than they possessed in the act of 1868. This is not “a new enactment,” but a “continuation” of the provisions of § 36 of the Laws of 1867. True, the section must be read as “modified or amended, according to the language employed,” but here the language employed is the same as that in the act of 1867, viz. the business of transporting property,” and therefore should be given the same signification as it formerly possessed. The predominant idea in the mind of the lawmakers was to regulate the transportation of goods and property upon railroad cars. That was the principal object to be accomplished, the main purpose to be fulfilled. They were legislating only upon that subject, and all matters necessarily incident thereto; and in determining the extent of the provisions of the statute, the whole extent of its intention or provisions, regard must be had to the •objects within the of the and thus determine its limit and scope. It would seem that it was not within the contemplation of the legislature to legislate with regard to persons, associations, or companies engaged in the business of “ transporting” or carrying goods in and along the public streets or highways. The word “ transport,” “ transportation,” are frequently employed throughout the statute, but they have reference only to the business transportation on the cars. To apply the word “transport-ion,” as used in this §34, to the business of draymen or truckmen calls for a strained construction of the statute. That business was surely not within the contemplation of the legislature, nor is it within the purview of the statute. Judicial interpretation or construction will not go to the extent of holding that a statute designed to regulate the transportation of property upon railroad cars applies to draymen and truckmen because they may be “competing in the business of transporting property” along or upon the streets of a city or village, and mainly or incidentally to and from the freight depots of a railway. In the absence of any legislative expression indicating that such persons or such business were intended to be benefited or protected by the act, such an interpretation of the statutes is unwarranted. The language used will not bear such an interpretation. It is conceivable.that the legislature intended to embrace in the same category draymen and express or dispatch companies, as “competing in the business of transporting property for themselves or others.” Quite a difference, there would seem to be, in the nature, character, and extent of the business, between a person conveying goods to and from the freight depots and the great express companies, shippers, and forwarders. Such a classification would present a legislative anomaly, and be a reflection upon the intelligence of the lawmakers to impute to them so gross a lack of the proportion and fitness of things, or as possessing the sense of disproportion in so large a degree. However this may be, it cannot successfully be maintained that hackmen “compete” in the business of transporting property, for they are but carriers of persons. That is the business in which they are engaged, the carrying of baggage being merely incidental thereto. In determining the nature, kind, or character of the business, and in expressing or designating it by some term or word, it is the principal — the main — characteristic or purpose of the business that is to be considered, and that will predominate. Section 34 provides that no preference shall be granted to any person, etc., “competing in the same business,” but there is no description of the business intended. Taking it literally as applying to all kinds of business that might be transacted on the cars, depots, etc., if the company granted the privilege of keeping a restaurant, newspaper stand, peddling on cars, etc-., it would be contrary to the statute. It is reasonable to presume that certain words that should have been used to define the nature of the business were omitted through oversight, and, as they were supplied by the amendment of 1892, (chapter 676,) it becomes unnecessary to further consider the original section. That amendment provides:

“ No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings or upon its grounds, shall be granted * * * to any one of two or more persons, associations or corporations competing in the same business or in the business of transporting property for themselves or others.”

