text:
    HARVEY WEED, Plaintiff and Appellant, v. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY, Defendant and Respondent.
    Before Sedgwick and Speir, JJ.

      Decided, June 5, 1876.
    I. LIFE LBSUBAJLCE.—Policy containing a provision that in case the person whose life is insured shall die by his own hand, it shall be void.
    1. Insanity, replication of to plea of swidde.

    (a) Evidence in support of ; what not sufficient.
    1. Presumption.

    (a) Presumption of insanity Sows not from the act suicide. 3. Circumstantial.

    (a) Consistent with both the hypothesis of sanity and that of insanity is insufficient.

      (b) Definition of the term “insanity” in this bboard.
    1. The disease of the mind must be such as to
    either
    (a) render the party unconscious that the act he did would cause death;
    or,
    (b) by an irresistible impulse lead him to the commission of the act.
    The action is upon a policy issued in November, 1864, by defendants, insuring the life of James M. Benedict, and assigned by him to the plaintiff a few days after its date. The case comes before the court upon an order made by the judge on the trial dismissing the complaint and directing the exceptions to be heard in the first instance at the general term.
    The insured died on the 26th of November, 1867, from a pistol wound in the head, inflicted by himself.
    The ground upon which the court acted in dismissing the complaint was founded upon a condition of the policy avoiding it in case the insured came to his death by his own hand.

      E. L. Fancher, attorney, and of counsel for appellant, urged:
    I. There was no forfeiture of the policy, if the act of self-destruction was committed by Benedict, the assured, while so bereft of reason as not to understand the nature and consequences of the act by which his life was terminated (Eastabrook v. Union Mut. Life Ins. Co., 54 Me. 224; Brewster v. Farmers’ Loan and Trust Co., 4 Hill, 73; S. C., 8 N. Y. 299, 304; Van Zandt v. Mutual Benefit Life Ins. Co., 55 N. Y. 169). “The real question is, whether he did the act consciously and voluntarily, or whether, from disease, his mind had ceased to control his actions” (Rapallo, J., Id. 176).
    II. None of the motives specified by the court of appeals as being within the intent of the parties, when this contract was made, to except a loss by suicide, existed, in the case of Benedict (55 N. Y. 177). His death by his own hand, was, according to the only hypothesis suggested by the evidence, caused by the act of a man while laboring under an aberration of mind.
    III. The evidence abundantly shows that Benedict for years had been afflicted with disease, which at times was so virulent that his mind ceased to control his actions.

      James M. Lewis, attorney, and W. A. Beach, of counsel for respondent, urged:
    I. There was an obvious breach of an express condition of the policy, rendering it inoperative and void. It is conceded that the insured did “ die by his own hand.”
    II. It being incontestable that the death of the insured came from his own hand, there was no evidence upon which a jury could rightfully find that he was insane at that time, or without sufficient reason to understand “ the physical nature and consequences” of his act. It is needless to pursue the speculations of psychologists upon the subject of mental disease, or to consider the vexed doctrine of insane impulse. While the courts hold that an insane act of self-destruction is not death by one’s own hand in the sense of this condition, they furnish a plain and practical test of the insanity which avoids the literal application of this condition. It must be that species and degree - of mental disease which disables the subject from comprehending “ the physical nature and consequences of such act” (Van Zandt v. Mut. B. L. I. Co., 55 N. Y. 169). Under this decision, it may be that disease of the mind depriving one of the power to control his actions, is within the rule, but it is insisted otherwise by the respondent. Some expressions in the opinion of the court seem to favor the theory of ‘‘insane impulse” as maintained by the most advanced alienists. It is not necessary to discuss the question. There is no proof that the deceased was moved by any insane impulse. All that is shown in this case on the part of the plaintiff is consistent with unimpaired reason; and when this is so, it is the duty of the trial judge to nonsuit (McClure v. M. L. I. Co., 55 N. Y. 651).
   By the Court.—Speir, J.

The provision in the policy as to its being void reads as follows: “In case he (Benedict) shall die by his own hand in, or in consequen.ce of a duel, or by reason of intemperance from the use of intoxicating liquors, or by the hands of justice, this policy shall be void,” &c. The learned judge ruled that if he died by his own hand the true construction of the policy would render it void without reference to the fact whether he died in or in consequence of a duel or by reason of intemperance from the use of intoxicating liquors. The plaintiff’s counsel excepted to this ruling on the trial, but made no point of the exception on the argument.

The evidence proved satisfactorily that the wound which caused Mr. Benedict’s death was self inflicted with the intention of effecting that result. The testimony of the plaintiff showed that the insured died by his own hand. The defense to the action was thus prima facie established ; and to meet this the plaintiff attempted to prove that the assured was, afc the time of inflicting the wound, insane. The question, therefore, presented is, was the testimony offered for this purpose such as rendered it proper for the determination of the jury. If it was, the judge should have submitted it to them, and the dismissal of the complaint Avas erroneous. The rule in regard to the dismissal of the complaint is the same as directing a verdict. When there is no evidence, either may be done in the proper case; and in cases where there is some evidence given tending to show the fact, but insufficient to warrant a jury to find in accordance thereAvith, and the jury should so find, it would be the duty of the court to set aside the verdict, not in the exercise of its discretion for the promotion of justice, but for the reason that it was not warranted by the testimony.

Insanity cannot be presumed from the mere commission of the act. Self-destruction is often committed by the sane, and from daily experience the act cannot be predicated solely as a condition of the mind exclusively manifested by the insane. The policy in this case contained a valid condition that if the assured died by his own hand (and he did so die), the presumption is, that he was sane at the time he committed the act. Sanity being the normal condition of man, it is presumed to exist, and this presumption must be removed, in order to prove a different condition of the mind, by clearly affirmative evidence or by circumstantial evidence wholly inconsistent with the hypothesis of sanity, and consistent with that of insanity. If consistent with both, the rule is plain that it must be disregarded in determining as to the truth of either.

It is proper we should keep in mind that the evidence is almost wholly circumstantial, consisting of facts relating to the conduct ■ of the assured, from which only inferences and conclusions may be drawn which may be consistent with either theory. Tested by the foregoing rule, I think the testimony insufficient to sustain a verdict that the assured was insane at the time of inflicting the wound which produced his death. It was proved that the assured was for a long time prior to his death engaged in extensive business affairs ; up to 1858, he was a merchant of high standing, vice-president of a bank, and an active officer in other important companies. He was trusted in large commercial transactions, and it does not appear he was at any time suspected of mental derangement, or gave indications of a diseased intellect. Although he was dangerously ill from congestion of the brain, and delirious in 1858, and suffered during fifteen or twenty years from nervous neuralgic pains in the head, at different periods, he would recover from these attacks and resume his business and ordinary habits of life. When suffering from these acute attacks, he was led to say that “ they would either drive him crazy or kill him.’’ The witnesses, consisting of his intimate friends and family, failed to give any instance of any act or symptom of mental aberration. On no occasion is it shown that his mind was so far gone that it was not moving to the act. His physician, who attended him on the day of his death, did not notice any evidence of mental aberration. The preparation to compass his death by his own hand appears to have been planned with deliberation and seif possession. He took his son, and in his debility leaning on him as he ascended the stairs, entered the bath-room, told him to go down to his mother, - and, taking the pistol concealed in his pocket, received the fatal bullet. Under the decisions, in order to take the case out of the proviso, the party must have been insane to such a degree as to render him unconscious that the act he did would cause death, or he must have committed it under the influence of some insane impulse which he could not resist. The case shows, I think, a clear comprehension of the nature of the act he contemplated, and its voluntary and intentional commission.

The judgment must be affirmed with costs.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court. -—Sedgwick, J.

license: Public Domain

text:
    THOMAS V. JOHNSON, Plaintiff, v. GEORGE I. LUXTON, Defendant.
    FRAUDULENT REPRESENTATIONS.—CONTRACT.
    1. Acceptance by vendee of goods purporting to be such as were contracted to be sold, induced by fraud, effect of.
    1. Vendok, liability of.

      (a) Fraud, liable in damages for.
    (5) Contract, his liability on the contract remains unimpaired.
    1. Retention of goods. - No question as to its effect on the vendee’s rights can arise, when he immediately on the discovery of the fraud, offers to return the goods.
    Before Sedgwick and Speir, JJ.

      Decided June 5, 1876.
    2. Evidence of fraud, what sufficient to avoid acceptance.

      (a) Inducing vendes to omit, or make but partial, examination.

    1. When the contract called for new machines, and on the delivery of a part, the vendor asserted the fact, that they had come direct from the factories, and the vendee, on looking at two or three of them, found that they had the appearance of being new, whereas, in fact, they were second-hand, and had been painted and furbished so as to have the appearance of being new.
    Held,
    1. That a question of fact was presented for the jury, as to whether the defendant had not painted and furbished the machines, which the plaintiff did look at, so that they had an appearance which deceived the plaintiff, even when making an examination.
    2. That if the defendant did this fraudulently, an acceptance based on such examination would not be binding.
    2. Maxim. Caveat emptor does not apply to such a case.
    3. Statement before the contract.

      (a) A statement that the machines were to be new, cannot be relied on as one of the false representations.
    2. Money paid on an acceptance so induced.
    May be recovered in an action for damages by reason of the ' fraud.
    Appeal from order dismissing complaint upon trial, exception to be heard in the first instance at general term.

