author: Ruger, Ch. J.

text:
    John Fischer, Appellant, v. George F. Langbein et al., Respondents.
    Where a court, having j urisdiction of the subject-matter and the parties, is called upon to adjudicate upon a doubtful question of law, or determine as to inferences to be drawn from circumstances reasonably susceptible of different interpretations and calling for the exercise of the judicial function, its decision thereon does not render an order or process based upon it void, although afterward vacated or set aside as erroneous, or subject the party procuring it to an action for damages.

      It seems where the jurisdiction of the cohrt is made to depend upon the existence of some fact of which there is no proof, it has no authority to act in the premises ; and if it, nevertheless, proceeds, all of its acts are void and afford no justification to the party instituting the proceedings, or to an attorney who causes process to be issued in such proceedings.
    In the case of void process, no preliminary proceeding is necessary to vacate or set it aside as a condition to the maintenance of an action.
    Process, however, which the court has general jurisdiction to award, but which is irregular, by reason of the non-performance by the party of some preliminary requirement, or the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court before an action can be maintained/ for damages occasioned by its enforcement.
    In all cases where the court has acquired jurisdiction in an action or proceeding, its order or judgment therein is valid and enforceable and affords protection to all persons acting under it, although it may be afterward set aside or reversed as erroneous.
    The power of the court to entertain jurisdiction of an action .or proceeding does not depend upon the existence of a substantial cause of action, but upon the performance by the party of the prerequisites authorizing it to determine whether one exists or not.
    In an action brought by plaintiff to dissolve an unincorporated association, an injunction was applied for by him to prevent a disposition of its funds. Upon the hearing, a reference was granted to determine the truth of certain averments made by plaintiff, a provision being inserted in the order, with his consent, that if he failed to substantiate his claim he should pay the referee’s fees. Upon papers showing that the referee found against plaintiff, but that he, after due notice, neglected to take up the report or pay the referee’s fees, an order to show cause was granted requiring plaintiff to pay said fees within three days, or to show cause why he should not be committed for contempt in refusing to obey the order of the court. On return of the order to show cause, the court found plaintiff guilty of the offense charged, and ordered that a commitment issue, which was done, and plaintiff was committed to jail. In these proceedings, the defendants here acted as the attorneys for the defendant in that action. The order was subsequently reversed by this court, it holding that no contempt had been committed. {Fischer v. Raab, 81 N. Y. 285.) Held, that an action for false imprisonment was not maintainable; that the court granting the order concededly had jurisdiction of the parties and the subject-matter and authority to determine as to whether or not a contempt had been committed, and its order, although erroneous, was a protection to defendants.
    Also held, that defendants did not make themselves liable in such an action because of their refusal to consent to plaintiff’s discharge after an alleged compliance by him with the terms of the commitment,or for appearing and opposing a motion for his discharge, all of which occurred before it was finally determined that plaintiff was not guilty of contempt, and it appearing that the motion for a discharge was denied.
    It was claimed that the commitment was void, because it did not contain a statement that the disobedience referred to as the contempt had defeated, impaired, impeded or prejudiced some right of the defendants in the former action. The commitment, the order and the affidavit upon which it was founded stated in detail the proceedings which it was claimed the disobedience affected. Held, that this was a full compliance with the requirements of the rule in respect to the contents of a commitment.
    (Submitted May 31, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made August Y, 1883, which affirmed a judgment in favor of defendants, entered upon an order dismissing the complaint on trial.
    This was an action for false imprisonment.
    Defendants were attorneys for the defendants in the action and proceedings hereinafter described, and the alleged cause of action was based upon their participation as such attorneys in said proceedings.
    Plaintiff was a member of an unincorporated association and commenced an action against the individual members of the association to dissolve it, in which motion he applied for an injunction to restrain the disposition of its funds. Upon such application he was met by the affidavits of forty-two members of the society, represented by the defendant, J. C. Julius Langbein, as attorney of record. The plaintiff, through his counsel, thereupon charged that these members who had made affidavits, being Germans and unacquainted with the English language, ■were misled in signing.and swearing to their affidavits, and it was agreed that a reference should be had, and that the truth or falsity of his charge should determine whether he should or should not pay the referee’s fees. If the forty-two members, or a majority of them, swore that they made the statement which appeared in the affidavit, the plaintiff was to pay the fees. An order of reference containing that provision in substance was thereupon entered by consent. The referee found in favor of the defendants, Due notice was given plaintiff that his report was ready for delivery. The plaintiff, however, neglected to take it up; whereupon, upon application by the defendants’ attorneys, and upon an affidavit showing these facts, an order was made requiring the plaintiff to pay to the referee his fees within three days, or show cause why he should not be committed, and the injunction vacated, and the motion for injunction and the appointment of a receiver denied, and his proceedings stayed until such fees were paid. The plaintiff, was heard upon the return of the order to show cause; the court determined that a contempt had been committed and directed that a commitment should issue, which was accordingly done. The General Term reversed the order of commitment, with this condition, “ we make it part of the terms of reversal that the plaintiff shall stipulate not to bring any action on account of his imprisonment. This stipulation must be handed up with the proposed order of reversal.” The stipulation was not given, and the court affirmed the order. • The plaintiff then appealed to the Court of Appeals,- where the order was reversed. (Fischer v. Raab, 81 ST. Y. 238.)

      Samuel Hand for appellant.
    The order of December 4, 1878, was void on its face because it did not adjudicate the plaintiff guilty of any act which amounted to a contempt of court. (Albany City Bk. v. Schermerhorn, 9 Paige, 372; People v. Rogers, 2 id. 103; People v. Nevins, 1 Hill, 155,163; Green v. Elgie, 5 Adol. & El. [N. S.] 99 ; S. C., 48 .E. C. L. 97; Clark v. Binninger, 75 N. Y. 35, 344, 357; Fischer v. Raab, 81 id. 135 ; 2 R. S. 534, § 20; Code, § 2281; In re Townshend, 6 Thomp. & Cook, 227; In re McFeele, 2 Redf. 541.) Such an order could not protect the parties who procured it. (Comfort v. Fidton, 13 Abb. Pr. 276; Curry v. Pringle, 11 Johns. 444; Vredenburgh v. Hendrick, 17 Barb. 179 ; Lansing v. Case, 4 N. Y. Leg. Obs. 221; Clarke v. May, 2 Gray, 410; Warner v. Perry, 14 Hun, 337; Rutherford v. Holmes, 66 N. Y. 368; Bullymore v. Cooper, 46 id. 236 ; Leehrs v. Connors, 13 Abb. 17. C. 88; People v. Bd. of Police, 6 Abb. Pr. 162; Wortman v. Wortman, 17 id. 66; Blythe v. Tompkins, 2 id. 468 ; Patrick v. Solinger, 9 Daly, 149; Savacool v. Boughton, 5 Wend. 172; Davenport v. Dondy, 3 Abb. Pr. 409 ; Vredenburgh v. Hendricks, 18 Barb. 179.) The Court of Common Pleas had not jurisdiction over the plaintiff to adjudge him guilty of contempt of court. (Bullymore v. Cooper, 46 N. Y. 236, 241.) The court being without jurisdiction, the proceedings are void, and the defendants, as the promoters of the imprisonment under the void process, are liable. (Elliott v. Pierson, 1 Pet. 340; Lessees of Hickey v. Stewart, 2 id. 750; Chemung Can. Bk. v. Judson, 8 N. Y. 254; Palmer v. Foley, 71 id. 109; Miller v. Adams, 25 id. 409; v. Bach, 87 id. 56, 60.) The commitment did not authorize the sheriff to discharge plaintiff upon production of the receipt signed by the referee. (Deyo v. Van Valkenburgh, 5 Hill, 242.) The defendants are liable for any injury caused by their negligent mistake. (MacDonnell v. Buff urn, 81 How. Pr. 154; Houghton v. Swarthout, 1 Denio, 589; Tompkins v. Sands, 8 Wend. 462.) Upon the discovery of the mistake in the com.mitment the defendants were bound to procure its correction. (Doyle v. Russell, 30 Barb. 300.)

      George F. Langbein, J. C. Julius Langbein & Jesse K.

