author: Truax, J. Per Curiam.

text:
    MORRIS J. RITTERMAN, Respondent, v. ELIHU H. ROPES, Appellant.

      Negligence case—Execution against the person.

    An execution against the body can issue against defendant upon a judgment obtained against him, in an action for personal injuries caused by his negligence, though no order of arrest has been obtained.
    Before Sedgwick, Ch. J. and Freedman, J.

      Decided June 1, 1885.
    Appeal from order denying defendant’s motion to set aside an execution against his person.
    Action for damages for personal injuries, viz.: the loss of an eye, caused by defendant’s negligence. Plaintiff obtained a verdict for $8,000, which was confirmed by the general term (51 Super. Ct. 25), and, after return of execution against the property unsatisfied, issued an execution against defendant’s person, no order of arrest having been obtained in the action.
   The following opinion was delivered at special term f

Truax, J.

Section 1487 of the Code of Civil Procedure authorizes the issuing of an execution against the person of the judgment debtor, when the plaintiff’s right to arrest the defendant depends upon the nature of the action. One of the cases in which the right to arrest depends on the nature of the action, is where the action is brought to recover damages for a personal injury (§ 519). In this case, the person of the plaintiff was injured through the negligence of the defendant, who has been arrested on an execution against the person. This execution he moves to set aside, on the ground that the words personal injury, in section 519, as defined by section 3313, mean only libel, slander, criminal conversation, seduction, malicious prosecution, assault, battery, false imprisonment, or other actionable injury, of like nature, to the person of the plaintiff, or of another. That is, that the defendant can be arrested only when the injury is willful. This construction is opposed to the authorities (Haines v. Joralemon, 2 Civ. Pro. [McC.] 196 ; Keeler v. Clark, 18 Abb. Pr. 151; Miller v. Scherder, 2 N. Y. 262), and is not warranted by the Code, for section 553 of the Code of Civil Procedure provides that a woman cannot be arrested except . . . for a willful injury to person, character or property; in other words, a man may be arrested for any injury to the person of another, while a woman can only he arrested for a willful injury to the person of another.

Boot & Strong, attorneys, and Theron H. Strong, of counsel for appellant, argued:

I. The provisions of the Code relating to executions against the person, are not intended to and do not warrant the issue of an execution against the person in an action for negligence. By settled rules of statutory construction the words “ other actionable injury” are limited and restrained by the words which precede them to other actionable injuries of the very same kind as those specified, (a) The actions specified all involve the elements of willful injury, one in which the intent of the author of the injury is prominent. Hone of them are cases of omission ; all are cases of commission, in which the direct, positive and intentional act of a person produces injury to another. They are none of them cases of carelessness ; all are cases of willfulness. (6) There are many other instances not mentioned, of actionable injuries of the same nature as those specified, to which the term “other actionable injury” applies, such as nuisances by obstructing highways, placing a spring gun or trap on land over which others are licensed to pass, keeping mischievous animals, leasing property infected with contagious diseases, and other actions of a like nature, (c) It is to such cases that the words, “other actionable injury” apply. “Where general words follow particular words, the rule is to construe the former as to things or persons particularly mentioned ” (Sedgwick Statutory Constr. 360 ; Sandman v. Breach, 7 B. & C. 96 ; St. Louis v. Laughlin, 49 Mo. 559 ; State v. Pemberton, 30 Ib. 376 ; Maxwell’s Interpretation Statutes, 297 ; Kitchen v. Shaw, 6 A. & E. 729; Williams v. Golden, L. R. 1 C. & P. 69 ; Rex v. Sanders, 9 C. & P. 79 ; Clark v. Gaskarth, 8 Taunt. 431; Hardcastle’s Statutory Laws, 83 ; Ashbury Co. v. Riche, L. R. 7 H. L. 653 ; Potter’s Dwarris Statutes, 292 ; Rex v. Manchester Co., 1 B. & C. 630 ; Casher v. Holmes, 2 B. & Ad. 592; East London Water Works v. Mile End Town, 17 Q. B. 512). In Trustees Exempt Fireman’s Fund v. Boome (93 N. Y. 313), it was held that a case may be within the law and yet not within the intention of the legislature (Citing People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574 ; People v. Fire Association of Phila., 92 Ib. 311).

“If the construction contended for by the defendant were the right one, section 553 would be.unnecessary.

“The motion to vacate the order of arrest is denied, with costs.”

II. It is confidently claimed that the words “ other actionable injury,” being general words following particular words, are restrained and limited by the latter, and the learned judge at special term plainly erred in supposing that this construction was opposed to the authorities, or rendered section 553, unnecessary, (a) The cases cited in the opinion are not authorities on this question (Weber v. Black, 18 Abb. Pr. 154; Miller v. Scherer, 2 N. Y. 262 ; Haines v. Jerolomon, 2 Civ. Pro. Rep, [McC.] 196), are to be distinguished. (6) Nor is section 553 rendered unnecessary. The learned justice supposed otherwise, because the word “willful,” in connection with the words “ injury to person,” would be unnecessary. But this cannot be correct, for, if the section was abrogated, a woman might be arrested whenever a man could be. The section is necessary to limit a female’s liability to arrest, and the present question of construction has nothing to do with the matter of necessity. The construction contended for, takes nothing away from section 553 ; it repeals nothing ; it nullifies nothing. Section 3343 leaves section 553 to stand as before, but applies the same rule to men respecting personal injuries which applied to women, The most that could be claimed would be that the word ‘£willful ” might, upon the rule of construction contended for, be unnecessary in connection with the words “ injury to person,” but it is plainly necessary in conuection with the words “character or property,” and this would hardly be a reason for remodelling the entire section. But section 549 was enacted long before section 3343, and was really a re-enactment of section 179 of the old Code, passed before any limitation or definition of the term “ personal injury.” So far, however, from defeating the construction claimed, it aids it—the definition of the term “personal injury” manifesting a disposition to harmonize and unify the grounds of arrest respecting both sexes.

III. The construction contended for is also supported by legislative intent, as manifested, and by the course of judicial decision. The provision in the old Code was much broader even than in the present Oode, the expression there being “ or where the action is for an injury to person or character ” (§ 179), thus including all possible injuries either of omission or commission where character or person was involved (Code Pro. § 179 ; see § 228 as to executions against the person). And yet Judge Freedman questioned its applicability to all forms of action, and denied its application to a case of death through negligence, although such a case was really within the letter of the law (Ryall v. Kennedy, 41 Super. Ct. 531). The present Code is by no means so broad,1 omitting the words, “injury to character,” and restricting somewhat the words injury to person, and defining their limitation (§ 549, as explained by § 3343). But it can never be that the legislature could intend such a rule, if adopted, to be other than of general application, and yet how impossible of general application it would be if it prevailed. In cases against the mayor, aldermen, &c., against whom would the execution run? In cases against railroad corporations, express companies, steamship lines, building corporations, are they all to be exempt because the rule does not admit of practical application, and yet enforce it as against mere private owners of real property or common conveyances ? No rule so discriminating or unjust could be within the legislative intent. The course of decision is also in favor of the construction contended for (Parker v. Spear, 49 Sup. Ct. 2; 62 How. Pr. 394; Ryall v. Kennedy, 41 Sup. Ct. 531; Davis v. Scott, 15 Abb. 227; Gribbs v. Larabee, 23 Wis. 495 ; Etna Ins. Co. v. Schuler, 28 Hun, 338 ; Catlin v. Adirondack Co., 81 N. Y. 689, reversing 20 Hun, 19).

Bichard S. Newcombe, attorney, and Albert Cardozo, of counsel for respondent, argued:

I. Section 1487 authorizes execution against the person : 1. Where the right to arrest the defendant depends on the nature of the action. Section 549 provides for arrest in actions : Subd. 2. “To recover damages for a personal injury.” And by section 3343, subd. 9, it is declared that “a personal injury” includes libel, slander, criminal conversation, seduction, malicious prosecution, also an assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff or of another. The provision is as broad as it can be ; it specifies some, and in order to be full and general, it adds, “or other actionable injury to the person,” etc. That the cause of complaint in this case was an actionable “injury to the person,” admits of no doubt.

II. That an execution may be issued against the body in an action based on negligence was decided in Catlin v. Adirondack Co. (20 Hun, 19). See Parker v. Spear (62 How. Pr. 394); Ætna Ins. Co. v. Shuler (28 Ib. 340).

III. The case of Ryall v. Kennedy (41 Super. Ct. 531), relied on by the defendant, decided only that an action brought by an administrator for the killing of the intestate was not an action for personal injuries. But Ryall v. Kennedy has no relevancy to the present question. It was decided in 1877, and was based upon sections 288,179, 181 of the Code as then existing.

IV. This construction is maintained by a comparison of the sections of the Code. Section 553 provides that a woman cannot be arrested except for willful injury ; but there is no such restriction as respects a man.

Per Curiam.

The order should be affirmed with costs upon the opinion of the learned judge at special term.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ISAAC E. WRIGHT, Appellant, v. HERMAN MISCHO, Respondent.

      Purchase of land—binding contract to purchase—delivery of memorandum sufficient to satisfy statute of frauds, and payment of a sum of money not necessarily sufficient.