      Chase, Bestow & Holt, attorney, and, Philo Chase, of counsel, for plaintiff.
    I. The complaint gives an ample statement of all that is required to maintain the action. To maintain an action of this kind—an action of deceit—it is only necessary to allege and prove fraudulent representations naturally accompanied with damage (Moak's Van Santvord's Pleadings, 337 ; 2 Greenl. on Ev. 230 a ; Wells v. Jewett, 11 How Pr. 242 ; Zabriskie v. Smith, 13 N. Y. 322 ; Sharp v. The Mayor, &c., 40 Barb. 256; Barber v. Morgan, 51 Barb. 116; Mabey v. Adams, 3 Bosw. 346; Thomas v. Beebe, 25 N. Y. 244; Yates v. Alden, 41 Barb. 172; Mead v. Mali, 15 How. Pr. 347; Moore v. Noble, 53 N. Y. 425 ; Cross v. Sackett, 2 Bosw. 617). The evidence excluded clearly tended to establish the cause of action alleged.
    II. The plaintiff has a legal right to his action upon the fraud. He is not restricted to an action upon the contract. Because he may have a right of action upon the contract, does not in any respect affect his right of action upon the fraud. If a man defraud me in the sale of an article, I may pursue him either in tort or contract; the remedy in such case is twofold (1 Hilliard on Torts, 4 (1st ed.); Whitney v. Allaire, 4 Den. 554). A false affirmation made by one, with intent to deceive another, and whereby the other receives damage, has always been held to be a good cause of action ; it is an action in the nature of deceit (Pasley v. Furman, 3 T. R. 51; Upton v. Vail, 6 Johns. 181; Barney v. Dewey, 13 Id. 225 ; White v. Merritt, 7 N. Y. 352; 2 Hilliard on Torts, 283).

    III. The position taken by defendant’s counsel, that the defendant is not liable for his false and fraudulent representation, because the contract does not expressly say new machines, is an absurd one. 1. If the plaintiff was defrauded of his money by means of the defendant’s false and fraudulent representations, as the plaintiff sought to prove, what difference did it make that the contract did not expressly say new machines. Is it suggested that the plaintiff did not rely upon the false representation, but upon the contract % But we prove or offer to prove that the plaintiff did rely upon the false representations / this was a question of fact for the jury, in view of all the circumstances (Clark v. Rankin, 46 Barb. 570).

    IV. The defendant procured the acceptance of the 100 machines and the payment of the money by fraud. The plaintiff repudiated the acceptance and offered to restore the machines as soon as he discovered the fraud, and was entitled to his money back again. It is an axiom of the law that no man can acquire a right to property or money by his own fraud (Hall v. Erwin, 90 Barb, 349). And a delivery of property or money obtained by fraud is void (1 Ad. on Torts [D. & B. ed.] 420, 421; Waldron v. Stevens, 12 Wend. 100 ; Andrew v. Deitrich, Id. 31; Monery v. Walsh, 8 Con. 238 ; Francheris v. Henriques, 24 How. Pr. 165).

      Samuel H. Randall, attorney, and of counsel, for defendant.
   By the Court. -—Sedgwick, J.

The complaint is drawn most ambiguously. It must, I think, be considered as averring an action for damages, by reason of fraud on the part of defendant, in inducing the plaintiff to accept certain sewing machines, under an executory contract between them; although there are many allegations only appropriate to an action upon the contract. It substantially charges, construing it in connection with the proof given and offered on the trial, that there was a contract between the parties, by which the plaintiff was to convey certain land, and pay certain money, for which the defendant was to deliver a number of Sewing machines, at different times and in several parcels. The contract provided “ all of said machines are to be complete machines, with usual manufactured attachments, and all to be of the patterns, which at the respective manufacturers are retailed at sixty-five dollars. Each and all are to be of the latest.” The complaint alleges that the defendant offered for delivery under the contract, a parcel of the sewing machines, one hundred in number, and, with intent to defraud plaintiff, and for the purpose of fraudulently leading him to believe that the machines offered were of the kind described by the contract, did falsely, knowingly, and fraudulently represent to plaintiff that the said one hundred machines were all entirely new machines, direct from the factories where they were manufactured, and were all in perfect order and condition, and of the kind and sample retailed by the manufacturers at sixty-five dollars each; that the plaintiff, believing said pretenses to be true, accepted said machines as a delivery under said contract; and did make a payment thereupon of two thousand dollars ; whereas in fact, the said machines were not new machines, or direct from the factories where manufactured, or in good order or condition, or of the kind and sample retailed at sixty-five dollars each, but were, as the defendant knew, old second-hand machines, much used, of little value, and direct from a place or shop, where he had caused them to be repainted and fixed up to give them the appearance of being new machines ; that the plaintiff had offered to return the said machines, &c.

Upon the trial no objection was taken to the form of the pleadings, or to the evidence, as not justified by them. The court, at a certain stage of the case, held that the action could not be maintained for false and fraudulent representations, and upon the plaintiff’s opening, and upon the testimony admitted and offered, dismissed the complaint. I understand from this, that it was adjudged that the plaintiff had only a cause of action upon the contract.

The plaintiff’s counsel had by his opening, proposed to prove the allegations of the complaint; he had further given evidence to show that the defendant had made substantially the representations as set out in the complaint, and that at the time the machines were •boxed up ; that the plaintiff said he would like to see two or three of them, and three were then unboxed ; that they had the appearance of being new machines, and the attachments were with them, and the ironwork had just been painted and the wood-work had been varnished. Upon a motion by defendant’s counsel, the whole of this evidence was stricken out, and an exception was taken by plaintiff’s counsel. Plaintiffs counsel then, in different forms, offered to prove the making of the pretenses, their falsity, the fraud of the defendant, that plaintiff relied upon the pretenses, and his payment of money.

As I understand the case, the only reason for denying that the plaintiff had prima facie a cause of action, was that the plaintiff having once accepted the machines, under the contract, his rights were confined to damages for a breach of the contract, if any, on defendant’s part. But this will not be correct if it be conceded that the plaintiff has the right to avoid that acceptance. If he do so successfully, the result will be, that the transaction of the delivery, &c., is cut off ; the contract and the rights of the parties, are to be determined by the character of the transaction. The fact that fraud is committed in inducing a person to become bound by a contract, does not destroy a legal liability in damages for fraud, while the liability upon the contract also is unimpaired (Goldberg v. Doughetty, 39 N. Y. Superior Ct. R. 190; Morgan v. Skidmore, 55 Barb). 263, affirmed by court of appeals ; Whitney v. Allaire, 4 Den. 554 ; 1 N. Y. 305 ; 1 Hill, 484).

There can be no doubt, that when acceptance under an executory contract is procured by the vendor’s fraud, i>: has no effect upon the vendee’s rights under the contract. There is no question in the case, of the effect upon the rights of plaintiff of a retention of the machines. For in the present case the plaintiff was prepared with testimony to show that upon discovery of the alleged fraud, he offered to return the sewing machines (The Dutchess Company v. Harding, 49 N. Y. 325 ; Judge Woodruff’s opinion in Ely v. O’Leary, 2 E. D. Smith, 358). It would follow that the vendee had a right to recover money, not paid under the contract but upon a delivery and acceptance which had only an apparent but not a real connection with the contract.

The next question is, did the plaintiff offer to give evidence of fraud, that would be sufficient in law to avoid the acceptance ? The only reason for adjudging that he did not would be, if any, that the plaintiff, being a vendee in the executory contract, was put on Ms guard as against all false representations, because the law, by the very occurrence itself, imposed on him caution and a knowledge that, if he Would protect himself, he must examine to see if the machines were of the Mnd described in the contract. This, if correct, is a form of the general rule, that in such cases, the party alleging damage from deceit is held to show the use of ordinary prudence and caution. It is unnecessary to look at the general purport of this rule. It is subject to many limitations, and, in the present case, should not be applied. This is not the case of a representation only that the goods corresponded with the demand of the contract. That, by itself alone, ould perhaps have called upon the plaintiff to examine. But the plaintiff was led to omit the examination of the whole and to examine but a part by the representation of the defendant that the macMnes had come direct from the factories. The plaintiff was led in this way to believe it to be a fact, that manufacturers had just delivered them as new machines (Mead v. Bunn, 32 N. Y. 274; Van Epps v. Harrison, 5 Hill, 63). The inference to be; drawn from these facts, was (the jury would have been at liberty to find) by the design of the defendant, to be used by the plaintiff, instead of personal inspection. As to such a statement the rule caveat emptor does not apply. The plaintiff would have looked for himself but was fraudulently induced not to do so.

Moreover, there was at least a question of fact for che jury as to whether the defendant had not painted and furbished the machines, which the plaintiff did look at, so that they had an appearance which deceived the plaintiff, even when making an examination. If the defendant did this fraudulently, certainly an acceptance based upon such an examination is not binding. Less would suffice, in case of an immediate return (The Dutchess Co. v. Harding, 49 N. Y. 323).

I have taken for granted, that the terms of the contract would not be satisfied by second-hand machines. I think there can be no doubt that they were to be new machines. They were to be marketable.

I am of opinion that the evidence offered by plaintiff that the defendant, before the making of the contract, had said to plaintiff, that the machines were to be new, was properly overruled. The plaintiff could not rely upon it as one of the false representations, and otherwise it seems immaterial.

The order dismissing the complaint should be reversed and the plaintiff’s exceptions in relation to it sustained with ten dollars costs and disbursements to be taxed. There should be a new trial.