      Furlong for respondents The order and warrant of commitment were neither irregular, nor void, but were erroneous process. (Geib v. Topping, 83 N. Y. 46, 47.) If power to determine practically a given action, controversy or question presented does not exist with reference to any particular case, its determination by the court is an absolute nullity. (1 Pomeroy on Eq. Jur. Ill, § 129; Hunt v. Hunt, 72 N. Y. 217, 228, 229, 230.) Jurisdiction may exist, although the judgment be erroneous. (Staples v. Fairchild, 3 N. Y. 41; Potter v. Purdy, 29 id. 106 ; Roderigas v. East R. S. Inst., 63 id. 460.) The distinction exists between a lack of power or want of jurisdiction in the court, a wrongful and a defective exercise of the power. In the first instance all acts of a court not having jurisdiction or power are void, in the latter only voidable. The second is wrong and must be reversed on error. The third is irregular and must be corrected on error. (Wait on Fraud. Conv. and Cred. Bills, 553, §§ 420, 421; Gray v. Bowles, 13 Rep. 179 ; Bradley v. Fisher, 13 Wall. 351, 352; Tollman v. McCarthy, 11 Wis. 406; Ex parte Watkins, 3 Peters, 202; Skinnion v. Kelly, 18 N. Y. 355 ; Miller v. Brinkerhoff, 4 Denio, 118 ; Van Alstyne v. Erwin, 1 Kern. 331; Simpson v. Hornbeck, 3 Lans. 55 ; Day v. Bach, 87 N. Y. 61.) The right to inquire into the jurisdiction of another court in a collateral action is confined to the question of authority, and it does not extend to the question whether or not the court erred in the exercise of lawful authority to act. (Cooper v. Reynolds, 10 Wall. 308 ; Bradley v. Fisher, 13 id. 351;) Error of the court in adjudging a party entitled to process does not make the party liable for acts done under the erroneous process. (Addison on Torts [4th Eng. ed., 1880], 781, 720, 757, 799, 810; Cohen v. Morgan, 6 D. & R. R. 8, 9; Carratt v. Morley, 1 Q. B. 18, 28; Cooper v. Harding, 7 id. 639 ; Blythe v. Tompkins, 2 Abb. 472; Williams v. Smith, 14 C. B. [N. S.] 596, 622; Daniels v. Fielding, 16 M. & W. 200; Smith v. Sidney, L. R., 5 Q. B. 203 ; landt v. Hilts, 19 Barb. 283, 288 ; Stanton v. Schell, 3 Sandf. 328; Simpson v. Hornbeck, 3 Lans. 53; Cory v. Long, 12 Abb. Pr. [N. S.] .432; Miller v. Adams, 52 N. Y. 412; Palmer v. Foley, 71 id. 109 ; Bay v. Bach, 87 id. 56, 62; Marks v. Townsend, 97 id. 590, 596.) The “warrant-’ of commitment was legal and regular. FTo cause of action for damages in this respect, either, was alleged, in, or made out by the complaint, or the evidence. (Costar v. Wilson, 3 M. & W. 411; Green v. Elgie, 5 Ad. & EL [N. S.] 113 ; Wait on Fraud. Con., etc., 562, § 426; Williams v. Smith, 14 C. B. [U. S.] 596 ; Prentice v. Harrison, 4 Q. B. 852; D. & Merv. 50; S. C., 4 Ad. & EL [N. S.] 852, 856; Smith v. Sidney, L. R., 5 Q. B. 203.) Before an action can be brought on the ground that the process was irregular the party must apply to the court and have it set aside. (Reynolds v. Cross, 3 Caines, 267; Griswold v. Sedgwick, 6 Cow. 462; Mackey v. Backett, 9 Paige, 437; Simpson v. Norrbeck, 3 Lans. 55; Steuben Co. Bank v. Alberger, 78 N. Y. 252; Ruppert v. Hang, 87 id. 143; Day y. Beck, id. 60; Jackson v. Smith, 16 Abb. Pr. 201; Green v. Elgie, 5 Ad. & El. [N. S.J 113 ; People v. Nevns, 1 Hill, 165.) The setting aside of process on the ground of error gives no cause of action, and, therefore, it makes no difference even if malice is shown, and so justification and mitigation, are unnecessary to be shown in defense where there is no cause of action. (Marks v. Townsend, 97 N. Y. 590.) Ho action will lie unless the complaint charges the attorney with acting maliciously, and this must be proven. (Anon., 1 Mod. 209; Davis v. Jenkins, 11 Mees. & W. 745; 1 Dow. & B. 321; 12 B. J. [N. S.] Exch. 386; Carratt v. Morley, 1 Q. B. 18, 28; Burnap v. Marsh, 13 111. 535 ; Lynch v. Commonwealth, 16 Serg. & R. 368; Cohen v. Morgan, 6 D. & R. 9; Marks v. Townsend, 97 N. Y. 590.) As the complaint does not state why it was set aside, whether for irregularity or for error, this was a fatal defect and, therefore, it stated no cause of action. ( Williams v. Smith, 14 C. B. [N. S.] 596; Prentice v. Harrison, 4 Q. B. 852 ; D. & Merv. 50; Smith v. Snyder, L. R., 5 Q. B. 203; Moore v. Guardner, 6 M. & W. 595.)
   Ruger, Ch. J.

It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned. In the case of void process the liability attaches when the wrong is committed and no preliminary proceeding is necessary to vacate or set it aside, as a condition to the maintenance of an action. Process, however, that a court has general jurisdiction to award, but which is irregular by reason of the non-performance by the party procuring it, of some preliminary requisite, or the existence of some fact not disclosed in his application therefor, must be regularly vacated or annulled by an order of the court, before an action can be maintained for damages occasioned by its enforcement. (Day v. Bach, 87 N. Y. 56.) In such cases the process is considered the act of the party and not that of the court, and he is, therefore, made liable for the consequences of his act.

Void process is such as the court has. no power to award, or has not accpiired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with 'the legal requisites of such process, or which loses its vitality in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. Irregular process is such as a court has general jurisdiction to issue, but which is unauthorized in the particular case by reason of the existence or non-existence of some fact or circumstance rendering it improper in such a case. In all cases where a court has acquired jurisdiction in an action or proceeding, its order made or judgment rendered therein, is valid and enforceable and affords protection to all persons acting under it, although it may be afterward set aside or reversed as erroneous. (Simpson v. Homrnbeck, 3 Lans. 53.) Errors committed by a court upon the hearing of an action or proceeding which it is authorized to hear, but not affecting any jurisdictional fact, do not invalidate its orders or authorize a party to treat them as void, but can be taken advantage of only by appeal or motion in the original action. (Day v. Bach, supra.)

There is no claim made that the order ,and commitment under which the imprisonment complained of in this case was effected, was void or even irregular, except for the alleged erroneous determination made by the Special Term upon the merits of the application. This determination consisted in holding that a contempt had been committed by the plaintiff, while upon appeal this court held otherwise. All of the facts constituting tlie alleged contempt were undisputed and were presented to the Special Term for its consideration" upon the hearing. After hearing the parties it decided that a contempt had been committed and ordered the imprisonment complained of. It was conceded on that hearing that the plaintiff had disobeyed an order of the court, and the only question presented for its consideration was whether such disobedience defeated, impaired, impeded or prejudiced ” a right or remedy of the defendants. Upon the appeal to this court it was held that the case did not clearly show that any right or remedy of the defendants had been defeated, impaired, impeded or prejudiced by the disobedience alleged, and the order adjudging the plaintiff guilty of a contempt was, for that reason, reversed as erroneous. (Fischer v. Raab, 81 N. Y. 235.) A simple question of law was thus presented to the court as to whether all of the elements constituting the offense of contempt appeared on the application for the commitment. Whether they did or did not in no sense constituted a jurisdictional question. The court concededly had jurisdiction of the parties and the subject-matter of the application, and we think authority to determine whether a contempt had been committed or not; and the question for its consideration was whether the facts of the ease brought it within the statutory definition of a contempt. An erroneous decision of that question in no sense affected the jurisdiction of the court over the subject-matter of the application. In a similar case it was said by this court that the fact that a justice of the peace had jurisdiction of the person of the plaintiff and of the subject-matter then pending, did not give him judicial authority to adjudge her guilty of a contempt, and to imprison her therefor. To have that authority there must have arisen before him, facts which gave him power to consider of the question whether there had been a contempt committed by her. When facts arose which gave him that power he had a right to adjudicate upon them, and is not liable to an action though he may have held erroneously as matter of law.” (Rutherford v. Holmes, 66 N. Y. 368, 370.)

In the present case the court made an order, upon the application of the plaintiff, referring a certain disputed question of fact to a referee to hear and determine, and in case such report was against the plaintiff, that he should pay the referee’s fees incurred thereon. The plaintiff cannot question the validity of this order, for it was made at his request and upon his stipulation to pay the fees in the event provided for. The order was, therefore, lawful and such as the court had a right to make under the circumstances. The report of the referee being against the plaintiff, he was required to pay the fees and take it up; but this he neglected and refused to do. For this refusal lie was adjudged guilty of contempt.

The disobedience of its order by the plaintiff gave the court jurisdiction of the subject-matter and called upon it to determine whether a contempt had been committed or not. The right to adjudicate upon this question did not depend upon the fact whether the plaintiff was guilty of a contempt, but whether a case had been made calling for an adjudication upon that question.

The power of the court to entertain jurisdiction of an action or proceeding does not depend upon the existence of a sustainable cause of action, but upon the performance by the party of the prerequisites authorizing it to determine whether one exists or not. In Harman v. Brotherson (1 Den. 537) the defendant, a judicial officer; had awarded a copias upon affidavits which did not disclose such a cause of action as subjected the defendant to arrest therefor. He was, however, arrested and imprisoned, and in an action against the judge for false imprisonment ft was held that he was exempted from liability by reason of the judicial character of his determination. In Landt v. Hilts (19 Barb. 283) a county judge was prosecuted for false imprisonment for granting an order of arrest, which was afterward vacated upon the ground that the affidavit upon which it was founded did not show a sufficient cause for arresting the party. It was held, however, that the decision and the order protected the party applying foi it and the attorney and all persons acting in obedience to the order ; ” that the affidavit presented “ a state of facts which called upon the officer to pass judicially upon the question and to determine whether a case for an order was made out or not.” “ It presents, to say the least, a colorable case, and that is enough to protect the officer who issued it.” It was further said, “ that the doctrine, that the judicial officer is protected whenever he has jurisdiction and enough is shown to call upon him for a decision, even though he err grossly and even intentionally, has long been firmly established. Upon the same principle of public policy parties who in good faith institute the proceedings and act under and in accordance with judicial determination should be protected from accountability as trespassers whenever the officer is entitled to protection.” This case is largely and approvingly quoted from in Marks v. Townsend (§1N. Y. 590, 599). In Miller v. Adams (7 Lans. 133), affirmed in this court (52 N. Y. 409), the defendant was prosecuted for false imprisonment in procuring an attachment for contempt against a third party for not appearing before the judge "in supplemental proceedings in obedience to an order requiring him to do so.

The affidavit upon which the attachment was issued was held upon appeal to be defective and not to show the existence of the contempt alleged. It was held, however, that it constituted a protection as well to the officer issuing it as to the party procuring it; that the officer issuing the attachment had “jurisdiction of the matter and acted judicially in making the order, and it is entirely clear that he cannot be made answerable as a trespasser for an error in judgment.”

It seems to us that the case of Williams v. Smith (108 Eng. O. L. 596) is indistinguishable in principle from this. As concisely stated by Justice Erle it was as follows: “ The master of the rolls decided on the facts that Williams was guilty of contempt in not obeying the order. Such is the judgment of the master of the rolls on the very facts between the parties. The legal inference which that learned judge drew from the facts which were presented to him on the part of Williams was that he was guilty of a contempt. Upon appeal the lords justices were of opinion that the master of the rolls came to an erroneous conclusion, and they reversed his decision. That is a totally different thing from setting aside the attachment for irregularity .in the proceedings.” It was held that the decision of the master of the rolls was a judicial determination that protected the parties acting under it as well as the officers making it.

