text:
    Edward Jones, plaintiff, vs. The Mayor, &c. of the City of New York, defendants.
    1. Section 28, of the amended charter of the city of New York, (Laws of 1857, ch. 446,) which provided for the establishment by the common council of said city of such bureaux as they might deem the public interest to require, and the assignment by the former to them, and to the departments and bureaux therein erected, of such duties as they might direct, not inconsistent with that act, and the performance of the duties thereof in accordance with the charter and laws and ordinances of the city; and which also provided that no expense should be incurred by any of the departments or officers thereof, whether the object of the expenditure should have been ordered by the common council or not, unless an appropriation should have been previously made, covering such expense; Held to apply only to expenses to be incurred by a department, or an officer thei-eof.

    2. There are expenses which may be incurred by such common council directly, without the intervention of a department. Of this character are the expenses of printing, publishing and binding the proceedings of the civic authorities in regard to the obsequies of a deceased President of the United States ; control over the performance of such work, and furnishing materials therefor, not being given in express terms, to any of the departments mentioned in such act, nor vesting in any one of them, as a necessary consequence of the system of municipal government planned and intended by that act..
    3. The scheme so devised was to provide for the performance of ordinary executive duties, and the incurring of ordinary expenses, necessary to be. performed or incurred in the course of carrying on the city government. The expense in question was an occasional one, incurred for special objects, which arose suddenly and unexpectedly, and was in no way connected with the ordinary and regular administration of the, affairs of the corporation. Per Jones, J.
    4. For work done, and materials furnished by order of the common council, for such a purpose, the corporation is liable, although no previous appropriation, covering the expense to be incurred, was made.
    6. Although, by section 28 of the amended charter, the common council is authorized to establish such other bureaux as the public interest may require, yet it is not imperative on them to establish a bureau for the sole and express purpose of giving it cognizance over a special and occasional expenditure. Though they were authorized to establish such a bureau, for that purpose, if they deemed it required by the public interest, the bare fact that they did not do so, is sufficient evidence that they did not deem it so required. Per Jones, J.
    (Before Jones, J. at special term,
    April —, 1867.)

      This was a motion for judgment on the pleadings. The complaint alleged that the plaintiff, in the years 1865 and 1866, performed labor in printing and publishing, and furnished materials for the board of aMermen and councilmen of the city of'Hew York, which labor was performed and materials furnished to the defendants at their request, and amounted, in value, to $60,334.50. ■ It further alleged a presentation of the- claim to the comptroller of the city of Hew York for signature or payment, and that more than twenty days had elapsed since such presentation. It further alleged that a second demand had been made, in writing, upon said comptroller, after the expiration of more than twenty days from the time of making the first demand, but that the comptroller neglected and refused to make any adjustment or payment. It then demanded judgment for the sum of $60,334¡50, with interest from Hovember, 1866, and costs of action.
    A bill of particulars of the amount set forth in the complaint was served.
    The answer set up as a defense, First. That all the items of labor and materials specified in the bill of particulars were furnished in and about the printing, publishing and binding of the proceedings of the civic authorities in regard to the obsequies of the late President Lincoln. Second. That no appropriation covering the expense thereof was made by the common council of the defendants previous to incurring such expenses. Third. That the only appropriation ever made to pay such expenses was by an ordinance adopted by said common council about December 30, 1865, whereby the sum of $30,000 was approprb ated for the costs and expenses of printing and binding Hoffman’s compilation of laws and ordinances, and of. printing and binding the proceedings of the civic authorities in regard to the obsequies of President Lincoln; and Fourth. That such sum of $30,000 was wholly expended since said December 30, 1865, and previous to the commencement of this action, and paid out to the plaintiff as follows:
    For printing and binding Hoffman’s Laws, . $11,164 00 For printing and engraving on Lincoln’s obsequies, .............$18,836 00
    For items other than those sued on. And nothing now remains in the treasury of the defendants, to the credit of the appropriation.
    -for the plaintiff.

      R. O’ Gorman, for the defendants.
    I. The common council are officers of the corporation, and have only such powers as are vested in them by the charter. (5 Abb. 115, 329.)
    II. The powers of the officers of the city to expend the public funds are limited by the provisions of the charter, “ that no expense shall be incurred by any officer of the department, unless an appropriation, covering the expense, has been previously made.” And when the officers of the city violate the limitations prescribed by the charter, their action is ultra vires, void and insufficient to bind the city. (Bonesteel v. The Mayor, 22 N. Y. Rep. 162. 23 Barb. 349. 6 Duer, 446. 15 How. 462. 24 Barb. 117. 2 Bosw. 173. Donovan v. The Mayor, 33 N. Y. Rep. 291.)
    HI. Persons dealing with officers whose powers are limited and defined by public statutes, are bound; at their peril, to take notice of the limitations of the powers of those officers. (Brady v. The Mayor, 2 Bosw. 173. Donovan v. The Mayor, 33 N. Y. Rep. 291.)
    IV. The answer, therefore, tenders an issue upon a fact material and necessary to be proved by the plaintiff, and consequently is sufficient to defeat this motion.
   Jones, J.

It is not denied in the answer of the defendants that the common council ordered the work for whose value this action is brought; that the work was such as fell within the scope of their corporate powers to order; that it was performed; and that the compensation demanded therefor is reasonable; but the sole point made by the defendants’ counsel, in support of the defense, is that by reason of a statutory restriction the common council, although it had power to order' the work, yet it had no power to incur the expense necessary for its performance, until an appropriation covering the expense had been made.

In support of this proposition, he relies on section 28 of chapter 446 of the Laws of 1857. That section reads thus : “It shall be lawful for the common council of said city to establish such other bureaux as they may deem the public interest may require, and to assign to them, and to the departments and bureaux herein erected such duties as they may direct, not inconsistent with this act, and the duties thereof shall be performed in accordance with the charter and laws and ordinances of the city; but no expense shall be incurred by any of the departments or officers thereof, whether the object of the expenditure shall have been ordered by the common council or not, unless an appropriation shall have been previously made, covering sijch expense.

It is evident this section applies only to expenses to be incurred by a department or an officer thereof The questions then arise : Are there any expenses which may be incurred by the common council directly, without the intervention of a department; and if so, is the expense in question among them ? If both these queries are answered in the affirmative, section 28, before mentioned, is inapplicable.

Upon an examination of the act 1857 it will be seen that six executive departments are created thereby, entitled respectively, Finance, Street, Croton Aqueduct Board, Almshouse, Law, and City Inspector. And in each department, (except, perhaps, the almshouse,) various bureaux are established. Each one of these departments has, by by the act, certain duties and powers confided to, and imposed on, it; and the great mass of the executive duties necessary to carry on the ordinary action of the city government is vested in them.

The matters thus confided to these several departments, together with the police and educational systems which are established and regulated by separate acts, and the fire system, which at that time was voluntary, comprised substantially all the necessary executive duties involving expenditure, to be performed in the carrying, on of the city government.

Viewing these provisions with the one requiring that all contracts to be made by authority of the common council for work to be done or supplies to be furnished, and all sales of personal property in the custody of the several departments or bureaux shall be made by the appropriate heads of departments, and also with the one requiring that no expenditure for work or supplies involving an amount for which no contract is required shall be made, except the necessity therefor be certified to by the head of the appropriate department and the expenditure be as authorized by the common council, it clearly results that the legislature, by the act of 1857, made provision for the ordinary conduct of the government. " The provisions of that statute show that the scheme of the government, thus established, was that the executive duties which ordinarily and with reasonable certainty arise in the carrying on of the government should be committed to divers departments, and that each department, as to the matters confided to it, should have the immediate supervision over them, make all the contracts and order and superintend all the work required, with reference to such contracts.