    After some negotiation as to the purchase and sale of certain specified property owned by the plaintiff, the following took place at defendant’s store, as testified to by plaintiff: Defendant said he would give for the property $24,000, and $500 in furs. Plaintiff said, “ It is yours, I will draw you a contract, a receipt, and you pay me some money.” Defend'ant said, “ Very well, I have not much money in the safe.” Plaintiff said, “ $50 will do.” Defendant instructed his book-keeper to give plaintiff $50, and “ to draw a receipt.” The book-keeper said to plaintiff “You had better draw the receipt yourself.” Plaintiff then drew the receipt. The document drawn constituted a sufficient memorandum of sale under the statute of frauds, was signed by plaintiff, who received the $50, and left the document with the defendant. It was understood at the interview that plaintiff was to have a formal contract drawn the next day, and defendant was to call at his office and pay $950 additional. The next day, as also testified to by plaintiff, defendant called at plaintiff’s office, and the formal contract (which had been prepared in duplicate) was read over to him, he said “ ‘ they are apparently all correct, I do not see anything there but what I agree to, . . but I never sign any papers without my attorney seeing them.’ I said ‘ I want this money to-day.’ He said, ‘ You sign this contract and leave it here with Mr. Knapp, and if my attorney does not come from Brooklyn, I will show it to another attorney and be here in time for banking hours with the check for $950.’ I then signed the contract and left it with my check as suggested.” Defendant as a witness on his own behalf, and the only one, gave a materally different version of the two interviews.

      Held, that the complaint was properly dismissed, and that the motion for a new trial which had been made on the minutes was properly denied.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Appeal by the plaintiff from a judgment dismissing his complaint, and from an order denying his motion for a new trial.
    The cause was tried before O’Gorman, J., and a jury. At the close of the testimony on both sides, the court, on motion of defendant’s counsel, dismissed the complaint. The plaintiff then moved for a new trial on the minutes, which, after argument, was denied, O’Gorman, J., writing as follows :

      “ The action is brought for the recovery of $4,000 as damages resulting from the breach, by the defendant, of a contract alleged to have been made by him in March, 1883, to purchase from the plaintiff certain real property in this city.
    “ The burden of proving this contract, by a preponderance of evidence, was on the plaintiff. The plaintiff testified, that after some preliminary negotiation between him and the defendant, an interview took place on or about March 21, 1883, at the store of defendant, who deals in furs. Defendant said he would give plaintiff for the property $24,000, and $500 in furs, to which plaintiff answered, ‘ The property is yours.’ Defendant said, ‘I want to know that for sure, because if I don’t get this property, I want other property I am looking at.’ Plaintiff said, £ It is yours. I will draw you a contract, a receipt, and you pay me some money.’ He (defendant) says, ‘Very well, I have not much money in the safe.’ I said, ‘all right, $50 will do.’ Defendant then, instructed his book-keeper to give me (plaintiff) fifty dollars, and to draw a receipt. The book-keeper commenced drawing the receipt, and turned to me (plaintiff) and said, ‘Mr. Wright, you know more about this property than I do ; you know the location of it; you better draw the receipt yourself then I took the pen and drew a receipt; This document was thereupon signed by the plaintiff, and left with the defendant, and plaintiff received the fifty dollars in bills. It was not produced at the trial by the defendant, who stated that it was lost, and plaintiff testified as to its contents, using, to refresh his memory, a copy which he made of the document a few days after it had been signed by him. The following is a copy: ‘ Hew York, March 21, 1883. Received from Herman Mischo, the sum of $50 on account of purchase of property, known as 411 and 413 East 115th street, for the sum of $24,500, as follows : subject to $16,000, now a lien on said property, $8,000 in cash, and $500 in furs. The property to be free and clear of all incumbrances except as above mentioned. Deed to be given on April 2, 1883.’ This paper, as the plaintiff testified, was read over to the defendant. This, however, defendant denies. Plaintiff, continuing his testimony further, said : ‘ I was to have a contract drawn next morning, and Mr. Mischo was to call at my office and pay $950 additional. I read the contract over to him.’ He says, ‘Mr. Wright, they are apparently all correct, I do not see anything there but what I agree to, but I have always done business in such a way that I never sign any papers without my attorney seeing them.’ I said to him, ‘I want the money to-day.’ He said, ‘ You sign this contract and leave it here with Mr. Knapp (plaintiff’s clerk), and before three o’clock, if my attorney does not come from Brooklyn, I will show it to another attorney, and be here in time for banking hours with the check for $950.’ The contract was thereupon signed by plaintiff and left with the clerk. Defendant did not return that day, and wrote a letter to plaintiff, declining to proceed further in the transaction. -This letter was answered on the part of the plaintiff, stating that defendant had bought the property and had plaintiff’s receipt, which debarred plaintiff from .selling it to any one else, whereupon defendant again wrote to plaintiff, inclosing plaintiff’s signature, which had been cut from the receipt. Plaintiff thereupon took steps to sell the property by private sale, and, failing in that, sold it at auction on May 12, 1883, for $20,500, $4,000 less than the price at which he claims that it was purchased from him by defendant. Plaintiff testified that the market value of the property in April, 1883, was about $20,500 or $21,000.
    “These are, I think, the material facts, as testified to by the plaintiff.
    “The question to be considered, is whether or no the transaction, as thus described by him, constituted a contract by the defendant to purchase the property and take a deed for it and pay for it, according to the terms, as set forth in the receipt drawn up by the plaintiff and given by him to defendant. Did the delivery by plaintiff to the defendant of the receipt, and its acceptance by the defendant, coupled with the delivery by the defendant to the plaintiff of fifty dollars, as stated by the plaintiff, considered in the light of all the attendant circumstances, constitute, or supply sufficient evidence of a contract on the part of defendant to purchase the plaintiff’s property, under the provisions of the statute of frauds as now in force in this state ?
    “ The section of the act bearing on this subject is as follows : ‘ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest inlands, shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.3
    “ This receipt sets forth, I think, with sufficient accuracy, the description of the property, the price, and the terms of sale, to constitute ‘a note or memorandum of sale,3 by the plaintiff under that section. But that is not the question here. The question is, did the whole transaction constitute a contract on the part of the defendant to buy ? The section above set forth, does not require that the contract to purchase land should be in writing. But, nevertheless, a contract on the part of the purchaser is necessary to establish any obligation against him, and the burden is on the plaintiff to prove that such a contract was made.
    “ The plaintiff’s claim here is, that the acceptance by the defendant of the receipt, drawn up by the plaintiff, and payment by the defendant of fifty dollars, constitute a contract on his part, or are evidence of a contract. From a dictum in the opinion of the court of appeals, in Oagger v. Lansing (43 N. Y. 550), it may be inferred, that the court held it to be law, that the delivery by the vendor to the purchaser of a written contract for sale of land, subscribed by the vendor alone, and its acceptance by the purchaser, would constitute a contract on the part of the latter to purchase, if it were accepted by him as a valid subsisting contract. But if not so accepted, that it would not be binding on him.
    “Did defendant here accept this receipt as ‘a valid subsisting contract3 by the vendor to sell him this property ? The burden of proving that he did so accept it, was on the plaintiff.

      “ The question can be answered only by considering the circumstances of the whole transaction in defendant’s store, and also what occurred at the interview in plaintiff’s office next day. The payment of money on account of a purchase of land is held not to be, of itself, evidence of a contract to purchase the land (Oagger v. Lansing, supra; Baldwin v. Palmer, 10 N. Y. 232).
    1 ‘ In Raubitchek v. Blank (80 N. Y. 478), an action was brought for payment of a check, valid on its face. The defendant pleaded want of consideration, and the burden of proof was on him. ' It appeared that the check was given as part payment, on a verbal agreement for the sale of land ; that a receipt signed by the vendor was given to the purchaser, which receipt contained enough to constitute a note or memorandum under the statute of frauds. It was held, that the defendant failed to show that there was not good consideration for the check ; that the receipt amounted to a contract of sale, sufficient to satisfy the statute of frauds, and was binding on the vendor ; that the transaction bound the purchaser also, on the ground that the receipt and the check formed one contract, the mutual relations of these several writings appearing on their face. This case has been referred to in the argument, but is not in point with the case at bar, for the burden of proof there was on the defendant to prove that no valid contract existed on the part of the vendor to sell the property, whereas, in the case at bar, the burden is on the plaintiff to prove that there was a valid contract on the part of the defendant to buy ; and it is worthy of note that only three members of the court of appeals concurred in the decision in that case.
    “The question then in the case at bar, is whether there was evidence enough to go to the jury, that defendant understood the receipt to be, or that it was intended by plaintiff to be a valid and subsisting contract for the sale of the land, and that defendant accepted it as such. There is no evidence that he did so. At the interview in his store, defendant directed his book-keeper to draw a receipt. The book-keeper requested plaintiff to draw the receipt himself. The document was in form a receipt, and in the interview and conversation between plaintiff and defendant it was called a receipt.
    “The agreement then made between plaintiff and defendant, that they were to execute a contract in counterpart the morning after that interview, does not favor the conclusion that defendant understood that a valid and subsisting contract, binding plaintiff, had been made, or was intended to be made by plaintiff, and that the defendant was bound, as a purchaser, by reason of the delivery to, and acceptance by him of a contract. If defendant believed, and had reason to believe, that the paper then signed by plaintiff, and delivered to him, was a receipt, and nothing more, there was no valid or binding contract between them. A strong preponderance of evidence is that he did so believe.
    <CI have considered this question, so far, by the light only of the evidence in its aspect most favorable to the plaintiff, and I find therein no proofs of any valid contract on the part of the defendant to purchase this property.
    “ At the trial of the action, all evidence on both sides was received that was believed to be material and relevant to a full understanding of the whole transaction; and taking the evidence in the case altogether, I think that there is not only a failure of necessary proof by the plaintiff, but a preponderance of evidence in favor of the defendant. His conduct may have been unbusinesslike, vacillating, and on various grounds open to serious objection, but I see no evidence in the case that would have warranted a jury in finding that he had violated a contract by reason of which plaintiff was entitled to claim damages against him.

      “ The motion for a new trial is denied, but without costs.”

      E. H. Moeran, and Alfred Pagelow, for appellant, argued:
    I. The receipt embracing the memorandum of the contract signed by the vendor, and delivered to and accepted by the vendee, constituted a contract for the sale and purchase of real estate, valid within the statute of frauds, and binding on both (Tallman v. Franklin, 14 N.

