/ 
 
Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented Februaiy 14, 1893 
 
 IN HEnORY OF 
 JUDQE DOUGLASS BOARDMAN 
 
 FIH3T DEAN OP THE SCMOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF2393.A52R521890 
 
 V.I 
 
 American street-railway decisions.A coil 
 
 3 1924 019 373 699 
 
a Cornell University 
 J Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019373699 
 
AMERICAN 
 
 STREET-RAILWAY 
 
 DECISIONS. 
 
 A COLLECTION OF 
 
 CA8E8 DECIDED IN THE VARIOUS COURTS WITHIN THE 
 
 UMITED STATES AND CANADA. 
 
 EDITED BY 
 
 CHAELES A. EICHARDSON', 
 
 Mm 
 
 ALFEED J. HOOK, 
 
 COCNSBLOBS AT LAW. 
 
 VOL. I. 
 
 BROOKLYN, N. Y.: 
 
 PUBLISHED BY THE AMEBICAN STREET-RAILWAY ASSOCIATION. 
 
 1890. 
 
COPTHIOHT, 1890, 
 
 By CHAELES A. RICHARDSON 
 
 AND 
 
 ALFRED J. HOOK. 
 
 Eaolb Fbint, Bbooklyn, N. Y. 
 
PREFACE. 
 
 The American Street-Kailway Association present the first 
 volume of a series of publications, the object pf which is to 
 give in a compact, chronological form and in a reliable 
 manner, all decisions of the federal courts and of the several 
 states and Canada relating to street-railways. 
 
 Heretofore it has been impracticable to find all the cases on 
 this subject without the possession of all the reports pub- 
 lished, and their careful examination, and it is believed that 
 this series will be appreciated by all street-railway managers 
 and lawyers. 
 
 This volume contains all reported cases from 1841 to, and 
 including, a part of the year 1860. Succeeding volumes will 
 contain decisions to date, and it is intended that thereafter 
 current cases will be promptly published. 
 
 Special care has been exercised in the examination of the 
 cases cited, and the citations as given herein will . in every 
 instance be found accurate. 
 
 Thanks are tendered to the Messrs. John M. Lodewick, of 
 the Law Institute, New York City, and "Wm. J. C. Berry, 
 Librarian of the Bar Association of New York, and especially 
 to Mr. Stephen C. Betts, Librarian of The Law Library in 
 Brooklyn, who has nlade many valuable suggestions and 
 extended numerous courtesies to the editors. 
 
 June, 1890. 
 
CASES REPORTED. 
 
 Altreuter vs. Hudson R. B. R. Co. . 3 N. Y. Com. Pleas, 151 100 
 
 Attorney Gen. of State of N. Y. vs. ) 12 Leg. Obs. 17 ; 10 N. Y. Sup'r 
 Mayor, etc. of N. Y f Ct. 131 123 
 
 Brewer vs. Second & Third St. ) 3 -py^Q^ jg^ ^g j^ j^ 331, gos 
 
 Pass. By. Co t 
 
 Brown vs. Duplessis 14 La. Ann. 843 404 
 
 Button vs. Hudson R. R. B. Co. . . 18 N. Y. 348 331 
 
 Chicago, City of, vs. Evans 24 Bl. 53 441 
 
 Citizens' Pass. By. Co., In re 2 Pittsburgh, 10 879 
 
 Citizens' Pass. By. Co., Thomas vs. 15 Leg. Int. 189 296 
 
 City of Chicago vs. Evans ; 34 111. 53 441 
 
 Clark vs. Second & Third St. Pass. ) g p^y^ 3-9 ^g j^ j^^ gg^ ggg 
 
 By. Co ) 
 
 Coleman, Second Ay. R. R. Co. vs. 34 Barb. 300 '370 
 
 „ w. T J 11 (2 Grant's Cases, 506 ; 7 Am. 
 
 Commonwealth vs. Jeandell -j " „ „^,' ' „._ 
 
 / Law Reg. 615 385 
 
 Commonwealth vs. Jeandell 3 Phila. 509 ; 16 .Leg. Int. 364. 423 
 
 „ 111. m 1 (80 Mass. 69 ; 8 Am, Law Reg. 
 
 Commonwealth vs. Temple J ,„„ „„ ' „ , „„„ ,^„ 
 
 ( 678; 33 Law Reporter, 332. 456 
 
 Cooper vs. Second & Third St. ) 3 PMla.363; 15Leg.Int. 357. . 338 
 
 Pass. Ry. Co i 
 
 Cunningham et al., Wilson vs 3 Cal. 241 103 
 
 Davis vs. Mayor, etc. of N. Y 14 N". Y. 506 335 
 
 Deschamps vs. Second & Third) 3 puja. 379; 15 Leg. Int. 371.. 342 
 
 St. Pass. Ry. Co f 
 
 Drake vs. Hudson R. R. R. Co . . . . 7 Barb. 508 10 
 
 Duplessis, Brown vs 14 La. Ann. 842 404 
 
 Edwards vs. Ninth Av. B. B.Co 22 How. Pr. 444 ... 433 
 
 Eighth Av. B. R. Co., Hegan vs. . . 15 N. Y. 380 373 
 
 Eighth Av. R. R. Co., "Wilbrand vs. 16 N. Y. Sup'r Ct. 314 307 
 
 Eighth Av. R. B. Co., Winterson vs. 6 N. Y. Com. Pleas, 389. . . . 372 
 
 EUiottvs.P.H.&WestvilleR.R.Co. 32 Conn. 579 473 
 
 Evans, City of Chicago vs 34 111. 52 441 
 
vi CASES REPORTED. 
 
 Fair Haven & Westville R. R. 
 
 32 Conn. 579 473 
 
 Fainnount & Arch St. Ry. Co., ) 5 Penn. Law Journal Repts. 
 
 Musser vs f 466 ; 7 Am. Law Reg. 384. . 366 
 
 Faust vs. Second & Third Sti ) 3 PMla. 164; 15 Leg. Int. 221. . 312 
 
 Pass. Ry. Co S ^ 
 
 GiUigan vs. N. Y. & Harlem R. R. ) ^ j^ ^ ^^^ ^^ 453 ^g 
 
 Co ) 
 
 Green & Coates St. Pass. Ry. ) 3 p^j,^ g^^ ^ j^^ g^g. ... 331 
 
 Co., Moore vs ) 
 
 Green & Coates St. Pass. Ry. Co. ) 3 p^.j^ ^^^ ^g Leg. Int. 173. 409 
 
 Moore vs ) 
 
 Green & Coates St. Pass. Ry. Co., ) 
 
 Second & Third St. Pass. Ry . Co ^ 3 Phila. 430 ; 16 Leg. Int. 197 . . 418 
 
 vs . 
 
 Hamilton vs. N. T. & Harlem R. ) q tj„- ir.i 1 
 
 R. Co \ 9Paige,171 1 
 
 Hartvs. N. O. &CarrolltonR. R. Co. 1 Rob. 178 .. 4 
 
 Hart vs. N. O. & CarroUton R. R. Co. 4 La. Ann. 261 8 
 
 Hegan vs. Eighth Av. R. R. Co. . . . 15 N. T. 880 272 
 
 Hope vs. Sixth & Eighth Av. R. ) „ t • • .. • t »t ^o- -.-n 
 ^ „ ^ ^2 Livingston s Law Mag. 584. 179 
 
 Hudson R. R. R. Co., Altreuter vs. 2 N. Y. Com. Pleas, 151 100 
 
 Hudson R. R. R. Co., Button vs . . 18 N. Y. 248 331 
 
 Hudson R. R. R. Co., Drake vs . . . 7 Barb. 508 10 
 
 Hudson R. R. R. Co., Johnson vs. . 12 N. Y. Sup'r Ct. 21 191 
 
 Hudson R. R. R. Co., Johnson vs. . 13 N. Y. Sup'r Ct. 633 354 
 
 Hudson R. R. R. Co., Johnson vs.. 30 N. Y. 65 393 
 
 Hudson R. R. R. Co., Luby vs 17 N. Y. 131 279 
 
 Hudson R. R. R. Co., Owen vs . . . . 15 N. Y. Sup'r Ct. 874 275 
 
 Hudson R. R. R. Co., Owen vs . . . . 20 N. Y. Sup'r Ct. 829 467 
 
 Hudson R. R. R: Co., Purple vs . 1 ^^ ^- "^- ^"P'"^ ^- "^^ ' ^ ^^l'- 
 
 <■ Pr. 38 517 
 
 In re Citizens' Pass. Railway Co. . . 2 Pittsburgh, 10 376 
 
 Jeandell, Commonwealth vs. ...\ 3 Grant's Cases, 506; 7 Am. 
 
 ( Law Reg. 615 385 
 
 Jeandell, Commonwealth vs 3 Phila. 509; 16 Leg. Int. 364. . 423 
 
 Johnson vs. Hudson R. R. R. Co. . . 12 N. Y. Sup'r Ct. 21 191 
 
 Johnson vs. Hudson R. R. R. Co.. . 13 N. Y. Sup'r Ct. 633 254 
 
 Johnson vs. Hudson R. R. R. Co. . . 30 N. Y. 65 393 
 
 Luby vs. Hudson R. R. R. Co 17 N. Y. 131 279 
 
 Martin vs. Second & Third St. 
 
 Pass. 
 
 vs. Second & Third St. ) „ r)v,{i„ a^a ^K^ T ^ ,,.,. 
 Tj p f 3 Phila. 316; 15 Leg. Int. 405 . 
 
 868 
 
CA8E8 REPORTED. ' vii 
 
 Mayor, etc. of N. T., Attorney) 13 Leg. Obs. 17; 10 N. Y. 
 
 Gen. of State of N. Y. vs ) Sup'r Ct. 131 122 
 
 Mayor, etc. of N. Y., Davis vs. ... 14 N. Y. 506 235 
 
 Mayor etc^ of N. Y., N. H. &Har- I g j^ ^ ^^^ ^ ggg 282 
 
 lem R. R. Co. vs ) 
 
 Mazetti vs. N. Y. & Harlem R. ) 3 n. y. Com. Pleas, 98 163 
 
 XI, Co ) 
 
 McDowell vs. Second Av. R. R. Co. 17 N.Y. Sup'r Ct. 670 447 
 
 McFarland vs. Orange & Newark j. 13 w j jja 17 481 
 
 Horse Car R. R. Co ) ' ' , " 
 
 Milhau et al. vs. Sharp 15 Barb. 193 58 
 
 Milhau vs. Sharp 17 Barb. 485; 9 How. Pr. 103. . Ill 
 
 Milhau vs. Sharp 28 Barb. 328; 7Abb.Pr.220. . 324 
 
 Moore vs. .Green & Coates St.) 3 PMla. 210; 15 Leg. Int. 318. . 381 
 Pass. Ry. Co. ■ ) 
 
 Moore vs. Green & Coates St. ) 3pMa.417;16 Leg. Int. 173.. 409 
 
 Pass. Ry. Co ) 
 
 Musser vs. Fairmount & Arch St. ) 5 Penn. Law Journal Repts., 
 
 Ry. Co f 466 ; 7 Am. Law Reg. 284. . 366 
 
 N.O. &CarrolltonR.R. Co., Hart vs. 1 Rob. 178 4 
 
 N.O. & CarroUton R.R. Co., Hart vs. 4 La. Ann. 361 8 
 
 KO. & CarroUton R. R. Co., ( jq La. Ann. 403 '..,189 
 
 Thompson vs ) 
 
 N. O. & CarroUton R. R. Co., ) .„ t a oq -la^ 
 
 Varillatvs '[ 10 La. Ann. 88 185 
 
 N. Y. & Harlem R. R. Co., Ham- ) 9 p . ^ 171. . . 1 
 
 ilton vs ) 
 
 N. Y. & Harlem R. R. Co., GiUi- ) 1 jj. Y. Com. Heas, 453 48 
 
 gan vs ) 
 
 N. Y.. & Harlem R. R. Co., vs. ) g n. Y. Com. Pleas, 563 283 
 
 Mayor, etc., of N. Y \ 
 
 N. Y. & Harlem R. R. Co., Ma- ) 3 n. Y. Com. Pleas, 98 163 
 
 zetti vs ) 
 
 N^Y & Harlem R. R. Co., Old- > ^^^ ^om. Pleas, 103 168 
 
 field vs S 
 
 NJ&HarlemR. R. Co.,01d.) 14 n. Y. 310 224 
 
 field vs ) 
 
 N. Y. & Harlem R. R. Co., Ste- ) ^^ ^ ,^ ^.^ g^^ ^^^ 
 
 phenson vs ) 
 
 ""don ts'''''"" ^' ^' ^''■' ^"'' I ^8 N. Y. Sup'r Ct. 576 41^ 
 
 K. Y & Harlem R. R. Co.Vwey- i ,„ ^^ ^ ^t. 360 160 
 
 ant vs ) 
 
 Ninth Av. R. R. Co., Edwards vs. 23 How. Pr. 444 432 
 
 Oldfleld vs. N. Y. & Harlem R. 
 
 R. Co. 
 
 \ 3 N. Y. Com. Pleas. 103 168 
 
viii- CASES BEPOBTEB. 
 
 Oldfleld vs. N. Y. & Harlem B. ) 14 jj y 31Q 234 
 
 E. Co ) 
 
 Orange & Newark Horse Car R.R. I 13 jr J Ea 17 481 
 
 Co., McFarland vs ) 
 
 Owen vs. Hudson R. R. R. Co 15 N. Y. Sup'r Ot. 374 375 
 
 Owen vs. Hudson R. R. R. Co 30 N. Y. Sup'r Ct. 329 467 
 
 Pearsall, Stuyvesant vs 15 Barb. 344 98 
 
 Phila. & Gray's Ferry Pass. Ry. , p .j ^^ ^g ^eg. Int. 372. . 348 
 Co., Whitson vs ( ' ^ 
 
 Purple vs. Hudson R. R. R. Co. \ " ^- Y- Sup'r Ct. 74 ; 1 Abb. 
 
 ( Pr. 33 
 
 175 
 
 Rooney vs. Second Av. R. R. Co . . 18 N. Y. 368 .' 353 
 
 Second Av. R. R. Co. vs. Coleman. . 24 Barb. 300 370 
 
 SecondAv.R.R. Co., McDowell vs. 17 N. Y. Sup'r Ct. 670 447 
 
 Second Av. R. R. Co., Rooney vs. . . 18 N. Y. 368 353 
 
 Second & Third St. Pass 
 Co., Brower vs 
 
 Second & Third St. Pass. Ry. | 3 pMla. 259; 15 Leg. Int. 357 
 
 Co., Clark vs ) ° 
 
 •^y- j. 3 Phila. 161; 15 Leg. Int. 331 . 
 
 303 
 836 
 
 338 
 
 Second & Third St. Pass. Ry. » 3 pwia. 363; 15 Leg. Int. 357 
 
 Co. , Cooper vs I 
 
 Second & Third St. Pass. By. ) 3 pMa.379; 15Leg.Int.371. . 343 
 
 Co., Deschamps vs ) 
 
 Second & Third St. Pass. Ry. ) „ „, ., ... „. t * 00, <>-« 
 
 „ „ . f *5 Phila. 164; 15 Leg. Int. 331 . . 313 
 
 Co., Faust vs ) ^ 
 
 Second <fc Third St. Pass. Ry. j 
 
 Co. vs. Green and Coates St. [ 3 Phila. 430; 16 Leg. Int. 197. . 418 
 
 Pass. Ry. Co ) 
 
 Second & Third St. Pass. Ry. ) „ pu;,„ Qm ikt t * ^ak 0=0 
 
 ^ TiT _L. f o Phila. 316; 15 Leg. Int. 405. . 358 
 
 Co., Martin vs ) * 
 
 Sharp, Milhau vs 15 Barb. 193 f 58 
 
 Sharp, Milhau vs 17 Barb. 435 ; 9 How. Pr. 103. Ill 
 
 Sharp, Milhau vs 38 Barb. 338 ; 7 Abb. Pr. 320. 334 
 
 Sixth & Eighth Av. R. R. Cos., ) T • • ^ • t t.t =0. .„^ 
 Hone vs i Livingston s Law Mag. 584 . 179 
 
 Stephenson vs. N. Y. & Harlem) a-xr ~<j- a ■ r,^ aA-, 
 
 jj jj (^Q ^ 9 JN . Y. Sup r Ct. 341 105 
 
 Story, Wetmore vs 32 Barb. 414 ; 3 Abb. Pr. 362. 300 
 
 Stuyvesant vs. Pearsall 15 Barb. 244 98 
 
 Temple, Commonwealth vs \ ^^ *^*®®- ^^ : ^ Am. Law Reg. 
 
 ( 678 ; 33 Law Reporter, 333. 456 
 
 Third Av. R. R. Co., Van Schaick ) 3^ ^^^^ ^gg g ^^^ p^ 3^^ 3g^ 
 
 vs J 
 
cas:es repobteb. ix 
 
 Thomas vs. Citizens' Pass. Ry. Co. . IS.'Leg. Int. 189 399 
 
 Thompson vs. N. O. & Carroll-) jq La. Ann. 403 189 
 
 ton R: R. Co.... ■ i 
 
 TT • -DM r, wu-i ( 77 Mass. 359 : 17 Leg. Int. 317; 
 
 Union Railway Co., Whitney vs. ^ 'rL ' ° ,„/ ,„„ 
 
 ■' ■' ( 33 Law Reporter, 401..... 483 
 
 Van SchaiA vs. Third AV. R. R. ) gg ^^^^ ^gg . g ^^^ p^ gg^ gg^ 
 
 Co I 
 
 VariUatvs. N. O. & Carrollton ) iq La. Ann. 88 185 
 
 R. R. Co ) 
 
 Weldon vs. N. T. & Harlem R. R. ) ^g j^ ^ ^ ,^ ^^^^^ ^^^ 
 
 Co ' 
 
 Wetmore vs. Story 33 Barb. 414 ; 3 Abb. Pr. 363. . 300 
 
 Weyaut vs. N. T. & Harlem. R. ) ^^ j^ ^ ^ ,^ ^ ggO ^g^ 
 
 R. Co. ) 
 
 Whitney vs. Union Railway Co. . \ ^^ ^^f • 359 - 1^ Leg. Int. 317; 
 
 ■' ■ ' \ 33LawRep.401 433 
 
 Whitson vs. Phila. & Gray's) 3 puHa. 284 ; 15 Leg. Int. 373.. 348 
 
 Ferry Pass. Ry. Co ) 
 
 Wilbrand vs. Eighth Av. R. R. Co. 16 N. T. Sup'r Ct. 314 307 
 
 Wilson vs. Cunningham et al 3 Cal. 341 103 
 
 Winterson vs. Eighth Av. R. R. Co. 6 N. Y. Com. Pleas, 389 373 
 
CASES CITED. 
 
 Adams vs. Inhabitants of Carlisle. 38 Mass. (21 Pick.) 146 ...335, 400 
 
 Adams vs. 8. & W. R. R. Co 11 Barb. 414 61, 239. 240 
 
 Allen vs. Hayward 7 Ad. & El. N. S. 960 162 
 
 American Ins. Co. vs. Oakley 9 Paige, 496 397 
 
 Arniington vs. Towns of B. R. & N, 15 Vt. 745 380 
 
 Armstrong vs. Wheeler 9 Cowen, 88 383 
 
 Astor vs. Union Ins. Co 7 Cowen, 303 273 
 
 Attorney General vs. Cohoes Co 6 Paige, 133 247 
 
 Attorney General vs. Mayor, etc., { ^ gy j^ jr jj g^^g ^gg 
 
 of Dublin S ^ ' 
 
 Attorney General vs. Mayor, etc., ) ^ jj j^^ & Cr. 171 67 
 
 of Liverpool ) 
 
 ( 3 Duer,119; 12Leg. Obs. 17; 
 
 Attorney General vs. Mayor, etc., \ ^ ^^ g^ jj^ jj^^ ^g^ ^^^^ 
 
 °* ^- ^ ( 117, 181, 184, 294 
 
 Attorney General vs Richards 3 Anstruther, 608 247 
 
 Austin's Case 1 Ventris, 183 337 
 
 Bailey vs. Mayor, etc., of N. Y. . . . 3 HiU, 531 67, 207 
 
 Baines vs. Baker Amb. 158 247 
 
 Baltimore Turnpike, Case of ...... . 5 Binney, 481 410, 413 
 
 Bank of Monroe vs. Field 2 Hill, 445 381 
 
 Bank of Pennsylvania vs. Com- ) _„ p g. ^.. „„„ 
 
 monwealth ) 
 
 Bank of Toledo vs. City of Toledo. 1 Ohio St. 622 421 
 
 Barber vs. Andover 8 N. H. 398 880 
 
 Barker vs. Binninger 14 N. T. 370 281 
 
 Barker vs. St. Quintin .13 Mees. & "Welsb. 441 450 
 
 Barrow vs. Richard 8 Paige, 351 437,' 438 
 
 Bartlett vs. Tinor Garth. 253 388 
 
 Bedford, Duke of vs. Trustees of i g ^ . ^ ^ ggg ^g^ 
 
 the British Museum ) 
 
 Beekman vs. S. & S. R. R. Co 3 Paige, 75 344 
 
 Benedict vs. Goit 3 Barb. 469 237 
 
 Black vs. Carrollton R. R. Co 10 La. Ann. 33 186, 189 
 
 Blackmore vs. Glamorganshire C. N. 1 Myl. & K. 154 364 
 
xii CASES CITED. 
 
 Bloodgood vs. M. & H. R. R. Oo. . . 18 Wend. 9 40, 41, 342 
 
 Bonaparte vs. C. & A. R. ,R. Co. .. . 1 Bald. 305 380 
 
 Boston & Lowell R. R. Corp. vs. , gy ^ ,3 ^ ^ ^ 421 
 
 8.&L.R.R.C0 S 
 
 Bradley vs. N. Y. & N. H. R. R. Co. 31 Conn. 394 479 
 
 Brand vs. S. & T. R. R. Co 8 Barb. 368 363, 340 
 
 Brick Presb. Ch. Corp. of, vs. ) g ^^ ggg ^34 ^46^ 147 
 
 Mayor, etc., of N. Y ) 
 
 Bridge vs. G. J. R. Ry. Co 3 Mees. & Welsb. 344.. . . 197, 335 
 
 Bristow vs. Wood 1 Collyer, 480 437 
 
 Britton vs. Mayor, etc., of N. Y . . . 31 How. Pr. 351 91, 95, 134 
 
 Bromley vs. Smith * 1 Sim. 8 73 
 
 Brown vs. Comstock 10 Barb. 67 450 
 
 Brown vs. Maxwell 6 Hill, 593 334 
 
 Bush vs. Brainerd 1 Cowen, 78 334 
 
 Butterfleld vs. Forrester 11 East, 60 196, 334, 398 
 
 Button vs. H. R. R. R. Co 18 N. Y. 348 399, 403 
 
 Caddell vs. Smart 4 Dowl. Pr. Cas. 760 450 
 
 Caldwell vs. Murphy 1 Duer, 333 368 
 
 Caldwell vs. Murphy UN. Y. 416 339 
 
 Caledonian, etc., J. Ry. Co. vs. ) 39 Bng. L. & Eq. 38 363 
 
 Helensburgh H. T S ^ ^ 
 
 Carroll vs N. Y. &N. H. R. R. Co. 1 Duer. 571. . .,. 368 
 
 Carter vs. Hammett...' 18 Barb. -608, .. ' 383 
 
 Case of a Turnpike Road, etc 5 Binney, 481 410, 413 
 
 , Chads Ford Turnpike, Case of. ... 5 Binney, 481 410, 413 
 
 Chapman vs. A. & S. R. R. Co . . . . 10 Barb. 360 61, 165, 339 
 
 Chapman vs. Haw 1 Taunton, 341 451 
 
 Charles River Bridge vs. Warren ) ^^ p^^^^.^ 43^ g^ 3^ 
 
 Bridge f ' ' , 
 
 Child vs. Starr 4 Hill, 369 43 
 
 Childs vs. Clark 3 Barb. Ch. 53 383 
 
 Childs vs. Hudson's B. Co 3 P. Wms. 307 65 
 
 Christman vs. Floyd 9 Wend. 34a 394 
 
 Christophervs. Mayor, etc., of N.Y. 13 Barb. 567 73, 131 
 
 City of London vs. Vanacre 5 Mod. 438 65 
 
 Clark vs. Smith 6 Mann. & Gran. 1051.. . .451, 453 
 
 Clayards vs. Dethick 12 Ad. & El. 439 335 
 
 Clor vs. Mallory 1 Code Rep. 136 178 
 
 Coates vs. Mayor, etc., of N. Y 7 Cowen, 585 146 
 
 Cole vs. Bennett. 6 Price, 15 451 
 
 Coles vs. Trustees of Wmsburgh . . 10 Wend. 6i9 315 
 
 Collins vs. A. &S. R. R. Co 13 Barb. 493 378 
 
 Commissioners of Allegheny Co. j g S. & R. 166 411 413 
 
 vs. Lecky ) ' 
 
 Commonwealth vs. Duane 1 Binney, 99 note 434 
 
CASES CITED. xiii 
 
 Commonwealth vs. Dupuy Brightly, 44 388, 427 
 
 Commonwealth vs. Erie & N. E. ) g^ p^ gj ggg ggg gg^ ggo 
 
 R. R.Co ) 
 
 Commonwealth vs. Eyre 1 S. & R. 347 388, 427 
 
 Commonwealth vs. Pitchhurg R. ) g^ ^ (^ ^^^^^^ ^^ ggg 
 
 R. Co i ' 
 
 Commonwealth vs. Fowler 10 Mass. 290 158 
 
 Commonwealth vs. Johnston ...J 3 Am. Law Reg^ 285, 520; 11 
 
 Commonwealth ex rel. Hall vs. 
 
 I. 24 Pa. St. 159 344 
 
 Leg. Int. 10, 19 ; 428 
 
 „ ,„ . . I 9 Watts, 466 411,413 
 
 , Canal Commissioners f 
 
 Commonwealth vs. Passmore 1 S. & R. 219 246 
 
 Commonwealth vs: P. & 0. R. R. 
 
 Co • 
 
 Commonwealth vs. Teamann 1 Phila. 460 389 
 
 I 80 Mass. (14 Gray,) 69; 23 Law 
 
 Commonwealth vs. Temple ■< Reporter, 332 ; 1 Am. St.-Ry. 
 
 ( Dec, 456 477 
 
 Commonwealth vs. Wilkinson 33 Mass. (16 Pick.) 175 237 
 
 Cook vs. Chase 3 Duer, 643 375 
 
 Cooper vs. Lampeter Township. ... 8 Watts, 125 411 
 
 Corning vs. Lowerre 6 Johns. Ch. 439 347 
 
 Corporation of Brick Presh. Ch. ) g ^^^^^^ ggg ^g^^ ^^^ .^^^ 
 
 vs. Mayor, etc., of N. Y I 
 
 Cowden vs. Wright 24 Wend. 429 54 
 
 Craigie vs. Mellon .' 6 Mass. 7. 478 
 
 Curtis vs. Tyler 9 Paige, 432 384 
 
 Cuyler vs. Vanderwerk 1 Johns. Cases, 247 433 
 
 Dartmouth College Trustees vs. , ^ "v^jjeaton, 518 63, 145, 431 
 
 Woodward f 
 
 Davenant vs. Hurdis Moore, 576 136 
 
 Davies vs. Mann 10 Mees. & Welsh. 546 198, 341 
 
 Davis vs. Mayor, etc., of N. Y. . . i ^^^- Y- f 6 : 1 Am. St.-Ry. 
 
 •' ( Dec. 235 294, 335, 326 
 
 Decker vs. Mathews 12N. Y.,313 229 
 
 Denslow vs. N. H. & N. Co 16 Conn. 98 .. 479 
 
 Deschamps vs. Second & Third 1 3 Phila. 379 ; 1 Am. St.Ry. 
 
 St.P.Ry.Co S Dec..843 ....'...849 
 
 Dodge vs. Woolsey 18 How. 331 , 431 
 
 Domett vs. Helyer 2 Dowl. Pr. Cas. 540 450 
 
 Dowell vs. S. N. Co. 5 El. & Bl. 195 .335, 339 
 
 ( 7 Barb. 508 ; 1 Am. St.-Ry, 
 Drake vs. H. R. R. R. Co ] Dec. 10 '..61, 115, 117, 138, 
 
 ( 164, 180, 183, 311, 339, 340, 408 
 Dresser vs. Brooks 5 How. Pr. 75 483 
 
 Dunham vs. Trustees Village of ) g cowen, 463 148 
 
 Rochester ) 
 
xiv CASES CITED. 
 
 Duke of Bedford vs. Trustees of ) ^ jjyj_ & g 553 437 
 
 the British Museum f 
 
 Earl of Shaftsbury's Case 1 Mod. 144 316 
 
 Edwards vs. G. J. Ry. Co 1 Railway Oases, 178 361 
 
 Ex parte Peru Iron Co 7 Cowen, 540 396 
 
 Ex parte Stone 3 Cowen, 380 432 
 
 Fairlie vs. Hastings 10 Ves. 133 281 
 
 Fellows vs. Fellows 4 Johns Ch. 25 78 
 
 First Bap. Ch. in S. vs. 8. & T. ) ^^^^^ ^g 121 
 
 R. R. Co S 
 
 Fleming vs. Hollenbeck 7 Barb. 271 273 
 
 Fletcher vs. A. & 8. R. R. Co 35 Wend. 463 164, 242, 243 
 
 Fletcher vs. Peck 6 Cranch, 87 145, 213, 421 
 
 Flynn vs. H. R. R. R. Co 6 How. Pr. 308 178 
 
 Ford vs. Monroe 30 Wend. 310 56, 57 
 
 Fowler vs. 8anders Cro. James, 446 346 
 
 Francis vs. Webb 7 Com. Bench, 731 451,452 
 
 Frewin vs. Lewis 4 Mylne & Cr. 249 66 
 
 Gaillerdet vs. Demaries 18 La. 490 6 
 
 Glassington vs. Thwaites 1 8. & 8. 134 346 
 
 Goszler vs Corporation of George- ) g ^jjeaton, 593 134' 
 
 town ( 
 
 Gould vs. H. R. R. R. Co 6 N. Y. 522 221 
 
 Gough vs. Bryan 2 Mees. & Welsh. 770 197, 335 
 
 Griives vs. Eades 5 Taunton, 429 455 
 
 Grew vs. Broadway R. R. Co. . . . i ^^}^^Z f^^P"''^""' ^^ ' ^ ^■ 
 
 ( 8t.-Ry. Dec. 1 478 
 
 Hacker vs. Newborn 8tyles'Rep. 413 432 
 
 Haight vs. Holcomb 16 How. Pr. 16 ; id. 173. .356. 450 
 
 Hamilton vs. N. Y. & H. R. R. ) 9 Paige, 171 ; 1 Am. St.-Ry. 
 
 Co ) Dec.l 45,164,165,239 
 
 Hanunond vs. McLachlan 1 Sandf . 333 42 
 
 Harlow vs. Humiston 6 Cowen, 189 196, 834 
 
 Hart vs. Mayor, etc., of Albany 9 Wend. 571 47. 346 
 
 Hart vs. N. O. & C. R. R. Co. . . ^ ^ ^°^- ^'^^ ' ^ ^™- ^t-Ry. 
 
 I Deo. 4 8, 190 
 
 Hart vs. N. O. & C. R. R. Co. . . | * ^«- ^"°- 261; 1 Am. St.-Ry. 
 
 / Dec. 8 : 190 
 
 Hart vs. R. &8. R. R. Co 8 N. Y. 37 229 
 
 Hartfleld vs. Roper 31 Wend. 615 334 
 
 Hawkins vs. Cooper 8 Carr. & P. 473 839 
 
 Hegeman vs. Western R. R. Corp. 18 N. Y. 9 273, 403 
 
 Henry vs. P. & A. B. Co 8 W. & S. 85 820 
 
CA8E8 CITED. xv 
 
 Hentz vs. L. I. R. R. Co 13 Barb. 646 76, 165 
 
 Hills vs. Miller 3 Paige, 354 438 
 
 Hodgman vs. Western R. R. Corp. 7 How. Pr. 492 178 
 
 Hodsoll vs. StoUebrass 11 Ad. & El. 301 57 
 
 Holbrookvs. U. & S. R. R. Co.... 13 N. Y. 386 334 
 
 Hooker vs. N. H. & N. Co 14 Conn. 146 ; 15 id. 313 479 
 
 Hoyt vs. Thompson 5 N. Y. 330 178. 179 
 
 Imlay vs. U. Br. R. R. Co 26 Conn. 349 479 
 
 In re Thirty-second street 19 Wend. 138 311 
 
 In re Twenty-ninth street 1 Hill, 189 , 211 
 
 In re Thirty-ninth street : 1 Hill, 191 311 
 
 Jennings vs. Spring 1 Bailey's Eq. 181 157 
 
 Johnson vs. H. R. R. R. Co \^ ^^'' ^} ' ^ ^"^- ^t-R^ 
 
 ( Dec. 191 262, 278 
 
 Johnston vs. Bingham 9 W. &. 8. 66 413, 413 
 
 Johnston vs. Commonwealth 33 Pa. St. 102 887 
 
 Jones vs. Axen 1 Ld. Raymond, 119 316 
 
 Keenan vs. Dofflinger 19 How. Pr. 153 454 
 
 Kelsey vs. Barney 13 N. Y. 435 368, 367, 403 
 
 Kennard vs. Burton 25 Maine, 39 385 
 
 Kepner vs. Keefer 6 Watts, 238 388 
 
 Keppell vs. Bailey 3 Myl. & K. 517 438 
 
 Kerwhacker va. C. C. & C. R.R. Co. 3 Ohio St. 173 340 
 
 King vs. Moore 3 Barn. & Ad. 184 246 
 
 King vs. Russell .... 6 East, 437 346 
 
 King vs. Russell 6 Barn. & Cress. 566 346 
 
 King vs. Ward 4 Ad. & El. 884 246 
 
 Knights vs. Quarles 2 Brod. & Bing. 102 177 
 
 Lane vs. Crombie 29 Mass. 177. . . .195, 198, 335, 399 
 
 Laugher vs. Pointer 5 B. & Cress. 560 163 
 
 Lekeux vs. Nash 3 Strange, 1331 383 
 
 Lessig vs. Langton Brightly, 191 846 
 
 Lewis vs. Payne 4 Wend. 438 373 
 
 Lexington & Ohio R. R. Co. vs. , g j, ggg ^39 
 
 Applegate ) 
 
 Lincoln vs. 8. & S. R. R. Co 23 Wend. 425 56 
 
 Lightbody vs. N. A. Ins. Co 28 Wend. 18 110 
 
 Linden vs. Hepburn 8 Sandf. 668 396 
 
 London, City of, vs. Vanacre 5 Mod. 438 65 
 
 Loomis vs. McClintock, 10 Watts, 374 369 
 
xvi CASES CITED. 
 
 Lord Pelre vs. E. C. By. Co t Eailway Cases, 463 361 
 
 Lorillard vs. Lorillard 4 Abb. Fr. 310 384 
 
 Lynch vs. Nurdin 1 Ad. & El. N. S. 39 335 
 
 Marrvs. Smith 4 B. & Aid. 466 450 
 
 Martin vs. Hawks 15 Johns. 405 354, 449 
 
 Martin vs. G. N. Ry. Co 30 Eng. L. & Eq. 473 335 
 
 Mayor, etc., of N. T. vs. Bailey .... 3 Denio, 433 93 
 
 Maxwell vs. Famam 7 How. Pr. 336 375 
 
 McCready vs. Guardians of the )9S&Ji94 413 
 
 Poor \ 
 
 McDonald vs. Napier 14 Ga. 89 453 
 
 Mechanics & Traders B. S. B. O. i ^ q^^ g^ gg^ 42j 
 
 vs. Debolt J 
 
 Mechanics & Traders B. S. B. O. ) jg jj^^^ gg^ 421 
 
 vs. Thomas ) 
 
 Mifflin vs. Railroad Co 16 Pa. St. 183 320 
 
 I 15 Barb. 193 ; 1 Am. 8t.-Ry. 
 
 Milhau vs. Sharp \ Dec. 58 99, 165, 183, 
 
 ( 208, 330, 239 
 
 Tjj.,, „„ „„ «, „„ j 17 Barb. 435 ; 1 Am. St.-Ry. 
 