Speir, J., concurred.


author: Sedgwick, J. Sedgwick, J.

text:
    SPECIAL TEEM.
    THE SIXTH AVENUE RAILROAD COMPANY IN THE CITY OF NEW YORK v. THE GILBERT ELEVATED RAILROAD.

      I. STATUTES—CONSTRUCTION OF.

    1. Repugnancy, what is not.
    Where an act places restrictions and limitations upon the exercise by A. (a corporation authorized by such act to construct a steam railway) of certain powers thereby conferred, and a subsequent act enacted that any company organized under any act theretofore passed to construct a steam railway, should be bound by the restrictions and limitations established by the commissioners appointed under the act from which its powers were derived, so far as they were consistent with the provisions of the subsequent act; and the subsequent act empowered commissioners to be appointed thereunder to make restrictions and limitations concerning the use of powers of the kind as those conferred on A, there is no repugnancy. (1) The commissioners under the latter act are bound to preserve the restrictions contained in the former one; and cannot make any inconsistent therewith. (2) The reference in the latter act to restrictions made by commissioners appointed under the former, covers restrictions made by the act itself.

      II. FRANCHISE. RAILWAY TRACK.

    1. What is not.
    The right to lay down a track on any kind of structure, and the working of a railroad thereon is not a political franchise to be gained only from the State.
    2. What is.
    The right to act as agents of the State in acquiring land under the right of eminent domain, or the power to use the public highway for the purposes of. a railroad, is a franchise.

      III. CONSTITUTIONAL LAW.

    1. Amendments of 1876.

      (a) Prohibition against legislature granting the right to lay down railroad tracks otherwise than by general laws—
    1. Does not apply to a law giving a general right to lay down a track on any kind of structure, or creating a corporation for such purpose;
    But

      does apply to a law giving a right to use a public street, or to acquire land under the right of eminent domain, for the situs of the railroad.
    2. Power of Legislature to alter, modify, or repeal an
    EXISTING CHARTER OR LAW, CANNOT BE EXERCISED WHEN.
    («) Hot so as to contravene a subsequent constitutional prohibition on the legislative power.
    3. Result of these propositions.

      (a) A charter granted before 1875, giving a light to a certain use of the bed of a street, cannot, since the constitutional amendments of 1875, be changed by a special or private act, so as to give a right to another different use of the bed.
    1. Different use, what is.

      (a) A right to use certain portions of the bed of the street in the middle thereof, for the purpose of erecting vertical posts, is different, within the meaning of the constitution, from a right to use portions of the bed at the curbs on the sides of the streets.

      IV. RAPID TRANSIT ACT OF 1875.
    1. Effect of, on existing corporation.
    1. An existing corporation cannot become possessed as such of a franchise to be granted thereunder.
    2. Under it a corporation may be formed and invested with a franchise, inconsistent with that theretofore granted by a former law, the effect of which would be to repeal the former Tarn.

    3. Section 36 is in effect a private law, and is mamstitutional, so far as it undertakes to give to commissioners the power to, in any manner, vest in an existing coiporation, the right to use a public highway in a manner different from that theretofore possessed by it.

      V NUISANCE, PUBLIC.

    1. PARTY TO AOTIOH IH RESPECT THEREOF.

      (a) Plaintiff. Any one who suffers damages peculiar to himself, may have an action.
    (1.) The unauthorized erection of posts in a street which interferes with a right to use the street, as given to a corporation, causes an injury peculiar to that corporation, for which it may maintain an action.
    3. INJUNCTION.

      (a) An injunction will be sustained to restrain the continuance of a public nuisance at the instance of one who suffers peculiar damages thereby.

      At Special Term.

   Sedgwick, J.

The Gilbert Elevated Railroad is a corporation incorporated by a special private act passed June 17, 1872, (2 Laws of 1872, p. 2179). By this act it was authorized to construct an elevated railway through such streets, avenues, thoroughfares, and places as should be designated and established by a board of commissioners in such act created. The act provided that the railway to be constructed should be substantially supported above the middle of the streets and avenues, by iron arches, which should span the same from curb to curb, and the bases of which should not, when practicable, be more than sixty feet apart, nor the arches less than fifty feet from each other.

' The commissioners designated the streets, &c., through which the railway should be constructed.

In 1874, the constitution of 1846 was amended by adding to article 3 nine new sections, numbered from 17 to 25, both inclusive. Section 18 prohibited the legislature from passing a private or local bill in certain enumerated cases, among them, “ granting to any corporation, association or individual, the’ right to lay down railroad tracks,” and commanded it to pass general laws for such case. This section further provided that no law should authorize' the construction or operation of a street railroad, except upon the condition that the consent of the owners of one-half, in value, the property bounded on, and the consent also, of the local authorities having the control of that portion of a street or highway upon which it should be proposed to construct or operate such railroad, be first obtained, or in case the consent of such property owners could not be obtained, the general term of the supreme court in the district in which it should be proposed to be constructed, might, upon application, appoint three commissioners, who should determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, might be taken in lieu of the consent of the property owners.

In 1875, the legislature passed an act (Laws of 1875, p. 740) providing for the appointment, upon application of fifty reputable householders and taxpayers of any county, setting forth the need of a steam railway in such county, of commissioners, residents of such county, who should determine upon the necessity of such railway, and if they should find it necessary, then to determine its route, and giving to such commissioners the exclusive.power to locate the route of such railway, over, under, through and across, the streets, avenues, places or lands, in such county (with certain exceptions, among them such portions of streets and avenues as were then already legally designated for the main line of, or occupied by, an elevated or underground railroad in actual operation), provided that the consents, or the consent and determination required by the above amendment to the constitution were given or obtained.

Sections 5, 38, 40 and 41 of the act were as follows:

“ § 5. The said commissioners, having by such public notice as they may deem most proper and effective, under such conditions, and with such inducements as to them may seem most expedient, invited the submission of plans for the construction or operation of such railway or railways, the said commissioners shall meet at a place and upon a day, in such public notice named, not more than ninety days after their • organization, and decide upon the plan or plans for the construction of such railway or railways with the necessary supports, turn-outs, switches, sidings, connections, landing-places, stations, buildings, platforms, stairways, elevators, telegraph and signal devices, or other requisite appliances upon the route or routes, and in the locations determined by them.”
“§ 36. Whenever the route or routes determined upon by said commissioners, coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose provided for by this act, provided that said corporation has not forfeited its charter, or failed to comply with the provisions thereof, requiring the construction of a road or roads within the time prescribed by its charter, such corporation shall have the like power to construct and operate such railway or railways, upon fulfillment of the requirements and conditions imposed by said commissioners as a corporation specially formed under this act; and the said commissioners may fix and determine the route or routes by which any elevated steam railway or railways now in actual operation, may connect with other steam railways or the depots thereof, or with steam ferries, upon fulfillment by such elevated steam railway company, so far as it relates to such connection, of such of the requirements and conditions imposed by said commissioners under section 4 of this act, as are necessary to be fulfilled in such cases, under section 18 of article 3 of the constitution of this State, and such connecting elevated railway, shall, in such case, possess all the powers conferred by section 26 of this act; and when any connecting route or routes shall be so designated, such elevated railway company may construct such connection, with all the rights, and with like effect, as though the same had been a part of the original route of such railway.”
“ § 40. This act shall not be construed to repeal, or in any manner to affect chapter 140 of the Laws of 1850, entitled ‘ An act to authorize the formation of railroad corporations, and to regulate the same,’ or the several acts amendatory thereof, or supplementary thereto. None of the provisions of this act shall apply to any railroad company, organized under any general or special law of this State, for the purpose of constructing or operating a steam railroad upon the surface of the ground, nor to the operation or management of any such railroad heretofore constructed.”
“§41. It shall not be lawful for any company organized under the provisions' of this act, or under any other act heretofore passed, to construct a steam railway upon St. Nicholas avenue, in the city of New York, or those streets or avenues in said city commonly known as boulevards, except to cross the same, under such regulations as shall be imposed by the commissioners provided for by this act, and every such company shall be bound by the restrictions and limitations as to its route, and as to its mode of construction, which "shall be established by the commissioners appointed under the acts from which its powers were derived, as far as such restrictions and limitations are consistent with the provisions of this act. The provisions of this section shall not be deemed to apply to any existing horse street railway heretofore authorized to be constructed.”

At the time of the passage of the act of 1875, defendants’ road was not in actual operation. After the passage of that act the defendant proceeded to erect along the route designated in the act of 1872, vertical posts in the middle of the streets and avenues, whereby to support its railway.

They claimed the right so to do, under powers granted by commissioners appointed under the rapid transit act of 1875.

Evarts, Southmayd & Choate, for plaintiff.

Porter, Lowrey & Soren, for defendant.

Plaintiff under its charter operated a surface horse car railroad through the streets in which defendant was erecting the posts, and, claiming that it suffered a damage peculiar to itself by the erection of such posts, brought this action for an injunction.

Sedgwick, J.

The learned counsel for the defendants maintained that they derived their power to build an elevated railway from the act of J nne 17, 1872, and the other acts which amend it, passed before the constitutional amendments of 1875 ; that they gained no new franchise to build a railway under the so-called Rapid Transit Act of June 18, 1875, but that this last act left the defendant’s right to construct a road untouched, and resulted only in imposing upon defendants the duty of altering the structure described in the original acts, in certain mechanical and engineering details, which did not alter or impair the substance of the franchise under the first grant.

