author: Mayiiam, J.: Learned, P. L :

text:
    HUDSON RIVER TELEPHONE COMPANY, Appellant, v. THE WATERVLIET TURNPIKE AND RAILROAD COMPANY, Respondent.

      JSlectric companies — interference of currents used, respectively, by a telephone and by a street railroad company— the trespassing company must adopt another system ■— the least hurtful system must be employed — the method of operating a road employed by a private corporation is subject to review — priority in time gires the better equity — injunction.

    In an action brought by a telephone company to restrain a street railroad company from using the single-trolley electrical system to move its cars, it appeared that the telephone company was incorporated in 1883, and then began business in the city of Albany, in the transaction of which it discharged the electric current from 'its wires into the earth, which was thus used to complete its electrical circuits; that the defendant, incorporated in 1838 as a turnpike company, in 1863 was •authorized by the legislature to lay railroad tracks in said city, and to operate its road by any power except steam; that, in 1889, the common council of said city authorized it to propel its cars by electricity, and that it adopted for that ■purpose the single-trolley system; that the electric current used by the plaintiff was weak, while Iliac used by the defendant was necessarily quite powerful;
    ■ that the wires of the two companies ran for a considerable portion of Broadway in said city substantially parallel; that both companies were legally in the enjoyment of such portion of Broadway; that (lie more powerful current of the defendant escaped in large quantities, and passing through the earth and other good conductors affected the operation of plaintiff’s lines, causing trouble with its switch-board located on private property, and also making it- difficult for ■customers of plaintiff to hear because of loud noises incident to the passage of a motor in the vicinity of the plaintiff’s wires; that the method of propulsion adopted hy the defendant was in common use in this country, and was the most efficient and economical known; that the difficulties of the situation, so far as the interference of the currents Was concerned, could be entirely avoided by either company —by the plaintiff, by using a complete metallic circuit, and by the defendant, by substituting the double-trolley or storage-battery systems; that it would be much more expensive for the plaintiff to make such change than for the defendant to adopt the double-trolley system.

      Held, that the action oould be maintained.
    That both parties were equally in lawful occupation of the street.
    That the grant to the defendant, by the act of 1863, authorized it to use electrieity as a motive power, and that such use by it was legal.
    That as such power had proved to be one incapable of complete control, and as-injury had resulted from its use, the grant to the defendant must be construed in such wise as not to authorize one corporation to invade or destroy the property of another without condemnation thereof or compensation therefor.
    That the rule that a party must so use his own property as not to injure that of' another applied to this case.
    That the exceptions to said rule were-predicated upon cases where the damage was too remote, and did not apply where, as here, the damage was direct.
    That the consent of the State or a municipality did not affect the question where a cause of action was based, not upon the unlawfulness of an act done in a public street, but upon the wrongful or negligent manner in which it was done.
    That, as it appeared that the injury to the plaintiff could be obviated by the use of the double trolley system, a judgment enjoining the defendant’s use of the single-trolley system, would not deprive the latter of its franchise to use electricity as a motive power.
    That where the legislature has made a grant authorizing a business, and two or more ways exist, by which it can be carried on, one injurious to the rights of others, the other not so, equity will enjoin the use of that mode of operating it wliich is harmful to others.
    That where the legislature has not directed the method or system to be used by a private corporation in the enjoyment of a franchise, the method is not left wholly to the latter’s discretion; and if the method adopted be hurtful to others, the selection is subject to review by the courts.
    That, although the referee found that the system of defendant was the most efficient and economical, the defendant would not be permitted by equity to employ it to the injury of plaintiff, particularly if such injury could be reme died by the defendant at less expense than the cost of changing the plaintiff’s system.
    That, assuming both parties to stand equal at law, the plaintiff having begun the use of electricity six years earlier than the defendant, had the better equity by priority of time.
    That where it appears that the detriment to the plaintiff will be continuous and permanent its remedy at law is not adequate, and it is a proper case in which to apply to a court of equity and ask for an injunction.

      Appeal by the plaintiff, the Hudson River Telephone Company, from a judgment, entered in the office of the clerk of Albany county on the 21st day of November, 1890, dismissing its complaint upon the merits, with costs, after atrial before a referee. The action was brought to restrain the defendant from using electricity for the propulsion of its street cars in such a manner as to interióre with and injure the efficiency of the plaintiff’s telephone service in the city of Albany. On the trial the referee dismissed the plaintiff’s complaint, and on such nonsuit judgment was entered in favor of the defendant, from which the plaintiff appealed to this court.

      I). Gady H&rridk, for the appellant.

      Matrons T. Hun, for the respondent.
   Mayiiam, J.:

In the examination of the questions involved in this appeal it is, perhaps, necessary and proper for this court to inquire whether they have not been substantially settled by the Court of Appeals when the parties were before it on an appeal from the order of the General Term of this department upon the question of the continuance of a temporary injunction granted in this action.

If the Court of Appeals has authoritatively disposed of the plaintiff’s right to recover in this action adversely to that right, as is insisted by the learned counsel for the respondent, then it becomes the plain duty of this court to affirm this judgment. If, on the other hand, the merits of this controversy remain undetermined, then it becomes equally the plain duty of this court to examine and decide the same as presented on this appeal. The complaint, among other things, alleged that the plaintiff was a corporation and incorporated in 1883 under and in pursuance of chapter 265 of the Laws of 1848 and the several acts amendatory thereof, and that ever since 1883 the plaintiff, as such corporation, has been, and still is, engaged in carrying on a telephone business in the city of Albany, and furnishing telephonic communication between people at a distance, both in such city and in other cities and towns at long distance, for which the plaintiff charged and received compensation. The process by which this telephone business was carried on by the use of electricity was described in the complaint with great minuteness.

The complaint also alleged that the defendant was a corporation ■duly incorporated under the laws of New York as a turnpike company under and by virtue of chapter 141 of the Laws of 1828, and thereafter, and pursuant to and by virtue of chapter 233 of the Laws of 1862, and the consent and permission of the common council of the city of Albany granted in pursuance of such last-mentioned act, constructed a railroad track upon and through Broadway, in said city, from the northerly bound of such city to South Ferry in the same, and thereafter operated such railroad by horse-power until about the month of September, 1889. Section 4 of chapter 233 of the Laws of 1862 authorized the propulsion of cars on defendant’s railroad “ by the power of horses, animals or any mechanical or other power, or the combination of them which the said company may choose to employ, except the force of steam.”

On the 17th of June, 1889, the common council of Albany granted to' the defendant the right to propel its cars through the city of Albany on its tracks in Broadway by electricity, and to erect poles and string wires in the streets for that purpose, with certain restrictions and limitations on the exercise of that right contained in the ordinance.

The defendant under • the latter grant adapted its tracks to the use of electric cars, and strung its wares and constructed its dynamo, power and other fixtures and appliances for the purpose, and adapted to the propulsion of its cars, upon a system known as the single-trolley system, and wras about to, or did, commence the operation of its cars in Broadway in such city, by electricity upon that system, when the plaintiff commenced this action, and alleged in its complaint, and proved by affidavits, that the operation of the defendant’s railroad in that maimer and upon that system would injure ,and seriously impair the usefulness and efficiency of its telephonic service, and prayed for an injunction restraining the defendant from operating such road upon that system.

A temporary injunction was obtained and continued by an order of the Special Term during the pendency of this action, from which order an appeal was taken to the General Term, where the same was continued, unless the defendant filed security for any damage which the plaintiff might sustain by reason of the acts of defendant pending the action, in which case the injunction should be discharged. From this order the defendant appealed to the Court of Appeals, where the appeal was dismissed on the ground that the granting of an injunction pendente lite was a discretionary order not reviewable by the Court of Appeals (121 N. Y., 397); but in discussing the question and arriving at that conclusion the learned judge -who delivered the opinion of the court uses language which, if employed in pronouncing upon this case when properly before that court for determination, would seem to be decisive of the case.

But the learned judge concludes his opinion in a manner which, shows that lie did not intend to express an opinion upon the merits, and the whole subject seemed to be relegated to the trial court to be disposed of by it and the appellate courts in the usual and orderly method of trials and appeals, and to that end he concludes his opinion as follows:

“ But we think we ought not to dispose of the case upon its merits in this proceeding. The questions are new and difficult and courts elsewhere have differed upon them. The trial of the case upon the merits is now proceeding, wherein the facts will be judicially ascertained, and in case an appeal shall be taken upon the final judgment rendered to this court, we shall then be better able than now to determine the ultimate rights of the parties. The present appeal should, therefore, be dismissed.”