 Milhau vs. Sharp | ^^^^^ ^^^^ ^^^ 
 
 Mohawk B. Co. vs. M. & 8. R. R.Co.. 6 Paige, 554 313 
 
 Monongahela N. Co. vs. Coons 6 W. & S. 101 320 
 
 Monongahela N. Co. vs. Coons 6 Pa. St. 379 320 
 
 Moodalay vs. Bast India Co 1 Brown's Ch. 469 67 
 
 Moore vs. Central R. R. Co 24 N. J. L. 384. . ; 335 
 
 Moore vs. G. & C. St. P. Ry. Co. ] ^J*"'^:,^^^ '' ^ ^°'- ^*-^y- 
 
 ■' ( Dec. 321 329 
 
 Morphett vs. Jones 19 Ves. 350 346 
 
 Mungervs. T. R. R. Co 4 N. Y. 349 278 
 
 Nelson vs. Wilson 6 Ring. 568 451, 453 
 
 New Jersey, State of, vs. Wilson 7 Cranch, 164 145 
 
 Nicholson vs. N. Y. & N. H. R. ) ^g ^^^^ ^^ ^^^ 
 
 R. Co ) 
 
 Oneida Common Pleas vs. People. . 18 Wend. ,79 297 
 
 Owenvs. Mason 18 How. Pr. 156 455 
 
 Pack vs. Mayor, etc., of N. y 3 N. Y. 489 56 
 
 Packer vs. S. & E. R. R. Co 19 Pa. St. 311 344 
 
 Parker vs. Adams 53 Mass. (13 Mete.) 415 335 
 
 Peirce vs. Somersworth 10 N. H. 369 380 
 
 Pennsylvania, Bank of, vs. Com- 1 59 p^. gt. 144 ggg 
 
 mon wealth S 
 
CASUS CITUD. xvii 
 
 People vs. Cunningham 1 Denio, 524 346 
 
 People vs. Hardenburgh 8 Johns. 335 ■ 449 
 
 People vs. Morris • 13 Wend. 335 65 
 
 People vs. Prest. & D. of the Man- { g ^^^^ gg^ ^^^^ jgO 
 
 hattan Co. . . ., t 
 
 People vs. Trustees of Geneva ) gwend. 311 .. ..143. 144, 154, 158 
 
 College.... S ' 
 
 People vs. Utica Ins. Co 15 Johns. 358 143, 158 
 
 People exfrel Davis vs. Sturtevant. 9 N. Y. 363 313, 393 
 
 People ex rel Fountain vs. Super- (^ ^ -Q2it\i 64 83 
 
 visors ) 
 
 People ex rel Stanton vs. Tioga ) ^g ^end. 73 179 
 
 Common Pleas ) 
 
 Perkins vs. Hinman 19 Johns. 337 433 
 
 Perkins vs. Washington Ins. Co 4 Cowen, 645 109 
 
 Peterson vs. Mayor, etc., of N.Y.. 17 N. Y. 449 397 
 
 Petre- vs. B. C. Ry. Co 1 Railway Cases, 463 ; 361 
 
 Phila. & Trenton R, R. Co 6 Wharton, 35. .315, 319, 367, 380 
 
 Pinder vs. Morris 3 Caines, 165 449 
 
 Plant vs. L. I. R. R. Co 10 Barb. 36 61, 165, 339 
 
 Pluckwell vs. Wilson 5 Carr. & P. 375 340 
 
 Power vs. Kent 1 Cowen, 173 449 
 
 Pritchard's Case 1 Lev. 165 , 316 
 
 Providence Bank vs. Billings 4 Peters, 514 344 
 
 PuUey vs.Municipality No. 3 18 La. 378 408 
 
 Juarman vs. Burnett 6 Mees. & Welsh 499 163 
 
 Jueen vs. B. C. Ry. Co 10 Ad. & El. 531 861 
 
 RadclifE's Exrs vs. Mayor, etc., of ) 4 -w y 305 243 
 
 Brooklyn ) 
 
 Rapson vs. Cubitt 9 Mees. & Welsh. 710 163 
 
 Rathbun vs. Payne 19 W6nd. 399 378,334 
 
 Read vs. Dupper 6 T. R. 361 ! 357, 450 
 
 Rex V8. Carlile 6 Carr. & Payne, 686 346 
 
 Rex vs. Cross 3 Camp. 336 346 
 
 Rex vs. Jones 3 Camp. 330 246 
 
 Robinson vs. Weeks 6 How. Pr. 161 177 
 
 Rooke vs. Wasp ^ 5 Bing. 190 451 
 
 Rooneyvs. Second Av. R R. Co. \ ^^ ^^ Y- 368; 1 Am. St.-Ry. 
 
 ■^ ( Dec. 358 450 
 
 Rowe vs. Granite B. Corp 38 Mass. (31 Pick.) 344 314 
 
 Sampson vs. Smith 8 Sim. 373 347 
 
 Sawyer vs. Joslin ] M""- ^^^ ^*'''' ^^^ = ^^ ^*- 
 
 ( 173 273 
 
xviii CA8E8 CITED. 
 
 \ 12How. Pr. 136 356,450 
 
 Schreiber vs. Creed 10 Sim. 9 437 
 
 Shaftsbury. Earl of, Case of 1 Mod. 144 316 
 
 Shank vs. Shoemaker 18 N. Y. 489 450 
 
 Sharp vs. Spelr 4 Hill, 76 144 
 
 Sheffield vs. R. &. S. R. R. Co 31 Barb. 339 340 
 
 Sherwood vs. B. & N. Y. C. R. 
 
 R. Co 
 
 Smith vs. Smith 19 Mass. 631 196, 335, 398 
 
 Spencer vs. L. & B. R. R. Co 8 Sim. 193 247 
 
 Spencer vs. D. & 8. R. R. Co 5 Barb. 337 361, 334 
 
 State of New Jersey vs. Wilson. ... 7 Cranch, 164 145 
 
 Stokes vs. Saltonstall 13 Peters, 181 273 
 
 Stuyveaant vs. Mayor, etc., of N. Y. 7 Cowen, 588. . 147 
 
 Stuyvesant vs. Pearsall ......... J ^^ Barb. 344 ; 1 Am. St.-Ry. 
 
 ■^ ( Dec. 98 339 
 
 Sweet vs. Bartlett 4 Sandf. 661 354, 450, 454 
 
 Talcott vs. Bronson 4 Paige, 501 450 
 
 Taylor vs. Shum 1 Bos. & Pul. 21..! 383 
 
 Taylor vs. Vandervoort 9 Wend. 449 432 
 
 Ten Broeck vs. DeWitt 10 Wend. 617 449 
 
 Terrett vs. Taylor 9 Cranch, 43 145 
 
 Thallhimer vs. BrinckerhoflE 4 Wend. 396 381 
 
 Thomas vs. Citizens' Pass. Ry. / 15 Leg. Int. 189; 1 Am. St.- 
 
 Co \ Ry. Dec. 399 304 
 
 Thompson vs. Schermerhorn 6 N. Y. 93 144 
 
 Tonawanda R. R. Co. vs. Munger.- 5 Denio, 355 378 
 
 Tovey vs. Pitcher Carth. 177 383 
 
 Trow vs. V. C. R. R. Co 34 Vt. 487 339, 341 
 
 Trustees of Dartmouth College) 4 w^eat. 518 65,145,421 
 
 vs. Woodward ) , 
 
 Trustees Presb. Soc. in W. vs. ) 3 3^ gg^ 
 
 Auburn & R. R. R. Co i 
 
 Trustees of Village of Watertown ) 4 -a • ~.,r, 
 
 r, f 4 Paige, 510 438 
 
 vs. Cowen S ° 
 
 Tuffl vs. Warman 2 C. B. N. S. 740 403 
 
 Undegraph vs. Commonwealth ... 11 S. & R. 394 435, 426 
 
 Ward vs. Syme 9 How. Pr. 16 855, 450 
 
 Waring vs. Cram 1 Parson's Sel. Eq. Cas. 516. . 346 
 
 Welsh vs. Hole... 1 Doug. 338 354, 450.456 
 
 West River Bridge Co. vs. Dix 6 How. 507 380 
 
 Whatman vs. Gibson 9 Sim. 196 437 
 
 Whitney vs. Hitchcock 4 Denio, 461 55, 57 
 
 Wilkins vs. Batterman 4 Barb. 47 354 
 
CASE8 CITED. xix 
 
 ■Williams vs. Holland ...:. 6 Carr. & P. 23 340 
 
 Williams vs. N. Y. C. R. R. Co . . . 18 Barb. 233 339, 340 
 
 Williams vs. N. Y. C. R. R. Co . . . 16 N. Y. 97 278, 294 
 
 Wood vs. Trustees of N.W. Presb. ) ^ ^^-^ p^ ^^^^ ^^^^ 455 
 
 Ch I 
 
 Woolf vs. Beard 8 Carr. & P. 373 340 
 
 York & N. M. Ry. Co. vs. Regina. . 1 El. & B. 858 363 
 
 Young vs. McKenzie 3 Kelly, (Ga.) 31 380 
 
AMEEICAN 
 STEEET-EAILWAY DECISIONS. 
 
 HAMILTON vs. THE NEW YORK AND HARLEM 
 RAILROAD COMPANY. 
 
 9 Paige, 171. 
 
 Court of Chakcert of New York — April 30, 1841. 
 
 An extension of the Harlem Railroad, authorized by the act of 
 1833, may he made whenever the common council think proper to 
 authorize it. 
 
 The restriction upon the company by the original act, as to the time 
 of completing its road, which time was extended by subsequent acts, 
 applied only to the road as originally authorized. 
 
 A properly constracted and authorized railroad running through 
 the streets of a city is not a nuisance. 
 
 This was an application for an injunction to restrain defend- 
 ant from using its railroad in Broome street in the city of 
 New York. 
 
 Mr. 8. Sherwood, for the complainant. 
 
 Mr. S. Meredith, for the defendant. 
 
 The Ohan-cellor (Reuben- H. Walworth) — From the 
 affidavits it is evident that the railroad cannot materially 
 interfere with the use of the street for the ordinary purpose 
 of passing with carts and carriages. It is insisted, however, 
 on the part of the complainants that the time for completing 
 the road expired in March, 1839, and that the defendant had 
 no right to lay down these rails in Broome street after that 
 time. 
 
 The original act of April, 1831, chap. 363, authorized the 
 construction of a railroad from the north bounds of Twenty- 
 third street to the Harlem river, and required the road to be 
 •located within six months and to be completed within four 
 
NHW YORK. [Ohanc. 
 
 Hamilton vs. The New York and Harlem R. R. Co. 
 
 years from the passing of the act, or that the grant should 
 cease and become void. The time for completing the road was 
 subsequently extended, by two acts of the Legislature, until 
 the 6th of March, 1839. I am satisfied, however, that the 
 restriction upon the company by the original act as to the 
 time of completing their road, which time was extended by 
 these subsequent acts, only applied to the road as originally 
 authorized; and if the road was completed to that extent 
 previous to the 6th of March, 1839, that it may be extended 
 into the city from time to time, as permission from the cor- 
 poration can be obtained, at any period during the continu- 
 ance of the charter. The object of the original restriction 
 was to ensure the making of the road to the prescribed extent 
 within a reasonable time, or that the franchise should revert 
 to the people. But the act of 1 833, authorizing the exten- 
 sion of the road to Fourteenth street, and through such other 
 streets of the city as the corporation should from time to time 
 permit, subject to such prudential rules as might be prescribed 
 by the corporation in addition to those directed by the act 
 itself, appears to have contemplated the extension of the road 
 from time to time, as and when the corporation should give 
 the permission ; leaving it to that body to regulate the time 
 when the extension should commence and be completed in 
 any particular street south of Fourteenth without reference 
 to the time allowed for completing the original road. The 
 corporation, therefore, was not only authorized to allow the 
 road to be extended through Broome street to the city hall 
 subsequent to March, 1839, but they may authorize a further 
 extension to the Battery, if they shall deem it for the interest 
 of the city to have it thus extended ; provided it does not 
 materially interrupt the ordinary use of the streets through 
 which it is allowed to pass. 
 
 The affidavits show that the manner in which the road is 
 constructed in Broome street, is a substantial compliance 
 with the last clause of the 10th section of the act of 1831; as 
 there is sufficient space on each side of the track for the 
 passage of carriages and for the usual sidewalk for foot pas- 
 sengers. Indeed the construction of the road with the groove 
 rail, laid upon a level with the surface of the pavement. 
 
1841.J NJEW YORK. 
 
 namilton d«. The New York and Harlem E. R. Co. 
 
 leaves the whole street perfectly free for the passage of carts 
 and carriages of every kind, for the whole width thereof, 
 except at the moment when the railroad cars are passing upon 
 the track in the centre of the street. If the construction of 
 the road was such as to render it impossible or difficult for 
 carriages to cross the track of the railroad from one side of 
 the street to the other, then it would be proper that there 
 should be room on each side of the track for carriages to pass 
 each other between the track and the curbstone. 
 
 But that is not. necessary, as this road is constructed, for 
 the rails do not prevent carriages from passing each other in 
 t)ie street, with the same facility as if the track of the railroad 
 was not there. Upon the whole, I am satisfied that the laying 
 of the track of the railroad through Broome street, and the 
 running of the cars upon the same, is not such a nuisance to 
 the owners of property upon that street as will authorize this 
 court to interfere by injunction. 
 
 The motion is therefore denied, with costs. 
 
 Note.— The New York and Harlem Railroad Company was the first 
 street railway incorporated in this country. By the act of April 35, 1831, 
 chap. 363, the company was authorized "to transport, take, and carry 
 property and persons * * * by the power and force of steam, of 
 animals or of any mechanical or other power, or of any combination of 
 them which the said company may choose to employ." April 6, 1833, 
 this act was amended. Section 4 of the amendment provides : "No 
 carriage or vehicle shall be drawn or propelled by any other than horse 
 power through any street of said city south of Fourteenth street." 
 
 It will be noticed that in the opinion no reference Is made to the 
 motive power used ; but as Broome street is over a mile south of Four- 
 teenth street, horses were no doubt employed. — Eds. 
 
LOUISIANA. [Sup. Ot. 
 
 Hart vs. New Orleans and Carrollton R. R. Co. 
 
 JACOB HART vs. THE NEW ORLEANS AKD 
 CARROLLTON RAILROAD COMPANY. 
 
 1 Bob., 178. 
 
 Action brought to recover damages caused by the driver of an omni- 
 bus, alleged to be the property of the defendants, for negligently running 
 it against the plaintiflE's carriage. 
 
 Seld, that in order to recover, it was not necessary for the plaintiff 
 to prove a legal title to the omnibus in the defendants ; that prima 
 facie evidence of title such as public reputation was suflScient ; and 
 the court having refused to allow a witness to answer whether the 
 defendants were not generally reputed to be the owners of the omni- 
 bus, it was held error. 
 
 Held, also, that the defendants were liable if the damages were 
 caused by the negligence or want of skill of the driver, or by the 
 vicious temper of the horses, if the horses belonged to defendants, or 
 the driver was in their employ. 
 
 When requested, the judge refused to charge "that responsibility 
 only attaches, when the master or employer might have prevented 
 the act which caused the damage, and have not done it." 
 
 Seld, no error. 
 
 A corporation cannot offer its stockholders as witnesses ; but those 
 opposing may, and when once admitted they may be cross examined, 
 and give evidence in favor of, as well as against their interests, on 
 points as to which they are called to testify. 
 
 In a suit against a corporation all the individuals owning the stock 
 are not cited, but only those agents and officers whom the law desig- 
 nates to manage its affairs. 
 
 Held, therefore, that the exclusion of the evidence of a witness on 
 the ground of his being a stockholder in the company, and that he 
 could not be interrogated except on facts and articles, was error. 
 
 Appeal by the defendants from a judgment of the District 
 Court of the First District, BucHANAiir, J. 
 
 Mr. Roselius, for the plaintiff. 
 Mr. T. Slidell, for the defendant. 
 
 Gabland, J. — This action is brought to recover $850, as 
 damages, caused by the driver of an omnibus, alleged to be 
 the property of the defendants, negligently running it against 
 a carriage belonging to the plaintiff, which was standing as 
 close to the sidewalk as it could be placed, in one of the most 
 
1841.] LOUISIANA. 
 
 Hart vs. New Orleans and Carrollton R. B. Co. 
 
 public streets of the city of New Orleans ; whereby the car- 
 riage was broken to pieces, and nearly or entirely destroyed, 
 and rendered useless. 
 
 The evidence satisfies us that it was an act of gross negli- 
 gence ; the jury gave $800 damages ; and we should not hesi- 
 tate to affirm the judgment rendered on the verdict, if the 
 evidence had made it probable that the omnibus was the prop- 
 erty of the defendants. On that point the testimony does 
 not satisfy us, and we are constrained to set aside the verdict 
 of the jury, and remand the case for a new trial. The only 
 evidence of property was the testimony of one witness, who 
 says that he saw the omnibus going along " with the name of 
 Carrollton written on it." We cannot agree with the jury 
 that this is suflBcient or probable evidence of property in the 
 defendants. 
 
 On the trial, the plaintiff offered Thomas Barrett as a witness, 
 to prove that the defendants were the owners of the omnibus 
 in question, to whom objection was made by their counsel, on 
 the ground that he was incompetent, being a stockholder in 
 the company, and that he could not be interrogated except on 
 facts and articles, which objection was sustained by the 
 court, and the person so offered as a witness rejected ; to 
 which opinion the plaintiff took his bill of exceptions. In 
 this we think the judge erred. A corporation cannot offer 
 its stockholders as witnesses in its own behalf, but a party 
 litigating with it may offer them as such, if he chooses to rely 
 upon their statements, and they should be received. They 
 are persons testifying against their own interest, but do not 
 occupy the position of actual defendants who must be inter- 
 rogated on facts and articles. In a suit against a corporation 
 all the individuals owning the stock are not cited, but only 
 those agents and ofl&cers whom the law designates to manage 
 its affairs ; the stockholders may, therefore, be called as wit- 
 nesses, and when once admitted they may be cross-examined 
 and give evidence in favor of as well as against their interests, 
 on those points as to which they are called to testify. Our 
 opinion on this portion of the bill of exceptions makes it 
 unnecessary to decide upon the other parts of it, which relate 
 to the refusal of the judge to permit the plaintiff to amend 
 his petition, and to propound interrogatories to Barrett. 
 
LOUISIANA. [Sup. Ot. 
 
 Hart t)s. New Orleans and Cairollton B. R. Co. 
 
 The plaintiff then asked A. E. Crane, if it was not within 
 his knowledge at the time the damage was done, that the 
 defendants were generally reputed and known as the owners 
 of the omnibus in question, and whether it was a matter of 
 public notoriety. To these questions the defendants objected, 
 on the ground that it was hearsay testimony. The objection 
 was sustained, and the plaintiff again excepte'd. We think 
 the judge again erred in rejecting this testimony. It was not 
 necessary that the plaintiff should prove a legal title to the 
 omnibus in the defendants, but only make out a prima facie 
 right; and it would then rest with them to satisfy the jury 
 that public reputation was wrong, or to show, what would not 
 be very difficult in a case of this kind, that the omnibus 
 belonged to some other corporation, company, or individual. 
 
 At the time of the trial, the defendants requested the judge 
 to charge the jury, that it should be made appear that the 
 person driving the omnibus was in the employment of the 
 defendants, and that they were not responsible for the acts of 
 a driver employed by a lessee. This the judge refused, and 
 under the pleadings and evidence before us, we think he did 
 not err. The answer is a general denial, and it is not 
 pretended that the omnibus had been leased or hired to any- 
 one. If the case stated had been before the court, the refusal 
 of the judge to charge the jury as desired, might have been 
 erroneous; but as it stands upon the record he was correct. 
 
 The defendants further asked the judge to charge the jury, 
 that a principal is not answerable for the wanton and mali- 
 cious acts of his agent, which he refused to do. How far we 
 might be disposed to assent to this as a general proposition, it 
 is not necessary now to decide; but upon the case before us, 
 the judge was not in error. There is no allegation in the 
 petition that the act was wanton and malicious, nor is any 
 attempt made to prove it; but that the damage was caused by 
 the negligence, or want of skill in the driver, or the vicious 
 temper of the horses, for which the defendants are responsible, 
 if the horses belonged to them or the driver was in their ser- 
 vice. The counsel for the defendants has seized upon a single 
 expression in the opinion of the court in the case of Gaillardet 
 vs. Demaries, 18 La., JfiO, to sustain his position without 
 
1841. J LOUISIANA. 
 
 Hart m. New Orleans and CarroUton R. R. Co. 
 
 endeavoring to distinguish the facts and outlines of the case 
 from the one before us. 
 
 The defendants also asked the Judge to charge the jury, 
 "that responsibility only attaches, when the master or em- 
 ployer might have prevented the act which caused the damage, 
 and have not done it." This the judge refused, and we do 
 not think that he erred. The counsel has asked that a part 
 of the Article 3,399 of the Code be declared to be law, without 
 taking into consideration the sense and meaning of the whole 
 of it. If the law was such as is alleged, a master or employer 
 could never be made responsible for the acts of his agents or 
 servants, unless he were present and did not endeavor to 
 prevent the act which caused the damage. 
 
 In conclusion, we cannot forbear repeating, that if the 
 evidence of ownership of the omnibus by the defendants were 
 rendered probable we should certainly affirm the judgment, 
 ,as it is necessary to let the owners and drivers of public and 
 private carriages, and other vehicles, know that they cannot 
 with impunity violate the law, and endanger the lives and 
 property of the people quietly passing along the public streets 
 and highways. If the municipal authorities will not use the 
 preventive means under their control, the citizen will here- 
 after know that the courts of the state are open for redress in 
 cases of actual damage, and that those who administer the 
 law are sensible that a serious evil must be repressed, and are 
 ready to use the power vested in them to effect it. 
 
 The judgment of the District Court is therefore reversed, 
 the verdict of the jury set aside, and the case remanded for a 
 new trial, with instructions to the judge to admit the testi- 
 mony of Thomas Barrett and A. E. Crane, and not to give 
 the charge to the jury asked by. the defendants, and hereto- 
 fore refused, and in other respects to proceed according to 
 law ; the plaintiff paying the costs of this appeal. 
 
LOUISIANA. [Sup. Ot. 
 
 Hart vs. New Orleans and CarroUton B. E. Co 
 
 JACOB HAET vs. THE~ NEW OELEANS AND 
 OARROLLTON RAILROAD COMPANY. 
 
 4 La. Ann., 261. 
 
 The plaintiff brouglit an action for damages for the destruction of 
 his carriage, caused by the negligence of the driver of an omnibus, alleged 
 to belong to defendants ; and on the trial the latter offered to prove, 
 under their plea of general denial, that the omnibus had been leased by 
 them to a third person, at the time of the accident. The evidence was 
 excluded. 
 
 jSeM, error, that as the liability of the defendants depended, not 
 upon the ownership of, the omnibus, but on the fact that the accident 
 was caused by their servant, they should have been allowed to prove 
 that the omnibus was under the exclusivecontrol of the lessees of the 
 railroad, who alone employed the drivers, and that such evidence was 
 admissible under the plea of general denial. 
 
 Appeal by defendants, from the Fifth District of New 
 Orleans, Buchakan, J. 
 
 Mr. Roselius, for the plaintiff. 
 Mr. Micou, for the appellants. 
 
 EusTis, C. J. — This action is brought to recover the sum 
 of $850, damages for the destruction of the plaintiff's carriage, 
 alleged to have been caused by the negligence, imprudence, 
 or want of skill of the driver of an omnibus belonging to the 
 defendants, in running foul of the carriage as it was standing 
 in Chartres street, in the city of New Orleans. The general 
 issue was pleaded. The plaintiff obtained a verdict in March, 
 1839, which was set aside on an appeal, in December, 1841. 
 1 Boh., 178. s. c. 1 Am. St.-Ey. Bee, 4. The present appeal 
 is taken by the defendants from a judgment rendered on 
 another verdict in favor of the plaintiff, on a new trial had in 
 March, 1848. The case has been pending since July, 1838. 
 
 The accident is alleged to have taken place on or about the 
 twentieth day of July, 1837. On the last trial of the cause, 
 the defendants offered in evidence an instrument by public 
 act, bearing date the twenty-fourth of January, 1837, by 
 which the railroad establishment, with its movables and 
 
1849.] LOUISIANA. 9 
 
 Hart vs. New Orleans and CarroUton R. R. Co. 
 
 dependencies, including these omnibuses, were leased to two 
 individuals for a term of years. It was not admitted in evi- 
 dence by the District Judge, and thus deciding the defendants 
 took a bill of exception to his decision. The judge was of 
 opinion that, the ownership of the defendants of the omnibus 
 having been denied, by the general denial filed by them, the 
 proof tendered was inconsistent with that denial. The objec- 
 tion, made by the counsel for the plaintiff to the admission of 
 the instrument offered was that, there was no special plea to 
 the effect that the omnibus in question had been leased and 
 was not under the control of the defendants. 
 
 The responsibility of the defendants to the plaintiff, as we 
 apprehend, depends not upon the ownership of the omnibus, 
 but upon the fact that the damage was done by their servant, 
 for whose acts they are sought in this action to be made liable. 
 The object of the defendants was to show, by legal evidence, 
 that the omnibus was under the exclusive control of the 
 lessees of the railroad establishment, who alone employed the 
 drivers, and that the driver in this particular case was not 
 their servant, but exclusively that of the lessees. Under the 
 general issue we think the evidence admissible. 
 
 We do not deem it necessary to decide on the other bill of 
 exceptions taken by the counsel for the defendants, to a 
 portion of the charge of the judge, as the case goes back, and 
 the necessity to determine on the points raised may not again 
 occur. 
 
 The judgment of the District Court is reversed and the 
 cause remanded for a new trial, w;ith directions to the District 
 Judge to admit in evidence the authentic act, offered by the 
 defendants of date the twenty-fourth of January, 1837, 
 mentioned in the bill of exceptions number one, and that the 
 plaintiff pay the costs of this appeal. 
 
30 N:EW YORK. [Sup. Ot. 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 DRAKE and others, vs. THE HUDSON EIVER 
 EAILROAD COMPANY. 
 
 GENERAL TEHM. 
 
 7 Barb., 508. 
 
 The Hudson River Railroad Company was authorized and empowered 
 by acts of the legislature (Laws of 1846, chap. 316, amended by Laws 
 of 1848, chap. 30,) to construct a railroad, between the cities of New 
 York and Albany, commencing in the city of New Tork, with the con- 
 sent of the corporation of that city, and to transport, take, or carry 
 any property and persons upon the same, by the power and force 
 of steam, of animals, or of any mechanical or other power, or of 
 any combination of them. The act authorized the location of the 
 railroad on any of the streets or avenues of the city of New York, 
 westerly of and including Eighth avenue, and on or westerly of Hud- 
 son street, provided the assent of the corporation of said city was 
 first obtained for such location. The company, with the assent of the 
 corporation of the city, located their railroad on and through certain 
 streets and avenues within the limits mentioned in the act, and 
 afterwards applied for and obtained permission from the corporation, 
 to lay down a double track of rails, with suitable curves and turnouts, 
 from the northerly line of Canal street, at West street, through Canal 
 and Hudson streets to Chambers street. The plaintiffs applied for an 
 injunction to restrain the company from laying their rails in those streets 
 and using the same for railroad purposes,- and as grounds for their 
 application alleged that they were owners of property on the streets 
 mentioned ; that the construction of the railroad through those streets 
 was unauthorized by law ; that it interfered with the free and full use 
 of the streets ; that it injuriously affected their property and business 
 interests ; that it was a nuisance to them ; impaired the value of lots 
 fronting on said streets; and endangered the safety of life ; and that 
 real estate had been taken from them by the railroad company without 
 compensation having previously been made. 
 
 Held, that it is a rule of universal application, engrafted in the Con- 
 stitution of the State, that private property of any description cannot 
 be taken for public use, without full and ample compensation to those 
 who suffer or are injured thereby. 
 
 But in carrying out the principle, while lands are not to be taken 
 for public improvements, nor injuriously affected by them without just 
 and adequate compensation first being made ; yet desirable and useful 
 public improvements are not to be suppressed, simply because they 
 may occasion to property in their vicinity some contingent or con- 
 sequential damage. 
 
1849.] N:e:W YORK. 11 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 For this damage, when it occurs, the party aggrieved has a 
 remedy by action at law, and by a repetition of such action, during 
 the continuance of the grievance, whenever and as often as loss or 
 damage ensues. 
 
 And, in the present case, if the railroad or its operation should 
 become a nuisance, or the aggression should prove to be permanent 
 and without an adequate remedy by action, the Supreme Court will 
 be competent to administer its equitable relief by injunction, to pre- 
 vent its continuance, or for its removal. 
 
 But there must be a much stronger case than the one presented, and 
 the impending danger more imminent and more impressive, to justify the 
 issuing of an injunction as a precautionary and preventive remedy. 
 
 Where no private property is taken by the railroad company for 
 the purposes of the road, but it is claimed that the property is, and 
 will be injuriously affected by erections made, and to be made and used 
 by the company in its vicinity, the owners have no claim to have their 
 damages ascertained and paid for, before such erections shall be con- 
 structed and used. 
 
 The laying of a railroad track in a street of a city, or the running of 
 the cars thereon, so long as the right of passage and repassage for other 
 purposes. is not abridged or obstructed, is not such an exclusive 
 appropriation of the street as to amount to a purpresture or a nui- 
 sance. 
 
 A slight change made in the surface of the streets by reason of the 
 rails being laid therein, is no,t such an infringement of private rights as 
 calls for redress ; provided the passage for the public is left free and 
 unobstructed. 
 
 That the owners of property bounded upon streets in a city hfive rights 
 in those streets, and an interest in the maintenance of them in their integ- 
 rity is undeniable ; but it is equall}' true that such right and interest 
 consists in the use, benefit and enjoyment of them as public streets 
 or highways for the legitimate uses and purposes of streets, and no 
 more. The abutting owners have no private or exclusive right to, or 
 property in the use or enjoyment of them. 
 
 All other citizens have an equal right with such owners to use the 
 public streets, and the railroad company, as part of that public, have 
 the same right, in common with others, to use the same under the 
 rules and regulations prescribed by the proper authority, for the pur- 
 poses to which the lands forming the streets were dedicated to the 
 public, or taken by the corporation for public purposes. 
 
 The corporation of the city of New York have the management and 
 regulation of the public streets, and of the use of them for the trusts 
 and purposes of the dedication or establishment of them ; they prescribe 
 the width of the sidewalks and of the carriageway, license the partial 
 and temporary use of parts of them for necessary private purposes, 
 permit or prohibit special uses for particular objects, grant rights and 
 privileges for private uses, etc. 
 
12 NUW YORK. [Sup. Ot. 
 
 Drake et al. «s. The Hudson River R. R. Co. 
 
 Held, tliat for these purposes the legal title to the land or soil of 
 the streets was vested in the corporation, subject to the public use 
 of them as streets. 
 
 And the corporation of the city, as the owners of the legal title to 
 the soil of the streets, are the only parties whose rights of property 
 are violated, or whose ownership may be said to be usurped by the 
 construction of a railroad through such streets. They are the only 
 ones who could claim to have the. rails removed, or the proceedings of 
 the railroad company arrested until compensation should be made. 
 
 A railroad is not per se a nuisance. 
 
 The use of a street for a railroad consists merely in adapting its sur- 
 face to a particular mode of conveyance ; and when so adapted the run- 
 ning of a railroad car is no more an exclusive appropriation of the 
 street, than the running of any other species of conveyance would 
 be. 
 
 The plaintiffs, who alleged that they were owners of real 
 estate fronting upon, and bounded by, Hudson and other 
 streets in the city of New York, in and through which the 
 Hudson River Eailroad had been laid out, applied for an 
 injunction restraining the defendants from laying down a 
 double track of rails, or any track of any kind whatever, from 
 the northerly line of Canal street at West street, through Canal 
 and Hudson streets, to Chambers street, or anywhere within 
 the said limits, and that the said injunction be perpetual ; and 
 that the said defendants might be ordered to remove and take 
 away so much of the said railroad as they had laid or caused 
 to be laid down in Canal street, and in any part of said route 
 from West street, to or near Chambers street. The plaintiffs 
 founded their motion, upon the complaint and affidavits 
 annexed ; the defendants produced affidavits in opposition, 
 no answer having beeu served, when the motion was made. 
 
 The opinions delivered by the several members of the Court 
 contain all the material facts. 
 
 Mr. K Sandford and Mr.F. B. Cutting, for the plaintiffs. 
 Mr. diaries 0' Conor and Mr. D. Lord, for the defendants. 
 
 Jones, P. J. — The acts of the legislature referred to by the 
 plaintiffs in their complaint, authorized and empowered the 
 
1849.] N:EW YORK. 13 
 
 Drake et al. ««. The Hudson River R. R. Co. 
 
 stockholders of the Hudson Eiver Eailroad Company to con- 
 struct a single, double or treble railroad, or way, between the 
 cities of New York and Albany, commencing in the city of 
 New Yorkj/^with the consent of the corporation of that city, 
 and passing through the counties therein mentioned, and 
 ending at some point on the Hudson Eiver, in the county 
 of Eensselaer, opposite the city of Albany, to be laid with an 
 iron rail of the weight therein mentioned, and to transport, 
 take, or carry any property and persons upon the same, by 
 the power and force of steam, of animals, or of any mechanical 
 or other power, or of any combination of them, for the term of i 
 fifty years from the passage of the act of incorporation. The 
 4th section of the act authorized them, after one-half of the. 
 capital stock should have been subscribed, and five per cent, 
 thereof paid in, to exercise the powers and privileges conferred 
 upon them by the act ; and that thereupon the directors might 
 appoint an engineer or engineers, and cause to be made such 
 examinations, surveys and maps for the said railroad as might 
 be necessary to the selection by them, of the most eligible line 
 or lines for the location of the road, but requiring that the 
 same be located within the limits, and in the manner therein 
 prescribed; and providing that the directors, after such exam- 
 inations and surveys were made, should select, and by certifi- 
 cates drawn on suitable maps, under their hands and seals, 
 designate the line, course or way they might deem most 
 advantageous for the said railroad, which certificates should 
 be filed in the offices for that purpose, described in the said 
 act; and that the line, course or way so selected and certified, 
 should be the line, course or way on which the said corpora- 
 tion should construct or make the said railroad. The same 
 section of the act provides and directs that the said directors 
 may locate their said railroad on any of the streets or avenues 
 of the city of New York, westerly of and including the 
 Eighth avenue, and on or westerly of Hudson street, provided 
 the assent of the corporation of said city be first obtained for 
 such location, and said railroad company should not infringe 
 upon the rights or privileges of the Harlem Eailroad Company 
 theretofore incorporated. 
 
14 N:EW YORK. [Sup. Ot. 
 
 Brake et al. m. The Hudson River E. R. Co. 
 
 By the 7th section of the act, the said railroad company or 
 corporation was empowered to purchase, receive, and hold in 
 fee simple such real estate and other property as might be 
 necessary in accomplishing the objects of the incorporation, 
 and also to receive, take and hold such voluntary gtants and 
 donations of real estate and other property as might be given 
 them to aid in the construction, maintenance and accommo- 
 dation of said railroad, but which real estate should be held 
 and used for those purposes only. 
 
 By the 10th section of the act, the corporation was em- 
 powered by their engineer or agent to enter upon any lands 
 or water for the purpose of making surveys, and by their 
 engineers or agents to enter upon, take possession of, and use 
 all such lands and real estate as might be necessary for the 
 construction and maintenance of the said railroad, and the 
 accommodations required appertaining thereto, but that all 
 real estate thus entered upon not voluntarily granted or given 
 shall be purchased by the corporation of the owners at the 
 price to be mutually agreed upon between them. And in 
 case an agreement could not be made between said corpora- 
 tion and the owners of any property which might be required 
 for said purposes, or which might be afEected by any opera- 
 tion connected therewith, the compensation to be made there- 
 for should be ascertained, assessed and paid in the manner 
 prescribed by the act. 
 
 By the act of February 10th, 1848, chap. 30, further to 
 amend the original act, compensation is to be made for the 
 lands, real estate, and property thus taken possession of, and 
 used for these purposes, and not voluntarily given to or pur- 
 chased by them, in the manner following : — The corporation 
 may present a petition to the proper court, setting forth the 
 same, and praying for the appointment of commissioners to 
 ascertain the compensation to be made therefor; and the court, 
 on such application and due notice of presenting the same, 
 are to appoint five competent and disinterested persons com- 
 missioners to ascertain such compensation, who after hearing 
 the parties and viewing the premises, shall ascertain and 
 certify the compensation proper to be made to the owners 
 and parties interested, for the land, real estate, and property 
 
1849.] NUW YORK. 15 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 80 to be taken or injuriously afEected, as aforesaid, without 
 any deduction or allowance on account of any real or supposed 
 benefit or advantage which such owners and parties interested 
 may derive from the construction of said road. The com- 
 missioners are to make, subscribe, and file in the office indi- 
 cated by the act, a certificate of their said ascertainment and 
 assessment, containing a description of the premises for which 
 such compensation is to be made ; and the court, upon such 
 certificate and proof that such compensation in the sums 
 certified has been paid to the parties entitled thereto, or 
 deposited in bank as authorized by the act, shall make and 
 cause to be entered in its minute a rule describing the lands, 
 etc., such ascertainment of compensation, with the mode 
 of making it, and such payment or deposit of the compensa- 
 tion as aforesaid, a certified copy of which is to be recorded 
 in the offices indicated in the act, in the like manner and 
 with the like effect as if it were a deed of conveyance from 
 the said owners and parties interested, to the said corporation; 
 and upon the entry of such rule the said corporation shall 
 become seised in fee of the lands, real estate and property 
 described in it, or required to be taken as aforesaid during 
 the continuance of the corporation, and may take possession 
 of, hold and use the same for the purposes of said road, and 
 thereupon shall be discharged from all claims for damages by 
 reason of any matter specified in the said petition, certificate 
 or rule of court. 
 