It is in reference to the departments thus established by the act that the provision relied on was passed, so as to restrict them m the performance of the executive duties confided to them, and such expenditures as shall be authorized by the legislative branch of the city government. So, also, the' provisions as to making, contracts, and to a certificate of the necessity of work or supplies, apply to these departments only, and so applied, they are appropriate and reasonable provisions. For, while, on. the one hand, the department which is to have the supervision and control over the work to be done should be entrusted with the making and custody of the contract, and on the other hand, before work or supplies are ordered by the legislative board to be done or furnished by any department, the necessity therefore should be certified by such department, as it has greater means for determining such necessity than the common council.

While, on the one hand, it seems to me perfectly plain that if procuring the work and materials in question to be performed and supplied, and the supervision and control .over such performance, fall within the power and duties of any one of these departments, either as conferred by express language or as a necessary result of the scheme of government, the defense set up in this action would be proper; yet on the other hand, it is equally clear that if the procuring the work and materials in question to be performed and furnished does not fall within the cognizance of any of the departments created by the act, then the defense is bad; since, in that event, the restriction imposed by section 28 on the departments and the officers thereof would have no application, and consequently there would exist no restraint on the ordinary authority of the mayor, aldermen and commonalty, in the exercise of its legislative powers, to incur expense for municipal purposes.

Upon examining the various provisions of the act of 1857, I do not find that control over the performance of such work, and furnishing such materials as those in question is given, in express terms, to any one of the departments mentioned in the act. Kor does it seem to me that such control vests in any one of the departments, as a necessary result from the scheme of government mapped out by the act.. That scheme was to provide for the performance of the ordinary executive duties and the incurring of the ordinary expenses necessary to be performed or incurred in the course of carrying on the city government.

The expense in question is, in no way, connected with the ordinary routine of the affairs of the city government; it was wholly unnecessary to incur it for the purpose of enabling any executive department to perform its duties. If the expense had not been incurred, the public interest would not have suffered one jot; all the matters in which the citizens are chiefly interested, and which are necessary for the enjoyment of safety, health and property, would still have been attended to, without the slightest interruption. The streets, public roads, wharves and piers, markets, public buildings and places, Croton water, lighting the streets, public education, police and fire departments, and courts, would all have been as fully superintended and cared for, without this expense as with it.

The expense in question was clearly one of those occa- ' sional ones, incurred for special objects, suddenly and unexpectedly arising, and, in no way, connected with the ordinary and regular administration of the affairs of the corporation.

I am aware that, by section 28, the common council is authorized to establish such other bureaux as the public interest may require; but it is not imperative on them to establish a bureau for the sole and -express purpose of giving it cognizance over a special and occasional expenditure. They undoubtedly were authorized to establish such a bureau for that purpose, if they deemed it required by the public interest, but the bare fact that they did not establish such bureau is sufficient evidence that they did not deem it required by the public interest.

I have, therefore, come to the conclusion that the sole ground upon which the defendants’ counsel insists on the validity of the answer, viz. that no previous appropriation, covering the expense to be incurred, was made, is untenable; as that restriction applies only to expenditures required to be made by or through the departments created by the act of 1857, and as the expenditure in question is not by the act required to be made by or through any one of those departments.

Having come to this conclusion on the sole point raised, judgment must be given for the plaintiff.

The cases cited by the defendants’ counsel are not in conflict with these views; one of them, indeed, in a slight degree, sustains them.

The case of Bonesteel v. The Mayor, &c. (22 N. Y. Rep. 162,) merely decided that, after a contract, authorized by the common council, has been entered into, signed and executed between the corporation, on the one side, and a party agreeing to perform the w.ork, on the other, in the manner provided by the charter, the street'commissioner, unless expressly authorized by the common council, has no authority to change its provisions.

Donovan v. The Mayor, &c. (33 N. Y. Rep. 291,) only decided that, under the act of 1857, the street department had cognizance of the expenditure in- question in that case, which was for repairs on the public roads; that, conseqúen tly, both sections, 28 and 38, of the act applied, and that, as the provisions of those sections were not complied with, the plaintiffs could -not recover. Altemus v. The Mayor, &c. (6 Duer, 446,) was an action brought to recover damages for the refusal, by the street commissioner, to execute and deliver to Smith, Seckel & Co. certain contracts for cleaning the streets of the city, which had been awarded to them as the lowest bidders. The defense was, that no appropriation, covering the expense of the work, had been made. The court held the defense good, on the same ground on which Donovan v. The Mayor, &c. (supra,) was decided. The People v. Stout, (23 Barb. 349,) was decided under sections 12 and 15 of the prior act of 1853. Section 12 peremptorily required that all work to be done, and all supplies to be furnished to the corporation, involving an expenditure of more than $250, should be by contract, and section 15 applied this provision to the supervisor. The work claimed for in The People v. Stout was not done by contract, and involved an expenditure of more than $250. The court consequently held, that, under those sections of the act of 1853, there was no legal claim against the county for the work done. Brady v. The Mayor, &c. (2 Bosw. 173,) and McSpedon v. The Mayor, &c. (15 How. Pr. 462,) were decided on the same ground as the case of The People v. Stout, (supra.)

Upon the facts appearing in those cases, and the law applicable thereto, the decisions were unquestionably correct. But they have no application to the case now before us for decision. The case of Bonesteel v. The Mayor, &c. (supra,) is clearly irrelevant. The cases of Donovan v. The Mayor, &c. and Altemus v. The Mayor, &c. (supra,) only hold, that where a department has cognizance over the matter for which an expenditure is to be made, then the expenditure must be made by or through such department, and the restrictive provisions apply; but it is neither held nor intimated in those cases, that no expense whatever can be incurred, except by or through a department. The cases of The People v. Stout, Brady v. The Mayor, &c. and McSpedon v. The Mayor, &c. (supra,) were decided under the peculiar provisions of the act of 1853, which were repealed by the act of 1857.

I have said one of these cases somewhat sustained the conclusion at which I have arrived. It is the case of McSpedon v. The Mayor, &c. (supra.) In that case the claim was for printing “ Kent’s Notes on the City Charter,” which work the common council ordered their clerk to have done. The expense amounted to over $250. The court, although conceding that the corporation had power to take the entire control of its ordinary daily printing, yet, under the peremptory provisions of section 12 of the act of 1853, held, that if a' single item of printing ordered amounted to more than $250, the work must be done under contract. " On this ground, alone, the plaintiff was defeated in that action. Under the act of 1857 this objection cannot be urged against the claim of the present plaintiff, since that act has repealed section 12 of the act of 1853, and provides that when the work to be done, or the supplies to be furnished, involves an expenditure of more than $250, it shall be by contract, unless by a vote of three fourths of the members .elected to each board it shall be ordered otherwise. (See section 38.) And in this case it is not urged, nor even pretended, that the resolution ordering the work in question to be done without contract, received less than the number of votes required to pass it.

Judgment must therefore be given for the plaintiff, with costs.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    The Mayor, &c. of the City of New York, plaintiffs, vs. Emanuel S. Baumberger, defendant.
    1. Any private individual who suffers, or is likely to suffer, such special damage from a public nuisance as cannot be compensated for in damages, may have an injunction against its continuance.
    2. Any unlawful obstruction, that impedes the free use of a navigable river for purposes of navigation, is a public nuisance.
    8. If a deposit in a navigable river of mash from a brewery, by the act of the defendant, creates a public nuisance by impeding navigation, and is especially injurious to the corporation of the city of New York, by preventing vessels coming up to its wharves, and thereby depriving it of dockage and "wharfage, the corporation is entitled to an injunction; unless such deposit is made by its express or implied license.
    4. In such a case the fact that the mash is carried to the river through a sewer constructed by the plaintiffs, with which the defendant has a license to connect a branch, does not make the deposit any the less the act of the defendant. Per Jones J.
    5. Although a license, from the corporation to an individual, to connect a branch with a public sewer, gives him a right to the use of the sewer for all purposes for which it can properly and legitimately be used, its employment to carry off the refuse of a brewery is neither proper or legitimate.
    6. Whatever may be the other purposes of a sewer, that of carrying off as useless and refuse stuff an article capable of being sold and consumed, and thus becoming a source of profit cannot be one. Per Jones, J.
    (Before Jones, J. at special term,
    July —, 1867.)
    Motion to vacate an order enjoining the defendant from discharging through a sewer constructed by the plaintiffs, the refuse of a factory of the former, by means of a branch of such sewer, connected with the works of the defendant.