It is quite apparent, from the above-quoted remarks of the learned judge, that the whole subject in controversy was remitted to the trial court for its determination as an original question, and having been disposed of by it, as such it comes to this court on appeal to be reviewed as any other case coming before this court in which there has been no authoritative determination by the Court of Appeals. The referee finds the organization and incorporation of the plaintiff and defendant substantially as alleged in the complaint; that the plaintiff was incorporated in the month of April, 1883, under and in pursuance of the provisions of chapter 265 of the Laws of 1848, and the several acts amendatory thereof and supplementary thereto, and ever since 1883, as such corporation, it has been and still is, engaged in carrying on the telephone business in the city of Albany, which business consists of furnishing means of communication between people at a distance from each other by the transmission of sound, or the human voice; and that in the transaction of such business the use of a current of electricity of an extremely minute character is required; and that the instruments necessarily used in utilizing such current are delicate and sensitive in a high degree.

The referee also finds that persons desiring to communicate with each other are placed in communication through a central office, or exchange; and that the plaintiff’s central office is located in a building on the west side of Broadway in the city of Albany. The report also shows that the telephone service of the plaintiff is furnished to persons hiring the same for a fixed period at a stipulated price, who are called subscribers; and also to public stations where each use or communication is paid for by any person desiring to use the same, on payment therefor, and that all public and private stations are connected to the central office, or exchange, by a separate wire, which is also connected with a magnetic bell or annunciator at the exchange, and also at the station, or house Or office of the subscribers ; and that the plaintiff has connecting lines with stations located in the city of Troy, the village of West Troy and various other cities and villages at long distances from the plaintiff’s central office, and connected therewith by wire and wires as before described. The referee also finds that the plaintiff has expended many thousand dollars, and now has many thousand dollars invested in its plant and equipments in the city of Albany, and a large number of poles erected on Broadway and elsewhere in Albany, and on its various lines in and outside of such city, and has procured licenses and permits of the owners of buildings to erect poles upon and string wires over and upon their premises, and that plaintiff has subscribers in all parts of the city of Albany who have heretofore been able to communicate, by means of plaintiff’s telephone, with West Troy and various other cities and villages.

The referee also finds that the defendant is a corporation duly organized and incorporated under and by virtue of chapter 141 of the Laws of 1828, and chapter 233 of the Laws of 1862, and that by the Law of 1862 the defendant was authorized to maintain one or more railroad tracks through Broadway and North Ferry street, in the city of Albany, with the consent of and under such restrictions as might be imposed b.y the common council of the city: and shortly thereafter constructed railroad tracks on the road-bed of its turnpike, from West Troy, through Broadway, in Albany, to South Ferry street, in said, city, and operated such railroad by the use of horse-power for the propulsion of its cars.

On the 17th of June, 1889, the defendant obtained permission from the city of Albany to erect iron posts of such form and height as might be approved by the board of contract and apportionment of the city, on both sides of Broadway, between the south line of South Ferry street and the north line of the city * * * and to string and place wires thereon in such manner that power might be communicated by means of electric motors to be placed on the cars of the defendant, and operate its cars through Broadway and North Ferry street by means of electric motors upon the single-trolley system. The referee also found that, under the provisions of chapter 233 of the Laws of 1862, the defendant was authorized to use the power of electricity to operate its railroad; and that prior to the commencement of this action the defendant had fitted its road for operation of electricity and had prepared cars for running on said road adapted to use by electricity, but before it had erected a post or strung a wire it was, through its president, notified by the plaintiff that if it attempted to operate its road by means of electricity upon the system proposed, it would seriously interfere with, if not destroy, the telephone business and service of the plaintiff.

The referee also found that the electricity used by the defendant in the propulsion of its cars is collected or generated by machinery propelled by steam in what is termed the power-house, and that in operating the railroad by electricity the defendant will cause large •quantities and powerful currents of electricity to be generated at ■the power-house, which will pass from the dynamos in the powerhouse upon and through said trolley wires to points where the trolley wheels come in contact therewith, thence to pass down said trolley, through the conductors to the motors, through the motors to the conductors connected with the running gear of the car, and thence to the rails of defendant’s road, and thence in part through the rails and copper-wire connections back to the place of generation ; but that a portion of such electricity and electrical currents will escape ■or pass from the rails, copper wire and copper connection into the ■eartli, and pass out 'through the earth, and electrical conductors found therein, such as gas and water pipes, to a considerable distance from the track of defendant’s • railroad, and thus come upon the wires of the plaintiff’s system, the ends of which are inserted in the earth or connected with gas or water pipes, and from them into and upon the telephonic apparatus of the plaintiff.

That whenever the trolley wires of the defendant’s road run for any considerable distance parallel, or substantially parallel with the wires of the plaintiff’s system, and at short distance therefrom as in the ease of said street called Broadway, a current of electricity, by what is termed induction, will be excited or induced upon the parallel lines of the plaintiff’s wires by the currents of electricity passing upon such parallel wires of the defendant, and the current of electricity so excited or induced upon the plaintiff’s wires will pass into and upon the system and apparatus of the plaintiff. That the stations of the telephone company and subscribers are located upon private property, and that the telephone service is not disturbed by the conduction ” or “ leakage ” of the railway currents, except when said currents flow upon the private property of either the telephone company or of its subscribers.

That, by reason of the currents of electricity so escaping from the defendant’s tracks, and of the currents of electricity so excited and induced upon the plaintiff’s parallel wires by coming into or upon the wires and telephonic system and apparatus of the plaintiff, many ■of the annunciators of the plaintiff’s exchange will be caused to drop, to the great interruption and detriment of the plaintiff’s business ; and loud noises will be produced in a large portion of plaintiff’s telephones by reason whereof the beneficial use of the same will be frequently rendered difficult and unsatisfactory, and at many times impossible, to the great detriment of the plaintiff and its business, and such detriment will be continous, and that, therefore, the plaintiff will have no adequate remedy at law. That by the adoption and use of either what is commonly called the double-trolley system, or what is commonly called the storage-battery system, as the same are described in the evidence, given upon the trial herein, the defendant can obviate all the damage and injury complained of herein by the plaintiff and hereinbefore described.

The adoption and use of either of said systems by the defendant would necessitate the expenditure of large suras of money for construction, maintenance and operation in excess of those required therefor by the single-trolley system heretofore adopted and used by the defendant and hereinbefore described. That the operation of the defendant’s road upon the double-trolley system would be much more liable to accidents and interruptions than upon the single-trolley system.

That the plaintiff by making each of its currents a metallic one, as described in the evidence given upon the trial herein, can obviate all the damage and injury complained of by it, herein and herein-before described. That it would cost the plaintiff much more to make each of its currents a compílete metallic one as aforesaid than it would cost the defend ant to change its system from a single-trolley to a double-trolley one. That it would cost the plaintiff much more to maintain such complete metallic current than it would cost to maintain its currents as now constructed. That the plaintiff can, by adopting and using what is called and known as the McClure device or system, and described in the evidence given at the trial herein, upon a portion of its line, obviate to a considerable extent the effect upon its telephone of the currents coining in and upon its wires as above set forth, but that such effects would to a certain damaging extent continue after the adoption and use of such device or system, and that the adoption thereof would cost the plaintiff several thousand dollars. The referee also found that the current of electricity used by the plaintiff is so slight that it can in no wise affect the defendant, and that the single-trolley system is the only system of electric-railway propulsion that in any degree affects the telephone service, and that the storage-battery system and double-trolley system are now in practical operation in various parts of this country and Europe, and that both of the last-mentioned systems are operated upon and over roads with heavier grades than those upon the defendant’s road; and that there are no curves, turnouts or cross-overs upon the defendant’s road to prevent the use of either the storage or double-trolley system, and that the operation of the defendant’s railroad, either by the double-trolley or storage-battery system, would prevent any interference on its part with either the plant, equipment or service of the plaintiff. The referee also found that the plaintiff had between fourteen and fifteen huhdred subscribers, and twenty-seven out-of-town lines, constituting the Albany exchange; and that the central office or exchange of the plaintiff being situate immediately upon the line of defendant’s road, any disturbance to' such central office or' exchange will be communicated to all the lines of the plaintiff; and that the plaintiff had erected its poles and strung its wires through the streets of the city of Albany, and was using electricity and the earth as a return current therefor, for a number of years before the defendant attempted to make any use of electricity as a propelling force for its cars; that the first electric railway was built in 1879, and that they have only been in use commercially in this country for the last five or six years.

The referee also found that the only way plaintiff can prevent being interfered with and injured is by making a metallic circuit on all of its lines, and that the plaintiff’s present switch-board cannot be used for a metallic-current exchange, and that a new switch-board will cost about twenty thousand dollars, and that to change the plaintiff’s exchange from a ground-current exchange to a metallic-current exchange will cost the sum of $120,000, and that the highest estimate of expense in exchanging the defendant’s system from a single-to a double-trolley system is the sum of $39,520.

The referee found, as matter of law, that the plaintiff had the right to erect its poles and string its wires through the streets of the city of Albany, and conduct the telephone business by means thereof. The referee also found and decided that, upon the pleadings and proof, the plaintiff has failed to establish a cause of action against the defendant, and that the defendant is entitled to judgment against the plaintiff, dismissing the complaint upon the merits and for costs.