 Under these powers, privileges and provisions, the stock- 
 holders proceeded to organize their corporation, and to locate 
 the line of their road, and in some sections of it acquired the 
 lands and real estate required for the construction of the road 
 and their track thereon. In the month of May, 1847, avail- 
 ing themselves of the power and provision in the act in that 
 behalf contained, the company, with the assent of the corpo- 
 ration of the city, located their said railroad on the Eleventh 
 avenue of the city of New York to Thirty-second street, and 
 thence through other streets and avenues to and through 
 West street to Canal street ; and afterwards, on the 14th of 
 May, 1849, applied to the common council for the assent of 
 the corporation of the city to lay a double track railroad, and 
 
16 iV^TT YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 run their trains of cars from the Tenth avenue through Four- 
 teenth street and Hudson street to Chambers street. The 
 board of aldermen, on the first day of August, 1849, by a 
 vote of eight members in the aflBrmative, against five mem- 
 bers in the negative, passed a resolution to the effect that the 
 defendants, the Hudson River Eailroad Company, be author- 
 ized to lay down a double track of rails, with suitable curves 
 and turn-outs, from the northerly line of Canal street, at 
 West street, through Canal and Hudson streets to Chambers 
 street, under the direction of the street commissioner, and 
 subject to all the restrictions, obligations and provisions of 
 .the ordinance authorizing said company to -lay down rails to 
 Canal street. The president of the board objected to the 
 resolution as not being in conformity to the provisions of 
 the new or amended city charter, and that it could not be 
 sent to the board of assistant aldermen as having passed the 
 board of aldermen. Prom his decision an appeal was taken, 
 and by a like vote of eight members to five, the appeal was sus- 
 tained, and the resolution declared to be adopted. It was 
 then sent to the board of assistant aldermen for concurrence. 
 The board of assistant aldermen concurred in the resolution 
 by a vote of thirteen members in the affirmative to four in 
 the negative, and it was afterwards approved by the mayor of 
 the city. The company, by their agents, pursuant to the 
 assent given them by the said resolution, commenced to lay 
 down the double track of their said railroad under the direc- 
 tions of the street commissioner, in and along Canal street, 
 between "West and Hudson streets, and were preparing to 
 continue the same to and through Hudson to Chambers street, 
 when the plaintiffs took their incipient measures to arrest the 
 work as unauthorized by law, and injurious to them ; com- 
 plaining of it, moreover, as a nuisance, and averring that real 
 estate and property vested by law in them had been taken for 
 the location and construction thereof without making com- 
 pensation to them therefor. The double track of rails occupy 
 about sixteen feet of the middle or centre of Canal and Hud- 
 son streets, and in some parts of Hudson street, between 
 Duane and Chambers streets, approach to within about seven 
 feet, and at one place it is said to be about four and a half 
 
1849.} Ni:W YOBK. 17 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 feet from the sidewalk. A number of afiBdavits have been 
 read by the plaintiffs for the purpose of showing that the 
 double track of rails obstructs and impedes the crossing and 
 the free and full use of the streets ; that it injuriously affects 
 their property in various ways, and that it is a nuisance to 
 them, seriously impairing the value of lots fronting thereon, 
 and endangering the safety of life. These charges and com- 
 plaints are repelled by affidavits on the part of the defendants, 
 which represent the railroad as a desirable improvement, of 
 great public utility, creating no injurious obstructions to the 
 use of the streets for ordinary purposes, causing no danger 
 to those using the same, and free from the" objection of injury 
 or inconvenience to the owners and occupants of the tene- 
 ments and lots fronting the streets through which it passes. 
 It is affirmed, and not denied, that the location of the track 
 from West through Canal and Hudson to Chambers street, 
 and the laying down of the rails therein, was commenced by 
 the agents of the company before the plaintiffs' complaint 
 was served upon them ; but it is conceded that the same was 
 done, with notice of the objections of the plaintiffs thereto, 
 and that the operation of layihg down the rails was continued 
 after service of the plaintiffs' complaint upon them. This 
 court is asked for an order or injunction restraining the said 
 defendants from laying down a double track of rails, or any 
 track of rails, single or double, of any kind whatever, from 
 West street through Canal and Hudson to Chambers street, 
 or anywhere within the said limits ; and the further prayer 
 of the plaintiffs is, that the said order or injunction be per- 
 petual, and that the said defendants may be ordered to remove 
 and take away so much of the said tracks of rails as they have 
 laid, or caused to be laid down in Canal street, or any part of 
 Hudson street, on said route from West to Chambers street. 
 
 The first ground of complaint is, that the defendants 
 occupy grounds for the track of their railroad laid down by 
 them in said streets, which belong to the plaintiffs either in 
 fee or for the unexpired residue of terms of years, which have 
 been taken and used without compensation to them, the 
 plaintiffs, therefor, or for their right and interest therein. 
 The answer to the objection is, 1st. That no lands, real estate, 
 
 2 
 
18 NJEW YORK. [Sup. Ot. 
 
 Drake et al. i'». The Hudson River R. R. Co. 
 
 or property within the limits of those streets, have been taken 
 for the said railroad, but that the parts of said streets occupied 
 by the tracks of said railroad, are so occupied and used, by and 
 with the consent of the municipal government of the city, 
 to which the regulation of the public streets of the city belongs 
 and for the purposes of travel and the accommodation of 
 the public, to and for which the lands forming the street were 
 dedicated by the original, owners to the public or purchasers, 
 or acquired under and by virtue of the laws of the state, for 
 public purposes. And, 2d. The claim of the plaintiffs to the 
 soil and grounds within the streets, and forming the same, or 
 to a legal estate either in fee or for any residue of any terms 
 of years therefor, is contested by the defendants, who aver and 
 insist that the same was and is vested, wholly and exclusively, 
 in the corporation of the city, subject to the public use there- 
 of as streets, and under whom they, the defendants, claim to 
 occupy and use the same for the said railroad. The plaintiffs 
 have shown no title in themselves, or in any or either of them, 
 to the legal estate, either in fee or for any lesser estate or term 
 of years, in any part of the lands or soil within the limits of 
 Hudson or Canal street, and it is admitted that no grant or 
 lease exists, or ever did exist, to them, in express terms there- 
 for; but they represent that they respectively are purchasers of 
 the fee, or lessees or assignees of leases for terms of years, of 
 and for lots fronting to the said streets, and bounded thereon, 
 and derive such their titles to the said lots from the corpora- 
 tion of the Eector and Inhabitants of the City of New York, 
 in communion of the Protestant Episcopal Church in the 
 State of New York, who were the owners and proprietors in 
 fee simple thereof; and they insist and claim, that the grants in 
 fee or leases of the said lots, being founded on the said streets, 
 by operation of law, extended to the middle or centre of the 
 street, and passed to and vested in the grantees or lessees the 
 legal estate and interest in the parts of the streets in front of 
 the said lots, and extending the width of the lots to the centre 
 of the street, subject to the dedication of the same to public 
 uses, as and for a street. It is stated, and not denied, that 
 the corporation of the Rector and Inhabitants of the City of 
 New York, in commiinion of the Protestant Episcopal Church 
 
1849.] NJEW YORK. 19 
 
 Drake et al. vs. The Hudson River E. R. Co. 
 
 in the State of New York, prior to the year 1797, were in the 
 possession, and claimed to be of right the sole and exclusive 
 owners in fee simple of a large tract of land in the city of New 
 York, extending from Chambers street to and beyond Canal 
 street, within which Hudson street from Chambers to Canal 
 street was included, and which had been laid out into streets 
 and lots as mentioned in the complaint; that the said tract of 
 land was from time to time, as the compact part of the city 
 extended, at different times laid out by the said Rector, etc., 
 the said owners thereof, into lots and streets, for city purposes, 
 and that Hudson street from Dnane street, then called Barley 
 street, to Canal street, was one of the streets so laid out and 
 designated for a public street; and that the lots of .land so laid 
 out, and which fronted on said Hudson street, or some of them, 
 were sold and conveyed by the said corporation of the Rector, 
 etc., to purchasers in fee, or leased to lessees for terms of 
 years, and that the same were in and by the deeds or leases 
 thereof, fronted to and bounded on the said street. 
 
 It is not denied that the grantees and lessees acquired by 
 their grants and leases a right of way in and over the street 
 on which their lots were bounded, commensurate in its 
 duration with the estate in the premises granted or leased 
 to them thereby. Those streets gave them their access to 
 those lots, and were necessary for their use and accommoda- 
 tion, in the enjoyment of their said lots, and the appro- 
 priation and application of the same to the purposes of 
 fesidence, and business operations. Whether the legal estate 
 in the soil of the street, in case the same resided in the 
 grantors at the time of the sale and conveyance or lease 
 thereof, would by operation of law pass to and vest in the 
 purchaser in fee, or the lessee for the term granted by the 
 lease, or not, is a question, which, in any view of the case, 
 does not arise, and is not necessary to be examined in the 
 present case, and I express no opinion upon it. The com- 
 plaint states that land laid out for Hudson street, from 
 Barley street to the pasture farm at Moore street, on the 
 north side of the intended square, called Hudson square, and 
 being in width ninety feet, designated on a map of the same 
 by the corporation of the Rector, etc., as and for a street. 
 
20 Ni:W YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 was by an instrument in writing under the corporate seal of 
 the said corporation, and bearing date the 20th June, 1797, 
 granted and conveyed by the said corporation of the Kector, etc., 
 for the consideration expressed therein of five dollars, to the 
 Mayor, Aldermen and Commonalty of the City of New York, 
 to the intent, nevertheless, and in trust that the said streets 
 be kept open for the use of the citizens of the city of New 
 York forever. And that the said corporation of the Rector, 
 etc., by another instrument in writing, duly executed under 
 their corporate seal, and bearing date the first day of Decem- 
 ber, in the year 1813, after reciting that by recent regulations 
 relative to public streets, divers pieces of land belonging to 
 them between North Moore and Christopher streets, were 
 intended to be used as public streets, and that they had 
 agreed to grant and cede the same for that purpose, in con- 
 sideration of receiving to their own benefit a certain other 
 piece of land theretofore used as a highway, and no longer 
 intended to be so used, did, in consideration of the said 
 agreement, and of the sum of one dollar, therein expressed, 
 grant, bargain, sell, and convey unto the Mayor, Aldermen 
 and Commonalty of the City of New York, among other 
 pieces, or parcels of land, the piece therein described as 
 Hudson street, with the breadth of ninety feet from Christo- 
 pher street, to the line of the lands of Anthony Lispenard, 
 and from Watts street, with the same breadth to Vestry 
 street, and then with a breadth, of eighty-six feet six inches 
 to North Moore street, to have and to hold the same, unto 
 the said Mayor, etc., and their successors, forever, for public 
 uses, in like manner as the other streets of the said city are used. 
 These deeds are before us, and clearly purport to convey 
 to and vest in the corporation of the city of New York, 
 the lands composing the parts of Hudson street therein 
 respectively mentioned, for public use, as streets of the city. 
 It is admitted that the portion of said Hudson street extend- 
 ing from Duane street, formerly Barley street, to Chambers 
 street, and the portion of said Hudson street extending from 
 Laight street across Canal street to Spring street, were opened 
 by the Mayor, Aldermen and Commonalty of the City of New 
 York, under and by virtue of the powers and authority con- 
 
1849.] NEW YORK. 21 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 ferred upon them by the act of the legislature of the state of 
 New York in that respect, in the complaint mentioned, and 
 that the value of the lands taken to form those portions of 
 said Hudson street, were assessed upon and paid by the owners 
 of lots and property deemed to be benefited thereby, as in the 
 said complaint mentioned, and not by the corporation of the 
 city. The portion of Canal street, between Hudson and 
 West streets, is understood to have been also opened by the 
 corporation of the city, under and by virtue of the powers 
 and authority conferred upon them by law, and the value of 
 the lands taken for the purpose of forming the same assessed 
 upon and paid by the owners and parties interested in the lots 
 and parcels of land deemed to be benefited thereby, in pro- 
 portion to the benefit and advantage thereof to them respect- 
 ively, and no part of the same to have been paid by the cor- 
 poration of the city. But it is expressly enacted and provided 
 by the acts of the legislature, authorizing the corporation to 
 cause public streets to be laid out and opened, and the lands 
 of individuals to be taken for the purpose, and the value of 
 the lands so taken to be assessed upon the persons benefited 
 by the improvement, that in the final confirmation of the 
 report of the commissioners of estimate and assessment in the 
 premises, the' Mayor, Aldermen and Commonalty of the City of 
 New York shall become and be seised in fee of all the lands, 
 tenements, hereditaments and premises in said report men- 
 tioned, that shall or may be so required for the purpose of laying 
 out and opening the said street so laid out and opened, or for 
 the purpose of extending, enlarging, or otherwise improving the 
 street so to be extended, enlarged, or improved, and that the 
 said Mayor, etc., may thereupon, or at any time thereafter, take 
 possession of the same, in trust, nevertheless, that the same be 
 appropriated and kept open for, or as part of a public street for- 
 ever, in like manner as the other public streets in the said city 
 are, and of right ought to be. The plaintifEs can consequently 
 have or claim no right or title to the legal estate of the portions 
 of Hudson and Canal streets, taken by the corporation of the 
 city, by authority of law, for the purpose of laying out and 
 forming or opening the same. They have, I think, shown no 
 sufficient title or right in themselves, to those parts of Hudson 
 
22 NHW YORK. [Sup. Ot. 
 
 Drake et al. m. The Hudson River B. R. Co. 
 
 street laid out by the corporation of the Eector and Inhabitants 
 of the City of New York, in communion of the Protestant 
 Episcopal Church in the State of New York, and dedicated 
 by them to public uses as a street. . That corporation, by the 
 deeds mentioned in the complaint, conveyed the lands form- 
 ing those portions of that street to the Mayor, Aldermen and 
 Commonalty of the City of New York, and vested the same in 
 them and their successors forever, in trust, for publicises as 
 a street. Two of the plaintifEs, Rohr and Stewart, state their 
 tenements and lots to front on Canal street, the former as 
 being held in fee, the latter for the residue of thirteen years 
 of an unexpired term. Neither of them can have any pre- 
 tence of claim to the legal estate and title to the lands taken 
 to lay out, form, and open Canal street. The other three 
 plaintifEs, Susannah Drake, Andrew Bowden, and William 
 West, state their premises to be on Hudson street ; of these, 
 Susannah Drake represents her tenements to consist of a lot 
 with a three story dwelling house thereon, in fee simple, on 
 the west side of Hudson street, now known as number 141 
 Hudson street. The sources or origin of her title are not dis- 
 closed in the complaint, but it is stated, and not denied, that 
 she acquired her right to the fee in the year 1834, which was 
 long subsequent to the conveyance of the street to the cor- 
 poration of the city. She represents, however, that those 
 under whom she claims, and from whom she derives her title, 
 had a previous lease for the term of ninety-nine years, given 
 in 1804, long before the deed to the city corporation. That 
 lease is stated to have been given to the lessees therein named, 
 and to have come by divers mesne assignments to the said 
 Susannah Drake and two other persons. The co-assignees 
 are not before the court ; they are not parties to the 
 suit, and do not complain of the railroad. They probably 
 have now no interest therein, and she has become and is 
 the sole owner of the whole. She claims to be the owner 
 thereof, and in the complaint alleges herself to be seised 
 thereof in fee ; and as respects her, she by accepting a con- 
 veyance of fee of the lot, has suspended the lease and extin- 
 guished all the right and interest under it. Whatever may 
 have been her right to the legal title to the lands within the 
 
1849.] iV^TT YOBK. 23 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 limits of the stre&ts, under or by virtue of the lease held by 
 her as assignee, as to which we purposely avoid all inquiry, 
 those rights were commensurate only with the leasehold 
 interest. The fee of the land subject to the lease, if it at- 
 tached thereto, was in the corporation of the Eector, etc., and 
 was conveyed by them to the Mayor, etc., of the city. When 
 she accepted the deed and took the fee, the lease was neces- 
 sarily merged or discharged, and the leasehold interest, as to 
 the lot conveyed to her, merged in the fee and extinguished. 
 She took the lot in fee, but could not take the fee of the land 
 comprised within the limits of the street, for that had already 
 been conveyed to and vested in the Mayoi', Aldermen and 
 Commonalty of the City of New York ; the extinguishment 
 of the term left the fee freed, and discharged, from it and 
 the lea;se, for the benefit of her, the said Susannah Drake, the 
 grantee of the lessee, as to the lot ; and for the benefit of the 
 city corporation, the grantees of the fee of the land within 
 the street, as to the land within said streets. The clause in 
 the deed of conveyance to her, the said Susannah Drake, im- 
 porting that it was subject to all subsisting rights under the 
 lease, cannot vary the case — it could only refer to the other 
 co-owners of the leasehold interest, and to rights compatible 
 with the estate in fee. Again, in whomsoever the title to the 
 land within the street may have been vested and had resided, 
 all parties agree that the land itself had been dedicated by 
 the corporation of the Eector, etc. , the former owners thereof, 
 to the public as a street, for public uses as such. "Whether 
 that dedication was by the deed to the Mayor, Aldermen and 
 Commonalty of the City of New York, vesting the title in them 
 in trust for those public purposes, or by the act and operation 
 of laying out their said lands comprising the streets into city 
 lots, and designating the streets on the map thereof, and by 
 the sale and lease of lots fronting thereon to purchasers and 
 lessees, thereby rendering the dedication thereof irrevocable, 
 the right of the public to the use thereof as a public street, 
 would be equally clear, vested and irrevocable, and however 
 the fee might vest, the present right as well of the public at 
 large as of the owners of property fronting on and bounded by 
 the street, whether the legal title continued in the original 
 
24 N:EW YORK. [Sup. Ct. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 proprietors or passed to the purchasers of the lots, or vested 
 in the' corporation, would be to the free use and benefit of 
 the street, for the purposes of a public street of the city ; and 
 the same could be diverted therefrom or appropriated to any 
 other use or purpose by neither. The city corporation, on 
 the assumption of the title being clearly vested in them, 
 would be equally unauthorized and without the legal capacity 
 to discontinue or close the same as a street, unless under 
 the special powers, and in the cases and on the terms pre- 
 scribed by law, and any enclosure thereof, or obstruction 
 amounting to an exclusion therefrom, of those entitled to 
 the use thereof, or so impeding them therein as to injuriously 
 affect their pursuits or interests in reference thereto, would 
 be a nuisance, abatable or punishable as a nuisance, by or at 
 the instance of those who might be specially endangered or 
 aggi-ieved thereby. That these plaintiffs have rights in these 
 streets, and an interest in the maintenance of them in their 
 integi'ity, is undeniable ; it is equally clear that the right and 
 interest they have in them consists in the use, benefit and 
 enjoyment of them as public streets or highways, for the legit- 
 imate uses and purposes of streets of the city. They have 
 no private or exclusive right to, or property in, the use or 
 enjoyment of them. The legal title to the land, subject to 
 the public use if they possessed it, would give them no right 
 to divert it to private uses, or to preclude the public or 
 individuals from, or obstruct or embarrass them in, the 
 use thereof for legitimate purposes, in any mode or manner, 
 though new or of recent invention or introduction, if allowed 
 by law and consistent with the object and purpose of such 
 dedication. The corporation of the city, acting by the com- 
 mon council, have, by the provisions of the charter of the 
 city, never abrogated and yet in force, and other laws appli- 
 cable thereto, the management and regulation of the public 
 streets, and of the use of them for the trusts and purposes of 
 the dedication or establishment of them, and always have 
 been, and now are, in the constant habit of exercising those 
 powers over them, and in reference to them. They pre- 
 scribe the width of the sidewalks and of the carriageway, 
 license the partial and temporary use of parts of them for 
 
1849.] Ni:W YORK, 25 
 
 Drake et al. m. The Hudson Eiver E. R. Co. 
 
 necessary private purposes ; permit or prohibit special uses 
 for particular objects, and direct the mode and manner of 
 pitching and paving them, and the laying and leading of 
 sewers and pipes in and through the same, under the surface 
 thereof, for various purposes of public or private use, and 
 constructing and building vaults under the same' for public 
 use, and granting to others the right and privilege of build- 
 ing or constructing vaults under the surface thereof, for 
 private uses, for and upon adequate consideration paid to, 
 and received by them therefor. It may not be out of place 
 here to observe, that it would seem to be necessary, or highly 
 expedient, that for those purposes the legal title to the land 
 or soil should reside in the city corporation, and that it has 
 hitherto been the received opinion that the same was vested 
 in them. Under the colonial government, and during its 
 continuance, the lands occupied by the streets previously laid 
 out, were understood and supposed to be vested in the crown, 
 subject to the use of them as streets ; and the state succeeding 
 the crown, in the ownership thereof, the same, and the right, 
 title and interest of the people therein, were, by an act of the 
 legislature passed many years ago, vested in the corporation of 
 the city. The act of 1813, chap. 86, sees. 177, 178, pursuing 
 the same policy, provided and declared that the lands taken 
 for the opening of the streets, avenues and squares, laid out 
 by the commissioners for laying out the city into streets and 
 avenues, and all the lands required and taken for forming and 
 opening streets, avenues, squares and places in the parts of the 
 city not laid out by the said commissioners into streets, 
 avenues and squares, should, when taken for any of the said 
 purposes, be vested in said mayor, aldermen and commonalty 
 of the said city, who should become seised of the same in fee, 
 in trust for the uses and purposes of public streets, avenues 
 and squares, and that the persons benefited thereby, to whom 
 the sums paid therefor, should be assessed and be by them 
 paid, should have no other right, title or interest therein, 
 than the right to use the same as streets and avenues in 
 common with their fellow citizens and the public at large, 
 and the special accommodation and convenience which 
 they acquired from their contiguity thereto. It would seem 
 
26 NEW YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 somewhat strange that lands ceded, or otherwise dedicated 
 to and for public uses as streets, should take a difEerent 
 direction, and the title thereto, if it passed out of the 
 original owners, become vested in the purchasers of the lots 
 fronting to and bounded by the same, and not in the corpora- 
 tion of the city. But whichever rule should be applied to 
 such ceded and dedicated lands, whether the , title thereto 
 continues in the original proprietors or vests in the owners of 
 the lots fronting to the same, or in the corporation of the city, 
 the trusts of them are the same — they are to be and con- 
 tinue forever public streets and avenues for the convenience 
 and accommodation of the owners of tenements and lots 
 bordering upon them, and the use and benefit of the public at 
 large. How then could these plaintiffs in any aspect of the 
 legal title and ownership of the land subject to these public 
 uses and trusts, be entitled to, or claim compensation for, 
 those lands as belonging to them, and as being required 
 and taken for public uses ? The lands forming the streets 
 wherein the tracks of the railroad are laid, have not been 
 taken, and are not required to be taken, for the construction 
 of the road ; they are used, and the rails laid down upon them 
 for the railroad, by the permission of the corporation of the 
 city, to whom the lands, subject to the trust for public uses of 
 them, belong, or at any rate, the right and duty of regulating 
 them appertains. They still continue streets, for the use, 
 benefit and accommodation of the plaintiffs, and their fellow 
 citizens and the public at large. A leading use and purpose 
 of a public street is for travelers and others to pass and repass 
 on and over the same, with horses, carriages and other vehicles, 
 and on foot. All parties must concur in that definition, as 
 applicable to the right of way over the public streets of the 
 city ; and does not the railroad, with its cars propelled by the 
 application of steam, or animal power, come equally within 
 the definition, as the cart, carriage or omnibus drawn by ani- 
 mals ? It is a new mode of using the street, but it is still an 
 use of it for passing and repassing through it, with a vehicle 
 for the carriage of passengers and of goods and freights ; and 
 the use of the street by cars with passengers is equally in the 
 exercise of the acknowledged right thus to traverse the street 
 
1849.] NHW YORK. 27 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 with carriages as the use of them by other vehicles for similar 
 purposes. But the plaintiffs controvert the validity of the 
 assent of the corporation to the defendants to lay down the 
 rails and run the trains of cars through those streets, and 
 insist that the operations of the defendants in that respect 
 are unauthorized, and acts of trespass upon the public rights. 
 The act of incorporation, it is said, requires them to obtain 
 the consent of the corporaliion of the city, and makes that assent 
 a condition precedent, and indispensably necessary to the right 
 to locate their tracks on the public streets, and use the same for 
 the purposes of their railroad ; and it is denied that any valid 
 assent of that body has ever been obtained for that purpose. 
 It is conceded that a resolution has been passed by both 
 boards of the common council and approved by the mayor of 
 the city, purporting to give the assent of the corporation 
 thereto, but the plaintiffs insist that such assent, to be 
 valid and operative, must be given by a law, or by a resolu- 
 tion having the force and effect of a law of the corpora- 
 tion, and that by the amended charter of the city, recently 
 adopted, a majority of all the members elected to each board 
 of the common council must concur in the passage of a law 
 to make it effectual ; and it is admitted that a majority of all 
 the members elected to each board of aldermen did not agree 
 to the passage of this resolution. By the 4th section of the 
 act, entitled "An act to amend the charter of the city of 'New 
 York," passed April 2d, 1849, chap. 187, it is, among other 
 things, enacted that each board may originate, amend, concur 
 in, or reject, any law, ordinance, or resolution, but no law 
 shall pass either board except by a majority of the members 
 elected. The resolution giving to the defendants the assent 
 of the Corporation to lay the rails and run their cars from 
 West street through Canal and Hudson streets to Chambers 
 street, did not pass the board of aldermen by a majority of the 
 members elected ; the number of members elected being 
 eighteen, and the resolution passing by a vote of eight mem- 
 bers in the affirmative, against five in the negative. 
 
 If, then, this amended charter was in operation at the time 
 the vote was taken on this resolution ; and that resolution 
 was a law within the meaning of that provision of the act. 
 
28 n:EW YOBK. [Sup. ot. 
 
 Drake et ai. vs. The Hudson River K, R. Co. 
 
 and if the assent of the corporation to the location of the 
 railroad in a public street, must, to be effectual, be by a law 
 of the corporation ; then as the assent of the corporation was 
 not given to the defendants to locate their railroad in a pub- 
 lic street of the city, the location of the same in Canal and 
 Hudson streets, was unauthorized, and without the assent of 
 that body. But to this the defendants' counsel reply ; first, 
 that the legislative powers, under the amended charter, do 
 not commence, and are not to go into operation until Janu- 
 ary next, and that the assent now given is to be by the cor- 
 poration as it existed before and at the time the amendatory 
 act was passed. And secondly, that the resolution giving 
 the assent was not a legislative act or 1-aw requiring a majori- 
 ty of the members elected, to pass it. I do not stop to exam- 
 ine these antagonistical allegations and claims ; or to inquire 
 whether the provisions of the old or the new charter apply to 
 the case ; or whether, by the true construction of the new 
 charter, a resolution is identical with a by-law, and requires 
 the same formalities and sanction to make it effectual. A 
 by-law is a rule or law of a corporation for its government. It 
 is an act of legislation, and the solemnities and sanction 
 required by the charter for its passage must be observed. 
 A by-law may be in the form of a resolution, and require the 
 same solemnities to pass it ; but a resolution is not necessarily 
 a by-law. It may be the mere assent of the corporation to 
 an act of a private citizen, operating upon its property or 
 affecting its corporate rights or franchises, or a license to a 
 citizen to use property or to exercise a privilege. Why not 
 to the use or exercise within its limits, of rights, powers or 
 privileges conferred upon a party by the legislature on condi- 
 tion of obtaining such assent of the city government ? Can 
 such assents be in any Just sense of the expression termed or 
 deemed laws or acts of legislation of equivalent character ? 
 A corporate body, whether specially vested with the power 
 of legislation or not, has inherently the power to make nec- 
 essary rules for its government and operations, and the right 
 to assent to rightful, and ratify or confirm unauthorized acts 
 of others affecting its interests, whether favorably or unfavor- 
 ably. That consent may be manifested by some act of the 
 
1849.] Ni:W YORK. 29 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 body corporate, or by its acquiescence in the acts of others. 
 A joint resolution, simply embodyiTig and expressing the con- 
 sent to be given, would seem well adapted to the purpose, 
 and a formal by-law not to be necessary. 
 
 But if a by-law was necessary, or if we assume the resolu- 
 tion before us to be, within the meaning of the city charter, 
 an ordinance or by-law, and to be ineffectual and inopera- 
 tive for want of the, assent of the corporation thereto, by 
 reason of the failure in the board of aldermen of a majority 
 of all the members elected, to pass it, what consequences 
 ensue ? The railroad company in such case will have located 
 their railroad, and laid down their rails in Canal and Hudson 
 streets, without the assent of the city corporation thereto. 
 Who have they injured, and whose rights have they violated, 
 by their unauthorized acts ? Who has a right to complain of 
 the proceeding, and to require the offenders to desist and 
 remove the rails ? I assume that the soil of tHe streets is 
 vested in and belongs to the corporation of the city, subject 
 to a trust for the public use of them as public streets of the 
 city, or that to them alone appertains the exclusive right of 
 the charge and regulation of the same. The plaintiffs, then, 
 cannot complain of the defendants, and treat them as tres- 
 passers upon the lands or premises, nor require that compen- 
 sation should be made to them for the lands within and 
 forming part of those streets. 
 
 The corporation of the city, as the owners of the legal title 
 to the soil of the streets, if they be so, are the parties alone 
 whose rights of property are violated, or whose ownership 
 may be said to be usurped, and who may claim the right to 
 have the rails removed, or the use of the street vindicated 
 and freed from the alleged incumbrance, or the proceedings 
 of the company arrested until compensation shall be made for 
 the ground they occupy. The city corporation impute no 
 wrong to the railroad company in their locating their railroad 
 in those streets, and take no steps for the removal of the rails 
 as having been laid down without authority. They acquiesce 
 in the acts of the company, and tacitly give their assent to 
 the operation. But the plaintiffs say that the tenements and 
 lots fronting to the streets, and in the vicinity of them, are 
 
30 Ni:W YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson Eiver R. R. Co. 
 
 injuriously affected by the railroad, and claim that they were 
 entitled to a just and adequate compensation for the loss and 
 damage they sustained thereby, before the defendants could 
 have had the right, or can be allowed by law to lay down or 
 continue the tracks of rails in those streets; and they insist 
 that the said tracks of rails ought on that ground to be 
 removed, and the continuance of them prohibited by the 
 order or injunction of this court until such compensation 
 shall be made. 
 
 By the act of 1848, chap. 30, further to amend the act to 
 authorize the construction of a railroad from New York to 
 Albany, the Hudson Eiver Eailroad Company is authorized to 
 enter upon, take, and use all such lands, real estate and 
 property, as may be necessary for the construction and main- 
 tenance of the said railroad, and the convenient accommoda- 
 tions appertaining thereto, but compensation to be made for 
 the land, real estate and property thus taken and used, and 
 not voluntarily given to nor purchased by the company in the 
 manner therein directed; and the act then provides, that 
 whenever the said corporation shall not have acquired, by gift 
 or purchase, any land, real estate or property, so required as 
 aforesaid, or which may be affected by any operation con- 
 nected with construction and maintenance, the same may be 
 taken and acquired by them, and the compensation to be 
 made to the owners and parties interested, ascertained and 
 certified in the manner and by the process therein prescribed. 
 Now these provisions, it will be observed, are calculated and 
 intended for enabling the defendants in cases where the lands, 
 real estate or property required for the railroad, cannot be 
 obtained by gift or purchase, but must be taken adversely to 
 the owners, or without their consent, to have the damages 
 and compensation assessed and admeasured, which they are 
 required and bound to pay and make to the owners and parties 
 interested, for the lands, real estate and property so to be 
 taken for the construction of their railroad, under and in 
 virtue of the right^of eminent domain residing in the 
 sovereignty of the state. They are inapplicable to cases of 
 mere consequential damages by the railroad constructed and 
 made on land belonging to the railroad company, or which 
 
1849.J NEW YORK. 31 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 they are permitted and allowed, by the owners and proprietors 
 of them, to use for the location of the railroad, and the laying 
 down of the rails thereon, to the lands and premises of other 
 persons to which no direct injury or damage is done thereby, 
 or by any operation connected therewith. When lands are 
 required for the location and construction of the railroad, 
 which cannot be obtained by purchase, and must be taken 
 without the consent or against the will of the proprietor, the 
 principle and rule of necessity which the right of eminent 
 domain alone can justify, must be applied, and the amount 
 of compensation must be ascertained and certified, and must 
 be paid to the parties entitled thereto, or deposited in bulk for 
 them, under the authority of the act and the approval of the 
 court, before the land can be taken or used, or any entry, 
 other than for surveys and examinations thereof, can be 
 made thereon; and in such cases the defendants are authorized 
 and allowed, and it is a benefit to them, to have the compen- 
 sation ascertained which they are to make, as well for the lands 
 required to be taken, as also for the damages to other lands by 
 the operation connected with the railroad; to the end that they 
 may, on payment of the sums assessed thereupon, be discharged 
 from all claim for or on account thereof. But when the rail- 
 road company own the lands on which they locate their rail- 
 road, or have the license and permission of the proprietors 
 thereof to locate the road thereon, they have a full and 
 perfect right to use the same for that purpose, in the same 
 manner and to the same extent that they might rightfully 
 use them for any purpose, and to lay down the track of rails 
 and run their trains of cars over the same by right of the title 
 and ownership of the land or license to occupy and use it, 
 and they are under no restraint or control of others in their 
 use thereof, and bound only to the observance of the benign 
 and salutary rule and injunction of law so to use their own as 
 not to injure the property or premises of others, or to 
 injuriously affect them as regards their property, personal 
 safety, health, or business pursuits. But it is contended that 
 the acts authorizing this railroad, contemplate and require that 
 compensation be in all cases made to the owners and parties 
 interested in any land or property which may be injuriously 
 
32 NJEW YORK. [Sup. Ct. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 affected by any operation connected with the said railroad, 
 for the damages thereby to such lands and premises so 
 affected. And that such damages are to be ascertaind by 
 appraisement, and to be paid to the parties entitled thereto, 
 before the railroad can rightfully be constructed, or the rails 
 laid on the line or route selected and designated for the same. 
 That the plaintiffs are entitled to compensation for any loss 
 or damage they may sustain from the railroad, or any of the 
 operations connected therewith, is not denied. And when- 
 ever, and as often as any such loss or damage may arise or 
 accrue from any such cause, the plaintiffs or such of them as 
 may sustain the same, will have their remedy therefor by 
 action at law against the defendants. The right and privilege 
 granted to them by the legislature to construct their railroad 
 on such line or route as they may select, and to lay down 
 rails and run trains of cars thereon, will not protect them 
 from the claim of those whom they may wrongfully injure or 
 aggrieve by their operations, for redress, nor be any defense 
 to actions against them for damages from any such cause, by 
 the parties aggrieved. But the plaintiffs insist that they are 
 not bound to wait until the loss or injury the railroad, or any 
 operation connected therewith, is to inflict upon them, is 
 actually incurred, but that the same is so certain to happen, 
 and will necessarily, if permitted, be so permanent and dis- 
 astrous to them, and has already been so sensibly, though as 
 yet but partially felt, that they are entitled to the preventive 
 remedy of an order or injunction of this court interdicting 
 the same and the further continuance thereof. "We will not 
 say thab direct and immediate injuries by this railroad, or any 
 operation connected therewith, though located, by consent, in 
 a public street of the city, to buildings or lands contiguous or 
 near to the railroad track, if such injuries be irreparable 
 or permanent, would not be within the scope of the pro- 
 visions of the act, and the defendants be required to make 
 previous compensation for the same. Nor will we say that 
 they might not be restrained from any operation connected 
 with their said railroad, injuriously affecting any such build- 
 ings or lands, or from the continuance thereof, until such 
 compensation had been first ascertained and made, under and 
 
1849.] N£:W YORK. 33 
 
 Drake et al. ■»«. The Hudson River R. R. Co. 
 
 in pursuance of the provisions of the act for the ascertain- 
 ment of compensation to parties interested for injuriously 
 affecting their lands and property, and that such would 
 be the regular course in such cases may perhaps be by 
 a liberal construction, inferred from the provisions of 
 the act. But it would not follow, from such construction, 
 that contingent future damages, or indirect and consequen- 
 tial injuries of indefinite amount not capable of estimate, 
 would come within the rule, and there are many and 
 weighty reasons against extending it to them. Now, are not 
 the injuries of which the plaintiffs complain, of that charac- 
 ter ? They complain that the use and benefit of the streets, 
 to them, will be impaired by the partial occupation of those 
 streets by the railroad tracks; that the value of the tenements 
 and lots fronting thereon, for business operations, is dimin- 
 ished by the alleged impediment of the rails to the crossing of 
 the streets, and the obstruction thereby of the free passage 
 on and along the same with carriages and foot passengers; and 
 they suggest also, and complain of the probable desertion of 
 their stores and shops by their customers, by reason of the 
 diflSculties and danger of access to them ; and in addition 
 thereto, they anticipate and complain of the inconvenience 
 and annoyance to themselves and their families and friends 
 from the perpetual running of the cars and other operations 
 of the railroad. Numerous affidavits are introduced by the 
 plaintiffs to sustain these charges, and they are met by affi- 
 davits on the part of the defendants repelling them, and repre- 
 senting the railroad not only as free from objections, but as 
 being a valuable improvement, useful and desirable to the city 
 and the citizens. Upon these conflicting afl&davits we are asked 
 to form our conclusions upon the questions of fact involved in 
 the controversy, whether the railroad, in its occupancy of a 
 portion of the centre of the two streets, and in its operation, is 
 liable to the objections preferred against it, as productive of 
 the evils to those within its immediate influence which are 
 ascribed to it, or is unjustly subjected to these injurious charges. 
 The utility of the railroad as a great public improvement, and 
 a vast convenience and accommodation to the city and the pub- 
 lic at large, admits of no question; but these considerations 
 
 3 
 
34 NUW YORK. [Sup. Ct. 
 
 Drake et al. vs. The Hudson Eiver R. R.' Co. 
 
 cannot authorize or Justify its encroachment upon the rights 
 of any portion of our citizens. The interests of the individ- 
 ual whose property may be injuriously affected, must not be 
 sacrificed to the success of the improvement because it is desira- 
 ble and of value to the public ; but he is to be indemnified and 
 fully compensated for his loss or damage thereby, by the public, 
 or by the company, which profits by the improvement. And 
 the questions are, what evils these plaintiffs do endure, and 
 what damage they sustain by this railroad, and in what man- 
 ner these evils are to be remedied or alleviated, and just com- 
 pensation made for the damages which they may sustain. 
 