If this be true, then section 41 of the Rapid Transit Act has an important bearing upon this action, and perhaps decides it. That section declares “it shall not be lawful for any company organized under the provisions of this act, or under any other act heretofore passed, to construct a steam railway, &c., and every such company shall be bound by the restrictions and limitations, as to its route and as to its mode of construction, which shall be established by the commissioners appointed under the act from which its powers were derived, as far as such restrictions and limitations are consistent with the provisions of this act.”

As the defendants were organized, and derived their powers to construct and operate a railway, under other acts than the Rapid Transit Act, they are bound by the restrictions and limitations as to mode of construction stated in those acts. Unless: First, such restrictions and limitations are not consistent with the provisions of the Rapid Transit Act; or, Second, unless the restrictions and limitations intended by the section are only such as had been specified by commissioners appointed under previous acts, and are not to be imposed in this case, inasmuch as the restrictions of the mode of construction are contained in the very body of the original acts, and are not established by commissioners under such acts.

As to the first, there is no provision of the Rapid Transit Act which is inconsistent with that part of the statutes which restrict the defendants to a particular mode of structure. May it be argued that such inconsistency may come into existence from a repugnancy between the directions of the original acts, and the requirements and conditions as to structure, that it is claimed' the commissioners under section 36 of the Rapid Transit Act, may impose upon the defendants to be fulfilled before they acquire a like power to operate the railway as a corporation specially formed % Not justly ; because the requirements to be imposed by the commissioners upon defendants are to be made after the passage of the law, form no part of the law, are not provisions of the law, and would never have the force of law in themselves, inasmuch as they would for their effect depend upon the voluntary acceptance of them as conditions by the defendant. The section, no doubt, meant to preserve, to some extent, the restrictions as to structure of the former acts. How could that be done if commissioners under the Rapid Transit Act had power to annul all restrictions ? or why attempt to restrict, if it were expedient and within the object of the legislature, that the commissioners under the Rapid Transit Act should finally determine the form of structure of existing corporations ? The commissioners have, at least, power to make requirements and conditions that would be consistent, and the section shows no sign of referring t© a contingent or possible inconsistency. A right view would seem to be, that this section, as a part of the act, with all other of its provisions, spoke to the commissioners and directed them with all others, to obey the section, and to preserve the restrictions of former acts. As to the route, which is in pari materia, the act gives the existing corporation new power only where the route chosen for the new corporations is the same as that of an old corporation.

As to the second, I cannot think that the section referred only to such restrictions and limitations that had been made by commissioners under former acts rather than by the words of the act. The commissioners would speak only by authority given to them as agents of the State. The statute itself was the source of authority. The clause, “which shall be established by the commissioners,” has an erroneous reference to future time, and the whole of it should be considered as not being in itself a legislative mandate, but an incorrect statement of fact as to the place where the restrictions and limitatidns are to be found. The important thing is that the restrictions have been made by the law. It is not admissible to suppose that an intricate form of words was adopted to lead citizens to think that the section was to be understood and obeyed, when it was intentionally nothing more than a puzzle with no articulate meaning.

From the construction given to section 41, it would follow that it was unlawful to use the middle of the streets for the purpose of defendant’s railway, and that such use was an incumbrance of the highway and a public nuisance which might be restrained by action, But there was little discussion at the trial as to the section, and I go to other aspects of the case.

We proceed to look to the constitution in its relation to defendant’s claim. The first section of article 8 of the constitution of 1846 was left untouched by the amendments of 1875. That section was: “Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes and in cases where, in the judgment of the Legislature, the object of the corporation cannot be attained under general laws.”

The amendment in 1875 of the constitution, in section 18 of article 3, directs that the legislature shall pass general laws providing for, among other enumerated cases, the case of granting the right to lay down railroad tracks. After this the legislature could not adjudge that special acts were necessary to make in-corporations for such purpose, and after 1874 no special act could be constitutionally passed creating a corporation, the object of which was the laying down of railroad tracks. This is referred to for the purpose of learning the policy of the constitution in those parts to which more specific attention will be given.

By section 18 of the amendment, in article 3, the legislature was forbidden to pass a private or local bill “ granting to any corporation, association or individual the right to lay down railroad tracks,” and was commanded, to “pass general laws providing” for such case, “but no law shall authorize the construction or operation of a railroad track except upon the condition that the consent of the owners of one half in value of property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway, &c., &c., be first obtained, &c., &c.” This last clause suggests, which it is perhaps unnecessary to express, that the constitution, by the very limited words “right to lay down railroad tracks,” refers to their use for the transportation of passengers in cars thereon, and to their relation to all those matters which are involved in the general phrase “the construction and operation of a railroad. ’ ’ The grant must come from a general law ; on the other hand it is invalid if it come from a private and not a public law.

The constitution meant to prevent in the future well-known evils that had arisen in the past. By it the sovereign power of the State cannot be parcelled out to individuals or private corporations by the legislature. Hence the legislature cannot give special privileges as favors or rewards. Ho one will seek special privileges or hold out inducements to grant them. The time and skill and thought of a legislature will not be absorbed by innumerable bills with particular or special objects. The people in different counties and towns need not watch through a session to be protected against injudicious acts, pushed by the representations or machinations of a few men, but all may know that the legislature can only pass laws for the wants of the whole people and all parts of the State.

A most important question is, what were the franchises the granting of which was the subject of regulation ? Of course, they were those which were possessed by the State, and might be disposed of or granted by the State.

They were not such rights as the citizen had and held without any grant from the State, The State alone had the power to incorporate natural persons. The specific value of the incorporation was that it substituted corporate responsibility in the stead of the responsibility of natural persons. The incorporation was made with reference to specific objects, but it was not a necessary characteristic of any of such objects, that itself should be a franehise to be derived from the State. In the present case the right to lay down railroad tracks is not a political franchise to be gained only from the State. An incorporation made with power simply to lay down railway tracks, for any kind of structure or motive power, would receive from the public the franchise only of incorporation. Like a natural person, it needs no public franchise in respect of the railway. It could lay and build where it pleased, if it bought the land, and did not infringe other rights of third persons, under the public laws.. Other powers must be given in connection with the building of the railroad to constitute franchises. The corporation must be empowered to act as agents of the State in acquiring land under the right of eminent domain, or must have power to use public highways. It must be, therefore, that the constitution, in the amendments before us, referred to these franchises lastly described, or to others of the same kind. Here we need have no other concern than with the franchise or power of using a public street for the defendant’s railroad, and, in proceeding, such franchise is the one ■we will deem to be guarded by the constitution.

The next questions are, did the Eapid Transit Act (if it intended to give power to the defendants to build their railway in its present form of structure upon the Sixth avenue) grant another and a different right to lay down railroad tracks (within the meaning of the constitution), from the right given in the acts which originally incorporated them, and then, was such other grant made by general law, or was it given by a private bill»

The learned counsel for the defendants claim here that the amended constitution of 1875 did not repeal the original charter of the defendants. Clearly it did not. The further claim is, that the amendments did not take from the legislature the right to alter, modify, or repeal the charter. It would also seem clear that they did not, with this exception: The legislature could not violate any of the amendments, and could not, by any alteration, modification, or repeal of a special charter, or any part of it, grant to the corporation a right to lay down railway tracks, which it did not have before. Here it is argued with very great ability, that the change of the structure required bv the commissioners under the Rapid Transit Act did not affect the substance of the franchise of the original charter, viz., to build an elevated railway to be operated on Gilbert’s plan, but were changes in engineering and mechanical details of the substructure, and were only modal; inasmuch as an elevated railway could be built in either way and be operated on Gilbert’s plan, and therefore no new franchise or right was given by the Rapid Transit Act to lay down railway tracks.

The consideration I have given to the nature of the franchise, protected by the constitution, has led me to believe that the defendants apply a wrong test to ascertain the constitutional character of the changes. If the laying of a track on any kind of structure, and the working of a railroad thereon, does not ask a franchise from the State, and no franchise is connected with these matters, until they ask a right to use a particular place for the situs of their railroad, viz., a public street, which must be got from the State, then the test is, do the changes which the Rapid Transit Act have required from the defendants, and which they have accepted, involve a right to use a street which is different from the right to use the street given by the original charter?

By all the rules of construction of legislative grants that I know, they confer no more of right on the grantee, and take no more from the people, than is described by the words of the grants. The power conferred is limited to the power described. Every inferred, much more every expressed, intent to limit or bound a franchise must be strictly observed. Each limitation is in a sense a subtraction from what else would have been the franchise.

In a case like this, of a right to use the street, the legislature had clear reason to limit the use of the street to a particular kind of structure. The general project was untried, and there was need for abundant caution in not only providing adequate means of carrying travelers, but, in as far as possible, preserv- , ing those uses of the street which, by experience, had been generally serviceable.

Section 3 of the act of June 17,1872, authorized and empowered defendants to make, construct, and maintain an elevated railway, to be operated by the plan known as “ Gilbert’s Improved Elevated Railway.” The proof in this case shows that by this plan the tracks were supported by arches, the bases of which rested on the curb on either side of the street. The fact that such was the plan is to be connected with the language of section 4, which is explicit, that “the said tubular ways and railways, the said corporation is hereby authorized and empowered to construct, maintain and operate, shall be substantially supported above the middle of the streets and avenues by iron arches which shall span the same from curb to curb, the bases of which shall not, when practicable, be more than sixty feet apart, nor the arches less than fifty feet from each other.” Is it not certain that the legislature meant that the corporation was not empowered to build or maintain any railways which were not supported by arches rising from curbs in streets which, like Sixth avenue, were sixty feet in width; that the supports above the middle of the street were to be such arches, and not vertical posts in the middle of the street, and that the bed of the street should not be at all. incumbered at spaces less than fifty feet apart, longitudinally % The legislature expressed its meaning in the form of a command. Could a corporation have any power or authority at all to violate such a command %

So far as these directions and limitations went, did they refer to matters in which the State as. such was alone interested, and alone entitled or bound to see enforced, as it could alone enforce a purely penal law, or amove from the possession of a franchise % We think not, for the following reasons, although others could be suggested.