The question arises whether the hackmen are “common carriers" within the purview of the statute. The last clause must still retain the meaning it possessed in the statutes from which it was derived. Regard must be had to the original statutes in determining the extent and scope of the present one. Do the words “common carrier” apply as well to hackmen or draymen as to express, dispatch companions, shippers, and forwarders ? Was it intended by the legislature to place them all in the same catagory—carriers of persons and carriers of property, carriers of persons and property upon and along the public streets and highways by means of horse and vehicle, and common carriers upon railroad cars ? When the legislature speaks of common carriers in a statute regulating the transportation of persons and property by railroad companies, transportation, express, or dispatch companies and shippers, is it proper to give to those words such an interpretation as shall embrace carriers of persons and property through and along the streets of a city in hacks, cabs, or drays? We cannot conceive that the legislature intended to intermingle subjects so diverse in their nature and character in one sentence,—the business of conveying goods or persons to and from the depots, and the business of transporting, forwarding, or shipping property over railroads. It would be most unusual, in a provision designed to benefit or protect hackmen and draymen, to designate them simply as “common carriers,” without any other words or expression to indicate they were intended, and especially so when it clearly and unquestionably appears that the statute was primarily enacted for the protection and benefit of persons or companies engaged in the business of common carriers of property over railroad lines. Since there is considerable uncertainty in the books in respect to the application of the term “common carriers” to licensed hackmen or draymen, we would not be justified in holding or inferring that the lawmaking power intended to classify them with those who are clearly and strictly common carriers. To do so would be a very liberal interpretation indeed. The carriers within the legislative contemplation were carriers over and upon railroad lines, and not carriers using horse power upon highways. We would not be justified in holding that the legislature, in enacting a law for the transportation of persons and property upon railroad cars, had also in mind carriers by means of horses and vehicles, in the absence of any expression indicative of such an intention. Such carriers do not come within the purview of the statute, but are extraneous to it. The business of carrying goods and persons to and from the depot does not come within the scope of a statute regulatiing transportation from town to town, from city to city. They are not common carriers, within the meaning of this statute, however proper it may be to impose upon them the liability of a common carrier, and to designate them as such ; and, in view of the uncertainty existing as to the acceptance of that term, it would be an unreasonable supposition that the legislature used it in this statute in such a sense. Indeed, the learned counsel for defendants were put to extended argument and the preparation of an elaborate brief to establish that hackmen may be properly called “common carriers.” If the term “common carriers” means “draymen,” this would enlarge the scope of the last clause, which had heretofore been used as meaning transportation over the railroads, and not as relating to conveying goods to and from depots. The court is asked to construe the statute so as to provide that hackmen and draymen shall be entitled to equal accommodation and facilities for the transaction of their business in soliciting the patronage of the company’s passengers upon the cars, in the depots and buildings, and upon the grounds óf the company, and that no preference or advantage shall be granted to one over the other. To attempt to do this would amount to a usurpation of legislative functions. We are unable to preceive that such a purpose was.intended to be accomplished by the legislature merely from the use of the words “common carriers,” or are we at liberty to draw such an inference? If such a purpose was within the intention of the legislature, it is reasonable to suppose that appropriate words would be found to give it expression ; but here there is not the slightest reference in the entire section to the business of hackmen or dray-men. We are asked to give to the words “common carriers” a comprehensive all embracing meaning, so as to include carriers of all kinds and description who may have any business to transact upon the cars, in the depots, etc. “We are ‘common carriers,’ ” say the defendants ; “ergo, we have a right to solicit business upon the company’s grounds, or at least no preference shall be granted to any one or more hackmen in affording accommodation or facilities for such purpose.” But the business was not germane to the subject upon which the legislature was acting. It is not customary to speak of hackman and draymen as “common carriers,” nor even as “carriers,” in the strict sense given to those terms when speaking of railroads or vessels; nor do we think that they are ever so designated in statutes or ordinances.

According to the position taken by defendants’ counsel, the legislature has provided in one and the same sentence that no preference shall be given to one person or corporation engaged in the business of transporting property over railroad lines for themselves or others as common carriers or otherwise in respect to the accommodations or facilities for the transaction of such business upon the cars, depots, or grounds, nor shall any preference be given to one hackman or drayman in the use of the cars, depots, or grounds for soliciting the custom of passengers, etc. In this a fair, reasonable, or justifiable interpretation of the legislative expression ? Surely there is nothing in the statute from which we can even infer or presume that the legislature intended to legislate upon the business of hack-men. The court has no power to recast the sentence and insert the appropriate language. We must extract the sense from the words used, and not inject sense into them by extending the scope of the statute beyond the particular subject-matter. When words have a definite and generally well-knowri meaning, the courts are not permitted to go elsewhere in search of conjecture to restrict or extend the meaning. McClusky v. Cromwell, 11 N. Y. 601. Assuming that licensed haclcmen are common carriers of persons, it does not necessarily follow that they are “ common curriers ” within the purview of the statute. The usual, common, and ordinary acceptation of that term is restricted to carriers of goods, chattels, and merchandise. When carriers of persons are spoken of, they are designated as “common carriers of persons,” or “passenger carriers," and when the legislature, in legislating upon the subject of railroad transportation, provides that no preference for the transaction of the business of a “common carrier" upon the cars, in the depots, or upon the grounds, shall be granted, etc., that term must be restricted to carriers of freight, in the absence of other words indicative of the more extensive signification. “Common carriers” are carriers of property, unless from the context it appears that carriers of persons are intended. The fact that the last clause of the sentence embraces common carriers of freight, and therefore the term “common carriers” in the beginning of the sentence is a superfluous or tautological phrase or expression if restricted to carriers of freight, is not sufficient to warrant its extension and application to the business of haclcman. Hackmen have no legal right to transact their business of “common carriers” in soliciting the patronage of passangers upon the cars or in the depots or upon the grounds of the company, nor does the statute purport to give to all of them that right if the company deems it fit and proper to grant it to one. This court is not justified in trespassing upon the legislative domain, nor in usurping legislative functions or exercising legislative power in the premises. Let the legislature speak plainly, and in no uncertain terms, and the courts will enforce its enactment. The judiciary should not attempt to make laws for the people by undue and unwarrantable stretching of statutory provisions so as to embrace within them provisions not within their purview, outside the scope of the statute and extraneous to it.