 The plaintiffs have a right to the full and free use of the 
 street on which their tenements front, for access to their 
 dwellings, and for the convenience and accommodation of 
 their residences and business pursuits; but they can claim no 
 greater right or interest in the streets than such full use and 
 benefit of them as public streets. All other citizens have an 
 equal right with them to such use thereof, as public streets, 
 and the railroad company, as part of that public, have the 
 same right in common with others to use the same,, under 
 the rules and regulations prescribed to them by the proper 
 authority in the premises, for the purposes to which the lands 
 forming the streets were dedicated to the public, or taken by 
 the corporation for public purposes. The tracks of the rail- 
 road are laid thereon, for enabling their cars to pass and 
 repass on and along the same, for the carriage of passengers 
 and the transportation of goods and freights, and such is the 
 acknowledged use and purpose of all public roads or high- 
 ways. It is a new mode of using the public street or way, but 
 it is nevertheless a mode of using it. We agree that the 
 lands forming the streets were dedicated to the public, or 
 vested in the corporation of the city as and for public streets, 
 to pass and repass over the same with horses, carriages, and 
 vehicles of every description, as well as on foot, and as well 
 for the use of those occupying tenements fronting to the same 
 for access to their dwellings and tenements, and the accom- 
 modation of their business operations, as also for the common 
 use of all others having occasion to use the same as public 
 streets or highways. But we cannot agree that the plaint- 
 
1849.] NUW YOBK. 35 
 
 Drake et al. ■»«. The Hudson River R. R. Co. 
 
 ifEs, or those from whom they derive their title to their lots, 
 acquired or possess any special right to, or interest in the said 
 streets or the lands forming the same, beyond, or in exclusion 
 of other citizens, except only that fi^om the circumstance of 
 their tenements and lots fronting upon the streets, they 
 participate more largely of the use of them, and receive 
 greater benefit and advantage therefrom than other citizens 
 whose tenements or lots do not front thereon. Nor can we 
 agree that the dedication of those streets to public uses, or 
 the acquisition of them by, and the vesting of the legal title 
 to them in the corporation of the city, was upon any trust or 
 purpose that the use and mode and manner of using them 
 should forever be and remain such as the same then were, or 
 in the language of the complaint, " in the usual and accustomed 
 manner of using and passing upon public streets in cities, in 
 use at the time of such dedication or acquisition of them, as 
 and for public streets;" but our conclusion is, ihat the same 
 were so dedicated to public uses, and so Tested in the said 
 corporation upon trust that the same should be kept open as 
 public streets for the use of the citizens of the said city of 
 New York, forever, in the manner in which streets then were, 
 or should at any time thereafter be beneficially used by lawful 
 authority, for the purposes of public city streets. The regu- 
 lation of the streets we understand to be vested in the 
 common council of the city, and that the manner and mode 
 of using the same for the purpose and conformably to the 
 trusts of the same, is to be prescribed and directed by them. 
 That power, rightly exercised, while it keeps the streets open 
 to the use of all carriages and vehicles accustomed to use 
 them, will allow any new species of carriage or vehicle, or 
 improved mode of conveyance of greater convenience and 
 speed to participate in the use of the same, and the street, or 
 a suitable portion of it, to be adopted, as far as the legitimate 
 purposes thereof as a street will permit, to such new mode of 
 using it — not that important changes should be lightly cnade, 
 but new and improved modes of use may, and in the discreet 
 and prudent exercise of the power, always will be adopted and 
 applied, whenever the public interest may require it, and the 
 same can be done consistently with the trust of the street 
 
36 Ni:W YOEK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 for the public use of the citizens, and without encumber- 
 ing the streets to the prejudice of other citizens, or precluding 
 them from any rightful use thereof, or injuriously impairing 
 such use thereof by them. Railroads are of recent intro- 
 duction, but their great and acknowledged advantages over 
 all other modes of travel and land carriage, have gained 
 for them a popularity which have brought them into exten- 
 sive use, and are constantly yet further extending their 
 adoption. The actual existence of them in other cities, 
 and the example of the Harlem Railroad in our own city, 
 which has now been in successful operation for several years 
 under our own eyes, conclusively show that the use of them 
 in the streets of a city, if properly guarded and regulated, is 
 compatible with the trusts of public streets, and the simul- 
 taneous use of those streets by other carriages and vehicles, 
 and for all the purposes to which public streets are dedicated. 
 And the corpcration, with a prudential care and regard to the 
 rights and interests of the citizens, have passed an ordinance 
 for the government and regulation of this railroad in the use 
 of the streets wherein they are permitted to locate the same, 
 to which the company are bound, and may be compelled, to 
 conform. To the corporation application for relief against 
 abuses of the privileges the defendants enjoy, may at all times 
 be made, and by that body all existing grievances, or future 
 grievances, or grounds of complaint, capable of remedy or 
 redress, may, and we trust always will, receive early attention, 
 and the proper remedies be promptly applied. 
 
 But the plaintiffs allege and complain that obstructions 
 are created by and consequent upon the permanent location 
 of the Hudson River Railroad in the streets whereon their 
 tenements front, and the appropriation of parts thereof for 
 the tracks of rails laid or intended to be laid thereon, which 
 will exclude, or so unreasonably circumscribe, the use thereof 
 by them, the plaintiffs, in the usual manner, as to constitute 
 a direct invasion of their rights as owners of said lots, and to be 
 wholly inconsistent with the objects of the original dedication 
 of those portions of the said streets to public uses, and they 
 insist that such appropriation of said parts of the streets to 
 the use of the defendants, is a purpresture, and the rails so 
 
1849.] NEW YORK. 37 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 laid, and the use made thereof by the defendants, are, and 
 will be, a nuisance. If these representations are correct, the 
 charges founded upon them would be just, and the plaintiffs 
 entitled to redress, for the rules of law do not tolerate either 
 purpresture or nuisance in or upon a public street or highway. 
 But do these tracks of rails create or cause a purpresture oh 
 any part of these streets ? Or is the use' of them by the cars 
 running upon them, in any just sense of the term, a nuisance ? 
 A purpresture is the encroachment by any person, by a 
 building or otherwise, on a street or some part of it, or such 
 an enclosure, impediment or obstruction of it thereby, as to 
 amount to the exclusion and hindrance of the citizens and 
 the public from the full and beneficial use and enjoyment of 
 it as a public street. There is no charge against the defend- 
 ants of any encroachments by actual enclosure of any part of 
 either of these streets for the uses or purposes of the railroad ; 
 but they allege that heavy iron rails are intended to be laid, 
 and are in part laid upon and along the centre of Canal 
 street, from West to Hudson street, and upon and along the 
 centre of Hudson street from Canal to Chambers street, for 
 the double track of said railroad, enclosing within the 
 rails so laid sixteen feet in width of the middle of said 
 streets ; but which allegation they qualify and explain, to 
 mean that the heavy iron rails are designed and intended by 
 the defendants permanently to remain upon and occupy and 
 encumber said portion of said streets, and to be used by 
 the defendants only, and not by the owners of lots froftting to 
 the streets, or by the public ; and they further allege, that the 
 defendants intend to use, upon each of the said tracks, cars 
 and carriages propelled by steam or otherwise, of the width of 
 about nine feet each, and in great numbers, so that from the 
 width of the cars and carriages, and the length and number 
 thereof, the manner of using the rails, will partially exclude 
 the owners of lots fronting upon the streets, and the public, 
 from the beneficial use and enjoyment of the same fcjf the 
 purposes of a public highway or street, or for the individual 
 trade or commerce of the occupants of the lots fronting 
 thereon. And it is further stated in the complaint, or the 
 affidavits accompanying the same, that the species of rails 
 
38 NJEW YORK. [Sup. Ot. 
 
 Drake et al. m. The Hudson Eiver R. B. Co. 
 
 the defendants use, and intend to use, is a very heavy bar, 
 not even with the surface of the street, and not the flat 
 bar, on a level with the surface. And that the dangers 
 and difficulties of crossing such rails with carriages and 
 other vehicles, and the insufSciency of the spaces on each 
 side of said tracks, alleged to be too narrow for carriages to 
 pass each other therein, are such, that if the running of the 
 cars and carriages of the defendani^ on their said tracks 
 should not amount to a constant and uninterrupted use 
 thereof, and to an entire exclusion of others therefrom, it 
 will most unreasonably circumscribe them, the plaintiffs, in 
 the use of said streets, to their great and manifest prejudice, 
 and in violation of their just rights as such owners of lots, in 
 and to the full beneficial use of said streets. To these points 
 the affidavits of the witnesses on the part of the plaintiffs 
 chiefly apply. Those witnesses testify to their opinions 
 adversely to the railroad, as being an encroachment upon the 
 rights of the plaintiffs, and of oth^r citizens — an inconven- 
 ience to them in the use of the streets, and an hindrance or 
 annoyance to those whose lots front said streets, in their 
 business occupation and pursuits, by deterring customers 
 from frequenting their shops and stores, or impeding the 
 access and approach thereto. Some of them express fears of 
 danger from the cars, and refer to accidents they state to 
 have happened : and many of them speak of the apprehended 
 decline of business and rents in consequence of the presence 
 of the rails in the street, and the obstructions and annoy- 
 ances they occasion to passengers ; and those injurious or 
 unfriendly effects of the rails upon the streets, and those who 
 have occasion to use them, they chiefly ascribe to the diffi- 
 culty and danger of crossing the track with carriages, and 
 the insufficiency of the space on each side of the track for 
 carriages for passing and repassing in and along the same, 
 supposed by them to render the streets impassable, or nearly 
 so, by other carriages at the same time with the running of 
 the cars upon the track, which they anticipate to be in 
 almost constant motion on the track, and thereby occupying 
 it almost exclusively. That rails illy laid in narrow streets may 
 occasion many of these inconveniences, is not denied, but in 
 
1849.] Ni:W YOBK. 39 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 streets of the width of Canal and Hudson streets, they probably 
 will not exist, or be but partially felt. Canal street is one hun- 
 dred feet in width, and Hudson street, in some places eighty- 
 five, and in others ninety. None of the objections peculiar 
 to tracks in narrow streets can be applicable therefore to the 
 railroad in question; and if some inconveniences and annoy- 
 ances nevertheless attach to it, they are believed not to be of 
 sufficient magnitude to call for the aid of this court to enjoin 
 its operation, and direct the removal of its rails, especially 
 upon ex parte affidavits in the present stage of the controversy. 
 Not that the complaints of individuals are to be disregarded, 
 or the interests of any class or portion of citizens sacrificed to 
 improvement, trenching on their rights, for the use or benefit 
 of the community. Private rights are at all times and under 
 all circumstances to be respected, and as far as practical pro- 
 tected ; and if private property of any description is at any 
 time required for public use, or improvements in which the 
 public is interested, the public at large, or those specially 
 benefited by the improvement, are to make full and ample 
 compensation to those who suffer or are injured thereby, for 
 the loss and damage they sustain. This rule is of universal 
 application : it is engrafted in the constitution of the state, 
 and its observance is obligatory upon the legistature who 
 enact laws, and on the courts which expound and. administer 
 them'. But in acting upon it, and carrying out the principle, 
 while lands and real estate are not to be taken for public 
 improvements, nor injuriously affected by them, nor vested 
 rights of fixed and determinate value, susceptible of estimate 
 and ascertainment, divested or injuriously invaded, without 
 just and adequate compensation first made to the owners and 
 parties interested therefor ; yet desirable improvements of 
 public utility, and beneficial inventions of general interest, are 
 not to be rejected, suppressed or arrested, simply because they 
 may in their operation and practical effect occasion to prop- 
 erty in their vicinity or within the sphere of their action, some 
 contingent or consequential damage. For these, when they 
 occur, the party aggrieved has a remedy by action at law, and 
 by a repetition of such action, during the continuance of the 
 grievance, whenever and as often as loss or damages ensue. 
 
40 NBW YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 and with the ulterior remedy which in case the presence of 
 the tracks in the streets, or the running of the cars upon them 
 or other operations of the railroad, should be or become a 
 nuisance, or the aggression shall prove to be permanent and 
 without an adequate remedy by action, this court will be com- 
 petent to administer its equitable relief by injunction to pre- 
 vent its continuance, or for its removal ; but a much stronger 
 case must be presented, and the impending danger more im- 
 minent and more impressive than this complaint, and these affi- 
 davits show, to justify us in the application of these severe and 
 coercive measures as precautionary and preventive remedies. 
 
 Edwards, J. — The first ground upon which the plaintiffs 
 claim to be entitled to the interposition of the court is, that 
 the state had not the legal power to delegate to the defendants, 
 the right to take and use the property of individuals, in the 
 construction of a railroad. 
 
 In the case of Bloodgood vs. The Mohawk and Hudson Rail- 
 road Company, 18 We?id., 9, this question was elaborately 
 considered, and it was held, not only by all the members of 
 the court for the correction of errors, who delivered opinions, 
 but it was also expressed in the form of a resolution, which 
 embodied the opinions of a large majority of the court, that 
 the state had the constitutional power to authorize the taking 
 of private property for the purpose of making railroads and 
 other public improvements of a like nature, on paying the 
 owner of such property a full compensation therefor, whether 
 such improvements were made by itself, or through the medi- 
 um of a corporation or joint stock company. 
 
 That the state, in the exercise of the right of eminent domain, 
 has the power to appropriate the property of individuals for 
 the safety or manifest advantage of the public, upon making 
 just compensation, was never denied. It is an inherent attri- 
 bute of sovereignty. And, if the state itself can do so, by 
 its direct and immediate action, it would seem that it must 
 necessarily follow that it can do so, through the instrumen- 
 tality of others, whether corporations or individuals. But 
 the delegation of this right must be accompanied with such 
 restrictions as will protect the rights of those whose property 
 may be taken. 
 
1849.J NEW YORK. 41 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 It was said, however, upon the argument, that the decision 
 in the case of Bloodgood vs. The Mohawk and Hudson Rail- 
 road Company, although made by the highest court then 
 known in this state, was not binding upon us as author- 
 ity, because the question which was there decided did not 
 necessarily arise upon the pleadings before the court. In 
 this I disagree with the counsel. It appears, by reference to 
 the report of the case, that the question as to the constitu- 
 tional power of the legislature to authorize the taking of pri- 
 vate property for the use of a railroad, upon making just 
 compensation to the owner of the property taken, was con- 
 sidered both by the counsel who argued the cause, and the 
 court which decided it, as the principal question for adjudi- 
 cation. It was clearly raised by the demurrer of the plain- 
 tiff to the defendants' plea. The plaintiff declared in tres- 
 pass quare clausum fregit. The defendants pleaded that 
 ttey entered the plaintiff's close for the purpose of construct- 
 ing their railroad, as they lawfully might do. The demurrer 
 to this plea, of course, made it an issue, and the only issue, 
 whether the defendants were legally authorized to do the act 
 complained of ; that is, whether, in the first place, the state 
 had conferred upon them the authority which they claimed 
 the right to exercise ; and, in the next place, whether it had 
 the constitutional power to confer such authority. 
 
 The next ground taken by the counsel for the plaintiffs 
 was, that the defendants had no right to appropriate private 
 property for the use of the railroad, without first making 
 compensation therefor ; or, in other words, that the right of 
 the owners of property to compensation was a condition pre- 
 cedent to right of the company to take their property. In 
 the case of Bloodgood vs. The Mohawh and Hudson Railroad 
 Company, above cited, this question was also fully and thor- 
 oughly examined and considered,'and a provision for compen- 
 sation, similar to the one contained in the charter under 
 which the defendants in this suit were incorporated, was con- 
 sidered a condition precedent. It is true that in that case the 
 clause of the charter which required the compensation to be 
 made, was expressed in the form of a proviso. But it "was 
 not upon that ground that the court founded its decision. It 
 
42 N^EW YORK. [Sup. Ot. 
 
 Drake et al. m. The Hudson Kiver R. R. Co. 
 
 was upon the higher ground, that, unless the provision should 
 be regarded as a condition precedent, the act would be uncon- 
 stitutional. 
 
 The question then arises, whether any property owned by 
 the plaintiffs has been taken and appropriated by the defend- 
 ants to the use of their railroad without just compensation 
 having first been made. 
 
 By reference to the complaint, it appears that previous to 
 the year 1797, the corporation, known as the Eector and Inhab- 
 itants of the City of Few York, in communion of the Prot- 
 estant Episcopal Church in the State of New York, were 
 owners in fee simple of a large tract of land, on parts of 
 which portions of the street, now known as Hudson street 
 were laid out, and that such portions of the land as were laid 
 out into a street were dedicated to the public as such. It 
 also appears that afterwards, and on the 20th June, 1797, 
 they conveyed a part of the land thus laid out into streets to 
 the Mayor, Aldermen and Commonalty of the City of New 
 York, in trust that the same should be kept open for the use 
 of the citizens of said city forever. And afterwards, on the 
 first day of December, 1813, they made a similar conveyance 
 of the remaining portions of the land laid out into a street 
 as above stated. 
 
 It is contended, on part of the plaintiffs, that when the Eec- 
 tor and Inhabitants of the City of New York, in communion 
 of the Protestant Episcopal Church in the State of New York, 
 conveyed or leased the lots bounded upon those portions of the 
 land which had been dedicated as a street, they also conveyed or 
 leased the land dedicated for a street opposite to such lots, ad 
 medium fihim vice, subject only to the public easement^ Ham- 
 mond vs. McLacMan, 1 Sandf., S2S; Child vs. Starr, i Hill, 
 S69; and that, according to the rule laid in the case of The 
 Trustees of the Preslyterian Society in Waterloo vs. The 
 Auburn and Rochester Railroad Company, 3 Hill, 567, in- 
 asmuch as the right of the defendants to the use of the 
 street for a railroad track was an easement peculiar to them- 
 selves, the owners of the fee in the street were entitled to 
 compensation ; and that before such compensation was ascer- 
 tained and paid, the defendants had no right to use the street 
 for a railroad track. 
 
1849.] NEW YOBK: 43 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 It appears from the complaint, that the property of all the 
 plaintifEs, whose lots lie contiguous to Hudson street, with 
 the exception of Susannah Drake, consists of leasehold estates 
 which commenced in the year 1849. Those persons, then, 
 have clearly no claim for compensation ; for the fee of the 
 street had been conveyed to the corporation of the city of 
 New York long before any interest had been conveyed to 
 them. 
 
 As regards the \oi owned by Susannah Drake, it does not 
 appear from the complaint when her title to it was acquired. 
 It appears, however, from the deed of conveyance under which 
 she now holds, and which was exhibited on the argument, 
 that her title did not accrue till the 30th of December, 1823, 
 which is also long subsequent to the date of the conveyances 
 executed to the corporation of the city of New York. But it 
 is said that she formerly held under a lease which had been 
 executed previous to the time when the land opposite to her 
 lot was conveyed to the city. It seems from the abstract which 
 has been furnished to us, that on the 30th day of January, 
 1804, a lease of the lot now owned by Mrs. Drake was executed 
 to Adam Tredwell and Stephen Thorn for the term of ninety- 
 nine years from the 25th of March, 1804, and that after a num- 
 ber of mesne assignments, it was assigned to herself, and three 
 other persons on the 27th of December, 1820. Whether the 
 lease was cancelled at the time when the deed of conveyance 
 was executed to Mrs. Drake does not appear. But, as between 
 herself and the corporation,, known as the Hector and Inhabi- 
 tants of the City of New York, in communion of the Protest- 
 ant Episcopal Ghurch in the State of New York, the relation 
 of landlord and tenant, of lessor and lessee, must have ceased. 
 She could no longer hold under the lease. The title which 
 she then acquired was founded on the conveyance, and com- 
 menced at the time of its execution. That conveyance could 
 embrace no other property than that which the gi-antees had 
 the right to convey at that time, which must exclude the fee 
 in the street, which had been previously conveyed to the city 
 of New York. 
 
 But it is contended that although the property of the 
 plaintifEs has not been taken for the purposes of the railroad, 
 
44 NEW YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Co. 
 
 yet it has been injuriously aJIected, and that the defendants 
 have no right to lay a railroad track, which shall injuriously 
 affect the property of any person, without first making com- 
 pensation for the injury. Admitting that the property of the 
 plaintiffs has been injuriously affected, still there is no con- 
 stitutional provision which can restrain the defendants from 
 making their road until compensation is made to the parties 
 injured ,; neither does the charter of the company require that 
 such compensation be made, as a condition precedent to the 
 right to m^ke the railroad. The company has the right, in 
 order to protect itself against future litigation, to apply for the 
 appointment of commissioners to ascertain what compensation 
 shall be made. If it does not choose to do so, it will subject 
 itself to a suit on the part of those who are injured ; or in 
 case of irreparable injury which is incapable of being compen- 
 sated in damages, this court will be bound to interfere by 
 injunction. The complaint, and affidavits annexed to it, do 
 not set forth a case of irreparable injury. On the contrary, 
 , it seems to me that they do not show a case in' which the 
 company would be bound to make compensation. 
 
 Whatever the rule of compensation should be for injuri- 
 ously affecting the property of any person, it ought not, 
 according to any sound principle of law, to extend beyond the 
 rule of damages which would be adopted in an action against 
 the company ; that is, the damage which is the -natural and 
 proximate consequence of the act complained of. The affi- 
 davits do not set forth any facts from which we can infer cer- 
 tain and inevitable damage. They state circumstances from 
 which we can infer inconvenience to the plaintiffs, but not 
 inconvenience amounting to that species of injury which the 
 law will take notice of. 
 
 The next question to be considered is, whether the use of 
 Hudson street by the defendants, for a railroad track, is such 
 an exclusive appropriation of the street as amounts to nui- 
 sance. It appears from the complaint that subsequently to 
 the conveyance by the Eector and Inhabitants of the City of 
 ]S"ew York, in communion of the Protestant Episcopal Church 
 in the State of New York, to the corporation of the city of 
 New York, of that tract of land which now constitutes a por- 
 
1849.] NEW YORK. 45 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 tion of Hudson street, and in pursuance of the act of 1813, 
 and for the purpose of carrying out the object for which the 
 land was conveyed, the same was opened and laid out as a 
 public street. It follows, then, that not only the plaintiffs in 
 this suit, but the public generally, have the right of free and 
 unobstructed passage and repassage over the street as a public 
 highway. And if its use for a railroad track deprives them of 
 such right, they are entitled to the relief sought in this suit. 
 It has been held both in this state, and in other states of 
 the Union, that a railroad is not per se a nuisance. Hamil- 
 ton vs. The New York and Harlmn Railroad Company, 9 
 Paige, 171 j -a. c. 1 Am. 8t.-Ry. Dec., 1. Lexington and 
 Ohio Railroad Company vs. Applegate, 8 Dana, 289. The 
 use of a street for a railroad consists merely in adapting its 
 surface to a particular mode of conveyance ; and when so 
 adapted the running of a railroad car is no more an exclusive 
 appropriation of the street, than the running of any other 
 species of conveyance would be. If the additional facilities 
 for passage and repassage which a railroad furnishes, will 
 have the effect of increasing the use of the street, and thus 
 cause some inconvenience to persons doing business, or resi- 
 ding in its neighborhood, yet if it is not diverted^ from the 
 purposes for which it was opened and laid out, no right of 
 any person will be violated. Neither will there be any 
 infringement of private rights if the track itself should cause 
 a slight change in the surface of the street, provided the pas- 
 sage is free and unobstructed. The affidavits on the part of 
 the plaintiffs, it is true, contain the opinions of many respect- 
 able citizens, that the value of property adjoining Hudson 
 street will be materially diminished by its use for a railroad. 
 On the other hand, the affidavits on the part of the defend- 
 ants contain the opinions of citizens of equal respectability, 
 that no such consequences will follow. But it does not appear 
 from any of the affidavits submitted on the part of the plaint- 
 iffs, that the right of passage and repassage will be obstructed 
 or abridged. The most that they state is that the street will 
 be rendered less convenient for the ordinary purposes of a 
 highway. 
 The next question which was raised upon the argument is. 
 
46 N:EW YORK. [Sup. Ot. 
 
 Drake et al. vs. The Hudson River R. R. Oo. 
 
 whether the corporation of the city of New York have 
 assented to the use of Hudson street for the purposes of a 
 railroad. By the charter under which the defendants were 
 incorporated, it is provided that " the directors of the com- 
 pany may locate their railroad on any of the streets or avenues 
 of the city, westerly of and including the Eighth avenue, and 
 on or westerly of Hudson street, provided the assent of the 
 corporation of such city be first obtained for such location. 
 Lams of 18^6, chaj). 216, p. 27Ji.. It appears from the com- 
 plaint, that a resolution passed both boards of the common 
 council, and was signed by the mayor, authorizing the defend- 
 ants to lay a double track of rails through Hudson street, sub- 
 ject to certain specified regulations. It also appears that such 
 resolution passed the board of aldermen by a vote of eight 
 members, which is less than a majority of the whole members 
 elected. By the amended charter of the city of New York, 
 passed April 3, 1849, it is provided that no law shall pass 
 either board, except by a majority of the members elected. 
 Two questions were raised upon the argument. First, 
 whether this provision of the amended charter goes into effect 
 before the first of January, 1850 ; and second, whether an 
 assent on the part of the corporation comes within the defini- 
 tion of a law. With the view that I have taken of this branch 
 of the case, I do not consider it necessary to decide either of 
 these questions. 
 
 It will be observed that, as far as the right of the defendants 
 to lay a railroad track upon certain streets in the city of New 
 York is concerned, the legislature have not delegated to them 
 the right of eminent domain. In respect to the right to use 
 the streets of the city, the legislature have not assumed to 
 interfere with the controlling power with which the corpora- 
 tion of the city is invested, for the regulation of its public 
 streets and highways. 
 
 The corporation of the city, as the legislative body having 
 the power, and whose duty it is, to regulate streets for the 
 public benefit, unquestionably has the power to assent to the 
 use of Hudson street for the purposes of a railroad, provided 
 no private rights are violated — and it also has the power to 
 refuse such use. But if it neither assents, nor refuses, and no. 
 
1849.] NEW YORK. 47 
 
 Drake et al. m. The Hudson River R. R. Co. 
 
 private rights are violated, this court would not be author- 
 ized to interfere upon the application of a private individual, 
 and prevent what the corporation of the city, which alone has 
 a right to act in the matter, does not object to. Whether the 
 assent of the corporation has been given in the legal form or 
 not, it is sufficient, as far as this suit is concerned, that it has 
 not dissented, and that none of the private rights of the plaint- 
 ifEs will be violated. 
 
 With these views I am of opinion that the motion for an 
 injunction should be denied. 
 
 Edmo^tds, J. — If the injuries to the plaintiffs' property, 
 enumerated in the affidavits, are real, and not merely imagi- 
 nary, I see no difficulty in the way of a court of law afford- 
 ing compensation for them in a proper suit brought for that 
 purpose. It may very well be that they may not be the sub- 
 ject of assessment and appraisement in advance, and can only 
 be properly ascertained afterwards, as experience may demon- 
 strate them, and define their exact character and extent. But 
 that is not, in my opinion, any reason against the defendants' 
 proceeding in their erections. The prohibition of the con- 
 stitution is against taking private property without compen- 
 sation, and not against injaries to such property, where it is 
 not taken. In this case the private property of the plaintiffs 
 is^not taken by the defendants ; but the whole allegation is, 
 that it is injured by erections in its vicinity ; and the plaint- 
 iffs have not, therefore, any claim to have their damages 
 ascertained and paid for before such erections shall be con- 
 structed or used. 
 
 The case then presents itself to us in this form— that 
 the defendants are injuring the property of the plaintiffs, 
 bounded on a street, by erections in the street, and the demand 
 is, that we enjoin them from doing this injury. Now, in 
 such case, it seems to me that the law is well settled that an 
 injunction cannot go. In the case of Hart vs! The Mayor, 
 etc., of Albany, 9 Wend., 671-580, our court for the correc- 
 tion of errors examined the doctrine very much at large, and 
 laid down what I understand to be the settled doctrine, 
 that an injunction will not go, except in cases of great and 
 
48 Ni:W YORK. [K Y. Com. PI. 
 
 Uilligan m. The N. T. and Harlem R. R. Co. 
 
 irremediable miscliief, which damages could not compensate, 
 because the mischief reaches to the very substance and value 
 of the estate, and goes to the destruction of it in the character 
 in which it is enjoyed. There is no injury complained of in 
 this case, which cannot be compensated in damages. 
 
 There is, however, another ground on which an injunction 
 in such cases may be granted, namely, to prevent the multi- 
 plicity of suits ; and it might be in this case, that the parties 
 might be subjected to many suits before they should receive 
 full compensation. But this difficulty is obviated by the 
 statutes incorporating the defendants, and amending its act 
 of incorporation. All- the damages which the plaintiffs may 
 sustain from the defendants' erections may be ascertained at 
 once, by the appointment of commissioners of appraisement. 
 And I understand the provisions of those statutes authorizing 
 an assessment of damages to land which may be affected by 
 any operation connected with the road, to be intended pur- 
 posely to meet this difficulty, and to enable the defendants by 
 one act, and at one time, uno Jlato, to make all this compen- 
 sation, and not merely to enable them to do the act, which 
 may injuriously affect lands not taken. There need then be 
 no multiplicity of suits; for all the damages can be ascertained 
 and settled in one proceeding, as to any land which may be 
 injuriously affected by any operation connected with the road. 
 
 Thus, both the grounds on which alone is fqunded the 
 practice of granting an injunction in such a case, are wanting 
 in this suit. And this motion must be denied. Motion denied. 
 
 JOHN GILLIGAN vs. THE NEW YORK AND 
 HARLEM RAILROAD COMPANY. 
 
 GBNERAlj TERM. 
 
 IN. Y., Com. Pleas, 45S. 
 
 The plaintiff brought this action for loss of service of his son, who 
 had been run over by one of defendants' horse cars. No claim for pro- 
 spective or probable future loss of service was made in the declaration. 
 
 Held, that the plaintiff's recovery was confined to loss of service 
 before suit brought, together with reasonable compensation for the 
 expenses incurred and care bestowed by himself and servants during the 
 illness of the child. 
 
1852.] N:EW YORK. 4& 
 
 Gilligan «s. The N. Y. and Harlem R. R. Co. 
 
 i 
 
 lu an action by tlie boy himself an averment for damages for future 
 
 continued disability occasioned by the wrong, would be unnecessary, 
 for in such an action, the injury to his person Is the grama/men of the 
 action, but in an action by the parent, loss of service, is the gist of the 
 action, the injury to the person the cause only of the loss, and to 
 allow him to recover for a loss of service in nowise alleged, would be 
 a plain violation of the rule, that a party can only recover secundum 
 allegata. 
 
 The judge charged, that if the injury was caused by the misconduct 
 or negligence of the boy, the father could not recover. 
 
 Held, no error. 
 
 In determining whether the boy was negligent or not, the jury are 
 to take into consideration all the circumstances affecting his conduct at 
 the time. 
 
 The court will not set aside a verdict, (after two trials, in both of 
 which the verdict was substantially the same,) merely because it deems 
 the evidence greatly preponderating in defendants' favor upon a ques- 
 tion of negligence ; but where the jury also found on a question of 
 damages contrary to the views of the court upon the testimony, the 
 coincidence strengthens the apprehension, that bias, partiality .or 
 undue influence operated on the minds of the jury, and would seem 
 to require the interference of the court. 
 
 This was a motion for a new trial made by the defendants 
 ' at the general term, in a suit commenced under the old sys- 
 tem of practice, and in which the plaintiff had twice recovered 
 a verdict. The facts are fully stated in the opinion. 
 
 Mr. Charles W. Sandford, for the defendants. 
 Mr. Theodore E. Tomlinson, for the plaintiff. ' 
 
 By the Coubt: Woodruff, J.— The plaintiff herein 
 brought his action for the alleged loss of service of his son, 
 who was injured by being run over by a railroad car, in 
 the charge of a servant of the defendants, whose negligence 
 in driving the horses was the alleged cause of the injury. The 
 jury rendered a verdict for the plaintiff for $550 damages. 
 The action having been brought before the enactment of the 
 code of procedure, a motion for a new trial is now made 
 before the full bench, in conformity with the former practice 
 of this court. 
 
 There appears but one exception to the rulings of the judge 
 before whom the action was tried, and that exception arises 
 as follows : 
 
 4 
 
50 Ni:W YORK. [N. Y. Com. PI. 
 
 Gilligan ®«. The N. Y. and Harlem R. R. Co. 
 
 It appeared by the evidence, that immediately before the 
 injury, the boy was upon the steps or platform of one of the 
 defendants' large cars, at their station, near Twenty-seventh 
 street, which car was slowly moving southerly, not for carry- 
 ing persons down to the lower part of the city, but for 
 the purpose of being turned off on a switch, and left at the 
 station. 
 
 That the defendants' superintendent (Murphy) ordered the 
 boy off, and some of the witnesses say, struck the hoy with a 
 stick or rattan, others that he merely struck at him. To 
 avoid Murphy, the boy ran from him off the platform, towards 
 the track of an up going car, at that moment passing, and, 
 against either the horses or the platform thereof, fell, and 
 was run over, and his ankle was crushed, so that amputation 
 became necessary. The declaration, alleged negligence of the 
 driver of the up going car, as the sole cause of the injury. 
 
 The judge, after having charged the jury, in a manner 
 satisfactory to the defendants, namely, among other things, 
 that if the injury was caused by the misconduct or negligence 
 of the boy, the plaintiff cannot recover; and if negligence on 
 the part of the. driver, and carelessness on the part of the boy, 
 both concurred in causing the injury, the defendants are not 
 liable; and that if, by the use of ordinary care and skill, in 
 driving the up going car, the driver could not have avoided 
 the accident, the plaintiff cannot recover ; then added : "If 
 the injury was caused by the misconduct or negligence of the 
 defendants' superintendent, (Murphy,) in improperly driving 
 the boy from the large car, the plaintiff cannot recover in this 
 action, because no such misconduct or negligence is charged 
 in the complaint. But if the jury should find that the injury 
 was caused by the negligence of the driver of the up going car, 
 then it might be material to consider what occurred between 
 Murphy and the boy, in reference to the question whether 
 there was carelessness or neglect on the part of the boy, con- 
 curring with the negligence of the driver, in producing the 
 injury. For if the boy had reason to believe that the large 
 car was going down with passengers, and without any want of 
 prudence got upon it in good faith, with a view to ride and 
 pay his fare, and Murphy drove him off at an unhappy 
 
1852.] NUW YOBE. 51 
 
 Gilligan m. The N. Y. and Harlem R. R. Co. 
 
 moment, just as a car was passing up, which was seen by 
 neither of them, and the boy, intimidated thereby, ran to 
 avoid him, these circumstances might properly be considered 
 by the jury in determining whether want of care was attribu- 
 table to the boy in what ensued. But it is in this view only 
 that the conduct of Murphy is material, for his misconduct, 
 (if any there was,) either willful or negligent, could be no 
 ground of recovery in this action.." 
 
 The defendants' exception applies to so much of this part of 
 the charge as permitted the jury to consider the circumstances 
 mentioned, in determining whether want of care or prudence 
 could be attributed to the boy. 
 
 It seems to me, that the portion of the charge to which the 
 exception is taken is so plainly reasonable and just, that 
 no reasoning about it can make it more clearly so. It is, 
 in effect, instructing the jury, that in determining whether 
 the boy was negligent or not, they may take into view 
 all the circumstances in which he acted. That if he had 
 been guilty of no want of prudence down to the moment when 
 he was approached by Murphy, (the defendants' superin- 
 tendent,) the inquiry was : Did he act prudently in running 
 from the car when ordered off, struck, or struck at by Murphy? 
 Whether Murphy's conduct was proper or improper, the 
 judge declared to be immaterial. In the effort made by 
 the boy to obey his command or avoid his blow, did he 
 act prudently, was the question. And the charge was, if the 
 boy exhibited no want of prudence nor bad faith down to 
 that moment, though he had made an honest mistake in 
 supposing the large car was going down town, you may look at 
 every circumstance affecting his subsequent conduct in deter- 
 mining whether, in that conduct, he was guilty of the want 
 of reasonable care and prudence. 
 
 I cannot discover in this any error, for I cannot perceive 
 how the jury could determine this question without a view of 
 all such circumstances. 
 