In this act the legislature were devoting the public street to a particular use, which it was assumed it had the right to declare to be and to make a public use. In this regard, at least, the franchise was to make this particular use. Before the grant the public and individuals had certain definite rights in the street free from this particular use. This particular use carved into the rights of the public and individuals, but left to them all it did not take. There are not only a limited use described by the act, but, outside of it and not expressed in it, the remaining rights of third parties, which may be protected by any proceeding given by the law for the purpose.

Not looking at the arches simply as parts of an organic whole, nor adverting to the fact that a street may be put to a use by that part of a structure which is in the air above it, it is a fact to be seen and not merely inferred, that the street is put to a specific, definite, measurable use by placing the bases of arches upon and under the street surface at the curb. All not necessary, both as to space taken and relative place occupied, are-still reserved to the general public and to third persons, and if encroached upon or incumbered, there results a public nuisance. Neither party has power or authority to compel the other to submit to changes of the place in which their rights are. If there be a public nuisance from an unlawful incumbrance of the highway,. any individual that suffers damage peculiar to himself may have an action.

There is no necessity of denying that the legislature, after the constitutional amendments, had the right to modify the provisions of the defendant’s original charter so as to change the character of the structure or substructure, as to strength, form, materials, color or of the motive power, in so far as these changes did not effect, or result in, another use of the street.

I go now to examine the authority of the defendant to make the changes of structure, and this authority it claims under the Rapid Transit Act. For the purpose of this decision, attention will be confined to the supports of the track, as eliciting considerations that will determine the rights of the parties.

The defendants claim that the action of the commissioners, under the Rapid Transit Act, has empowered them to support their track by two rows of vertical posts in the roadway, each about two feet from the outside of plaintiff’s tracks, about twenty-one feet from each other, and about twenty feet from the curb. The posts are about thirty-five feet from each other longitudinally. Does this change result in the use of the street different from the use given by the original charter %

We have seen that, under the first acts, the right of the defendants to occupy the bed of the street was confined to a part of the street at the curb, and excluded the right to occupy the street at different places in the middle.

In the same way, the defendant, under the Rapid Transit Act, was confined to the middle of the street, and this not only excluded them from a right to places at the curb, because of the legal construction of its grant, but because it was made a condition of the defendant receiving anything under the Rapid Transit Act. Either use being lawful, as to it, the other was unlawful. They were not the same. They would not be the same if the defendants lawfully possessed a right to both.

Although it is not necessary, perhaps, we can go further and see that this difference indicated the different rights left in the public and third persons by the one or the other method of support. If the middle of the street be open from curb to curb, there is an unincumbered space sixty feet in width, the whole of which at any one point is the measure of the convenience and safety with which the street could be used. On the other hand, wherever the vertical posts' are set, and opposite and between them, the streets which can be used are narrowed to three in number of twenty feet each, and these posts occur every thirty-five feet. The lines of motion which travelers are at liberty to pursue are materially different in the two cases. I do not consider the more general results as to cleaning of the streets and other sanitary processes and conditions, or as to facilities given or taken for the action of the executive authority of the State and nation. Which use of the street is more expedient, when the general use has to be modified, is not to be decided by the court. It can only inquire if they be the same or not. The latter method may be far better for the special demand ; still the question remains, is the grant of the use justified by the constitution % It may be, that the prohibition as to grants implies that danger from special grants is to be found mainly when they would be sought as being beneficial to the public. I am, therefore, convinced that the defendants claim, under the Rapid Transit Act, a right to use the street different from the right limited by the original charter, and that a grant of this right is another and a different grant of the right to lay down railway tracks within the meaning of the constitution.

The next question is whether the grant claimed under the Rapid Transit Act is given by a general law, or is there a violation of the constitution in that respect ? The grant must be gained through a general law, or not at all.

It is not necessary to amplify the proposition, that if a law contains clauses which properly by themselves would make a general law, but has provisions which are not general in their nature, are not the particular consequences of the properly general clauses, and especially if they may go into full and perfect operation without the application of the general part, the law is not a general one as to these provisions. A law, to satisfy the constitution on this point, must be framed to present to all, the same right and opportunity to become enfranchised, and must not be so framed that some, being corporations or natural persons, have a right and opportunity either prior or superior to or in exclusion of others.

The constitution has reference to rights and opportunities offered by the law itself, and not to such actual results as depend upon the voluntary acts or omissions of individuals in claiming or neglecting to claim a right. The right and opportunity must be proffered to all in equal terms ; while in the nature of things some use the right, while those who do not are not excluded by any discrimination of the law against them.

We do not propose to decide whether, in all its aspects, the Rapid Transit Act violates the constitution, that requires a general law. It will be taken for granted that, in some respects, it is a general law. Its main scheme is that corporations shall become the grantees of the franchises; and we assume that it gives an equal right and opportunity to all to become the incorporators of the corporations to be formed. We pass by the question as to whether a law that may so operate that in the discretion of different sets of commissioners no grant, in any part of the State, may be given, or may be given in some parts and not in others, is a general law providing for the granting of the franchise.

The act provides that commissioners shall be appointed in each county or city, upon a petition of citizens being filed. Then the commissioners, first, within thirty days determine whether there is a necessity for a steam railway; second, within thirty further days they “fix and determine the route ox routes for such steam railway or railways ’ ’; third, within not more than thirty further days they decide upon the plan for the construction of the railway, the time within which it is to be built, the amount' of capital stock, the number of shares, &c. ; fourth, they prepare articles of association which are to embody all the matters theretofore determined by them, they open subscriptions, and take other steps which result in the formation of corporations who are to become grantees of the franchises. The franchises granted are the right to be incorporated, and the right to use streets for the purpose of the .railway, according to the particular plan determined.

The enforcement of these provisions could never result in investing the present defendants with the right they claim under the Eapid Transit Act, and they must rest upon the position that section 36, under which they claim, is a part of the general act, and, taken with the rest, general in its character. It may be urged, that that section gives to all existing corporations only the same right and opportunity to be invested with the franchise that is given to corporations to be formed, and that existing corporations are a part of those whose chances to gain the franchise are to be protected by a general law.

Concede this position, and pass by a fundamental consideration that is probably true under the amended constitution, that an incorporation can in no way demand from the legislature that its powers be enlarged, and omit to determine the effect of section 1 of article 8 of the constitution on this point, in forbidding special charters; ■ yet even then if existing corporations may demand, or if it may be valid, that a general law should provide for them with others in this matter, such law must give them and others equal rights or opportunities on equal terms. If, however, an exercise of the advantages given to existing corporations will determine, by the true construction of the law, that the law had not given to others any right at all to become grantees, then the equality is destroyed in favor of existing corporations. Such a law would be specially framed for the special advantage of existing corporations to the exclusion of others from the grants. Is there not to be found in such a law all the objections which rest upon a likelihood of the State suffering from those mischiefs which the constitution tried to extirpate %

Upon the argument it was substantially and properly conceded that the franchises of the defendant, under the original acts, would be repealed, if the general act, that is, the Rapid Transit Act, resulted in investing a corporation to be formed under it, with an inconsistent franchise. Granting that the act might have been so framed as not to repeal the defendant’s former franchise, 'the fact is, it was so framed that superior power and right might be given to another corporation to work a railroad upon the route, as it is called, to which the defendant, as an existing corporation, wras before entitled. In that case, the franchise of the defendant would be gone. Section 36 gives to the defendant, as an existing corporation, the following advantage. When the commissioners have fixed upon a route, which they think to be the best one for corporations to be formed under the act, if it is the same (we will say either in whole or in part), as the route that had been given by the legislature to an existing corporation, the latter “ shall have the like power to construct and operate such railway or railways upon fulfillment of the requirements and conditions imposed by said commissioners as a corporation specially formed under this act.” We do not give any attention to the construction of the act as to the nature of the requirements and conditions intended by the act, although that is an important subject. It is enough now to see whether the section (if it give the defendants the right to make the changes in structure under consideration) is, in its character, a general law.’ Upon the contingency of a coincidence happening, and the existing corporation fulfilling the conditions, it is certain that the ensuing provisions which would result in giving the route to a corporation to be formed, die, and are as if they never had been. This does not merely stay the operation of the general law so that it shall not repeal an existing charter. It takes away a right and opportunity to gain a franchise, and gives it to a corporation already formed. The result is, that as to the particular franchise, it is not general in its proffers to all on equal terms, in that it benefits a particular class of corporations at the expense of the rights of all others; and the defendant’s claim cannot be supported under the requirement that such a franchise shall be given by a general law.