The rule to be deduced from, these authorities seems to be that when a court is called upon to adjudicate upon doubtful questions of law or determine as to inferences to be drawn from circumstances, reasonably susceptible of different interpretations or meanings, and calling for the exercise of the judicial function in their determination, its decision thereon docs not render an order or process based upon it, although afterward vacated or set aside as erroneous, void, or subject the party procuring it to an action for damages thereby inflicted. Where the jurisdiction of the court is made to depend upon the existence of some fact of which there is an entire absence of proof, it has no authority to act in the premises, and if it, nevertheless, proceeds and entertains jurisdiction of the proceeding, all of its acts are void and afford no justification to the parties instituting them as against parties injuriously affected thereby. But if the facts presented to the court call upon it for the exercise of judgment and reason upon evidence which might in its consideration affect different minds differently, a judicial question is presented which, however decided, does not render either party or the court making it, liable for the consequences of its action.

It is further claimed that the defendants made themselves liable in this action by refusing to consent to the discharge of the plaintiff by the sheriff after he had complied, as it is alleged, with the terms of the commitment, and for opposing before the Special Term proceedings taken for his discharge.

These proceedings all took place before it was finally determined that the plaintiff was not guilty of a contempt in refusing to obey the order referred to, and so far as any thing appearing in this record shows, when the defendants naturally believed that the plaintiff was rightfully imprisoned thereunder. The relief claimed was denied by the courts before whom they were taken, and it must here be assumed that it was rightfully denied for the reason that the plaintiff had not complied with the terms ot the order entitling him to a discharge.

If the defendants were not liable for damages for the original imprisonment, it is quite certain that they were not responsible for the action of the sheriff or the court in continuing it. Ho obligation rested upon the defendants to consent to, or procure the dischai’ge of the plaintiff, as the right to such relief depended solely upon his compliance with the terms of the order committing him.

Some claim is made that the commitment was void for not containing the statement that the disobedience referred to as the contempt1 had defeated, impaired, impeded or prejudiced some right or remedy of the defendants in the action. Hot only the order and affidavit upon which it was founded, but the commitment itself, stated in detail the proceedings which it was claimed the disobedience in question, affected, and presented all of the facts upon which the judgment of the court in awarding the commitment was based, and fully complied with the requirements of the rule in respect to the contents of a commitment.

The judgment of the court below should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. The Rome, Watertown and Ogdensburgh Railroad Company, Appellant.
    As by the Code of Civil Procedure (§ 2070), a peremptory writ of mandamus is only authorized in the first instance “ where the applicant’s right to a mandamus depends only upon questions of law,” in determining whether the issuing of the writ is proper, simply the facts alleged in,the petition which are not denied or put in issue, aud the affirmative allegations in the opposing affidavits may be considered.

      It seems where the material averments of the petition are put in issue, or the answering affidavits contain allegations showing that a peremptory writ ought not to issue, the court should in the first instance award an alternative writ.
    A writ applied for by the attorney-general on behalf of the people may only be issued to subserve a public interest and to protect a public right.
    Assuming that where a town was bonded to aid in the construction of a railroad, on condition that a permanent depot should be erected and maintained at a specified place in the town, this creates a contract between tlio railroad corporation and the town; the contract may not be enforced by a writ o£ mandamus, issued on behalf of the people at the instance of the attorney-general. The contract -right aud obligation are not in any proper sense a public matter in which the people of the State in their sovereign capacity are interested.

      It seems such a contract must be enforced by some proceeding on behalf of the town.
    Such a-contract obligation is not a lien or charge upon the property of the railroad corporation, and does not devolve upon a purchaser of the property on foreclosure sale, or upon a new corporation organized under the statute to operate the road.
    A decision of the board of railroad commissioners, constituted by the act of 1883 (Chap. 35B, Laws of 1883), has no binding or conclusive authority. Where a railroad company by consolidation becomes the owner of two lines of road between the same points, and can substantially accommodate the people of the State by operating one of them, and can abandon the other without serious detriment to any considerable number of people, it may not be compelled by mandamus to operate both, where the operation of the line, which may thus be abandoned, entails great expense without any return.
    (Argued June 3, 1886 •
    decided October 5, 1886.)
    Appeal from order \of the G-eneral Term of the Supreme Court, in the fourth judicial department, made November 20, 1885, which affirmed an order of Special Term granted on the application of the attorney-general directing the issuing of. a peremptory writ of mandamus.

    The following are the material facts alleged in the petition of the attorney-general: That the Rome, Watertown and Ogdensburg Railroad Company is a railroad corporation, organized under the.laws of this State, and was engaged in the operation of a railroad from Rome, Oneida comity, to Watertown, Jefferson county, and to points north on the St. Lawrence river, passing through the town of Sandy Creek and having a station at Washingtonville; that in February, 1868, the Syracuse Northern Railroad Company was incorporated under the General Railroad Act to construct, and it subsequently did construct, a railroad from Syracuse to the Rome, Watertown and Ogdensburg railroad at Washingtonville and there formed a junction with that road; that prior to such construction a map locating the line and termini of the road was duly adopted by the board of directors and filed as provided by law, covering the location of its line and northern terminus as subsequently constructed ; that there was also a railroad from Oswego connecting with the Rome, Watertown and Ogdensburg railroad at Richland, upon which road there was a station called Pulaski station, about four miles westwardly from Richland; that the Syracuse Northern railroad also passed through Pulaski station and thence about one mile to Pulaski village, where it had a station, and thence about five miles in a northerly direction to Sandy Creek village, where there was a station, and thence about a mile to Washingtonville station; that while that road was thus operated the travel from Washingtonville station southerly, to Syracuse was through the village of Sandy Creek and Pulaski to Pulaski station, and thence southerly; that before that road was constructed the town of Sandy Creek, under statutory authority, subscribed for $80,000 of the stock” of that company and paid therefor in the bonds of the town issued for that amount; that the statutory consent for the bonding of the town was upon the express condition that the railroad should be constructed through the town of Sandy Greek and a permanent depot erected at Sandy Creek village; that a mortgage was given upon that road in 1873, and that mortgage was subsequently foreclosed and the railroad and its franchises were purchased by an individual; that subsequently in September, 1875, a reorganization of the road was effected under “An act to facilitate the reorganization of railroads sold under foreclosure, and providing for the formation of new companies,” passed April 11, 1874, and a new company under the name of the Syracuse and Northern Bailroad Company was organized, which was vested with all the rights, privileges and franchises which, at the time of the foreclosure sale, belonged to or were vested in the Syracuse Northern Bailroad Company; that subsequently the Syracuse and Northern railroad became consolidated with the Borne, Watertown and Ogdensburg railroad under chapter 917 of the Laws of 1869, and the latter company took possession and assumed control of the road, and until September 5,1877, operated the same from Syracuse, to and through the villages of Pulaski and Sandy Creek to Washingtonvillethat the consolidation agreement recited that the Borne, Watertown and Odgensburg railroad Company owned and operated a railroad from Borne to Ogdensburg, and leased a road from Oswego to Bichland Junction ; that the Syracuse and Northern Bailroad Company owned and operated a railroad from Syracuse to a connection with the Borne, Watertown and Ogdensburg railroad at Washingtonville, and that thus the railroads formed a continuous line of railroad between the city of Syracuse and the points and places to which the railroads of the Borne, Watertown and Ogdensburg Bailroad Company did and were authorized to extend; that soon after the defendant ceased to operate that portion of the Syracuse and Northern road lying between the Oswego branch of the Borne, Watertown and Ogdensburg railroad at Pulaski station and Washingtonville, and removed the track on that section of the road as well as the station-houses at the villages of Pulaski and Sandy Creek ; that since that time such abandonment has continued and still exists; that the junction formerly maintained at Washingtonville has been changed with its attendant local advantages to Bichland ; that such abandonment was, and continued to be, a matter of serious damage to the people of the State of New York, and especially to that portion of the people of this State who were residents and tax payers of the town of Sandy Creek, their property and business interests, and compelling them, when desirous of travel to the village of Pulaski and the city of Syracuse, to adopt a circuitous route, “ involving more or less change of cars, transfer and delay,” for which they have no remedy for damages at law; that by chapter 353 of the Laws of 1882, the legislature enacted that there should be created in this State, in the manner and form therein referred to, a board of railroad commissioners with certain powers and duties therein mentioned; that, in pursuance of the provisions of that act, complaint in due form of the abandonment and proceedings above stated was made against the Rome, Water-town and Ogdensburg Railroad Company, to which complaint the company filed an answer; that a hearing was had thereon before the board and after due deliberation, it on the 21st day of April 1884, adjudged and determined as follows: “ The judgment of the board is, that the Rome,. Watertown and Ogdensburg Railroad Company had no right or authority to abandon the portion of the Syracuse and ¡Northern road in question, and that in so doing it has violated the laws of the State, and has neglected and now neglects to comply with the terms of chapter 140 of the Laws of 1850, and its amendments, under which the Syracuse and ¡Northern railroad was created ; that in so doing and in running its trains via Richland Junction, it usurps authority conferred by no act or law of this State. The board hereby notifies the Rome, Watertown and Ogdensburg. Railroad Company of said violation, neglect and usurpation, and recommends that said company proceed, within a reasonable time, to and do rebuild, restore and operate said abandoned " portion of its road, hereinbefore particularly described; ” that a copy of the determination of the board was thereafter served upon the Rome, Watertown and Ogdensburg Railroad Company, but that it failed to comply with the recommendation of the board, and that thereafter, on or about the 15th day of ¡November, 1884, the board of railroad commissioners transmitted, in pursuance of the provisions of the act of 1882, to the attorney-general, a copy of the proceedings and its determination in the above matter.
    The application for the mandamus was opposed by the defendant upon an affidavit of its general manager, in which he denied that the alleged abandonment by it of a portion of its former line “ has been, or continues to be, a matter of serious damage to the people of the State of New York, and especially to that portion of the people of the State who are residents and tax payers of the town of Sandy Creek, their property and business interests,” and stated that, on the contrary, the present lines operated by the Rome, Watertown and Ogdensburg Railroad Company furnished greatly increased facilities to the people of the State of New York, as well as to the people of the town of Sandy Creek, above those which were enjoyed by that community at any time prior to the last two years; that it is now far more convenient for the people of the town of Sandy Creek to reach their principal markets, the cities of Oswego, Syracuse, Watertown and Rome, than at any previous time by means of the lines of the Rome, Watertown and Ogdensburg Railroad Company; that a far greater number of trains, both passenger and freight, are now run than were run before the alleged abandonment, and that it is an absolute fact that the passenger and freight service between the village of Sandy Creek and the cities of Oswego, Syracuse, Watertown and Rome is far more convenient, prompt and efficient than before said abandonment; that it would cost about $70,000 to restore the abandoned track, and that the annual expense of maintaining and operating that portion of the road would be about $15,000, without any addition whatever to the income of the defendant; that the defendant was engaged in a. steady and determined effort to make its road in all respects a serviceable agent of the people of the State of New York, and of all the people who have occasion to use its facilities, and that if the restoration were now ordered or compelled by the courts of the State, it would result in diminishing the efficiency of the road for all the people of the State, including the people of the town of Sandy Creek. It further appeal’s, from the papers presented to the court, that since the abandonment complained of, passengers and freight going southerly from Washingtonville are carried to Richland station, thence to Pulaski station, and thence on to Syracuse, and that passengers and freight from Syracuse are carried to Pulaski station, thence to Richland and thence to Washington-ville; that the passenger cars on the Syracuse and Northern railroad all stop at and depart from Richland station, and that thus the passengers are required to change cars at that station, and that the increased distance from Washington ville to Pulaski station by way of Richland station is about two miles.
    Upon the presentation of these facts, the judge at Special Term granted a peremptory writ of mandamus commanding the defendant to proceed “ to restore the abandoned portion of said road from the point where said track of the Syracuse and Northern railroad intersects the Oswego branch at Pulaski, through the villages of Pulaski and Sandy Creek to the Washington ville station, so called, on the line of the Rome, Water-town and Ogdensburg Railroad Company’s road upon the route where said road was formerly operated at the time when said road was abandoned, and to rebuild, restore and operate said portions of such road, and to open and operate said road and route by running trains over the same at regular intervals for the accommodation of the public in the transportation of passengers and property.” From the order granting the writ the defendant appealed to the Greneral Term, and from affirmance there to this court.