      Y. 585 ; Champlin v. Parrish, 11 Paige, 409 ; Cales v. Bowne, 10 Paige, 537; Bleecker v. Franklin, 2 E. D. S. 93 ; The National Fire Ins. Co. v. Loomis, 11 Paige, 433). Bicknell v. Byrnes (23 How. 486), holds, that in sales of mortgaged premises under a decree, it is not essential to the validity of a sale that the purchaser sign the memorandum of the sale. It is enough if signed by the officer making it.
    The opinion in Müller v. Maxwell (2 Bosw. 359), by Slosson, J., contains a reference to the case of Bleecker v. Franklin {supra), and affirms its doctrine. The opinion of Daniels, J., in Burrell v. Root (40 N. Y. 502), is clearly in point, and though a dissenting opinion, it is not in conflict with the prevailing opinion, for the reason that the contract in that case was sustained as a contract to purchase, and it was held binding as such, thoúgh there was no mutuality, on the ground that it was made for an implied consideration (being under seal). Daniels, J., however, treats the matter as a contract to sell, and finds it not binding because not subscribed by the vendor. He holds the letter of the vendor, exercising the option he had, an insufficient memorandum, though signed by him and sent to and received by the vendee, for the reason that the referee found the above and that only,, and did not find that it was received and accepted by him as the memorandum which would have been sufficient to hold him had such been-the fact. See also Raubitschek v. Blank (80 N. Y. 493), which was an exchange of lands— and both parties were vendors with respect to their own lands—and therefore a signing, by both parties was necessary, and on that ground only. See also Justice v. Lang (30 How. 439); Caggar v. Lansing (43 N. Y. 550).
    II. The memorandum fully contained all the terms of the contract, and was sufficient in that respect under the statute (Westervelt v. Matheson, 1 Hoff. Ch. 37 ; Cosack v. Descomdres, 1 McCord, 425 ; Hurley v. Brown, 98 Mass. 545 ; 1 Dart on Vendors & Purchasers, 98 ; citing Blagden v. Breabear, 12 Ves. 466; Coles v. Precothick, 9 Ib. 234 ; Tallman v. Franklin, supra,).

    III. A final contract to sell and purchase, complete in all its parts, and evidenced as required by the statute of frauds, was fully established. And this, notwithstanding that “a more formal agreement was to be drawn and signed the next day.” The English courts have many times considered the questions arising under this head, and the doctrine established by these adjudications is substantially that an acceptance of an offer to sell, the terms and property being sufficiently defined in the offer, and a memorandum sufficient to satisfy the statute of frauds being signed by the vendor, will constitute a final agreement to purchase, binding on the vendee ; although the parties may have declared that the writing is to serve only as instructions for a formal agreement, or, although it may be an express term that a formal agreement shall be prepared and signed by the parties (Fowle v. Freeman, 9 Ves. 351; Thomas v. Bering, 1 Keene, 729 ; Ridgeway v. Wharton, 6 H. L. C. 264; Chinnock v. Marchioness of Ely, 4 De G. J. & S. 633 ; Crossley v. Maycock, L. R. 18 Eq. 181; Rossiter v. Miller, 3 L. R. App. Cases, 1124; Opinion of Fry, J., Bonnewell v. Jenkins, 8 L. R. Ch. Div. 70 ; Brogden v. Metropolitan Railway, 20 English Rep. 176 ; Moak’s Notes, pp. 199 to 203 ; Lewis v. Brass, 28 Ib. 528 ; Bonnewell v. Jenkins, 25 Ib. 128 ; Moak’s Notes, 131; Byrne v. Van Tienhoven, 30 Ib. 833 ; Moak’s Notes, 839 ; Bell v. Offert, 10 Bush [Ky.] 632).
    It is only in cases where the concluded nature of the agreement does not evidently appear on the writings, or cannot be fairly inferred therefrom, that the fact that a subsequent and more formal contract was intended to be entered into,' will ■ be strong evidence that the previous negotiations and writings were not intended to amount to a contract (Ridgeway v. Wharton ; Chinnock v. Marchioness of Ely, supra).

    IV. The intention of the vendee to accept the memorandum as a binding contract, if material at all, was a question for the jury. The intention of a party is rarely, if ever, to be determined as a question of law. All the facts and circumstances of the case are to be given to the jury, and the fact is to be determined by them (Lewis v. Brass, supra).

      Julius Klampke, attorney, and Peter Mitchell, of counsel for respondent, made the following points:
    I. No contract was established which could bind the defendant. It is submitted, the essential elements which the law requires to constitute a contract are here wanting. There was no agreement or concurrence of the minds of the parties. Nor did the receipt, even if delivered' to defendant, bind him as his contract. Its terms and conditions were not known to him ; nor did he consider it in any other light than that of a mere receipt. And all through this controversy, and in his letter of March 23d to' defendant, plaintiff characterizes and alludes to this paper as a receipt. There is nothing whatever in the defendant’s conduct or actions to charge him with any' knowledge of having entered into, or being bound by any contract. In fact, his whole conduct negatives such a presumption. The law is well settled that there can be no contract unless the parties thereto assent to the same thing in the same sense (Ballard v. Trow’s Printing, &c. Co., 7 Wash. L. R. 590). Where there is any variance between the terms of the proposal and those of the acceptance, no contract arises (Fry Spec. Perf. 139, § 170). Again, if the plaintiff believed, or intended, that the receipt should constitute a contract, why trouble himself about the preparation and execution of another contract the next day ?
    II. The signing of the receipt by plaintiff is not a sufficient compliance with the statute of frauds. The receipt does not contain all the elements of a “ note or memorandum of sale” which the statute contemplates. Among other defects, the property mentioned in it is not described with the necessary particularity as to dimensions and location, which would give a purchaser the right to enforce specific performance as against the vendor (Calkins v. Falk, 39 Barb. 620 ; Lawson v. Mead, H. & D. Supp. 158). The fact of the defendant having given the plaintiff $50, and getting receipt therefor, does not constitute an acceptance on his part of the contract sought to be enforced by plaintiff. There is no proof showing that the defendant accepted the receipt as a contract, or that he knew the nature of its contents, or considered it anything more than a mere receipt. And admitting that the $50 was on account of purchase price, that of itself would not be evidence of a contract to purchase the property (Baldwin v. Palmer, 10 N. Y. 232; Cagger v. Lansing, 43 N. Y. 553; Fry Spec. Perf. 260, § 403). The case of Raubitschek v. Blank (80 N. Y. 482), referred to by the learned judge in his opinion, is not parallel with this case, nor applicable. The parties seeking to enforce their rights in each, occupied different relations, and the check given as part payment in that case, was construed with the receipt and held to form one contract with it; while in the case at bar, the money given was paid in bills, and was not intended to form any part of the purchase money (Foot v. Webb, 59 Barb. 38 ; Buckmaster v. Thompson, 35 N. Y. 558).
   Per Curiam.

The judgment" and order should be affirmed, with costs, upon the opinion delivered by the learned judge below on denying plaintiffs’ motion for a new trial.


text:
    THE FORTY-SECOND ST. AND GRAND ST. FERRY R. R. CO., Respondent, v. THIRTY-FOURTH ST. R. R. Co., Appellant.

      Statutes—construction of—Chapter 262, Laws 1884—meaning of “ any portion of a sPreeV'—Public nuisance—Street rail/road,—Jurisdiction of court—irmocable by individual.—Special damage, sufficiency of.

    Statutes must be construed in their plain, obvious sense, according to the signification among the people to whom they were directed.
    The phrase “portion of any street,” in Laws of 1884, chapter 262, § 14, includes not merely the space occupied by the tracks, but the space on each side of, and between the tracks (in fact, the whole width of the street), along the whole line of the .track.
    A street surface railroad constructed without legal authority, is a public nuisance.
    The fact that one is about to commit an act which would cause a public nuisance, gives the court jurisdiction to restrain it.
    In such case,—i. e., public nuisance,—it is sufficient to enable an individual to maintain an action for an injunction, that he has suffered, or will suffer therefrom, substantial damage that is special and peculiar to him, as distinguished from the damage which he has suffered or will suffer, as one of the community. The nature or extent of the damage is immaterial, as the injunction does not depend on them.
    Houston, etc., R. R. Co. v. Forty-second St. R. R. Co., and Allen v. Same (Daily Register, September 9, 1884), distinguished.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Appeal by defendant from an order continuing an injunction.
    The motion for a continuance was heard on the complaint, verified by Charles Curtis, the president of the plaintiff, and an affidavit of said Curtis. The complaint was as follows :
    “ The plaintiff, by Frehng H. Smith, its attorney, complains and alleges :
    “1. That the plaintiff is a corporation duly incorporated under chapter 515 of the laws of 1860, of the state of New York.

      “ 2. That the plaintiff has heretofore lawfully constructed and operated a street surface railroad over the entire route provided for by its franchise ; that it has lawfully constructed and operated, and now owns, is maintaining and operating a double track street surface railroad from the foot of West Forty-second street, through and upon said Forty-second street to Tenth avenue; thence southerly down Tenth avenue through and upon the same to Thirty-fourth street ; thence easterly through and upon Thirty-fourth street to Sixth avenue ; thence south-easterly to the Grand street ferry on the East river.

      “ 3. That the distance from the foot of West Forty- , second street to Sixth avenue is about one and three-fourths miles. *

      “4. That the defendant is a private corporation organized under chapter 252 of the laws of 1884, of the state of New York to construct, operate and maintain a street surface railroad from the foot of West Forty-second street through and upon Forty-second street to Tenth avenue ; thence through and upon Tenth avenue to West Thirty-fourth-street ; thence through and upon said Thirty-fourth to the East river.