On this subject, it should be further observed, that if the law intended to authorize the commissioners, under section 36, to impose, as a requirement and condition, something which is a franchise, “to lay railroad tracks ” in the meaning of the constitution, the section did not also give any general law or mode of obtaining it, otherwise than to place it within the bare discretion or judgment of the commissioners to bestow or withhold. Plainly the legislature could not use its discretion or judgment as to its granting the franchise in particular cases. But, under section 36 of the statute, the commissioners must proceed in each particular case. There is no authority in the legislature to give this power to commissioners which they had not themselves. Each time the commissioners grant a franchise, it is a special act, the same as a private bill.. It is the granting of a right ab origine,, and not the regulation of the enjoyment of a right already given.

In further illustration, it appears that section 36, so far as a grant under it to the defendant to construct as it intends is concerned, is complete in itself, and has no substantial connection with the other parts of the law. They gain, as they claim, the right, if the commissioners have settled upon a route for the corporation to be formed, which coincides with theirs, upon the fulfillment of certain conditions imposed by the commissioners. But thereupon no other part of the act, as to this particular route, could have vitality or operation. The section might have been passed by itself without a typographical correction, as it has no real connection with the other parts of the statute, and it might have directly enacted that if an existing corporation would build their road in a certain way,- with vertical supports in the middle of the street, and run so often and charge so much, they should have a right to use the streets for that purpose. It seems to be quite an immaterial incident to the proceeding which ends in the grant to the defendant that commissioners have ascertained that its route was one beneficial to the public in the course of finding what would be a proper route for future corporations.

I cannot think that such would be a general law, but, on the other hand, think that the law as it stands in section 36 is against the provision that no private law shall grant a right to lay down railway tracks.

If enacted by itself, it would have none of the attributes of a public law. It would difier from a law-passed for the benefit of a single private corporation in its enfranchising more than one such corporation. It would be the equivalent of several private bills under one title. If the constitution feared the efforts of individual persono or corporations, in the pursuit of public franchises to be granted in a private bill, did it not mean to prevent the united efforts of several in the same pursuit % The result is that if the Rapid Transit Act intended to give to the defendant, as it claims, the right to use the Sixth avenue by placing its tracks upon upright columns in the middle of the street, it is in that respect unconstitutional.

I have consulted among others, the following cases : Wynehamer v. People, 13 N. Y. 378; Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 Id. 113; Syracuse City Bank v. Davis, 16 Barb. 189 ; Warner v. People, 2 Denio, 372; Buffalo & N. Y. City R. Co. v. Dudley, 14 N. Y. 348; White v. Syracuse & Utica R. R. Co., 14 Barb. 559 ; Olcott v. Tioga R. R. Co., 20 N. Y. 210 ; People v. Allen, 42 Id. 379; People ex rel. City of Rochester v. Briggs, 50 Id. 533; Corning v. Green, 23 Barb. 34; Smith v. People, 47 N. Y. 331; Matter of Commissioners of Park, Albany, 52 Id. 137; People ex rel. &c. v. Albertson, 55 Id. 51; People ex rel. Schenectady Astronomical Observatory v. Allen, 42 Id. 404.

Upon the trial, I thought it was clear that the plaintiff suffered an injury peculiar to itself from the use of the street threatened by the defendants, which entitled it to maintain an action in its own behalf. The row of posts on either side is a limitation of the space which the plaintiff has under its charter a right to use for switches, turn-outs, &c., whenever they are required. Especially are these posts a special incumbrance upon the right to take off switches to its depot at Forty-third street.

The above views are but a part of the case, as it was presented at the trial. Many other objections were made, based upon the statutes and upon the constitution. A competent examination of these would consume more time than has already been taken, and-nothing would be gained towards determining practically the rights of the parties here. These objections were grave and important. The true construction of the act is open to argument. To sustain the defendant’s claim, if it be correct that a right to use vertical supports in the-middle of the street is a particular and new use of the street, then the defendants gain a franchise by accepting it as a condition imposed upon them of receiving the power specified in section 36, which is a franchise. But it is best not to go into other details. Such views as have been expressed seem to me to be correct, but I do not forget that they are against strong positions taken by the counsel for the defendant, strengthened by all that can be furnished by learning, by reasoning, and by the eloquence of rhetoric and conviction. An appellate court will correct any error that has been made.

On the facts, my opinion is, that at the time the acts incorporating defendant were passed, the actual plan of Dr. Gilbert, as then known, had dispensed with tubes for passenger traffic, to be moved by atmospheric pressure, and had substituted therefor the ordinary open railway tracks, not to rest in a tube, or its equivalent, and to be used by steam locomotives.

There should be judgment for plaintiff that defendant be enjoined, &c., with costs.

Note.—These amendments to the constitution of 1846 were adopted by the People, at the election held in the fall of 1874 (Laws of 1874, p. 936), but as they did not go into effect until January, 1875, they are referred to in the above opinion as the amendments of 1875.

       See note at end of case.


author: Freedman, J.

text:
    In the Matter of the Application of JOHN H. PLATT, as Assignee in Bankruptcy, &c., to sue HENRY L. PIERSON, Jr., a Receiver Appointed by this Court.

      Special Term,

      March, 1877.
    Per Freedman, J.

      ASSIGNEE IN BANKRUPTOT. RECEIVER IN STATE COURT.

    I. RECEIVER. ACTION AGAINST.
    1. Permission to bring must be obtained from the court appointing the receiver.
    3. Tribunal in which suit must be brought.
    («) Only in the court by which he was appointed.
    1. Unless circumstances render it advisable that the action should be brought in another court.
    1. This rests in the discretion of the court granting leave to sue.
    M ASSIGNEE IN BANKRUPTCY.
    1. Receiver, suit against bt such assignee.
    1. Above principles apply.

      (a) United States courts, leave to sue in, what not a reason for granting, but on the contrary, a reason for denying.
    1. The fact that the United States courts admiinister the law relating to the cause of action for which the suit is to he brought, differently from the courts of the State, by one of which the receiver was appointed, is a reason not for granting, but for denying leave to sue therein.

      (a) Especially where the jurisdiction of the United States courts is to be invoked, for the purpose of nullifying the conclusions as to which the appointing court has arrived.
    This was a motion to vacate an ex parte order obtained by an assignee in bankruptcy, giving him leave to sue a receiver appointed by this court,
   Freedman, J.

This court having undertaken to determine who is the proper party to distribute the estate assigned, pursuant to the laws of this State, by the debtors for the benefit of their creditors, and having by its receiver possession of the fund, and thus full jurisdiction over it, it is perfectly competent to decide all questions relating to its distribution.

As a general rule, leave will not be granted by this court to sue a receiver appointed by its authority in any other tribunal. It is only when special facts and circumstances are shown to exist, which render a departure from the regular course and practice of the court advisable, that such leave is given.

But in the present case, I fail to perceive that such special facts and circumstances exist. On the contrary, strong reasons have been advanced why such leave should be withheld.

Assignments like the one in question have been held by the highest court in this State to be perfectly valid and unassailable under the bankrupt act, while the federal courts in this district have reached a different-conclusion. The power to review these decisions, which is vested in the supreme court of the United States, does not abate the authority of the court of last resort in the State over its inferior tribunals, and hence, until this' conflict is finally determined by the supreme court of the United States, L must abide by the law as settled in this State.

This being so, this court should not grant leave to have its own officer sued in a tribunal which is known to administer the law in a way different from that which this court is bound-to observe, and whose jurisdiction is invoked for the purpose of nullifying the conclusions at which this court has arrived.

Nor does the use which the assignee in bankruptcy made of the ex parte order granting such leave, entitle him to a favorable consideration, for he did not sue the receiver as an officer lawfully appointed by this court, and having the lawful custody of the fund, but as an individual having in his possession certain property, the title to which is alleged to be in such assignee. If that were the true position of affairs, the leave of this court is wholly unnecessary.

The order heretofore granted ex parte should be vacated and set aside, but the assignee in bankruptcy may have-leave to bring such action in this court as he may be advised.


text:
    JAMES E. BYRNE v. MARY MULLIGAN.

      Special Term,

    March, 1877.
    Per Freedman, J.
    I. PERPETUATION OF TESTIMONY. PRACTICE.
    1. Affidavit to procure order for. Requisites of.
    (a) It must set forth facts and, circumstances from which the judge can satisfy himself as to the materiality of the witness.
    1. An affidavit, in the words of the statute, is not sufficient.
    Motion to vacate an order for the examination of a witness under proceedings to perpetuate testimony.
   Freedman, J.

The provisions of article 1, title 3, chapter 7, part III. of the Revised Statutes, entitled “ Of taking conditionally the testimony of witnesses within this State,” do not apply to article 5 of the same title and chapter entitled “ Of proceedings to perpetuate testimony. ’ ’ The latter grants the privilege of examination without exacting any of the conditions as to age, infirmity, or non-residence required by article 1. But it requires due proof to be made by affida vlt that, among other things, the testimony of the witness is material and necessary to the prosecution or defense. Dm proof means legal proof, and legal proof consists of facts and circumstances from which the judge can satisfy his conscience as to the materiality of the witness. Swearing in the words of the statute, is swearing to a mere conclusion, and therefore is not sufficient. If the necessary facts are shown, the granting of the order is a matter of right, but otherwise not.

The question of good or bad faith enters into every application for the perpetuation of testimony, and without a statement of facts showing materiality, the court would be powerless to prevent the abuse of the letter of the law in individual cases.

The affidavit upon which the order was granted contains no facts from which the materiality of the witness appears or can be inferred, and for such defect the order should be vacated.


text:
    DAVID H. KING, Jr. v. DAVID H. KING.