      William B. Hornblower and Daniel H. Chamberlain for appellant.
    The writ of mandamus is a common-law remedy and proceeding and not an equitable one. (Tapping on Mandamus, 55, 56, 57, 58, 59, 62; 2 Johns. Cas. 217; 3 Blackst. Com. 110; Rex v. Bk. of Eng., 2 B. & A. 620.) The right to the writ, upon the case made at the Special Term, did not “ depend only on questions of law,” so as to warrant the judgment there rendered. (Code of Civ. Pro., § 2070; People, ex rel., etc., v. Board of Apportionment, 64 N. Y. 627 ; 91 Ohitty on Pleadings, 255,264, 277, 278, 390,402,411; Code of Civ. Pro., § 481; Ram on Facts, 9, 10, 11, 125 ; 3 Bulst. 95; Pasley v. Freeman, 3 T. R. 51, 56, 65 ; Freeman v. Vernon, 120 Mass. 424, 427; Bigelow on Fraud, 85; Taylor v.
      Guest, 58 N. Y. 261, 266; Dung v. Parker, 52 id. 494; Kendall v. Stone, 5 id. 18 ; People, ex rel. Mott, v. Bd. Suprs., 64 id. 600, 604; People v. Wendell, 71 id. 171; People v. Richards, 99 id. 620 ; State v. Mayor of Maintown, 52 Wis. 423, 428; People, ex rel. Cuyler, v. Supervisors, 5 Week. Dig. 538.) Waiving all other points the writ of mandamus is not a remedy to enforce the obligations claimed to rest on the appellant. (Trust Co. v. Railroad Co., 17 Am. Reg. [N. S.] 266 ; People v. Railroad Co., 70 N. Y. 569; State v. Gorham, 37 Me. 451; Cambridge v. R. R. Co., 7 Metc. 70; T. & B. R. R. Co. v. Boston, H. T. & W. R. R. Co., 86 N. Y. 107; People v. R. R. Co., 76 id. 294; State v. R. R. Co., 9 Rich. 247; R. R. Co. v. People, 56 111. 365; Atty. Genl. v. N. B. & C. R. R. Co., I P. & B. 667; State v. H. & N. H. R. R. Co., 29 Conn. 538 ; Un. Pac. R. R. Co. v. Hall, 91 U. S. 343; 3 Dill. 515; U. S. v. U. P. R. R. Co., 4 id. 479 ; State v. Wilmington Bridge Co., 3 Harr. 312; In re Trenton Water Power Co., 20 N. J. L. 659; Queen v. Pristol Dock Co., 2 Q. B. 64; People v. Man. Co., 45 Barb. 136; City v. St. Louis Gas Co., 70 Mo. 69, 117 ; Houston v. Com'rs, 36 Tex. 382; Riggs v. Johnson Co., 6 Wall. 166 ; Mayor v. Lord, 9 id. 409 ; Morris v. Irish Land Co., 8 El. & Bl. 512-525 ; People v. Troy R. R. Co., 37 How. Pr. 427; R. R. Com'rs v. 5. R. Co., 63 Me. 269; McCoy v. C. I, St. L. & C. R. R. Co., 13 Fed. Rep. 3; Talcott v. Pine Grove, 1 Flip. 145.) The writ of mandamus is never granted except to compel the performance of a duty owing to the State. (People, ex rel. v. St. Patrick’ s Cathedral, 21 Hun, 181; People, ex rel. v. Green, 66 Barb. 630 ; Expande Ostrander, 1 Den. 679; People, ex rel. v. Dowling, 55 Barb. 197; People, ex rel. v. Clerk Marine Ct., 3 Abb. 309 ; Adriance v. Supervisors, 12 How. Pr. 224; People v. Paker, 14 Abb. 19.) If this were a case, in other respects, for peremptory mandamus in the first instance, the duty or obligation of the appellant is not so absolute and unconditioned as to warrant the granting of the writ; certainly not in the absence of proof or admission of injury. (Queen v. York & No. Mid. R. Co., 16 Q. B.
      19; S. C., 16 Eng. L. & Eq. 299 ; Queen v. Lanc, & York R. Co., id. 327; Queen v. Gt. West. R. Co., id. 341; 1 Redf. Law of Rail ways, 673, 675 ; York & No. Mid. R. Co. v. Reg., 1 El. & Bl. 858; 8. C., Eng. Law & Eq. 199; People v. Alb. & Vt. R. R. Co., 24 N. Y. 261, 263, 264; Comm. v. Fitchburg R. R. Co., 78 Mass. 180.)

      D. O'Brien, attorney-general, for respondent.
    The operation of the Syracuse Northern road, from Syracuse to the junction of the Borne, Watertown and Ogdensburg road at Sandy Creek, was a charter obligation. (Laws of 1850, chap. 140 ; Callender v. H. & P. R. R. Co., 11 Ohio St. 516; Tenn. & Ala. R. R. Co. v. Adams, 3 Head [Tenn.], 596 ; Moses v. Pittsburg R. R. Co., 21 111 516 ; Hentz v. L. 1. R. R. Co., 13 Barb. 646 ; Mason v. Brooklyn db Newtown R. R. Co., 35 id. 373 ; Mohawk B. Co. v. U. & S. R. R. Co., 9 Paige, 554.) Said company, after the purchase under the foreclosure sale and its reorganization, became vested with and entitled to enjoy all the rights, privileges and franchises which, at the time of the sale and consolidation, belonged to, or were vested in, the corporation formerly owning the property sold, and subject to all of the duties and liabilities imposed by the provisions of the General Bailroad Act of 1850. (Laws of 1869, chap. 917; P. db R. 1. R. Co. v. Coal V. M. Co., 68 111. 489; C. & R. I. Co. v. Moffitt, 75 id. 524.) The franchise obtained by the company can only be legally exercised by the corporation operating its entire road. (People v. A. & V. R. R. Co., 24 N. Y. 261, 267; approved in T. & B. R. R. Co. v. B., H. T. & W R. R. Co., 86 id. 107, 129; Abbott v. F. & G. R. R. Co., 80 id 30; People v. Railway Co., 28 Hun, 554; People v. T. & B R. R. Co., 37 How. 427 ; State v. A. & N. R. R. Co., 29 Conn. 538, 547 ; Talcott v. Township of Pine Grove, 1 Flip. [U. S. Cir.], .144, 145; Farmers' L. & T. Co. v. Henning, 17 Am. Law Beg. 266; King v. Severn & Wye R. R. Co., 2 Barn. & Aid. 646; U. S. v. U. P. R. R. Co., 4 Dill. 479; York & North Midland R. Co. v. Regima, 18 Eng. Law & Eq. 20.) The railroad company is a creature of' the legislature, and is subject to the direction of the court. Mandamus is the appropriate remedy to compel railroad companies to perform duties owing to the public. (Trust Co. v. R. R. Co., 17 Am. Law Reg. [N. S.] 266; People, ex rel. Green, v. D. & C. R. R. Co., 58 27. T. 152; People v. R. R. Co., 70 id. 569; State v. Gorham, 37 Me. 451; Cambridge v. R. R. Go., 7 Metc. [Mass.] 70; People v. R. R. Co., 14 Hun, 371; 76 N. Y. 294; State v. R. R. Co., 9 Rich. [S. C.] 247; R. R. Co. v. People, 56 111. 365; 1 P. & B. 667; State v. R. R. Co., 29 Conn. 538; R. R. Co. v. Hall, 91 U. S. 343; Hall v. U. P. R. R. Co., 3 Dill. 515; V. S. v. U. P. R. R. Co., 4 id. 479; State v. R. R. Co., 37 Conn. 154; King v. R. R. Co., 2 Barn. & Aid. 646; State v. Wilmington Bridge Co., 3 Harr. [Del.] 312; In re Trenton W. P. Co., 20 N. J. L. 659; Regina v. Bristol Dock Co., 2 Q. B. 64; People v. Manhattan Co., 45 Barb. 136; City v. St. Louis Gas Co., 70 Mo. 69, 117; Houston v. Commissioners, 36 Tex. 382; Riggs v. Johnson Co., 6 Wall. 166; Mayor, etc., v. Lord, 9 id. 409; Norris v. Irish Land Co., 8 El. & Bl. 525; People v. Troy R. R. Co., 37 How. Pr. 427; People v. N. Y. C. R. R. Co., 28 Hun, 543 ; 30 id. 78 ; People v. R. R. Co., 24 N. Y. 261, 267, 269; R. R. Com’rs v. R. R. Co., 63 Me. 269 ; McCoy v. R. R. Co., 13 Fed. Rep. 378 ; Talcott v. Pine Grove, 1 Flip. [U. S. Cir.] 145; R. R. Com’rs v. R. R. Co., 13 Fed. Rep. 3, 7 and 8.) By section 1991 of the Code of Civil Procedure, the writ of mandamus is a State writ. (Tapping on Mandamus, 54, 56, 288 ; Moses on Mandamus, 194,199 ; People v. Collins, 19 Wend. 64, 68 ; U. P. R. R. Co. v. Hall, 91 U. S. 355; People v. Erie R. Co., 28 Hun, 554; Laws of 1882, chap. 353 ; People, ex rel., Lawrence, v. Supervisors, 73 N. Y. 173; People v. N. Y. R. R. Co., 74 id. 302, 307; Candee v. Howard, 37 id. 653 ; Wood on Mandamus, 56, 111, 114, 115 ; Addison on Torts, 1486.) There cannot be any question in this proceeding that the State has not been guilty of any loches in instituting the application against the company. The damage has been a continuing one. The usurpation of the corporate powers constitutes a continuing cause of action to the people. (Kellogg v. Thomson, 66 N. Y. 88; People v. Ins. Co., 38 Barb. 323; Waldron v. Hawkins, 10 Wend. 167; Green’s Brice’s Ultra Vires [7th ed.J, 714.)
   Earl, J.