The counsel for the plaintiff excepted to this conclusion of the referee, and also to numerous other conclusions of law as well as to numerous findings and refusals to find by the referee. The facts found by the referee differ widely from those before the Special and General Term of this court and the Oourt of Appeals, when this case was before the courts on appeal from the order continuing the injunction pendente lite. In considering the questions raised on this appeal, I think we must start with the assumption that both the plaintiff and defendant held valid charters and grants from the State and tlie municipal authorities of the city of Albany to conduct their respective business in that city. The plaintiff, under the grants and concessions to it, had the right to establish its exchange, set its poles and string its wires in the streets, and over and upon private property when it had acquired that right of the individual owners, either by grant or license, and thus to carry on the business of telephoning; and that the defendant, in like manner, had the right, by legislative grant and municipal ordinance, to lay its tracks in the streets of the city, and to propel its cars over the same by any power authorized in the act of 1862, and thus to operate its railroad.

Starting with this assumption, we must next inquire whether either of these parties, may so conduct its own business as to injure or impair the business of the-other. And if so, to what extent such injury may be lawfully carried In examining this question, we must endeavor to ascertain what rights the respective parties acquired in the street under their grants, and whether, in any event, the defendant can, without liability, permit currents of electricity, induced by it in the operation of its railroad, to escape upon the private property of the plaintiff to the damage of the same. The grants to both of these corporations of their respective charters for the jrroper and necessary carrying on of their respective business are for public purposes, and either may, in a proper case, condemn private property (chap. 471, Laws of 1853, § 2; People ex rel. Postal Telegraph Co. v. Hudson River Telephone Co., 19 Abb. N. C., 466); and each were authorized by law and city ordinance to conduct their business-in Broadway in the city of Albany. '

While it is true that at the time the defendant, by the act of 1862, acquired the right to lay down rails and operate a railroad in Broadway electricity was unknown as a motive power for railroads, yet this court has held that the authority given by that act embraced electricity. (Hudson River Telephone Company v. Watervliet Turnpike and Railroad Company, 56 Hun, 67.) I think that within this case it is no longer an open question for the determination of this court as to the right of either of these parties to the exclusive occupancy of the street, by its electric currents, as this court in that case expressly held that “ the grant to each company is to employ upon the same street the invisible energies of nature; and since it is in vain to define the fields that confine them, we are, perforce, constrained to seek for methods which will neutralize or-reduce to a minimum the injurious effect of their contact or interference with each other.” While, therefore, the above must bo the law <>f this case as to the street in which both parties have, under the grants, equal immunity, it by no means follows that either party-may permit its current, used properly for its own business, to stray upon the private property of the other, to its damage. As we have seen, the referee has expressly found “that the stations of the telephone company and subscribers are located on private property, and that the telephone service is not disturbed by the ‘ conduction or ‘leakage’ of the railway current, except when said current flows upon'the private property of either the telephone company or that of the subscribers.” If, therefore, we assume that the legislative grant gave the defendant the authority to use, as a motive power for the propulsion of its cars upon the tracks which it was permitted to lay down in Broadway, an energy or power which would pervade the entire street, can it be held that, as an incident of that grant, the defendant could adopt a power which could not be confined to the street, but would spread out upon the private jjroperty of-abutting owners, to their damage? In answer to this question, we are referred by the learned counsel for the defendant to the rule that.grants of franchises to be exercised for the jmblic convenience must be liberally construed for the promotion of their beneficial purpose, and we are referred to 1 Morawetz on Private Corporations (§ 365), where it is laid down as a rule that “ there can be no doubt that railroad companies may adopt all improvements in their business which a liberal management and inventive genius can provide.” Again, “ Doubtless it is to be held that every grant of power is intended to be efficacious and beneficial and to accomplish its declared object, and that it carries with it such incidental powers as are requisite to its exercise.” (Matter of City of Buffalo, 68 N. Y., 172.)

“Within the limits of a substantial adherence to purpose, the empowering clauses of incorporating instruments should be construed largely and liberally so as not to defeat the purpose by a too narrow restriction of the means.” (Mayor of Norwich v. Norfolk Railway, 4 El. & Bl., 433.) While these rules above referred to and quoted are doubtless sound and should govern in a proper case, we fail to see their application to this question. It cannot, we think, be claimed that the application of these principles will authorize such a construction to be placed upon a legislative grant as to authorize one corporation to invade the private property of another and destroy or appropriate it without condemnation and compensation. The sound and just elementary rule still prevails, that a party must so use his own property as not to injure his neighbor. It is true that exceptions to this rule may exist in certain cases when the act done is in the lawful and reasonable use of one’s own property and when the damages to another are so remote as not to be readily traceable as the consequence of the act complained of. (Cogswell v. N. Y., N. H. and H. R. R. Co., 103 N. Y., 18.) This rule is not changed by any right or authority conferred upon the defendant by the act of 1862, or the authority conferred on it by the municipality to use electricity as a motive power. The authority thus conferred must be deemed limited within the rules of law by which the rights of owners of abutting property are protected in the use and enjoyment of their • property.

The consent of the State or the municipality to the doing of an act in a public street does not vary the rig]its and liabilities of the parties in respect to the cause of action, when it is based on the wrongful or negligent manner in which the act was done and not upon its unlawfulness. (Village of Port Jervis v. First National Bank, 96 N. Y., 556; Mairs et al. v. Manhattan Real Estate-Association, 89 id., 503.) Consent by a municipal corporation to a person to do a lawful act merely permits it to be done in a careful, prudent and lawful manner, and when performed in any other manner, and injury to a third person ensues, the author of the injury is liable therefor. Upon receiving a license from the body authorized to grant it 'x' * * the licensee impliedly agrees to perform the act in such a manner as to save the public from danger and the municipality from liability.” (Village of Port Jervis v. First National Bank, 96 N. Y., supra, and cases there cited.) The authority conferred by the legislature in this case was to propel -their cars by the power of horses, animals or any mechanical or other power, or the combination of them which the said company may choose to employ excepting the force of steam.” The language of the act of the legislature conferring this grant or franchise is similar to that under consideration by the Court of Appeals in Cogswell v. New York, New Haven and Hartford Railroad Company (103 N. Y., 10). Under the authority conferred by the legislature to operate a railroad, the defendant erected its engine-house and located its coal yard in close proximity to the plaintiff’s dwelling, so that the smoke, gas and dust seriously affected the comfort and health of the occupants of the house. In an action for damages, by the owner of the house against the railroad company, the defense was the legislative grant of authority and that the defendant had not abused or exceeded the authority given. The trial court found “ that whatever damage has resulted to the plaintiff or her property by reason of the defendant’s use and occupancy of its engine-house and coal bins is damnum absque injuriad

The Court of Appeals reversed the judgment of the trial court in this case, and in the discussion of the power of the legislature recognized that in some instances the legislature may subject private property rights to inconvenience or loss for the promotion of the public good, but in laying down that rule the court uses this qualifying language. “ But the statutory sanction, which will justify an injury to private property, must be express, or inust be given by clear and unquestionable implication, from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury. This is but an application of the reasonable rule that statutes, in derogation of private rights or which may result in imposing burdens upon private property, must be strictly construed. For it cannot be presumed, from a general grant of authority, that the legislature intended to authorize acts to the injury of third persons where no compensation is provided, except upon conditions of obtaining their consent. This construction of statutory powers applies with peculiar force to grants of corporate powers to private corporations, which are set up as a justification of corporate acts to the detriment of private property.” (Cogswell v. N. Y., N. H and H. R. R. Co., supra.) It will hardly be contended that the legislature, in making the grant to the defendant in 1862, contemplated the use of motive power by the defendant in running their railroad, which would not only pervade the whole of Broadway, but would extend beyond the limits of that thoroughfare and drive out of use, on private property, industries lawfully and properly established there, without the consent of the owner; but simply by the exercise of superior and irresistible force. Unless the legislature did contemplate such a result and provide for it in the act, the defendants, under the legislative grant, acquired no right thus to injure and destroy the plaintiff’s property or impair its use, especially on its own premises. This would seem to be the clear and inevitable result of the decision of the Court of Appeals in the case last cited. It will be observed in this case that the language in the legislative and municipal grant of authority to the defendant relates only to the power to be used by it, and specifies no particular mode of its application.

If the single-trolley system was the only method of applying electricity as a motive power to cars, then the authority to use electricity might be said to contain an authority for the use of that system notwithstanding its injurious effect upon others, provided the legislature has the constitutional power to grant a right to a corporation to invade private rights or destroy the property of other corporations or individual. But as the case discloses that the single-trolley system is not the only method of applying electricity as a motive power for the propulsion of railroad cars, we are not called upon to examine that constitutional question. The referee having found that all injury to the plaintiff’s business and property can be obviated by the adoption of the double-trolley system or storage-battery system, it follows that enjoining the use of the single-trolley system would not deprive the defendant of the use of electricity as its motive power, but leave it in the beneficial enjoyment of the grant by the legislature and of the ordinance of .the common council, neither of which confine the grant of the use of electricity to the single-trolley system. The defendant, having it in its power to avail itself of the use of electricity, conferred by the statute and ordinance, in a manner in which the rights of the plaintiff would not be affected injuriously, cannot be permitted to justify an injury to the plaintiff under such statute and ordinance.