      “5. That that portion of Forty-second street lying between Tenth avenue and the Hudson river; that portion of Tenth avenue lying between Forty-second street and Thirty-fourth street; that portion of Thirty-fourth street between Tenth avenue and Sixth avenue, are already occupied _ by the street surface railroad, constructed, owned, and maintained by this plaintiff as aforesaid.
    “6. That, although by section 14, of chapter 252, of the laws of 1884, no street surface railroad company can construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed, except with the consent of the company owning and maintaining the same, the defendant wrongfully, unlawfully, in violation of the statute and of the rights of this plaintiff, proposes and threatens to construct and operate without the consent of the plaintiff, a street surface railroad from Sixth avenue to the foot of West Forty-second street along the route heretofore described, and in that portion of the said streets and avenues in which is situated the street surface railroad owned and maintained by this plaintiff.
    “U Upon information and belief, that the defendant has already applied to the department of public works for leave to take up the pavement, to the end that it may construct and operate said railroad in violation of the plaintiff’s rights as aforesaid.
    “ 8. That the construction of a railroad by defendant over such route will inflict irreparable damage upon the plaintiff.
    “9. That the plaintiff has no remedy against the violation of its rights aforesaid, nor any way in which it can restrain said violation except this court restrains the same by injunction.
    “ Wherefore, plaintiff prays, etc.”
    The affidavit was merely as to those allegations in the complaint not made on said Curtiss’ own knowledge. The motion was argued before Ingraham, J., who, on granting it, wrote as follows :
    “ The defendants are organized under chapter 252 of the laws of 1884, for the purpose of constructing and operating a street surface railroad in Forty-second street, Tenth avenue and Thirty-fourth street, in the city of New York.
    “The plaintiff for many years prior to the passage of the act of 1884, under legislative authority, operated a street surface railroad in a portion of Forty-second street, Tenth avenue and Thirty-fourth street, included in the route of the defendant’s company.
    “ Section 14, chapter 252 of the laws of 1884, provides that except for necessary crossing, no street surface railroad company shall construct, extend, or operate its road or track in that portion of any street, avenue, road or highway, in which a street surface railroad is or shall be lawfully constructed, except with the consent of the com- • pany owning or maintaining the same.
    “ The defendant claims that the prohibition contained in this section, applies only to that portion of the railway or street included within the track of the plaintiff’s road.
    “It is an elementary principle governing the interpretation of statutes, that the words of the statute must be construed in their plain obvious sense, according to the signification among the people to whom they were directed (Matter of O’Neil, 91 N. Y. 516), and taking the words of section 14 in that sense, I think the words ‘ portion of any street, avenue, road or highway in which the street railroad is or shall be lawfully constructed,’ mean more than the part of the roadway upon which the tracks of the existing railroad are laid. A street in the city of New York includes the roadway and the sidewalk. Thirty-fourth street includes within its Emits the whole strip of land one hundred feet wide from the East to the North river. A portion of such street is not a strip of the roadway or of the sidewalk, but is a part of the whole street. The meaning of the section is not very clear; but taking the words in their e plain, obvious sense,’ I am of the opinion that a corporation organized under said act, can have no right to construct a railroad in the streets in which the plaintiff’s road is constructed.
    “The power of the legislature to .restrict the powers of corporations created by them, cannot be seriously disputed, and the legislature in authorizing the organization of railroad corporations for the purpose of constructing and operating railroads, has power to provide that corporations organized under the provisions of that act, should not operate railroads in certain excepted streets and avenues.
    It has been settled by many adjudications in this state, that the construction of a street railroad in one of the streets of this city without legal authority, is a public nuisance (Davis v. Mayor, etc., 14 N. Y. 506 ; Milhau v. Sharp, 27 lb. 611).

    “It is well settled, however, that an action to restrain the continuance of a public nuisance cannot be maintained by an individual, without proof that such individual has suffered, or will suffer peculiar or special damage, not sustained by the community at large. The nature or extent of the damage he must sustain in order to be entitled to maintain the action, is not material. The nuisance must cause him a substantial damage, and it must be special to himself as distinguished from one of the community at large. The rule as to the proof of the nature and extent of the damages laid down in the case of McHenry v. Jewett (90 N. Y. 62), and cases like it, however, do not apply to the case at bar. In this case the threatened erection of a nuisance gives a court of equity jurisdiction to restrain the illegal act, and a court of equity at the suit of the people would have power to restrain by injunction the proposed erection. “The fact that defendant has committed, or is about to commit an act which would cause a public nuisance, gives the court jurisdiction to restrain the commission of the act (People v. Vanderbilt, 26 N. Y. 290). To entitle an individual, however, to maintain such an action, it is necessary to show that the act complained of will cause special damage to the individual (Doolittle v. Supervisors, &c., 18 N. Y. 155). It is sufficient, however, if it appear that the injury complained of will cause damage that is peculiar to the individual, as distinguished from the damage he has suffered as one of the community at large, and such a case should be distinguished from the cases in which the nature and extent of the injury give the court jurisdiction.
    “ It has been held in many cases in this state, that an action can be maintained by the owner of abutting property to restrain, by injunction, the commission of a nuisance in the street in front of his property. In Corning v. Lowerre (6 Johns. Ch. 439), the chancellor held that an abutting owner suffered a special grievance from an obstruction in the street, and that such obstruction worked a special injury (Clarke v. Blackman, 41 N. Y. 153 ; Milhau v. Sharp, supra).

      “The case of Houston St., &c. R. R. Co. v. Forty-second street R. R. Co., contained in the Daily Register, of September 9, 1884, only held that the plaintiff in that action could not ask the court to prevent the construction of its road in any part of Forty-second street, except the portion occupied by the plaintiff’s road. Allen v. Forty-second street R. R. Co., in the same paper, was an action by an abutting owner, and the court held that the defendant had legal authority to construct the road in front of plaintiff’s property. Neither of the cases therefore apply, and after a careful examination of the other cases cited by counsel for the defendant, I think the allegations in the complaint that the plaintiff will suffer special damage from the construction of a railroad by defendant, make out a prima facie case to justify the granting of an injunction during the pendency of the action.
    “ Motion must therefore be granted, with ten dollars costs to abide the event.”

      Wákeman & Ratting, attorneys, and Grosvenor P. Lowrey, of counsel for appellant, on the questions considered in the opinion, argued:
    The plaintiff’s cause of action, as pleaded, may be considered in several aspects :
    I. As charging the defendant with an attempted usurpation of power without special damage properly alleged.
    The legal offense implied in such action is the usurpation of powers not possessed ; and when contemplated by corporate bodies is restrainable in equity only by the attorney general, unless facts showing a special and actionable injury to the plaintiff are averred (Houston, West St., &c. R. R. Co. v. Forty-second St., &c. Ry. Co., Daily Reg. Sept. 9, 1884 ; Christopher & Tenth St. R. R. Co. v. Central Crosstown R. R. Co., 67 Barb. 315). Such injury does not, in contemplation of law, arise by the mere diversion of traffic, proximity of tracks or diminution of revenue (N. T. & Harlem R. R. Co. v. Forty-second Street R. R. Co., 50 Barb. 285 ; Smith v. Lockwood, 13 Ib. 209 ; Pudsey Gas Co. v. Bradford, &c., 5 Eng. R. [Moak’s ed.] 188 ; Stockport v. Manchester, 9 Jurist N. S. 266 ; McHenry v. Jewett, 90 N. Y. 58).
    II. As charging a threatened violation of plaintiff’s rights, and a consequent legal injury to it by disregarding a special franchise pertaining to it, to control the introduction of other surface railways, into a certain part of Thirty-fourth street.
    The use of a street by surface railroads is “merely a mode of exercising the right of public travel ” (Brooklyn City R. R. v. Coney Island R. R., 35 Barb. 368), and was in 1860 withdrawn from the control of the local legislature. Since then, by the constitution, the control of this subject has been confided to, (1) the legislature ; (2) the local authorities ; (3) the property owners, who must coincide to authorize such use. And. now (upon the plaintiff’s construction of this act), the legislature has added a fourth, viz., any existing surface railroad company, in possession of a constructed road, and thereby interested to refuse, or make terms for granting, its consent to an exercise of this right of public travel. Now, the plaintiff’s claim is that the public shall not have full means of passage through Thirty-fourth street, because it has a special franchise to forbid railroads in a certain portion of Thirty-fourth street (Mayor v. Broadway, &c. R. R., 97 N. Y. 281; Mills v. St. Clair Co., 8 How. 569 ; Dolsen v. New York, 17 Fed. Rep. 611; Turnpike Co. v. Illinois, 96 U. S. 68 ; Rice v. Railroad, 1 Black, 358 ; Ruggles v. Illinois, 108 U. S. 526 ; Martin v. Wardell, 16 Pet. 367). Upon the principles shown in these cases, it is clear that a consequence so unjust and unreasonable as the exclusion of a part of the public from full use of a public street, unless with the consent of a particularly interested carrier company will not be submitted to if the words in question can be made to bear any other reasonable construction. This brings us to the interpretation of chapter 252 of the laws of 1884. To assume that the legislature has intended to grant an exclusive privilege in any given section of the street to a private railroad company, is to assume that it has by public bill attempted the granting to a private corporation of an exclusive privilege, immunity or franchise, which is what the constitution forbids to be done by the only method reasonably to be apprehended, i. e.. by private or local bill. The prohibition by section 14 of the act, obviously applies to “the use by oné company of the tracks or ways of another. ” This is evident from, the exception which allows “ necessary crosssings,” and from the proviso which empowers the court to compel the previously constructing company to give “ the right of such use ” upon compensation for the use by one company of the tracks of another. The real object of the legislature was, doubtless, to give to existing companies, as agencies of public travel, a more exclusive control of their own tracks by abolishing the application to such property of the power of eminent domain; thus requiring new companies to meet the demands of the old one, or build outside its lines.
    III. As attempting to obtain the restraining power of the court, an advantage over the defendant preliminarly to the coming on of negotiations for a joint use of the tracks under the powers given in the act.
    The statute is invoked to make plaintiff’s consent a necessary condition precedent for us; the action is brought to declare its refusal to consent and to restrain us from proceeding without it; and the next practical step will, doubtless, be the naming of a price at which the consent may be had. For this favoritism they have paid nothing, ventured nothing, sacrificed nothing, nor rendered any public or meritorious service whatever. The public and the property owners were adequately protected by the constitutional provision making their consent a condition precedent. The new power of consenting (even when the public interest does not require it), and of objecting (even when local authorities, the general public and property owners unanimously consent), is manifestly not for the protection of either property owners or public. What other interest, then, can the legislature have had in view % Manifestly, only the private interest of existing companies. That interest is divisible into, (1) an interest not to be disturbed in exclusive possession of tracks and ways, (2) an interest not to be competed with in business. It was legitimate for the legislature to guard the first interest by hmiting the then existing liability of such property to be expropriated, or otherwise applied to competing public uses. It was not legitimate, and therefore was presumably not meant, to carve out from the general public right still other franchises, and engraft them for its sole use and benefit upon the existing privileges of a private company. But if this was meant, and was sought to be effected by imposing a condition impossible of performance, then the court must consider, (1) Whether the condition is not void, (a) As operating to diminish the right of the people as cestuis que trust under the act of 1813; (b) The power of “local authorities” (acting as public agents, in conjunction with property owners), effectively to control the degree of public use which any street shall serve (Const, art. 3; § 18); (c) As an appropriation and assignment to one company (not for jmblic use, but in restraint of such use), of the entire easement-bearing capacity of a street, without compensation to the mayor, &e., as owners of the legal estate therein ; (d) As in derogation of the private right of adjacent owners to have (subject to constitutional conditions only), the entire street kept forever fully available for all modes of public travel (Brooklyn City R. R. v. Coney Island R. R.; Mayor, &c., v. Broadway R. R., supra); (e) As conferring on a.private company a function political in its nature, and, therefore, beyond the power of the legislature to grant, and the capacity of the grantee to receive. (2) Or, if the condition must be held valid because it does not contravene any specific terms of the constitution, then the court must consider whether the condition can be pleaded, except by the people suing by their own attorney, to restrain an unlawful usurpation of power, and for the protection of purely general and public interests (Smith v. Lockwood ; Houston, &c. R. R. Co. v. Forty-second, &c. R. R., supra).