In his petition, the attorney-general prayed for a peremptory writ of mandamus, and one was awarded. Such a writ is authorized only where the applicant’s right to a mandamus depends only upon questions of law.’’ (Code, § 2070.) In determining whether this Writ was properly issued, therefore, we must consider only such facts alleged in the petition as were not denied or put in issue, and the affirmative allegations of the affidavit presented on the part of the defendant in opposition to the application for the wnt. Where the material allegations of the application tor a writ are put in issue, or where the answering affidavits contain allegations showing that a peremptory writ ought not to be issued, the court should award an alternative mandamus in the first instance, in order that the issues of fact may be regularly tried before the proper tribunal.

As this writ was applied for by the attorney-general on behalf of the people, it must be assumed that it was issued only to subserve a public interest and to protect a public right. If private interests only were involved, the application for the writ by the attorney-general, on behalf of the people, was not proper. In that case, it. should have been applied for by the private parties interested, who should have been relators. In order, therefore, to maintain this writ and to justify the action of the court in granting it, we must be able to see, from the undisputed facts alleged, that it was issued to protect some public right or to secure some public interest.

It matters not that the town of Sandy Creek was bonded for the construction of the Syracuse Northern railroad, upon condition that a permanent depot should be erected and maintained at the village of Sandy Creek. It it be assumed that the bonding proceedings created a contract between the town and the railroad company, that contract is not one which could be en forced by this writ of mandamus issued on behalf of the peopie. The contract right and obligation are not, in any proper sense, a public matter in which the people of the State, in their sovereign capacity, are interested. If there is a valid contract still in force and operative, it must be enforced by some proceeding taken on behalf of the town, and cannot be enforced by a proceeding instituted by the attorney-general on behalf of the people of the State.

But the performance of the contract, if there was a valid one, never devolved upon the defendant. The contract obligation was not a charge or lien upon the property of the Syracuse Northern Railroad Company, and remained where the unsecured obligations of the company rested after the foreclosure of the mortgage given by it. It did not pass by the foreclosure sale to, or devolve upon, its successors, the Syracuse and Northern Railroad Company and the Rome, Watertown and Ogdensburg Railroad Company.

In a case where the court had a discretion to grant or withhold the writ of mandamus, the circumstances attending the bonding of the town of Sandy Creek could well have been considered in determining that discretion.

Tinder the act (Chap. 353 of the Laws of 1882) by which the board of railroad commissioners was constituted, the decision of that board has no binding or conclusive authority. No such effect is given to the decisions of that board by any of the provisions contained in the act. Its decision in this case was merely advisory and recommendatory, and the defendant was at liberty to obey or disobey it. It was a sufficient justification, however, for the application by the attorney-general for the writ of mcmdamus, and if the court had had a discretion to withhold or grant the writ, it might properly have had some influence in the exercise of that discretion. But no legal right in this proceeding can be based thereon.

We aré left, therefore, to determine simply whether, upon the facts which we must assume to exist in this case, the defendant ought, in the public interest, as an absolute duty, to be compelled to rebuild, maintain and operate the small section of road which it abandoned. We have not here the questian which, would have to be determined if the Syracuse and ¡Northern ¡Railroad Company were still in existence and had abandoned the portion of its road between the Pulaski station and Washington ville station, so that passengers and freight were carried only to and from the former station. But we have a case where the defendant has succeeded to all the rights and obligations of that railroad company, and the question is, whether it is discharging the duty to the public imposed upon it by the consolidation of that railroad company with it. After the consolidation it had two lines from Pulaski station to Washingtonville, a direct line about seven miles long and a circuitous line by way of Richland about two miles longer. It was not absolutely bound in law to stop any of its trains at the village of Pulaski or the village of Sandy Creek. It would have discharged its whole duty by running its trains through from the Pulaski station to the Washingtonville station without stopping. It would cost it more than $15,000 annually to maintain and operate its direct road from Pulaski station to Washington ville station without adding SI to its income.

It could accommodate every passenger and every pound of freight at Washington ville station or at the Pulaski station by carrying it over a line which it owned by way of Richland. Did it not thus substantially perform the duty which devolved upon it as the successor of the Syracuse and ¡Northern Railroad Company? It carried all passengers and freight from Washingtonville to Pulaski station and Syracuse, and all passengers and freight from Syracuse and Pulaski station to the terminus of the Syracuse and ¡Northern railroad at Washingtonville. How can it be said that it owed a duty to the public to do this over the direct line rather than over a line near by but two miles longer ? There is no allegation that any considerable number of people are discommoded, and it does not appear that a single person suffers any harm except that passengers are obliged to change cars at Richland rather than at Washington ville station, and persons taking the cars at Washington ville station to go southerly are obliged to travel about two miles farther. But we must take the facts as stated in the affidavits of the defendant’s manager, read in opposition to the application for the writ, that it is not true that the abandonment of this.small section of road has been and continues to be a matter of serious damage to the people of the State of Mew York, or especially to that portion of the people of the State who are residents and tax payers of the town of Sandy Greek, but that the present line operated by the defendant between Washingtonville station and Pulaski station furnishes greatly increased facilities to the people of the State of Mew York as well as to the people of the town of Sandy Creek above those which were enjoyed at the time of the abandonment; that it is now far more convenient for the people of that town to reach their principal markets, the cities of Oswego, Watertown, Syracuse and Rome, than at any previous time, and that their railroad service is altogether more efficient and convenient than it was previous to the time of the abandonment. Under such circumstances ^ we see no reason for saying that the interests of the people have suffered from this abandonment, or that any considerable number of the people of this State were thereby in any way injured or inconvenienced. If a few individuals were discommoded, or private interests were in any way injured, this writ is not the proper remedy for such evils.

We have, with great care, examined and considered the numerous authorities cited on behalf of the people in support of this writ, but we find none which justify it. Several cases were cited in which it was held that a railroad company could be compelled by mandamus to operate its railroad to the terminus specified in its charter. (Farmers’ Loan and Trust Co. v. Henning as Receiver, etc., 17 Am. Law Reg. [N. S.] 266 ; State v. H. & N. H. R. R. Co., 29 Conn. 538; Un. Pac. R. R. Co. v. Hall, 91 U. S. 343 ; King v. S. & W. R. R. Co., 2 B. & Ald. 646 ; Peoples. Albany & Vermont R. R. Co., 24 N. Y. 261.) But the principles of those cases are not, controlling in this, because here the railroad service is kept up between the termini of the Syracuse and Northern railroad, and the public duty which devolved upon it at its organization is fully and substantially performed by the defendant. The present line is a little longer than the one originally adopted and slightly varying therefrom, but it accommodates the people of the State and the people of the locality substantially as well as the line originally adopted. Suppose two roads were consolidated and the lines of the two between two places were parallel and near to each other, could the consolidated road be compelled by mandamus to operate both lines, or could it discharge its duty to the public by using only one line ? Suppose the Hew York Central and the West Shore roads, as their lines approach the city of Buffalo, were parallel to and near each other, could not the Hew York Central, which is now substantially the owner of both roads, abandon the West Shore line, and run into the city of Buffalo upon the Hew York Central line ? We do not determine that in all cases where a railroad company which, by consolidation, has become the owner of two lines of road between two termini, and running through different sections of country and different cities or villages, like the two lines between Syracuse and Rochester, could abandon either of its lines, because in such cases it might well be that the public interests and the accommodation of a large portion of the people of the State required that both lines should be operated; but where a railroad company owns by consolidation two lines of road, and can substantially accommodate the people of the State by operating one line between the same points, and can abandon the other line without any serious detriment to any considerable number of people, we do not believe it should be compelled by mandamus to operate both lines at a great sacrifice of money upon the fanciful idea that the sovereignty of the State is wounded by its omission to operate both lines.