In the case of Hill v. Managers of Metropolitan Asylum District (L. R., 4 Q. B. Div., 433), the act of parliament authorized the erection of an asylum for infirm and insane paupers in the Metropolitan Asylum District in London, to be designated by the Poor Law Board, and authorized the purchase and leasing and fitting up a building for that purpose.

• The act referred to small-pox patients as among the class of persons to be provided for. Under this act the managers erected a hospital in close proximity to the plaintiff’s house, which the jury declared a nuisance, no precise definite site was fixed by the act. of Parliament, except a general designation of the Metropolitan Asylum District in London. The commissioners might have selected a site which would not have injured the plaintiff. The defendant sought to justify under the act. But it was held that the statutory sanction sufficient to justify the commission of a nuisance must be-expressed; that the particular land or site for the hospital must have-been defined in the act; that it-must appear by the act, while defining certain general limits, that it could not be complied with at all without creating the-nuisance. Lord Watson, when this case came up on appeal (L. R., 6 App. Gas., 213), used this language: “ If the order of the legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection, that what is contemplated by the statute cannot be done without nuisance, unless they are also able to show that the legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put in execution or not, I think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for that, purpose.”

The reasoning and conclusion of the Court of Queen’s Bench in the above case was adopted and fully acquiesced in by the Court-of Appeals in the case of Cogswell v. New York, New Haven and Hartford Railroad Company (103 N. Y., supra). The rule, therefore, seems settled and of universal application that when a grant, is given by the legislature to conduct a business in the conduct of which two or more ways exist, and by one of which the rights of others will be injuriously affected, and by the adoption of the other methods other parties will not be injured, a court of equity will interfere and enjoin tlie use of tlie mode by wbicli tlie rights of others will be injuriously affected.

We are cited to numerous cases by the learned counsel for tlie defendant, where it is held that injuries remote and consequential must be submitted toby the citizen in the march of public improvements, and that the injury in such cases is damnum absque injuria, such as building docks in navigable rivers, cutting down on the line of abutting premises in excavating for public streets, and the like; but I'have found no case like this, where the injury is direct, and not remote, and where the act has not been ordered by the legislature, where the court lias refused relief or redress to the party injured. It is also urged by tlie learned counsel for the defendant that, as the electrical system to be used by the defendant in the propulsion of its cars has not been defined by the legislature, it must be left to the determination of tlie defendant as to what method or system it will adopt, and that the power of selection is not the subject of review.

The doctrine when applied to public bodies and municipalities is sound and supported by authority. But, I think with private corporations and individuals a different rule obtains, and while they may adopt such devices as they please, so long as their selection does not affect the rights of others, they are bound so to use their own as not to injure others.

An individual may use for his own purposes a powerful, "ferocious and dangerous animal, but lie must do so at his peril; and if others are injured by such animal, known by the owner to be dangerous, no one would question the liability of the owner.

But it is also said that the defendant had selected the best-known method, and, therefore, cannot be interfered with in its use. It is true that the referee has found that the system of the defendant in the use of electricity as a motive power, is the most efficient and economical system in use. It is equally true that the plaintiff’s system of telephoning i^shown to be the usual and approved method, and it is not claimed that its use in any way injures the business of the defendant. Assuming, as we must, that each company within their chartered }Drivilege is in the pursuit of laudable and useful business, no reason is perceived why they should not each be accorded the protection guaranteed by law to other business and pursuits, and in like manner be subject to the duties and obligations imposed by law. Wood, in his Law of Nuisances, defines such rights and obligations as follows: “ Every person who, for his own profit or advantage, brings upon his premises and collects and keeps there, anything which, if it escapes, will do damage to another (subject to some exceptions rendered necessary for the protection of industrial interests), is liable for all the consequences of his acts, and is bound at his peril to confine it and keep it upon his own premises.” (Wood’s Law of Nuisances, § 111, p. 115.) We see no reason why this principle is not applicable to the parties in this action. As we have seen from the report of the referee, no injury occurs to the plaintiff until the electricity generated or produced by the defendant invades the plaintiff’s premises, in violation of the above principle. But it is, doubtless, the duty of the court, in the exercise of its equitable power, to protect, as far as practical within legal rules, both these great modern improvements; and, as has been intimated by this court and the Court of Appeals when this case was before it on a motion, if practicable, save both of them to the public use, upon just and equitable principles and at the least possible expense and burden to the parties. On that motion it was assumed that the telephone could change its system from a ground current to a metallic current at less expense than the defendant could change from a single to a double-trolley system. The trial of the action and the report of the referee now demonstrates that the expense of changing to a metallic current by the plaintiff would be over $120,000, while that of changing from the single to the double-trolley system would be but about $33,000. Thus it appears that, in the light of economical expenditure of money, the defendant can obviate the difficulty complained of at much less expense than the same can be done by a change of plaintiff’s system.

Again, it is worthy of consideration that the plaintiff established its plant and prosecuted its business for some years before the use of electricity was known as a motive power for railroads; and while this court has held that the right of the defendant to use electricity'was given by the act of 1862, it could not have been anticipated by the plaintiff at the time it established its plant and commenced its business that it could be interfered with by any power which the defendant, by that act, could employ as a motive power. But if we assume, as we must, tliat the act of 1862 .and the1 act under which the plaintiff was incorporated, gave to these parties equal equity, still the employment of the plaintiff’s •capital in the establishment of its business, long before either the plaintiff or defendant knew of the defendant’s right to use electricity, would seem to give the plaintiff a superior equity. In Pomeroy’s Equitable Jurisprudence (§ 114), .the rule is laid down as between parties having only equitable interests, if their •equities are in all respects exactly equal, priority of time will give the better equity.

Having reached a conclusion that the defendant is not protected by its grant from the State or the city against the consequences of allowing its currents to flow upon the private property of the plaintiff, and that of its fixtures upon the premises and property of its patrons, to the injury of the plaintiff and its business, and that the injury complained of is not damnum absque injuria, the remaining question is, is this a proper case for equitable relief by way of injunction; or lias the plaintiff a complete and adequate remedy at law? The referee finds, and the evidence clearly establishes, that the injury complained of is continuous and permanent; that by reason of the currents of electricity so escaping •from the defendant’s tracks, etc., and of the currents of electricity so ■excited or induced upon the plaintiff’s parallel wires by the parallel wires of the defendant coming into or upon the wires of the telephone system and apparatus of the plaintiff, many of the ammneia■tors of the plaintiff’s exchange will be caused to drop, to the great interruption and detriment of the plaintiff’s business, and loud ■noises will bo produced in a large proportion of the plaintiff’s telephones, by reason whereof the beneficial use of the same will be frequently rendered difficult and unsatisfactory and at many times impossible, to the great detriment of the plaintiff and its business, ■and that such detriment will be continuous, and that, therefore, the plaintiff will have no adequate remedy at law. It would seem to follow that the only available remedy open to the' plaintiff to prevent a continuance of the injury to its property is an appeal to the equitable power of the court to restrain the defendant from a continuation of the injury, and that an injunction is the proper remedy.

"We think, therefore, that the conclusions of law of the learned referee are not in harmony with the facts found, and that the dismissal of the comolaint was error, for which judgment should be reversed.

Landon, J., concurred.

Learned, P. L :

I concur with the foregoing opinion. It seems to me that this case has been practically decided by the Court of Appeals.

It was held by that court, in McHenry v. Jewett (90 N. Y., 58), that if, in any case, the complaint showed no cause of action, then, on an appeal to that court from an order affirming an injunction order pendente lite, a question of law arose; that that court ought to decide that question and ought to reverse the order. The same rule is laid down in Williams v. Western Union Telegraph Company (93 N. Y., 610), and again in the present case in 121 New York, 397. When in the present case the appeal from the order affirming the injunction was decided, two of the judges wei-e of the opinion that the complaint showed no cause of action, and, therefore, must have been in favor of reversing the order appealed from. Put the other judges of the court held otherwise, and dismissed the appeal, holding that the complaint did state facts showing a cause of action, and, therefore, that the question of granting an injunction pendente lite was one of discretion in this court.

The allegations of fact were clearly stated in the complaint, and there could be no uncertainty as to the positions taken by parties. The questions argued in this court, and necessarily in the Court of Appeals, were largely as to the right of the plaintiff to enjoy its alleged franchise and business without the interference which was alleged to arise from the franchise and business of the defendant in the manner stated. Unless the plaintiff had such rights on the facts alleged in the complaint, then, of course, it could not maintain the action, and the Court of Appeals would have reversed the order which affirmed the injunction pendente lite.