      Freling H. Smith, attorney, and of counsel for respondent, on the points considered in the opinion, argued :
    I. The claim that section 14 requires the consent of the constructed road, only when the proposed route lies directly over the space included within its tracks, or covered by its cars, is clearly untenable. If such were the case, said section would be meaningless, for without it the road could not be used without its consent. But the language of the section is too plain for doubt. It says : “Ho street surface railroad company shall construct, extend or operate its road or tracks in that» portion of any street, ” &c.
    II. The defendant’s proposed road being in violation of section 14 of chapter 252 of the laws of 1884 (under which the defendant is incorporated), is a public nuisance (Davis v. Mayor, etc., 14 N. Y. 506 ; Doolittle v. Supervisors of Broome Co., 18 Ib. 155 ; Harlow v. Hunston, 6 Cow. 189 ; Congrove v. Smith, 18 N. Y. 79). And any person sustaining a particular injury thereby may maintain an action (Moshier v. Utica & Schenectady R. R. Co., 8 Barb. 427; Doolittle v. Supervisors of Broome Co., supra), and have an injunction (Pennman v. N. Y. Balance Co., 13 How. Pr. 40 ; Davis v. Mayor, &c., 14 N. Y. 506 ; N. Y. & N. H. R. R. Co. v. Pixley, 19 Barb. 428 ; Doolittle v. Supervisors of Broome Co., supra; Corning v. Lowerre, 6 Johns. Ch. 439 ; First Baptist Church v. Sche. & Troy R. R. Co., 5 Barb. 79 ; Hart v. Mayor of Albany, 9 Wend. 571; 2 Redfield on Law of Railways, 379, 380 ; Spencer v. London & Birmingham R. R. Co., 8 Simons, 193 ; Sampson v. Smith, Ib. 272 ; Clark v. Blackmar, 47 N. Y. 150).
    III. There can be no serious question as to the special damage which will be inflicted on plaintiff, if defendant is not restrained from constructing the nuisance in question, or that the plaintiff can have no adequate remedy at law. The defendant seeks to parallel plaintiff’s road for nearly two miles, and in doing so will have to cross plaintiff’s tracks at Sixth avenue and Thirty-fourth street. The court must take judicial notice of the' facts that in the work of construction, the streets on each side of plaintiff’s tracks must be torn up, and passage to and from its cars obstructed ; that in constructing its road across plaintiff’s tracks, plaintiff’s traffic will be interfered with ; that in running its cars, defeiidant must necessarily, to a considerable extent, interfere with the ingress and egress of passengers to and from plaintiff’s cars In addition to the above, defendant, by operating its proposed road, would become a direct competitor with plaintiff for the carriage of passengers, and would divert a large part of its traffic, and thus diminish its revenues. All these damages must, in the nature of things, follow from the facts stated in the complaint. When the complaint states that the defendant is seeking to construct and operate a street railway in the same streets with plaintiff, under chapter 252 of the laws of 1884, it is equivalent to alleging all these items of damage in detail. Among other reasons, McHenry v. Jewett (90 N. Y. 58), has no application, because in case of public nuisance it is not necessary to show irreparable injury. It is sufficient to maintain the action for the plaintiff to show that he will sustain special injury by the threatened act.
    TV". The case relied on by the defendant (N. Y. & H. R. R. Co. v. Forty-second street, &c. R. R. Co., 50 Barb. 285, 309), to show that diversion of traffic, &c., is not sufficient to authorize this action, does not apply to this ' case. In that case, the defendant had the legal right to construct its road, and it was proceeding to construct it in accordance with the act of its creation. The case is an authority directly in point in plaintiff’s favor ; for the injunction would have been sustained, if the defendant had not been clothed with authority to construct its road. The above is an answer to the position that the attorney general only can bring the action. All the authorities cited by the defendant hold the contrary.
    V. Will then the plaintiff suffer special damage if the defendant is permitted to carry out its threats to erect its unlawful structure ? Of this there can be no question. Plaintiff is not one of a class who would suffer from loss of traffic, obstructions, &c., but it is the only person or corporation who would suffer in like manner. The damage would be special and peculiar to the plaintiff. It is well settled that an abutting property owner may maintain an action to prevent an unauthorized construction of a street surface railroad, because specially injured (Milhau v. Sharp, 15 Barb. 193 ; S. C., 17 Ib. 425 ; 27 N. Y. 611 ; Wetmore v. Strong, 22 Ib. 414 ; Doolittle v. Supervisors, &c., 18 N. Y. 264 ; Clark v. Blackmore, supra).

   Per Curiam.

The order appealed from is affirmed with costs, on the opinion of the court below.


author: “Ingraham, J. Per Curiam.

text:
    MARTIN J. HACKETT, Respondent, v. THE HACKETT HATCH DOOR MANUFACTURING Co., Appellant.
    Royalties, contn'aet for—specific sumfoi' each article—payments to he made every six months—no 2myment to he less tha/n $100.
    One clause of an agreement called for a payment as a royalty of a specific sum for each article manufactured; a subsequent clause provided that no payments of royalties should be less than $100, whether doors to cover that amount had been manufactured or not.

      Held,, construing these clauses with an intermediate one calling for payments of royalties every six months, that plaintiff was entitled to receive $100 every six months, whether any articles were manufactured or not.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Appeal from a judgment in favor of plaintiff, entered on the decision of a judge at special term.

      The action was brought to recover certain royalties. Having come on for trial, it was submitted for decision on the following propositions :—11 Plaintiff’s proposition. Whether the said Edward M. Hackett, under and by virtue of said agreement with this defendant, is entitled to demand and receive from defendant as part of the consideration for the license to manufacture hatch doors under his patent, the sum of $100 each and every six months while said agreement remains uncanceled, and until defendant has relieved itself from liability by a written surrender of the license to manufacture as provided for in said agreement. Defendant’s proposition. On the contrary, that the said Edward M. Hackett, under and by virtue of said agreement is only entitled to demand and receive from defendant royalty, whenever hatch doors have been manufactured, and only for the respective periods of six months, within which they were manufactured, except that in the event of royalty so becoming due within any of such periods, he shall be paid $100 for each of such periods, whether hatch doors have been manufactured or not to cover that amount of royalty. And that the clause of the agreement permitting the defendant to relieve himself from liability by a written surrender of the license, only has reference to the next preceding clause thereto, by ■ virtue of which (next preceding clause) the defendant is called upon to pay for hatch doors manufactured under patents which are outside of the licensed patent and said agreement, and not to the clause in dispute, which is the next preceding clause but one to such surrender clause and is not connected or associated therewith.