      H. H. Anderson, for the plaintiffs.

      I. T. Williams, for the defendant.
   Jones, J.

I believe it to be now. well settled that any private individual who suffers such special damage from a public nuisance as cannot well be compensated in damages, máy have an injunction against the continuance of the nuisance. (Wetmore v. Story, 22 Barb. 414. Davis v. The Mayor, &c. 14 N. Y. Rep. 526.) If, then, the deposit of the mash in question creates a public nuisance, and is especially injurious to the plaintiffs, and it is being deposited through the defendant’s act, the injunction should be retained, unless such deposit is with the express or implied license of the plaintiffs. Any unlawful obstruction that impedes the free use of a navigable river for the purposes of navigation is a public nuisance. The affidavits show that the deposit of the mash impedes the free use of the Hudson river for purposes of navigation, by diminishing the depth of water. The result of which diminution, at present, is that vessels of a size that were accustomed to navigate that part of the river, can no longer do so, and a continuance of such, deposit would gradually diminish the depth of water, so that as it diminished, the size of the vessels capable of navigating that part of the river would diminish, until, perhaps, finally, not even a row boat could navigate it. Such a deposit as this, if made without authority, would be a public nuisance. As the effect of this deposit would be to prevent vessels coming up to the plaintiffs’ wharf, thereby depriving the plaintiffs of dockage and wharfage, it is especially injurious to them, and that injury cannot well be compensated in damages. The affidavits leave no room for doubt that the deposit in question is formed of mash coming from the .defendant’s brewery. ' The fact that the mash is carried to the river through the sewer does not make the deposit any less the act of the defendant. The mode in which he gets it to the river makes no difference. It is immaterial whether he takes it there in carts, or runs it through a branch of the sewer into it, and then through the main sewer itself. If the defendant has no authority to make the deposit, and the plaintiffs have given him no license, this injunction must be retained. The defendant does not claim so to carry off such refuse under authority from the state, nor” any authority or license from the city, other than such as can be implied from the construction of the sewer, and the license given to him to connect by a branch with it. He claims this gives him a right to use the sewer for all purposes for which it can be properly and legitimately used. And if the plaintiffs have s<p constructed it, that such use results in damage to them, it is damnum absque injuria. The first part of the claim is undoubtedly correct; upon the last part it is unnecessary to express an opinion, for I have come to the conclusion that the use the defendant is making of the sewer is not proper or legitimate. Sewers are constructed for the purposes of drainage, and to carry off dirty water, filth and refuse matter. (Webster’s Dictionary.) And such r'efuse matter must be such as is readily soluble by the ordinary action of the water remaining in the sewer. The mash in question is neither filth nor refuse water; it possesses value; other brewers make it a source of profit; they sell it, and their vendees have no difficulty in removing it without the aid of a sewer. Whatever other purposes a sewer may be intended to sub-serve, that of carrying off as useless and refuse stuff, an article, the sale of which is a source of profit, and which is usually sold and carried away to be made use of, cannot be one.

Injunction sustained, with $10 costs.


text:
    Christian Schaefer, plaintiff, vs. Henry Herb and Henry Marbeck, defendants.
    1. Where the existence of a continuous artificial canal upon the lands of both parties, through which water flows, lies at the foundation of an action, and an order has been made therein restraining the deféndant from interfering with the flow of water in such canal, so as to interrupt it on his own land and throw it .back on the plaintiff’s and direct it into his cellar; such order will be vacated, unless on an application to that effect, the existence of such canal is established.
    2. Proof of the existence of a natural water-course will not, in such a case, sustain an allegation of that of an artificial canal. Such an action and order can only be sustained in case of such a water-course, and its interruption, by an allegation of its existence, in the pleadings and papers on which such order is sought to be sustained, and proof of such existence and threatened interruption.
    3. And as the plaintiff could not, under an issue as to the existence of an artificial canal, at the trial, maintain his right to a perpetual injunction on the ground of a threatened interruption of a water-course, he cannot on that ground maintain his right to a temporary injunction.
    4. The plaintiff may, in such a case, apply for leave to amend his complaint by alleging as his cause of action the existence of a water-course and a threatened interruption thereof by the. defendants; or discontinue his action and commence another, setting forth as the cause of action the existence of a water-course.
    (Before Jones, J. at special term,
    July —, 1867.)
    This was a motion to dissolve an injunction order, temporarily restraining the defendants from interrupting the flow of water through an artificial continuous canal, running through the lands of both parties.
    The cause of action as set forth in the complaint was, “ that more than ten years since the public authorities of the city of Hew York, for the purpose of carrying off surface water and water flowing from springs, constructed,- and from time to time extended, a canal partly under ground and partly exposed, from near 10th avenue, just north of 56th street, over and across lands belonging to the plaintiff and lands belonging to the defendants, to the North river,” that the plaintiff had “built a deep cellar on his premises, in which was stored a large quantity of (lager) beer; that the defendants were about to make an excavation on their land and threatened to cut off the said canal at ,the point where. it first touched their land, and to stop the flow of water through its lower portion; that if the water were so cut off it would back up and flood the plaintiff’s cellar, destroying the beer there and rendering it unfit for further use as a beer cellar. Upon this complaint, duly verified, the plaintiff' procured an injunction order temporarily restraining the defendants from cutting1 off, or interfering with, such canal, and interrupting the flow of water through it.
    The defendants moved, on their answer and affidavits, to vacate such injunction'order.

      J. T. Hall, for the plaintiff.

      M. Goepp, for the defendants.
   Jones, J.

It is evident that the foundation on which this action rests is the alleged existence of an artificial canal constructed and extended by the public authorities, and the supposed legal result therefrom that the plaintiff has a right to have such canal kept open and free for the flow of water. If either the alleged fact does not exist, or the supposed legal result does not follow from it, the foundation of the action being gone, the action itself must fall with it. Now the answer, among other things, denies that an artificial canal constructed and extended by the public authorities exists. From the affidavits and a personal view of the premises, I am satisfied that such artificial canal does not and never did exist. Consequently the plaintiff upon his present cause of action cannot succeed, and therefore is not entitled to retain his injunction. The plaintiff" not being entitled to retain his injunction for this reason, it is not necessary to consider the question whether if such canal did exist, the plaintiff would have a legal right to have it kept open. There has been considerable proof adduced on both sides, on the existence over the premises in question of a water-course, which the defendants threaten to interrupt and divert, but it is unnecessary on this motion to decide upon that. The plaintiff" has not based his action on the existence of any such supposed water-course. He cannot support his allegation of an artificial canal by proof of a water-course. To authorize him to introduce proof of the existence of a water-course which the defendants threaten to interrupt, he must found his action thereon, and allege the existence and threatened interruption. Since, then, under the issue as it now stands, the plaintiff could not at the trial maintain his right to a judgment perpetually enjoining the defendants on the ground of a threatened interruption of a water-course, he cannot on that ground now maintain his right to an order to. that effect, temporarily.