It is true that the opinion of the court speaks of grave doubts ” whether, on the facts stated in the complaint, any cause of action existed. This language is probably used in compliment to the two judges Avho disagreed with the majority opinion. Undoubtedly, too, the defendant had “grave doubts” on this point, and for a settlement of these doubts appealed to that court. But there could be no longer any doubt on the subject when that court decided to dismiss the appeal. For its decisions make the law in this State, and, therefore, it cannot say that it dismissed the appeal, because it did not know whether the complaint stated a cause of action or not. It was the right of the defendant to have a reversal, as matter of law, if no cause of action was set forth in the complaint; and when that court dismissed that appeal it decided that the complaint stated a good cause of action.

Something is said in the opinion as to the trial being then in progress, and as to the facts which thus might be judicially ascertained ; and, of course, if the trial should not have established the facts alleged in the complaint, then that decision of the Court of Appeals would be inapplicable. But we are not to suppose that that decision was merely a temporary expedient, or that the court would cause parties the labor and expense of trying a cause in which the complaint alleged no good cause of action, when the question was directly before the court whether or not the complaint did contain such good cause of action.

It did not need a trial of the issues to determine whether, on the facts stated in the complaint, a cause of action existed. If on these facts a cause of action did not exist, the court would have reversed the order. If it did, the court would have dismissed the appeal, as was, in fact, done. To suppose that the court did not know whether a cause of action existed or not on the facts stated would be disrespectful. We cannot believe that when this case shall finally come before that court it will hold any differently from its decision above cited, viz., that the complaint states a good cause of action.

The referee’s report sustains the allegations of the complaint, and establishes facts more favorable to the plaintiff than those which were proved on the hearing upon the motion for an injunction, as is shown in the preceding opinion by my Brother Mayham. Iiis conclusion, therefore, necessarily follows from the decision of the Court of Appeals above referred to.

Judgment reversed, referee discharged, new trial granted, costs to abide event.


source: Caselaw Access Project

author: Mayiiam, J.:

license: Public Domain

text:
    HUDSON RIVER TELEPHONE COMPANY, Respondent, v. THE WATERVLIET TURNPIKE AND RAILROAD COMPANY, Appellant.

      Costs — an action to restrain a street railroad company from, using a particular electrical system over a part of its route affords no basis for an allowance — affidavits cannot be used to show the probable loss resulting from a tempora/ry injunction—

      Code of Civil Procedure,' see. 3253.
    An action was brought by a telephone company to restrain a street railroad company from the use of a particular electrical system in the propulsion of its cars over that portion of its route iying in a city; the telephone company alleging that the high electric power used by the railroad affected injuriously its telephonic communications and business.
    No relief was asked in the complaint, other than an injunction, and no claim was made for damages. The answer did not ask affirmative relief. The value of the right to use electricity in some manner as a motive power was not at issue under the pleadings.
    Upon an application for an extra allowance, under section 3253 of the Code of Civil Procedure:

      Held, that there existed no basis for an allowance.
    That neither said railroad nor its franchise was involved.
    That a basis for such an allowance could not be made by affidavits read upon the motion, showing an estimate of the loss sustained by the defendant by the granting of a temporary injunction in the action.
    Appeal by tbe defendant, tbe Watervliet Turnpike and Railroad Company, from an order, entered in the office of tbe clerk of tbe county of Albany on tbe 18tk day of November, 1890, denying its motion for an extra allowance.

      Marcus T. Hun, for the appellant.

      D. Oady Herrick, for tbe respondent,
   Mayiiam, J.:

This application was made under section 3253 of the Code of Civil Procedure. Tbe action was to restrain the defendant from operating that portion of its railroad passing along Broadway, in tbe city of Albany, by electricity, as a motive power, upon what is known as the single-trolley system, on tbe ground that tbe use of such system by the defendant at that point obstructed or impaired tlie use of tlie plaintiff’s telephone system, which had its central office, batteries, key-board and other apparatus lawfully located on that street, and in operation there prior to the time the defendant commenced to propel its cars through that street by the use of electricity. On the trial of this action the referee dismissed the plaintiff’s complaint.

It does not seem to be urged on this motion that this action was not of the character and kind that comes within the designation in tlie Code of difficult aud extraordinary actions; but the motion was denied, as appears from the order, on the ground that there was no basis in the subject-matter of the action on which an additional allowance can be estimated.

The language used in the order clearly indicates that the decision was solely upon that ground. The order is as follows: “ Ordered, that said motion for an extra or additional allowance of costs to the defendant in the above-entitled action be and tlie same hereby is, in all things, denied upon the sole ground that the action being to restrain the defendant from employing a particular system only, and over apart only of its road, the franchise was not involved, and there is, therefore, no basis on which an allowance can be estimated.” The complaint in this case asked no other relief than an injunction restraining the defendant from the use of this motive power on the part of tlie road running through Broadway.

The defendant’s railroad and franchises connected with the same extended from South Ferry street,'in the -city of Albany, to West Troy, embracing several miles in extent, not within the city of Albany. So that the action was not to restrain the defendant in the use of its franchise, but only to restrict its use upon Broadway, in Albany. The subject-matter of controversy was not, therefore, the value of tlie plaintiff’s railroad or its franchises, and its value could not, therefore, be taken as a basis upon which to estimate or compute an additional allowance; nor do we think any estimated capacity of plaintiff’s railroad for earning money could be taken as a basis for such an estimate. The complaint makes no claim for damages; nor does the answer set up any claim for affirmative relief, but simply, with other defensive matters, denies that the plaintiff is entitled to an injunction. Any evidence upon the trial tending to establish the value of either franchise, or the amount of 'damage either company had sustained, would have been inadmissible under the pleadings.

There is no allegation in the complaint of the amount of damage ■suffered by the plaintiff by reason of the acts of the defendant sought to he restrained in this action, nor is there any allegation in the answer of the damage which has or will result to the defendant by reason of the injunction prayed for in the complaint.

In Conaughty v. The Saratoga Bank (92 N. Y., 404), Huger, Oh. J., in discussing the question of additional allowance, says: In the determination of this question the pleadings furnish the sole evidence as to what was the subject-matter involved, and the value of such matter can be arrived at only by competent evidence tending to. establish the fact.”

In the case at har, the only question which could, under the pleadings, be litigated was the right of the plaintiff to an injunction. The value of the franchise of the plaintiff was in no way involved. If the plaintiff had succeeded in the action, it is not perceived upon what basis it could have demanded or received an additional allowance.

Nor does it appear upon what basis the defendant can predicate .a claim for an additional allowance upon the value of the subject-matter involved. What was involved ? Certainly not the defendant’s tracks and cars. Not its corporate franchise as a railroad ■company. If it is answered that its right to use electricity, in some manner, as a motive power was involved, then the answer is that the value of that right was not in issue under the pleadings in this action.

In the ease of the Atlantic Dock Company v. Libby (45 N. Y., 504), which was an action for an injunction, Chief Justice Church, in discussing the question of an additional allowance under section ■309 of the Code of Procedure, which was substantially like section ■3253 of the present Code, uses this language: The action was-brought to restrain the carrying on of certain business, and for one thousand dollars damages. No damages were recovered, but the action was, sustained for the injunction. The question, therefore, is whether the subject-]natter involved in the action was the value ■of the premises and machinery. I think not.”

But it is urged that the defendant suffered loss by reason of the operation of the temporary injunction, and the proximate estimate of that loss is sought to be proved by affidavits used on this motion. As we have seen, that was not in issue by the pleadings in this action, and cannot, we think, be tried on this motion. Presumably the plaintiff gave a bond to protect the defendant against that loss, upon which the defendant, in a proper proceeding, may be indemnified. The statute makes no provision for protecting against such loss by any additional allowance of costs.

We think that the learned judge at Special Term was right in bolding that there is, in this action, no basis on which an allowance can be estimated.”

The order must be affirmed with ten dollars costs and printing disbursements.

Learned, P. J., and Landon, J., concurred.

Order denying extra allowance affirmed, with ten dollars costs and printing disbursements.


author: Landon, J.:

text:
    JOSIE QUILTY, an Infant, by JUDSON O. WHELDON her Guardian, Respondent, v. REBECCA B. BATTIE and Another, Appellants.

      Torts — harboring a vicious dog — a wife is liable for harboring such a dog belonging to her husband — the husband is a proper pa/rty defendant.

    In an action -based upon tbe barboring of a dog known to be vicious, it appeared that tbe defendants were husband and wife, living upon premises owned by the wife, both contributing to tbe family support, Tbe dog was owned by the husband, but was harbored by tbe wife.

      Held, that tbe wife was liable for an injury done by the dog to tbe plaintiff.
    That tbe tort being that of tbe wife the husband was a proper party defendant.
    Appeal by the defendants, Rebecca B. Battie and Joseph JVI. Battie, from a judgment, entered in the office of the clerk of the county of Washington on the 10th day of February, 1891, in favor of the plaintiff, after a trial at the Washington .Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $600, with notice of an intention to bring up for review upon such appeal an order, entered in said clerk’s office on the 30th ■day of January, 1891, denying the defendants’ motion for a new trial upon the minutes of the court.