The defendant does not run its cars at any point where it has not the right to, and it does not exercise any franchise which it is not authorized to. It accommodates all the travel and traffic which the Syracuse and Horthern Railroad Company was required to accommodate. That road still has a connection with the defendant; and all the travel and traffic over it can still commence and terminate at Washingtonville. There is no public right to protect and no public duty to enforce by mandamus. We are, therefore, of opinion that the orders of the General and Special Terms should be reversed, and the application for a peremptory writ of mandamus denied, with costs.

All concur, except Andrews, J., who takes no part, and Miller, J., absent.

Ordered accordingly.


author: Andrews, J.

text:
    William Post, Appellant, v. Charles Kreischer et al., Respondents.

      It seems by the common law, oysters planted in a bed clearly marked out and defined in the tide-waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the State, where there are no oysters growing spontaneously at the time, are the property of the person who planted them; and the taking or destruction of them by another is a trespass for which an action lies.
    The right to plant oysters in the tide-waters of bays and arms of the sea upon lands of the State adjacent to the county of Richmond is recognized by the statutes prohibiting any person from interfering with oysters so planted, without the consent of the owner. (Chaps. 404, 753, Laws of 1866.)
    While plaintiff was in the lawful use of an oyster bed in said waters, the commissioners of the land office granted to the owner of the adjacent up- , land the land under water embracing said oyster bed. The grant reserved to the people the same rights and privileges as before possessed by them, until the lands granted “ shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon.” The depositing in the waters of the port of New York, within certain limits, which include the locus in quo, of any dredging or other material, “ except in the execution or construction of any pier,” etc., is prohibited by statute. (Chap. 346, Laws of 1881.) Defendants, claiming to act under the grant, deposited material dredged from other premises upon plaintiffs oyster bed, thereby destroying the oysters thereon. In an action to recover the damages, one of the defendants testified that they deposited the material with a view of making a dock on the • premises. It appeared, however, that nothing further was done in the execution of this purpose; also, that the primary object of the dredging was to deepen the water in front of other premises occupied by the defendants. Plaintiffs counsel asked to have the question whether under the evidence there had been an actual appropriation of the premises under the grant submitted to the jury. The court refused the request and directed a verdict for defendants. Held error. Post v. Kreiseher (32 Hun, 49), reversed.
    (Argued June 3, 1886 ,
    decided October 5. 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made at the February term, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict directed, by the court. (Beported below, 32 Hun, 49.)
    This was an action to recover damages for an alleged trespass m depositing dredging material upon plaintiffs oyster bed a quantity of earth and other material dredged from other premises, and thereby destroying the oysters planted thereon.
    The facts so far as material are stated in the opinion.

      Benjamin Patterson for appellant.
    The oysters planted by the plaintiff are his exclusive property the same as animals ferae naturae when caught and reclaimed. (McCarthy v. Holman, 22 Hun, 55; Lowndes v. Dickerson, 34 Barb. 589; Fleet v. Hagaman,, 14 Wend. 42; Decker v. F'isher, 4 Barb. 592; Laws of 1866, chap. 753 ) Such oysters being personal property, the State could not take them for public purposes without making compensation and for private purposes not at all. (Canst., art. 1, § 6; Newcomb v. Smith, 1 Chand. 171; Corbin v. Marsh, 2 Duv. 193; Blackst. Com. 125, 219, 226; Gould v. H. R. R. Co., 6 N. Y. 138: Lansing v. Smith, 4 Wend. 9 ; Langdon v. Mayor, etc., 93 N. Y. 129 ; Story v. N. Y. E. R. R. Co., 90 id. 122, 157; In re Jacobs, 98 id. 98; Smith v. City of Rochester, 92 id. 463; Dermott v. The State, 99 id. 107.) The acts' of the defendants being contra for mom statute, could not be construed as an actual appropriation, (Hard v. Seeley, 47 Barb. 428; Newton v. Porter, 5 Lans. 416.) The acts of defendants amounted to a public nuisance for which they are liable to any one specially damaged.. (Lansing v. Smith, 4 Wend. 9 ; Congreve v. Smith, 18 N. Y. 82: Dygert v. Schenck, 23 Wend. 446; Creed v. Hartman, 29 N. Y. 291; Clifford v. Dam, 81 id. 52; McKeon v. See, 51 id. 306; Adams v. Popham, 76 id. 413; 2 Story’s Eq. Jur>, §§ 925, 927.) A grant by the State of lands under water is to be strictly construed in favor of the people and against the grantee. (Lansing v. Smith, 4 Wend. 9 ; Langley v. Mayor, etc., 93 N. Y. 641 ; Dermott v. The State, 99 id. 107; Martin v. Waddell, 16 Pet. 367; McCarthy v. Holman, 22 Hun, 55.) The defendants were not licensees of the grantee. (Mali v. Lord, 39 N. Y. 381, 384.)

      David McClure for respondents.
    The State, in its sovereign character, owns the beds of navigable streams to high-water mark, and the State may, as such proprietor of the waters, grant them, or any interest in them, to an individual. (Lansing v. Smith, 8 Cow. 146; Could v. H. R. R. Co., 6 N. Y. 138; Furman v. Mayor, etc., 10 id. 568; People v. Tibbetts, 19 id. 527; People v. Camal App'rs, 33 id. 461; Lowndes v. Dickerson, 34 Barb. 592; People, ex rel. Ward, v. Kelsey, 14 Abb. Pr. 577.) The plaintiff had no rights in the land under water that were not .subject to those of the grantee from the State, and liable to be extinguished by said grantee taking possession. (Code of Civ. Pro., §§ 368, 369; Gould v. H. R. R. Co., 6 N. Y. 540 ; Lansing v. Smith, 4 Wend. 9; McCarthy v. Holman, 22 Hun, 54; Trustees of Brookhaven v. Strong, 60 N. Y. 67; Tinicum Fishing Co. v. Carter, 61 Penn. St. 35; Monongahela Nav. Co. v. Coons, 6 W. & S. [Penn.] 101.) The plaintiff had notice of the application of the grant, and had an opportunity to have its effect limited, or protect himself by removing his oysters. (1 E. S. 208, § 70.) The defendants, in dumping, acted as the agents of the grantee. (Lamer v. Meeker, 25 N. Y. 362; Elwood v. W. U. Tel. Co., 45 id. 553; Koehler v. Adler, 78 id. 291.)
   Andrews, J.

The authorities sustain the propositions asserted by the plaintiff, that by the common law, oysters planted in a bed clearly marked out and defined in the tide-waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the State where the bay or arm of the sea is situated, where there are no oysters growing spontaneously at the time, are the property of the^person who planted them, and the taking them by another person is a trespass for which an action lies. (Fleet v. Hegeman, 14 Wend. 42 ; Decker v. Fisher, 4 Barb. 592 ; Lowndes v. Dickerson, 34 id. 586, 589.) The planting of oysters in tide-waters, and the right of property in the person planting them, is not regarded as an exclusive appropriation of the right of fishery common to all the inhabitants of the State, but as a legitimate exercise of the common right, not inconsistent with its reasonablé enjoyment by others. The right to plant oysters in the tide-waters of bays and arms of the sea, upon the lands of the State adjacent to the county of Richmond, not being a natural oyster bed, is now recognized by the statute which prohibits any person to interfere with oysters so planted, without the consent of the owner. (Laws of 1866, chaps. 404,753.) The space on which the plaintiff’s oysters were planted, had been iised as an oyster bed for more than fifty years, and there can be no doubt that both by the common law and the statute the plaintiff was in the lawful use of the oyster bed on April 28, 1881, when the commissioners of the land office granted to Baltazer Kreischer, the owner of the adjacent upland, the land under water, embracing the oyster bed of the plaintiff. The defendants justify their act in depositing the material dredged from other premises, upon the plaintiff’s oyster bed, thereby covering and destroying the oysters thereon, under the grant of the State to Baltazer Kreischer. Unless the defendants are protected by this grant, there can, we think, be no doubt that their act. in depositing this material in the waters of the bay, was unlawful, and that upon familiar principles, the plaintiff is entitled to recover damages for the special injury occasioned to him thereby. Chapter 346 of the Laws of 1881, prohibits the depositing in the waters of the port of New York of any dredging or other material within certain limits, which include the locus in quo, except in the erection or construction of any pier, etc., and the making, by filling in, of land, authorized by the laws of this State. It is not claimed that the defendants in covering the plaintiff’s oyster bed, were exercising any right other than that' conferred by the grant to Baltazer Kreischer. That grant contains the following material exception: “ Excepting and reserving to all and every the said people the full and free right, liberty and privilege of entering upon and using all and every part of the above-described premises in as ample a manner as they might have done had this power and authority not been given, until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner.” It is clear from the words of the exception that the plaintiff’s right to the continued use of the oyster bed, and his property in the oysters thereon, was not eo instanti, determined on the execution and delivery of the grant. It is unnecessary to inquire what ,the right of the plaintiff would have been, if the grant had been absolute' and unqualified. It is sufficient for the present purpose to notice that it did not confer any right to interfere with the uses to which the land was then appropriated, or with the common rights of fishery and navigation, until the granted premises should be “ actually appropriated and applied ” by the grantee to the purposes mentioned in the grant. It was. claimed on the trial in behalf of the defendants, that the filling in, in June, 1881, over the plaintiff’s oyster bed, was with a view to the construction of a dock, for the beneficial enjoyment of the premises embraced in the grant, and was, therefore, a lawful act, constituting an actual appropriation of the premises, within the exception. The plaintiff’s counsel asked to have the question, whether under the evidence there had been an actual appropriation of the premises under the grant, submitted to the jury. The court refused the request, and thereupon directed a verdict for the defendants, to which the plaintiff’s counsel excepted. We think the exception was well taken. We do not intend to intimate any opinion as to what conclusion should have been reached by the jury upon the question whether this deposit was made with a view to the improvement of the land embraced in the grant. It seems quite clear that the primary object of the dredging was to deepen the water in front of other premises occupied by the defendants. One of the defendants testified that they deposited the material with a view to making a dock on the premises embraced in the grant. It appears, however, that nothing was done in execution of this purpose, beyond depositing this loose material, which was left subject to the action of the winds and tides, and the purpose of building a dock, if originally entertained, was evidently abandoned. Under the circumstances, it was, we think, for the jury to say whether the depositing of the material from the dredging over the plaintiff’s oyster bed, was with a bona fids view to the improvement of the premise's, or was done simply as a convenient way of getting rid of the material, and without any intention of mailing an actual appropriation of the premises within the grant.