The plaintiff may test the accuracy of the views above expressed by appeal; or, conceding their correctness, apply for leave to amend his complaint by alleging as his cause of action, the existence of a water-course and a threatened interruption thereof by the defendants; or discontinue this action and commence another, setting forth as its cause of action the existence of such a water-course and interruption of its water. If he elects to so amend or commence such new action, and the defendants deny the existence of such water-course, the question will then legitimately arise whether a water-course does in fact exist, and if it does, then as to what the rights of the respective parties are in respect thereto.

The motion to dissolve the injunction must be granted, with $10 costs, hut the dissolution is not to take effect until the order dissolving the injunction shall be settled and entered. The defendants to draft the order and procure it to be settled by me on two days’ notice to the plaintiff, and, after settlement, to enter it.


text:
    The Mechanics’ Banking Association, plaintiffs, vs. The Mariposa Company, defendants.
    The mere dismissal of a complaint in an action at law, at the close of the plaintiffs’ testimony, on the trial, has no more force than a judgment of non-suit prior to the passage of the Code, and does not har a subsequent action for the same cause. And although, so far as the court in which such dismissal is made is concerned, there is no necessity that its judgment dismissing the complaint should express that effect, in terms, yet to prevent any misconstruction of it, or misconception of its effect, in a different court, such a judgment may he so amended as to declare on its face that such dismissal is without prejudice to the right of the plaintiff to commence a new action.
    (Before Jones, J. at special term,
    July —, 1867.)
    This was a motion to amend a judgment for the defendants, dismissing the complaint. This action was one of a class known prior to the passage of the Code of Procedure as an action at law. The issues made by the complaint and answer were tried before a judge and jury. After the plaintiff had rested, the defendants’ counsel moved to dismiss the complaint on several specified grounds, but did not specify among them that the complaint did not state facts sufficient to constitute a cause of action, and the motion was granted. Thereupon, a judgment was entered by the defendants, reciting that the cause was brought to trial before a judge of the court and a jury at a trial term, on the 25th of May, 1865; that the allegations and proofs on the part of the plaintiffs had been heard and considered; that the judge had directed the complaint to be dismissed; and adjudging that the defendants recover of the plaintiffs $108.24, his costs and disbursements of the action.
    The plaintiffs now moved, either to wholly vacate the judgment, or to so modify it as to express on its face that • it should not be a bar to another action for the same cause.

      John E. Burrill, for the plaintiffs.

      J. Choate, for the defendants.
   Jones, J.

At the time of the decision of this cause, it was the law of this court, that the dismissal of a complaint in an action such as this, and under the circumstances of this dismissal, had no greater or further force than that kind of judgment which, prior to the passage of the Code, was denominated a judgment of nonsuit, and did not bar a subsequent action for the same cause. (Harrison v. Wood, 2 Duer, 50.) This decision has never been distinctly overruled by the Court of Appeals; nor has it been changed or modified by any decision of this court. There cannot be the slightest' doubt of the correctness of that doctrine, and were it not possible that either other courts, to which the plaintiffs might resort, or the Court of Appeals, might hereafter give to the term. “ dismissing the complaint,” when used under circumstances like the present, an effect and operation different from that given to them by this court, this motion ought to be denied as wholly unnecessary. But as other courts, and the Court of Appeals, may regard a judgment, “ that the complaint be dismissed,” without any qualification annexed thereto, as a decision on the merits, and therefore a bar to a subsequent action for the same cause, (notwithstanding it were rendered under circumstances like the present,) I am disposed so to amend the judgment, as in terms to give to the decision of the judge, the effect, in express terms, which this court ascribes to it as being implied therein, if it can be done without prejudice to the rights of the defendants, I do not see how such amendment can prejudice any of the defendants’ rights. The decision of the judge as given, must be.regarded as made in view of the established doctrine of the court, that its effect was merely that of a nonsuit, as it was formerly termed. All, then, that the defendants are entitled to is a judgment that shall have such effect and no more. The judgment, as it now stands, has in this court that effect, and no more. So far as it is concerned, there is no necessity for expressing that effect in terms, but merely to guard against the possibility of other courts giving it a different one, it may be well that such limited effect should be so expressed. This does not affect any right of the defendants; they cannot be allowed to use this judgment elsewhere with greater effect than they can use it in this court. As the effect of a nonsuit in actions at law was merely to determine the then pending action without barring a subsequent one for the same cause, that of the judgment in this case may be. delared in terms as if it were a nonsuit under the old mode of proceeding, by inserting after the word “ adjudged ” “ that the complaint herein be, and the same hereby is dismissed without prejudice to the right of the plaintiffs to commence a new action,” and the amendment may be made nunc pro tuno.

Ordered accordingly, without costs.


text:
    Francis Skinner, plaintiff, vs. Arthur Noyes, defendant.
    1. The modes of commencing an action under title 1, chapter 6, part 3, of the Revised Statutes, which relates solely to former modes, and to proceedings to he had upon a capias ad respondendmn (the issuing of which was one of such modes,) together with that writ and proceedings on it, have been superseded by the Code of Procedure, and the 23d section of that title is repealed thereby.
    2. The reasons which led to the insertion of that section in the Revised Statutes have no application to the present system, and the section itself is in conflict with the system established by the Code. Ter Jones, J.
    3. The Code of Procedure provides at least three ways of obtaining a judgment of discontinuance for want of prosecution. 1st. By an order to be obtained from a judge ex parte, declaring the complaint to be deemed abandoned if not filed within a time to be specified in such order, in case the plaintiff fails to file it within ten days after its service. (§ 416.) 2d. By a motion to dismiss the complaint, in case of a failure to serve it, in twenty days after a demand of a copy of it, by the defendant, under section 130; and, 3d. By a like motion in case of any unreasonable neglect by the plaintiff after service of the summons to proceed to judgment without either a demand of the complaint or requiring it to be filed. And a defendant must be discharged from custody as matter of course, under an order of arrest issued in the action, in case of a dismissal of the complaint under either of those modes. Such a discharge may be either ordered ex parte or upon, notice of a motion therefor, joined with a notice of motion for such dismissal.
    4. Where a plaintiff has proceeded to judgment, and neglects to charge the defendant in execution, the remedy under the Revised Statutes, (2 j$. S. p. 556, §§ 36, 37,) still remains, upon showing the matters required by those sections.
    5. Defects in a summons and a copy of papers served, are mere irregularities, and if not relied on in the notice of motion, cannot be regarded. The same rule applies in case of an order to show cause, as well as of a notice of motion.
    (Before Jones, J. at special term,
    July —, 1867.)
    This was an application made under section 23, title 1, chapter 6, part 3, of the Revised Statutes, for the discharge of the defendant from imprisonment, by reason of the omission of the plaintiff to file his complaint, without any previous demand of a copy or motion to dismiss it.
   Jones, J.