      L. H. Nortlvu/p, for the appellants.

      O. G. Vam, Kirie, for the respondent.
   Landon, J.:

Defendants were husband and wife, living together upon premises owned by the wife, both contributing to the household expenses. The husband bought a dog and brought it upon the premises. The jury found, upon evidence justifying the finding, that the dog was vicious, and known by the wife to be so; and that she harbored it upon the premises with knowledge of its vicious propensities. The dog, not being confined, went upon neighboring premises and there bit the plaintiff. Harboring this dog was the personal act of the wife; allowing it to escape, knowing that its vicious propensities might cause injury to others, was her personal tort, and she was liable for the resulting injury. (Genenz v. De Forest, 49 Hun, 364; Keenan v. Gutta Percha Mfg. Co., 46 id., 544.)

Being the personal tort of the wife, her husband was properly joined as defendant. (Fitzgerald v. Quann, 109 N. Y., 441.)

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J. : Landon, J.

text:
    ISRAEL P. RUMSEY and Another, Respondents, v. CHARLES A. BOUTWELL, as Survivor, etc., Appellant.

      incidence — proof of a sale by a broker, supported, by testimony office interested party only, presents a question for the jury — effect of the contract slips being in the broker’s name.

    One Boutwell, in August, requested a firm of grain brokers in Chicago to buy upon its board of trade October corn at forty-five cents a bushel. A custom existed there, which was known to Boutwell, that brokers should purchase grain in their own names. Certain contract slips were at once executed upon such sale which recited the Chicago brokers as the buyers, the sellers, the property .and its price.

      In an action brought by tlio brokers against Boutwell to recover a balance due-upon the transaction, the answer denied that the brokers ever actually purchased the grain for Boutwell.
    Upon the trial the only evidence upon this point was that of one of the brokers- and said contract slips.

      Held, that as the evidence of the purchase, and of the genuineness of said slips, depended wholly upon the testimony of the broker, an interested party, Bout-well was entitled to go to the jury upon the question as to the credibility of the broker, and that it was error to direct a verdict for the plaintiff.
    That said contract slips, in themselves, except as supported by the testimony of the broker, did not show any purchase by Boutwell.
    Subsequently, and in September, the brokers sold the corn at a loss. The answer denied that such sales were sales of Boutwell’s corn. Upon this question the broker was the only witness.

      Held, that he was a party in interest and that the case should have gone to the jury. (Landon, J., dissenting.)
    Appeal by tlie defendant Charles A. Boutwell, as surviving partner of 0. Boutwell & Son, from a judgment, entered in the clerk’s office of Rensselaer county on the 20th day of February, 1891, in favor of the plaintiffs for $1,941.82, after a trial at the Rensselaer Circuit before the court and a jury.

      Frank S. Black, for the appellant.

      Alfred A. Guthrie, for the respondents.
   Learned, P. J. :

This is an appeal from a judgment on a verdict for the plaintiff' directed by the court.

The only point which the appellant urges on this appeal is, that he was entitled to go to the jury, and especially upon the question “ whether this corn was ever actually purchased by the plaintiffs, as the plaintiff Rumsey is the only evidence on the subject.”

The action is for a balance alleged to be owing plaintiffs upon a. purchase of corn, which the plaintiffs claim that they actually made for defendant’s firm. It was admitted that in August, 1886, defendant’s firm requested the plaintiffs to buy a certain amount of October corn at forty-five cents a bushel. An important question is whether the plaintiffs did make this purchase. It was admitted that, in such cases, it was the custom of brokers to purchase grain in' their own names, without disclosing their principals, and that, defendant’s firm knew of this custom.

The plaintiff Ramsey testified: “On the 14th of August, 18t>6, we purchased this amount of corn at forty-five cents a bushel. We made this purchase for defendants under this eiistom.” He further testifies that they bought this corn of certain persons, naming them, that it was delivered to them by receipts from elevators; that it was handled by receipts demanding that amount of corn, and in no other way ; that it was never actually moved from one place to another.

He produced certain slips, contract slips as they are called, which, he stated, were made at the time, representing the purchase. The first is signed by no one, the others purport to be signed by five different parties, and are as follows (excepting signatures):

“ Chicago, 8, 14, 1886.
“ We hereby confirm sales made by us to-day under the rules of the Chicago Board of Trade, as follows, to
Rumsey & Buell :
Amount. Kind of Property Delivery. Price.
10.........| Corn............| Oct....... | 45
' “ BENSLEY BROS.”

The plaintiffs advised defendant’s firm on the same day of the purchase. And several letters of plaintiffs to defendant’s firm are produced, which refer to the purchase. Drafts were drawn by plaintiffs on the defendant’s firm and were paid.

Finally, the price of corn further declined and plaintiff Rumsey testifies that, on or about September twenty-seventh, they sold the corn for considerably less than forty-five cents per bushel. The difference, less what had been paid by defendant’s firm, is the amount recovered

On October first, the time when the corn is alleged to have been sold, the plaintiffs wrote defendant’s firm, saying: “ The corn upon your purchase was delivered this morning to us, and delivered out again upon your sale.” The defendant urges that this shows that there was no real purchase made on the sixth of August as claimed by plaintiffs. The learned justice in his charge stated in two places that the plaintiffs did buy the corn and paid the money for it; so that he must have assumed that the testimony of plaintiff Rumsey established an actual purchase. There is no testimony showing the meaning of October corn.” It may be that the order given by 'defendant’s firm implies that no immediate delivery was intended. There was no witness for the plaintiffs other than plaintiff Rumsey.

At the close of the case the court directed a verdict for plaintiffs. The defendant excepted to this and also asked to go to the jury on the question whether the corn was ever actually purchased by plaintiffs, as plaintiff Rumsey was the only witness on that subject. This was refused and defendant excepted.

Although the general rule is that, where the testimony of a witness to a fact is not contradicted, it must not be disregarded by the jury; yet it has been repeatedly held by the highest court in this State that the rule does not apply where the witness is a party or is interested. In such cases it is decided that the question of the credibility of the witness, although he is not contradicted, is for the jury; and that the court cannot legally take this question from them. (Elwood v. West. U. Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609; Kavanagh v. Wilson, 70 id., 177; Wohlfahrt v. Beckert, 92 id., 490.)

We do not see why this principle does not apply here. The question in the pleadings was, whether plaintiffs purchased this corn for defendant’s firm. The defendant’s answer denied this. The proof was the testimony of one of the plaintiffs only. The jury might have disbelieved his testimony. Therefore, the court could not take the question from them.

It is said that there are letters of defendant’s firm. But these are only in response to plaintiffs’ letters and information. The defendant’s firm knew nothing of the fact and their letters are no admission.

It is also urged that the printed slips introduced in evidence so confirmed Rumsey’s testimony that the principle does not apply. But the admission of these slips was objected to by defendant. Their genuineness depends only on the testimony of Rumsey, who says that they were made at the time of the purchase. Therefore, the same principle applies to his testimony as to these slips • as to any •other part of his testimony, viz., that the jury are not bound to believe it. So that we come back to the same condition, that the plaintiffs’ case rested solely on Rumsey’s testimony.

In this last respect the case is similar to that of Hodge v. Buffalo (1 Abb. N. C., 356). The plaintiff, by her own testimony, proved her own age, and she corroborated this by an entry in a Bible; which, by her own testimony, she proved to be her father’s family Bible. She also testified that the entry was in her father’s handwriting. This evidence was not contradicted. The defendant asked to go to the jury and this was refused. The General Term held that this was error. The Bible and the entry rested on plaintiff’s testimony only, so that they were not independent evidence, and the case should have gone to the jury. That case is closely analogous to the present.

It is certainly doubtful, even if those slips had been proved to be genuine by other testimony, whether they would have proved that the plaintiffs bought for the defendant’s firm the corn ordered by their telegram. Nothing in those slips shows that the purchase, if made at all, was made for the defendant’s firm; or that defendant’s firm had any right therein. Even admitting that such purchase was according to custom, still it could not be shown by the slips themselves that the purchase was made for defendant’s firm. If such was the fact, it was shown only by the testimony of plaintiff Rumsey.

Let us suppose, in order to test this matter, that the jury had ■disbelieved all which plaintiff Rumsey said on the stand, as, under the decisions, they could lawfully do, is there anything remaining on which a verdict in plaintiffs’ favor could be sustained? Certainly not.

If the testimony of Rumsey was not true, it was difficult, if not impossible, for defendant to contradict it. Admitting that the plaintiffs made the contracts indicated by the slips, where could the defendant obtain evidence to contradict the testimony of Rumsey, that these identical contracts were made for defendant’s firm. This consideration shows the justice of the principle above examined, that in such cases as this the question must be determined by the jury, and that the court cannot decide, as a matter of law, that the plaintiff’s testimony must be believed.

But there is still another consideration. The plaintiffs’ cause of action depends not solely upon the purchases alleged to have been made for defendant’s firm, but upon the subsequent sales of the corn by plaintiffs. Such sales are denied by the answer. The fact of such sales is shown only by the testimony of Rumsey, the plaintiff. There is no corroboration of any kind. Here, then, is a fact resting-only on the testimony of a party. Yet the court refuses to allow the case to go to the jury.

