author: By the Court. Bosworth,

text:
    The Attorney General of the State of New York, Thomas E. Davis, and Courtlandt Palmer, Respondents, v. The Mayor, Aldermen, and Commonalty of the City of New York, Jacob Sharp, and others, Appellants.
    The Common Council of New York passed, by a majority of the votes of each board, a resolution embracing fifteen sections, granting to Jacob Sharp and others the right, on certain terms and conditions, to construct a railroad in Broadway, and run cars upon it for the carrying of passengers, without limit as to time. The Mayor vetoed it. This court enjoined the Mayor, Aldermen, and Commonalty of the City of New York from making the grant by repassing the resolution. It was re-passed by the necessary vote of each Board of the Common Council, notwithstanding the Mayor’s veto and the Injunction, and those to whom the grant was made, accepted it in writing, in the form prescribed by the resolution. The grantees were then made parties defendants. The substance of the different sections of the grant is as follows:
    The First, directed the tracks „to be in or near the middle of Broadway, the outer rails to be not more than twelve feet and six inches apart.
    The Second, that the grantees should place new cars on the road, not over forty- • five feet long, to be drawn by horses, and should run them both ways, as often as the convenience of passengers should require.
    The Third, that the grantees should comply with the directions of the Common Council, in the building of the road and running of the cars.
    The Fourth, names the points at which the road should begin and end.
    The Fifth, prescribed the duties of the grantees in establishing a depot, and in running the cars.
    The Sixth, Seventh, Eighth, and Ninth, also contained provisions as to the mode of constructing, running, and stopping the cars, the attendants to be provided, and some of their duties.
    The Tenth, required the grantees to sweep and clean Broadway every morning, and evening, below Fourteenth street, without regard to the weather, and above Fourteenth street, when the weather would permit, as often as twice a week.
    The Eleventh, prohibited charging over five cents fare.
    The Twelfth, that "in consideration of the good and faithful performance of all the conditions,” &c. prescribed by the grant, the grantees should pay, for ten years from the opening of the railway, the annual license fee per car, allowed by law when the grant took effect, and should have a license accordingly, and after the ten years the grantees should pay such license fee per car, as the City Corporation, with permission of the legislature, should then prescribe, or in default of consenting thereto, should surrender the road, with all its equipments and appurtenances, to the Corporation, at a fair and just valuation.
    The Thirteenth, authorized the grantees, or a majority in interest thereof, to form themselves into a joint stock association, and provided that all the rights and privileges granted should be vested in it, that by the votes of a majority in interest, articles of association might be passed, to regulate the construction and management of the road, the admission of new associates, the transfer of shares or interests, the number, duties, <&e., of officers, the mode of .making contracts, and calling in assessments, and generally the means and mode of establishing the railway and carrying it on, and of controlling and managing the property and affairs of the said association. The fourteenth and fifteenth read thus:
    Fourteenth. The association shall not be deemed dissolved by the death or act of any associate, but his successor in interest shall stand in bis place; and the rights of each associate shall depend on his own fulfilment of the conditions imposed on him by these restrictions, or the articles of association and by-laws of the association; and, in case of his failure to fulfil the same, after twenty days’ notice in writing to him so to do, his rights shall be forfeited to, and devolve upon the remaining associates. And said associates may, at any time, incorporate themselves under the general Railroad Act, whenever two-thirds in interest of the associates shall require it.
    Fifteenth. The associates, whose names are set forth in this resolution, shall, by writing, filed with the Clerk of the Common Council, signify their acceptance thereof, and agree to conform thereto; and all hew associates or assigns, duly admitted according to the provisions of the articles of association and by-laws, shall be deemed parties to such agreement.

      Held, that a grant of the powers, privileges, and immunities, conferred by the resolution in question, is the grant of a franchise, and if the municipal incorporation of this city was incompetent to make the grant, the making of it was a usurpation of power which can lawfully be exercised by the legislature of the state only.
    That neither of the City charters, nor any statute of the state, confers power, in express terms, to make such a grant. That the existence of such a power cannot be implied as being necessary to the exercise of any power expressly granted, or the performance of any duty enjoined by law.
    That no corporation, municipal or otherwise, possesses any powers, except such as have been granted to it.
    That the resolution in question, when duly passed by the Common Council, and accepted by the grantees, in the mode it prescribed, was not a law or ordinance repealable at the pleasure of the corporation, but a contract, within the meaning of that clause of the Constitution of the United States, which prohibits every state legislature from passing any law, impairing the obligation of contracts.
    That after being passed and accepted, so long as its conditions■ should be complied with, there being no power reserved in it to rescind or modify it, the corporation, if legally competent to pass it, would be incompetent to repeal it at its mere will and pleasure, so as to divest any rights of property, acquired by the grantees under it.
    That the legislative power of a corporation is restricted by the constitutional and statute law of the state in which it is located, and that no state can grant to a corporation power to do that, which the Constitution of the United States prohibits it from doing itself.
    That the municipal corporation of this city cannot divest itself of, nor abridge its legislative discretion and duty, to alter and regulate the streets, as it may deem the public good requires. Nor can it prohibit such use of the streets by its inhabitants, as is granted by a law of the state to every citizen as a matter of strict right.
    That the resolution in question is void, on the grounds;
    1. That it grants a franchise, which the Common Council has no authority to grant.
    2. The grant, by the meaning and legal import of its terms, may be perpetual..
    3. The grant, in judgment of law, is a contract between the corporation and the grantees, and in its legal import, restricts the corporation in the future exercise of its legislative powers.
    4. It confers upon the grantees and their associates, exclusive privileges, to a partial use of Broadway, which may be of perpetual duration.
    6. It absolves them from an obligation imposed on them by a statute of the state. (2 R. S. 424, § 198.)
    6. It confers rights, and exempts the associates from consequences in the event of the death of one of their number, repugnant to and in conflict with the settled law of the state.
    7. It authorizes the grantees and their associates, however small may be their number, to become incorporated at any time, under the general railroad act, although the road may have been previously constructed, while the act itself does not allow an incorporation, after a road shall have been built, nor of a less number than twenty-five persons.
    8. The grant and its acceptance constitute a contract, which the Common Council is prohibited from making, by the amended charter of 1849.
    9. The making of a grant by a municipal corporation, conferring such privileges and immunities, without lawful authority, being a usurpation of power, and the illegal exercise of a franchise, may be enjoined by any court having juris diction of the subject matter, and of the necessary parties.
    It was also held, that making the attorney-general of the state, with his assent, a party plaintiff, after the evidence had all been given which was given, and without prejudice to the previous proceedings, was not an error for which the judgment should be reversed, because,
    First. The action was not decided upon any fact which was, or could be varied by evidence verbal or written. The terms of the resolution or grant whose validity was in question were undisputed, and its validity depended upon the . competency of the Common Council to pass it. Such competency was to be determined solely by the meaning of statutory law, irrespective of any extrinsic facts.
    Second, He was a proper party, and no legal right of any defendant was prejudiced by his being then made a party, instead of being made one at an earlier stage of the action.
    Third. His presence as a party, was necessary to a full determination of the controversy, and such a person, the court may, at any time, in furtherance of justice, and on such terms as it deems just, require to be made a party. (Code, § 173,122; Jennings v. Spring, 1 Bailey’s Eq. R. 181.)
    (Before Oaklet, C. J., Bosworth and Slosson, J.J.)
    Jan. 7, 8;
    Feb. 25, 1854.
    This action now comes before the court on appeals taken by the defendants', from the judgment, and also from an order made thereon.
    This action was commenced in December, 1852. The summons and complaint were originally in the names of Thomas E. Davis and Courtlandt Palmer, as plaintiffs, against the Mayor, Aldermen, and Commonalty of the city of Hew York as defendants. The complaint charged that a railroad in Broadway would be a public nuisance ; that a resolution granting the privilege to construct it, had been passed by the two boards without authority and in bad faith, from corrupt motives and in breach of trust, and that they, were about to pass it again, notwithstanding the objections of the Mayor, and his veto of it, and asked for an injunction against the making of the grant, which injunction was granted.
    The complaint, the resolution creating the grant, the making of which was sought to be enjoined, and the injunction issued and served on commencing the action, are set forth m extenso, in 1 Duer’s E. 435 to 468.
    The complaint set forth, among other things, that the plaintiffs are owners of real and personal property in the city of Hew York, liable to taxation, and upon which taxes had been levied and assessed by the corporation, and paid by the plaintiffs to an extent exceeding $250, for many years past. They are citizens and corporators of said city, and owners of real estate situated upon Broadway, and also owners in fee of the land in said street to the centre thereof in front of their property, subject only to the easement, &c. *
    That the fee of Broadway is in the adjoining owners, and the Corporation have no power to establish or authorize the establishment of a railroad therein.
    That if the Corporation have such power, it cannot be exercised without paying, or providing for the payment to the adjoining owners of their damages, &c.
    That whatever power, interest, or property the Corporation has in the same, is held by it in trust for the citizens, corporators and tax payers, and to be exercised for the public good.
    That prior to making the grant, many offers were made by responsible parties, to the Common Council, offering to construct and establish such a railroad, and give, for the privilege of using it, &c., as follows:
    1. One to give $1,000,000, in ten annual instalments, and charge 3 cents fare.
    2. One to give $1,666 66 for each car—5 cents fare.
    3. One to give $1,000 per annum for each car, and charge 3 cents fare.
    4. One to give the corporation one cent for each passenger, and charge 5 cents fare.
    5. One to give an annual bonus of $100,000, and charge 5 cents fare.
    6. One to comply with the covenants and conditions contained in the grant to the defendants Sharp, &c., and charge but 3 cents instead of 5 cents fa/re. as mentioned in the 11 th Sub.
    The complaint then stated what these offers would produce, and in what manner the citizens, tax-payers and travellers would be benefited by the acceptance of either, in preference to making the grant to the defendants Sharp, &c.
    “ That the grant of the privileges contained in said resolution for a trifling sum, with the right to demand five cents fare from travellers, when the trustees might have obtained a million of dollars for the grant, with a charge upon travellers of only three cents fare, was a palpable breach of trust, and a gross fraud upon the plaintiffs and all other tax-payers, inhabitants and travellers in said city.”
    That the Common Council is authorized to hold monthly • sessions, and neither board can adjourn for a longer period than three days without the concurrence of the other, notwithstanding which the Board of Aldermen, at the Hovember session, adjourned for four days (from the 4th to the 8th) without the concurrence of the Assistants: That this put an end to that monthly session, and when the members of the board subsequently met on the 19th, and adopted the resolution and grant, they were not legally assembled.
    That such resolution and grant is invalid.
    Because the grant cannot be made without the concurrence of the Mayor, who refused to concur therein.