      Special Term,

    March, 1877.
    Before Freedman, J.
    life tenant.
    1. Receiver of rents and profits over, when appointed.
    (<$) Mdl-are to appropriate the rents and profits to keep down taxes calls for the appointment of a receiver at the instance of the remainder-man.
    Motion by plaintiff, a remainder-man, for the appointment of a receiver, on the ground that the defendant, a life tenant, had failed and was neglecting to apply the rents and profits to the keeping down of* taxes.
   Freedman, J.

A tenant for life is bound to pay the taxes and the interest upon the incumbrances, out of the rents received by him from the demised premises, whilst the owner of the fee (the remainder-man) must pay the assessments thereon, and also the principal of the incumbrances. Assessments are imposed upon the remainder-man because, although they are special taxes, they are deemed to be levied for benefit accrued to the estate in consequence of a public improvement.

Thus, equity apportions the burdens upon the land between the tenant for life, who has the present enjoyment of the property, and the remainder-man, whose right of enjoyment is postponed until the death of the life-tenant (Carnes v. Chaubert, 3 Edw. Ch. 312; Cogswill v. Cogswill, 2 Id. 231; Bloodgood v. Bloodgood, 4 Paige, 574; Pelk v. Sherwood, 56 N. Y. 615; Fleet v. Dorland, 11 How. Pr. 489).

The duty resting upon the tenant for life to keep down the taxes does not rest upon the theory that there ought to be an equitable division of the charges upon the land between the several owners of the fee of the land. He is bound to pay them, even if he does not own any portion of the fee.

Thus, a tenant by the courtesy, who is not interested in the fee, must keep down the taxes.

So if a lot of land is assigned to a widow for her dower, although she has only the present enjoyment of the land, yet she must pay the taxes.

Nor does this obligation on the part of the tenant for life rest in covenant, express or implied, but it is an incident to the estate, and it must be discharged, even if it exhausts the whole of the rents (4 Kent's Com. 74, 82).

Life is uncertain, and if the life-tenant were permitted to appropriate to his own use the rents for a series of years, the result would be that at his death the entire burden of the taxes would be thrown upon the remainder-man.

To prevent this manifest injustice, whenever it is made apparent that the life-tenant is neglecting his duty in this respect, a court of equity will interfere and appoint a receiver to collect the rents and apply them in such manner as shall be just and fair as between the life-tenant and the remainder-man (Carnes v. Chaubert, 3 Edw. Ch. 312).

Upon the papers submitted on this motion a clear case has been made out within the principles and authorities referred to, for the appointment of a receiver of the rents and profits of the premises of which Mary King died seized. This includes the premises described as Nos. 182 and 184 Madison street, and 21 Pell street, but does not include 101 Monroe street.

For the purposes of this motion the taxes accrued prior to the death of Mary King are to be treated as incumbrances on the estate, and for the non-payment of such as were imposed since that time the defendant must be held responsible. But suitable provision should be made for the speedy payment of all of them.

Plaintiff’s motion for the appointment of a receiver is granted. If the parties cannot agree as to the form of the order to be entered, they may appear before me and be heard as to its settlement.


text:
    JOHN D. SULLIVAN v. MARY ANN SULLIVAN.

      Special Term,

      March, 1877.
    Before Freedman, J.
    DIVORCE AND NULLITY OF MARRIAGE CONTRACT.
    1. Issue of fact joined in, how disposed of.

      (a) In three ways only.
    1. By trial by jury.
    2. By trial by the court.
    3. By trial by a referee under an order to hear and determine.

    1. It cannot be disposed of by an order of reference TO TAKE PROOFS, AND REPORT THE SAME WITH THE
    referee’s opinion.
    (a) The court can take no action upon a report made under such order. The evidence taken may, however, Try consent of parties, be used upon a trial by the court, regularly noticed and brought on, in the nature of conditional evidence taken before trial.
    2. Judgment, on report of referee on issues.

      (а) Of course; cannot be so entered.
    (б) Application to the court; can only be obtained on such application.
    1. Papers to he furnished on application.

    1. The pleadings, order of reference, report of the referee, and the evidence must be submitted.
    1. The court exercises a supervisory power, and may, in its sound judicial discretion, withhold judgment of divorce, nullity, or separation, although the issues are found in favor of the applicant.
    Motion by plaintiff for confirmation of report of' referee, and for judgment of divorce thereon.
   Freedman, J.

There are several reasons why the motion should not prevail.

No proof appears to have ever been made as to the service of the summons and complaint as required by Rule 87. Notice of appearance and retainer is not sufficient. The referee, in his report as originally made, was of the opinion that the proofs taken by him established that the defendant did commit adultery with one Robert Warren, as alleged in the complaint, and with him only. The testimony upon this point was not satisfactory to the court, for the case was referred back to the referee to take further proof of defendant’s adultery. Further proof was taken, and the same consists of the confession of a man named Nicholas Duffy, to the effect that he had sexual intercourse with the defendant. But the report does not show, nor does it appear anywhere, that such further proof, which confessedly was taken at a time and place at which the , defendant was neither present in person nor represented by counsel, was regularly taken on notice to the defendant, nor does the referee express an opinion as to its credibility.

The most serious objection, however, is that the whole reference was irregular.

The defendant appeared in the action. By her answer she denied each and every allegation contained in the complaint, except the allegation of marriage. The issue thus joined must be disposed of in some way authorized by the law. It can be disposed of only by a trial, and there are but three modes of trial, viz.:

1. By jury;

2. By the court; and,

3. By a referee.

It is evident that the parties meant to have a trial before a referee, and this they could have had, if they had procured the proper order for that purpose, for section 270 of the Code expressly provides that “ all or any of the issues of the action, whether of fact or of law, or both, may be referred upon the written consent of the parties.” But instead of procuring an order directing the referee to hear and determine the issues, they had an order entered requiring him simply to take proof of all the material facts set forth in the pleadings, and to report the same to the court, with his opinion thereon.

This order conferred no power to try. Though the office of a referee under the Cod.e has been greatly varied and enlarged from that which was held under the former law and practice, and though in a number of cases—and in all, by consent of parties and court— he may become vested with the jurisdiction of a judge, so that his decision in a given case is equivalent to the judgment of the court at special term, and only reviewable in the same manner, it must be remembered that after all he is but the creature of the statute and an order, and as such, possesses no greater jurisdiction than is delegated to him by the order. Authority is conferred upon him by a special grant for the purposes of each particular case. Unless the order of reference empowers him to hear and determine the issues, he has no such power. And no such authority having been conferred in this case, there was no trial of the issues.

On the other hand, there has been no trial by the court, and to confirm the report and award judgment thereon on a mere motion, would amount substantially to a trial of the issues by the court upon affidavits.

The mistake committed herein is of such frequent occurrence, that I deem it advisable to point out, • somewhat in detail, the law and the rules and practice of the court, which govern references for the disposition of the issues in actions for divorce on the ground of adultery.

I have already shown that section 270 of the Code gives to parties an absolute right to a reference of the issues, provided they agree in writing to that effect. Section 272 provides that the trial by referees shall be conducted in the same manner, and on similar notice, as a trial by the court, and that the report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.

Row if an action for divorce were an ordinary action at law or in equity, affecting only private interests, no order to confirm the report would be necessary, and judgment could be entered upon it without application to the court, as provided by section 272.

But there is a broad distinction between actions for divorce and all other actions which may be brought for the enforcement of a mere private right.

In actions for divorce, the court has no inherent power to decree a dissolution of the marriage contract. Reither the common law courts, nor the court of chancery, in England, possessed it. The jurisdiction in relation to marriage and divorce was confined, until very recently, to the ecclesiastical courts ; although Parliament occasionally granted divorces dissolving the marriage contract for adultery. Whatever power, therefore, the court possesses, is given by statute. It can exercise no power on the subject of divorce, except what is expressly specified in the statute (Peuguet v. Phelps, 48 Barb. 566).

The policy of the statute, as shown by Lamont, J., in Blott v. Rider, 47 How. Pr. 90, is founded in the broad distinction which exists between divorce causes and all other subjects of mere private litigation. Society is interested in contracts of marriage. It is an inseparable incident in our civilization, to the status of marriage, that it cannot be dissolved at the will of the parties. It is not a contract, in the full common law sense of the term, but a civil institution established for great public objects. Rot only the parties, but the public, have an interest in marriage and its dissolution, and growing out of this two-fold relation we have the doctrine running through all the matrimonial suits, and bringing into subserviency all other laws on the subject, that the proceeding—though upon its face a controversy between the parties of record only—is, in fact, a triangular suit, sui generis, the government or public occupying the position of a third party without counsel, it being the duty of the court to protect its interests. From these principles it follows that no decree of nullity, or of divorce from bed and board, or from the bonds of matrimony, can be entered by the court upon the mere consent of the parties of record, because they cannot bind the public. There must be a complaint in due form for a cause authorized by law, sustained by due proof. A default does not, as in other suits, supersede the necessity of proof, or lighten the burden of the plaintiff in establishing the allegations.

In recognition of these principles the statute prescribes the cases in which the court may decree a divorce and dissolve the marriage for adultery, but, at the same time, leaves it in every case to the discretion of the court to do so. And though the fact of adultery be clearly proven, the court is specifically authorized to deny a divorce in the following cases :

1. Where the offense shall appear to have been committed by the procurement, or with the connivance, of the complainant.

2. Where the offense charged shall have been forgiven by the injured party, and such forgiveness be proved by express proof, or by the voluntary cohabitation of the parties with the knowledge of the fact.