This is the only point argued before us. And, therefore, we discuss no other; and only follow the decisions above cited as binding upon us.

Judgment reversed, new trial granted, costs to abide event.

Mayham, J., concurred.

Landon, J.

The defendant gave his order August 13, 1886, to the plaintiff, a broker buying and selling corn at the Chicago Board of Trade, to-buy for him 100,000 bushels of October corn, at forty-five cents. What did defendant expect to get August thirteenth ? Certainly no delivery of October corn at that early date. All he wanted was the brokers’ contracts of the Chicago Board of Trade for 100,000 bushels of corn, deliverable in October, such as plaintiff could there purchase. The plaintiff testified that he bought the corn, on the date of the order, pursuant to the order. He also produced in evidence the brokers’ contract slips which he then obtained, showing the purchase as ordered. He testified to their genuineness. These slips were equivalent to the orders, or' entitled the holder to the orders of their makers, for the corn specified in them, deliverable in October. The correspondence between the parties and defendant’s payments showed defendant’s admission of the plaintiff’s case, or, if less than a full admission, were in corroboration of plaintiff’s testimony. The rule that the jury must pass upon the credibility of the testimony of a party when uncorroborated, has no application. That rule, like many other so-called general rules, applies to cases on all fours with those in which it has been announced. Where a party’s testimony is so new or strange as to cause surprise, or is not susceptible of contradiction if false, there is much greater reason for the application of the rule than in a case like this, where it is plain that the defendant has no doubt of the truth of-plaintiff’s testimony, but has some hope that a jury may be willing to extricate him from the consequences of his foolish speculation.

Judgment reversed, new trial granted, costs to abide event.


author: Learned, P. J.:

text:
    THE CITY OF SCHENECTADY, Respondent, v. ROBERT FURMAN, Appellant.

      Oities — a resolution of a common council, not passed in accordance with its charter, confers no authority — -right to a jury trial — taking property without notice or compensation is unconstitutional — «udit, without 'notice, made prima facie elúdeme —counter-claim.

    A natural water-course, not navigable, ran through a city, and at the locus in quo was wholly within the land of a lot owner. The city, on April sixteenth, by its common council, passed a resolution which stated that obstructions existed in the creek, fixed a width and a grade for its banks, and declared all earth and other matter lying in and above such grade and channel to be obstructions and deposits. Pursuant to the charter a notice of five days was given of a hearing-upon such resolution, and on April twenty-third the resolution was confirmed by the common council. This body, on May seventh, by a resolution changed the dimensions of the channel. The latter resolution, of which no notice was given, was never confirmed.
    In an action brought by the city to recover for the work done by the city superintendent of streets in removing the alleged obstructions and deposits under these-resolutions, from the lot owner who refused to pay such expense:

      Held, that as the city superintendent had acted under the original resolution, as amended on May seventh, and as the amendment had never been confirmed after notice, as required by the charter, the city had no right to do the work.
    The city charter gave the common council power to require the removal of, encroachments in such a stream, but in the case of an encroachment provided for a trial by jury of the question as to there being an encroachment :

      Held, that the city could not, by calling an encroachment a deposit, deprive the owner of a jury trial, nor, under a claim that there were deposits or obstructions, remove banks and trees growing thereon.
    Another provision of the charter gave to said common council power to establish the boundaries and grades of natural water-courses, “provided, however, that none of the rights of any of the owners of lands bounded or abutting upon such water-courses or streams shall be impaired or affected.” There was no provision in the statute for a hearing of the owner.

      Held, that whatever rights the city might have to remove obstructions and deposits, it had none to take away the property of the owner without notice, and without compensation, upon the pretext of fixing a boundary or a grade.

      SemMe, that a provision in a city charter that it may recover, as the .expense of such work, from the owner or occupant, a sum to be audited by it without notice to the owner or occupant, and that the account certified as audited shall . be presumptive evidence of the right of the city to recover it, does not bar the owner from showing the true extent and value of the work.
    The owner set up as a counter-claim to the action the injury done to his land.

      Meld, that, within section 501 of the Code of Procedure, as amended in 1877, such a counter-claim, as it could only bo established by proof that the plaintiff had no cause of action, did not “ tend in some way to diminish or defeat the plaintiff’s recovery.”
    Appeal by tlie defendant Robert Furman from a judgment, entered in the office of the clerk of the county of Schenectady on the 13th day of December, 1890, in favor of plaintiff, after a trial at the Schenectady Circuit before the court and a jury, at which a verdict was rendered, by direction of the court, in favor of the plaintiff for $269.13.

      Robert J. Landon, for the appellant.

      S. IF. Jackson, for the respondent.
   Learned, P. J.:

This action is brought to recover the expense of work done by the plaintiff, through its superintendent of streets, in removing alleged obstructions and deposits in that part of a certain stream called Mill creek, which runs through defendant’s land. The stream is a natural water-course, not navigable, and the part in question is wholly within defendant’s land. The bed of this stream, therefore, is his, and he is the riparian owner. As such he has a right to the use of the water, being also under obligations to the owner below him in respect to the manner of its use. The plaintiff is not shown to be a riparian owner of any part of the stream, or to have any rights, whatever, therein. Although this part of the stream is within the boundaries of the city, still it is not a public highway, but belongs to the several riparian owners, according to the settled rules of .law in respect to such streams. (Bickett v. Morris, L. R., 1 House of Lords [Scotch Appeal Cases], 47.)

The plaintiff claims no right as riparian owner. But it claims authority under the charter of tlie city. The important sections &■ c to be found in chapter 97, Laws of 1889, the sixth section of which amends the charter by adding on section 61 to title 7; .in chapter 62 of the Lawg of 1873, the thirty-second section of which amends title 7, of which amended title, sections 48, 52 and ‘53, on pages 135 and 136, are material; in chapter 146 of Laws of 1877, section 2 of which amends title 3 by adding a new section (161, and section 3 amends the fifty-first section of title 7, as it has been enacted by the law of 1873 aforesaid.

Section 16, above-mentioned, declares that the common council shall have power to establish and define the boundaries and grades of the natural water-courses and streams in said city, and to provide for and compel the removal of obstructions, encroachments and deposits. The section contains this proviso: “ Provided, however, that none of the rights of any of the owners of lands bounded or abutting upon such water-courses or streams shall be impaired or affected by this act.”

On the 16th of April, 1889, the common council passed a resolution of several clauses. The first declares that there are obstructions and deposits in a certain part of Mill creek. The third describes a certain grade or width of said creek (being, generally, a width of eight feet at the bottom, and with side banks sloping one and one-half to one) for a certain distance. This it declares to be the “natural and normal channel and grade of the said portion of the said creek, and all earth and other matter lying in and above such grade and channel, as so described, are obstructions and deposits in said stream.”.

The fourth clause directs the owners and occupants of land adjoining said portion of said creek to remove said obstructions and deposits on or before certain days. And the fifth directs the superintendent of streets to do the work if the owners and occupants fail, and declares that the expense shall be assessed on the lot. A notice of five days was given pursuant to section 61, and the resolution was confirmed April twenty-third. On the seventh of May the’1 common council amended the resolution so adopted and confirmed by making the width of the bottom of the creek less and the slopo of the banks different. On the ninth of July the common council ordered the superintendent of streets to enforce these resolutions, including that of May seventh, and to do the work which the parties, had neglected to do. On the eighth of October the common coun'dil audited his account for doing such work, and ordered the city attorney to sue for and collect the accounts remaining unpaid. Therefore, this action was brought.

It will be seen that the resolution of July ninth directed the superintendent to do this work under the resolutions of April sixfeentli, April twenty-third and May seventh. The superintendent 'testifies that he did the work under the resolution as amended. It does not lie with the plaintiff to say, therefore, that the amendatory resolution of May seventh was of no effect. The plaintiff treated it as valid and the work was done accordingly.

Now' section 61, above mentioned, is explicit on this point. After ■.the common council has passed a resolution of this kind it must give five days’ notice; and at the time and place mentioned in the notice ■shall hear all parties interested, and after such hearing shall consider the ordinance and may confirm, modify or rescind. “ No such ordinance or resolution shall create any duty or obligation until it shall be confirmed or modified as aforesaid.” The common council did on the twenty-third of April confirm that resolution. They then on the seventh of May amended it without notice to the parties interested. This they had no right to do. All their subsequent action was based upon that amendment. They did not cause the alleged obstructions and deposits to be removed according to the resolution of April twenty-third, but according to that of May seventh. There is no force in saying that the resolution of May seventh diminished the amount to be removed. The parties interested had a right to be heard as to the matter. They might have good reason for desiring that the resolution, as originally passed, should be carried out. The plaintiff cannot urge that the defendant was not injured by the change. The notice of five days was jurisdictional; and when the common council had acted they could not change the resolution ; at least not without again giving the required notice. Probably, after the resolution of April twenty-third, the common council were not bound to do the work. But, if they did proceed with the work, they must proceed under that resolution and under no other; if, indeed, they had any right to proceed at all.