      Because such grant cannot be made without authority from the Legislature, which has not been given.
    Because said resolution and grant “ attempts to. bind the Corporation for ever, and thus limit and control the legislative powers of said Common Council.”
    Because said resolution and grant “ attempts to create an odious and unjust monopoly, not within the legislative powers of said Corporation or Common Council.”
    Because, if the Corporation are authorized to make such grant, the contracts, stipulations, and agreements specified therein, are within the province of the executive department known as the “ Street Department.”
    That the street is too narrow to admit the establishment of a railroad therein. • That if the railway is constructed, it will be a public nuisance in the street, specially injurious to the plaintiffs. That in laying it, the street would be rendered almost wholly impassable, and the plaintiffs would be thereby injured and damaged; and that when established it will be an injury and damage to the plaintiffs ; and that by its establishment the street will be appropriated to a new, and unauthorized use, and one exclusive in its nature.
    That making the grant and adopting the resolution in defiance of the injunction of this court, was an illegal and criminal act, and could confer no right on the grantees Sharp, &c.
    That the resolution and grant, and the .acceptance thereof by the grantees Sharp, &c., are of no binding force or effect, and confer no power or authority whatever upon the grantees Sharp, &c., to establish a railroad in Broadway.
    The amended and supplemental complaint on behalf of the plaintiffs and all other citizens and tax-payers and owners on Broadway, prayed for an injunction restraining the defendants Sharp and others, from establishing a railroad in Broadway under the authority of the said resolution and grant.
    The Mayor, Aldermen, and Commonalty answered on the 2d of April, denying generally the charges of the complaint.
    On the 7th of April an order was made allowing to plaintiffs to exhibit an amended and supplemental complaint. This was done on the 3d day of May, 1853, alleging that since the original complaint, and the injunction thereon, the Common Council had passed the resolution granting the privilege of making the railroad to Jacob Sharp and others, and making them parties and defendants, and asking for an injunction against their constructing the railway. The injunction was granted as asked for.
    On the 19th of Hay, the Mayor, Aldermen, and Commonalty put in their answer to the amended and supplemental complaint, insisting upon the legality of the grant. And on the 16th day of May, Jacob Sharp and the other defendants put in their answer to the original, and to the amended and supplemental complaint, denying generally the material charges of the complaint, and insisting upon the validity of the grant.
    The action was brought to trial on the 13th day of June, 1853, at special term, before Mr. Justice Duer, without a jury. The trial lasted till the 2d of July.
    On the 25th of July, Judge Duer directed a re-argument in the following terms:
    “ Instead of giving a final judgment in this cause, I deem it my duty to direct a further argument upon the following questions, which were scarcely, if at all, discussed upon the hearing before me:
    “ Have the plaintiffs a right to maintain the action, if the Court shall be of opinion that the evidence is not sufficient to prove that the contemplated railroad will be a public nuisance from which the plaintiffs, as owners of property on Broadway or otherwise, will sustain a special injury?
    “ If such shall be the opinion of the Court, must the complaint necessarily .be dismissed, or may it be retained for a certain time in order that the Attorney-General may be made a prosecuting party ?”
    The re-argument so ordered was had on the tenth day of October, 1853, by the plaintiffs’ counsel, the defendants’ attorney appearing, but declining to re-argue.
    On the 29th of October, 1853, Judge Duer stated that aftér deliberation, he had concluded, upon the evidence then given, that the .establishment of the proposed railroad in Broadway would not be a public nuisance, or otherwise specially injurious to the plaintiffs, and that in his judgment a complete determination of the controversy on the remaining issues could not be had without the presence of the Attorney-General of the state of New York, as a prosecuting party to this action.
    He thereupon gave the plaintiffs their election, to he made within ten days, to have an issue for a jury upon the question “ whether the contemplated railroad would be a public nuisance specially injurious to the plaintiffs % ” or to have' an order to bring in said Attorney-General, as a party plaintiff in this action.
    The plaintiffs elected to bring in said Attorney-General as such party, and on the 9th of November, 1853, he filed in court his written consent to become and to be made such party.
    Thereupon the judge, on the 9th of November, 1853, made an order “ that the complaint herein be and the same is now amended by inserting therein the name of said Attorney-General as a party plaintiff to this action. Such amendment to be without costs, and without prejudice to the proceedings already had, and this cause is set down for final judgment on the 21st of November instant, at 11 o’clock A. M., at special term.”
    The defendant objected to the order making the Attorney-General a party to the action.
    On the 21st of November, 1852, Mr. Justice Duer pronounced the following judgment.
    This cause having been heretofore heard, upon the pleadings and proofs, and due deliberation thereupon had, and it appearing to the court that the only material issues of fact raised by the pleadings, are the following:
    1. Whether the railroad in Broadway, which Jacob Sharp and his associates, defendants in this suit, claim that they have a lawful authority to construct, and avow their intention to construct, if constructed and regulated in the manner proposed, will be a public nuisanceand 2. Whether the grant made by the Common Council of the city of New York, to Jacob Sharp and his associates, of the privilege of laying down and constructing the railroad in question, was made in bad faith, and from corrupt motives ?
    And the evidence applicable to the said issues having been fully’ considered, and tire same appearing to the court insufficient to establish the fact, either that the said railroad will, if constructed, be a public nuisance, or that the grant of the privilege of laying down and constructing the same, was made in bad faith or from corrupt motives, and, therefore, involved no breach of trust on the part of the corporation, or Common Council, by which it was adopted.
    It is ordered and adjudged, that the aforesaid issues of fact be, and the same are hereby determined in favor of the defendants.
    And the question of law upon which the right of the plaintiffs, to the relief demanded by their complaint, is considered to depend, being also weighed and considered, and it appearing to the court that the resolution finally adopted by the Common Council, aforesaid, on the thirtieth of December, 1852, granting to Jacob Sharp and his associates, the privilege of laying down and constructing the railroad aforesaid, although an ordinance in its form is not a law, but a grant of franchise, which from the time of its acceptance by the grantees, became a contract upon the terms and conditions set forth in the said resolution; and it also appearing to the court that the Common Council, aforesaid, had no power or authority to make the said grant and contract, and that the same, for reasons manifest on its face, is wholly illegal and void.
    It is, therefore, ordered and adjudged, that the said defend ants, Jacob Sharp, Freeman Campbell, William B. Reynolds, James Gaunt, I. Newton Squire, Wm. A. Head, David Woeds, John L. O’Sullivan, Wm. H. Pullis, Jonathan Roe, John W. Hawkes, James W. Faulkner, Henry Du Bois, John J. Hollister, Preston Sheldon, John Anderson, John R. Flanagan, Sargent Y. Bagley, Peter B. Sweeny, Charles B. White, James W. Foshay, Robert E. Ring, Thomas Ladd; Conklin Sharp, Samuel L. Titus, Alfred Martin, D. Randolph Martin, William Menzies, Charles H. Glover and Gershon Cohen, and each of them, and all persons claiming under them or acting under the authority and direction of them or either of them, are hereby perpetually enjoined and restrained from entering into or upon said street, called Broadway, for the purpose of laying or establishing a railroad therein, under the grant or resolution of said Common Council, above referred to.
    And it is further ordered, adjudged, and decreed by this court, that the said defendants, the Mayor, Aldermen and Commonalty, of the city of Hew York, be, and they hereby are, perpetually enjoined and restrained from granting to any person or persons whomsoever, the exclusive right, liberty and privilege of laying down or constructing a railroad in Broadway.
    The defendants excepted to so much of the said decision of the Court, made at the Special Term in this cause, and entered in the judgment, as decided; and subsequently, and in due time, appealed to the General Term, from so much of the said 'judgment, as decided; and adjudged “that the resolution finally adopted by the Common Council of the city of Hew York, and therein mentioned, was not a law but a franchise,” which, from the time of its acceptance, became a contract as therein mentioned; and from so much as decides and adjudges that the Common Council, aforesaid, had no power or authority to pass the said resolution or make the said grant; and from so much as decides and adjudges that the said resolution or grant, for reasons manifest on its face, is illegal and void ; and from so much as decides and adjudges that the defendants, or any of them, or any other person or persons, be enjoined and restrained from entering into or upon Broadway, for the. purpose of laying or establishing a railroad thereon, under the resolution or grant aforesaid; and from so much as decides and adjudges that the Mayor, Aldermen, and Commonalty, of the city of Hew York, be enjoined and restrained from granting, to any person or persons whomsoever, the exclusive right, liberty, or privilege of laying down or constructing a railroad in Broadway.
    The defendants also appealed to the General Term of this Court, from so much of the order made herein, at the Special Term, on the 9th'day of Hovember, 1853, as directs that the complaint be amended by inserting therein the name of the Attorney General as a party plaintiff to this action, as well as from that part which directs such amendment to be without prejudice to the proceedings already heard.
    Me. Justice Duer accompanied his judgment with "the following opinion.
    This cause has, been fully heard upon the pleadings and proofs, and as the complaint has been amended by the introduction of the Attorney General as a prosecuting party, I am enabled, and shall now proceed, to deliver my opinion upon the several questions of fact and law that are necessary to be determined. I do not construe section 267 of the Code, as making it the duty of a judge, who has tried a cause without a jury, to set forth in his decision, as in a special verdict, all the facts of the case, including those not controverted by the pleadings, and those which, although controverted, he may deem immaterial. So far as questions of fact are concerned, the judge, in my opinion, fulfils his duty by determining the issues which, in his judgment, are material. The only issues raised by the pleadings in this case which I deem to be material, are „ the following:
    1st. Whether the railroad in Broadway, which Jacob Sharp and his associates, defendants in this suit, claim that they have a lawful authority to construct, and avow their intention to construct, if constructed and regulated in the manner proposed, will be a public nuisance ? and 2nd. Whether the grant made by the Common Council to Jacob Sharp and his associates of the privilege of laying' down and constructing the railroad in question, was made in bad faith and from corrupt motives, and must therefore be condemned as a fraudulent breach of trust ?
    The affirmative of each of these issues is maintained by the plaintiffs, and from the nature of the facts relied on, was necessary to be established by the clearest evidence. The evidence that has been given, I am bound to say, has failed to produce in my own mind that deliberate conviction that in a case like the present could alone justify me in decreeing a perpetual injunction. Whether the contemplated railroad will or will not be a public nuisance, is a problem which I am persuaded that experience alone can solve; and, assuredly, no facts have been proved that could warrant me in saying that those members of the Common Council who voted for the grant, which is impeached as fraudulent, must necessarily have acted in bad faith, and from corrupt motives. Two of those members have been examined as witnesses, and have stated under oath, the reasons by which they were influenced in voting for the grant in question. I have no right to reject their testimony, nor to affirm that those who voted with them were not governed by the same considerations. If they were, the grant, whatever may be my private opinion of its expediency, was made in the honest exercise of a discretion which no court of justice' can rightfully interfere with or control. The conclusion is that had the title of the plaintiffs to the relief which they seek, depended solely upon their maintenance of the issues of fact raised by the pleadings, I must have dismissed their complaint. I proceed next to the questions of law, upon the determination of which my judgment will be founded. The resolution of the Common Council of the 30th December is not an act of legislation, not a law in the proper sense of the term ; it is the grant of a franchise, which, when accepted by the grantees, became a contract upon the terms and conditions1 set forth in the ordinance. The contract, thus made, from its nature and terms, is entire—so that, if any of its provisions, especially those which enter into the consideration of the grant, are found to be illegal, it is void, as a whole. The contract thus considered is, in my judgment, null and void upon its face, for the reasons that follow:
    First. The resolution of the Common Council not merely grants to Jacob Sharp and his associates the privilege of laying down and constructing the railroad which it describes, but in consideration of their performance of certain stipulations and requirements, gives them a perpetual license for running cars for the accommodation of passengers upon the railroad to be constructed; the contract, therefore, on the part of the Corporation is not merely that the railroad may be built, but that, when built, if the grantees so elect, it shall be permanent. These provisions are, in my judgment, directly inconsistent with the power which the Charter gives to the Common Council of altering and regulating the streets of the city at its discretion ; since, if they are valid, it is manifest that no regulation of Broadway can hereafter be made, by which the rights and privileges of the grantees, as defined by the contract, can be divested or impaired. If they are valid, and the railroad shall be built, the Common Council will have no power to order its removal, or to prohibit the grantees from running cars thereon for the transportation of passengers. Broadway, so far as it embraces the railroad, will be the property of the grantees, and will no longer be held by the Corporation in trust for the city. Hence, if the grant to Jacob Sharp and his associates is valid, the legislative powers of the Common Council, in relation to the principal street and most important thoroughfare of the city, have ceased to exist. The grant, therefore, cannot be valid, unless the Common Council may, by contract, relinquish for ever the discretionary powers, which the Charter gives, and requires them to exercise. Mo proposition of law, however, is more evident and certain than that a Municipal Corporation cannot, by contract, or by any other act, abrogate or abridge its own legislative or* discretionary powers. Such was the language of Chief Justice Marshall, in Gorglien v. The Corporation of Georgetown (6 Wheaton, 593), and such the decision, as I understand the opinions of the judges of the Supreme Court of this state, in the case of the Presbyterian Church v. the Mayor (6 Cowen, 538), and of Britton v. the same, in which the counsel have furnished me with the .opinion of the Court. It was not denied, upon the argument, by the counsel for the defendants, that the necessary effect of the grant to Jacob Sharp, and his associates, and of the contract which it implies, if construed according to its terms, is to limit and abridge the legislative powers of the Common Council; and the only reply given to the objection was that the grant, although absolute on its face, may be repealed, and the contract, although not revocable by its terms, be rescinded, whenever the present or any future Common Council may deem it expedient thus to exercise its inherent and inalienable powers. The resolution of the Common Council^ it was insisted, ought now to be construed, as I should have been bound to construe it, had it contained an express provision rendering it subject to a future and unconditional repeal. The reply thus given I am forced to reject, upon full deliberation, as insufficient and unsatisfactory. I have yet to learn that there is or can be any exception from the rule, that a contract which a corporation has no power to make, and, emphatically, where it violates the provisions of its charter, is void in its origin; and I am yet to learn that a contract, valid when made, can be rescinded by either of the parties, unless the power of rescinding it is expressly reserved, or was given by some constitutional or statutory provision, which was in force when the contract was made. I refer on this subject with full approbation and assent to the observations of Hr. Justice Bosworth in the last of his advisory opinions in the proceedings against the aldermen and assistant aldermen for an alleged contempt. I agree with him that it has certainly never been pretended or supposed that a legislative grant, valid when made, and not falling within either of the exceptions I have stated, can ever be repealed ; and I cannot believe that the Corporation of this city possesses an authority which the legislature of the state would never be permitted to exercise ; I cannot believe that the provision in the Constitution of the United States which forbids the passage of any law impairing the obligation of a contract is binding upon the legislature of the state, but unmeaning and ineffectual as imposing any restraint upon the action of the Common Council. It is, however, unmeaning and ineffectual, if the Common Council may, by a subsequent ordinance, revoke a grant or rescind a contract, absolute and irrevocable on its face, and which, it is asserted, it had the power to make, and was valid when made. If, by such an ordinance, the obligation of a contract is not impaired, the words of the Constitution have no meaning. It follows, from these observations, that where a contract is made by a corporation, which binds and restricts the legislative powers of its successors, it is either from the defect of power*, void in its origin, or, if valid, can never be rescinded; and the conclusion which I adopt is not that the contract is valid and revocable, but wholly void. The next Common Council may repeal the grant to Jacob Sharp and his associates; but the repeal can never operate to annul a valid and subsisting contract, and will, in reality, amount to no more than a declaration of its original and absolute nullity, and this declaration, unless sustained by the law, will have no effect on the rights of parties. It will otherwise be nugatory.
    Second: The privileges granted to Jacob Sharp and his associates are plainly exclusive in their nature. The manifest intention of the grant is, that they and they alone shall be licensed to run cars upon the railroad which they undertake to construct, and that they shall alone be authorized to derive profit from the transportation of passengers. It is not pretended that the power of granting such an exclusive privilege is expressly given to the Corporation, by its charter, nor has it ever been supposed that its possession was incident or necessary fo the exercise of the powers that are given. On the contrary, it is settled and undoubted law that a by-law of a municipal corporation creating a monopoly is illegal and void (Davenant v. Hurdis, Moore R., 576; Walcocks on Municipal Corporations, sec. 390)°, and every grant of an exclusive privilege, from the exercise of which a profit is to be derived, is a monopoly. This objection was endeavored to be met by giving a construction to the resolutions of the Common Council, to which I find it impossible to assent, and which, I am satisfied, never occurred to the minds of the parties. The Common Council, it was said, have reserved to themselves the power of making such regulations in relation to the railroad, when constructed, as they may deem expedient; and in the exercise of this power may throw open the use of the road to all persons whatsoever; to all who may choose to run cars thereon. Such an exercise hy the Common Council of their reserved power, as I interpret the contract of the parties, would be a perversion of its language, and a violation of its spirit. The power which the Common Council reserves is merely that of regulating the use of the road by the grantees themselves, that is, of making regulations which the grantees, in their own exclusive use of the road, would be bound to observe. Mor can I at all doubt that it was the clear understanding of the parties that the resolution would secure to the grantees exclusively the beneficial use of the road, in consideration of the labor and capital expended in its actual construction, and upon no other terms, I am satisfied, would the grant have been solicited or accepted. Their agreement, therefore, in my opinion, would not be violated more certainly by the total exclusion of the grantees from the occupation of the road, when made, than by the admission of others to share against their wish, in its anticipated profits. The objection, therefore, that this grant of an exclusive privilege is valid, as creating a monopoly, has not been answered, and, as it seems to me, is unanswerable.