The provision of the Kevised Statutes, (§ 23, title 1, chap. 6, part 3,) relied on by the defendant’s counsel, is no longer in force. The whole title of which the section in question is a part, relates to the former mode of commencing actions and to proceedings to be had upon a capias ad respondendum, which was one of the modes of commencing an action as provided by that title. It is evident the word process, used in the twenty-third section, refers to a capias ad respondendum. The modes of commencing an action as established by this title, including therein the capias ad respondendum, together with the proceedings to be had on such writ, have been superseded by the Code of Procedure. There is no longer any such writ as a capias ad respondendum by which a suit can be commenced. Consequently sections three to twenty-two, relating to the arrest of the defendant on such writ, the taking of bail, the' putting in of special bail, the entry of appearance, &c. are clearly repealed. So also section twenty-four, which requires the plaintiff, after the defendant has appeared by causing his appearance to be entered, or by putting in and perfecting special bail, to declare by the end of the next term after the return of the writ, by which such suit was commenced, is repealed. For a suit can no longer be commenced by a writ, and consequently it cannot be returnable at any time. And, moreover, this section of the Eevised Statutes is in direct conflict with sections 130 and 416 of the Code, which provide the manner in which the defendant is to obtain a copy of the complaint, and to procure it to be filed if he so desires. It thus clearly appearing that all the sections of this title, other than the twenty-third, relating to the capias ad respondendum and the proceedings to be had thereon are repealed, section twenty-three must follow the same fate, unless some reason applicable to it which does not apply to the others, calls for its retention. I perceive no such reason. On the contrary the reasons which led to the insertion. of this section in the Revised Statutes, have no application to the present system, and the section itself is in conflict with the system established by the Code. The capias ad respondendum provided for by the title in question was, as its name imports, a writ whereby the defendant was brought into qourt to answer the declaration. It was therefore proper, in providing for the proceedings to be had on such writ, to include among the provisions made, certain ones by which the defendant should not be kept for an indefinite length of time awaiting the declaration which the writ called on him to answer. This was the object of sections 23, 24 and 25. These sections, taken together, provided for all cases of want of prosecution in not declaring, when the action was commenced by capias. The provision made was, to render it the duty of the plaintiff to declare by a certain time, and in case he did not, to visit his default by giving judgment of discontinuance, against him, and if the defendant was in custody, his discharge necessarily followed the discontinuance, since there was no suit pending to uphold the imprisonment.

The Code has provided a means whereby a defendant may obtain a discontinuance of an action for want of prosecution in not serving a complaint which is entirely different from that provided by the Revised Statutes. Thus under the Code, (where the complaint is not served with the summons,) the period within which the complaint must be served, instead of being fixed definitely by statute to expire' on the lapse of a certain period after service of the summons, is made to depend on an act of the defendant. (See § 130.) Thus, unless the defendant serves the notice required by that section, the plaintiff is not bound to serve a complaint. Consequently his suit cannot, unless such a notice be given, be dismissed for want of prosecution in not serving a complaint. It follows that the reason of the statutory provisions made by the Revised Statutes, whereby a defendant in custody under a capias will be discharged upon a judgment being given discontinuing the action by reason of the non-service of a declaration within the time prescribed by the statute, cannot apply unless the defendant has placed himself in such a position as to require the service on him of a complaint, and the plaintiff .has not complied with such requisition. This section (130) is one of a series of provisions regulating the conduct of all actions.

It seems to me to he contrary to the intent of the Code, as expressed in the preamble, to wit, “to establish an uniform. course of proceeding in all cases,” to hold that in the same action this section applies and does not, according to whether the plaintiff has called to his aid in the action the provisional remedy of arrest. Ror is there any necessity, for the purpose of affording a defendant, situated as the present one is, adequate relief, to hold that this one section, out of the twenty-five relating to the same subject, stands unaffected by the sweeping change made in the law concerning the conduct of actions. Under the Revised Statutes, a defendant was obliged to lie in custody for at least thirty-one days, and then move for judgment of discontinuance and his discharge. Under the Code, he need remain in custody hut twenty-one days,, and then move for a dismissal of the complaint and his discharge. It is true the Code requires a defendant to serve a written demand for a complaint, to entitle him to service of a copy of it, which requirement is not contained in the Revised Statutes; but whatever slight inconvenience this requirement may occasion to a defendant, it is amply compensated by enabling a defendant, by means of such demand, to shorten the period of his imprisonment. Some little doubt may have suggested itself to the defendant’s counsel, arising from the fact that there is no positive provision of the Code, as there is of the Revised Statutes, requiring the discharge of a defendant from custody, if the plaintiff neglects to serve a complaint. Such provision seems to me to have been inserted in the Revised Statutes, ex abundanti cautela, and was wholly unnecessary. The discharge necessarily followed the judgment of discontinuance. All that was requisite to be inserted in the statute was a provision authorizing such judgment. Under the Code there are, at least, three ways of obtaining a judgment of discontinuance for want of prosecution. Under subdivision 4 of section 274, if a plaintiff, after serving the summons, unreasonably neglects to proceed to judgment against the defendant served, he may, without either demanding a copy of the complaint, or requiring the complaint to be filed, move the court to dismiss it. Under section 130, a defendant served with a summons, may demand a copy of the complaint to be served on him, and if it is not served within twenty days thereafter, may then, under section 274, move the court to dismiss the complaint. Under section 416, if a plaintiff does not, within ten days after service of the complaint, file it with the clerk of the court, the defendant is entitled to an ex parte order from a judge, requiring it to be filed within a time to be specified in the order, or that it be deemed abandoned. If a complaint be dismissed in either of these modes, a defendant, in custody under an order of arrest issued in the action, must, as matter of course, be discharged fi-om custody, and, after the dismissal of the complaint, such discharge will be ordered ex parte, or the defendant may include, in his notice of motion for a dismissal of the complaint, a motion for. discharge from imprisonment. The papers on this motion, however, do not bring the case within any of the above provisions of the Code. They show neither a demand for a copy of the complaint, nor an order made requiring the complaint to be filed; nor do they show that the plaintiff has not proceeded to judgment. If the plaintiff has proceeded to judgment, and neglects to proceed to charge the defendant in execution, the remedy is under the Revised Statutes, (2 R. S. p. 556, §§ 36 and 37,) upon showing the matters required by those sections.

Some slight allusion was made on the argument to a defect in the summons, and in the copy of papers served. These defects are mere irregularities, and not having been specified in the notice of motion, cannot be relied on. If these had been pointed out in the notice of motion, they might have been cured by amendment. I am aware this motion is brought on by an order to show cause, and not by notice; but the same rule applies to an order to show cause as to a notice of motion.

Motion denied, without costs, without prejudice to the defendant to move for a dismissal of the complaint, and discharge from imprisonment, as indicated in the above opinion.


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    The American Flask and Cap Company, plaintiffs, vs. Nathan A. Son, defendant.
    1. Where, in an action ex contractu to recover a debt, a defendant has been arrested on the ground of fraud in contracting the debt, and he applies to be discharged from imprisonment, upon the ground that the action is barred by a discharge under an insolvent'act, the court may, on such motion, examine into the validity of such discharge.
    2. A discharge under an insolvent act is not rendered absolutely void by an omission to give notice to some creditor of the proceedings; nor by an omission to mention such creditor’s debt in the schedule of creditors. Such omission of a creditor’s name does not per se invalidate the discharge. To do that, the omission must be fraudulent.
    (Before Jones, J. at special term,
    July —, 1867.)

      Motion to vacate an order of arrest.
    The complaint in this action showed a cause of action for goods sold and delivered. On an affidavit charging fraud in contracting the debt, the plaintiff obtained an order of arrest, which the defendant now moved to vacate, on grounds which appear in the opinion.

      B. F. Sawyer, for the motion.

      Edward E. Browne, opposed.
   Jones, J.

In Wright v. Ritterman, (1 Abb. Pr. N. S. 428,) it is held that a valid discharge granted under the provisions of article 5, chapter 5, title 1, part 2, of the Bevised Statutes, (under which provisions the discharge in this case was granted,) operated so as that if a person in whose favor such discharge has been granted should thereafter be sued in an action ex contractu for a debt due or contracted at the time of the application for a discharge, and should be arrested on the ground that the debt was fraudulently contracted, such person would be entitled to be discharged from arrest.

In the present case the summons being issued under the first subdivision of section 129, shows that this action is brought for the recovery of monéy arising on contract; in other words it is an action ex contractu for the recovery of a debt. The defendant has been arrested on the ground of fraud in contracting the debt.

The affidavits-on which the ordei* of arrest was granted, show that the debt was contracted and due at the time the application for a discharge was made. The defendant is therefore entitled to be discharged unless the validity of his discharge can be inquired into on this motion, and on such inquiry it should be found to be invalid.