      “ If the agreement is construed by his honor, in accordance with the first proposition, then the plaintiff is entitled to judgment against the defendant, for the sum of $500 and costs of this action. If the agreement is construed by his honor in accordance with the second proposition, then the plaintiff is entitled to judgment against the defendant for the sum of $100 or more for each and every half year since November 1, 1881, in which this defendant erected, or caused to be erected, hatch doors, with costs of this action to December 6, 1884, the date of defendant’s tender ; the number of half years during which said erections were made, to be hereafter determined by the court, upon proper application, in the event of the counsel for the plaintiff and defendant being unable to agree upon the amount due after an examination of defendant’s books.”
    The material portions of the agreement referred to in the propositions were the fifth, seventh and tenth clauses. The fifth and tenth clauses were as follows : “Fifth. The said party of the fourth part agrees further, as a consideration for this license, to pay to said Edward M. Hackett or his assigns, as" a royalty, the sum of S3 for each and every full door or opening, to which said improvements or any of them may be applied by said party of the fourth part under this license, said royalty to be paid at the times hereinafter provided.” “Tenth. It is further expressly agreed between the parties hereto, that upon the failure of the party of the fourth part to make returns, or to make payment of the royalties, as herein provided in the .fifth clause of this agreement, at the time therein mentioned, and in the event of their continuing in default in making such returns or making such payments for the period of six months thereafter, then this license and all the rights and privileges granted thereunder shall cease and determine, and the same shall revert to the parties of the first, second and third parts, or assigns ; but the party of the fourth part shall not thereby be discharged from liability then due. It is further agreed between the parties hereto that no payments of royalty shall be less than $100 whether doors to cover that amount have been manufactured or not; and they further agree to pay the royalty per door or opening, herein provided to be paid, on every door or opening they shall manufacture or put up, whether under this license or other patents, or both. But it is expressly provided that the parties of the . fourth part may relieve themselves from • said liability under this clause by a written surrender to the parties of the first, second and third parts, or assigns, of this license.” The provisions of the seventh clause are sufficiently stated in the opinion.
   The' judge below decided in favor of plaintiff’s proposition, and wrote as follows :

“Ingraham, J.

In construing an agreement, effect-must be given to every provision in the agreement, and the object is to discover,.if possible, the intention of the parties.

“By the fifth clause of the agreement, defendant agreed to pay to plaintiff’s assignor $3 for each and every full door or opening to which the improvement may be applied. By the seventh clause, defendant is to make a return on the first days of May and November, and to pay the amount due. It will be seen that the payments are to be made every six months. The return is to state the number of doors and openings manufactured, and then, at the time of making such return, the defendant is to pay, not $3 for each door made, but the ‘ royalties provided to be paid and found due and owing him (plaintiff’s assignor).’ The tenth clause provides that— ‘It is further agreed that no payment of royalties shall be less than $100, whether doors to cover that amount have been manufactured or not.’ Effect can be given to this tenth clause only by holding that it was the intention of the parties that the defendant should pay to plaintiff’s assignor $3, for each door manufactured, but whether doors were manufactured or not, to pay $100 every six months.

“Under the stipulations, therefore, plaintiff is entitled to judgment for $500 and costs, and judgment is ordered accordingly.”

From the judgment entered in conformity with this opinion, defendant appeals.

A. J. Todd, attorney, and of counsel for appellant, argued:

I. No such intention can be inferred as is set forth by the court below, in its opinion ; because, until royalty is earned, there is to be nothing paid, nor any account rendered ; and when a payment of royalty is to be made, not less than $100 is to be paid for such six months then elapsed. The court must therefore find that some royalty has accrued before it can award the plaintiff’s $100 for such six months. Such, and such only, is consistent with the plain reading of said clause, and with the other parts of the agreement calling for an account to be rendered, and the payment of royalty. The said clause plainly says, “no payment of royalties shall be less than $100,” etc. That does not mean that a bonus shall be paid every six months to the plaintiff, that is $100 “whether hatch doors have been manufactured or not but, on the contrary, when any doors are to be accounted for, at least $100 must be paid therefor, every six months, if but two or three hatch doors, for instance, have been manufactured. The language of the clause in dispute is expressly guarded. It says, “Whether doors to cover that amount have been manufactured or not.” This is significant, and expressive of another construction of the whole clause than the one given by the learned judge in the court below. Tho conclusion of the learned judge implies that an account must be rendered every six months, assuming that the defendant corporation is not doing any business at all—that is, not manufacturing. This is plainly in violation of the proper reading of the clause of the agreement, calling for an account to be rendered every six months. Certainly no account can be rendered if no hatch doors have been manufactured. And if no account is to be rendered, no payment of royalty is to be made. And if no payment of royalty is to be made, then under the plain reading of the clause in dispute the $100 is not to be paid. This is clear and conclusive logic, and is fully consistent with the rest of the agreement, while the view of the learned judge below is not.

William H. Clark, attorney, and of counsel for respondent, argued:

I. The defendant, when the contract was made, guaranteed the plaintiff’s assignor that for the license and authority which he had given the defendant to erect doors and openings under his patent, he should have $3 for every door erected, and at least $100 every six months. This was evidently the intention of the parties at the time the contract was made, as appears from the tenth paragraph following the clause agreeing to pay $100 every six months. It is evident that the officers of the defendant company recognized the fact that this payment of $100 every six months, whether the company was manufacturing doors or not, might at some time become burdensome, hence the insertion of the clause that the license might be surrendered, and this liability terminated.

II. An analysis of the construction which the defendant seeks to have put on this contract, will show that if the defendant manufactured but one door during the first month of one of the periods of six months, it would be liable for $100, and then it might go on and manufacture thirty-three additional doors, and it would still only be liable to pay Mr. Hackett $102 for the entire thirty-four, or $100 for the first door, and about six cents each for the remaining thirty-three. Such a construction would not be consistent with common sense, and it cannot be the intention of the parties, for it would be a nullification of the clause, whereby the defendant agreed to pay $3 for each and every door erected. The words “asa royalty,” in paragraph fifth of the agreement, are used to show the object of the payment of $3 on each door, and as the word royalty is commonly used and understood, it means that Mr. Hackett is to be paid $3 on each door erected, as a compensation for the license and authority which he had conferred on the defendant to manufacture those doors, and if this last expression were used instead of the words “asa royalty,” there would be no substantial difference in the meaning of the clause in dispute, and in that event the argument now attempted to be advanced by the defendant, .would be even more clearly without foundation than it is at present.

Per Curiam.

Judgment affirmed, with costs, on the opinion of the court below!


author:
Sedgwick, Ch. J.,
      Per Curiam.

text:
    WILLIAM SULZBACHER, et al., as Receivers, &c., Respondents, v. THE NATIONAL SHOE & LEATHER BANK, Appellant. ALEXANDER V. DAVIDSON, as Sheriff, &c., Respondent, v. THE NATIONAL SHOE & LEATHER BANK, Appellant.

      Interpleader!'—relative rights of sheriff under attachment, and receiver.

    A motion or an order of interpleader, on ground of danger of being compelled to pay twice, will be denied, where, in the opinion of the court, there is no such danger as forms the foundation of a right to interplead. The above doctrine applied to a case where the sheriff, under attachment, and receivers of property of fraudulent assignors were the claimants. Venable ®. N. T. Bowery Eire Ins. Co. (49 Super. Ot. 481), followed, as to right of attaching creditor.
    Before Freedman and Truax, JJ.

      Decided June 1, 1884.
    Appeal from an order made at special term denying a motion made by the defendant in the above action for an interpleader.'
    The firm of Siedenbach, Schwab &Co., and the individual members thereof, made a general assignment for the benefit of their creditors, to William Sulzbacher, who having realized from the assigned assets, $50,000, deposited it with said National Shoe and Leather-Bank, the defendant, to his credit, and payable to his order, as such assignee. Said Sulzbacher prior to March 11, 1884, drew out of said bank all of said money except $16,465.42. On May 3, 1884, the sheriff, claiming to have on April, 3, 4, 5 and 8, 1884, attached said $16,465.42, under attachment issued against the property of said assignors, in suits commenced against them by divers of their creditors, commenced the second above entitled action against the bank, to recover the amount so claimed to have been attached, with interest. On March 14, 1884, other creditors commenced an action against the assignors and assignee, to set aside the assignment as fraudulent and void as against creditors, and prayed for the appointment of a receiver. Such proceedings were had in that action that on November 25, 1884, a judgment was entered setting the assignment aside, and declaring it to be void, and appointing said William Sulzbaeher and John F. Plummer receivers of the property of the assignors, and ordering the assignee to pay and deliver all the money and property assigned to him and the proceeds thereof to the receivers. Thereafter said William Sulzbaeher as such assignee drew his check on the bank for said sum of $16,465.42 payable to the order of the receivers; the receivers indorsed it and presented it with a certified copy of the judgment of November 25, and demanded its- payment, which was refused. Thereupon the first above entitled action was brought to recover said sum of $16,465.42.
    The bank moved that the plaintiffs in the first above entitled action be substituted in its place as defendants in the second above entitled action, and that the plaintiff in the second above entitled action be substituted in its place as defendant in the first above entitled action, and it be discharged from all liability to either of the parties upon its paying into court the said sum of $16,465,42. The motion was denied, and the bank appealed from the order entered on such denial.
   Sedgwick, Ch. J.,

in denying the motion at special term, wrote as follows :—“ On the facts, the defendant is not in that danger of being compelled to pay twice, which is the equitable foundation of a right to have rival claimants intervene. The nature of the controversy is such that ordinary diligence will enable the defendants to be informed of facts which will make it clear to whom that duty lies (Thurber v. Blandí, 50 N. Y. 80).

George O. Lay, attorney, and of counsel for appellant, as bearing on the point of sufficient danger, argued :

I. The bank is ignorant of the rights of the rival claimants (Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 384; Shaw v. Coster, 8 Ib. 339 ; Wilson v. Duncan, 11 Abb. Pr. 3).

II. The court below evidently regarded the question involved in the sheriff’s action as so free from doubt as to make the cause of action frivolous ; but we beg to suggest that the uncertainty of litigation is a factor that cannot be overlooked. What will be the result of the sheriff’s action ? He may amend his complaint on the trial, and follow the money in bank on some other theory than that alleged in his complaint. The court of appeals may, five years hence, take a different view of the sheriff’s right to enforce attachments or to maintain creditors’ actions. Even that high court has been known to reverse its own decisions. The court practically says tb the bank, decide for yourself-the merits of the conflicting claims, and if you are wrong in your judgment bear the loss yourself—a court of equity cannot aid you. We submit with confidence that true principles of equity, applied to this case, will lead to the reversal of the order.