 But the defendants' counsel insists that the verdict is 
 against evidence. I feel at liberty to say, that it is contrary to 
 the conclusions of my own mind, so far as such conclusions 
 were found on the trial. And on a review of the evidence, as 
 
52 N:EW YORK. [N. T. Com. PL 
 
 Gilligan ««. The N. Y. and Harlem R. R. Co. 
 
 exhibited in the case, I am satisfied that had I been called 
 upon to find the facts upon this evidence, I should have 
 arrived at a different result. 
 
 But this alone is not a sufiicient reason for ordering a 
 new trial, and the case having been twice tried with the same 
 finding of the jury upon the facts establishing the right 
 of recovery, we should be very careful in the exercise of 
 that legal discretion by which we overrule the verdict. 
 
 There is some conflict in the evidence relating to the con- 
 duct of the boy, and some contradiction upon the question of 
 negligence in the driver of the up going car., 
 
 The boy is contradicted in material particulars, but his 
 credibility was peculiarly a question for the jury. A large 
 preponderance of evidence, I think, tends to show that the 
 boy was a mischievous trespasser, who brought the injury 
 upon himself by his own misconduct. His own testimony, 
 and that alone, tends to prove him an innocent child, acting in 
 good faith, entering upon the large car for an honest purpose, 
 and therein making, at most, a natural and excusable mistake; 
 if, indeed, his mistake in not knowing that the large car was 
 not going down town when he saw it moving in that direction, 
 needs any excuse. 
 
 In relation to the conduct of the driver of the up going car, 
 most of the testimony, including, as I think, that of the boy 
 himself, shows that, so far as the driver was concerned, the 
 accident was unavoidable. That he stopped the car as soon 
 as was possible, and that ordinary care and skill could not 
 have prevented the injury. That the boy was behind the 
 large car, and hidden from the driver's view until the moment 
 of passing that car, when the boy ran directly against the 
 horses, or platform, at the moment of passing, when, accord- 
 ing to the evidence of the boy, the cars were so near together, 
 that he described the accident as a falling, as he jumped o£E 
 the platform. At all events, the distance between the cars 
 must have been exceedingly small, and the striking the horses 
 or platform, and the passing over of the wheel are described 
 as almost simultaneous. Yet the driver did stop so soon that 
 one wheel only passed over the boy's ankle. 
 
 Other testimony is to the effect, that the driver "could" 
 
1852.] NEW YORK. 53 
 
 GUligan »«. The N. T. and Harlem R. R. Co. 
 
 have stopped the car in time to save him from the injury, i. e., 
 it was possible ; and that similar cars are stopped in a less 
 time, etc. It was argued, also, that the fact that the driver 
 did not see the boy, warranted the inference that he was inat- 
 tentive to his duty. And yet, if by the use of reasonable 
 care and skill, he could not have avoided the accident, it is 
 quite immaterial -vy^hether he saw the boy or not. 
 
 Under these circumstances, and after a second trial, I do 
 not think the verdict should be set aside, because the court 
 would, upon the evidence, have found the facts differently ; 
 nor merely because they deem the evidence in the defendants' 
 favor is greatly preponderating. The precise questions upon 
 which the jury were to pass, were very distinctly presented to 
 the jury in the charge, and if this was the whole ground of 
 objection to the verdict, I should feel bound to regard their 
 finding as conclusive, notwithstanding my full conviction that 
 the evidence, exonerating the driver from the imputation of 
 negligence, greatly preponderated, and ought to have been 
 quite satisfactory to an unbiased mind. 
 
 But it is farther urged, that the damages are excessive. 
 The disposition of this point renders the consideration of the 
 measure of damages in such case, and the subjects which 
 may be the ground of estimate, necessary. • 
 
 The injury occurred on or about the 38th of March, 1847. 
 The boy was then eleven or twelve years of age. He lived 
 with his parents, and rendered them service. The evidence 
 is, that boys get 12 shillings to $3 per week at fifteen or 
 sixteen years of age, and may, at the carpenter's trade, earn 
 $3.50 per week, when seventeen years old. 
 
 On receiving the injury, the boy was taken to the hospital 
 where he received all the medical and surgical treatment 
 which he appears to have received at all ; and there is no evi- 
 dence that it was the occasion of any expense to the plaintiff. 
 The boy's leg was amputated, and he of course permanently 
 injured. How far the loss of his foot would, or did, in fact, 
 diminish the value of the boy's services, was left without proof 
 to be judged of by the jury. Under these circumstances, if the 
 fatlier recover, he should be allowed for all reasonable expenses 
 incurred by reason of the injury— for the value of the services 
 
54 NUW YORK. [N. Y. Com. PI. 
 
 Gilligan «s. The N. Y. and Harlem R R. Co. 
 
 of himself, his wife and servants, so far as they were rendered 
 in taking care of the lad while suffering from the injury; and 
 finally, for the loss of the boy's services, so far as such loss 
 resulted from the accident. 
 
 There was no proof that the plaintiff was put to any expense 
 whatever, and the evidence, on the contrary, indicates that 
 whatever was done in the cure of the lad was done at the 
 public hospital, so that nothing should be included in the ver- 
 dict under this item. 
 
 The lad did undoubtedly receive the care and attention of 
 his mother" after his return home ; this was testified to : " She 
 took me in and out of bed for three or four weeks," but, it 
 was added, "she still went out washing," that being her 
 employment. She also called at the hospital twice a week 
 for six weeks, while the lad was there, and his "father called, 
 too." This is all of the evidence, showing that by reason of the 
 accident any services, time, or labor, were expended by the 
 plaintiff or his family in the care of the boy. And no evi- 
 dence is given to guide the Jury in estimating the value of 
 what is so indefinitely stated. 
 
 The value of the lad's services at the highest estimate of 
 their value, while the boy was not at a trade, was $2 per week, 
 at the more advanced age of fifteen or sixteen. 
 
 It is to be observed, however, while it is not indispensable 
 in such cases, that witnesses should be called to prove the 
 value of every item which may be taken into consideration, 
 and conceding for the purposes of the case, -that in estimating 
 the value of a parent's care and attention bestowed upon a 
 suffering child, the painful nature of that attendance may be 
 considered ; yet, some sufficient particulars must be given to 
 the jury, upon which they may safely, and with a due regard 
 to justice to the defendant, make the estimate of value which 
 is not testified to. 
 
 And when it is further considered that the damages sus- 
 tained by the child himself — his suffering — the pain and men- 
 tal anguish of the parents, are to be wholly excluded in the 
 estimate of damages; Cowden vs. Wright, 2^ Wend., 4^9 j 
 that the action is for indemnity merely, there being no right, 
 in actions against the master for negligence of the servant, 
 
1852.] NEW YOBK. 55 
 
 Gilligan vs. The N. Y. and Harlem R. R. Co. 
 
 occasioning injury to the plaintifE's child or servantj to claim 
 or give exemplary damages ; Whitney vs. HitcJicoclc, ^ Denio, 
 ^61 J I say, when these rules are considered, it becomes quite 
 apparent that if they have not been violated, the jury must 
 have given the plaintiff prospective damages, i. e., damages 
 for the probable loss of service for a period subsequent not 
 only to the bringing of the suit, but probably subsequent to 
 the time of the trial. 
 
 The value of the services from March to the commencement 
 of the suit, in September, 184T, twenty-six weeks, at $2 per 
 week, is fifty-two dollars, and to suppose that the jury have 
 allowed the residue of their verdict, about $500, for the care 
 and attention proved to have been bestowed upon the boy, is 
 to place the verdict upon a ground which cannot be sustained 
 upon the evidence of their extent or value. 
 
 If the loss of the boy's services were estimated to the time of 
 the last trial, 15th of January, 1851, 3 years and 10 months, or 
 thereabouts, 199 weeks, the amount, at $3 per week, would be 
 about $400, leaving $150 only to be applied to the care, atten- 
 tion, etc., of the plaintiff and his family. And although this 
 is not fully sustained by a critical review of the testimony, 
 there is probably no such excess as should require any inter- 
 ference with the verdict for this cause, if such prospective 
 damages can properly be recovered in this case. And if under 
 this declaration, a recovery could be had for probable loss of 
 service during the minority of the child, the claim that the 
 damages are excessive, becomes palpably groundless. 
 
 It becomesy then, in my judgment, material to inquire 
 whether, in a case like the present, where there is no count 
 in the declaration averring such special damages, and claim- 
 ing to recover therefor, the plaintiff can recover for any 
 thing beyond the loss of service which he alleges, viz., from 
 the time of the injury " hitherto," i. e., until the commence- 
 ment of the suit. It has been, and is still by some, deemed 
 doubtful whether in actions of this nature, there can be any 
 recovery for prospective damages. The value of the future 
 services of a son, contingent upon the continuance of his life, 
 his health, his habits, the nature of his employment would be, 
 in a very high degree, speculative, if not wholly Conjectural. 
 
56 N:EW YORK. [N". T. Com. PI. 
 
 Gilligan ««. The N. Y. and Harlem E. E. Co. 
 
 See, however, on this subject, Ford vs. Monroe, 20 Wend., 
 210, and Pack vs. Mayor, etc., of N. Y.,3 N. Y., 4S9. It 
 is not enough that in the action by the person injured, the 
 jury may take into view the probable future continuance of 
 the disability occasioned by the wrong. In such case, that 
 forms an element in ascertaining the actual state of the body 
 of the sufferer ; it is unsound, and the degree of unsoundness, 
 and therefore the proper indemnity to him therefor, depends 
 upon its permanence. But in such case the jury are confined 
 within narrow limits. Lincoln vs. The Saratoga and Schenec- 
 tady R. R. Co., 23 Wend., J^5, and see cases collected and 
 reviewed in Sedgwick on Damages, 3d ed., p. 102, and onward, 
 and p. 551, and onward. 
 
 Be the rule on this subject as it may, I apprehend the 
 plaintiff in this case cannot recover for prospective or proba- 
 ble future loss of service, unless he has claimed therefor in 
 his declaration. In the present case, the averment is, that the 
 plaintiff has lost the services of his son from the time of the 
 injury "hitherto," and that this loss of service was caused by 
 the negligence of the defendants" servant. It is true, that he 
 says that the injury to his son is permanent, and that was 
 clearly proved to the extent of the loss of his limb, but he 
 does not aver, that by reason thereof he has incurred the loss 
 of the boy's services during the period of his minority, or in 
 any form indicate that he claims for such loss. 
 
 It is true that, in an action by the boy himself, no such 
 averment would be necessary, for in such an action the injury 
 to his person is. the gravamen of the action, and the damages 
 are to be measured by the extent of that injury. Such was 
 the case in Lincoln vs. Saratoga and Schenectady R. R. Co., 
 above referred to. 
 
 But here, loss of services is the gist of the action; the injury 
 to the person the cause only of the loss ; and to allow the 
 plaintiff to recover for a loss of service in nowise alleged, 
 would be a plain violation of the familiar rule, that a plaintiff 
 can only recover secundum allegata. 
 
 This is not a mere objection in point of form, to a matter 
 of tim£, stated under a videlicet, but it relates to a matter not 
 averred at all as a ground of claim, nor in any sense claimed 
 
1852.] NEW YORK. 57 
 
 Gilligan ««. The N. Y. and Harlem R. R. Co. 
 
 in the declaration. That this is a material objection, is 
 inferable from the case of Ford vs. Monroe, 20 Wend., 210, 
 above cited, in which the claim for such probable loss of ser- 
 vice seems to have been sustained, (though without much dis- 
 cussion,) because specially averred in the declaration. Hod- 
 soil vs. Stallebrass, 11 Adolph and Ellis, SOI, where the 
 declaration was specially framed to cover the prospective loss 
 of service. The language of the court, in Whitney vs. Hitch- 
 cock, Jf. Denio, 461-468, that the plaintifE cannot in any such 
 case recover " beyond his actual loss," when it is considered 
 in connection with the rules of pleading, imports that he can- 
 not recover for a loss not in any form averred. 
 
 I feel clear that a verdict for such prospective loss of service 
 cannot in this case be sustained, and that in the absence of 
 any appropriate averment, setting forth the probable future 
 loss, the jury were confined in estimating their damages to 
 the loss of service before suit brought, together with a reason- 
 able compensation by way of indemnity for the care and 
 attention bestowed on the child during his confinement. 
 
 In this view, as already remarked, the damages are not only 
 excessive, but almost wholly unsustained by the evidence ; 
 and although I would not interfere with a verdict upon this 
 ground, except in a very clear case, yet entertaining the fore- 
 going views of the law on this subject, (and which we must 
 assume to have been correctly stated to the jury,) I deem it 
 our duty in this case to order a new trial, believing the jury 
 must have fixed the amount, not by the facts proved, but 
 under the influence of sympathy, or some other motive, 
 which could not properly influence their verdict. And the 
 coincidence, that the jury have, in my judgment, rendered 
 their verdict against the preponderance of the evidence 
 regarding the question of negligence, as well as also upon the 
 question of damages, seems to me to require our interference, 
 even if on either ground alone we should, after a second trial, 
 feel bound to refuse it. Such a coincidence strengthens 
 greatly the allegation of bias, partiality, or other undue influ- 
 ence on the minds of the jury, and confirms an apprehension 
 that the defendants, being a corporation, in litigation with an 
 individual, have been convicted under some vagae idea that 
 
58 NHW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 they can better afford to pay than the plaintiff lose, whatever 
 may be the evidence or the law in the case before the jury. 
 
 I think a new trial should be ordered, on payment of costs, 
 unless the plaintiff elects to reduce the verdict to two hun- 
 dred dollars, in which case the motion for a new trial is denied. 
 
 Ordered accordingly. 
 
 JOHN MILHAU and others, vs. JACOB SHARP 
 and others. 
 
 * GlilllERAL TERU. 
 
 IB Ba/rb., 19S. ' 
 
 A railway in a city is not per se a nuisance or a purpresture. 
 
 The corporation of the city of New York has the power and right to 
 authorize the use of its streets for the purposes of a railway. 
 
 According to the ancient rule of the common law which has always 
 been adopted in this state, the public have no other right in a high- 
 way in the country than that of passage and repassage, and any inter- 
 ference with the soil, other than such as may be regarded as necessary 
 to the enjoyment of this right, will be considered a trespass, and an 
 action will lie in favor of the owner of the fee. But there is a wide 
 difference between a highway in the country, and a street in a populous 
 commercial city. 
 
 It is an elementary principle of the law that where a power, right or 
 thing is granted, either to a natural or an artificial person, all the incidents 
 are granted which are necessary to the enjoyment of the power, right or 
 thing. Whether the corporation of the city of New York be the owner 
 of the fee of the streets in trust for the public, or whether it be merely 
 the trustee of the streets and highways as such, irrespective of any title 
 to the soil, it has the power to authorize their appropriation to all such uses 
 as are conducive to the public good and do not interfere with their com- 
 plete and unrestricted use as highways ; and in doing so, it is not con- 
 fined to such uses as have already been permitted. As civilization 
 advances, new uses may be found expedient. 
 
 The common council of the city of New York while acting in the 
 exercise of its public political powers, and within the limits of its 
 charter, is vested with the largest discretion. And whether its laws are 
 wise or unwise ; whether they are passed from good or bad motives, 
 it is not the province of the Supreme Court to inquire. But, as regards 
 the acts of the corporation in reference to its private property, it stands 
 upon a very different footing. Such property is held for the common 
 benefit of all the corporators. In respect to that, the corporation is 
 charged with high duties. It is the depositary of a trust which it is 
 
1853] Ni:W YORK. 59 
 
 Milhau vs. Sharp. 
 
 bound to administer faithfully, honestly and justly. And if it disposes 
 of its property of great value, without any or for a nominal consideration 
 it is guilty of a gross breach of trust and ■will stand upon the same 
 footing as the representative of a private individual, or of a private cor- 
 poration. 
 
 The mere fact that the forms of legislation are used will make no 
 difference in the character of the act. It will be in no sense the exercise 
 of a political power delegated for public purposes. When a public 
 corporation acts in reference to its private property, its acts are equally 
 of a private character, and subject, like those of a private corporation, 
 to judicial control. 
 
 The streets, in the city of New York are a species of property, held 
 by the city and subject to the same trusts and duties as its other property. . 
 The defendants obtained a grant from the common council of the city 
 of New York by which authority was given to lay railroad tracks in 
 Broadway. The terms were not as advantageous to the city as others 
 offered. 
 
 Held, that the corporation, in making the grant in question, was 
 guilty of a clear breach of trust ; 'and that the court was bound to pre- 
 vent the grant thus illegally made from being carried into effect. 
 
 Seld also, that the plaintiffs, as owners of property and taxpayers 
 had such an interest in preventing the grant from being carried into effect 
 that they had a right to institute this suit in their own names, and that 
 an injunction should be issued against the defendants in pursuance 
 of the prayer of the complaint. 
 
 It is provided by the 4th section of the act of April 3d, 1849, that 
 " neither board shall adjourn for a longer period than three days, except 
 by a resolution to be concurred in by the other body." One of the boards 
 adjourned without the concurrence of the other from the 4th to the 8th 
 of November. The 7th of November was Sunday. 
 
 Held, not an adjournment for more than three days. 
 
 The legislative action of a municipal corporation cannot be restrained 
 by injunction. And a common council, in granting permission to lay 
 a railway track in a city street, although forbidden to do so by injunc- 
 tion, will not be guilty of a criminal contempt. The grant will not 
 be void because made in defiance of the injunction. 
 
 This was an application for a perpetual injunction, to 
 restrain the defendants from constructing a railway in Broad- 
 way, in the city of New York. The facts are stated in 
 the opinions. 
 
 Mr. G. 0. Branson and Mr. John Van Buren, for the 
 plaintiffs. 
 
 Mr. S. Jones and Mr. D. D. Field, for the defendants. 
 
60 NJEW YORK. . [Sup. Ot. 
 
 Milhau m. Sharp. 
 
 Edwards, P. J. — The plaintifis in this case allege that the 
 street in the city of New York, known and designated as 
 Broadway, is an ancient street, which was opened about one 
 hundred and fifty years ago, by the then owners of the lands 
 over and through which the street passes, for their own con- 
 venience, and was by them allowed to be used by citizens and 
 travelers as a common public street or thoroughfare. They 
 further allege that they are, each of them, owners in fee of 
 certain lots of great value situated upon the street, and that 
 they believe they are owners in fee of all the lands in front 
 of their lots to the centre of the street, subject only to the 
 easement or right of way over the same ; and they also allege 
 that they are taxpayers to a large amount by reason of their 
 ownership of this and other property in the city. They then 
 state that previous to the presenting of their complaint, the 
 boards of aldermen and' assistant aldermen of the city, in 
 opposition to the veto of the mayor, and in violation of the 
 injunction of the highest local court in this city, passed a 
 resolution by which they authorized and granted permission 
 to the defendants to lay a double track for a railway in Broad- 
 way and Whitehall or State street, from the South ferry to 
 Fifty-ninth street, and thereafter to continue the same, from 
 time to time, along the Bloomingdale road to Manhattanville. 
 There were certain conditions attached to this grant, to which 
 it is not now necessary to allude, and there are certain allega- 
 tions contained in the complaint as to the circumstances under 
 which the authority and permission were granted, which it 
 will be necessary to consider hereafter. The plaintifEs then 
 insist and contend that the mayor, aldermen and common- 
 alty of the city, have no right by virtue of their corporate 
 powers, either as established by their charter, or conferred 
 upon them by the legislature, to authorize the railroad in 
 question. They further insist that, owing to the peculiar situ- 
 ation of Broadway, both in reference to its width and its use 
 for general purposes as a street, the proposed railway track, 
 if permitted to be used as the defendants intend to use it, 
 will become a nuisance. They also contend that the right to 
 use the street in the manner proposed, can only be acquired 
 by an express authority, delegated by the sovereign power of 
 
1853.] NJEW YORK. 61 
 
 Mllhau ««. Sharp. 
 
 the state, by the virtue of the right of eminent domain, and 
 that it would be necessary as a condition precedent to the 
 exercise of such authority, to make compensation to the owners 
 of the adjoining property. And, finally, they contend that 
 the grant to the defendants has been corruptly and illegally 
 made. Upon these grounds they pray for an injunction to 
 prevent the grant from being carried into efEect. 
 
 I conceive that the question as to the general power of the 
 corporation to authorize the laying of a railway track in the 
 city has already been settled in the case of Drake vs. The 
 Hudson River Railroad Company, 7 Barl., 608-5^8, s. c. 
 1 Am. 8t,-Ry. Dec, 10. As I have always understood that 
 case, there were two questions distinctly passed upon, and 
 decided by the court. First, that a railway in a city is 
 yer se a nuisance or a purpresture ; and, second, that the 
 corporation of the city of New York has the power and 
 right to authorize the use of its streets for that purpose. 
 It was contended upon the argument that the case before 
 us is distinguishable from that, because in that case the 
 legislature had, by its charter to the railroad company, 
 authorized it to carry its road into the city. But it will 
 be observed that this authority is made to depend entirely 
 upon the assent of the mayor, aldermen and commonalty of 
 the city. The corporate right, as an artificial existence to 
 receive the benefit of the assent or permission thus given, is 
 all that was granted by the state. The right to use the streets 
 of the city came entirely from the corporation of the city. So 
 in the case of Plant vs. The Long Island Railroad Company, 
 10 Barh., 26, it was held that the corporation of the city of 
 Brooklyn, whose powers do not differ essentially from those 
 vested in the corporation of this city, had the right to 
 authorize a railroad company to tunnel a public street for the 
 purpose of laying a railway track. And in the case of Adams 
 vs. The Saratoga and Washington Railroad Company, 11 
 Barh., iH, a similar power was recognized in the village of 
 Whitehall. See also Chapman vs. The Albany and Schenectady 
 Railroad Company, 10 Barb., 360. In each of these cases the 
 recipient of the right or thing granted was a body corporate, 
 created by an act of the legislature, but in every case the 
 
62 NJEW YORK. [Sap. Ct. 
 
 Milhau vs. Sharp. 
 
 right or thing granted was given by the city or village corpo- 
 ration, by virtue of its general powers over its streets. 
 
 The next ground upon which the plaintiffs claina that the 
 laying and using of the railway track in question will be 
 illegal is, that it virill be a nuisance. As has been already 
 seen it was settled in the cases above cited, that a railway in 
 a city is not necessarily a nuisance. But no one can doubt 
 that, under certain circumstances, it might become so. If, 
 for example, a railway with a double track should be laid down 
 in some of the narrow streets of this city, which are, even 
 now, inadequate to the public wants for ordinary business pur- 
 poses, it is apparent that the public use would necessarily be 
 impaired, if not entirely obstructed. The plaintiffs contend 
 that this case is also an exception to the general rule. But I 
 do not think that the facts presented in the papers before us 
 warrant such a conclusion. And it seems to me that no one 
 will seriously deny that the track in question might be used, 
 or rather I will say, that there is no certainty that it would 
 not be used, in such a way as materially to impair and 
 obstruct the public right of passage and repassage through and 
 over the street. But such a possibility would not be suflBcient 
 to authorize the interference of the court at this time. 
 
 The next ground upon which the plaintiffs claim that they 
 are entitled to the interference of the court is, that they are 
 owners of the fee to the centre of the street, subject only to 
 the public right of way, and that the street cannot be taken 
 for the railway until compensation is first made to them. The 
 grounds on which they claim the ownership of the fee are, 
 that they are seised in fee of the lots adjoining the street, and 
 they contend that, from this fact the law implies their ownership 
 ad medium filum vim : and that the burden of proving the con- 
 trary, rests upon the defendants. The defendants on the other 
 hand have introduced an afildavit of a distinguished member of 
 the bar, who, it appears, has been employed by the corporation 
 and for some time past has been engaged in preparing a digest 
 of the ancient records, in reference to the title of the corpora- 
 tion to the streets of the city. This affidavit is to a consid- 
 able extent argumentative, and consists of a statement of facts 
 with inferences and conclusions : but the facts stated are 
 
1853.] NSW YORK. 63 
 
 Milhau m. Sharp. 
 
 sworn to be true upon information and belief. Assuming all 
 the facts stated, to be true, still I am not prepared to say that 
 it is shown that the fee of the lands in Broadway, above Wall 
 street, is vested in the corporation of the city. Neither am I 
 prepared to come to a different conclusion. On the contrary, 
 after a careful reading of the affidavit, and after hearing the 
 statement made by the venerable and learned counsel, who 
 argued this motion on the part of the defendants, it would 
 only be upon the most thorough examination that I would 
 come to the conclusion that the fee of the streets is not vested 
 in the corporation, as, for manifold reasons, I think that it 
 ought to be — in trust, however, for the public benefit — as all 
 the streets, laid out and opened under the act of 1813, are. 
 But, with the view which I have taken of this case, I do not 
 consider it necessary to its adjudication to determine who is 
 the owner of the fee. 
 
 The counsel for the plaintiffs referred us, in their argument, 
 to the numerous decisions which have been made in this 
 state, in reference of the right of the adjoining owner to the 
 soil in a public highway. There is no doubt that, according 
 to the ancient rule of the common law, which as far as I am 
 aware has always been adopted in this state, the public have 
 no other right in a highway in the country than that of pas- 
 sage and repassage, and that any interference with the soil, 
 other than such as may be regarded as necessary to the enjoy- 
 ment of this right, will be considered a trespass, and an action 
 will lie in favor of the owner of the fee. It is upon this 
 principle that the case of the Trustees of the Preslyterian 
 Society in Waterloo vs. The Auburn and Rochester Railroad 
 Oom.pany, S Hill, 567, was decided. But there is a wide dif- 
 ference between a highway in the country, and a street in a 
 populous commercial city. The reason for the restricted use 
 of highways in the country has been, that they have been 
 needed for no other purposes ; but such is not the case with 
 streets in a city. There are certain uses to which, in modern 
 times, the latter have generally been applied. These uses are 
 not merely conducive to, but they have become almost neces- 
 sary for the comfort, health and prosperity of the public. 
 They have been sanctioned by custom, and approved by 
 experience. 
 
64 NJEW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 By the Dongan ehartei", the then existing streets within the 
 city were expressly granted to the corporation, together with 
 the power of laying out such streets in future as might be 
 needful and convenient ; and the general control of the streets, 
 as such, has always been vested in the corporation, as the pro- 
 tector and manager of the public rights, for the common 
 benefit of all. These streets, for many years, have been used 
 for the construction of sewers, and for the laying of water 
 and gas pipes, and no one has ever seriously questioned the 
 right of the city to authorize their use for such purposes, and 
 no adjoining owner, as far as I am aware, ever pretended to 
 claim compensation for such use. These urban servitudesj as 
 they have been called, are the necessary incidents of a street 
 in a large city ; and whether the streets be laid out and opened 
 upon property belonging to the corporation, or whether they 
 became public streets by dedication, or by grant, or upon 
 compensation being made to the owner of the fee, they have 
 all the incidents attached to them which are necessary to their 
 full enjoyment as streets. It is an elementary principle of the 
 law that where a power, right, or thing is granted, either to 
 a natural or an artificial person, all the incidents are granted 
 which are. necessary to the enjoyment of the power, right, or 
 thing. And whether the corporation be the owner of the fee 
 of the streets in trust for the public, or whether it be merely 
 the trustee of the streets and highways as such, irrespective of 
 any title to the soil, it has the power to authorize their appro- 
 priation -to all such uses as are conducive to the public good, 
 and do not interfere with their complete and unrestricted use 
 as highways ; and, in doing so, it is not obliged to confine 
 itself to such uses as have already been permitted. As civili- 
 zation advances, new uses may be found expedient. It was 
 upon this principle that the existing railways in this city and 
 in Albany, and the tunnels in the city of Brooklyn and in the 
 village of Whitehall have been sanctioned. 
 
 The next question is, whether the corporation had the right 
 to make the grant, under the circumstances and in the man- 
 ner that they have done. The mayor, aldermen and common- 
 alty of the city of New York, are a public municipal corpora- 
 tion existing originally, perhaps, by custom, but at an early 
 
1853.] Ni:W YORK. 65 
 
 Milhau m. Sharp. 
 
 period authorized by a written charter, and since by legisla- 
 tive enactment. A public municipal corporation is always 
 created for political purposes. It is invested by the sovereign 
 power with subordinate legislative powers to be exercised 
 within certain local limits. Its powers are subject to the 
 control of the legislature. 2 Kent's Com., 275 ; People vs. 
 Morris, IS Wend., S^5. Its charter is not a contract, within 
 the meaning of the constitution of the United States, and 
 may be altered or amended. Trustees of Dartmouth College vs. 
 Woodward, i Wheat., 518. It has the power to make laws 
 for its better government, without any express grant. In the 
 case of the City of London vs. Vanacre, 5 Mod., ^38, Lord 
 Holt, in giving the judgment of the court, said : " We are 
 of opinion that this privilege of making by-laws and ordi- 
 nances is vested in the city, of common right, if not by custom, 
 for that it concerns the good and better government of the 
 city; and every city and town corporate may by an essential 
 power inherent in their constitution, make by-laws for the 
 advantage of the government of the body politic ; and this 
 is the true touchstone of all by-laws, which ought to be for 
 the administration of the government with which they are in- 
 trusted." It has also been held that where the charter gives the 
 corporation a power to make by-laws, it can only make in such 
 cases as it is enabled to do by its charter; for as it is expressed 
 by the court, such power given by the charter "implies 
 a negative that they shall not make by-laws in any other case." 
 Childs vs. Hudson's Bay Co., 2 Peere Williams, 207. In the 
 present case we are not left to inference, for the Montgomerie 
 charter expressly confers upon the common council of the 
 city of New York, the power to make such laws as to them 
 or the greater part of them, shall seem to be good, useful, or 
 necessary for the good rule and government of the bfldy cor- 
 porate. Thus it will be seen that as far as it acts in the exer- 
 cise of its public political powers, and within the limits of 
 its charter, it is vested with the largest discretion. And 
 whether its laws are wise or unwise ; whether they are passed 
 from good or bad motives, it is not the province of this court 
 to inquire. But, as regards the acts of the corporation in ref- 
 erence to its private property, it stands upon a very different 
 
 5 
 
66 N:EW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 footing. Such property is held for the common benefit of all 
 the corporators. In respect to that, the corporation is 
 charged with high duties. It is the depositary of a trust 
 ■which it is bound to administer faithfully, honestly and 
 justly. And no one will contend that the body of men, who 
 for the time being, may be its duly authorized representatives, 
 can legally dispose of its property of great value, without any 
 or for a nominal consideration ; and if they shall presume to 
 do so, it will be no excuse for such a gross and unwarrantable 
 breach of trust to say that they acted in their legislative 
 capacity ; for the very simple reason that they will not act in 
 that capacity. They will be acting in reference to the private 
 property of the corporation, and, in this respect, will stand 
 upon the same footing as if they were the representatives of 
 a private individual or of a private corporation. The mere 
 fact that the forms of legislation are used, will make no 
 difference in the character of the act. It will be in no 
 sense the exercise of a political power delegated for public 
 purposes. If the mere form of proceeding defined the 
 act, then it might be said that most of the acts of private 
 corporations are legislative acts. Banking corporations, and 
 railroad and insurance companies, have a board of directors 
 and a president, who transact the business of the company. 
 They have their regular meetings ; they have a presiding 
 officer, and their deliberations, discussions and proceedings, 
 are conducted more or less according to parliamentary rules. 
 But no one ever supposed that any of their acts were of a legis- 
 lative character, and for the obvious reason that they have 
 reference to private property. When a public coi'poration acts 
 in reference to its private property, its acts are equally of a 
 private character, and equally subject to judicial control. If 
 a different doctrine were established, the mayor and aldermen 
 of the city of New York might, at the next meeting of the 
 common council, distribute the whole of the property owned 
 by the city among themselves, provided that they adhered to 
 the ordinary forms of legislation. The distinction which I 
 have taken is well sustained by authority, as it is by reason 
 and principle. In the case of Frewin vs. Lewis, 4. Mylne & 
 Or., HJfi, which was a suit against the poor law commissioners. 
 
1853.] Ni:W YOBE. 67 
 
 Milhau vs. Sharp. 
 
 who are a quasi public corporation, Lord Cottenham in giving 
 his opinion, said : " So long as these functionaries strictly 
 ooniine themselves within the exercise of those duties which 
 are confided to them by law, this court will not interfere. The 
 court will not interfere to see whether any alteration or regula- 
 tion which they may direct is good or bad, but if they are depart- 
 ing from that power which the law has vested in them, if they 
 are assuming to themselves a power over property which the 
 law does not give them, this court no longer considers them 
 as. acting under the authority of their commission, but treats 
 them, whether they be a corporation or individuals, merely as 
 persons dealing with property without legal authority." In 
 the case of Bailey vs. Mayor, etc., of H. Y., S Hill, 6S1, it 
 was held that the Oroton aqueduct was a part of the private 
 property of the city ; and that, in regard to such property, it 
 stood in the same light as an individual owner, and was sub- 
 ject to the same liabilities. In the Dartmouth College case, 
 the same distinction between the public powers of a municipal 
 corporation, and its private property was recognized. In the 
 ease of Moodalay vs. The East India Company, 1 Bra. Ch., 469, 
 the master of the rolls, in speaking of the defendants, said : 
 " They have their rights as a sovereign power ; they have also 
 duties as individuals. So, in this case, as a private company 
 they have entered into a private contract, to which they must be 
 liable." And in the case of Att'y General vs. The Mayor, etc., 
 of Liverpool, 1 Mylne & Cr., 171, the master of the rolls says : 
 " If property is held by a corporation as trustee, if the corpo- 
 ration holds it clothed with public duties, the court has 
 always asserted its rights to interfere." 
 
 Before proceeding to the application of these principles to 
 the case before us, it will be necessary to determine what is 
 the character of the grant made by the corporation to the 
 defendants. Their council call it the grant of a permission. 
 But this conveys no definite idea. The grant of lands is the 
 grant of a permission to have the absolute and unqualified 
 ownership of them. A lease of a house isrthe grant of a 
 permission to use and occupy it for a limited time. In order 
 to determine what the corporation has done, it will be neces- 
 sary to ascertain what is the character and effect of this 
 
68 NJEW YORK. [Sup. Ot. 
 
 Milhau m. Sharp. 
 
 permission which it has granted. According to the provisions 
 of the resolutions passed by the common council, the corpora- 
 tion has granted the permission and authority to lay a double 
 railway track in Broadway. For the purpose of laying this 
 track, it will be necessary that the defendants shall, for a time, 
 take the exclusive possession of a part of the street ; that they 
 shall place a structure there of their own construction, which 
 shall belong to them, and of which they shall have the exclu- 
 sive use, as far as it is used for a railway. In my judgment, 
 it is immaterial what particular name is given to this thing 
 which is thus granted. Whether it be a thing corporeal or 
 incorporeal, or whatever be its correct legal designation, it is 
 a species of property of some kind. It is a property held by 
 the city, and is subject to the same trusts and duties as its 
 other property. 
 
 The question then arises whether the corporation has vio- 
 lated its duty as a trustee in making the grant in question. 
 It will be observed that the defendants have paid nothing for 
 the grant and that the only amount which they will be bound 
 to pay to the city, will be the annual license fee for each car 
 which is now allowed by law, and they have agreed that no 
 higher rate of fare shall be charged for the conveyance of pas- 
 sengers from any one point to any other point along the route, 
 and such combined system of routes as may hereafter be 
 adopted by means of cars and omnibuses, than five cents for 
 each passenger. It is stated in the complaint, and it is not 
 denied, that six offers were made to the corporation by other 
 parties than the defendants, and the complaint alleges that 
 one of them, if accepted, would produce a sum exceeding 
 $250,000 per annum for the benefit of the corporation, and the 
 relief of the taxpaying citizens, while each passenger would 
 be charged but five cents fare. That another offer, if accepted, 
 would produce a sum exceeding $300,000 per annum for the 
 benefit of the corporation, while each passenger would be 
 charged but five cents fare. That another offer, if accepted, 
 would produce the sum of $100,000 per annum for the benefit 
 of the corporation, while each passenger would be charged but 
 five cents fare. That another offer, if accepted, would pro- 
 duce the sum of $1,000,000 for the benefit of the corporation. 
 