      Third: The thirteenth article of the Resolution Ordinance, containing the grant, provides, inter cilia, that the grantees shall form themselves into a joint stock association, which shall have power, by the votes of a majority in interest of the associates, to establish articles of association and by-laws, and the fourteenth, that such association shall not be dissolved by the death or act of any associate, but his successor in interest shall stand in his place. These provisions are a very plain attempt to create a joint-stock association, which, without being in all respects a corporate body, shall yet be exempt from the general rules of law by which ordinary partnerships are governed. Such an association, the Legislature of the State may possibly create, but assuredly, not the Common Council of the city, nor can I do otherwise than regard the attempt as a palpable assumption of power.
    Fourth : The twenty-third section of the Amended Charter of 1849, enacts that all contracts to be made by the authority of the Common Council for work to be done, or supplies to be furnished, shall be made by the appropriate heads of departments, under such regulations as shall be established by ordinances of the Common Council. Let it be admitted that the obligation of the grantees and associates to build the intended railroad in Broadway is not a contract for work to be done for the immediate benefit of the corporation, and is, therefore, not within the legal scope of the section that has been recited; there are other provisions in the grant of the Common Council which, as it seems to me, by no reasonable interpretation can be relieved from that objection. The tenth article of the resolution making the grant imposed it as a duty upon the associates to sweep and clean the whole of Broadway south of Fourteenth street every morning, and to remove the sweepings before a certain hour on every day excepting Sunday, and this duty the associates, by the acceptance of the grant, contracted to perform. Here, then, is a contract for work to be done—the daily cleaning of a street for the Corporation itself—a contract not made by the head of the proper department, nor under any prior regulations established by the Common Council; and why this contract, as transcending the power of the Common Council and violating the provisions of .the amended charter, is not to be adjudged void, I have been and still am unable to understand. If this contract is void, as I am forced to declare, there is a necessary failure of an essential part of the consideration upon which the grant of the associates was founded, and with this failure the entire grant, as deprived of a necessary support, must fall.
    Lastly: By the 272d section of the consolidating Act of 1813, and by a subsequent act of February 21,1824, (Laws of 1824, class 50,) the Mayor of the City is authorized, under the direction of the Common Council, to license for a certain annual sum, the owners of hackney coaches and carriages for hire; and these provision's have uniformly been construed, and in my opinion rightly construed, as limiting the power of the Common Council to fixing the number of licenses to be granted, and the sum to be charged for each, leaving the Mayor an absolute discretion in the choice of the person to whom they are to be given. A car, in which persons are to be transported for hire on a railroad, is just as certainly a carriage for hire as a hackney coacli or an omnibus; and so the Supreme Court of this district, in the important case of Drake v. The Hudson River Railroad,, has actually decided.
    The 12th Article of the Resolution of the Common Council, making the grant to Jacob Sharp and his associates, declares “ that they shall pay, for ten years from the date of opening the railway, the annual license fee for each car now allowed by law, and shall have a license accordingly,” and these provisions not only abridge the legislative powers of the Common Council in fixing the annual amount of the license fee, but take from the Mayor all discretion in the choice of persons, and make it his duty to .license those whom the Common Council has selected. Unless the authority of the Common Council is paramount to that of the Legislature, so as to enable them to divest the Mayor of an authority that the Legislature has given, these provisions must be void. In my judgment they are so,. and consequently, the entire contract of which they are an essential part. Several other objections to the validity of the grant and contract under consideration, were raided and argued before me, which I forbear to notice, not as rejecting them, but in the conviction that those which have been stated are an ample foundation for. the judgment that I pronounce, that the injunction that has been granted must be made perpetual. The giving of costs in cases like the present rests in the discretion of the Court, and as the defendants have succeeded on the issue of facts, and have only failed upon questions of law, in respect to which great differences of opinion have existed, no costs are given to either as against the other. I state as a further reason for this decision, that the original plaintiffs have been permitted to amend their complaint without costs by making the Attorney General a party, aAd that, but for this amendment, their complaint would hávqíbeen dismissed.
    The appeals were argued together at the January Term of the Court, 1853.
    D. D. Field, for the appellants, argued the following points.
    I. The amendment of the pleadings, by inserting the name of the Attorney General, as a party plaintiff, was erroneous. 1. There is no precedent for such an amendment. All the cases cited in the opinion at the Special Term, are of amendments by bringing in a party defendant. 2. The Code contains no warrant for it. Section 122 relates only to the bringing in of a party defendant, the same referred to in section 118. Section 173 has reference only to the removal of a technical difficulty in a proceeding already valid, not to the making of a new case, or the substitution of one person’s action for another. 3. If the Court had the power to allow the amendment here made, it would be an abuse of power to allow it. 1. It introduces into the action an entirely new controversy. 2. If it be allowable, then a suit may be commenced and carried on by plaintiffs having no right to sue, and a party who has right may be made plaintiff at the conclusion of the proceedings, and a judgment rendered in his favor. For example, an action on a promissory note, in the name of a stranger who never had any interest in it, may be made good, by inserting the name of the holder,, after trial and verdict. With such a rule a defendant would never be safe. It would be impossible for him to know whose claim he was resisting, or what defence was necessary. 3. The defendants may have had defences against the action of the Attorney General, which they had not or did not choose to interpose against the action of the original plaintiffs. For example, one of the defendants is not a resident of the city, nor was he served here with the process. He chose to appear to the claim of the first plaintiffs, but he does not choose to appear to the claim of the Attorney General, preferring that that officer should sue in the Supreme Court. 4. The Attorney General could not have brought this action in this court. His right to sue at all is derived from the Revised Statutes, which authorised him to sue in the Court of Chancery and the Supreme Court, as the successor of that court. 5. This court has not jurisdiction of an action against the Corporation of New York, upon the cause of action stated in the complaint. 6. The Attorney General has no right to sue in his own name. Actions for the public interest should be brought in the name of the people. 7. The Attorney General and the plaintiffs cannot join in an action like this; therefore, if the Attorney General could be brought in, the complaint should have been dismissed as to the original plaintiffs.
    H. The resolution of the Common Council, mentioned in the complaint, was a valid act.
    John Van Buren and A. Hilton, Esqs., for the respondents, made the following points.
    I. The resolution in question is not a law, but a contract; and the Common Council, without the Mayor, has no authority by law to make contracts. (1 Kid, 36, 312, 327.) 1. The Common Council itself calls it a grant, which is one kind of contract; and the grantees say the same thing. 2. But whatever they may now find it expedient to say, it was not a command, but a proposal for a bargain ; and when accepted, it did not make a law, but a ^contract. 3. Contracts can only be made by the whole corporation, or the proper executive department ; and not by the two boards with the Mayor.
    II. Whether the resolution be called a contract or a law, it professes to grant to Sharp and others, property or privileges belonging to the city; and such a grant cannot be made by the two boards without the concurrence of the Mayor as an integral part of the Corporation. 1. All rights of property and all privileges belonging to the .city, are vested in the whole Corporation ; and can, of course, only be alienated by the act of the whole. As the two boards constitute but a part of the Corporation, they cannot make the grant. 2. The Common Council has no powers except such as have been specially delegated to it; and the power to dispose of the property or privileges of the city, has not been delegated to that body. 3. The attempt of the two boards to make the alienation, without the concurrence of the Mayor, was a plain usurpation of authority, and could confer no rights upon the grantees.
    IH. If the resolution is to be regarded as a by-law, instead of a contract, it is still void for several reasons. 1. The power to establish or authorize a- railroad in the street has not been delegated to the Common Council. 2. The Common Council has attempted, either to usurp the authority of the Mayor, to license carriages, or to compel him to give licenses against his will. 3. It has attempted to create a corporate franchise. 4. It has attempted to create a joint-stock association. 5. It has attempted to create an odious monopoly of perpetual duration. 6. It has attempted to limit and abridge the- legislative power of the Common Council, in relation to the principal street and most important thoroughfare of the city. 7. It has attempted to confer on Sharp and others an exclusive privilege in one of the public streets. 8. It has attempted to make a contract to sweep the street, a duty solely within the province of the Executive Department known as the “ Street Department.” (Ordnance Organizing Department, sec. 5, 49, 286, 287; sub. 2, 290, 311.) 9. The by-law is unreasonable, because the privilege could have been disposed of upon terms more advantageous to the city and all its citizens, tax-payers, and travellers. (Com. Dig., By-Law; Wilcocks on Mun. Corp., § 334 and 384; Davenant v. Hurdis, Moore R. 576.)
    IV. The Corporation has no power to establish or authorise a railroad in Broadway. 1. The right of eminent domain is in the state; and the power to exercise the right for the purpose of establishing a railroad in Broadway has not been delegated to the Corporation of the city of Hew Tork, nor to any one else. 2. Having nothing but an easement or right of way, the Corporation has no right to dig in the soil for the purpose of laying rails and constructing a railroad in the street, nor can it grant any such right to others. 3. As the law presumes the fee of the land in the site of the street to be in the land-owners on each side, usque ad filum vim, those who allege the fee is elsewhere, must prove the fact. The Corporation must produce its title, if it has any. (19 Wend. 659, 675, John and Cherry street; 12 Wend. 98, Gidney v. Earl; 2 John. 357, Cortelyou v. Van Brundt; 15 John. 447, Jackson v. Hathaway ; 1 Burr. 133, 145, Chester v. Alker; 1 Day, 103; 8 Wend. 85, 107, Livingston v. Mayor of N. Y.; 11 Barb. 414, 452, Adams v. Saratoga and Washington R. R.; 2 Strange, 1004, Lade v. Shepherd; 6 Peters, 498, Barclay v. Howell; 11 Wend. 487, 502, Wyman v. Mayor of N. Y. ; 6 Mass. 453, Perley v. Chandler; 15 John. 483, Whitbeck v. Cook; 3 Hill, 567, Trustees Presb. Church v. Auburn and Rochester R. R.; 1 Sandf. S. C. 323, Hammon v. McLachlan; id. 344, Herring v. Fisher ; 3 Kent, 433; 4 Smith Lead. Cas. 90, Amer. Note; 6 Paige, 562.) 4. The land in the site of the street cannot be taken tor the purpose of establishing a railroad without making just compensation to the owners of the soil. (Const. Art. 1, § 6; 3 Hill, 567, Trustees Presb. Society v. Auburn and Rochester R. R.; 25 Wend. 462, Fletcher v. Auburn and Syracuse R. R.)