It is the railroad company alone that has the exclusive right to transact the business of common carriers of persons or passengers upon its cars or in its depots and upon its grounds. Counsel for plaintiff truly says that the purpose of the original statute was to regulate the treatment by railroad companies of those with whom they necessarily come in contractual relations in doing the business of a carrier, and that this purpose has not been departed from in any of the subsequent amendments or alterations in the form or expression of its provisions. There is much force in the contention that the “common carrier" referred to is the railroad company itself, otherwise this provision of the statute would afford no protection to shippers of grain against discrimination in favor of another, because, although they are “competing in the same business,” there is no “preference for the transaction of the business of a common carrier” shown, they not being engaged in that business, but their business or dealings are with the common carrier; that is, the railroad company. Consequently, if the term “common carriers” does not refer to the company, then the shippers' are left without protection from discrimination. Again it is evident that persons engaged in the “business of transporting property for themselves" are not engaged in the transaction of the business of a “common carrier” upon the cars, etc., but their transactions are with the carriers, so it would be impossible to grant them a “ preference for the transaction of the business of a ‘common carrier.”’ The purpose of the statute was to prevent discrimination among carriers, such as express or dispatch companies or associations, or persons engaged in that business, or among competing shippers, whether they are engaged in the business of transporting property for others or in shipping for themselves. If this section relates only to those engaged in the transaction of the business of a common carrier upon the cars, depots, or grounds of a railroad company, there is • no other provision whatever in the railroad law to prohibit discrimination by a railroad between shippers who are rivals in the same business. It is obvious that it was the original purpose of this provision to protect persons coming into, contractual relations with the railroad itself in its capacity as a carrier. To give to this statute in its present form a different meaning, and to support the contention of the defendants, effects a radical and complete change in its scope, and tends to make chaotic what was before simple and proper, and would leave competing shippers who may not happen to be engaged in the business of a common carrier without protection. Whether the court adopts the interpretation of the words “common carriers” as referring to the railroad company itself or as applicable only to other carriers of freight and merchandise over railroad lines, it will not aid the defendants in this case. However that may be, the court is firmly of the opinion that the term has no application, in this statute, to persons engaged in the business of carrying passengers in cabs, hacks, and omnibuses. Hackman, as “ common carriers ” of persons, have no right to transact their “ business” upon railroad cars. Their business is to carry persons from place to place over and along the public highway. The primary meaning of the term “common carrier” is one who undertakes for hire to transport the goods of such as choose to employ him from place to place, Allen v. Sackrider, 37 N. Y. 341. He stands in the position of an insurer, and is liable for accidents and thefts, and even for a loss by robbery. He is 'answerable for all losses which do not fall within the excepted cases of the act of God (meaning inevitable accident without the intervention of man) and public enemies. “But the proprietors of stage coaches, whose employment is solely to carry passengers (such as hackney coachmen), are not deemed common carriers (but rather passenger carriers), although, as to the passage or luggage of the passengers, they may incur the same liability as common carriers.” They are not responsible for mere accidents happening to the persons of passengers without any default whatever on their part. On the other hand, they are responsible for the exercise of the highest degree of care and diligence, or, as it has been expressed, for all diligence in the carriage of passengers as far as human foresight and care will go.” Story, R. R §§ 498, 499. The opinion of the court in Wyckoff v. Queens Co. Ferry Co., 52 N. Y. 34, is particularly applicable to hackman: “A ferryman is not a common carrier of property retained by a passenger in his own custody and under his own control, and liable, as such, for all losses and injuries except those caused by the act of God or the public enemies.” He does not assume all the responsibility of a common carrier. Property carried upon a ferryboat in the custody and care of the passenger is not at the sole risk of either the ferryman or the owner. Both have duties to perform in respect to it. The liability of a common carrier in all its extent only attaches where there is an actual bailment, and the party to be charged has the -exclusive custody and control of property for carriage. A ferryman does not undertake absolutely for the safety of goods carried with, and under the control of, the owner; but he does undertake for their safety as against the defects and insufficiencies of his boat and other appliances for the performance of the services, and for the neglect and want of skill of himself and his servants. See Mayor, etc., v. Starin, 106 N. Y. 11; 8 St. Rep. 655; Hutch. Carr. §§ 59, 61. Ray, Neg. Imp. Dut. pp. 2, 3, 19.