The question, whether the defendants, assuming that the material was deposited with a view to the improvement of the granted premises, were chargeable with notice of the existence of the oyster bed, and were bound before covering it to notify the plaintiff and give him an opportunity to remove the oysters, is not presented by any exception, and need not now be considered. 3

But for the error upon the point suggested, the judgment should be reversed and a new trial granted.

All concur.

Judgment reversed. -


author: Danforth, J.

text:
    Mortimer E. Reynolds, Appellant, v. DeWitt C. Ellis, as Assignee, etc., et al., Respondents.
    A lease of a store to a retail merchant contained a clause declaring that the lessor should have a lien, as security for the rent, upon the goods and other personal property brought upon the demised premises, belonging to the lessee, and providing for the enforcement of the lien by sale. The clause concluded thus: “ Such lien, however, shall not be enforced against any property which, being a part of the stock in trade, shall have been sold in the regular course of business.” It was agreed between the parties that the lessee should remain in possession of the -stock of goods and sell the same, using the proceeds, and this he did with the knowledge of the lessor. Subsequently the lessee made a general assignment for the benefit of creditors. The assignee, without knowledge of the clause in the lease, sold the stock of goods. In an action by the lessor to subject the proceeds to the payment of the rent, held, that the provision, while valid as between the parties, was in fraud of the rights of the creditors of the lessee, and, therefore, the assignee had authority to treat it as void (Chap. 314, Laws of 1858); that it was immaterial when the debt preferred by the assignment was created, whether before or after the execution of the lease; it was sufficient that the relation of debtor and creditor existed at some time while the goods remained in the possession of the debtor (3 ft. S. 136, § 6); and that, therefore, the action was not maintainable.
    (Argued June 3, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fifth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. (Reported below, 34 Hun, 47.)
    This was an equitable action, brought by the appellant for the purpose of subjecting the proceeds of certain chattels theretofore sold by the defendant Ellis as assignee, etc:, to the payment of rent due and to become due from the defendant H. F. Van Dake.
    It appeared upon the trial that in March, 1879, the plaintiff, as lessor, and H. F, Van Dake, as lessee, executed a lease by which the former let, and the latter agreed to take certain premises for a boot and shoe store for the term of five years from the 1st of April, 1879, at the rent of $2,000 for the first year, and a greater sum thereafter, payable monthly in advance, with interest after three days from maturity, and in case of default in payment, or seizure of the goods and merchandise, or other personal property in or upon the premises, by virtue of any writ, judgment, execution, assignment or otherwise, the whole amount of such rent and interest agreed to be paid should immediately become due and payable, and to that should be added any sums due for water rates or gas. Then followed this clause: “ And it is further agreed, that the lessor shall have a lien as security for all the rent, and interest, gas bills and water rates aforesaid, or for any damage to building due from lessee, upon all goods, wares, chattels, implements, fixtures, tools, and all other personal property, which are, or may be put on the demised premises, belonging to the lessee, or to any one holding or claiming the demised premises, or any part thereof under him as assignee, under-tenant or otherwise; and such lien may be enforced on the non-payment of any of said rent, interest, water rent or gas bills by the taldng of such 'property and the sale thereof in the same manner as in case of a chattel mortgage on default thereof; such sale to be made upon six days’ notice posted upon the demised premises, or served upon said lessee. Such lieu, however, shall not be enforced against any property, which, being a part of stock in trade, shall have been sold in the regular course of business.”
    It was found by the trial judge (eleventh finding), that at the time of the execution of this lease it was agreed between the parties thereto that the lessee “ should remain in possession of the said mortgaged goods in said store, and that he might sell the goods covered by said mortgage, in said store, and use the proceeds in his business, buying other goods with the money as opportunity offered, and using the proceeds of the sales to meet his liabilities, and in the prosecution of his business, and in supporting his family and paying his hired helpand also (twelfth finding), “ That at the time said chattel mortgage lease was executed, the said Henry F. Yan Dake was in possession of said store and all the goods therein, and thereafter continued in possession of said store and of the mortgaged goods, and continued to deal with the said mortgaged property, consisting chiefly of boots and shoes, in which he was a retail dealer, as he had been accustomed to do before the giving of the chattel mortgage lease, buying and selling boots and shoes as opportunity offered, and using the proceeds of his sales in the prosecution of his business, and in the support of his family, and in paying his hired help, in all resects as if no mortgage were in existence, all of which was done with the knowledge and approval of the plaintiff; and that the plaintiff never had possession of any of the goods covered by said chattel mortgage lease.”
    This condition of affairs continued until the 5th of January, 1881, when H. F. Yan Dake made general assignment to defendant DeWitt 0. Ellis, of all his property, including that upon the leased premises, for the benefit of, his creditors, among whom as a preferred creditor was the other defendant, Harriet S. Yan Dake. On the same day, and without notice, actual or constructive, of any claim on the part of the plaintiff, Ellis, as assignee, took possession of the property, and soon thereafter sold and converted it into money, realizing over and above expenses about $2,000. Afterward, but before the commencement of this action, the plaintiff demanded of the assignee, either payment of the rent accrued and due, “ or delivery of the stock of goods, fixtures and other personal property in the store, to him as such lessee; claiming a right and lien under said lease prior and superior to that of said Ellis under the assignment.”
    Mrs. Yan Dake’s debt accrued prior to the lease, and is greater than the proceeds of the assigned property. The plaintiff asked judgment that he be declared to have a prior lien upon the assigned property and its proceeds, and that he be paid therefrom $1,833.33 rent actually due, and $6,966.66 which became due by reason of default on the part of the lessee.
    The trial court, as conclusions of law, found:

      “ First. That the said plaintiff had no lien on the goods in said store at the time the said assignment was made, as against the said assignee and the creditors of the defendant Henry F. Yan Dake.
    “ Second. That the said chattel mortgage clause in said lease was absolutely void as against the assignee and creditors of the defendant Henry F. Yan Dake.

      “ Third. That said chattel mortgage clause in said lease is fraudulent in law, as against the assignee and creditors of the said Henry F. Yan Dake.

      ‘■'•Fourth. That the complaint be dismissed with costs against the plaintiff.”
    The plaintiff excepted to these several conclusions of law.

      J. A. Stull for appellant.
    As between plaintiff and defendant, Henry F. Van Dake, the lease was a valid instrument, and all its provisions, including the lien clause in question, were in force and binding upon him as lessee before and at the time he executed his general assignment, and ever since. (McCaffrey v. Wooden, 65 N. Y. 459; Wisner v. Ocumpaugh, 71 id. 113; Hale v. Omaha Nat. Bk., 49 id. 627.) The wife of Henry F. Van Dake could not, as a general creditor, attack the lease or prevent its enforcement, either on the ground that it had not been filed in the proper clerk’s office, or on the ground that it was fraudulently executed. (Hayman v. Jones, 7 Hun, 238 ; Thompson v. Van Vechten, 27 N. Y. 568; Jones v. Graham, 77 id. 628; Niagara Co. Nat. Bk. v. Hadeliff, 17 id. 584.) Even if the lease be regarded merely as a chattel mortgage, the only ground on which it can be attacked by the only other defendant — DeWitt 0. Ellis, as assignee of Henry F. Van Dake for the benefit of his creditors — is fraud in its execution. ( Van Heusen v. Radcliff, 17 N. Y. 582, 584; Inre Collins, 12 Nat. Bk. Reg. 379 ; Slade v. Van Vechten, 11 Paige, 21; Bur-rill on Assignments [4th ed.], 589.) Such an assignee cannot defend successfully against a chattel mortgage on the ground that it has not been filed according to the statute. (Laws of 1833, chap. 279, as amended by Laws of 1879, chap. 418; Niag. Co. Nat. Bk. v. Lord, 33 Hun, 564; Van Heusen v. Hadeliff, 17 N. Y. 582, 584; Southard v, Benner, 72 id. 424; 24 Hun, 49.) The lien-clause in the lease did not constitute a chattel mortgage, so as to subject the lease, or the plaintiff’s rights' thereunder, to the provisions of the several statutes regarding either the filing of chattel mortgages (Laws of 1833, chap. 279, as amended by Laws of 1879, chap. 418), or the fraudulent conveyances or transfers of personal property. (3 R. S. [7th ed.] 2328, part 2, chap. 7, title 2, § 5; McCaffrey v. Wooden, 62 Barb. 322-23 ; Butler v. Miller, 1 N. Y. 496;
      Shuart v. Taylor, 7 How. Pr. 251; Porter v. Parmly, 43 id. 445 ; S. C., 34 N. Y. Supr. 398 ; Jones on Chat. Mort., §§ 8, 9, 11; Parshall v. Eggart, 52 Barb. 367; Brown v. Bement, 8 Johns. 96; Langdon v. Buell, 9 Wend. 80; Patchin v. Pierce, 12 id. 61; Sawyer v. Fisher, 32 Me. 28; Gushee v. Robinson, 40 id. 28 ; Shaw v. Wiltshire, 65 id. 485; Metcalf v. Fosdick, 23 Ohio, 114; Groton Manuf. Co. v. Gar-diner, 11 B. I. 626; Palton v. Landahn, 27 Mich. 529; Jones on Chat. Mort., § 11; Southard v. Benner, 72 N. Y. 427; City Bk. v. Westbury, 16 Hun, 458; Otis v. Hill, 8 Barb. 102.) The General Term erred in holding that the. plaintiff was not in as good condition to maintain this action as he would have been if his lease had been a chattel mortgage; and also, that no actual lien existed against the property at the time it was taken in custody by the assignee; and that the equities of the creditors are just as great as those of the plaintiff, and the court has no power to prefer one creditor over another. (1 Pomeroy’s Eq. Jur. 145-148, §§ 165, 166, 167; 2 id., § 1233 et seq., and notes; Brace v. Duchess of Marlborough, 2 P. Williams, 491; Ex parte Knott, 11 Ves. 609, 617; 3 Pomeroy’s Eq. Jur. 230, 231, § 1233 ; id. 233, § 1235 ; Holroyd v. Marshall, 10 H. of L. Cas. 191; McCaffrey v. Wooden, 65 N. Y. 465-7; Jones on Chat. Mort., §§ 170-175; Payne v. Wilson, 74 N. Y. 348; Hale v. Omaha Nat. Bk., 49 id. 626 ; Chase v. Peck, 21 id. 581; Whiting v. Eichelberger, 16 Iowa, 422 ; Lynch v. Utica Ins. Co., 18 Wend. 236; Husted v. Ingraham, 75 N. Y. 251, 257; Boorman v. Wis., etc., Co., 36 Wis. 207; Mitchell v. Winslow, 2 Story, 630; Hale v. Omaha Nat. Bk., 49 N. Y. 634.)