    V. For these reasons the judgment should be affirmed with costs. But upon looking into the case, many other questions not passed upon are presented upon the pleadings, each of which will be found sufficient to sustain the judgment.
    VI. The adjournment of the Board of Aldermen from the fourth to the eighth of Hovember, being more than three days, put an end to that monthly session of the Board; and when the Board subsequently met, in pursuance of the adjournment, it was not a legal assembly, and could do no valid act. (Charter of 1849, §§ 4, 6 ; 7 Cow. 147, ex parte Dodge; 8 Cow. 27, Story v. Elliott ; 13 Wend. 425, Boyntin v. Page ; 12 Wend. 57, Sayles v. Smith ; 1 Sandford, S. C. 666, Broome v. Wellington ; 1 W. Black, 496, 499, Swan v. Broome; 3 Burr, 1595, S. L.; act July 11, 1851.)

      • VII. Making the grant in defiance of the injunction was an illegal and criminal act, which could confer no right on the grantees. (2 R. S. 534, § 1, 26; do. 278, § 10, 15; 7 Hill, 301, 302, Spaulding v. the People; Davis and Palmer v. the Mayor of New York. Superior Court, February 5,1852.) The grantees had notice of the injunction. This was admitted on the trial.
    VIH. If the Corporation had power to grant the privilege of establishing a railroad, it should have adopted the proper regulations concerning the mode of constructing and using the work, and then have left the executive duty of obtaining the best terms and entering into the necessary contract, to the head of the proper department. (Christopher v. Mayor of N. Y., Sup. Ct., Jan., 1852; 13 Barb. S. C. R. 567.)
    IX. All citizens and travellers have a right to the .free and common use of the carriage way of the street, and every part of it, with their carts and carriages; and the Corporation has no power to grant to others any particular or exclusive use of. the street, or any part of it; or to allow its grantees to use the street in any way which is not alike common to all.
    X. Whatever interest in or power oyer the street rightfully belongs to the Corporation, it holds the same as a trust, to be exercised for the public good; and the grant of these privileges for a trifling sum, with the right to demand five cents fare from travellers, when the trustees might have obtainéd a million of dollars for the grant, with a charge upon travellers of only three cents, was a palpable breach of trust, and a gross fraud upon the plaintiffs, Davis and Palmer, and all other tax-payers, inhabitants, and travellers in the city, who are here represented by the Attorney General. (Christopher v. Mayor of N. Y., decided by the Supreme Court, Jan., 1852; Davis & Palmer v. Mayor of N. Y., decided by Superior Court, Feb., 1853; Cooper’s Eq. Cases, 77, Agar v. Regent's Canal Co.)

    XI. If we are right in all or any of the foregoing positions, it is clear that the judgment should be affirmed. (2 Myl. & Cr. 613, Atty. Gen. v. Aspinwall; 4 Myl. & Cr. 30, Atty. Gen. v. Corp. Poole; 1 Bligh, N. R. 322, Atty. Gen. v. Dublin; 1 Railway Ca. 154-5, River Dun. N. v. Midland R. Co.; 4 Myl. & C. 255, Frewin v. Lewis ; 6 John Ch. 439, Corning v.
      Lowerre ; 2 John Ch. 162, Gardner v. Trustees of Newburgh; 4 Id. 53, Varick v. Mayor of N. Y.; 6 Id. 497, Livingston v. Livingston, 6 Paige, 262; Oakley v. Trustees of Williamsburgh ; 5 Id. 493, Pettit v. Shepherd; 1 Simons’s Ch. Cas. 8, Bromley v. Smith; 2 Barb. S. C. 587, Lawrence v. Mayor of N. Y.; Eden on Injunction—Waterman—259, 267, and notes; 3 Barb. S. C. 254, Brower v. Mayor of N. Y.; 2 John Ch. 202, 204, Roberts v. Anderson.)
   By the Court. Bosworth,

The appeal from the judgment is stated, in the notice of appeal, to be from so much of it as decides—•

First, that the resolution finally adopted by the Common Council of the city of New York was not a law, but the grant of a franchise, which from the time of its acceptance became a contract.

Second, from so much as decides that the Common Council had no power or authority to make such grant.

Third, from so much as decides that the grant, for reasons manifest on its face, is illegal and void.

Fourth, from so much as decides that the grantees named in the resolution be enjoined from constructing the railway authorized by it, and

Fifth, from so 'much as decides that the Mayor, Aldermen, and Commonalty of the city of New York be enjoined from granting to any person the exclusive privilege of constructing a railroad in Broadway.

There is also a separate appeal from so much of the order of the 9th of November, 1853, as directs the complaint to be amended by inserting therein the name of the Attorney General, as a party plaintiff, and also from so much of that order as directs the amendment to be without prejudice to the proceedings previously had.

Both appeals were heard at the same time. The appeal from the order involves questions of practice. The appeal from the judgment involves the questions, what is the nature of the resolution complained of; was the Common Council legally competent to pass it; was it illegal and void, or legal and valid ?

The resolution confers upon certain persons named in it the right to construct a railway, with a double track, through Broadway, and in or near the middle of the street, from the South Ferry to Fifty-ninth street, and to run passenger cars upon it, for their exclusive personal profit and emolument^ It contains no provision authorizing the Common Council to rescind or repeal it, and so far as its language expresses the period of its duration, it may be perpetual. So long as the “ conditions and stipulations,” upon which “ the said grant of permission "and authority” is made, are kept and performed by the grantees, no power is reserved to repeal it.

The twelfth article stipulates, that for ten years from the date of opening the railway, the associates shall have a license for each car that may be run, for $10 per annum.

The right is conferred to construct a railroad and run as many cars upon it both ways, and as frequently, as the public convenience may require, on paying a fee of $10 annually per car, and the privilege is granted of charging each passenger five cents. Ño other persons can carry passengers for hire during this term of time, through Broadway, by this mode of conveyance.

The thirteenth, fourteenth, and fifteenth articles, by their terms, confer authority upon a majority, in interest, of the associates to “ form themselves into a joint stock association,” and vest in the association all the rights and privileges granted, and grant the power of determining the mode of transferring the interest of any associate to new associates, and provide that it shall not be dissolved by the “ death or act ” of any associate, and also that any new associates who may be admitted according to the provisions of the grant and such bylaws as the associates may ordain, shall be deemed parties to the agreement by which the grant has been assented to and accepted. In short, so far as its terms speak, it confers all the rights and privileges of an act of incorporation by a statute of the Legislature of the state, except that of sueing and being sued by the name of the association, and an exemption of the associates from personal liability for the debts of the association.

The fifteenth article has provided for the difficulties that might result from these differences between the rights, liabilities, and exemptions of a §ws¿-corporation created by the Common Council, and an actual incorporation under a law of the state, by enacting that said associates may at any time incorporate themselves under the general railroad act whenever two-thirds, in interest, of the associates shall require it.”

If this provision confers the authority which its terms purport to grant, then the associates may be incorporated as well after the road is constructed as before it is commenced. The general railroad act does not authorize the creation of an incorporation to maintain and operate an unincorporated railroad not constructed at the time that act took effect. (Laws of 1850, P- 211, § 1.)

If the authority conferred is valid, two-thirds in interest may effect an incorporation after the road has been constructed, no matter how small the number of the persons holding that interest, and notwithstanding the others dissent. The whole number of associates on whom this authority is conferred is thirty. Two-thirds of this" number is twenty, and two thirds in interest may consist of a smaller number of associates. The Act makes it indispensable that not less than twenty-five persons shall unite in forming a company. The whole number of associates may be less than this.

If the authority conferred is valid, the associates may be incorporated, after the road is constructed, although it is not constructed in conformity with the positive requirements of the Railroad Act.

That act prohibits the use, in the construction of any road, by a company formed under it, of any iron rail of less weight than 56 pounds to the linear yard, (§ 27.) It authorizes the running of freight trains, as well as passenger trains, (§§ 36 and 38.) It requires every corporation formed under it, to erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, and to construct and maintain cattle guards, at all road-crossings, suitable and sufficient to prevent cattle and animals from getting on to the Railroad, and provides that if any person shall ride, lead, or drive any horse or other animal upon such road, and within such fences and guards, other than at farm-crossings, without the consent of the corporation, he shall, for every such offence, forfeit a sum not exceeding ten dollars, and shall also pay all damages, which shall be sustained thereby, to the party aggrieved, (Id. p. 233, § 44.) Cities are not exempted by the act itself, from the operation of this section.

As the cars cannot be run, except by keeping their wheels in the grooves of the rails, the resolution abrogates a statute of the state, relating specially and solely to this city.