1853.] Ni:W YOBE. 69 
 
 Milhau m. Sharp. 
 
 while each passenger would be charged but three cents fare. 
 That another ofEer, if accepted, would produce the sum of 
 $150,000 per annum for the benefit of the corporation, while 
 each passenger would be charged but three cents; and finally, 
 that an offer was made in which the parties agreed to comply 
 in all respects to the terms and conditions set forth in the 
 resolutions by which the grant was made to the defendants, 
 with the exception that instead of charging five cents for each 
 passenger, they would charge but three. The defendants do 
 not deny these allegations, but they have submitted an affi- 
 davit sworn to by two of them, in which they say, that either 
 of these offers, if accepted, and carried out, would have been 
 less iurthensome to the grantees in the amount of money to be 
 expended, and less beneficial to the citizens than the grant 
 made to the defendants. And they state as one of their rea- 
 sons, that none of the offers which were refused, excepting 
 one, proposed to take the grant upon the same terms and con- 
 ditions as the grant made to them. But what are those terms 
 and conditions ? It will be seen by reference to the resolu- 
 tions that they are, generally, regulations as to the manner of 
 laying the rails, and constructing and managing the cars, 
 which would not be onerous to the grantees, and which would 
 be adopted by any one, almost as a matter of course. The 
 only important provision is that which relates to the sweeping 
 of the street. But the expense of carrying this provision into 
 effect would amount to a sum very far less than that which 
 the other parties agreed to pay to the corporation. They 
 next state that the offer which proposed to take the grant 
 upon the same terms and conditions as were agreed to by the 
 defendants, was not accompanied by any purchase, or offer to 
 purchase, the lines of omnibuses now established upon Broad- 
 way, whereas they allege that they, through their representa- 
 tives, had made contracts with six of the principal omni- 
 bus lines in Broadway, owning two hundred and forty-one 
 omnibuses, to buy out their lines, for the purpose of with- 
 drawing the omnibuses from Broadway, and with a view 
 of transferring them to tranverse lines to run in communica- 
 "tion with the railway. But, if they had made these contracts, 
 why had they done so ? They were not bound by the terms 
 
70 N:EW YORK. [Sup. Ct. 
 
 Milhau m. Sharp. 
 
 of the grant to make these or any similar contracts. They 
 say in their affidavits that they made the contracts "as a 
 measure of justice and proper public policy." Was it from a 
 sole regard to these considerations, or was it not rather from 
 a regard for their private interests ? The affidavit itself 
 undoubtedly states the true reason : " It was necessary to the 
 successful working of a railway in Broadway at all." And is 
 it not a just conclusion that the same motives of self-interest 
 which influenced the defendants, would have induced the 
 grantees, whoever they might be, to do the same thing ? But 
 it is said that those offers were not made in good faith. The 
 papers before us show the circumstances under which they 
 were made. They were made by the owners of property upon 
 Broadway, by parties who had zealously opposed the railroad, 
 because they believed that its construction and uses would be 
 injurious to their property. They had appeared before the 
 common council and urged their objections, and when they 
 found that their opposition would be unavailing, they said-: 
 " Then give us the grant. We believe that it will be exceed- 
 ingly valuable. We are willing to pay a liberal consideration, 
 and we believe that in this way we shall derive some compen- 
 sation for the injury which we think that we shall sustain by 
 the depreciation of our property." They said this at that 
 time, and they say it now ; and in this I can see neither 
 inconsistency nor bad faith. But it is said, and some 
 conversations are stated in the defendants' affidavits for 
 the purpose of showing that the other parties intended 
 in case they received the grant, to allow themselves to be 
 restrained by legal proceedings from carrying it into effect. 
 I suppose that the question whether they would be restrained 
 or not, would depend upon the question whether they were 
 proceeding illegally or not ; and that the rule of law would 
 be the same whether applied to them or to the defendants, or 
 to anyone else. But it is said that they would have allowed 
 an injunction to be obtained and would not have moved for 
 its dissolution. Suppose that they had, would that have 
 defeated the road ? Would the corporation in the proper 
 discharge of its duties, have allowed what it believed to be a 
 valuable work, highly beneficial to the public, and of great 
 
1853.] NEW YORK. 71 
 
 Milhau vs. Sharp. 
 
 advantage to the city treasury to be thus arrested? Or would 
 it not have defended the grant which if had made, in case it 
 became necessary to do so ? It would have had the right and 
 it would have been its duty to defend it. But to remove all 
 question upon this point we have the affidavits of the parties 
 themselves, who are men of high respectability and of abun- 
 dant pecuniary responsibility, and they positively swear that 
 their offers were made in good faith, and for the purposes 
 therein expressed. And in one case it appears that the par- 
 ties gave satisfactory security for the faithful performance of 
 their agreement. Surely this is enough to countervail any 
 number of allegations founded on mere suspicion. 
 
 In deciding as to the comparative merits of the offer which 
 was accepted, and the offers which were rejected, the question 
 is not, as the defendants seem to suppose, as to what amount 
 of burthens have been assumed by the grantees. But even 
 if it were it seems, from their own showing, that they have 
 received, or will .receive, a full equivalent in value for the 
 burthens which they have thus disinterestedly assumed. The 
 true question is, what amount of benefit might have accrued 
 to the city in case that the most advantageous offers made had 
 been accepted ? And in this point of view there can be no 
 other conclusion than that the corporation has shown an 
 entire disregard of the public interest, and of its own duties. 
 If it had accepted the offers which it refused, the burthen 
 upon the taxpayers would have been reduced, to the same 
 extent to which the public treasury would have been benefited. 
 
 But it was said upon the argument, that the corporation 
 had no right to receive any compensation. If they had the 
 right to make the grant, they had the right to be paid for it. 
 The power of granting anything, implies the right to attach 
 conditions to the grant ; and it is immaterial whether the 
 grantor be a corporation or an individual. One of the rea- 
 sons given on the argument why the corporation could not 
 receive compensation, was, that it had been deemed necessary 
 to apply to the legislature for express authority to license 
 hackney coaches. But there is no analogy between the two 
 cases. The act of 1813 gives to the corporation the power and 
 authority to regulate hackney coaches or carriages, and the 
 
72 NJEW YORK. [Sup. Ot. 
 
 Milhau ««. Sharp. 
 
 owners and drivers thereof, and their rates of fare or carriage, 
 requiring the owners of such hackney coaches or carriages to 
 have a license from the mayor of the city, under the direc- 
 tion of the common council. And it further provides, that 
 whoever shall obtain such license, shall pay therefor a sum 
 not exceeding five dollars for each hackney coach or carriage, 
 to be applied to the support of the poor of the city. 2 Laws 
 of 1813, chap. 86, p. JfJfi. This act, it will be seen, merely 
 gives a power to make a police regulation, accompanied with 
 a power to levy a tax upon certain species of property for a 
 particular purpose. It neither gives, nor does it profess to 
 give, the power to receive compensation for any property 
 granted, or for the granting of any right which the city 
 already possessed the power to grant. 
 
 The conclusions to which I have arrived, for the reasons 
 which have been stated, are, that the corporation, in making 
 the grant in question, was guilty of a clear breach of trust ; 
 and that this court is bound to prevent the grant thus illegally 
 made from being carried into effect. 
 
 The next question to be considered is whether the suit has 
 been brought by the proper parties. It was held in the case 
 of Christopher vs. The Mayor, etc., of New York, 13 Barh., 
 567, that a taxpayer in the city might restrain the corpora- 
 tion, and the parties claiming under them, from doing an act, 
 which amounted to a breach of trust, and which was injurious 
 to the party as a taxpayer. The rule of the common law, as 
 established in England, was, that in cases where an act was 
 done by a corporation, which was not particularly injurious 
 to any individual corporator or corporators, it was necessary 
 for the parties who felt aggrieved to relate their grievances to 
 the officer of the crown, who might, if he thought the case a 
 proper one, file his information against the corporation. In 
 such a case the suit would be brought in the name of the 
 attorney general, on the relation of the parties complaining, 
 instead of being brought in the name of the parties them- 
 selves. But even in England it has been held that although 
 the proceeding must be by the attorney general, in a case 
 where all parties interested were parties to the abuse, yet that 
 where such was not the case, it was not necessary that he 
 
1853.] NEW YORK. 73 
 
 Milhau vs. Sharp. 
 
 should be before the court. Bromley vs. Smith, 1 Simons, 8. 
 I think that the plaintiffs in this case, being taxpayers to 
 a large amount, have such an interest in preventing the grant 
 in question from being carried into effect, that they had a 
 right to institute this suit in their own names; and I am of 
 opinion that an injunction should be issued against the 
 defendants in pursuance of the prayer of the complaint, 
 
 S. B. STKOifG, J. — The plaintiffs allege that the resolutions 
 of the common council of the city of New York, purporting 
 to authorize the construction of a railroad in Broadway, are 
 void ; and ask that the defendants may be restrained by 
 an injunction from this court from entering into, or upon, 
 that street, "for the purpose of laying or establishing a 
 railroad thereon, and from digging up, or subverting, the 
 soil, or doing any other act in such street tending to encum- 
 ber the same, or" to "obstruct the free and common use 
 thereof, as the same has been heretofore enjoyed." The 
 objections which have been advanced against the resolutions 
 are numerous, and have been discussed by the distinguished 
 counsel for both parties, with much zeal and great ability. I 
 shall state the conclusions which I have adopted on such of 
 the points raised as I deem material; and I intend to do but 
 little more, as I have neither the time nor the inclination to 
 elaborate an opinion. 
 
 It has been contended that the common council has not the 
 power to authorize the construction of any railroad in the city. 
 The charter from Governor Dongan gives, grants, ratifies and 
 confirms, to the corporation, all and every the streets, lanes, 
 highways and alleys within the city, ^for the public use and 
 service of the mayor, aldermen and commonalty of the said 
 city, and of the inhabitants of Manhq,ttan island, and travel- 
 ers there, and confers a power to establish, appoint, order and 
 direct the establishing, making, laying out, ordering, amend- 
 ing and repairing the same, necessary, needful and convenient 
 for the inhabitants, and travelers and passengers. The only 
 limitation or restriction of this grant is contained in, and 
 consists merely of, a provision for the protection of private 
 rights. The charter from Governor Montgomerie, ratifies and 
 
74 NEW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 confirms this delegation of power. Chancellor Kent remarks, 
 in his notes and illustrations, prepared at the request of the 
 common council, (p. 2.54,) that "the charter powers" (rela- 
 tive to the streets) " have been so frequently and so fully con- 
 firmed, defined, enforced, and specially applied by legislative 
 acts, that there seems to be no want of jurisdiction from the 
 one source or the other, for every exigency." The common 
 council has certainly a very liberal discretion as to amending 
 the streets, and may, in the exercise of it, authorize the con- 
 struction of a railway, if that is deemed to be an amendment. 
 I know of no limitation except that imposed by the charter 
 for the protection of private rights, and that which is always 
 implied in a public grant, that there shall be no perversion of 
 the main object for which it was made. As to private rights, 
 it does not appear very clearly that any such could be affected 
 by a railroad granted on proper terms, at all. The plaintiffs 
 allege that they are proprietors of lots on the westerly 
 side of Broadway, and that they verily believe that they 
 are the owners in fee of all the lands in front of their 
 respective buildings to the centre of that street. Now when 
 a party asks for relief on the ground of a threatened injury 
 to his property, he is bound to aver his title in positive terms. 
 That lies, or should lie, within his own knowledge ; and if 
 that is not sufficient to warrant a direct and unqualified aver- 
 ment, it cannot justify the interposition of this court. We 
 are bound to act, and especially in so important a matter as 
 restraining parties from the enjoyment of their apparent 
 rights, upon facts, and cannot proceed upon mere belief. But 
 if the plaintiffs have the ultimate fee to the land opposite 
 their respective lots, to the middle of the street, it by no 
 means follows that their proprietary rights will be invaded, 
 or their property taken, by the construction of the proposed 
 railway. Their title is subject to the public right to use it 
 as a city street. The public has acquired the privilege of 
 using it as a full passway. There was no restriction to any 
 existing or other method of travel when the land was dedicated 
 to, or taken by, the public. The purpose was general, and suf- 
 ficiently extensive to embrace any species of locomotion which 
 any individual or the public might choose to adopt. A rail- 
 
1853.] NEW YORK. 75 
 
 Milhau vs. Sharp. 
 
 way furnishes new facilities for traveling, and is designed solely 
 for that purpose. There is no diversion to any purpose other 
 than that for which the land was taken. l^Tor is the land on 
 which the rails are laid rendered less valuable to the pro- 
 prietor of the fee. He sustains no direct injury. If the value 
 of the adjoining lots is impaired, that is a consequential injury, 
 resulting from a public improvement ; and for that the law 
 gives no compensation. When, therefore, the public has 
 acquired the right to use the land as a street, and merely sub- 
 jects it to a new and improved method of traveling, the pro- 
 prietor of the nominal fee loses no property, and the consti- 
 tutional guaranty is not invaded. If a railway furnishes an 
 improved means of travel, it cannot be inconsistent with the 
 object for which the street was obtained, but rather harmon- 
 izes with and promotes it ; unless, indeed, it should exclude 
 the inhabitants of the city and "travelers there" from the free 
 and appropriate use of the passway, or should in some way 
 constitute a nuisance. The rails should undoubtedly be so 
 laid as not to obstruct the free passage of the street, and we 
 were assured upon the argument, and no fact was stated to 
 the contrary, that the resolutions in question contained provi- 
 sions which, if fully carried out, would effectually prevent any 
 obstruction. That they will not necessarily impair the pas- 
 sage in any other manner, is evident from the fact, that rails 
 laid in other streets in the city have not been productive of 
 any inconvenience. It has been supposed by many that a 
 railroad in a city or populous village, was necessarily a public 
 nuisance, whether the cars upon it were drawn by horses or 
 by locomotives propelled by steam. The supreme court of this 
 state has frequently decided otherwise. In the case of Hentz 
 vs. The Long Island Railroad Company, IS Barb., 646, I had 
 occasion to examine this question very fully, and came to the 
 conclusion not only that the authorities were too strong to be 
 got over, but that they were right. There may be circum- 
 stances which would render a railway and the travel upon it 
 very injurious, and possibly a nuisance in some localities, but 
 they do not exist in this case. From the statements contained 
 in the report of the majority of the committee of the common 
 council, which is an exceedingly well written document, I am 
 
76 NJEJW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 satisfied that the proposed railroad would not be a nuisance, 
 but would, on the contrary, be a great relief to Broadway. I 
 have no doubt of the power of the common council to author- 
 ize its construction, in a proper manner, and upon proper 
 terms. If my opinion on this point should need confirmation, 
 it would have it from the circumstance that the principal 
 opponents of the existing ordinance, who were proprietors of 
 stores and dwelling houses on Broadway, and men of much 
 intelligence, who had the ability to, and no doubt did, obtain 
 the best legal advice, themselves applied to the common 
 council for the grant of a similar privilege, but upon terms 
 more onerous, and which would have required from them an 
 immediate and extensive appropriation of money. 
 
 The principal objection to the resolutions, and those 
 entitled to the most consideration, resulted from the circum- 
 stances attending their adoption, and their terms. It was con- 
 tended on the argument, that the adjournment of the board of 
 aldermen from the 4th to the 8th day of November, being for 
 more than three days, put an end to that monthly session of the 
 board, at which the resolutions in question were adopted ; and 
 that when the board subsequently met in pursuance of the 
 adjournment ib was not a legal assembly, and could do no valid 
 act. It is provided by the 4th section of the act of April 2d, 
 1849, chap. 187, that "neither board shall adjourn for a 
 longer period than three days, except by a resolution to be 
 concurred in by the other body." The 7th of November last 
 was Sunday, and if that is to be counted, the adjournment of 
 the board of aldermen from the 4th to the 8th of that month 
 was for more than three days, and being made without 
 the concurrence of the board of assistants, was unauthorized. 
 In the construction of a statutory provision relative to the 
 time prescribed for any purpose, Sunday is sometimes 
 included and sometimes not. The inclusion or exclusion 
 depends upon what is to be done within the prescribed 
 period. If early and not continuous action is requisite Sunday 
 is counted, as that will not interfere with the main design. 
 Thus the object in giving a notice of time is to enable a 
 party to send for his absent witnesses who may be at a 
 distance, or to subpoena those who might otherwise leave their 
 
1853.] NJEW YORK. 77 
 
 Milhau vs. Sharp. 
 
 homes at an early day, and not to furnish a period which might 
 he requisite for constant exertion. So where there is a notice 
 for a special motion, it may he necessary to procure affidavits 
 from persons at a distance, or of persons about leaving home, 
 and an early, rather than constant, exertion is essential. In 
 such cases Sunday is considered as a part of the required time, 
 because the object to be accomplished does not call for its 
 exclusion. But the provision relative to adjournments which 
 I have quoted has reference to days of action, and to those 
 only. The design is that the proceedings of the common 
 council shall not be delayed for more than three days by one 
 board without the consent of the other. Sunday is not a 
 proper day for the performance of secular business, and there- 
 fore it should not be considered as any part of the time lim- 
 ited by the provision relative to the adjournment of either 
 board. Where the adjournment is for three week days and 
 Sunday, the business of the common council is in fact inter- 
 rupted only three days. It is for this reason that the congress 
 of the United States and the legislature of this state have 
 uniformly given the same construction to similar provisions in 
 the constitutions under which they respectively acted. The 
 legislature of this state, when enacting the provision in 
 question, may well be supposed to have had reference to their 
 practical construction of similar language in reference to their 
 own powers. Thinking as I do, that the adjournment was 
 fully authorized, it is not necessary to inquire whether, if it 
 had been illegal that would have nullified a subsequent meet- 
 ing of the same board, or the after joint action of the two 
 branches of the common council. 
 
 It was strenuously contended by the plaintiffs' counsel, that 
 the grant to the defendants was void because it was made in 
 defiance of an injunction allowed by a justice of the superior 
 court of the city of New York, in a suit instituted by Thomas 
 E. Davis and Courtlandt Palmer against the mayor, aldermen 
 and commonalty of that city. That injunction certainly pur- 
 ported to prohibit the corporation from making the grant to 
 the defendants. But the present defendants were not parties 
 to that suit, nor is it averred in the complaint that the injunc- 
 tion had been served on them. An injunction affects the 
 
78 NEW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 person rather than the right. If it affects the right at all it 
 is only indirectly, through the person. In the case of Fellows 
 Ts. Fellows, 4 Johns. Gh., 25, Chancellor Kent said: "I have 
 no conception that it is competent to this court to hold a man 
 bound by an injunction who is not a party in the cause, for 
 the purpose of the cause ;" and he there dissolved an injunc- 
 tion which had been issued against persons who had not been 
 made parties to the suit. Should a party disobey a lawful 
 injunction, he could of course be punished for the contempt, 
 and he could not directly gain anything by his disobedi- 
 ence. But it would not affect the rights of another party 
 who might have dealt with him in reference to the subject- 
 matter of the controversy. If it would, innocent parties 
 might suffer, notwithstanding all the precautions which 
 the most prudent could take. As the present defendants 
 were not parties to the suit in which the injunction was 
 issued, the rights which they may have acquired in a sub- 
 ject-matter common to both suits were not affected, unless, 
 as the plaintiffs contend, the common council in adopt- 
 ing the forbidden resolutions were guilty of a criminal con- 
 tempt, and no rights can be acquired through the perpetration 
 of a crime. This position renders it necessary that I should 
 consider the question whether the members of the common 
 council, in passing the resolutions in question, were guilty of 
 any crime ; and I regret exceedingly that it does so, as my 
 examination of the subject has led me to conclusions different 
 from those entertained by the learned judges of another court, 
 for whom I entertain the highest respect. Their opinions 
 are certainly entitled to great consideration, but cannot con- 
 trol us, sitting here. It is alleged that the members of the 
 common council have wilfully disobeyed a process of injunc- 
 tion, lawfully issued by the superior court, and have con- 
 sequently been guilty of a misdemeanor under certain provi- 
 sions of the revised statutes. 2 R. S. 278, sec. 10, sub. S; id. p. 
 692, sec. H. The injunction commanded the corporation to 
 absolutely desist and refrain from granting to the defendants 
 the right to lay the proposed railway in Broadway, or in any 
 manner authorizing them to do it. The common council subse- 
 quently adopted the resolution granting the forbidden right. 
 
1853.] N:EW YORK. 79 
 
 Milhau m. Sharp. 
 
 and conferring the forbidden authority, but proceeded no far- 
 ther in consummating the grant; at least no additional action 
 as to that is set forth in the complaint. The alleged contempt 
 then, so far as it can have any bearing upon the efficacy of 
 the grant, (for the condemnatory resolutions subsequently 
 adopted by the board of aldermen, however contemptuous and 
 improper they may have been, did not impair the previous 
 action of the same body,) consisted simply in the adoption of 
 the resolution for the construction of the railroad. Supposing 
 that the injunction forbade such adoption, the question is 
 whether it had been laiufully issued ; for if it had not been, 
 there was no criminality in disobeying it. If the superior 
 court had jurisdiction to prevent the action of the common 
 council in this matter, the injunction had been lawfully 
 issued : otherwise not. 
 
 By the first section of the act of April 7, 1830, chap. 123, 
 relative to the city of New York, it was provided that the 
 legislative power of the corporation should be vested in 
 the two boards, who together should form the common 
 council of the said city. This delegation of power is continued 
 by the act of April 2, 1849, chap. 187. The common council 
 is forbidden to perform any executive duty by the ninth 
 section of the last mentioned act, but otherwise their legisla- 
 tive power is co-extensive with their corporate rights. It has 
 been seen that under the Dongan and Montgomerie charters 
 the corporation holds the streets, and has full power to make 
 regulations for their improvement. The adoption of ordinances 
 or resolutions for the improvement of the streets is nowhere 
 declared to be an executive duty, but is the exercise of a 
 power devolved upon the common council in its legislative 
 capacity. The resolutions making the grant in question had 
 reference to the improvement of Broadway as a street, were 
 pending before the common council when the injunction was 
 issued, and that process, if effectual, would necessarily have 
 interrupted and eventually prevented, legislative action. I can 
 find no warrant for this interference, either in any legislative 
 enactment or judicial determination. It is a familiar princi- 
 ple that legislative action is not subject to judicial control. 
 This results from the distinct nature of the duties of the two 
 
80 WJEW YORK. [Sup. Ct. 
 
 Milhau vs. ShM'p. 
 
 departments and their co-ordinateness. Judges are elected or 
 appointed to administer the laws not to make them, or to 
 interfere in their enactment. They formerly had a voice 
 in their final passage in the council of revision in this state, 
 but their interference was at length deemed inexpedient and 
 improper, and the council was abolished. To interfere dur- 
 ing the pendency, and before the passage of a bill in either 
 branch of the legislature, would be still more objectionable on 
 every account. Legislative action, to be worth anything, 
 should be free. I do not understand that this principle is 
 denied as applicable to our state legislature, but it is said that 
 it does not extend to our municipal corporations. Why not ? 
 The delegation is of a part of the sovereign power, and that 
 must pass with its inherent immunities, unless there is an 
 express or otherwise necessary limitation. In this case there 
 is no limitation, nor is it necessary that' there should be. 
 I mean as to the exercise of their legislative powers. There is 
 undoubtedly a check upon the action of the common council, 
 in the veto power given to the mayor. The statutes impose 
 no other, nor do they permit any interference even by the 
 mayor while the matter is pending before either board. There 
 is no necessity that the legislative action of the common 
 council should be checked by judicial authority. Should an 
 ordinance be passed which should be void from a want of 
 jurisdiction, or voidable by reason of a breach of trust, or 
 from any other cause, its further prosecution, if by any public 
 oflBcer, would be ministerial, or if by any other person, it 
 would be in his private capacity, and in either case an injunc- 
 tion would be proper and preventive of mischief. In the 
 present case the injunction already issued by a justice of this 
 court has been sufficiently efficacious, notwithstanding the 
 passage of the resolutions : not a rail Has been laid, nor a 
 stone or block removed. 
 
 If it should be said that the consideration of these resolu- 
 tions by either board was not prohibited but that the restraint 
 was only upon their adoption, the difficulty would not be 
 answered. It would then seem that either board might delib- 
 erate upon them and that a vote might be taken, but that the 
 members were restricted to voting only against them. This 
 
1853.] NEW YORK. 81 
 
 Milhau vs. Sharp. 
 
 would be placing any member of the board who might con- 
 sider that the resolutions ought to be adopted, in an unfortu- 
 nate predicament — should he vote for them he would violate 
 the injunction and put his body in peril of imprisonment ; 
 and should he vote against them he would violate his official 
 oath and encounter a still more fearful danger. It surely 
 cannot require any argument to prove that it is incompetent 
 for any court thus to restrict the action of the members of any 
 legislative body. 
 
 I have said that the injunction in question had not been 
 sanctioned by any judicial action. I asked the counsel for 
 the plaintiff, on the argument, if he had met with any case 
 where a court had prevented the legislative action of a muni- 
 cipal corporation. He did not cite, nor have I seen, any 
 instance of the kind, and I presume none can be found. 
 Proceedings have frequently been had in the courts in England 
 against the municipal corporations there, and some of them 
 have been conducted with great zeal, and with all the influ- 
 ence and power of the crown. The charter of the city of 
 London was annihilated by the arbitrary decision of the court 
 of king's bench, presided over at the time by a judge, who, 
 as counsel for the crown, had drawn the information ; but 
 there is no case to be found where a court had attempted to 
 prohibit legislative action. Neither has there been an instance 
 of the kind in this state, or, so far as I know, in any state in 
 the Union. It is a strong argument against the claim of aiiy 
 power without statutory authority, that it is new. It applies 
 
 . with peculiar force where an attempt is made to extend the 
 common law jurisdiction of any court. In such cases, if our 
 courts can go beyond the uniform practice, there is no limita- 
 tion, and their power would be arbitrary and its exercise intol- 
 erable. I know that it has been contended that the power to 
 
 ■grant injunctions has been extended by the junction of law 
 and equity jurisdiction in the same tribunal. But such is not 
 the necessary, or even probable, consequence. The court of 
 chancery was no favorite with the convention by which it was 
 abolished. It had become obnoxious to the people, not only 
 for its delays and the great expense involved in its proceed- 
 ings but for its frequent and often vexatious interference with 
 
 6 
 
82 N:EW YORK. [Sup. Ot. 
 
 Milhau m. Sharp. 
 
 the ordinary affairs of men. It was in order to counteract, 
 and certainly not to increase, those evils, that all equity Juris- 
 diction was transferred to tribunals which had been previously 
 courts of law. 
 
 Upon the whole, I am satisfied that the learned judge by 
 whom the injunction in question was allowed, went beyond 
 the jurisdiction of his court. Because, 1st. Such injunction 
 was restrictive of legislative action ; 2d. It was unnecessary ; 
 and 3d. It transcended the limits established by the practice 
 of courts of equity. In my opinion, therefore, neither that 
 nor the proceedings of the common council after it had been 
 served on the aldermen and assistants, stand in the defend- 
 ants' way. 
 
 Thus far it will be seen I am with the defendants. But 
 there is, in m.y opinion, a formidable difficulty resulting from 
 the character and consideration of the grant. It was con- 
 tended by the counsel for the defendants, that all they have 
 taken is a revocable license. If that were so, I should not feel 
 inclined to interfere. But I have all along been under the 
 impression that the resolutions constituted an irrevocable 
 grant of a valuable right ; and I accordingly asked some ques- 
 tions strongly indicative of such an opinion, during the argu- 
 ment of the senior counsel for the defendants, to which he 
 was unable, with all his learning, ingenuity and professional 
 tact, (and I presume that I may safely say that in either he is 
 not excelled by any member of our bar,) to give satisfactory 
 answers. Parol licenses to do some act upon land, are gener- 
 ally revocable, and therefore do not confer any right. Some 
 cases have held that a mere parol license operates, when exe- 
 cuted, as a grant ; but the principle when applied to lands is 
 inconsistent with the provisions of our statute relative to 
 fraudulent conveyances, and cannot therefore apply here. 
 There can be no doubt but that a written permission to use 
 land in a particular way, for a designated time, for the bene- 
 fit of the person to whom it is given, in consideration of some 
 act to be performed by him, is a grant of some right in the 
 nature of an incorporeal hereditament, and therefore confers 
 property upon the grantee. The resolutions in this case speak 
 of what they effect as the grant of a permission or authority. 
 
1853.] N:EW YORK. 83 
 
 Milhau vs. Sharp. 
 
 Technically, the word grant, is inappropriate to a mere 
 license ; but it may have been used in this instance in its 
 popular sense, and it is not therefore very significant of the 
 character of the interest intended to be conferred. The 
 defendants are authorized to lay a double track for a railway, 
 and of course to remove so much of the existing pavement as 
 may be necessary for that purpose; to continue the same from 
 time to time ; to run oars upon such rails for the conveyance 
 of passengers, for which they are to have licenses ; to receive 
 a compensation not exceeding five cents for each passenger ; 
 to form an association, with the authority to make by-laws, 
 to transfer the interests or shares to new associates or assigns, 
 and to continue their operations for ten years ; and for a 
 renewed term, if they and the corporation can agree as to the 
 amount of the future license fee, or otherwise to surrender 
 the road to the corporation at a fair and just valuation. 
 Surely all these provisions indicate something more than a 
 mere revocable license. They convey a valuable right which, 
 upon the performance of the primary .acts required from the 
 defendants, would vest in them, and of which they could not 
 be deprived by a repeal of the resolutions. It is not compe- 
 tent even for the legislature of the state to deprive a party of 
 a vested right, although it may have been conferred upon him 
 by a statute. The People ex rel Fountain et al. vs. The Board 
 of Supervisors of the County of Westchester, 4 Bari., 64-, and 
 the cases there cited. 
 
 The right which these resolutions purport to confer, cer- 
 tainly bears a very strong resemblance to a franchise. The 
 privileges granted to, and the duties exacted from the defend- 
 ants, are much the same as those which appertain to the pro- 
 prietors of ferries, wharves and bridges. All relate to public 
 matters; the grantees of each have duties to perform and 
 expenses to pay, and all are entitled to demand and receive 
 a compensation from those who are personally benefited. It 
 detracts not from the comparison that the railway when fin- 
 ished may be freely used by all. Similar privileges are often 
 named in the grants of bridges and ferries. In the case under 
 consideration the grantees would have the exclusive right to 
 carry passengers in carriages or cars running on the rails, for 
 
84 N:EW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 hire, and that, no doubt would furnish them with a liberal 
 compensation, notwithstanding the impliedly reserved rights 
 of the people. 
 
 There are some extraordinary features in the grant under 
 consideration. The mayor's power to grant licenses for public 
 vehicles is restricted, and as it has turned out, without his 
 consent. Corporate powers are conferred upon the associates, 
 and they are entitled contingently to demand the future value 
 of the railway and its appurtenances, from the city, which 
 might result in heavy taxation, or what might become an 
 enormous debt. I should hesitate much before I could decide 
 that in passing resolutions embracing these provisions, the 
 common council had not gone beyond its powers. If the 
 grant is void from the want of adequate power to make it, or, 
 indeed, invalid from any cause, the plaintiffs, as proprietors 
 of lots and buildings on Broadway, would be peculiarly and 
 seriously injured by an attempt on the part of the defendants 
 to construct the proposed railway, and they would be entitled 
 to an injunction to prevent evils for which they could obtain 
 no adequate redress in the law. It matters not that the reso- 
 lutions were adopted by the common council in their legisla- 
 tive capacity. The privilege of exemption from judicial 
 interference terminates where legislative action ends. 
 
 I am not, however, inclined to, nor is it necessary that I 
 should, express any definite opinion as to the validity of these 
 objections to the resolutions ; as I concur with my brother 
 Edwards in the opinion that the papers submitted to us prove 
 a clear breach of trust, which invalidates the grant. 
 
 There is undoubtedly a wide difference in this respect 
 between the acts of the state legislature and of municipal cor- 
 porations. State laws are enacted by the people through their 
 representatives in senate and assembly. They act in their 
 sovereign capacity, and are subject to no further restrictions 
 than such as result from their accession to the Union, their 
 own constitution, and such principles as are justly deemed 
 fundamental to all civilized countries. They may, therefore, 
 through their constitutional representatives give away the 
 public property, and no power can annul the grant as improvi- 
 dent or destitute of any valuable or appropriate consideration. 
 
1853.] NJEW YORK. 85 
 
 Milhau m. Sharp. 
 
 But the city corporation is an inferior body, and has no 
 other powers than those which have been expressly delegated 
 to it, and their appropriate incidents. The common coun- 
 cil has no authority under the city charter or any statute, 
 to give a'way, or make an improvident grant of, the public 
 property ; nor is any such power essential to the performance 
 of any of its legitimate duties. Its disposition of such prop- 
 erty, including franchises, is therefore subject to the common 
 law principles applicable to the grants made by trustees to 
 whom the management of private property is confided. It is 
 right on every account that it should be so. Were it other- 
 wise, unfaithful members of the common council might squan- 
 der the public property in sumptuous entertainments for 
 themselves and their friends ; pompous and expensive parades 
 professedly in honor of the living or the dead, or presents 
 or improvident grants to their relatives or other favorites. 
 The evils which would result from such improper, if not crim- 
 inal conduct, and particularly to the tax-payers, whose legit- 
 imate burthens are numerous and heavy, would be intolerable. 
 The difficulty might be avoided if intelligent and honorable 
 men only should be elected to office. But ■ the experience 
 of other corporations, if not of this city, has proved that 
 however desirable such a consummation may be, it is not 
 always attainable. 
 
 It is evident from the papers laid before us, that proposi- 
 tions were made to the common council to construct and 
 manage a railway in Broadway on terms much more advan- 
 tageous to the city in a pecuniary point of view, as well as in 
 other respects, than those contained in the grant to the 
 defendants ; so much so indeed that the difference must have 
 been perceptible to the defendants, and they must have 
 accepted their grant with a full knowledge that it had been 
 improvidently made. It was said on the argument that those 
 proposals were made for the purpose of defeating the project ; ■ 
 but the facts stated in the papers do not establish that infer- 
 ence, at any rate, sufficiently to warrant correspondent judi- 
 cial action. The common council might have avoided this 
 difficulty by authorizing the construction and management of 
 the proposed railroad under suitable conditions, and then 
 
86 NjEW YORK. [Sup. Ct. 
 
 Milhau vs. Sharp. 
 
 referring it to "the proper executive officer to advertise for, 
 and receive, proposals, and to accept of those which might 
 be the most advantageous for the city. But the two boards 
 did not think proper to pursue a course so obviously just 
 and proper, and the members have subjected themselves to 
 the imputation of violating the high trust committed to 
 them, and a measure which, properly matured and properly 
 guarded, might have proved highly beneficial to the com- 
 munity, to great delay if not to eventual defeat. 
 The injunction should, in my opinion, be granted. 
 
 MoKKis, J. — I agree with my brethren, up to a certain 
 point. We all agree that the common council have authority 
 to authorize the laying of railways in the streets of the city ; 
 that a previous act of the legislature for that purpose, is not 
 necessary ; that a railway is not in itself a nuisance, and that 
 there is no evidence that it would be a nuisance in this 
 particular case. But we divide upon the point, whether, in 
 the exercise of this power, the corporation is using its private 
 property, or exercising a governmental trust. My brethren 
 think,' that in acting in this case, the corporation is disposing 
 oE its private property. I think that it is exercising a legis- 
 lative and political power. And in assigning the reasons 
 for my conclusions, I will first consider the second point 
 presented by the plaintiffs. That point is this : " Making 
 the grant in defiance of the injunction out of the superior 
 court, was an illegal and criminal act, which could confer no 
 legal right to the grantees." I consider this point first not 
 only for the reason that the decision of it in favor of the plaint- 
 iffs will determine this cause, and require that the injunction 
 should be made permanent, but also because a correct decisioh 
 upon this point is of more importance to the well being of 
 this city, and to our citizens, collectively and individually, 
 than would be the benefit or injury to them of any railway in 
 Broadway, or in any other street of the city. In this connec- 
 tion I present a series of facts admitted by the parties to 
 this suit, viz : On the 19th of November, 1852, the board of 
 aldermen of the city of New York, acting in its capacity as 
 one branch of the legislature of the city of New York, passed 
 the following resolution, viz : 
 
1853.] N:EW TOBK. 87 
 
 Milhaii m. Sharp. 
 
 " Resolved, That Jacob Sharp, Freeman Campbell [and 38 
 others who are named in the resolution,] and those who, for 
 the time being, may be associated with them, all of whom 
 are herein designated as associates of the Broadway railway, 
 have the authority and consent of the common council to lay 
 a double track for a railway in Broadway and Whitehall or 
 State street, from the South ferry to Pif ty-ninth street, and 
 also thereafter to continue the same, from time to time, along 
 the Bloomingdale road to Manhattanville, which continuation 
 they shall be required from time to time to make, whenever 
 directed by the common council ; the said grant of permission 
 and authority being upon and with the following conditions 
 and stipulations, to wit :" 
 
 Here follow fifteen stipulations, which, for the purpose of 
 the point now under consideration, it is unnecessary to notice. 
 On the 6th of December, the resolution was also passed by 
 the board of assistant aldermen, and directed to be sent 
 to the mayor for his consideration. On the 18th of Decem- 
 ber, the mayor returned the resolution, with his objections 
 to the board of aldermen, where it originated. The effect 
 of this veto of the mayor was, that the board of aldermen 
 could not proceed to reconsider the resolution before the 
 29th day of December, 1853. On the 37th day of December, 
 Judge Campbell, of the superior court, upon an ex parte 
 application made to him by Thomas E. Davis and Courtlandt 
 Palmer, granted an injunction against the mayor, aldermen 
 and commonalty of the city of New York, in which is the 
 following clause : 
 
 " I do hereby command and strictly enjoin the defendants, 
 the , Mayor, Aldermen and Commonalty of the City of New 
 York, their counselors, attorneys, solicitors and agents, and 
 all others acting in aid or assistance of them, and each and 
 every of them, that they and each of them do absolutely 
 desist and refrain from, granting to, or in any manner 
 authorizing Jacob Sharp and others (the persons named in 
 the resolution) or their associates, or any other person or per- 
 sons whomsoever, the right, liberty, or privilege of laying a 
 double or any track for a railroad in the street known as 
 Broadway, in said city of New York, from the South ferry to 
 
88 NJEW YORK. [Sup. Ct. 
 
 Milhau m. Sharp. 
 