III. A bank may interplead rival claimants to a fund on deposit, especially where there has been an assignment by the depositor, legal or equitable, or by operation of law (German Exchange Bank v. Commissioners, 6 Abb. N. C. 394 ; City Bank v. Skelton, 2 Blatchf. 14; Marvin v. Elwood, 11 Paige, 365 ; Bell v. Hunt, 3 Barb. Ch. 391).

IV. There is a reasonable doubt as to which of the claimants the money is due. The claim of the sheriff is not frivolous on its face. The authorities cited to support the proposition that an interpleader will not be granted where it clearly appears on the face of the papers that the claim of the third party is frivolous and without validity, are mostly cases in which well settled principles of common law were involved. Of this character, see Trigg v. Hiltz (17 Abb. Pr. 436); Pustel v. Flannelly (60 How. Pr. 67). These cases, and similar ones, do not apply where the questions are novel, involving statutory rights and duties of public officers, where the law is in a transition state, which is the case before the court, for the bank is under no common law liability to either party. There is no privity of contract. The receivers seek to enforce a liability of the bank to the assignee, whose right to the money has been taken away by a decree of the court setting aside the assignment. The sheriff seeks to enforce a statutory cause of action which has been the subject of many conflicting decisions (Wait on Fraudulent Conveyances, 122-125).

“Motion denied with §10 costs to each defendant, to abide the event Of the respective actions. ”

Stern & Myers, attorneys, and of counsel for the receivers, respondents, as bearing on the question of sufficiency of danger, argued:

I. The person asking the relief must be in such doubt as to the facts underlying the rival claims, as to be in actual peril of paying twice. This peril must not result from any act or omission of his (3 Pomeroy’s Eq. Juris. 346, et seq.; Willard’s Eq. Juris. 314; Atkinson v. Manks, 1 Cow. 703 ; 2 Story’s Eq. 12, et seq.).

II. There is no doubt as to which claimant is entitled to the fund. The title of the receivers to choses in action relates back to the date of the original assignment for the benefit of creditors (Clark v. Brockway, 1 Abb. Ct. App. 351). The attachments upon which the sheriff’s suit is based, were issued long after the assignment. The receivers’ title is therefore paramount. Interpleader by motion has repeatedly been refused in cases like the one at bar (Venable v. Bowery Ins. Co., 49 Super. Ct. 481; Conner, Sheriff v. Weber, 12 Hun, 580). But even if the law were less certain, the bank cannot ask an interpleader unless the facts underlying the rival claims are doubtful. Questions of law it must decide for itself. Mere ignorance of the facts which give rise to the stakeholder’s duty will not protect him. It must be such ignorance or doubt as cannot be removed by a diligent investigation (Wilson v. Duncan, 11 Abb. Pr. 3 ; Shaw v. Coster, 8 Paige, 347 ; Marvin v. Elwood, 11 Paige Ch. 363). Is the bank in any peril ? We answer, No. The law is settled ; the facts are clear. Indeed, the bank has demurred to the sheriff’s complaint, and declares his claim to be unfounded. “ But,” says the bank, “ our demurrer may be overruled; or, the complaint may be amended, or a higher court may change the existing law, and thus imperil us.” This has been answered above. The bank must determine the existing law for itself, and unless it can show that the facts are doubtful,- it cannot obtain an interpleader.

III. No case cited by the bank is in conflict with the position taken by us. The case of the German Exch. Bank v. Commissioners, &c. (6 Abb. N. C. 391), arose upon rival claims made by certain excise commissioners and their predecessors, who had been removed. The depositor claimed the money, and his successor claimed it. The facts and the j>oints decided do not touch the case at bar. If the receivers and the late assignee (who was the depositor), were the rival claimants here, the case might apply. The case of Wilson v. Duncan (8 Abb. Pr.. 351), which the learned counsel treats as his leading case, was a special term decision, and was reversed by the general term of this court (Wilson v. Duncan, 11 Abb. 3). Marvin v. Ellwood (11 Paige, 365), is not at all in point as to its facts. The question there decided turned on the relation of attorney and client.

W. Bourhe Cochran, attorney, and of counsel for respondent Davidson.

Per Curiam.

The .order appealed from is affirmed with costs, for the reasons assigned by the special term, and on the authority of Venable v. N. Y. Bowery Fire Ins. Co. (49 Super. Ct. 481).


author: Ingraham, J.

text:
    WILLIAM P. ABENDBOTH v. THE MANHATTAN RY. CO. and THE NEW YORK R. R. CO.

      Public highways, established amd used prior to the conquest of New Netherlands—Abutting owners have no interest or easement therein by reason of the mere fact of abutment.—Pearl street, history of—is such a public highway—rights of abutting owners therein.

    The fee of public highways established and opened prior to the conquest of the New Netherlands, on such conquest passed to and vested absolutely in the British crown. By operation of the Dongan charter and the act of the legislature of March 7, 1793, the fee of those of such highways as were within the limits of the city of New York, passed to and vested in the city of New York. The city under the Dongan charter is vested with power to adopt a public road in use within its limits at the time of such conquest, and to maintain it as a public street, thereby dedicating it as a public street. Such dedication, however, does not operate as a transfer ■ of the property in the soil, and an abutting owner does not thereby acquire any easement in the street itself as distinct from the public at large, or any property therein, nor can he acquire any title therein by prescription. So far as public rights or interests are concerned, the legislature has supreme control over them and may regulate the public use, changing one kind into another.
    Upon these principles, held, as to an owner of property on Pearl street (it being found as matter of fact that Pearl street existed as a public street prior to the conquest of the New Netherlands, and it not appearing that said owner had acquired any interest in the street since that time), that he had no property or easement in the street, and therefore was not entitled to an injunction against defendants, restraining them from maintaining, continuing or operating the structures of an elevated railroad in that street (which they were authorized to do by the legislature and the city), on the ground of the taking by them of this property without his consent or compensating him therefor.
    Before Ingraham, J., at Special Term.

      Decided June 4, 1885.

      Action to restrain the defendants, The Manhattan Railway Co. and the New York Railroad Co. from obstructing or incumbering Pearl street, or for maintaining, continuing or operating the structure of the elevated railroad in Pearl street, in the city of New York.
    The facts appear in the opinion.

      E. B. Cowles, for plaintiff.

      E. C. James, and Davies, Cole & Bapallo, for defendants.
   Ingraham, J.

That the structure of the elevated railroad in Pearl street, materially interferes with the light of the plaintiff’s premises, and that the maintenance of the structure and operation of the road is a serious injury to plaintiff’s property, is established by the evidence.

That the defendant, the New York Elevated Railroad Co., was authorized by the legislature and by the city of New York to construct and operate an elevated road through Pearl street, was not disputed on the trial of this case, and plaintiff cannot maintain this action unless it appears that by the construction or maintenance of the railroad, some property of the plaintiff has been taken by the defendants without his consent, or without compensating him therefor.

It appears that long prior to the year 1664, a ferry was established from the present Peck Slip, on Manhattan Island, to a point on Long Island; and that a road was in use from the New York landing, along the East river shore on the present line of Pearl street to Hanover square (See Valentine's History of New York, 31, 72). In the grant made by Cornelius Van Tirnhoven to Stoffel Edwarstsen of a parcel of land soutli of the present Fulton Slip, dated July 8, 1656, the road on the river is mentioned, the property being bounded u on the south side by the road on the river.” See also map called the Duke’s Plan, dated in 1664, and which purports to be a plan of the town as it was in 1661, and by that plan a road is laid out on the river. See also the grant from Governor Nichols, made on April 4, 1661, to Nicholas Davies, which granted liberty to erect and build a convenient wharf at the water side in the Smith Valley, and which contained this provision: “Always provided the erecting the said wharf shall in no way stop up or be prejudicial to the highway, which is to remain a good breadth, and convenient for carts and passengers.” The Smith Valley appears to have extended from the foot of William street (Old Slip) to about Beekman street (See Hoffman’s Treatise of the Estate and Rights of the Corporation of the City of Neto York as Proprietors, vol. 1, 231). By an ordinance of 1694, this street, or road, running from Burgher’s Path to the further end of the Smith Valley was to be called Queen street, and. from that time down, it appears on all of the old maps of the city as Queen street (See map in evidence dated 1738). On the plan of New York dated 1695, and published in a manual of the city of New York for the year 1851, on page 136, Queen street is laid out as running north from the water gate at the foot of the present Wall street to a point above plaintiff’s property. By an act of the colonial assembly of New York, passed on June 19, 1703, commissioners were appointed to lay out a road or highway from New York, through Westchester county to Connecticut, and their survey was made and filed on June 16, 1707. They reported that among other roads, they had established a road “from the gate at the end of Queen street by a small turning northerly until it meets with the other road at fresh water.” This gate at the end of Queen street, mentioned in the report, appears to have been about one hundred and fifty feet easterly from the corner of Beekman and Pearl streets.

It appears, therefore, that Queen street was open and in use as a road to that point (See Hoffman’s Treatise, 249. 254 ; see also diagram No. 13, Hoffman’s Treatise. 214).