Counsel for defendants cite the case of Durant v. Railroad Co., (decided at special term). That case is certainly an authority for the position that under the act of 1890 an exclusive privilege cannot be lawfully granted to one of two or more proprietors of stage lines or other like common carriers of persons. But it should be ■observed that the question arose upon a motion for a preliminary injunction, and the opinion of the court contains no discussion whatever as to the true meaning or effect of the act of 1890, and therefore it cannot be considered 'of much weight upon the question of statutory interpretation or construction. Besides, the granting of a preliminary injunction upon a doubtful right against the owner of land in possession is not consistent with the well-established principles of equity applicable to such cases. However, that case does not decide that the contract offered by this plaintiff to all persons engaged in the business of carrying passengers to and from its depots amounts to an unlawful preference and an unjust discriminatiion if accepted by one or more of such persons. On the other hand, counsel for the plaintiff refers to the case of Hanley v. Railroad Co., (Westchester Special Term, June 13, 1891,) in which Judge Dylcman refused to grant a preliminary injunction to the plaintiff against the railroad company, under similar circumstances ; but we do not regard such denial as decisive of the defendant’s rights here. In Saunders v. Railroad Co., (not reported), the defendant had granted an exclusive hack privilege at Poughkeepsie to a man named Gillan, and Saunders brought an action to compel the company to allow him the same privilege. Judge Barnard held, upon the authority of Barney v. Oyster Bay & Huntington Steamboat Co., 67 N. Y. 301, that the company had the right to contract with Gillan for the sole right to solicit baggage of passengers on their inclosed grounds. The statute of Massachusetts provides that “every railroad corporation shall give to all persons or companies reasonable and equal terms, facilities and accommodations, for the transportation of themselves, their agents and servants, and of merchandise or other property upon its railroad, and for the use of its depots and the buildings and grounds.” In Railroad Co. v. Tripp, 147 Mass. 35, the court held that a railroad company may contract with one to furnish the means to carry incoming passengers, or their baggage and merchandise, from its stations, and may grant-him the exclusive right there to solicit the patronage of such passengers, and that such an agreement did not come within the provisions of the statute; that the statute, in providing that the railroad company shall give to all persons equal facilities for the use of the depots, obviously means a use of right. It does not intend to prescribe who shall have the use of the depot, but to provide that all who have the right to use it shall be furnished by the railroad corporation with equal conveniences. The statute applies only to relations between railroads as common carriers and their patrons. It does not enact that a license given by a railroad company to a stranger shall be a license to all the world. If a railroad company, for the convenience of its passengers, allows a baggage expressman to travel in its cars to solicit the-carriage of the baggage of passengers, or to have an office in its-depot for receiving orders from passengers, the statute does not require it to .furnish equal facilities and conveniences to all persons. The fact that the defendant, as the owner of a job wagon, is a common carrier, gives him no especial right under the statute. It only shows that it is possible for him to perform for passengers the services which he wishes to solicit of them. But we have not been referred, to any decision or dictum in England or in this country that a common carrier of passengers or their baggage to and from a railroad station has any rights,, without the consent of the railroad company, to use the grounds, buildings, and platforms of the station for the purpose of soliciting the patronage of passengers, or that a regulation of the company which allows such use by particular persons and denies it to others violates any right of the latter. The defendant, in his business as solicitor of the patronage of the passengers, held no relations with the plaintiff as a common carrier, and had no right to use its station grounds and buildings. It should be said that this decision was rendered by a divided court. The minority of the court construed a statute providing for equal terms and facilities and accommodations for the transportation of passengers and property upon the railroad and for the use of the depot and other-buildings and grounds, as applying to the carrying or transportation of persons and property by means of hacks, cabs, omnibuses, drays, trucks ; that, at the last clause of the section makes provision for carriers connecting by railroads, the preceding clause-was intended to make provision for other connecting carriers :

“ Stages and expresses are the only common carriers of passengers and of merchandise to and from many places in the commonwealth, and, in connection with railroads, often form a continuous line of transportation. The statute was intended to prevent unjust discrimination by a railroad corporation between common carriers connecting with it in any manner, and to require that the railroad corporation should furnish equal terms, facilities,. and accommodations in the use of its depots and other buildings and grounds for the intercharge of traffic. The railroad company can probably prohibit all persons from soliciting business for themselves or its premises. . Whatever may be its right to exclude all common carriers of passengers or of merchandise from its depots and grounds who have not an order to enter, given by persons who are or who intend to become- passengers, or who own, or are entitled to the possession of, merchandise which has been or is to be transported, it cannot arbitrarily admit to its depots and grounds one common carrier and exclude all others. The effect of such a regulation would be to enable a railroad corporation largely to control the transportation of passengers and merchandise beyond its own lines, and to establish a monopoly not granted by its charter, which might be solely for its own benefit, and not for the benefit of the public. While the statute, from the nature of the subject, must be construed as to permit the corporation to make such reasonable regulations as are necessary to enable it to perform, without inconvenience, its duties as a common carrier, and such as the size and condition of its depot and other buildings and grounds require, yet the facts stated in the report cannot be held sufficient to warrant the plaintiff in admitting one company of expressmen to, and excluding all others from, the advantages of bringing express wagons within its grounds, and of accepting or soliciting employment as a common carrier of baggage from the passengers arriving at its depots. The report does not show that any inconvenience to the company or to the public using the railroad was occasioned by the defendants entering the grounds for the purpose of soliciting employment as a common carrier of baggage. Upon the facts as they appear in the report it cannot be said that, within any reasonable construction of the statute, reasonable and equal facilities were granted to the defendant and to Porter, or that any necessity existed for giving a preference to the latter.” “ The late English cases seem to show that under the English statute the public convenience or inconvenience is not exclusively the test, but is only one element to be taken into account in considering what is an undue and unreasonable preference, and that a common carrier may be regarded as representing all those persons who may choose to employ him. While the English statute provides against undue and unreasonable preference and advantages, it does not in terms provide that all persons and companies shall have equal facilities and accommodations for the use of the depot and other building and grounds of a railroad corporation.”