.Section 21 of article 7 of title 1 of chapter 5, part 2, of the Revised' Statutes provides: “If any insolvent discharged under the third, fourth, fifth or sixth articles of this title shall he arrested on mesne process, in a suit upon any debt or liability in which he is exempted from imprisonment, as in those articles declared, and shall apply to any officer to discharge him from arrest, said officer shall cause reasonable notice to be given to the plaintiff in such suit to show cause why such insolvent should not be discharged from such arrest.”

Section 22 of said article provides: “The plaintiff in such suit may show as cause against such discharge any fraud committed by such insolvent in obtaining his discharge, or any cause for avoiding such discharge declared in the said articles, and such officer may require such insolvent to be held to bail on such process, as if no such discharge had been granted.”

Under these sections it was clearly the duty of any officer or court to whom a defendant arrested on mesne process applied to be discharged from arrest, on the ground that he had received a discharge under some one of said four articles, to inquire whether such defendant had been guilty of any .fraud in obtaining his discharge or whether any cause for avoiding such discharge, as declared in such articles, existed. This was the view taken by the late Supreme Court of a similar provision in the act entitled “ An act to abolish imprisonment for debt in certain cases,” passed April 7, 1819, (Laws of 1819, p. 115, § 3.) The provision referred to is “ and provided further that nothing herein contained shall prevent any court of record or any judge of said court from directing such debtor to be held to bail on mesne process, in cases of fraud under this act.”

Under this provision the late Supreme Court, in a case where the defendant, having been arrested without any previous order, applied on motion to be discharged on common bail, refused to discharge him, because the affidavits read in opposition showed facts amounting to prima facie evidence of fraud in obtaining the discharge. (Reynolds v. Manning, 1 Cowen, 228.)

It will .be observed that this case does not fall strictly within the letter of the act of 1819, as no previous direction to hold to bail had been obtained, but the court in accordance with the spirit of the act held that the plaintiff) having shown facts which precluded the defendant from availing himself of his discharge, they would not afford him protection under it. The authority of this case has never been questioned.

The provision of the act of 1819 did not apply to the act entitled “An act for giving relief in cases of insolvency, passed April, 1813.” (R. L. 460.) Consequently the rule adopted in cases arising under that act, that the validity of a discharge would not be inquired into on motion, but that the defendant would be discharged from arrest on the production of his certificate, did not apply to cases under the act of 1819.

This will be seen by comparison of the case of Reed v. Gordon, (1 Cowen, 50,) decided by the Supreme Court, May term, 1823, and the above case of Reynolds v. Manning, decided by the same court, but three months after-wards at August term, 1823. The first case arose under the act of 1813; on the defendant’s motion for a discharge from arrest, the plaintiff’s counsel referred to the above cited provision in the act of 1819, and argued that that provision showed the understanding of the legislature to be that a discharge from arrest, by reason of the defendant having obtained an insolvent discharge, could not be granted on motion, short of legislative provision. The court, however, held that it was settled by repeated decisions that neither fraud or irregularity in obtaining the discharge could be tried on affidavits; that want of jurisdiction was not distinguishable from fraud; that none of the proceedings before the discharge could be questioned in the summary mode of a motion; and discharged the defendant from arrest.

But three months later, their attention having in the above case, been called to the provision in the act of 1819, and that provision having heen disregarded in that case as inapplicable, they, in Reynolds v. Manning, a case arising under the act of 1819, refused to discharge the defendant on motion because the affidavit showed prima facie that there was fraud in procuring the discharge.

This distinction between the two classes of cases depended on the existence in one act of á provision which was not contained in the other, and this distinction has been constantly acted on. Thus we find that all the cases in the late Supreme Court, in which it was held the validity of a discharge would not be inquired into on motion, were cases arising under the act of 1813, as it stood prior to the revision of the statutes.

The adoption of the Revised Statutes in 1828, abolished this distinction, for by them sections 21 and 22 of article 7, which are substantially, so far as this question is concerned, the same as the provision in the act of 1819, were made applicable to discharges under the two third act, and consequently the rule adopted (if any authority is to be followed on the subject) by the late Supreme Court in reference to discharges under the act of 1819 must now be adopted in the case of all discharges, under said third, fourth, fifth and sixth articles.

It is true, since the passage of the Revised Statutes, several cases have been decided holding that the validity of a discharge under the two third act cannot be inquired into on motion to discharge from arrest. Among other cases is that of Russell v. Packard, (9 Wend. 431.) But on examination of these cases it will be seen that sections 21 and 22 of article 7 were overlooked by the court. This brings me to the inquiry as to whether the discharge is invalid. It is claimed to be invalid for two reasons, firstly, because no notice of the proceedings was given to the plaintiffs, and secondly, because the plaintiffs’ debt is not mentioned in the schedule of creditors.

By reference to the statute under which the proceedings were had, it will be seen that no notice is required to be • given to creditors, other than by publishing in a newspaper a notice of the contents of an order theretofore to be made by the officer before whom the proceedings are pending, requiring the creditors of the insolvent to show cause before such officer, at a certain time and place, why the prayer of the petitioner should not be granted. Such an order was made in this case, and a notice of the contents thereof'duly published. The names of the creditors are-not- required to be inserted in the notice; all that is necessary is to direct the notice:

“ To the creditors of. .-.....an insolvent debtor.”

It follows that the plaintiffs had as ample notice as if they had been named in the schedule of creditors, and as full notice as the creditors named in the schedule, and had all the notice requires.

The bare omission of the plaintiffs’ name from the schedule of creditors is not sufficient to invalidate the discharge. To have that effect such omission' must be fraudulent. This was held in relation to proceedings under the two thirds act. (Aynes v. Scribner, 17 Wend. 407. Small v. Graves, 7 Barb. 576.)

Such being the law under that act where it is necessary to confer jurisdiction that two thirds of the creditors should petition, and where, consequently, the omission of-a single debt might be sufficient to constitute the petitioning creditors two thirds of all the creditors named in the schedule, when otherwise they would not be, with much greater reason should it be held to be law under the act in question where it is unnecessary that any creditor should petition.

Under the two thirds act one might as well conceive how a fraud could be perpetrated by the omission of a single debt; such omission might be absolutely necessary in order to make it appear to the officer that two thirds of the creditors were petitioners. Yet the court held that, notwithstanding, this might be the result of such omission, still the bare omission was not, even when connected with such result, necessarily fraudulent. Uo such object, however, could be imputed to an omission of a creditor under the act in question since none of the creditors are required to join in the petition.

It is difficult to perceive how the omission in question could have been fraudulent. For what fraudulent purpose was it omitted? It was. not necessary to omit it to give the officer jurisdiction. It was not necessary to omit it so as to avoid giving notice of the proceedings to the plaintiffs, because all the notice necessary to be given was published in a newspaper directed to the creditors generally, and through this means the plaintiffs would obtain notice as well without being named as creditors in the schedule, as with being so named.

It may be urged that he intentionally omitted the debt so as to avoid recognizing it as his debt. But it was not necessary to omit it for that purpose; he might have inserted it with a memorandum attached stating it to be a debt due by his wife, but claimed by his creditors to be a debt of his own contracting, which claim he denied. In that case there would be no acknowledgment of it as a debt of his own.

But again, being insolvent at the time of his application for a discharge, the addition to his creditors of the plaintiffs small debt of $210 would not have materially affected his financial condition. If then he had reason to suppose himself liable for it, he could have no objection to recognize it. It is an universal rule of law to put such a construction on the acts and conduct of men as will comport rather with innocence than guilt.

I am unable to perceive any fraudulent object to be attained in this case by the omission of the debt in question; its omission must therefore be ascribed to some cause innocent in its character.

Such cause may be the defendant’s belief that under the act of 1860, he was not liable for goods purchased by him in the name of and for his wife as her agent, for the separate business carried on by her. I see nothing indicating that such was not his belief; on the contrary, all the indications tend to show that such was his honest and sincere belief. His belief may be erroneous; but the question of fraudulent intent in omitting the debt depends not on the fact whether it is a valid legal claim or not, but on the defendant’s reasonable belief as to whether it was a debt due by him.