3. Where there shall have been no express forgiveness and no voluntary cohabitation of the párties, but the suit shall not have been brought within five years after the discovery by the complainant of the offense charged.

4. Where it shall be proved that the complainant has also been guilty of adultery, under such circumstances as would have entitled the defendant, if innocent, to a divorce.

Here, then, is the court as the official guardian of the public interests with a duty pointed out by statute. The Code has neither enlarged nor diminished the jurisdiction which the court previously possessed (§ 10) and section 469 expressly saves the old rules and practice of the courts, so far as they are not inconsistent with the provisions of the act, subject to the power of the respective courts to relax, modify or alter the same.

In pursuance of the powers thus conferred and of the requirements of another statute directing the enactment of rules of practice, the judges of the courts of record in this State, in convention assembled, established, among other rules, certain rules for the regulation of the practice in divorce cases (Rules 23, 24, 87 to 92).

These rules, among other things not necessary to be mentioned, provide against judgments by default, for full and detailed proof of the service of the summons and complaint, for the insertion in the complaint of the proper allegations negativing the existence of the opuses, for any one of which the court is specifically authorized by the statute to withhold a decree notwithstanding the fact of defendant’s adultery, and the examination of the complainant with reference to them, and for the ascertainment of all the material facts constituting the offense charged.

They also provide that in no case shall a reference be ordered to a referee nominated by either party, nor to a referee agreed upon by the' parties, nor without proof by affidavit conformably to rules 23 and 24 of the service of the summons and complaint, and that notice of appearance and retainer shall not be sufficient. And it may be well to point out out here, that the power to appoint a referee in tMs class of cases, notwithstanding all the parties in the action object to him, is expressly conferred upon the court by section 273 of the Code.

Finally, rule 92 provides that no judgment in an action for divorce shall be entered except upon the special direction of the court.

These rules, says Lamont, J., in Blott v. Rider, above referred to, are tantamount to a declaration by all the judges that the course so directed is necessary to prevent a failure of justice.

Although, therefore, the issues in an action for divorce may be tried pursuant to sections 2,70, 272 and 273 of the Code by a referee appointed by the court for that purpose, his report is not sufficient authority for an entry of judgment thereon by the clerk. The report, containing the findings of fact and conclusions of law of the referee, must be brought before the court, together with the evidence (Blott v. Rider, 47 How. 90).

But, on the other hand, rule 92 does not change the requirements of the Code, that the reference of the issues shall be for the purpose of hearing and determining the same, and that the trial before the referee shall be conducted in the same manner as a trial by the court. The rule cannot abrogate the statute, nor was it ever intended that it should have that effect. The granting of a decree of divorce being discretionary with the court, the court, under rule 92, simply exercises a supervisory power over trials by referees. As a part of the system inaugurated by the constitution of 1846, the former practice in equity suits, by which evidence was taken before an examiner, and not in the presence of the tribunal deciding the issues, was done away with (Const. of 1846, art. 6, § 10); and it is only in cases where no issue has been joined, or where some interlocutory question is involved, that a reference to take and report evidence is now allowable (Code, § 271, 246).

Moreover, in the following cases, it was expressly decided that a reference in an action for divorce, after issue joined, to take the evidence and report the same, is irregular, though both parties appeared before the referee (Diddell v. Diddell, 3 Abb. 170; Merrill v. Merrill, 11 Abb. N. S. 74 ; Waterman v. Waterman, 37 How. 36).

In Bihin v. Bihin (17 Abb. 19), which was an action for a limited divorce, and had been referred to a referee to hear and determine the same, the general term of the supreme court of the second district went even so far as to hold that in such case judgment can be entered upon the report of the referee without any application to the court. But in that case the court clearly overlooked the rule.

There is but one way that I can see, in which evidence erroneously taken, after issue, by a referee pursuant to an order to that effect, can be used in an action for divorce; and that is, that by consent of parties, it may be read upon a subsequent trial had before the court, and brought on on regular notice and in the usual way. In such case it may be treated as, and it will have the force of, a conditional examination of witnesses before trial. But this course must be agreed to by the parties, and thereupon the court must try the issues, and make its own findings of fact, and draw its own conclusions of law therefrom.

As the case stands at present, I have no alternative but to deny plaintiff’s motion for confirmation of the report, and for judgment thereon.


text:
    GEORGE J. CLAN RANALD v. JOHN A. WYCKOFF.

      Special Term,

      March, 1877.
    Before Freedman, J.
    I. RECEIVER IN SUPPLEMENTARY PROCEEDINGS—POWERS OF.
    1. Assignments and conveyances to, by judgment debtor,
    COMPELLED.

      (a) On motion the court may compel the judgment debtor to execute and deliver to the receiver assignments and conveyances of his real and personal property, and of specific portions thereof, whether the same is situate within or without this State.
    2. Power to so compel extends to compelling an assignment of Letters Patent.
    II. PATENTS.
    1. Assignment of, compelled.

      See supra.

    This was a motion made by a receiver appointed in supplementary proceedings had on a judgment rendered in above action, to compel an assignment to him of letters patent held by the judgment debtor.
   Freedman, J.

The judgment debtor insists that letters patent are personal property, and that neither the court, nor any judge thereof, has jurisdiction to order an assignment of personal property.

In Porter v. Williams (5 How. Pr. 441), and Bostwick v. Menck (40 N. Y. 383), it was simply decided that an assignment to a receiver appointed in supplementary proceedings under the Code is not necessary to pass the title of the judgment debtor to personal-property, but that the legal title to such property becomes vested in the receiver by virtue of his appointment. The question of power to order an assignment, in case of necessity, was not considered.

In the cases of Ten Broeck v. Sloo (13 How. Pr. 28), and Ball v. Groodenough (37 Id. 479), it is true, it was said that such an assignment cannot be compelled. But in neither case was the question before the court, and hence the remark is obiter.

In Ten Broeck v. Sloo a receiver was appointed of the debtor’s annuity and of his rights under a certain contract in process of enforcement by suit, and the debtor moved to vacate the order of appointment on the ground that it was not a case for the appointment of a receiver, which motion was denied.

In Ball v. Groodenough, the defendant moved to vacate the order appointing a receiver, on the sole ground that 'it was not made by the same judge who had granted the original order for the examination of the judgment debtor, and the motion was granted. This decision is erroneous, even as far as it goes, for section 2 of chapter 276 of Laws of 1840, which is applicable to the court in which that case arose, expressly provides as follows: “ Section 2. Whenever any proceeding shall be commenced by or before any judge of the said court, by virtue of any statute of this State, the same may be continued by or before any other judge of said court.”

The only case which actually decides that an assignment of personal property cannot be compelled is People ex rel. Williams v. Hulbert (5 How. 446), which is also reported in 1 Code R. N. S. 75, and 9 N. Y. Leg. Obs. 245. It arose in the year 1851. No authority is cited for the proposition laid down, and the court bases its decision solely on the ground that the Code makes no provision for an assignment. For this reason it was held that a county judge, being an officer of limited jurisdiction, possessed no authority to order an assignment of personal property, though an assignment under seal would be necessary to transfer the title to real estate to the receiver, and though the supreme court, by virtue of its original and inherent power and authority, and especially since the accession of equity powers and jurisdiction, might order and compel an assignment of personal property without any statutory provisions.

Since that decision the court of appeals has held, in Porter v. Williams (5 Seld. 142), that since the Code the order of appointment of a receiver has the like effect upon the debtor’s real estate as upon his personal estate, and that the whole property of the judgment debtor situate within the State becomes, by force of the order, vested in the receiver as soon as his appointment is completed. This is now the settled law of this State; and since the amendment of section 298 of the Code, passed in 1873, it is only necessary, in order to vest the title of the judgment debtor to real property in the receiver, that a certified copy of the order of his appointment shall be filed and recorded in the office of the clerk of the county in which such real estate is situated, and also in the office of the clerk of the county in which the judgment debtor resides. In the subsequent case of Fenner v. Sanborn (37 Barb. 610) the supreme court (Erie general term, May 12, 1862) came to the conclusion that the Code confers ample power, even upon a county judge, to compel a judgment debtor to apply his property to the payment of a judgment against him, and, if necessary, to execute a conveyance thereof, whether it be within or without the State, in accordance with the practice existing at the time of the passage of the Code. This decision must be deemed to overrule the prior decision of the same court in The People v. Hulburt, above referred to, upon the point now under consideration. Its reasoning applies alike to real and personal property, and hence includes letters patent. A patent is a peculiar species of personal property created by statutes of the United States, over which State courts have no direct control.

The only way in which a title to a patent can vest, is by an instrument in writing, so that it can be recorded (Potter v. Holland, 7 Blatchf. 206). And under the patent laws of the United States, no patent, or any interest in a patent, can be assigned except by an instrument in writing. In case of an assignment, the thing to be assigned is not the mere parchment, but the monopoly conferred, and the right of property created by it.

The same considerations which apply to real estate situated in other States, apply with almost equal force to letters patent, and as this court possesses not only all the authority specifically conferred by the sections of the Code relating to proceedings supplementary to execution, but also the same inherent equity powers and jurisdiction which are possessed by the supreme court for that purpose, the power to compel the judgment debtor to execute and deliver to the receiver an assignment of his interest in the letters patent in question, seems to be ample.

I am also of the opinion that a proper case has been made out for the exercise of the power, for it is no answer to the application that such interest is not of great value at the present time.