The constitution of Missouri under the heading “Railroads,” provides that “ no discrimination in charges or facilities in transportation shall be made between transportation companies and individuals, or in favor of either by abatement, drawback, or otherwise.”

In Cravens v. Rodgers, 101 Mo. 247, the court held it was contrary to the spirit of this provision for a railroad company to give the “ the exclusive privilege of approach to nearly one-half of its platform, and that the most desirable and advantageous half for procuring passengers, and thereby deny it to defendants,” who claimed that the plaintiff thereby enjoyed greater privileges and advantages in soliciting the carrying of passengers and baggage. The ground of the decision was that the defendants could not approach the platform allotted to them without some difficulty in dry weather, and in wet weather it was very hard to do so; that the plaintiff’s vehicles would have a better chance of obtaining passengers than defendants’, “although there is some evidence tending to show the chances are equal.” But it does not appear that there was any discrimination “ in facilities in transportation between transportation companies and individuals by abatement, drawback, or otherwise,” nor is it stated that the passengers desiring to use defendants’ vehicles were in any way discriminated against, or put to inconvenience, discomfort, or in any manner prejudiced. The decision contains no discussion whatever of the common law or statutory rights of hackmen or of railroads. The decision is not founded upon precedents nor principles governing like cases, and we would not be justified in following it as an authority.

The statute of Michigan provides that “ all railroad corporations shall grant equal facilities for the transportation of passengers and freight to all persons, companies or corporations." In Bus Co. v. Sootsma, 84 Mich. 194, the court construed this statute as applying to the transportation of passengers and freight by means of hacks, omnibuses, drays, trucks, etc., and therefore that no exclusive privilege could lawfully be granted to one hack or omnibus owner; that the company was not probably bound to grant any facilities for the solicitation of passengers, but that it could not grant such facilities to one and deny them to others. But also, independent of the statute, “it was contrary to the spirit of our laws, and against the public policy that refuses to encourage or foster monopolies in any kind of business,” to allow one hack driver to use the private grounds of the company and refuse all others, for no other reason than it is for its own profit or pleasure.” But the plaintiff showed that the reason for granting this privilege was for the benefit, convenience, and protection of the passengers who had been theretofore defrauded by the hackmen. The ground of the decision, however, was that the hackmen could not be discriminated against, without any 1 regard to the public convenience or inconvenience, advantage or disadvantage.

In Griswold v. Webb, 16 R. I., 651, the court approved Barney v. Oyster B. & H. Steamboat Co., 67 N. Y. 301, and observed that a railroad company had a right to say “ that no one shall come here to solicit trade simply because it may be convenient for passengers, and so to say that none except those whom it permits shall solicit in the business of hacking or expressing; ’’ and, referring to the recent English cases, that “ they relate chiefly to the question whether a prohibition to one to ply for passengers within a station, when the same right is granted to another, is_ an undue preference under the statute. It is generally held that it is not.”

We have now examined the statute under which the defendants claim, and considered the manner in which it should be construed, viewed from the wording of the statute itself and in the light of decisions pertaining to that and similar statutes. Let us now consider what are the common-law rights of hademen to transact their business in the depots and buildings and upon the grounds of railroad companies. In Barney v. Oyster B. & H. Steamboat Co., 67 N. Y. 301, the court held that a common-carrier may—

“ Carry on, in connection with his business of carrier, any other business, and may use his property in any way he chooses to promote his interests, not inconsistent with the duty he owes to passengers. The vessel or vehicle which he uses is his own, and, except to the extent to which he has devoted it to public use by the business in which he has engaged, he may manage and control it for his own profit and advantage, to the exclusion of all other persons. He may establish, for the convenience of passengers and for his own profit, on his car or vessel, an agency for the delivery of baggage or passengers, and exclude all other persons from entering to solicit or receive orders from passengers in competition with the agency established by him. This is in no j ust sense a monopoly. It is simply saving to the carrier a legitimate advantage which his position and business give him. The plaintiff sought passage for the purpose, among other things, of taking, while in the boat, in his capacity as expressman, orders from passengers, for the delivery of baggage. The defendant had placed an expressman on the boat for that purpose, and it is clearly inferable that he had a pecuniary interest in the business.”