I have come to the conclusion that the discharge is valid.

If then the debt in question is one for which the defendant is liable, he is by his discharge exempted from imprisonment.

If he is not liable for the debt, then, of course, he is not liable to arrest.

Order of arrest vacated.


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    William H. Masterson, et al. plaintiffs, vs. Arthur Short, et al. defendants.
    1. An action by an individual to restrain the defendants from keeping hackney coaches at a public stand, in front of stables occupied by them, can only be sustained on the ground that it creates a nuisance; and nothing but the exercise of unlawful, or abuse of lawful, authority can create a nuisance.
    2. The common council of the city of New York possess the right to establish hackney coach stands, in that city, either under the Montgomery charter, or the act of 1813, which authorizes them to regulate hackney coaches and the owners and drivers thereof.
    3. The common council of that city having, by ordinance, established a particular locality as a hackney coach stand, which is occupied by the defendants as such under a license from them, in the absence of any thing to show that they are misusing the right they have acquired under the ordinance and license, they cannot be restrained by an injunction order, on the ground of unfair competition thereby with the plaintiffs in business.
    4. Only a strong and clear violation of some law or duty owed by the defendants to the public, whereby an individual is prejudiced, or to such person, will induce a court of equity to interfere, so as to restrain competition in trade, Per Jones, J.
    (Before Jones, J. at special term,
    July, 1867;
    decided August 26, 1867.)
    Motion for an injunction.
    This action was brought by William H. Masterson and others against Arthur Short and others.
    The plaintiffs were proprietors of a livery stable opposite the Central Park, in the city of Yew York; and the object of the action was to restrain the defendants from keeping hackney coaches at a public stand in front of their stables, in competition with their business. The defendants claimed the right to maintain their stand under a permission or license from the common council of the city, the validity of which constituted the principal question.

      A. H. Reavey, for the motion.

      Coleman & Shafer, opposed.
   Jones, J.

This .action can only be sustained on the ground that the act of the defendants in standing their carriages where they do, is a nuisance.

They stand their carriages in that place under the authority of an ordinance of the common council, establishing that portion of the street as a hackney coach stand.

If the common council had authority to make such ordinance, and the defendants have hot stepped beyond the limits of the authority conferred by the ordihanee, then their acts cannot be a nuisance.

A nuisance cannot he predicated of the lawful exercise of authority. This is the proposition laid down by Judge Denio, in Davis v. The Mayor, &c. of New York. (14 N Y. Rep. 506.) Its correctness is too palpable to need enforcement by argument.

This leads to a consideration of the power of the common council to establish hackney stands in the city.

The 14th section of the Montgomery charter provides, that the common council shall have full power to frame, constitute, ordain and establish such laws, statutes and ordinances as to them shall seem good, useful or necessary, for the good rule and government of all officers, ministers, artificers, citizens, inhabitants and residents of said city within the limits thereof, and for the further public good, common profit, trade and better government and rule of the said city.

Chancellor Kent, in his commentaries on the Dongan and Montgomery charter, says, in reference to this section: “ These broad and latitudinary powers were given to be exercised with sound discretion, and with a liberal spirit, commensurate with the growing wants and prosperity of a great commercial metropolis. Though the charter would seem to contain a grant of ample powers, sufficient for all the purposes of a well ordered police, and for the good government of the city in its complicated concerns, yet the legislature has been in the practice of granting more specific and detailed powers, sometimes on the application of the common council, and more frequently without it. These statutes, are, in general, made in aid and confirmation of the general corporate powers on the subject, and sometimes with the avowed wish and consent of the corporation, such as the laws relating to hackney coaches, butchers, &c.” Then, after referring to a number of statutory regulations, he proceeds: “Amidst such a multitude of statute regulations, it becomes difficult to know how far an ordinance of the council rests upon the authority of the charter, and how far on the authority of some special statute. When the latter exists, the exercise of the power is, of course, to be referred to the statute as the more certain and paramount authority. The city ordinances sometimes act concurrently with and in aid of the statute power, though much more frequently the statute law comes in and carries out to a definite and precise extent the authority which lies dormant in the comprehensive powers of the charter. If we take up and run through the ordinances of 1833, now in force, we shall find many of them to be the exercise of charter powers simply; others are the exercise of charter and statute powers combined; and others, again, rest solely on the statute grant of authority. There is no doubt that when any of the ordinances alluded to cannot be referred to the grant of power, by any express statute provisions, the general and unlimited grant of ordinance power in this section of the charter, is sufficient to uphold and warrant it. The efficient checks against any abuse of such em larged discretion are public opinion, the elective franchise, and the established principles of the constitution and of recognized common law. In addition to these checks, all corporations are liable to legal process in behalf of the state for non-user or mis-user of their rights and powers.”

These views have not, it is true, the force of a decision of a court directly on the various points; but they are the expression of the opinion of a learned and able jurist, given in the performance of a public duty, and, as such, entitled to great weight and consideration. The views thus expressed seem to me to be correct, and as they are expressed with a legal acumen and pureness of diction not possessed by me, I have preferred to adopt his language instead of using my own.

Among the ordinances of 1833, referred to by Chancellor Kent, is one establishing hackney coach stands. It was certainly his opinion that such establishment was by sufficient power.

As, however, his attention may not have been particularly called to that subject, and his opinion may have been founded on the general view of the scope and effect of the charter powers, without a close scrutiny of their effect on this particular subject, I will proceed to give that scrutiny:

The Seventh avenue was opened under the act óf 1813. By the terms of this act, it is held by the mayor, aider-men and commonalty, “in trust, that the same be appropriated and kept open for, or as part of, a public street * * * in like manner as the other public streets * * * are, and of right ought to be.”

Under the general and broad charter powers above referred to, the common council would have authority to establish such rules and ordinances relative.to the regulation and use of the streets by citizens, as are compatible with the trust upon which they hold it. It is to be used as a public street. Such use, then, as is recognized and declared by law, or long established custom, to be a proper and legitimate use of a public street, or which the sovereign power has vested in the common council the right and power to grant, may be authorized.

The system of hackney coaches standing at designated places in the streets of a city, grew out of the necessity of meeting the public demands. A demand arose in cities for means of transit, from point to point, other than by walking. As the city increased in extent of territory, and became more populous, the demand increased. This gave rise to a class of men, who procured one or more vehicles, according to their means, and plied the streets for hire. It was soon found necessary to place these men under special police regulations, and, as one of those regulations, to assign certain places in the streets where they might stand waiting for customers. Such regulation was necessary for the control of the haekmen, and for the convenience of the public. Its object was to prevent the haekmen from traveling, with their empty vehicles, in search of custom in the streets otherwise sufficiently crowded, and also to prevent their stopping and remaining, for any considerable time, at inconvenient places; but the great object was to have hacks standing at various points where the public would be most likely to want them, and where they would cause the least inconvenience to other vehicles, or injury to the surrounding property.

The earliest record of hackney coaches that I have been able to find in the English law, is in 1654, when nn act was passed limiting the number of hackney coaches, and giving to the court of London the government and ordering thereof.

Subsequently, in the ninth year of the reign of Queen Anne, an act was passed, giving to commissioners of pavements power to make by-laws, which should be binding on hackney coachmen.