I think, therefore, that it is established by the evidence that Pearl street in front of plaintiff’s premises was in use as a public road or street prior to the conquest of the New Netherlands by the English, and that whatever right the Dutch government had in and to such street, passed to the conquerors and vested absolutely in the British crown. In the case of Dunham v. Williams (37 N. Y. 251), the court of appeals held that the title to the road-bed of a highway laid out prior to the conquest by the English was in the government; that the government was the absolute owner of the fee ; that no one had a present or reversionary title in the soil of the public highway on the ground that he was the owner of the lands through which it was laid. See also Hoffman’s Treatise (Vol. 1, 2d éd. p. 305), where it is said, “It is the undoubted rule of that law that highways belong to the sovereign power, as part of the royalties or public rights ; they belong to it absolutely. There is no right in the adjacent owners to the soil of the street, either during the use or upon a discontinuance and (on page 312), where the learned author says, “I think it may be considered as a very clear proposition that the title in the fee of the soil of all streets open prior to 1664, passes from the Dutch to the English sovereign, and under the patent to the Duke of York, passed as a royalty, and from him to the crown and to the state, unless the right went to the corporation under the Dongan charter. ”

The supreme court of Louisiana has held that where public places have been created by the sovereign power, this power may authorize the municipal corporation interested in such places, to alien or change their use or desig- ' nation whenever the public interest require it, and that the rights of the owners of property in the vicinity are subordinate to the paramount right of the legislature (Mayor, &c. v. Hopkins, 13 La. 326 ; Same v. Leverich, 13 Ib. 332).

The absolute fee, therefore, of Pearl street, vested in the crown; and on April 22, 1686, by the Dongan charter, “all and every the streets, lanes, highways and alleys within the said city of New York, or Manhattan Island aforesaid;” were granted to the mayor, aldermen and commonalty of the city of New York, for the public use and service of said mayor, aldermen and commonalty of the city of New York, and the inhabitants of Manhattan Island aforesaid, and the travelers there, “to hold to their several and respective heirs and assigns forever.”

It is not material in determining this controversy whether the fee of the street passed to the city of New York by this charter, for by the act of March 7, 1793, all the estate, right and title and interest of the people in the streets or highways in the city of New York were vested in the city for the use of streets and highways, and by that act whatever right or property in the street that did not pass by the charter vested in the city of New York.

It is, however, clear that the owners of property abutting on this street, at the time of the conquest of the city by the English, as distinct from the other inhabitants of city, had no right or property in Pearl street, and unless it appears that they have acquired some interest in the street since that time, no property of the plaintiff’s has been taken by the defendants.

By the Pongan charter, the mayor, aldermen and commonalty of the city of New York were given power and authority to establish and appoint, order and direct the establishing, making, laying out, ordering, amending and repairing of all streets, lanes, alleys, highways, &c., in and throughout the said city of New York and Manhattan Island aforesaid, and by the Montgomery charter, dated January 15, 1730, this grant was ratified and confirmed, and it was provided that the mayor, aldermen and commonalty of the city of New York and their successors forever, should have full power, license and authority to lay out streets, lanes, alleys and highways, and to alter, amend and repair all such streets, lanes, &c., theretofore made or laid out, in such manner as the common council for the time being, or a major part of them, should think or judge to be necessary and convenient for all the inhabitants and travelers there. Under the authority thus given, the city of New York had power to adopt a public road then in use, and to maintain it as a public street (See opinion of Tracy, J., in Story v. N. Y. Elevated R. R. Co., 90 N. Y. 122). It appears, therefore, that under this power and authority given by the charters, this public road was adopted, and maintained by the city of New York as Queen street, and was thereby dedicated as a public street. Subject, however, to tins dedication to the public, the city remained the absolute owner of the street, and, subject to the control of the legislature, could make any use of the street not inconsistent with the right acquired by the public by the dedication.

In the case of Sir John Ladd v. Shephard (2 Strange, 1004), one of the first cases in which the effect of the dedication of a road or highway to the public was considered, it was held that the dedication of a highway to the public was a right of passage and not a transfer of the property in the soil, and this principle has been almost universally followed and is now the settled law of this state (See Pearsall v. Post, 20 Wend, 111 ; Bloomfield, &c. Co. v. Calkins, 62 N. Y. 386).

The owners of the property abutting on the street had, in common with the other inhabitants of the city, the right to have this street kept open as a public street, but this dedication did not give to an abutting owner any property in the street. By such dedication, an abutting owner, as distinct from the public, acquired no easement in the street itself. The dedication was not to him but to the public. No grant was made to him. There was no covenant of the city, either express or implied to the abutting owner as an individual, that the street should be kept open as a public street, or that he should have or enjoy any peculiar right or easement in the street itself. Whatever right he took under the dedication, he took as one of the public, and not as an individual. The plaintiff, therefore, as an abutting owner, could have no property in the street by reason of its dedication by the city of New York (Brooklyn Park Commrs. v. Armstrong, 45 N. Y. 234).

There is no evidence in this ease to show when a house was first erected on the premises in question. It does appear that a house had been on the premises upwards of forty years. Plaintiff or his grantors could not, however, acquire any right to the street by prescription. It is well settled that no one can acquire a title by prescription in a public street or highway; an individual using it would raise no particular grant in his favor (Burbank v. Pay, 65 N. Y. 51; Wheeler v. Clark, 58 Ib. 261).

Thé case of Story v. New York Elevated R. R. Co. (90 N. Y. 122), does not sustain plaintiff’s right to an easement in Pearl street. In that case the court held that the grant by the city of the land bounded by the street, gave to an abutting owner the easement as appurtenant to the piece of land granted, and the decision of the case depended on the extent of the easement granted. The grant of the city was held to have created the easement. Danforth, J., says, at page léá : “It is not necessary to consider the effect of the circumstances I have now adverted to, upon the rights of the public in the street in question. It is conceded to be a public street. But besides the right of passage, which the grantee as one of the public acquired, he gained certain other rights as purchaser of the lot, and became entitled to all the advantages which attached to it. The official survey, its filing in a public office, the conveyance by deed referring to that survey, and containing a covenant for the construction of the street, and its maintenance, makes as to him and the lot purchased, a dedication of it to that use for which it was constructed. There was thus secured to the plaintiff the right and privilege of having the street forever open as such.” See also opinion of Tracy, J., on page 166 : “ The city of New York, having power to lay out and open streets, and to acquire lands for such -purposes, had power to dedicate its own lands to such uses, and to bind itself by a covenant with its grantees of abutting lands, that a particular street should forever be kept as a public street. What interest, then, if any, did the grantee acquire in the bed of the street by such grant and covenant ?” And on page 118, in stating the conclusions to which the court had arrived, he says : “ First. That the plaintiff, by force of the grant of the city made to his grantors, had the right or privilege in Front street which entitled him to have the same kept open and continued as a public street for the benefit of his abutting property.”

That case therefore does not hold that an easement exists in favor of an abutting owner where there was no grant, either express or implied, to the owner of the adjacent property by the city, or the owner of the fee of the street.

In Mahady v. Bushwick Railroad Co. (91 N. Y. 148), it does not appear how the city acquired the fee of the street in question, and as what was there said was on the authority of the Story case (supra), it must be presumed that the property of the plaintiff in that street was created in the same way as the plaintiff’s property in the street in the Story case.

In no case that has been cited, or that I have been able to discover, has it been held that the mere fact that a piece of property abutted on a street or highway, gave the owner of the property as an individual, as distinct from the public, any property in the street or highway, and every case in this state in which a use of a highway or street authorized by the legislature has been enjoined, is either where the plaintiff owned the fee of the street, as in Williams v. N. Y. Central R. R. Co. (16 N. Y. 97), and Wager v. Troy Union R. R. Co. (25 N. Y. 526), where the abutting owner was the owner of the easement in the street acquired by grant, either express or implied, as the Story case (supra), or the fee of the street had been acquired by the city under the provisions of the act of 1818, which provided that the fee should vest in the city, in trust that the same be appropriated and kept open as and for a public street forever, as in Peyser v. N. Y. Elevated R. R. Co. (12 Abb. N. C. 276).

In the case of Irving Bank v. Manhattan Elevated R. R. Co., the owner of both the fee of the street and the lot, conveyed the lot bounding it on the street, and that was held to give the grantee the same easement in the street that the grant by the city gave to the plaintiff in the Story case.

The grant by the Dongan charter to the corporation of the city of New York, “ Of the streets, highways, lanes and alleys within the city of New York and Manhattan Island aforesaid, for the public use and service of the said mayor, aldermen and commonalty of the said city, and of the inhabitants of Manhattan Island and. the travelers there,” did not give the plaintiff or his grantors, as distinct from the other inhabitants of the said city, any interest or property in the streets included with the grant. Whatever right was reserved by the grant was vested in the British crown, and passed to the people of the state.

It is well settled in this state by a long line of decisions, that so far as public rights or interests in the street or highway are concerned, the legislature has supreme control over them, that where no private property is taken, the legislature may regulate such public use ; may change one kind of public use into another, and as to the interest or property vested in the public, may control or dispose of it in any way (People v. Kerr, 27 N. Y. 188 ; Kellinger v. Forty-second street R. R. Co., 50 Ib. 206 ; Wagner v. Troy Union R. R. Co,, 25 Ib. 526). See also the matter of the New York Elevated Eailroad, general term, supreme court, March, 1885,' and cases there cited.

In the case of the Brooklyn Park Commissioners v. Armstrong (45 N. Y. 234), the court of appeals held that the legislature had power to authorize a municipal corporation to sell property acquired by it under the right of eminent domain, for the purpose of a park. That the fact that the city had made and filed a map on which the property was laid out as a park, and that adjoining property had been bought and sold and paid greater taxes and assessments to the city, and upon the assumption that the property in question should remain a park, did not create an implied contract between the city and the owners of the property. And that in the absence of any direct or particular relation between the city and the owner of the real estate, the legislature could direct that the property should be diverted from that purpose and sold, or otherwise disposed of.

Having carefully considered the questions involved in this case, I am of the opinion that on the evidence as it stands, plaintiff has no interest or property in Pearl street in front of his premises that has been appropriated or used by the defendants, and that the defendants are entitled to judgment.

That the erection and maintenance of the railroad in Pearl street has caused serious injury to plaintiff’s property is established, but entertaining the opinion before expressed, the court can give him no relief without overturning principles that have been long settled in this state.

Judgment is therefore ordered for defendant, with costs. Findings to be settled on two days’ notice.