In this case, however, the carrier was not exercising a franchise granted by the state.

The opinion of the court in The D. R. Martin, 11 Blatchf. 234, is appropriate to this case :

“A steamboat company or a railroad company is not bound to furnish traveling conveniences for those who wish to engage in their vehicles in the business of selling books, papers, or articles of goods, or in the business of receiving and distributing parcels or baggage, nor to permit the transaction of this business in their vehicles when it interferes with their own interests. If a profit may arise from such business, ie benefit of it belongs to the company, and they are entitlei to the exclusive use of their vehicles for such purpose. Thit, eems to be clear, both upon principle and authority. * * i A carrier, like all others, may bestow a favor when he chooses, Rights, not favors, are the subject of demand by all parties indiscriminately. The incidental benefit arising from the transaction of such business as may be done on board a boat or car belongs to the carrier, and he can allow the privilege to one and exclude from it another at his pleasure. * * * This individual is under their control, subject to their regulations, and the business interferes in no respect with the orderly management of his vehicle. But, if any one who thinks fit can enter upon the performance of these duties, the control of the vehicle and its good management would be at an end. The sale or leasing of these rights to individuals, and the exclusion of others therefrom, comes under the head of reasonable regulations, which the courts are bound to enforce.. The right of transportation, which belongs to all persons who desire it, does not carry with it a right of traffic or of business.”

The court held that an express agent, though a passenger, might be lawfully removed from a steamboat upon his refusal to desist from pursuing his business on the boat.

In Railway Co. v. Langlois, 9 Mont. 419, the company granted to Lavell the exclusive right to drive and stand his hacks along the edge of the passenger platform, but allowed all other hackmen the privilege of standing their hacks in the depot yard to deliver and receive passengers at a point on said platform 50 feet, distant east from the place allotted to Lavell. The company asked for an injunction to restrain defendant from driving or standing hacks at said platform at the west side of its depot buildings, or within 50 feet thereof. Defendant alleged that the place allotted Lavell was the portion of the platform where passengers alighted from the trains; that the portion of the platform east thereof allotted to defendant was used almost entirely for handling freight and baggage, and the ground alongside was always used by baggage and freight wagons; and that, if Lavell were allowed the exclusive use of the platform west of the station, it would give him the entire control of the business of carrying passengers from the depot, to the discomfort, inconvenience, and detriment of the passengers. Defendant denied the right of the company to “ grant the exclusive use of. a portion of the platform to one party to approach and occupy the same to convey passengers thereto and receive passengers therefrom, and exclude 'all others from so doing.” The court said that the grant of the special privilege to Lavell, “and the exclusion of all others from approaching thereto to land or receive passengers, was not a reasonable regulation.” It will be noticed that the company claimed the right to exclude defendants from landing or receiving passengers at the proper and convenient place devoted to that purpose, even though they had a previous order from the passengers, and the courlj remarked that:

“ The demands in the case at bar go beyond those urged in any of the cases cited. * * * All passengers in common are entitled to equal opportunities and conveniences of place to approach and depart from plaintiff’s trains. But the plaintiff contended that it may grant the exclusive use of a large portion of its platform to one party at which to land passengers for departure on its trains, or to receive passengers from said trains; and, if the passenger is willing to contract with this one party for transportation thereto or therefrom, such passenger may have the convenience of landing or departing from that portion of the platform, otherwise he must land fifty feet away therefrom, or go to another portion of the platform, incumbered with express and baggage wagons and the handling of freight and baggage. A passenger is entitled to the same conveniences and facilities for approaching and leaving the depots as other passengers. If he contracts with another than Lavell to carry him there and be there to receive him on his return, he must alight from his carriage and be received by it fifty feet away from said platform, or be landed where the express and baggage matter is handled, while the passenger who employs Lavell may land and depart from this convenient portion of said platform. Or, if a party desired to use his own carriage to bring him to the station or receive him on his return, it seems the same condition would prevail. * * * Suppose all other hackmen will perform the same service for half the sum charged by Lavell, are not the passengers entitled to the benefit of this competition ? Has not the passenger the right to call these other hackmen to his service ? And if he does call them, has he not a right to have them approach the platform at the same place, or at least have an equal •and common chance to approach at this same convenient place, as his copassenger who employs Lavell? If any of the passengers •do accept these better terms, they must suffer the discrimination of being denied at that portion of the platform granted exclusively to Lavell.”