Under this power, the commissioners made regulations as to stands. Afterwards, in the twelfth year of the reign of George HE, in 1772, an act was passed, reciting that the hackney coaches frequently took their stands with coaches and chairs in crowded places, &c. and giving to certain commissioners power to direct and regulate at what places they should stand. Under this act the commissioners made an order, directing a coachman not to stand in a certain place in which he had .been accustomed to stand. This led to a litigation. The counsel for the coachman contended that he was standing according to the regulations made under the act of Anne, and that the power given by the act of George III did not authorize the commissioners named in that act to interfere with the stands previously established, but only to establish others. The counsel on the other side argued, that the words of the statute of - George III were sufficiently comprehensive to authorize as well a discontinuance of stands already established as the establishment of new ones, and so the court held. The authority of the commissioners mentioned in the act of Anne, to establish stands, under the general power conferred on them to make by-laws which should be binding on hackney coachmen, was not questioned or doubted by the respective counsel or by the court, but tacitly conceded.

Thus the law of England stood in 1774. By it the right of hackney coachmen to use the public streets in their vocation, as wel-1 to solicit passengers as to carry them, and the authority to control such use by the establishment of stands by a body on whom parliament had conferred a general power to make by-laws binding on the hackney coachmen, were fully recognized. When then, in 1730, the crown of England granted to the city of Hew York the charter known as the Montgomery charter, by which, among other things, power was given to the common council to ordain and make such ordinances as to them should seem good or necessary for the good rule and government of the body corporate, and of all the officers, ministers, artificers, citizens, inhabitants and residents of said city, it then passed to the common council, under its general grant of power, the same authority to regulate hackney coaches and establish coach stands in the city of Yew York, which the crown was accustomed to delegate to certain bodies, to be exercised in the city of London and other cities of Great Britain. This power has never been taken away by the legislature. On the contrary, it has been confirmed. By the act of 1813, the common council is authorized to regulate hackney coaches and the owners and drivers thereof. As the general authority given by the act of Anne carried with it the powei’ to establish stands, so the general authority given by the act of 1813 carries with it the like power.

Again, hackney coaches standing in the streets have existed so universally in England, and for so long a period, (certainly since 1700, and perhaps further back,) that the term hackney coach conveys to the mind the idea of a coach standing in the street for hire. Thus, an eminent lexicographer (Webster) defines a hackney coach to be “ a coach let for hire, commonly at stands in the streets.” When, therefore, the legislature uses the term hackney coach, it must be deemed to use it in such sense as to cover coaches for hire standing in the streets, as well as those kept in the stables for hire; and as the legislature did not see fit to legislate against the custom of coaches standing in the street, but left their regulation to the common council, these passed to the common council, as an incident to such regulation, the power to prescribe places at which the coaches should stand.

I have, therefore, come to the conclusion that the common council have the power to establish hackney stands, either under the Montgomery charter or the act of 1813.

There does not seem to be any inconsistency between the use of streets by the public for passage to and fro, and a designation of a certain space in them where that public may obtain the means for such passage in a more convenient, rapid and ■ easy manner than by walking. The latter is an incident to the former. In all large cities of Europe such designation has been deemed a proper and legitimate use of the streets. Thus, in London, Liverpool, Dublin, Paris, Berlin, Vienna, and, I am informed, in all the large European cities, stands in the street for vehicles to be let for hire, are established. There is no reason why New York, the great commercial metropolis of the United States, should be without them. There can be no doubt that the legislature could, by express language, authorize their establishment by the common council. The question in this case is, whether the common council has not the power without such express authorization; for the reasons above given, I think they have. The common council, then, having the power to establish hackney coach stands, and having established the locus in quo as one, and it not appearing that the defendants are misusing the right they have under the ordinance, an injunction .cannot issue.

A few words as to the special damage the plaintiffs claim to have sustained. This, as I understand it, consists in the defendants soliciting and obtaining passengers, thus preventing the plaintiffs from obtaining that custom they would otherwise have. In other words, they sustain damage from competition. It must be a strong and clear case of some violation of law, or duty owed by the defendants to a plaintiff, to induce a court of equity to restrain competition in trade. If, in this case, the defendants leased a vacant lot alongside of the plaintiffs, separated from the place where their carnages now stand only by the width of the sidewalk, and stood their carriages thereon, it would not be pretended that the court would restrain their soliciting passengers ; yet the injury to the plaintiffs would be the same as it is now. The plaintiffs may urge that the defendants, by having their coaches open to view, ready harnessed in the street, have an advantage over them; but they are entitled to use the stand in the same way as the defendants, and the affidavits show they do so use it. Again, the plaintiffs say the “ defendants, not being under so much expense as we are, inasmuch as they do not hire so large a stable, can afford to carry people at less rates than we can, and thus underbid us.” But the rates at which people are to be carried are fixed. Neither the plaintiffs nor the defendants can exceed them. It is not alleged that the defendants charge less than the legal rates. Indeed, such an occurrence would be an anomaly. It is by no means certain but that the expense of each one of the defendants bears the same proportion to the number of carriages used by them, as the expense of the plaintiffs does to the number used by them. It seems, therefore, to be reduced to this, that the plaintiffs’ injury consists either in their being unable to get more than the legal fare, by reason of the competition of the defendants, or that, by reason of the defendants’ carriages being there, the supply is so much greater than the demand, that the plaintiffs’ carriages do not get the amount of employment they otherwise would. The first ground of injury is one which the courts cannot recognize. The second is one which, if it was clearly shown to exist, would be sufficient to entitle the plaintiffs to the remedy they seek, provided the act complained of was unlawful. The papers do not clearly show such cause of injury to exist. If, however, it does exist, still the defendants’ act being lawful, the only remedy of the plaintiffs is by application to the common council. That body, upon considering the plaintiffs’ cause of complaint and the public interests, can apply a remedy, either by discontinning the stand or limiting the number of coaches authorized to stand there.

It may be suggested that there is at present no ordinance regulating the rates of fare, and, therefore, were it not for the defendants’ competition, a much higher rate than usual could be charged by the plaintiffs. The suggestion is one which is more likely to operate toward the withholding than the granting of the discretionary writ of injunction. If the check of extravagant demands, formerly existing in the shape of ordinances, • has been removed by the repeal of those ordinances, the greater reason why the check, by way of competition, should not be disturbed.

The plaintiffs’ counsel contends, that there is no longer in existence any ordinance establishing stands. He claims this on the ground that, on the 24th of April, 1867, the common council adopted a resolution repealing all ordinances theretofore adopted by the common council relating to hackney coaches and carriages, and their owners and drivers. But it so happens that, on the 1st of May, 1867, the common council adopted a resolution establishing the stand in question, with others. It is true this resolution was passed by the boards of aldermen and couneilmen prior to the adoption of the resolution of the 24th of April, 1867, but it was not approved by the mayor until May T, 1867. It, therefore, did not become a resolution or ordinance, adopted by the common council, until May 1, 1867, since an essential element to such adoption is the approval of the mayor, or a passage over his veto, or his retention.of the resolution for a certain period of time without approval or veto. (Charter of 1857. Laws of 1857; vol. 1, 876, §§ 11, 12, 13.) Consequently, on the 24th of April, it was not an ordinance theretofore adopted by the common council, and did not fall within the repealing resolution of April 24, 1867, It is also true, that the resolution of May 1, 1867, purports to be an amendment of a resolution of 1866, which latter resolution falls within the terms of the repealing resolution of April 24, 1867. I am inclined to think that, under the circumstances, the resolution of May 1, 1867, must be regarded as re-enacting the resolution of 1866; but whether it does or not, the establishment of the stand in question is an entirely new provision, and is to be regarded as enacted at the time, the amended resolution took effect. (Ely v. Holton, 15 N. Y. Rep. 595, cited from 599.)

I may notice an objection raised by the defendants. It is, that the defendants are improperly joined as parties, because the acts of each one are wholly distinct from and independent of the acts of the other, and the complaint contains no charge of combination It is not necessary on this motion to determine the point, but it would seem not to be well taken. (Daniels’ Ch. Pr. vol. 1, p. 306.)

The motion for an injunction is denied, with $10 costs.