The 198th section of the act of April 9, 1813, declares, “ that in all cases of persons meeting each other in any street or road, in the city and county of Hew York, in carriages, waggons, carts, or sleighs, each person so meeting shall go to that side of the street or road on his right, so as to enable the carriages, waggons, carts, or sleighs so meeting, to pass each other, under the penalty of five dollars for every offence, to be recovered by an action of debt, with costs of suit, in any court having cognizance thereof, by any person suing for the same.” (2 R. L. p. 424, § 198.)

Every person going on either track with a carriage or cart, and meeting a car going in the opposite direction, must move wholly out of the way of the car, and the car is not obliged to be turned out of the direction marked by its track, and from the nature of things cannot be. If instead of meeting a car, any other vehicle had been met at precisely the same spot, the person driving the latter must turn to that side of the street on his right, and every failure to do so, would subject him to a penalty of $5, and the costs of a suit to recover it.

A grant of the powers, privileges, and immunities conferred by the resolution in question, is the grant of a franchise, and if the Municipal Incorporation of this city was incompetent to make the grant, the making of it was a usurpation of power which can lawfully be exercised by the Legislature of the state only.

A franchise has been defined to be “ a privilege or immunity of a public nature, which cannot legally be exercised without legislative grant. To be a corporation is a franchise; the various powers conferred on corporations are franchises; the execution of a policy of insurance by an insurance company, and the issuing of a bank note by an incorporated banking company are the exercise of franchises; without legislative authority, neither could lawfully be done by a corporation; and were a bank to execute a policy of insurance, or an insurance company to issue bank notes, such acts would be usurpations of franchises.” (The People v. Trustees of Geneva, College, 5 Wend. 217 ; The People v. Utica Insurance Company, 15 I. R. 387.)

The resolution, by its terms, assumes, and the defendants’ counsel insists, that the Common Council had legislative capacity to pass it, and the merits of the controversy, as the appeal presents them, depend upon the question, whether this assumption is well founded.

Keither of the City Charters, nor any statute of the state, confers any such power in express terms. It is not apparent that it is conferred by implication as being necessary to the exercise of any power expressly granted. We have not been referred to the grant of any express powers, or the enactment of any particular duty which makes it necessary to imply the existence of such authority, in order to properly exercise the one or perform the other. (Vide 2 Selden 92, 4 Hill 83, as to powers of municipal corporations.)

If no such power is conferred by the express terms of its charter, or by the express terms .of a statute of the state, or by necessary implication, the assertion of such a right is the usurpation of a franchise. The right here claimed is of a public nature; it affects the public at large. Here there is no remedy by action to recover damages, no individual in particular is specially aggrieved, but the public at large are affected. The authority of the legislature is put at defiance by a creature of its own creation. (5 Wend. 220.)

So far as the terms of the resolution limit the duration of the grant, it may be perpetual. If such is the effect of its terms, if it is valid by reason of the capacity of the Common Council to make the grant, the acceptance of the grant and the construction and maintenance of a railroad in such manner as will fully comply with all the conditions and provisions of the grant, will confer rights of property which cannot be divested by a repeal of the resolution by any subsequent Common Council, unless upon some ground or for some cause other than a purpose to put an end to the contract, because it wills to do so.

It was urged on behalf of the defendants, that the grant was not void merely for the reason, that by the necessary meaning of its terms it binds the municipal corporation to allow the enjoyment of the privileges granted as long as the conditions of the grant shall be complied with. That the members of the Common Council that made it, could not bind their successors; that any subsequent Common Council, of its own mere will and pleasure, can annul it; and that it should be construed .as it would be, if the power to annul it at any time, without cause, was expressly reserved in the Resolution itself. That nevertheless it was not void when passed, but was valid and revocable, and will remain valid until actually revoked or annulled.

No case has been cited, which asserts the doctrine that a municipal corporation can break its valid contract with impunity, merely because it does not choose to perform it, or that a mere resolution to rescind it without cause, would not impair the obligation of contracts, if the resolution could be held to repeal it and at the same time to exempt the corporation from liability to damages or from amenability to the process of the courts to compel specific performance. That a statute of the state, which is in its nature a contract, and which does not reserve to the legislature the power to repeal it, cannot by a subsequent repeal divest rights acquired under it, is settled law. (Fletcher v. Peck, 6 Cranch, 87; The State of New Jersey v. Wilson, 7 Cranch, 164; Terrett v. Taylor, 9 Id. 43 ; Dartmouth College v. Woodward, 4 Wheat. 518.)

In the latter case, Mr. Justice Story declared the rule to be, that immunities, franchises, and other rights, whenever they are the subjects of a contract or grant, are just as much within the reach of the Constitution of the United States, as any other grant.

Such being deemed to be the settled law, a provision was incorporated into the Revised Statutes in these words, viz. “ The „ charter of every corporation, that shall hereafter be granted by the legislature, shall be subject to alteration, suspension, and repeal in the discretion of the legislature.” (1 R. S. 600, § 8. The People v. The Manhattan, Co., 9. Wend. 351, 392-3.) But for this pre-existing law, it would be necessary to insert in every act of incorporation a reservation of the power to repeal or modify it, to enable any subsequent repealing statute to have the effect to divest any rights to property, which had been acquired and vested under it.

It is laid down as an elementary principle, that as neither a state nor the general government can transcend the powers conferred upon them by their constitutions, so a corporation acting by the grant of either, must of course be bound by the supreme law, which limits even the power that created it a corporation. Neither a state, nor the general government, can grant legislative powers larger than they possess themselves. “ Hence, however unlimited in this particular may be the terms of its charter, all by-laws of a corporation, contrary to the constitutional law of the land, must be void. For this reason, a by-law impairing the obligation of contracts, or taking private property for public use, without just compensation, is void.” (Ang. and Ames on Cor. 182, § III.)

Several cases were relied upon by the defence as deciding the principle that the Common Council might, at any time, annul the grant, that such an ordinance would 'divest all rights acquired under it, and would not be a breach of the contract; and though a legislative act, would not be one impairing the obligation of a contract, and, among others, we were referred to 5 Cowen, 538, and 7 Cowen, 585. We do not think that these cases countenance, much less affirm, such a doctrine.

In 5 Cowen, 538, the corporation of this city had conveyed the premises, in 1766, on which the brick Presbyterian church, belonging to the plaintiffs, stood, reserving an annual rent, and covenanted that the lessees and their assigns, on paying the rent reserved, and performing the conditions contained in the lease, should quietly use and enjoy the premises without any let or hindrance of the defendants or any other person. On the 27th of October, 1823, the defendants, under a special authority conferred by the legislature (2 R. L. 445, § 267), passed a by-law prohibiting the use of the premises, as a cemetery, for the interment of the dead. The plaintiffs brought an action to recover damages for a breach of the covenant .for quiet enjoyment.

The court said that the liability of the defendants, upon the covenant in question, must be the same as if it had been entered into by an individual, and the effect of the by-law upon it, the same as if that by-law had been an act of the state legislature. It is expressly authorized by the legislature, and whether it be their act or an act of the local city legislature, can make no difference.” (Id. 540-541.)

The cause was decided in favor of the défendants, not on the ground that the grant was revocable at pleasure, from mere caprice, nor on the ground that the corporation could relieve itself from its obligations under a valid contract without assigning a cause, or without legislative authority, but on the ground that every right, from an absolute ownership in property, down to a mere easement, is purchased and holden subject to the restriction, that it shall be so exercised that its use shall not become a public niiisance. That an act of the legislature, declaring a particular use a public nuisance, and prohibiting such use, is a constitutional íaw, and gives no claim in favor of a purchaser against a vendor, who conveyed it with a covenant for its quiet enjoyment. Such a law does not take private property for public use, for the property is not taken nor is any entry made upon it; the title is not divested nor impaired; only a certain use is prohibited, which, from, the increase of population, would be a nuisance. And, for the same reason, in such a case, there is nothing, in the act, impairing the obligation of contracts. The court was also careful to say that “an unwarrantable interference with private property is equally unconstitutional and void, whether by a state legislature or a corporation. By neither can it be touched without necessity ; and then, if taken, it must be upon just compensation.” (7 Cowen, 606.) “The liability of the defendants, therefore, upon the covenant in question, must be the same as if it had been entered into by an individual.” (5 Cowen, 540.)

The grant cannot be annulled from mere caprice. Though an act of the state legislature has empowered the corporation to pass by-laws and ordinances preventing the interment of the dead within the city, it has passed no law authorizing it to annul its valid grants, or terminate its valid contracts, because 'it may be pleased to do so for no reason except that it may be its will and pleasure to repudiate them. Ho corporation, municipal or otherwise, possesses any powers except such as have been granted to it, and no state can grant to a corporation power to do that which it cannot constitutionally do itself.

The legislative power of a corporation is- not only restricted by the constitutional and statute law of the state in which it is located, but by the general principles and policy of the common law, as it is accepted there. It is upon this principle that though many by-laws passed by the ancient municipal corporations and trade companies in England, for the regulation of trade and the prevention of monopoly, were held good, yet many have been held void, as being in restraint of trade and an oppression to the subject. (Dunham v. Trustees of Rochester, 5 Cow. 462.)

Will it be pretended that a subsequent Common Council, after the road has been constructed and put in operation, and while all of the conditions of the grant are observed by the grantees, can lawfully repeal the grant, and by the same resolution make a similar grant, in all respects, to others ? If it cannot, then it has bound itself in perpetuity for the enjoyment by the grantees and their assigns, of the rights and privileges granted, on their performing the conditions on which the grant was made.