These extracts from the opinion of the court will suffice to ■show that the decision was placed upon the ground, not that there was an unjust discrimination against the hackmen, but rather that there was an unjust discrimination against the equal rights of passengers, and solely for that reason the exclusive grant ■or privilege was held void, upon “ grounds of sound reason, pub-, lie policy, and the general principles of law governing common •carriers, as well as the provisions of our constitution that 1 no distinction in charges or facilities for transportation of freight or passengers shall be made by any railroad.’ ” The court distinguished the case in Railroad Co. v. Tripp, 147 Mass. 35, on the fact that there “ all the hackmen were allowed equal privileges to •come to the station to deliver passengers and baggage and to receive such as they had previous orders for.” But, strange to say, while approving of the general principle of law in the case cited, the court goes on to question the conclusions reached by a majority of the court, the decision made upon the facts existing in that case. A comparison of the two cases will show that if the facts existing in the Montana case were •elements in the Massachusetts case the decision would have been the same. In. connection with the Massachusetts case above referred to (Railroad Co. v. Tripp, 147 Mass. 35), see the case of Express Co. v. Railroad, 117 U. S. 1, 603, 6 Sup. Ct. 542, 628, and observe the construction put upon the constitutional provision therein quoted. It may very properly be cited as an authority for this proposition that by the common law the railroad was under no obligation as a common carrier to afford any accommodations to hackmen for the transaction of their business. A statute in these general terms must be limited and restricted to the duties or obligations which it owes to the public generally in the performance of the functions of a carrier, and does not create any new duties or obligations to particular individuals in respect •to the carrying on of their business, nor prevent the granting of any exclusive privilege to any of them. The opinion is in accord with the decision in Massachusetts, and founded upon the same general doctrines. There remains one further question raised upon this motion. The plaintiff claims that it has offered to these defendants and all other hackmen at Niagara Falls the same privileges and facilities in its depot, buildings, and ground upon their complying with the terms and conditions prescribed by the company. It claims that these conditions and terms are reasonable, and that it has acted in perfect good faith in its offer. The defendants claim that the compensation required by the plaintiff for these privileges is unreasonable,and that the defendants are unable to comply with them. In Vickers Express Co. v. Canadian Pac. Ry. Co., 18 Ont. App. 210 ; affirming 9 Ont. 251, the statute provided that railway companies, -“shall grant equal facilities, on equal terms and conditions,” to any express company demanding the same. Held that, in the absence of collusion, the court would not inquire into the reasonableness of the rates charged to an express company, they being the same prescribed in a contract previously made with another express company. That, in the absence of fraud, the court has no right to vacate Or alter such contract, or to require the parties to enter into a new and different contract. “The defendants have chosen to make a special contract with the defendant express company over their great lines and its branches, the latter paying a large sum for the privilege, and a minimum mileage rate. Having done this, the legislature fastens on them the liability to grant equal facilities, on equal terms and conditions, to any other express company requiring the same. They answer "this by offering to place plaintiff’s company under the same terms and mileage rate as the defendant express company pays for the same. The railway company produce their contract with the first company, and declare their readiness to deal with the second company on precisely the same terms as to renumeration.” As was said in the express cases, 117 U. S. 29, 6 Sup. Ct. 542, 628, the court cannot determine how the compensation shall be measured, or make for the parties such a contract for the business as in its opinion they ought to have made for themselves.

Upon full consideration of the questions presented and examined we are led to the conclusion that “by the common law the railroad is under no obligation, as a common carrier, to afford accommodations to hackmen for the transaction of their business, and that the statute invoked by defendant is limited and restricted to the duties or obligations which it owes to the public generally in the performance of the functions of a carrier, and does not create any new duties or "obligations to particular individuals in respect to the carrying on of their business, or prevent the granting of any exclusive privilege to one of them.” It follows, therefore, that in our opinion the injunction was properly granted, and should be continued. Motion to dissolve injunction denied, with $10 costs.


author: Osborne, J. Clement, C. J.

text:
    Eliza Pill, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed December 26, 1893.)

    Damages.—Future Earnings.
    In an action for personal injuries, proof of loss in future earnings is competent, when plaintiff has received a fixed compensation for his services, or his earnings can be shown with reasonable certainty.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for anew trial.

      Henry D. Hotchkiss, for app’lt, Chas. J. Patterson, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages alleged to have been sustained by her through the negligence of the defendant. She obtained a verdict for $6,500, and from the judgment entered thereon and the order denying a motion for a new trial, this appeal is taken.

After the charge to the jury, the learned trial judge was requested by the counsel for the plaintiff “ to charge the jury that, if the jury, are satisfied that the plaintiff has lost the ability to earn money in the future by reason of this accident, and they find for the plaintiff, then they are obliged to include in the award such sum as they believe the plaintiff will lose in future earnings by reason of the injury.” The learned trial judge charged as requested, and the learned counsel for the appellant duly excepted thereto. The exception so taken is the only point raised by the learned counsel for the appellant on this appeal, and he contends in a very able argument that such charge was erroneous and constitutes good ground for a reversal. Plaintiff having been shown to be incapacitated by the injuries which she sustained from doing work, from following her usual occupation, there can be no question that the loss of her ability to work, to earn money at her vocation, was an element which the jury was bound to take in consideration in assessing her damages. Plaintiff was a working woman, and she certainly had the right to prove that she possessed, previous, to the injuries complained of, some earning capacity. How otherwise was it possible for her to do so, unless she proved just what work she had been engaged in, and what she had earned ? Then, when it was shown that she had lost her previous capacity to earn, as testified to by her, the loss of such earnings in the future, by reason of the injury, was an element of damage which it was the duty of the jury to include in any verdict which they might award her.