      John M. Davy for respondents.
    If the mortgagee intended the mortgage to operate as a valid security against,the creditors of the mortgagor, he should have divested the mortgagor of the possession of the goods, or the mortgage should have'been filed as required by law. ( Yenni v. McNamee, 45 N. Y. 621 ; Thompson v. Van Vechten, 27 id. 568; Steele v. Benham, 84 id. 638 ; Topping v. Lynch, 2 Robt. 484.) The fraudulent nature of the mortgage consisted in giving the mortgagor credit by allowing him to retain possession of the mortgaged goods, and to sell them and to use the proceeds in his business and otherwise, thereby inducing parties to give him credit. (Potts v. Hart, 99 N. Y. 172; Brackett v. Harvey, 91 id. 214; Southard v. Benner, 72 id. 424; Russell v. Winne, 37 id. 591.) The assignee in this case represents the whole body of creditors, and he had a right in their behalf to impeach the validity of the mortgage and show that it was fraudulent and void. (Southard v. Benner, 72 N. Y. 427; Ball v. Slafter, 26 Hun, 354; S. C., 98 N. Y. 622; Hard v. Milligan, 8 Abb. N. C. 59 ; Southard v. Pinckney, 5 id. 184; McCaffrey v. Wooden, 65 N. Y. 465.) At common law there could be no lien upon goods without possession. (3 Pars, on Cont. 250 ; Willard’s Eq. Jur. 123 ; Black v. Bogert, 65 N. Y. 601; McFarland v. Wheeler, 26 Wend. 467; Grinnell v. Cook, 3‘ Hill, 485; Coryell v. Perrin, 6 Robt. 40 ; Walther v. Wet-more, 1 E. D. Smith, 24.)
   Danforth, J.

Upon this appeal the expectation of success seems to rest chiefly upon a supposed distinction between the clause in question and a chattel mortgage. It is upon the appellant’s points styled a lien clause,” and the contention is that as it does not purport “ to pass the title to the property, it cannot be said to be a mortgage, or a conveyance intended to operate as a mortgage,” within the provisions of law in regard to the filing of chattel mortgages (Laws of 1833, chap. 279 ; Laws of 1879, chap. 418), or those which relate to fraudulent conveyances or transfers of personal property. (2 R. S., tit. 2, part 2, chap. 7, p. 136, § 5.)

Ho question upon such supposed distinction appears to have been presented upon the trial, but on the contrary the complaint asks that payment be made out of the mortgaged chattels ; that the assignee be enjoined from disposing of said mortgaged chattels,” and that “ a receiver of said mortgaged chattels and the proceeds thereof be appointed.” So, while it is impossible to tell from the record how much of the complaint is admitted or what is denied, it is apparent that such was the understanding of the defendants, for the instrument is repeatedly referred to as “ a chattel mortgage lease,” and the goods as mortgaged goods,” and want of filing of the instrument and the agreement made at the time of its execution, that notwithstanding its provisions the lessees might continue to deal with the property in all respects “ as if no mortgage was in existence,’ ’ are set up as affirmative defenses. In the same language the trial judge deals with the case in his findings, and there was no request for any different finding or interpretation. But I do not think it is material to inquire how the paper may be characterized. Its form was, no doubt, devised in order to give by contract to the landlord of the demised premises that priority for the collection of rent which once existed by statute, but which the legislature had at the time in question abolished (Laws of 1846, chap. 274), thus leaving the landlord to take his place with other creditors, and a debt for rent to be enforced like other obligations. What then is the effect of the contract as expressed by the clause lying at the bottom of this controversy. It cannot be doubted that it was,as between the lessor and lessee, good as a contract not only as to property in existence and on the demised premises when the lease was executed, but as to that afterward acquired and brought on to them. A similar agreement was examined in McCaffrey v. Wooden (65 N. Y. 459), and a taking by the lessor of property not in existence when the lease was made, justified upon the ground that in substance it .had in equity all the characteristics of a mortgage, or of an equitable lien,' which for the purposes of that case was said to be its equivalent. There the adverse party was the lessee. That doctrine was applied in a similar action (Wiener v. Ocumpaugh, 71 N. Y. 113), against a- person whose relation to the demised premises precluded him from acquiring any rights adverse to those of the lessor, and who, therefore, was in no better position than the lessee.

Here the question is in equity, and is raised by the lessor against an assignee for the benefit of the creditors of the lessee. In the eases cited the lessor had obtained possession of the things in dispute, and the first decision turned upon the validity of the agreement as to non-existent property; the other upon the priority of the plaintiff. So in Hale v. Omaha Nat. Bk. (49 N. Y. 626), there was an agreement for a future lien, and this was held to be sufficient against a defendant who made no title to the property as purchaser, creditor or otherwise, and had nothing but a naked possession tortiously acquired. In other words, the defendant showed no right to question the plaintiff’s claim. Here the assignment to the defendant is conceded to be valid, and it is found that under it he had taken possession of the property and actually sold it without notice of the plaintiff’s claim, or the agreement upon which the claim was made; but notwithstanding all this he has still the avails of the property in his hands, and if the appellant is right in his contention that the defendant’s position is not better than that of the lessee, the plaintiff’s lien will, upon general principles of equity, follow those proceeds.

We cannot agree, however, in that contention: (1). The defendant represents creditors, and may treat as void all agreements made in fraud of their rights. (Laws of 1868, chap. 314.) He has greater power for this purpose than the creditor himself. The creditor can assert no right until by judgment and execution he has a lien, or a right to a lien, upon the specific property; but in favor of an assignee for his benefit, the legislature have substituted a statutory right in place of these conditions. (Southard v. Benner, 72 N. Y. 424.) The defendant availed himself of this right, and upon the facts found by the trial judge, his action in so doing must be upheld. There was not only no delivery or change of possession of the things covered by the agreement, but it was understood between the parties that there should, be neither. It was, therefore, void both at common law (Twyne’s Case, 3 Coke, 80) and by statute. (2 U. S. 136, § 5.) It is true, as the appellant says, the clause is not in express terms characterized as a mortgage, nor are the words “sale,” “transfer ” or “ assignment,” to be found therein, but that does not matter. It takes effect as a mortgage, and the “ lien as security ” is given by agreement, or to take the exact words, “ it is ” between the parties further agreed ” to that effect. While its object may have been to give one creditor priority over another creditor, it also involves a secret trust in favor of the owner of the goods, and forms the very cover of fraud which the statute condemns by declaring that “ every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever,” unaccompanied by delivery, and followed by an actual and continued change of possession, shall be presumed to be fraudulent, as against the creditors of the vendor.” 3STor is it of any consequence when the debt provided for by the assignment was created, whether before or after the lease was executed. It is enough that the relation of debtor and creditor existed at some time whilst such goods and chattels remained in possession of the vendor or assignor. (2 E. S. 136, § 6.) It -is inconsistent not only with this statute but with the principles of equity, that such a lien should be successfully set up, to the exclusion of bona fide creditors, and we are referred to no case where it has been done. The equity of the defendant as a mere representative of creditors is at least equal to that of the plaintiff, while the former has superadded to his equity the legal advantage of possession, and the statutory authority to treat as void a conveyance in fraud of the rights of creditors. In these respects his position is better than that of the lessee, and equal to that of a creditor with judgment and execution.

But the learned counsel for the appellant argues that there was no evidence to sustain the eleventh finding (supra), viz.: that showing a fraudulent arrangement at the time of the execution of the lease, and, therefore, that the provisions of the act of 1858, as to the powers of assignees, are not brought into operation. Conceding it to be valid between the parties, as we have done, we think it fraudulent upon its face as to creditors, and, therefore, void as to the defendant, their assignee. The lessee was a retail merchant. The lease in terms permits him to sell his stock in the regular course of business, and relieves so much of it from the lien. He in fact carried on the business the same after the lease as before. The stock of goods fluctuated, and the plaintiff,had notice that it would do so when he gave the lease; he also knew that the defendant was to, and did continue the business in that way. There was no restraint upon him in regard to it, or the disposition of the money when the goods were sold. We think the finding was fully justified by Edgell v. Hart (9 N. Y. 213), and Gardner v. McEwen (19 id. 123).

The argument for the appellant suggests.no ground on which a court of equity can interfere in his favor.

The judgment should, therefore, be affirmed.

All concur, except Miller, J., absent.

Judgment affirmed.