 Fifty-ninth street, or any railroad whatsoever in said Broad- 
 way, and from breaking or removing the pavements in said 
 street, preparatory to, or for the purpose of laying or estab- 
 lishing any railroad therein, until the further order of this 
 court. And that the defendants show cause at the special 
 term of this court_, to be held at the city hall in the city of 
 New York, on the second Monday of January, 1853, at the 
 opening of the court on that day, or as soon thereafter as 
 counsel can be heard, why this injunction order should not 
 be made permanent." 
 
 There are some considerations connected with this injunc- 
 tion necessary to be here stated. 1st. It not only prevents the 
 mayor, aldermen and commonalty giving the permission to 
 the persons named in the resolution, upon the terms specified 
 therein, and the stipulations attached, but absolutely prevents 
 the mayor, aldermen and commonalty from giving permis- 
 sion to any person or persons, upon any terms, to lay a 
 rail track in Broadway. With this injunction upon them, 
 (if it is legal,) they could not give the permission to the 
 other gentlemen mentioned in these proceedings, who offer 
 such favorable terms to the taxpayers and citizens. Again ; 
 the order to show cause was returnable the second Monday 
 of January, 1853 — which was the ninth day of January — 
 being several days after the expiration of the term of oflSice of 
 the then mayor and common council, and within which they 
 could act on thesubject. The consequence of this injunction, 
 (if legal,) would be to postpone the consideration of the 
 resolution until those who could act upon it, if they desired 
 to do so, were out of ofl&ce, and when the parties appeared to 
 show cause. Although the court might decide that the cor- 
 poration had a perfect right, and that it was their duty, to 
 pass the resolutions, still the court would have no more 
 power to restore the resolution, or to repair the injury caused 
 by the act of their associate, than they have to resuscitate the 
 dead. On the 38th of December, the injunction was served 
 upon the mayot and some of the members of the board of 
 aldermen ; and on the 39th upon other members of both 
 boards of the common council. On the 39th the board of 
 aldermen, and on the 30th the board of assistants, by the 
 
1853.] NJEW YORK. 89 
 
 MUhau m. Sharp. 
 
 votes of a majority of their respective members, passed the 
 resolution, notwithstanding the injunction, which act is the 
 one mentioned in the plaintiff's second point as "illegal and 
 criminal." To prevent any misapprehension, let me state : 
 the superior court and the court of common pleas of the city 
 and county of New York and their respective judges, have 
 precisely the same equity jurisdiction, and the power and 
 right to issue injunctions, that the supreme court of the state 
 and its justices in this district possess. ' As regards the city 
 and county of New York, their equity powers and ours are 
 concurrent. Therefore, although the adjudications of those 
 courts are not authority binding upon this, yet they are 
 always referred to with the greatest respect, and followed, 
 except in cases were we are constrained to differ upon 
 principle. I will now give some extracts from the opin- 
 ion (furnished to us by the counsel for the plaintiffs,) of 
 Judge Duer, delivered in the injunction case, showing what 
 acts the injunction was intended to prohibit, and the acts 
 committed which, in the opinion of the court, constitute the 
 contempt, and the extent of the power claimed by those 
 judges over the legislative action of the common council of 
 the city of New York. Judge Duer states " the injunction 
 order is the same as though it referred to and recited the reso- 
 lution, and by express words had forbidden the common coun- 
 cil to reconsider and adopt it." . Again; "I shall treat the reso- 
 lution as an ordinance, or by-law, and its reconsideration and 
 adoption as, properly, acts of legislation, in the fullest sense in 
 which the term legislation can be justly applied to the acts of 
 a corporate body." Again ; "Every alderman who voted for 
 the resolution, with the intent that it should take effect as 
 a corporate act, had given his assent. Every one of them, 
 therefore, who has thus assented — the conclusion is plain and 
 irresistible — has done the very act that the order of the cou^rt 
 commanded him not to do; and by so doing, has violated its 
 mandate and contemned its authority." Again; " I add that, 
 even upon the supposition that they were bound by the pro- 
 visions of their charter to reconsider the resolution, they were 
 equally bound by the mandate of this court to rescind and 
 reject it when reconsidered, if the order of the court was in 
 truth issued in the exercise of its proper jurisdiction." 
 
90 Ni:W YORK. [Sup. Ot. 
 
 Milhau m. Sharp. 
 
 These extracts show that the superior court claims the 
 jurisdiction to control, by injunction, the legislative action of 
 the common council, and to compel all its members, while in 
 their legislative capacity, and acting upon a legislative matter, 
 to vote according to the directions of a single judge, and 
 against their own deliberate opinion ; and that, should the 
 members of the common council in such matter vote in oppo- 
 sition to the dictation of the judge, such act would be illegal 
 and criminal, and consequently void. The judge, in his 
 opinion, also states : " The injunction commanded the cor- 
 poration and its members to desist absolutely from the per- 
 formance of certain specific acts ; and, if this command could 
 under no circumstances be rightfully addressed by a court of 
 equity to a municipal corporation, the common council and its 
 members, in the just maintenance of their own rights, were 
 bound to disregard it." ^ 
 
 The words which I have italicised, present the question 
 which this court has under consideration, viz : Was the 
 injunction of Judge Campbell in trixth issued in the exercise 
 of his proper jurisdiction ? If it was not issued " in the 
 exercise of proper jurisdiction," then, in the language of 
 Judge Duer, " the common council and its members, in the 
 just maintenance of their own rights, were bound to disre- 
 gard," and their voting in the affirmative was not " an illegal 
 and criminal act, which could confer no right. " This 
 leads to two questions ; 1. What kind of a corporation is 
 that of the city of New York ? 3. What are its powers ? The 
 Mayor, Aldermen and Commonalty of the City of New 
 York are a municipal corporation created for governmental 
 purposes, possessing, however, as incidental thereto, in 
 many respects, the character of a private corporation. This 
 corporation has two separate and distinct series of cor- 
 porate powers, rights, duties and responsibilities : the one, 
 that of a government, of which I will speak hereafter \ the 
 other, that of a private corporation, which I will now con- 
 sider, because it is necessary for the purpose of intelligibly 
 defining the line between its property, liabilities, duties and 
 objects, as a private corporation, and its powers, franchises, 
 rights, jurisdictions and immunities as a government. The 
 
1853.] NJEW YORK. 91 
 
 Milhau «. Sharp. 
 
 charter of the city (City Charter and Kent's Notes, p. H, 
 sec. 2,) grants, ratifies and confirms to the Mayor, Aldermen 
 and Commonalty of the City of New York, " the city hall or 
 state house, with the ground thereto belonging, two market 
 houses, the bridge into the dock, the new burial place, and 
 the aforementioned ferry, with these and every of their rights, 
 members and appurtenances, together with all the profits, 
 benefits and advantages which shall or may accrue and arise 
 at all times hereafter, for dockage or wharfage within the 
 said dock, with all and singular the rents, issues, profits, 
 gains and advantages, which shall or may arise, grow or 
 accrue, by the said city hall and state house, bridge, dock," 
 etc. The same authority, (page 16, sec. S,') grants to the 
 Mayor, Aldermen and Commonalty, etc., "all the vacant land 
 within the city of New York and on Manhattan Island, 
 extending to low water mark," etc., p. JS, " to lay out their 
 grounds and build upon them," etc. The Montgomerie char- 
 ter recites and re-aflBrms the grants of property before men- 
 tioned, and grants vacant lands on both sides of the East 
 river, between high and low water mark, and power to estab- 
 lish as many ferries as they please. Sec. 37, page IJ^, 
 renews these grants, and makes additions to them. All these 
 grants, the mayor, aldermen and commonalty hold as trus- 
 tees, for the benefit of the community at large. As regards 
 this property, the corporation is a private corporation, trus- 
 tees for the citizens ; and in relation to it, may be sued in the 
 same manner as private corporations ; and their agreements 
 in relation to it, their sales and leases of it, may be governed 
 and controlled by the courts, by the same process and in the 
 same manner that our courts deal with and control corporations 
 of banks, insurance companies, and village libraries. Chief 
 Justice Nelson, in the case of Britton vs. The Mayor, etc., 
 of the City of Neio York, '21 How. Pr., 251, says : "The 
 charter of the city of New York confers upon the defendants 
 many powers and privileges that belong to them in common 
 with private companies or individual citizens, which they hold 
 and enjoy in the capacity of a private corporation. Thus they 
 are declared to be able, in law, and capable to sue, and be 
 sued, implead and be impleaded, etc., in all manner of actions. 
 
92 NEW YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 suits, complaints, pleas, causes, etc., in as full and ample a 
 manner as any citizen, etc." The charter also conferred upon 
 them the ferries on both' sides of the East river, and all others 
 then or thereafter to be erected and established all round the 
 island, etc. These grants, and many others that might be 
 enumerated, constitute a large mass of private rights and 
 interests in various descriptions of property, etc., "held and 
 enjoyed by the city in the same way, and in common with any 
 citizen upon whom like property and franchises might have 
 been conferred;" and within the limits of the grant, the 
 defendants may deal with the property, in their management 
 and disposition of the same, in any way that would be lawful 
 for an individual owner ; and any contracts or engagements 
 entered into in the course of such management and disposi- 
 tion, would be as obligatory upon them as upon an individ- 
 ual." In the case of TJie Mayor, Aldermen and Commonalty 
 of the City of New York vs. Bailey, 2 Denio, JfSS, the supreme 
 court of this state held : " That the grant of the legislature, 
 authorizing the city to furnish the city with water by means 
 of the Oroton aqueduct, was the grant of a private franchise, 
 made as well for the private emolument and advantage of the 
 city, as for the public good ; and that the defendants, quoad 
 hoc, were to be regarded as a private company, and to be dealt 
 with accordingly." 
 
 In the Berrian island case, tried in this court, in which 
 Justice Edwards delivered the opinion of the court, sustain- 
 ing the injunction against the corporation, and in the Wash- 
 ington market case, in which the opinion was delivered by 
 Mr. Justice Eoosevelt, sustaining the injunction, the corpora- 
 tion were held to be quoad hoc a private company, and were 
 dealt with accordingly, because in both cases the subject mat- 
 ter of the controversy was the private property of the corpora- 
 tion. The Mayor, Aldermen and Commonalty of the City of 
 New York possess another and very different and more impor- 
 tant power — a governmental power. This power is conferred 
 by the charter, and also by various statutes. They may pass 
 laws for thei government of the people, and enforce obedience 
 to them by fines and penalties. Their control over the streets 
 and highways, their right to do anything in relation to the 
 
1853.] Ni:W YORK. 93 
 
 Milhau vs. Sharp. 
 
 streets, or to order it to be done, or granting permission to others 
 in relation to streets, is embraced in this governmental power. 
 This political governmental power is limited, and subject to 
 the control of the legislative power of the state ; but to the 
 extent of the power delegated to them in their exercise of it, 
 and the immense discretion that is conferred with it, they are 
 as exempt from judicial interference, dictation and control, 
 as is the state government itself ; and for the same political 
 reasons, to keep separate and distinct the three departments 
 of government — legislative, executive and judicial — so that 
 neither shall interfere with, dictate to, or control the other. 
 This separation is necessary, that the people may, through 
 the independence of these departments, be protected against a 
 usurpation of arbitrary power by either. So long as these 
 three departments act independently of each other, liberty to 
 the citizen is a practical existing principle ; but the moment 
 one of them absorbs the other, or as soon as the judiciary can 
 compel the legislative body not to vote upon a question, or to 
 vote in accordance with its dictation, by imprisoning those 
 members who refuse, this dictatorial power becomes the gov- 
 ernment ; and if the citizen does not feel oppression, it is only 
 because there is no immediate reason for its exercise. By the 
 charter of the city, and by statutes of our state legislature, 
 extensive and important governmental powers are given to the 
 Mayor, Aldermen and Commonalty of the City of New York, 
 in their capacity as a municipal corporation. In relation to 
 the exercise of these powers, to the extent delegated, they are 
 subject only to the legislative action of the state, altering, 
 modifying or revoking them, and to the judicial tribunals of 
 the state, acting only in the same manner that the judiciary 
 can act against the ofi&cers of the state and against the laws 
 of the state. If the legislature of the state is about to enact 
 a law palpably unconstitutional, the judiciary cannot legally 
 issue an injunction to prevent members voting for the law, or 
 to compel them to vote against it. 
 
 After the bill has received all the forms to make it a law, 
 and is attempted to be used as a law, the judiciary, by 
 injunction, may in a proper case, stay its application, upon 
 the ground of its unconstitutionality. So, also, if the com- 
 
94 Ni:W YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 mon council are about passing a law or ordinance that is 
 either unconstitutional or beyond the power delegated to 
 them by the charter or the laws of the state, the judiciary 
 cannot interfere with the action of the members by injunction. 
 But after an ordinance has received all the sanction that the 
 common council can give to it, then the courts, either by 
 injunction or by other proceedings, as may be required in the 
 particular case, may declare the ordinance to be void by reason 
 of the want of authority to enact it. If, however, the legisla- 
 ture of the state -have the constitutional power upon the 
 subject, and t]ie mayor, aldermen and commonalty have the 
 charter power to pass the law or ordinance, the entire dis- 
 cretion as to the details of the law or ordinance is vested in 
 the legislature or in the common council, and no judge 
 or judicial tribunal has a right to interfere because they may 
 be of opinion that such discretion was unsound, indiscreet, 
 erroneous, or even corrupt. If, courts were permitted to 
 interfere with the discretion of the law-making power, then 
 it would be at the discretion of the judges, and not of the 
 legislators that made the laws ; for no law could exist, unless it 
 squared precisely with judicial ideas of what was discreet and 
 proper. It will be perceived upon an examination of the 
 charter, and of the statutes in relation to them, that the 
 streets are under the control of the mayor, aldermen and com- 
 monalty, as a government, (unlike the ferries, the city hall, 
 the lands, piers, docks and slips, etc., which belong to them 
 as a private corporation. ) The streets are expressly declared to 
 'be "for the use and service of the said mayor, aldermen and 
 commonalty of the said city, and of the inhabitants of Man- 
 hattan Island aforesaid, and travelers there." City Charter 
 and Kent's Notes, p. H., 15. Therefore, giving the corpora- 
 tion the power to lay out new streets, and to alter and repair 
 streets, makes them the judges of what is necessary and con- 
 venient for all inhabitants and travelers there. Chancellor 
 Kent in his notes upon the charter, page 251, note 31, states : 
 " The 16th section gives the common council power to estab- 
 lish, direct, lay out, alter, repair and amend streets, lanes, 
 alleys, highways, water courses and bridges, throughout the 
 city and island. This is a grant of a public nature, without 
 
1853.1 NEW YORK. 95 
 
 Milhau m. Sharp. 
 
 any private interest, or property, of revenue connected with 
 it, and it has always continued with the common council, 
 under free and active exercise, subject, nevertheless, at all 
 times, to legislative interference and direction." 
 
 Chief Justice Nelson, in his opinion in Britton's case, 21 
 How. Pr., 251, before referred to, after specifying a great 
 number of the rights and privileges held by the corporation, 
 as a private corporation, goes on to say : " These rights and 
 privileges thus granted are altogether distinct and different 
 from those with which the defendants are invested under the 
 charter as a municipal body. The latter class comprises a 
 large body of political powers, granted solely for public objects 
 and purposes, with which the private interest and estate of the 
 defendants, strictly speaking, have no concern. These powers 
 are conferred for the benefit of the city as a community, and 
 the end sought to be attained, its good government. On look- 
 ing into the charter, it will be found to embrace an extensive 
 grant of political power, legislative, executive and judicial, 
 which, so far as granted, represents these great departments 
 of the state government, and which are lodged with the 
 defendants in their capacity as a municipal corporation. 
 The legislative power is conferred upon the common council. 
 That body is empowered ' to frame, constitute, ordain, make 
 and establish, from time to time, all such laws, statutes, 
 rights, ordinances and constitutions, which to them, or the 
 greater part of them, shall seem to be good, useful or neces- 
 sary for the good rule and government of the body corporate. ■" 
 Power is also given to inflict penalties for the violation of any 
 ordinance or by-laws passed by this body." 
 
 The matter which was being considered by Justice Nel- 
 son was a contract which a previous common council had 
 made, and which a new common council had repealed. The 
 chief justice continued : "Now, it certainly requires no 
 argument to prove that the powers of the defendants brought 
 into exercise in forming and entering into the covenant and 
 stipulation in question providing for cleaning the streets, 
 public wharves, and piers of the city, and sweeping the same, 
 belonged to, and were part and parcel of its legislative and 
 executive authority, wholly independent and disconnected 
 
96 N:EW YORK. [Sup. Ot. 
 
 Milhau ■vs. Sharp. 
 
 from the particular class or body of powers having reference 
 to their interest and affairs as a private company." 
 
 It is therefore clear that the common council were acting as 
 a political body, upon a subject purely governmental, where 
 their own discretion was paramount, in the exercise of which, 
 no Judicial power had the legal right to interfere, nor any 
 power except the legislature of the state, and that alone by an 
 act repealing the power conferred upon the common council, 
 or repealing or altering the particular resolution or ordi- 
 nance. My conclusion, therefore, is, that no court could 
 legally interfere with the action of the members of the 
 common council in casting their votes; that Judge Campbell 
 had no jurisdiction to grant the injunction; that the members 
 of the common council were not bound to obey it ; and 
 that their disobedience of it forms no ground for the inter- 
 ference of this court. Having thus disposed of this part of the 
 case, the question then recurs, can this court interfere with 
 the grantees in the execution of this grant ? The solution of 
 that question appears to me to be involved in what I have 
 already stated; and my opinion is, that the form of the grant, 
 and its terms and conditions, were within the discretion of 
 the common council. The decisions are many and uniform 
 that the corporation has a right, as a government, to lay rails 
 in the streets of the city. This being established, one would 
 suppose there could be no question that, as a legislative body, 
 they have full power to exercise their own discretion in per- 
 forming an act admitted to be within their power. My brethren 
 think that they can enter into the question, whether the power 
 has been wisely exercised or not. I think that it is not for us to 
 decide ; that the law has placed the decision of that whole 
 matter with the common council, and not with the court. 
 There may be many considerations determining the decision 
 of the common council, that are not proper subjects of inquiry 
 here. That, I think, is the answer to the whole argument 
 for this injunction. It is said that the great difference 
 between the amount received from these grantees, and the 
 amount offered by others, is such as to give the courts a right 
 to interfere. I do not think so. I do not think that that 
 difference, whether great or little, gives us jurisdiction. But 
 I cannot omit saying that the streets, not being private prop- 
 
1853.] iV^TF YORK. 97 
 
 Milhau «s. Sharp. 
 
 erty of the corporation, the corporation could not receive 
 money for the use of them. They could make no contract in 
 relation to them that could not be repealed by themselves or 
 their successors ; and as the streets are public property, they 
 could receive no sum for their use not authorized by acts of 
 the legislature. By the charter and acts of the legislature, 
 the corporation are authorized to license hackney coaches and 
 other vehicles carrying persons for hire, and to charge for the 
 
 license of each such vehicle, not exceeding . This is a 
 
 governmental power, to enable the authorities to have control 
 over those to whom citizens intrust their persons and prop- 
 erty. The corporation have no power or authority to receive 
 more than the legislature of the state has by law authorized. 
 In granting licenses to omnibuses, the mayor acts as an 
 executive ofl&cer of the city. Should he, in the exercise of his 
 discretion as such executive, determine, (which he certainly 
 has the right to do, and which right has been frequently exer- 
 cised,) to license but one line of omnibuses for one street, 
 and should charge that line the, maximum price for each vehi- 
 cle, and another applicant should then offer three times the 
 amount for. a license to him, with an obligation to put on as 
 many omnibuses as the person to whom the mayor was about 
 giving the license, would it be the duty of the mayor to accept 
 that offer, and could the courts compel him to do so ? It does 
 not require much argument to show the absurdity of such a 
 position. I cannot view this transaction of the common coun- 
 cil in any other light than I would view the act of the mayor 
 in respect to such omnibuses. I might illustrate this by a 
 variety of other examples, but I have said enough to explain 
 the positions upon which I think this cause rests. 
 
 My conclusions upon the whole matter, are : first, that the 
 injunction out of the superior court was without jurisdiction, 
 and void ; second, that the common council has ample . 
 authority to authorize the railway in question ; and third, 
 that this court cannot supervise and control the discretion of 
 the common council in respept to the terms and conditions on 
 which, and the persons in whose favor, that authority should 
 be exercised. The injunction should therefore be refused. . 
 
 Injunction granted according to the prayer of the com- 
 plaint. 7 
 
98 N:EW YORK. [Sup. Ot. 
 
 Stuyvesant i)S. Pearsall. 
 
 STUYVESANT vs. PEAKSALL. 
 
 GENBEAL TERM. 
 
 15 Ba/rb., U4- 
 
 1. The complaint in this case alleged that the common council of the 
 city of New York, had granted to the defendants the permission to con- 
 struct a railroad, commencing on the Second avenue and thence running 
 through other avenues and streets of said city ; that the grant was of 
 great value ; that it was obtained by the defendants without their pay- 
 ing anything therefor to the city ; that if the same had been offered for 
 sale, or if the railroad had been made by the corporation and operated 
 for the benefit of the city, such sale, or operation by the city would have 
 produced large profits and returns to the corporation. These allegations 
 were not denied. It was admitted that the plaintiffs were property 
 holders and taxpayers in the city to a large amount. 
 
 Seld, that the corporation in making the grant in question had been 
 guilty of such a breach of trust, as called for the interposition of this 
 court, and that an injunction should be issued restraining defendants 
 from constructing the road. 
 
 Seld, also, that the exclusive privilege of laying a rail track and run- 
 ning cars, and receiving pecuniary emolument therefrom, like the fran- 
 chise of a bridge or ferry, or other incorporeal hereditament, is as much 
 a subject of property as the park or the city hall, or the moneyed con- 
 tents of the city treasury. Pe?- Roosevelt, J. 
 
 Held, further, that to grant such a privilege to a few favored individu- 
 als, without any public equivalent, was a gross breach of trust, and 
 subject, as such to the jurisdiction of the supreme court, sitting as a 
 court of equity. Per Eoosbvelt, J. 
 
 Held, further, that it was the duty of the court on the complaint of a 
 taxpayer, to restrain the making of such a grant, by injunction, and 
 where already made, to declare it null and void. Per Roosevelt, J. 
 
 This was a motion by plaintiffs for an injunction to restrain 
 defendants, who, under an agreement with the common coun- 
 cil, were about to dig up First and Second avenues, and 
 Twenty-third, Allen, Grand, Chatham, Oliver, South, Roose- 
 velt, Front and Christie streets, and Peck slip and the Bow- 
 ery, in the city of New York, and lay railroad tracks therein. 
 The allegations of the complaint are substantially set forth in 
 the opinion of Edwards, P. J. The facts were very much 
 the same as those in the case of Milhau et al. vs. Sharp et al, 
 15 Barh., 198; s. c. 1 Am. St.-Ry. Dec, 58, where a similar 
 
1853.] NEW YORK. 99 
 
 Stuyvesant m. Pearsall. 
 
 application, in respect to the Broadway Eailroad, was made 
 and granted. 
 
 Mr. Wm. Curtis Noyes, for the plaintiffs. 
 
 Edwards, P. J. — The complaint in this case states that the 
 mayor, aldermen and commonalty of the city of New York 
 have granted to the defendants the permission to construct 
 a railroad, commencing on the Second ayemie and thence 
 running through other avenues and streets of said city. 
 It further alleges that this grant was and is of great value ; 
 that it was obtained by the defendants without their paying 
 anything therefor to the city; and that if the same had 
 been offered for sale, or if the railroad had been made by the 
 corporation, and maintained and used for the benefit of 
 the city, it would by the sale of the right to construct it, or 
 by the income of the road, have produced large profits and 
 returns to the corporation, to be expended and applied in the 
 support and maintenance of the city government, and to the 
 extent of many thousands of dollars. These allegations are 
 not denied and for the purposes of the present motion they 
 must be assumed to be true. It is also an admitted fact 
 that the plaintiffs are property-holders and taxpayers in the 
 city to a large amount. 
 
 Upon this state of facts, I am of opinion for the reasons 
 which have been stated in the case of Milhau et al. vs. Sharp 
 et ah, 15 Barl., 19S; s. c. 1 Am. St.-Ry. Dec, 58, that the 
 corporation in making the grant in question, has been guilty 
 of such a breach of trust as calls for the interposition of this 
 court, and that an injunction should be issued against the 
 defendants in pursuance of the prayer of the complaint. 
 
 EoosBVELT, J. — The allegation of the great pecuniary value 
 of the grant of the railroad in question, not being denied, 
 is, in effect,, admitted to be true. No corporation, whether 
 moneyed or municipal having stockholders or constitutents, 
 has a right, without their consent, to give away the property 
 intrusted to its care. The exclusive privilege of laying a rail 
 track and running cars, and receiving pecuniary emolument 
 therefrom, like the franchise of a bridge or ferry, or other 
 
100 NEW YORK. [Com. PI. 
 
 Altreuter m. The Hudson River R. R. Co. 
 
 incorporeal hereditament, is as much a subject of property as 
 the park or city hall, or the moneyed contents of the city 
 treasury. To grant such a privilege to a few favored individu- 
 als, without any public equivalent, is in principle the same 
 as a resolution or ordinance of the common council direct- 
 ing a division of the funds of the city, raised by taxation, 
 among the members themselves. Such acts, whether done or 
 threatened, are all alike gross breaches of trust, and sub- 
 ject as such, to the jurisdiction of the supreme court, 
 sitting as a court of equity. It is the duty of the court, 
 in such a case, as in the case of any other trust, on the com- 
 plaint of injured parties, who, in the present instance, are 
 the oppressed taxpayers, to restrain the commission of such 
 acts, by injunction, and where the grants are already made, 
 to declare them null and void. 
 
 If it be true, (and such is admitted to be the fact,) that the 
 franchise in question was of the value of, and might have been 
 disposed of for "many thousands dollars,'' it follows as an 
 inevitable consequence, that by giving it away the common 
 council were in effect, taxing their constituents unlawfully, 
 to the extent of as many thousands. 
 
 MoKKis, J., dissented. 
 
 Injunction granted. 
 
 WILLIAM ALTREUTER vs. THE HUDSON RIVER 
 RAILROAD COMPANY. 
 
 SENERAI, TERM. 
 
 2 N. T. Common Pleas, {2 E. D. Smith), 151. 
 
 In an action by the owner of a horse and cart for damages for injuries 
 caused by a collision with a car of a railroad company, the justice 
 charged the jury: " That if the plaintiff was, in their opinion, doing his 
 best to get out of the defendants' way, it was all that could be required 
 of him; that if he was so doing, the defendants were bound, at their 
 peril, to stop their cars to avoid collision; and if they had not sufficient 
 power to do so, or if they omitted to stop their cars, they were responsi- 
 ble for the consequences." 
 
1853.] NUW YORK. 101 
 
 Altreuter m. The Hudson Eiver E. R. Co. 
 
 Held, that the charge was palpably erroneous and unjust, it being in 
 effect, that, if neither party was in fault, the plaintiff was entitled to 
 recover. 
 
 Held, also, that the question, whether the defendants were guilty of 
 negligence, was as material as whether the plaintiff was, and should 
 have been made the primary question, instead of reversing the order and 
 telling the jury that, if the plaintlfE was rwt guilty of negligence, they 
 must assume that the defendants were. 
 
 The justice, when requested, refused to charge that the defendants 
 had a right to travel on the left hand track of the road. 
 
 Held, error. 
 
 This was an appeal from a judgment of the Marine Court, 
 against the Hudson Eiver Eailroad Company, for damages for 
 injuries to the plaintiff's horse and cart occasioned by a 
 collision with one of the defendants' cars in the city of New 
 York. 
 
 The case was tried before a jury; the judge who sat at the 
 trial among other things charged the jury as follows : " That 
 if the plaintifE was, in the jury's opinion, doing his best to 
 get out of the defendants' way, it was all that could be 
 required of him; that if he was so doing, the defendants were 
 bound, at their 'peril, to stop their cars to avoid a collision; 
 and if they had not sufficient power to do so, or if they 
 omitted to stop their cars, they were responsible for the 
 consequences." 
 
 It appeared from the return that no exception to this part 
 of the charge had been taken, but its propriety and bearing on 
 the case were discussed on the argument of the appeal. 
 
 It was shown by the evidence that the car was proceeding 
 rapidly down Hudson street, on the easterly or left hand 
 track, when it came in contact with the plaintiff's cart, which 
 had been prevented, by a heap of snow, from avoiding the 
 collision. The horse was, thrown down and dragged "nearly 
 two blocks." 
 
 It was contended on the part of the plaintiff that " the law 
 of the road," {1 R. 8., Sd Ed., part 1, chap. 20, title IS, sec. 
 l,p. 873,) was applicable to this case, and that the defendants' 
 cars proceeding on the left hand track was unlawful. The 
 court was requested to charge that the defendants had a right 
 
102 Ni:W YORK. [Com. PI. 
 
 ^Itreuter vs. The Hudson River R. R. Co. 
 
 to travel on the left hand track, which was refused and an 
 exception was noted. 
 
 Mr. William Fullerton, for the appellants. 
 Mr. J. J. Radcliffe and Mr. David P- Whedoii, for the 
 respondent. 
 
 By the Court: Woodruff, J. — The charge of the judge 
 in this case appears to me so palpably erroneous, and so 
 unjust in its influence, or at least in its tendency, that — 
 although I think the evidence warranted a recovery under a 
 correct instruction from the court — the judgment ought not 
 to be sustained. The charge was, in effect, that if the plaint- 
 iff did all he could to avoid the accident, he was entitled to 
 recover at all events. That although the defendants did 
 everything which it was within human ability and skill to do, 
 they are nevertheless liable. That is to say, if neither party 
 was in fault, the plaintiff is entitled to recover. 
 
 Even if the defendants " had not suff dent power to stop," 
 they were bound to stop at their peril. 
 
 The question whether the defendants were guilty of negli- 
 gence was as material as whether the plaintiff was, and that 
 should have been made the primary question, instead of 
 reversing the order and telling the jury that if the plaintiff 
 was not guilty of negligence, they must assume that the 
 defendants were. 
 
 Suppose the case were reversed and the collision had 
 resulted in an injury to the defendants' car and horses, and 
 they had sued. Would it have been proper to charge the 
 jury, that if the defendants did their best to avoid the collision, 
 the plaintiff was bound to get his cart off the track at his 
 peril.? 
 
 It is true that there was no exception in form taken to 
 this part of the charge, but it seems to me we ought not 
 to suffer such an instruction to pass, if there are any grounds 
 upon which we can reverse consistently with established 
 precedent. 
 
 And this I think is found in the refusal of the judge to 
 charge the jury that the defendants had a right to travel 
 on the track on the left hand side of the road. 
 
1853.] CALIFORNIA. 103 
 
 Wilson m. Cunningham. 
 
 By the justice's amended return, it appears that he did, 
 when requested, refuse so to charge, and that the defendants' 
 counsel excepted. 
 
 The jury were, therefore, left to infer from such refusal, 
 that the running on the left hand track was itself a fault, on 
 the part of the defendants, and subjected them to damages. 
 
 I think the judgment must be reversed. 
 
 Judgment reversed. 
 
 WILSON, Kespondent, vs. CUNNINGHAM AND 
 POTTBE, Appellants. 
 
 3 Oal., Ul- 
 
 The plaintiff brought this action for damages for injurieg to himself 
 and his horse and cart, received in a collision with the cars owned by 
 the defendants, and operated by machinery through certain streets in 
 the city of San Francisco, under a license from the city council. 
 
 Held,, that where the streets of a city are diverted from their ordinary 
 and legitimate uses, by special license, to a private person, for his own 
 benefit, and for the pursuit of a business which involves constant risk 
 and danger, such person is bound, in the exercise of such right, to use 
 extraordinary care. 
 
 On appeal from the Fourth Judicial District. 
 
 The complaint stated that the defendants were engaged in 
 running cars by machinery along Battery street and across 
 Bush street in the city of Francisco, upon a railroad, and for 
 their own purposes, and that plaintiff was passing along said 
 Bush street and across Battery street with a horse and wagon 
 and divers goods, etc., when the defendants, with their said 
 cars carelessly and negligently came into collision with the 
 said plaintiff and his wagon, etc., at the intersection of Bush 
 and Battery street aforesaid, with such force and violence that 
 the horse of plaintiff was killed, and his wagon and goods 
 broken and wholly destroyed and lost, and the said plaintiff 
 severely bruised and injured in his body and limbs, to his 
 damage $10,000, and prays judgment, etc. 
 
 The complaint was demurred to by the defendants, for insuf- 
 ficiency of cause of action, and they severally answered, deny- 
 ing all negligence, carelessness, etc., and averred that plaintiff 
 
104 CALIFORNIA. [Sup. Ot. 
 
 Wilson m. Cunningliam. 
 
 was driving furiously and carelessly along Bush street, and 
 ran his wagon, etc., against the cars, without any neglect, 
 etc., on the part of those in charge of the cars, and that the 
 collision was occasioned by the plaintiff's own carelessness, 
 etc., and denied any injury to the plaintiff. 
 
 The case was tried by a jury, who rendered a verdict for the 
 plaintiff for $959.50, and the court ordered judgment accord- 
 ingly. 
 
 At the close of the evidence the court charged the jury as 
 follows : 
 
 " That the defendants had a right to run their cars on the 
 track in question under the state of the pleadings ; that the 
 plaintiff, in order to recover, must prove, not only that the 
 injury was not caused by his own negligence, but that it was 
 caused by the negligence of the defendants ; that the question 
 of negligence was a question of fact for the jury ; that the 
 degree of care required of the defendants was in proportion to 
 the danger incident to the business they were engaged in ; 
 that the running of cars on the highway being an extraordi- 
 nary way of using the public streets, and attended with extraor- 
 dinary danger to passengers, the defendants were bound to 
 use the utmost care in order to prevent injury to passengers ; 
 and it was for the jury to determine from the evidence whether 
 the defendants had used all proper care, etc., in view of the 
 extraordinary nature of the business, and the extraordinary 
 danger incident to it." The defendants excepted to the 
 charge. 
 
 After verdict was rendered, the defendants made a motion 
 for a new trial, which was denied, and they appealed to this 
 court. 
 
 Ko question was raised by the pleadings as to the right of 
 the defendants to run the cars ; and the plaintiff admitted, 
 that, previous to the time of the accident, the defendants 
 obtained the right to lay the railroad track, and run the cars, 
 by license from the city council. 
 
 Messrs. Hallach, Peachy and Billings, for appellants. 
 Mr. Lockwood, for respondent. 
 
 Heydenfeldt, J., delivered the opinion of the court. 
 
1853.] NEW YORK. 105 
 
 Stephenson vs. J^ew York & Harlem B. R. Co. 
 
 In the case of railroads which are permanently established 
 by law as a mode of conveyance, the rule is correctly stated by 
 the respondent's counsel, that the conductors are only required 
 to use the ordinary care pertaining to that description of busi- 
 ness. But no reason exists for extending such a rule to the 
 present case. Where the streets of a city, forming, as usual, 
 thronged thoroughfares, are diverted from their ordinary and 
 legitimate uses, by special license, to a private person, for his 
 own benefit, and for the pursuit of a business which involves 
 constant risk and danger, no other rule is consistent with the 
 safety and protection of the commanity, than that which 
 demands extraordinary care. 
 
 AVells, J., concurred. 
 
 Judgment aflQrmed. 
 
 STEPHENSON vs. THE NEW YOEK AND HARLEM 
 EAILEOAD COMPANY. 
 
 GENERAI, TERM. 
 
 9 N. Y. Superior Court {B Duer,) SJfl. 
 
 Plaintiff, a physician at the request of defendants' superintend- 
 ent, rendered service to a child that had been run over by one of 
 the defendants' cars and brought this action to recover for such 
 services. The superintendent testified that he had a general supervisory 
 control over the whole line of the road, everything connected with the 
 running of the road being under his supervision and control ; that 
 he paid money to drivers, conductors and other persons employed 
 by him, as superintendent, but that he had no direction over the 
 treasury. 
 
 Held, that this description of the superintendent's powers did not 
 justify the inference that he was authorized, by his office, to arrange 
 and liquidate claims made against the company for the negligence 
 of their servants in running their trains, or to contract with third persons, 
 as their agent, to repair or remedy the consequences of such negligence, 
 and Held, therefore that he had no authority to bind the defendants by 
 the employment of the plaintiff. 
 
 Held, further, that there being no other proof to charge the defend- 
 ants, the plaintiff was properly nonsuited. 
 
.106 N:EW YOEK. [KY.Sup'rOt. 
 
 Stephenson vs. New York & Harlem R. R. Co. 
 
 This was an appeal, by plaintiff, from a judgment dismiss- 
 ing the complaint. 
 
 The action was brought by plaintiff to recover the amount 
 of a bill for services rendered as a physician at the request, as 
 alleged, of the defendants. 
 