The learned counsel for the appellant, however, contends that the charge of the learned judge was erroneous in that he charged that the “ loss in future earnings,” instead of loss of “ future earning power,” was to be included in any award of the jury. While it is quite true that evidence of a speculative or conjectural character is condemned by the courts, and a verdict based thereon will be set aside, still we do notethink that the request, to charge that was excepted to was open to that objection. The jury was not directed to make estimated or conjectural future profits the basis of their profits in that particular, nor even to consider any evidence of past profits in estimating plaintiff’s damages. The charge, substantially was to award plaintiff, if she recovered at all, such amount as the jury believed she would lose in future earnings by reason of her disability, and, of course, in determining that, the jury was bound to consider all the evidence in the case touching upon that subject.

The cases of Masterton v. Village of Mt. Vernon, 58 N. Y., 391, and of Marks v. Long Island Railroad Co., 14 Daly, 61; 3 St. Rep., 562, are relied on by the learned counsel for the appellant as sustaining his contention. Neither of those cases seems to us to be in point. In the Masterton case plaintiff was a member of a firm doing a large business in the importing, purchasing and selling of teas, and was an expert in teas, and he was allowed to prove that large profits had been made by his firm previous to his sustaining his injuries, that he was no longer able to attend to his business, that the profits had largely fallen off, and it was claimed that this loss of profits was due to plaintiff’s incapacity, and that he had a right to recover therefor. The court decided that the profits of a large commercial partnership were too uncertain and subject to too many contingencies to constitute a safe guide in assessing damages. But even in that case Judge Grover, writing the opinion of the court, said: ‘‘When in such a case plaintiff has received a fixed compensation for his services, or his earnings can be shown with reasonable certainty, the proof is competent.” In the Marks case plaintiff was a manufacturer of clothing. He employed hands to sew and make up garments that had been cut and furnished to him in large quantities by dealers in clothing, on contract. There, likewise, it can readily be seen that plaintiff’s future profits, for the loss of which he claimed to recover, were largely uncertain and contingent, and the court very properly held that in such a case the profits of the business did not depend solely on the skill .of the individual. We think that the law as laid down in the case of Ehrgott v. Mayor, etc., 96 N. Y., 264, is in point. In that case plaintiff, a book canvasser, was permitted to show his previous earnings, and the court illustrated his position by likening it so far as earnings was concerned to the occupations of a lawyer’, a physician, or a dentist, as indi viduals whose earnings are the result of their personal and professional skill without capital- invested. The lawyer is compelled to invest in law books, and to employ clerks to assist him; the physician in many cases, especially in the rural districts, provides the medicines he prescribes: the dentist invests in gold leaf and plate, artificial teeth, expensive tools and appliances, and employs assistants—yet the court referred to the lawyer, the physician and the dentist as persons whose earnings were the result of their personal and professional skill without the investment of capital, and whose previous earnings or profits might be given in evidence on the question of damages sustained by being incapacitated from following their respective occupations.

In the case before us plaintiff testified, without objection, that she was a custom corset maker and had been for 15 years. “ By custom corset maker I mean I make them to order for people, to fit people.” That she had a workroom in her house, employed two girls to help her, to one of whom she paid one dollar a day, and to the other ten dollars a month and kept her in the house steady, and that her earnings were from thirty to fifty dollars a week, and that they averaged twent-five to thirty dollars a week the year round. While the evidence does not show it, we may safely assume that plaintiff purchased the materials necessary to make •corsets as ordered by her customers; but we do not think that such purchases and the employment of two women to assist her can be deemed, within the cases, an investment of capital. We think that plaintiff’s business, as described by her, was plainly ■one where her earnings, as testified to by her, were the result of her personal skill, and that they were “ shown with reasonable certainty,” as Judge Grover puts it supra. We are according of the opinion that the exception to the request to charge was not Well taken, and that the judgment and order denying motion for a new trial should be affirmed with costs.

Clement, C. J.

I am of opinion that the judgment and order •denying new trial should be affirmed, on the ground that the jury were only instructed to include in their award such sum as they found the plaintiff would lose in future earnings by>reason of the injury. There was testimony on which the jury could determine her earning capacity, and the question of the right of the plaintiff to recover for loss of future profits of the business was not involved in the request.