The fact that the manner of using it is so far subject to legislative control that it can lawfully be so restricted as not to become a public nuisance, or otherwise endanger the health or lives of individuals, furnishes no ground for holding that the grant, if valid, can be arbitrarily repealed, or the rights acquired under it annihilated at the mere will and pleasure of the party, though a corporation, who contracted, upon consideration, for their enjoyment in perpetuity.

It is conceded that the Common Council cannot divest itself of, nor abridge its legislative discretion, to alter and regulate the streets as it may deem expedient. It cannot be denied that it has no power to prohibit such use of them as the legislative authority of the state has granted to every citizen as a matter of strict right. (2 R. L. 424, § 298.) This grant will produce both results, if valid, and if it confers the rights and privileges which it purports to grant.

To say that the contract is valid but voidable at pleasure, and valid until avoided, is to affirm that the Common Council have not, in fact, made such a contract as its provisions express. That though by its terms the rights and privileges granted are to be enjoyed without molestation by the grantees and their assignees, for ever, on their performing the conditions to be observed on their part, yet in fact no such contract has been made. That it is in effect a mere license by the Common Council that these privileges may be enjoyed until it shall be pleased to revoke the license. The contract made is to be determined by the legal import of its terms. If it is not obligatory upon the Common Council, it must be for the reason that it was incompetent to make it. If incompetent to make a valid contract, such as it has made, it necessarily follows that it is void. It also follows that the attempt to make it, and thereby confer rights and powers which the state legislature is alone competent to confer, and to absolve the grantees from duties from which only the same authority can exonerate them, is a usurpation of power and an illegal exercise of a franchise.

The privileges granted to the associates are exclusive in their nature. They are granted with the right and authority to appropriate to the use of the grantees and their assigns exclusively, the advantages and emoluments that may arise from their enjoyment. Ho, other person, or association of persons, can be authorized by the Common Council to run cars for hire, upon the road, without a clear violation of the contract. They are to run cars both ways as often as public convenience requires, they are to receive from each passenger fare for riding on their cars, and are authorized to establish by-laws, “ providing for the construction, operation, and management of the said railway.” If at the end of the ten years they do not consent to pay such license fee, per car, as the corporation, with permission of the legislature, shall then prescribe, they agree to “ surrender the road, with all the equipments and appurtenances thereunto belonging, to the said corporation, at a fair and just valuation of the same.”

In a contract between individuals, by which an owner of land should contract that a third person might erect structures and operate machinery upon it, without any limitation as to time, on paying a certain rate per annum for the first ten years, and providing that if at the end of ten years he should not pay the annual sum then exacted for the privilege, he should surrender the structures and machinery .to the owner of the land upon receiving their just value, it is not clear that the owner, in such contingency, would not be bound to pay such value and accept a surrender of the property.

However that may be, it is obvious that the spirit and fail-meaning of the contract are, that the grantees shall have the exclusive right and privilege of running cars upon the road for their private emolument. And in every grant of a franchise, the implied powers and rights conferred by it, are as much beyond the control of subsequent legislation as powers and rights expressly granted. (The People v. The Manhattan, Co., 9 Wend. 351.)

It creates an unincorporated association, and exempts it from the operation of the rules of the common law, which define the rights and liabilities of partnerships. The latter declare that a partnership shall be dissolved by the death of one of its members, and give to his personal representatives a right to have an adjustment of the accounts and a division of the property or of its proceeds. This .grant declares that neither the death nor any act of either of the associates shall work a dissolution of the partnership, but that the successor in interest of any one who may die shall stand in his place, and the continuance of his rights shall depend upon his fulfilment of the conditions imposed by the grant, and his compliance with the articles of association, and the by-laws it may establish. Such rights and liabilities the legislature of the state has alone the power to create and impose®.

The 9th section of the amended charter of 1849 (Laws of 1849, p. 280) declares that the executive power of the Corporation shall be vested in the Mayor and heads of departments, and such other officers as may be created by law, and that the Common Council shall not perform any executive business whatever, except such as is specially imposed by the laws of the state. The 14th section enacts that there shall be an executive department, to be denominated the “ Department of Streets and Lamps,” which shall have cognizance “ of cleaning the public streets, and collecting the revenue arising from the sale of manure.”

The 22d, that all contracts to be made for work to be done, shall be made by the appropriate' heads of departments, under such regulations as shall be prescribed by the Common Council.

The 10th article of the grant makes a contract with the grantees, by which the latter contract to sweep and clean so much of Broadway as extends south of Fourteenth street, in the morning and evening of each day, except Sundays, whatever the weather may be, and so much of it as lies between Fourteenth and Fifty-ninth streets, equally often, when the weather will permit. It is not a contract to remove so much of rubbish and dirt, as the use of the road shall bring into the street, but to sweep and clean the entire street, and carry away the sweepings, in the morning and evening of each day, for all time to come, and the price paid for it is the grant of a franchise with the right of perpetual enjoyment. This would seem to be clearly prohibited by the provisions of the amended charter above referred to.

Without entering upon the consideration of other objections taken to the legality and validity of the grant, we think it void, on the grounds—

First, that it grants a franchise, which the Common Council has no authority to grant.

Second. The grant, by the meaning and legal import of its terms, may be perpetual.

Third. The grant is, in judgment of law, a contract between the Corporation and the grantees, and, in its legal import, restricts the Corporation in the future exercise of its legislative powers.

Fourth. It confers upon the grantees and their associates exclusive privileges to a partial use of Broadway, which may be of perpetual duration.

Fifth. It absolves them from an obligation imposed on them by a statute of the state. (2 R. S. 424, § 198.)

Sixth. It confers rights, and exempts the associates from consequences, in the event of the death of one of their number, repugnant to, and conflicting with, the settled law of the state.

Seventh. It authorizes the associates to become incorporated at any time, under the general railroad act, although the road may have been previously constructed, and whatever may be their number at the time, while the act itself does not allow an incorporation after a road shall have been built, nor of a less number than twenty-five.

Eighth. It makes a contract, which the Common Council has been prohibited from making, by the amended charter of 1843.

The attempt to make a grant conferring such privileges and immunities, without lawful authority, is a usurpation of power, and the illegal exercise of a franchise, and is void. The grantees who insist upon the right to exercise the powers and privileges thus granted, were properly, perpetually enjoined. There are some provisions of statutory law, not referred to by the counsel of either party, which may possibly be thought to favor the proposition, that this grant is to be construed, as it would be if it expressly reserved the power to at any time modify or repeal it.

The 274th section of the consolidating act of 1813, provides that all laws and ordinances of the said Mayor, Aldermen, and Commonalty, in Common Council convened, may continue in force three years, unless sooner repealed, or enacted for a shorter period, and declares that any ordinance or part of an ordinance “ passed in pursuance of the powers hereby granted, may at any time be repealed by the legislature.” (2 R. S. 447, § 278.)

In 1837, an act was passed, to the effect that, “ all ordinances heretofore passed by the Common Council of the city of New York, and now in force, and all ordinances hereafter to be passed by the said Common Council, shall remain and continue in force, until the same shall be repealed. The same act repealed so much of § 278 of the act of 1813, as is repugnant to the section above quoted.

It is obvious, as we think, that it was not the purpose of these sections to authorize the Corporation to annul at pleasure valid contracts, which it was competent to make. If the Common Council should by resolution contract with any one to erect a public building, and if authorized to contract directly, instead of through the head of an executive department, it cannot be contended that these sections render it competent for the Common Council to rescind the resolution when the other party is not in default, without being liable to damages for the breach of it, nor that the legislature attempted to reserve a powér to rescind its ordinances, which are in the nature of contracts. On such a construction the legislature may repeal this resolution' at any time, or abrogate any right whatever conferred upon any and every person with whom a contract has been made, when the assent or agreement on the part of the Corporation is evidenced by an ordinance.

The word, ordinance or law, as used in those sections, must mean ordinances regulating the duties of the citizens with respect to some subject or matter affecting all, or particular classes, or kinds of business and other matters general in their character, such as those which relate to the police, the security, the health, and cleanliness of the city.

But upon no construction can they obviate the ’fifth, sixth, seventh, and eighth, of the objections above specified.

The only question remaining is, was the order of the 9th of November, 1853, an error, which entitles the defendants to a reversal of the judgment? An appeal was taken from that separately, but was not brought on to be argued prior to the argument of the appeal from the judgment. As a separate appeal it would be heard as a non-enumerated motion. It is an appeal taken by virtue of § 349 of the Code, and not by virtue of § 348, and viewed as a separate and distinct appeal, it would not be a calendar cause, but would be heard on the days for hearing non-enumerated motions. (Rules of Supreme Court of 1852, Nos. 27, 32, 33 ; Code, § 470.)

But on an appeal from a judgment the court may review any intermediate order involving the merits and necessarily affecting the judgment. (Code, § 329.) The court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, as to any, or all, of the parties (id. 330).

The court may, before or after judgment, “ amend any pleading, process, or proceeding, by adding or striking out the name of cmy pcvrty" (§ 173). “ Whenever any proceeding taken by a party fails to conform in any respect to the provisions of the Code, the court may permit an amendment of such proceeding, so as to make it conformable thereto” (id. 175).

“ The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substa/rvbidl rights of the adverse party ; and no judgment shall be reversed or affected by reason of such error or defect” (id. 176).