A more important question is upon, the light of the plaintiff to do the acts for which it claims compensation, even supposing that the resolution had been properly passed and confirmed, and had not been affected by any subsequent resolution.

Section 16, title 3 of the charter, says that the common council may remove encroachments in the manner thereinafter provided. Section 51 of title 7 uses the same language, but says that no action shall be taken based on alleged encroachments until the encroachment shall have been established as provided in sections 4, 5, 6 and 7 of that title. Now, it is not pretended that any proceedings were taken under these sections 4, 5, 6 and 7 to establish that there was an encroachment. For these proceedings provide for a trial by jury, and the plaintiff, on this argument, has insisted that its action was not taken under the clause against encroachments, but under the clause of section 51, to remove deposits and obstacles.

If the plaintiff’s action was not to remove encroachments, it follows that plaintiff could not lawfully remove any of the existing banks of the stream. For if such banks were in any respect an interference with the flow of the stream, then they must be encroachments thereon, and could not be deposits or obstructions in the stream. A bank is not a deposit in the stream, nor is it an, obstruction, as distinct from an encroachment. It appears fi-.om the evidence that there were trees along the banks where the stream passed through defendant’s land, which trees the plaintiff cu-t down and the roots of which plaintiff dug out. This fact shows that these trees, and the banks on which they stood, could not have been deposits or obstructions in the stream. „ If these banks and these trees were nearer to the center of the stream than the original banks were, then they might be encroachments. If they were claimed to be encroachments, then the plaintiff could not act in respect to them except, under the sections above cited, giving a jury trial, etc. But no such proceedings were taken.

Very plainly the'plaintiff cannot, by calling an encroachment a deposit, depi-ive the defendant of his right to a jury trial. And the words deposits and obstructions plainly designate different things from the word encroachments. But the plaintiff claims, under section 16 above cited, the right to establish and define by resolution the boundaries and grade of this stream, and claims that by its resolution it did this. The first objection to this is that defendant had no opportunity to be heard. There is no provision in section 16 for publishing a notice, and for giving a hearing to the, parties interested. That provision is found in section 51, above cited, of another -title, and refers to ■ the resolution directing the removal of deposits and obstructions. Section 51 says nothing about establishing the boundarie-s and the grade. If there is any authoi-ity to do this, it is found only in section 16 ; and that section does not provide for a hearing. If that section is valid, therefore, the common council may, by resolution, declare the boundaries and grade of this stream. It may thus make new boundaries and a new grade, and may cause thé natural boundaries to become encroachments in violation of the rights of the riparian owner, and contrary to the provisions of sections 4, o, 6 and 7 above cited, respecting encroachments.

But the natural boundaries and grade of this stream, as it passes through defendant’s land, limit and define the defendant’s right of property. He is the owner of the banks as they naturally stand. To widen the stream and take away his banks is to deprive him of his property. The plaintiff cannot do this by resolution. The plaintiff cannot, without depriving defendant of his property, make the stream wider than it' naturally was. It needs no argument to show that to declare a stream to be ten feet wide, which was originally only five, takes, if the declaration has any force, a strip of land from the riparian owner.

The legislature seems to have appreciated this, for in this section 16 they provided that none of the rights of any of the owners of land bounded or abutting upon such water-course or stream should be impaired or affected by this act. Hence it is apparent that no resolution passed under this section could; deprive the defendant of his rights as riparian owner or take away any of his property. The legislature might as well authorize the common council to establish and define the boundaries of defendant’s land on all sides. "What lights the plaintiff may have to remove deposits and obstructions in the actual channel we need not decide. It did much more, it cut away the existing banks of the stream on defendant’s land, and the trees which stood thereon; and it did this on the pretended authority of a resolution which attempted to establish a different width and a different grade of the stream from those which actually existed. If the width and grade had not been different from those which existed the banks and trees would not have been disturbed.

It is no answer to this that defendant had notice of the second passage of the resolution. The last clause of section 16 limited plaintiff’s power, notice or no notice; and, as has above been shown, the charter provides for no notice of the establishment of boundaries and grade. Even if there were no such clause in section 16, the law makes such a clause. No common council can, by resolution, take away private property under the pretence of establishing its boundary.

If this be defended as the taking of private property for public use, the answer is that no compensation is provided. "Worse still, the defendant is made to pay for being deprived of his property. If the public good required a-wider water-course and a different grade, and for that purpose defendant’s property was needed, then he should have been compensated.

The resolution shows plainly its faulty character. It lays down a certain grade and a certain width of the bottom, and a certain slope of the bank, and then declares that all earth and other matter lying in and above such grade and channel are obstructions and deposits in the stream. Evidently, therefore, the common council assumed the right to make a new channel of different dimensions from the old, and to call everything above such channel deposits and obstructions. The common council could with equal propriety have made a new channel in a new place through defendant’s land,' and have called the earth which it would be necessary to remove deposits and obstructions.”

It cannot be necessary to cite authorities to show that the defendant was owner of the land over which the stream flowed, and had a right to the use of the stream, subject only to the similar rights of the upper and lower proprietors. The common council is not a tribunal to determine these rights, And defendant offered to show that, after the passage of the resolution, he cleaned out the stream so that it was of the same width and depth that it had been for many yeai’s prior thereto, but this evidence was excluded. This was, in effect, holding that the common council had a right to make, by resolution, the width and depth of the stream greater than they had been; that is, to establish and declare boundaries, other than they originally were.

After the work had been done, the superintendent of streets, returned the amount to the common council and that body audited it under section 48. If we look at the charter, as amended by chapter 62, Laws of 1873, we find that title 7, containing sixty sections, is re-enacted with amendments. Section 51 of that title is again amended by chapter 146, Laws of 1877. Section 53 authorizes the expense to be audited and enforced as specified in reference to paving streets. And the provisions as to enforcing the expense of paving are found in the previous section 48. This declares that the city may' recover from the owner or occupant the sum audited, with twelve per cent interest; and that the account certified as audited shall be presumptive evidence to entitle the city to recover. Now, this auditing is done without any notice to defendant; he is not in any way a party. The work may be done without his knowledge. The superintendent states the amount expended without defendant’s knowledge; he determines what the extent of defendant’s property is and how much labor was expended in front of it. On this ex-parte statement the.,common council, without giving defendant an opportunity to be heard, audit and allow the account, and such audit and allowance Nis presumptive evidence against defendant. The defendant urges that under Stuart v. Palmer (74 N. Y., 183), and similar cases, this provision is unconstitutional. In the view we have taken of other questions, i t becomes unnecessary to. decide this point. We are, however, inclined to think that, as the audit is only presumptive evidence, the defendant has his day in court by having the right to show the value and extent of the work done in front of his land. (Hagar v. Reclamation Dist., 111 U. S., 701.)

The defendant set up a counter-claim for injury done to his land. And The question arises whether, if plaintiff cannot recover, defendant may be allowed to prove this counter-claim in this action.

By an amendment of 1877, section 501 of the Code contains the words: “must tend in some way to diminish or defeat the plaintiff’s recovery.” These words were not in the section when the case of Glen & Hall Mfg. Co. v. Hall (61 N. Y, 226) was decided.

Now, if the plaintiff is entitled to recover in this case on the cause of action alleged, then plaintiff committed no trespass and defendant has no right of action. This counter-claim cannot tend to diminish or defeat plaintiff’s recovery. It is entirely inconsistent with any cause of action on plaintiff’s part.

In Carpenter v. Manhattan Life Insurance Company (93 N. Y., 552), the plaintiff had a cause of action against the defendant for the conversion of the wood. Defendant’s counter-claim arose out ■of its equitable right as mortgagee to insist that its security should not be changed by plaintiff’s cutting the wood. ■ The counter-claim, therefore, tended to defeat plaintiff’s legal claim.

This present action is brought under the charter to recover for money expended by plaintiff, and is' in the nature of an action for money paid for the benefit of defendant (§ 48), although wé are not disposed to say that it is an action on contract. The counter-' claim is for trespass committed by plaintiff by the acts in doing which the money was expended. It probably could not be said that this counter-claim for trespass arose out of the transaction set forth as the foundation of plaintiff’s claim. (People v. Dennison, 84 N. Y., 272.) The work done by plaintiff on the land would not constitute the claim. That must arise on the previous resolutions .and the subsequent audit. If plaintiff is correct in its claim,' the audit is evidence, without proof of the-work. At any rate, the work alone is not the foundation of plaintiff’s claim. And, however this - may be, we think that the clause above cited from the section shows that the allegations of defendant’s answer cannot be allowed as a counter-claim. For it is evident that they could not be proved as a claim until it was decided that plaintiff had no claim.. Hence they could not diminish or defeat plaintiff’s recovery. -

The judgment should be reversed, new trial granted, costs to abide event.

Mayham, J., concurred.

Judgment reversed, new trial granted, costs to abide event.