So far as the merits of the controversy depend upon considerations growing out of the terms and provisions of the grant, the competency of the Common Council to make it, the necessary legal consequences of assuming to give the authority and create the rights which it purports to confer, and the inevitable results of an exercise by the grantees of the powers granted, it is to be observed that it was of no importance to the defendants at what stage of the proceedings the attorney-general was made a party. The resolution creating the grant, and the instrument by which it was accepted, are spread out upon the record, and there is no controversy or question made by the pleadings, or otherwise, as to their terms. Whether the action had been originally brought by him alone, or by him on the relation of Davis and Palmer, these undisputed facts would present precisely the same point for adjudication, so far as the competency of the Common Council to make the grant, and its legality and its effect upon the rights of the people of the city and county of New York are concerned. If all are proper parties, and the judgment is right upon the merits, there is no defect in form. If right upon the merits, and the attorney-general alone is the only proper party plaintiff, it should not be reversed in toto (§ 176). No substantial right was affected by allowing an unnecessary party plaintiff to appear as such upon the record. (The People v. Trustees of Geneva College, 5 Wend. 220.) If the attorney-general was unnecessarily made a party, it was not an error or defect affecting the substantial rights of the adverse party. It did not alter the issues between the parties, or the trial, in respect to the matters upon which the court at special term decided the controversy. (2 R. S. 425, § 8.) The order allowing him to be made a party did not involve the merits, nor necessarily nor at all affect the judgment, if it can be upheld upon any of the grounds upon which it was decided, or upon which we have concluded it should be affirmed.

The position taken in the earlier proceedings had in this action, and when among the other facts stated in the complaint, were allegations, that the railroad would be a public nuisance specially injurious to Davis and Palmer as property owners, was that the attorney-general was a necessary party plaintiff. Ho one denied that he was a proper party. This court held that he was not a necessary party, in an action to restrain a public nuisance, which would be productive of special pecuniary injury to the individuals who commenced the action.

If he had been a party at the time the action was commenced, the suit would have been throughout in the condition as to parties which the defendants, during- the proceedings in the contempt cases, contended was the only one consistent with technical regularity.

The Court of Appeals, in the opinion delivered in this case, say, “ we are entirely satisfied that the decree of a court of equity, restraining a public nuisance, is not void even though the attorney-general be not plaintiff, and though no special injury to the actual plaintiff is averred. It is quite possible that such a decree would be erroneous, perhaps even very clearly wrong, but it would not be void, and the party, who was dissatisfied with it, would be compelled to seek his remedy by appeal, and not by setting at defiance the authority of the court.”

Suppose in this case, it had been found as matter of fact, that the railway would have been a public nuisance, but no special injury to the actual plaintiffs, and on that finding a perpetual inj unction had been decreed; would it not have been entirely competent for the court below, even after judgment and before an appeal taken, to have allowed an amendment adding the attorney-general as a party plaintiff, under § 113 of the Code 1 It would not affect the form of the issue, in which the action had been decided, the evidence that could be given under it, nor the form or place of the trial, whether he had been originally a party plaintiff, or was made such at any subsequent stage of the proceedings.

An action to annul the grant of a franchise made by a municipal corporation, if exercised in conformity with the powers and privileges conferred by the terms of the grant, would interfere with rights conferred by statutory law upon every one residing or travelling within the territorial limits of the corporation, is one in which not only every corporation is directly interested, but is one in the event of which the people of this state are also interested.

If we are to look to the Code alone, and to pre-existing statutory ,law not repealed by it, to determine whether all who now appear as plaintiffs to the record are proper parties, it will be manifest that all of them are.

An ordinary proceeding, by which a party prosecutes another for the protection of a right, or the prevention of a wrong, is a civil action. (Code, § 2.) Every action must be prosecuted in the name of the real party in interest (Id. 3); and when the question is one of a common or general interest of many persons; or when the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole (Id. 119). The questions in this case, are questions of common interest to every citizen residing within the city, and affect all the corporators alike. The original plaintiffs are citizens, residents within the city, and corporators of said city. This is alleged in the complaint, and not denied by either answer of any of the defendants. They are also alleged to be owners of real and personal estate, and tax payers; and while the grantees of the railway put these allegations in issue by denying that they have any knowledge or information sufficient to form a belief as to these facts, we understand that the judge who tried the cause, found these allegations in favor of the plaintiffs. He allowed the plaintiffs an election to have an issue for a jury upon the question,— “ whether the contemplated railroad would be a public nuisance specially injurious to the plaintiffs”—which we think he would not have done, if these facts had not been satisfactorily proved; and no point has been made on this appeal, that it was not proved that the plaintiffs owned in fee the real estate situate on Broadway—as the complaint alleges.

At all events, they were citizens, residents, and two of the corporators of the city. They were proper parties. The complaint, by its terms, states the action to be brought, “ as well on their own behalf as on behalf of all other corporators and tax payers of the city of Hew York, who may he affected by the several matters ” therein complained of. In that respect, it conforms to § 119 of the Code.

The Revised Statutes make it the duty of the attorney-general to prosecute or defend all actions, in the event of which the people of this state shall be interested. (1 R. S. 179, § 1.) This is one in the event of which the people of this state are interested. The people could not be affected by any judgment in this action, in favor of the defendants, unless parties to it. The attorney-general was not only a proper party, but was a necessary party, to a complete determination of the controversy. In such a case it was proper that he should be made a party, and the Code contains ample provisions for making all necessary amendments to effect that object. (Code, §§ 122 and 173; Jennings v. Spring, 1 Bailey’s Equ. R. 181.)

If technically accurate phraseology required the amendment to be in such form, in its description of the parties as they would stand upon the record after the amendment made, as to state that “The People of the State of Hew York, by the attorney-general of the said state, on the relation of Thomas E. Davis and Courtlandt Palmer, complain to this court, the said Davis and Palmer, as well in their own behalf,” &c., we will intend that it was so made, as nothing to the contrary appears. The object of the amendment was to make the people of the state a party, and, in common parlance, to effect that result the attorney-general, as representing the people, is made a plaintiff in the action. A mistake in the name or description of a party may be corrected after judgment (Code, § 113), and it is not an error for which a judgment can be reversed. It affects no substantial right of the adverse party, especially when the description discloses with sufficient distinctness to leave no reasonable doubt who is designated by it.

There is an obvious propriety in all such cases in joining with the people as plaintiffs responsible individuals, who have an interest in the right sought to be'protected, or in preventing the' threatened wrong. If the action shall prove to have been brought on an erroneous assumption as to the facts, or the legal consequences of facts accurately stated, the individuals on whose relation or information it was commenced will be liable for the costs, and the people will not be liable, except upon a failure to collect them by execution against the private parties. (Code, §§ 319, 320.) The Attorney-General v. The Mayor of Dublin, 1 Bligh N. R. as to the object of uniting private persons with the attorney-general as plaintiffs.

The union of individuals with the people, as plaintiffs, is in accordance with the express provisions of the Code, in relation to actions substantially like this in their nature, and the object is to exempt the state from the costs in an unsuccessful litigation.

After this grant had been made, if the view which we, have taken of the character of the resolution creating it he correct, the attorney-general, upon his own information, or upon the complaint of Davis and Palmer, without the previous order of any court, could have brought an action against the corporation on the ground that it had “ illegally exercised a franchise.” (Code, §§ 432 and 428.) The grant of the privileges conferred on Sharpe and others, if the Common Council was incompetent to make it, was an illegal exercise of a franchise and a usurpation of power. (The People v. Utica Ins. Co., 15 I. R. 387; The People v. Trustees of Geneva College, 5 Wend. 217; Commonwealth v. Fowler, 10 Mass. 290, 295, and 301.)

The attorney-general is not required by § 432 to bring the actions enumerated in it in any particular court. But at the time this action was commenced no grant had been made. The action was brought to protect the rights that would be invaded, and prevent the wrongs that would be inflicted by its passage, and the exercise of the powers it purported to grant, by restraining its passage. After it had been passed in defiance of the injunction of the court, the persons in whom the rights and powers it created and conferred were vested, were also made parties to restrain them from acting under it, and to conclude them by any judgment that might be rendered.

If the view; taken of the grant be correct, its passage and an exercise of the powers it conferred would be an illegal invasion of the rights of every corporator of the city, and of every citizen of the state. To protect these rights and prevent the wrong of such an invasion of them, this action was brought. The Code gives a remedy by action to protect the right and prevent the wrong. The suit is prosecuted by the people, who are interested in its event, and by private parties in behalf of themselves and others similarly situated, who would be more immediately and constantly affected by the wrong than citizens not residing within the city. The action was commenced by the service of a summons, the mode of proceeding prescribed by the Code. The plaintiffs are competent to sue, they have commenced an action provided by the Code, and in the manner directed by it (§ 127). It is brought against the party that threatened to do the wrong sought to be prevented. That party is a municipal corporation, one of whose privileges, secured to it not only by the Dongan and Montgomery charters, but by the statutes and constitution of this state, is that of suing and being sued in all courts in like cases as natural persons.” (Art. 8, § 3 of Constitution, 1846 ; 1 R. S. 599, § 1, sub. 2.)

The Court of Appeals having decided that the jurisdiction of this court over actions against this corporation “ is as wide as the definition of an action under the Code, and that is defined to be ‘ an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong,’ ” it would be out of place to enter upon the consideration of the extent of its jurisdiction.

The right asserted, and recognised and protected by the judgment appealed from, could only have been enforced by action. The only full and adequate remedy against the wrong sought to be restrained consisted in preventing the wrong. The judgment appealed from secures redress by inhibiting the wrong. Unless a judgment which merely protects undoubted rights, and prevents the commission of acts which would be clearly wrong, should be reversed by reason of some exemption of the defendant from that control to which all natural and all other artificial persons are subjected, which has not been pointed out, we perceive no grounds for disturbing the judgment of the special term. The judgment appealed from must, therefore, be affirmed with costs.