 The complaint stated, that on the 9th day of June, 1849, 
 the said defendants, in the city of New York, by their agent, 
 Mr. Sloat, employed the plaintiff in his professional capacity 
 as a surgeon and physician, to attend to one Peter Peteniat, 
 a child, who had, on the said 9th day of June, 1849, received 
 certain severe physical wounds and injuries, in consequence of 
 having been run over, or in some other way injured by the 
 horses, or by a certain car belonging to said defendants, and to 
 amputate the leg of the said child, and otherwise to heal, cure 
 and restore the said child ; whereupon this plaintiff, on the 
 express engagement of the said Sloat, in behalf of the said 
 defendants, that they would pay him for the same, did, in 
 his said capacity of surgeon and physician, on the said 9th 
 day of June, 1849, attend to said child, and amputate his 
 leg ; and did, from the said 9th day of June, 1849, to the 
 10th day of August, 1849, attend to said child, and endeavor 
 to heal, cure and restore him, and did find, provide for, 
 and administer to said child divers medicines, remedies, 
 and other necessary things in the healing and curing of said 
 child ; for which attendance and cure of the said child, and 
 the medicines, remedies and other necessaries so provided by 
 this plaintiff, at the request and on the behalf of the said defend- 
 ants, the said defendants are justly indebted to this plaintiff 
 in the sum of 1227.50, for which sum judgment was demanded 
 with interest and costs. 
 
 All the material allegations were denied by the answer, and 
 it denied, specially, that Sloat had any authority from the 
 defendants to employ the plaintiff. 
 
 On February 5, 1851, the action was tried before Masost, J., 
 and a jury. 
 
 The plaintiff proved that in the month of June, 1849, a 
 railroad car belonging to defendants had run over and severely 
 injured the child mentioned in the complaint, and that he had 
 attended the child, as a physician and surgeon, and performed 
 
1853.] N:EW YOBK. 107 
 
 Stephenson us. New York & Harlem R. R. Co. 
 
 the services as alleged in, the complaint. A witness testified 
 that Sloat, who represented himself to be an agent of the 
 defendants, said, that "he wished the child to have a first 
 rate physician, and would see that it should all be right." 
 Another witness testified, that Sloat told him (the witness, ) 
 to " have the best medical attendance for the child, and that 
 the company would be responsible for the payment ;" and 
 that Sloat made afterwards, through an interpreter, the same 
 statement to the child's father. The same facts were testified 
 to, substantially, by a third witness, who also swore that the 
 plaintiff had been employed by the father. No proof was 
 given that Sloat had communicated directly with the plaintiff 
 or that the plaintiff had any knowledge of Sloat's assurances. 
 
 Sloat was then called as a witness for the plaintiff and tes- 
 tified as follows : 
 
 " I am one of the officers of the Harlem Kailroad Company, 
 and have been in the employ of the company as such for 
 nearly three years. The title of my office is superintendent. 
 I have a general supervisory control over the whole line of the 
 railroad from New York to Dover Plains. The advertise- 
 ments in the newspapers, with regard to the starting of the 
 cars, their stoppage, times of arrival and departure, and gen- 
 eral arrangements, are all signed by me, ' M. Sloat, Superin- 
 tendent ;' the large placards, giving these particulars, relative 
 to the motive power, posted up in the cars, and at the station- 
 houses along the road, are also signed in the same manner ; 
 everything connected with the running of the road is under 
 my supervision and control. I wish to say that I have no 
 direction over the treasury. I go up. and down on the road, 
 between the city hall and Dover Plains, very often, in the 
 discharge of my duties, as superintendent. I am on the 
 track in the discharge of my duties more or less every day. 
 My office is at the corner of Fourth avenue and Twenty- 
 seventh street. I do not go up and down the track at any stated 
 times, but as my duties call me, sometimes a greater distance, 
 sometimes a less. I have been in the habit of going up and 
 down as superintendent, between here and Dover Plains, 
 during the last three years. I suppose I am pretty well known 
 along the line, as superintendent. I pay money to drivers. 
 
I 
 108 N:EW YORK. [N.Y. Sup'r Ot. 
 
 Stephenson vs. New York & Harlem R R. Co. 
 
 conductors, and other persons employed by me, for the com- 
 pany, connected with my business, as superintendent." 
 
 On cross-examination, he said : " I have no share in the 
 direction of the company's affairs." 
 
 The plaintiff's counsel then rested, and the counsel for the 
 defendants made a motion for a nonsuit upon these grounds : 
 
 I. That there was not sufficient evidence to go to the Jury, 
 that the superintendent, Sloat, was authorized by the defend- 
 ants, as their agent, to employ the plaintiff for the services 
 performed by him. 
 
 II. That there was not sufficient evidence to go to the jury, 
 that the plaintiff had been employed by the said Sloat. 
 
 The court granted the motion upon the grounds stated and 
 directed a nonsuit to be entered against the said plaintiff, 
 and the counsel for the plaintiff then and there excepted to 
 such ruling and decision. 
 
 Mr. W. A. Butter, for plaintiff and appellant. 
 Mr. C. W. Sandford, for defendants. 
 
 By the Court : Boswoeth, J. — At the conclusion of the 
 testimony a nonsuit was moved on two grounds. The case 
 states, the judge "ruled in favor of the grounds taken by the 
 counsel for said defendants, and directed a nonsuit to be 
 entered against the plaintiff, to which ruling and decision 
 the counsel for the plaintiff then and there excepted." 
 
 If either ground was sufficient to justify the- nonsuit, the 
 judgment must be affirmed. 
 
 A nonsuit was moved on the ground, 1st— "That there 
 was not sufficient evidence to go to the jury, that the superin- 
 tendent, Sloat, was authorized by the defendants, as their 
 agent, to employ the plaintiff for the services performed by 
 him." 
 
 The answer denies that the defendants ever did, at any 
 time, authorize the said Sloat to employ any person or per- 
 sons, as physician, or otherwise, to render services to said 
 Peter Peteniat, as alleged in said complaint. 
 
 The title of the office held by Sloat is "Superintendent." 
 The only evidence of the nature and extent of his powers 
 
1853.] NEW YOBK. 109 
 
 Stephenson m. New York & Harlem R. R. Co. 
 
 is such as the title of his office implies, and that furnished 
 by his own testimony. There is no evidence that he ever 
 made any other contract of a like character. 
 
 He testified that everything connected " with the running 
 of the road " was under his supervision and control. That 
 he had no direction over the treasury, and had no share in 
 the direction of the company's affairs. He pays money to 
 drivers, conductors, and other persons employed by him 
 for the company, connected with his business as superin- 
 tendent. 
 
 The only inference deducible from his description of his 
 powers is, that they relate solely to making provision that 
 trains are run as prescribed by the company, that means and 
 men are supplied for the purpose, and other things are pro- 
 vided, which are essential or proper to effectuate this general 
 result. His description of his powers, or of the business 
 which he transacts, does not justify the inference that he 
 is authorized, by his office, to arrange and liquidate claims 
 made against the company for the negligence of its servants 
 in running its trains, or to contract with third persons, as 
 its agent, to repair or remedy the consequences of such negli- 
 gence. 
 
 There is nothing in the evidence to justify the application- 
 of the principle that whether authorized or not, yet the plaint- 
 iff had a right to infer and act on the inference, that judged 
 by his own acts and those of Ms principal, he possessed such 
 authority. 
 
 This case differs, in its essential facts, from that of Perkins 
 vs. Washington Ins. Co., 4 Cowen, 645. In this case, there is 
 no evidence that the superintendent was ever authorized to 
 employ, as agent of the com'pany, in any event, or upon any 
 contingency, a physician to attend upon persons injured by the 
 running of the company's cars, or that they ever ratified, or 
 knew of any such contract made by him. 
 
 In Perkins vs. The Washington Ins. Co., Russell, who adver- 
 tised himself as the agent of the company for the city of Savan- 
 nah, was authorized to agree to make insurances, to receive and 
 remit the premiums, and if the company actually received the 
 money, and the rates charged were such as they had prescribed. 
 
no JSf^W YOBK. [KY. Sup'r Ot. 
 
 Stephenson iis. New York & Harlem R. R. Co. 
 
 and the terms of the agreement corresponded with their regu- 
 lations, they agreed to furnish a policy which should be opera- 
 tive from the time of payment of the premium to Russell. 
 Prior to the transaction between himself and Perkins, he had 
 agreed to insure for a number of individuals, had received the 
 premiums and transmitted them to the defendants, and in 
 every instance except one, the company had issued policies 
 bearing date at the time the receipt was given by Bussell for 
 the insurance. Perkins had paid to Russell the highest rate 
 of insurance, had tendered the amount to the company, and 
 there was no ground on which they could exempt themselves 
 from giving a policy, except the arbitrary one, that they did 
 not choose to do so. 
 
 In Liglitiody vs. The North American Insurance Company, 
 23 Wend., 18, Hayner was expressly authorized to insure. 
 He was furnished with blank policies executed by the officers 
 of the company, ready to be delivered to any one who might 
 wish to contract, after his name, the subject insured, the 
 extent of the risk, and the date of the transaction, had been 
 inserted in the contract. As to all persons, ignorant that 
 his appointment restricted him in the exercise of his agency 
 to a specific locality, he was a general agent, with unlimited 
 authority. The plaintifE had no notice that he was restricted 
 in the exercise of his powers to a defined territory. 
 
 In the case at bar, there is no evidence that Sloat was ever 
 authorized to make on any contingency, such a contract as 
 the plaintiff alleges was made with him, or that, with the 
 exception of this instance, he ever made such a contract, or 
 represented himself authorized to make one of such a char- 
 acter. 
 
 It is urged that the emergency of the case and the benefit 
 resulting to the defendants from the employment, justified 
 the act of Sloat in employing the plaintiff, and that having 
 been done in good faith it is binding on the defendants. 
 
 We cannot assent to this proposition. No emergency arose, 
 which but for this employment would have interrupted or 
 prevented the running of defendants' cars. If the injury was 
 not caused by the negligence of its servants, contracting to 
 pay for expenses to which they could not be subjected by law. 
 
1854.J N:EW YORK. Ill 
 
 Milhau m. Sharp. 
 
 would be no benefit to the company. If caused by such 
 negligence this employment would not exonerate them from 
 any liability, which would otherwise have attached. The 
 principle sought to be invoked has no application to the facts 
 oi this case. 
 
 We are of the opinion, that the nonsuit was properly 
 granted on the first ground on which it was mOved, and that 
 the judgment appealed from should be affirmed. 
 
 Judgment affirmed. 
 
 JOHN MILHAU and others, vs. JACOB 8HAEP 
 and others. * 
 
 SPSCIi.1. TEBM. 
 
 17 Barb., 435, s. c. 9 Row. Pr., 102. 
 
 By the Dongan charter the corporation of the city of New York was 
 invested with full power and authority over and concerning the streets 
 of the city. This power has never been withdrawn or essentially 
 changed. The corporation yet has the exclusive right to control and 
 regulate the use of the streets in the city. In this respect, it is endowed 
 with legislative sovereignty ; and the exercise of 'that sovereignty has 
 no limit, so long as it is within the obiects and trusts for which the 
 power is conferred. 
 
 An ordinance regulating a street is a legislative act, entirely beyond 
 the control of the judicial power of the state. 
 
 But a resolution of the common council granting authority and 
 license to a number of individuals designated as the associates of the 
 Broadway Eailroad, to lay tracks for a railway in Broadway and to run 
 cars and carry passengers, etc., upon certain conditions and stipula- 
 tions, and conferring privileges exclusive in their nature and designed 
 to be perpetual in their duration, is not a legislative act, regulating the 
 use of the street, but is a grant of the use itself, to the extent specified 
 in the resolution, and void. 
 
 Because in its essential features it is a contract. The corporation for 
 what they deem an adequate consideration assumes to surrender a por- 
 tion of their municipal authority and in legal effect agrees with the 
 defendants that so far as they may have occasion to use Broadway for 
 the purpose of constructing and operating their railroad, the right to 
 regulate and control the use of the street shall not be exercised. 
 
 The powers of a municipal corporation may be surrendered but only 
 by authority of the legislature. 
 
 ♦Affirmed in 2S Bar6., «S; s. c. 1 Am,. 8t.-By. Dec., 3». 
 
112 Ni:W YORK. [Sup. Ot. 
 
 Milhau vs. Sharp. 
 
 Although the legislature has declared that the corporation shall have 
 the power and authority from time to time, to regulate the rates of fare 
 to be charged for the carriage of persons, the corporation has no power 
 to stipulate in a resolution passed by them, that the power shall never 
 be exercised in respect to the carriages to be employed on a railroad, 
 authorized to be constructed by such resolution, but that such grantees 
 may continue to demand a certain specified sum, as that would be 
 invading the legislative power of their successors. 
 
 Where an act is clearly illegal, and the necessary effect of such act is 
 to injure the property of anotlier, the court is warranted in restraining 
 the illegal act by injunction. 
 
 On the 29th of December, 1852, the board of aldermen of 
 the city of New York adopted a resolution, whereby it was 
 declared that the defendants, and those who might for the 
 time being, be associated with them, designated as the associa- 
 tion of the Broadway Railroad, should, upon certain con- 
 ditions and stipulations therein specified, have the authority 
 and consent of the common council to lay a double track for 
 a railway in Broadway, etc. The resolution was adopted by 
 the board of assistant aldermen on December 30. The 
 associates named in the resolution, on the same day, filed with 
 the clerk of the common council their written acceptance of 
 the resolution, afid an agreement on their part to conform to 
 its provisions. The mayor of the city did not concur in the 
 resolution. The plaintiffs brought their action against the per- 
 sons named in the resolution, to restrain them from entering 
 into or upon Broadway for the purpose of laying or establish- 
 ing a railroad therein, and from digging up, or subverting the 
 soil, or doing any other act in said street tending to encumber 
 the same, or obstruct the free and common use thereof as the 
 same had been enjoyed. It was stated in the complaint that 
 the plaintiffs were severally owners of certain lots of land and 
 premises upon Broadway; and they severally claimed that 
 they were the owners of the land in front of their lots to the 
 centre of the street, subject only to the public easement or 
 right of way over the same. It was further stated that the 
 plaintiffs were all residents and corporators of the city, 
 and had been assessed and had paid taxes upon their said 
 property to a large amount. It was further stated that the 
 defendants, under color of the authority contained in the 
 
1854.J NUW YORK. 113 
 
 Milhau m. Sharp. 
 
 resolution of the 30th of December, 185"^, threatened and 
 gave out that they would enter into and upon Broadway with 
 their workmen and servants, and take up the pavements, and 
 dig up and subviert the soil, and would lay down and establish 
 a railroad in said street, and run cars thereon, for their 
 own private interest and emolument, to the great injury and 
 damage of the plaintiffs and other property owners upon that 
 street; and that if the defendants should be permitted to take 
 up the pavement in Broadway and establish a railroad there, 
 the property of the plaintiffs would be seriously and irrepara- 
 bly injured and damaged. It was charged that the resolution 
 and the acceptance thereof were of no binding force and effect, 
 and conferred no power or authority whatever upon the 
 defendants to take up the pavement, or establish a railroad 
 upon Broadway. The conditions and stipulations annexed to 
 the resolution granting to the defendants authority to con- 
 struct their railroad, and the other matters stated in the 
 complaint are suflBciently noticed in the opinion of the court. 
 The action was prosecuted by the plaintiffs on their own 
 behalf, and in behalf of all other taxpayers, citizens and 
 inhabitants of the city, and owners of property in Broadway. 
 The material allegations in the complaint, except the adoption 
 of the resolution, were controverted by the defendants. The 
 issues were brought to trial at a special term, held in the 
 city of New York in October, 1853. A great many witnesses 
 were examined, but the testimony is not stated as the decision 
 of the court does not involve an examination of the evidence. 
 
 Mr. John Van Buren and Mr. Henry Hilton, for the 
 plaintiffs. 
 
 Mr. David Dudley Field, for the defendants. 
 
 Haebis, J. — Whether the corporation of New York has an 
 estate in fee, either absolute or qualified, in the streets of that 
 city, or a mere right of way, held for the public use, is quite 
 immaterial, for the purposes of this action. In either case, 
 it must be conceded the corporation has the right of control 
 over the streets. By the Dongan charter, it was invested with 
 "full power, license and authority to establish, appoint, order 
 
 8 
 
114 N:EW YORK. [Sup. Ot. 
 
 MilLau vs. Sharp. 
 
 and direct the establishing, making, laying out, ordering, 
 amending and repairing of all streets, lanes, alleys, highways, 
 etc., in and throughout the city, necessary, needful and con- 
 venient for the inhabitants of said city, and for all travelers 
 and passengers there." This power has never been with- 
 drawn, or essentially changed. The corporation yet has the 
 exclusive right to control and regulate the use of the streets 
 in the city. In this respect, it is endowed with legislative 
 sovereignty. The exercise of that sovereignty has no limit, 
 so long as it is within the objects and trusts for which the 
 power is conferred. An ordinance regulating a street is a 
 legislative act, entirely beyond the control of the judicial 
 power of the state. But the resolution in question is not such 
 an act. Though it relates to a street, and very materially 
 affects the mode in which that street is to be used, yet, in its 
 essential features, it is a contract. Privileges exclusive in 
 their nature and designed to be perpetual in their duration, 
 are conferred. Instead of regulating the use of the street, 
 the use itself, to the extent specified in the resolution, is 
 granted to the associates of the Broadway Eailroad. For what 
 has been deemed an adequate consideration, the corporation 
 has assumed to surrender a portion of their municipal author- 
 ity, and has, in legal eilect, agreed with the defendants that, 
 so far as they may have occasion to use Broadway, for the pur- 
 pose of constructing and operating their railroad, the right to 
 regulate and control the use of that street shall not be exer- 
 cised. 
 
 That the powers of the corporation may be surrendered, I 
 do not deny ; but I think it can only be done by authority of 
 the legislature. Thus, it was provided by the charter of the 
 Hudson Eiver Eailroad Company, that its railroad might be 
 located on certain streets of the city of New York, " provided 
 the assent of the corporation of the city be first obtained." 
 Sess. Laws ISlfi, chap. 216, p. 274, sec. 4. Authority to give 
 such assent is implied in the act itself ; and the corporation 
 having, in pursuance of such authority, given its assent to the 
 location of the railroad, and the railroad company having 
 located their road accordingly, the assent became irrevocable. 
 The company acquired a right to the use of the streets for the 
 
1854.] NJEW YOBK. 1J5 
 
 Milhau ■»«. Sharp. 
 
 purposes of its road, and, to a corresponding extent, the cor- 
 poration was deprived of its power to regulate and control 
 the use of the street. So in the ease of the Harlem railroad, 
 {Sess. Laws 18S1, chap. 268, p. 327, sec. 11,) that corporation 
 was authorized by the legislature to construct their road 
 across or upon any street in the city of New York, with the 
 consent and approbation of the mayor, etc., of the city. The 
 same provision is found in the general railroad act. Sess. 
 Laios 1850, chap. HO, p. 2S4, sec. 28, sut. 5. It is thus that the 
 city corporation may, to the extent contemplated by the legisla- 
 ture, restrict its own power to control and regulate streets. 
 Drake vs. The Hudson River Railroad Company 7, Barh., 508; 
 s. c. 1 Am. Si. -By. Dec, 10. But for the authority derived 
 from the legislature, I am unable to see how a municipal cor- 
 poration can grant permission to construct a railroad upon one 
 of its streets, which, operating as a contract, and vesting rights 
 in the grantee which cannot be recalled, must limit the power 
 of such corporation to manage and control the use of the streets. 
 I think it cannot be done. It cannot be that powers vested in the 
 corporation as an important public trust can thus be frittered 
 away, or parceled out to individuals, or joint stock associa- 
 tions, and secured to them beyond control. It was asserted 
 by the defendants' counsel upon the trial, that the authority 
 to construct a railroad, conferred upon the defendants by this 
 resolution, may at any time be recalled. If this were so — if 
 the resolution could be regarded as a mere revocable license — 
 it would relieve the case from a fatal difficulty; for I am not 
 prepared to say that, in the exercise of the discretionary 
 power with which the corporation is endowed, in the manage- 
 ment and regulation of streets, it may not authorize an indi- 
 vidual or association to lay down a railroad track even in 
 Broadway. But this resolution goes farther ; it authorizes 
 ■ the associates to construct the road, and reserves no right to 
 rescind the grant. It licenses their cars to run upon the road 
 for ten years from the time it shall be opened, at a stipulated 
 fee for each car; and provides that if the parties fail to agree 
 upon the amount to be paid for licenses, at the expiration of 
 that period the railroad, with all the equipments thereto 
 belonging, shall be surrendered to the corporation at a fair 
 
116 Ni:W YORK. [Sup. Ot. 
 
 Milhau m. Sharp. 
 
 and just valuation. Can it be that a contract containing such 
 provisions may be rescinded at the pleasure of the corporation? 
 The very contingenoyj upon the happening of which alone 
 the parties seem to have contemplated a termination of the 
 contract, furnishes the strongest evidence that the grant was 
 intended to be perpetual. 
 
 I agree with Mr. Justice Bosworth, that " it would be an 
 anomaly if, after the grant had been made and accepted, and 
 the road built in every respect in conformity with the terms 
 of such a grant as is contained in the resolution in question, 
 the common council may rescind the grant and divest the 
 rights acquired under it, precisely as they may order a street 
 to be widened or extended, or repeal any police ordinance or 
 regulation." The same view is expressed by Mr. Justice 
 Strong in the opinion delivered by him upon the motion for 
 an injunction in this cause. After referring to the prominent 
 features of the resolution, that learned judge says : "Surely 
 all these provisions indicate something more than a mere 
 revocable license. They convey a valuable right, which, upon 
 the performance of the primary acts required from the defend- 
 ants, would vest in them, and of which they could not be 
 deprived by a repeal of the resolution." 
 
 Mr. Justice Duer, too, in a very able opinion recently 
 delivered by him upon the decision of a kindred action. 
 Attorney General, etc., ofN. T. vs. Mayor, etc., ofN. T. et al., 
 m Legal Obs., 17-23; 10 JV. Y. Superior Court, 119-128; 1 
 Am. St. -By. Dec, 122-132, says : " I am yet to learn that a 
 contract, valid when made, can be rescinded by either of the 
 parties, unless the power of rescinding it is expressly reserved, 
 or was given by some constitutional or statutory provision in 
 force when the contract was made. The licenses contem- 
 plated by the resolution must, therefore, be regarded as per- 
 petual and irrevocable. If it takes effect at all, the right of 
 way, now vested in the corporation, so far as it is necessary 
 for the purposes of the defendants, will become vested in 
 them. The exercise of the legislative powers of the corpora- 
 tion, in respect to that street must be in subordination to the 
 vested rights of the defendants. We have already seen that 
 a corporation cannot, without the consent of the legislature. 
 
1854.] NUW YORK. Ill 
 
 Milhau vs. Sharp. 
 
 thus divest itself of its own powers. The resolution itself is, 
 therefore, unauthorized and void." 
 
 Again, the corporation has " full power and authority to 
 make and pass such by-laws and ordinances as it shall from 
 time to time deem necessary and proper, to regulate hackney 
 coaches or carriages, and their rates of fare or carriage, 
 requiring the owners of such hackney coaches or carriages to 
 have a license from the mayor of the city for the time being, 
 under the directions of the common council. 2 E. L.,p. ^6, 
 sec. 272. It seems to have been assumed by all parties that 
 the cars, which by the terms of the resolution the defendants 
 were authorized to run upon the Broadway Eailroad, would be 
 "carriages" within the meaning of the term as used in the 
 statute. Accordingly, it is stipulated that the associates shall 
 pay, for ten years from the date of opening their railroad, the 
 annual license fee for each car now allowed by law, and shall 
 have a license accordingly. See opinion of Duer, J., above 
 cited; also Drake ys. Hudson River Railroad Co., 7 Bari., 
 508; s. c. 1 Am. St.-Ry. Bee, 10. Assuming that the cars to 
 be employed by the defendants in operating their railroad 
 would be carriages, and as such would require a license from 
 the mayor of the city, it is extremely questionable whether 
 the corporation had the power to contract beforehand, as 
 they have assumed to do, that for ten years at least such car- 
 riages or cars should be licensed. The license is to be given 
 by the mayor of the city for the time being. The execution 
 of this provision in the resolution would require the mayor 
 of the city, whoever he might be, and without any reference 
 to his own judgment or discretion in the case, to issue a 
 license for all the defendants' cars. In stipulating for this, I 
 think the corporation has transcended its authority. But, 
 without insisting further upon this point, I think the more 
 fatal objection upon this branch of the case is, that the cor- 
 poration has undertaken to deprive itself of the power con- 
 ferred upon it, by the legislature, in the section of the statute 
 above cited, "to regulate rates of fare and carriage." 
 
 The associates of the Broadway Railroad are, by a provision 
 in their contract with the corporation, authorized to demand 
 and receive from every passenger whom they may carry from 
 
118 Ni:W YORK. [Sup. Ct. 
 
 Milhau vs. Sharp. 
 
 one point to another, five cents. Although the legislature 
 has declared that the corporation shall have the power and 
 authority, from time to time, to regulate the rates of fare 
 to be charged for the carriage of persons, the corporation has 
 said, hy this resolution, that in respect to the carriages which 
 may be employed by the defendants in operating their rail- 
 road, that power shall never be exercised. This it could not 
 do. The members of the common council, by which this 
 resolution was adopted, were not authorized thus to invade 
 the legislative power of their successors. This objection, in a 
 practical view at least, derives great force from the exclusive- 
 ness which is a characteristic feature of the grant. Whether 
 it was intended or not, it is obvious that if the grant takes 
 effect at all, it must operate as a perpetual monopoly. Its 
 privileges are perpetual, or if not, can only be extinguished 
 on the refusal of the grantees to pay such license fee for 
 their cars as the corporation shall exact, and then only upon 
 full indemnity on the part of the corporation. Practically, at 
 least, they are exclusive, too. No one will seriously contend 
 that the corporation would have the power to authorize the 
 use of the defendants' track by any person against their will. 
 And although the abstract right to lay another track might 
 exist, yet, in fact, the thing would be impracticable ; so that 
 the defendants, if they can secure the benefit of their grant, 
 have secured a perpetual monopoly of the privilege of carry- 
 ing passengers by railroad in Broadway. What if the cor- 
 poration, for a consideration deemed adequate — as, for the 
 sake of the comparison, the sweeping and cleansing of the 
 street — had granted to the proprietors of a single omnibus 
 line the privilege of running their carriages forever in Broad- 
 way, with the right to charge a specified sum as fare ; would 
 any one hesitate to say that the corporation had transcended 
 its power in making such a conti'act ? Suppose, further, 
 that the fare which the corporation had thus authorized 
 the omnibus proprietors to "exact had been ten cents for 
 each passenger, when it was known that other proprietors 
 were willing to perform the same service for six cents, 
 would it not be insisted that, besides going beyond its 
 authority, the corporation had been guilty of a wanton 
 
1854. J NIIW YORK. 119 
 
 Milhau m. Sharp. 
 
 breach of duty ? And then, if the feature of exclusiveness 
 were added to the grant, so that the favored proprietors might 
 enjoy a perpetual monopoly of the carriage of passengers upon 
 Broadway by omnibus, could any tribunal fail to declare the 
 grant illegal and Toid ? The impropriety of such a grant 
 might be more glaring, but, upon principle, I cannot see that 
 it would be more objectionable, than that under consideration. 
 An attempt has been made to give perpetuity to the associa- 
 tion to be formed under the provisions of the resolution, by 
 declaring that, in case any associate should die, or do any act 
 whereby his interest in the association should vest in another, 
 the association should not be deem ed to be thereby dissolved, but 
 that the successor in interest should stand in the place of the 
 associate to whose interest he had succeeded. I do not think 
 the object of the parties could be effected in this way. I am 
 not aware of any rule of law which would bind the legal rep- 
 resentatives of an associate, in case of death, or the assignee 
 in case of insolvency, to become a stockholder, standing in the 
 place of the associate to whose interest he had succeeded. In 
 such a case I suppose he would have the legal right, as in any 
 other incorporated association, to have the business closed up 
 and to receive his share of the assets. But whether this is so 
 or not, I cannot see that this provision can vitiate the grant 
 itself. It is in no respect necessary to support the other pro- 
 visions in the resolution. Though inoperative, as I think it 
 would be, the other provisions in the resolution might very 
 well stand without it, if otherwise unobjectionable. Nor do 
 I think the resolution a violation of the provision in the char- 
 ter, which requires that contracts for Work to be done shall 
 be made by the appropriate head of the executive department. 
 This provision, as I understand it, only relates to contr9,cts 
 which would involve a liability to pay for the work to be done. 
 An agreement, as in this case, to sweep and cleanse a street, not 
 for a compensation to be paid, but as the condition upon which 
 the privileges specified in the contract are granted, may, as it 
 seems to me, very well be made by the common council itself, 
 without the intervention of any of the heads of departments. 
 Having come to the conclusion that the resolution in ques- 
 tion is not within the powers conferred upon the common 
 
120 NJEW YORK. [Sup. Ot. 
 
 Milhau m. Sharp. 
 
 council, and is, therefore, void, I have not felt myself called 
 upon to examine the questions of the fact presented by the 
 pleadings, and to which the evidence presented upon the 
 trial was directed, with the care which their importance would 
 otherwise require. As to the effect of the proposed railway, 
 a great diversity of opinion evidently exists among the citizens 
 of New York. A large number of witnesses, among whom 
 are gentlemen in whose judgment on such a subject I should 
 have great confidence, are of opinion that it would be a great 
 public benefit, and in no respects injurious; while quite as 
 many more, upon whose opinions I should quite as willingly 
 rely, think the proposed railway would prove a nuisance 
 not to be endured. Under these circumstances, I should not 
 feel myself justified in declaring that the construction of the 
 road would create what, in legal effect, would amount to a 
 public nuisance; yet I may be permitted to add, I am not 
 without strong apprehension that it would prove greatly 
 injurious to the owners of property, especially in the lower 
 portions of the street. I am inclined to think the weight 
 of the evidence tends to this conclusion. 
 
 In respect to the circumstances under which the resolution 
 was adopted, I do not think the evidence would warrant the 
 conclusion that the members of the comtnon council who 
 voted for the resolution were governed by corrupt motives or 
 acted in bad faith. And yet the pertinacity with which they 
 persisted in conferring upon these defendants privileges so 
 extraordinary in their character and which are supposed at 
 least to be of so very great value, is calculated, it must be 
 conceded, to excite a lively suspicion. Other propositions 
 apparently more favorable both to the corporation and the 
 public in their terms, were before them. That they should 
 reject these and adopt the proposition of the defendants, can 
 only be accounted foj- — if the members of the common coun- 
 cil who voted for the resolution are to be acquitted of dis- 
 honesty — upon the theory assumed by the counsel for the 
 defendants upon the arguments, that they had no confidence 
 in the good faith of those who made the propositions, inas- 
 much as they were avowedly opposed to the enterprise. 
 But, whatever may have been the motives which induced the 
 
1854.J N:EW YORK. 121 
 
 Milhau ®«. Sharp. 
 
 members of the common council to support the resolution, 
 they transcended their power, and, therefore, even though it 
 may have been unintentional, were guilty of a breach of duty. 
 They had no right to make the grant contemplated by the 
 resolution, and, having attempted it, they were chargeable 
 ■^ith a violation of official trust. 
 
 The only other question which I deem it useful to notice is, 
 whether the plaintiffs are entitled to the remedy for which 
 they ask ? The corporation had assumed authority to grant 
 permission to the defendants to lay in Broadway a railroad 
 track. By virtue of such permission and yet without legal 
 authority, the defendants were about to proceed to the execu- 
 tion of their purpose. The illegal act thus about to be com- 
 mitted would, if consummated, result in special and perhaps 
 irreparable injury to the plaintiffs, and others, who, like them, 
 are owners of real estate upon Broadway. Besides their 
 interest in common with other corporators and taxpayers, 
 they had the other special and more important interest to 
 be affected by what might be done by the defendants under 
 their pretended license from the corporation. Upon this 
 state of facts I cannot doubt that the plaintiffs are entitled to 
 an injunction. The act about to be committed by the defend- 
 ants was unlawful, but whether it would amount to a public 
 nuisance, may, as the evidence in the case stands, be question- 
 able. But whether a public nuisance or not, it would, I have 
 no doubt, prove injurious to the property of the plaintiffs. 
 If so, whatever the public rights may be, they are entitled to 
 have such unlawful act restrained. 
 
 A nuisance may be both public and private. To the indi- 
 vidual who has sustained actual damage as the result of the 
 wrongful act, it may be regarded as a private nuisance, even 
 where the party chargeable with such wrongful act might 
 also be convicted of a public nuisance. First Baptist Church 
 in Gity of Schenectady vs. Schenectady and Troy Railroad 
 Company, 5 Bari., 79, and cases there cited. See also Code, 
 sec. 219 ; Christopher vs. The Mayor, etc., of New York, IS 
 Barb., 567. In the latter case it was held that where an 
 act is clearly illegal, and the necessary effect of such act is 
 to injure the property of another, the court is warranted 
 
122 
 
 
 NUW YORK. 
 
 [N.Y. 
 
 Sup'r Ot. 
 
 Att'y 
 
 Gen. 
 
 of State of N. Y. vs. The Mayor, 
 
 etc., of N 
 
 . Y., et al. 
 
 in restraining the illegal act by injunction. The plaintiffs 
 present such a case. The act sought to be restrained, as 
 we have already seen, is wholly unauthorized, and clearly 
 illegal. The effect of the act, if committed, would be inju- 
 rious to the property of the plaintiffs. I am, therefore, of 
 opinion that the injunction should be made perpetual. 
 
 THE ATTOKNEY GENERAL OF THE STATE OF 
 NEW YOEK, THOMAS E. DAVIS and COURT- 
 LANDT PALMER, Respondents, vs. THE MAYOR, 
 ALDERMEN and COMMONALTY OF THE CITY 
 OP NEW YORK, JACOB SHARP and others. 
 Appellants. 
 
 SPECIAL TERM AND OENEKAL TBBU DECISIONS. 
 
 Special Term, IS Legal Observer, 17 ; s. c. 10 N. T. Superior Court, (S 
 Duer,) 131 ; General Term, Id., 119. 
 
 Reversed sub 'nom Davis vs. The Mayor, etc., of N. Y., 14. N. T., 606, 
 s. c. 1 Am. 8t.-By. Dee., esS.* 
 
 A resolution consisting of fifteen sections was passed by a majority of 
 the votes of each of the two hoards, which formed the common council 
 of the city of New York. The resolution granted to Jacob Sharp and 
 others, the right, on certain terms and conditions therein specified, to 
 construct and operate a railroad in Broadway for the purpose of carry- 
 ing passengers, no time limit being mentioned. It was vetoed by the 
 mayor, and an injunction was granted by this court enjoining the repas • 
 sage of the resolution or making the grant by the Mayor, Aldermen and 
 Commonalty of the City o£ New York. Notwithstanding the mayor's 
 veto and the injunction, the resolution was repassed by the required 
 vote of each board of the common council and was accepted in writing 
 by those to whom the grant was made, and in the form the resolution 
 prescribed. The grantees were then made parties defendant. The dif- 
 ferent sections of the grant may be summarized as follows: — 
 
 First. The tracks were to be in or near the middle of Broadway, the 
 outside rails to be not more than twelve feet and six inches apart. 
 
 Second. That new cars should be placed on the road, not more than 
 forty-five feet long, to be drawn by horses, and the cars should be run 
 both ways, as often as required for the convenience of passengers. 
 
 * The reversal by the Court of Appeals was upon a technical ground only. 
 
1854. J N:EW YORK. 123 
 
 Att'y Gen. of State of N. Y. w. The Mayor, etc., of N. Y., et al. 
 
 Third. That the directions of the common council should be com- . 
 plied with by the grantees in the building of the road and running of 
 the cars. 
 
 Fourth. That the road should begin and end at the points therein 
 designated. 
 
 Fifth. That in establishing a depot and in running the cars, the 
 grantees should perform certain prescribed duties. 
 
 Sixth, Seventh, Eighth and Ninth. That the manner of construct- 
 ing, running and stopping the cars, should be provided for ; that certain 
 attendants should be provided with specified duties. 
 
 Tenth. That Broadway below Fourteenth street should be swept 
 and cleaned by the grantees every morning and evening, without regard 
 to the weather, and as often as twice a week above Fourteenth street 
 when the weather would permit. 
 
 Eleventh. That no more than five cents fare should be charged. 
 
 Twelfth. That " in consideration of the good and faithful perform- 
 ance of all the conditions," etc., prescribed in the grant, the annual 
 license fee per car, allowed by law when the grant took effect, should 
 be paid by the grantees, and they should have a license accordingly ; 
 and after ten years such license fee per car, should be paid as prescribed 
 by the city corporation, permission from the legislature being first 
 obtained, and if the grantees should not consent thereto, that the road, 
 with all equipments and appurtenances, should be surrendered to the 
 corporation, at a fair and just valuation. 
 
 Thirteenth, That the grantees or a majority in interest were author- 
 ized to form themselves into a joint stock association ; that all rights 
 and privileges granted, were to be vested in it ; that articles of associ- 
 ation might be passed by a vote of the majority in interest, to regulate 
 the construction and management of the road, the admission of new 
 associates, the transfer of shares, the number, duties, etc., of ofiicers, 
 the mode of making contracts, and calling in assessments, etc. The 
 fourteenth and fifteenth sections were as follows : 
 
 Fourteenth. The association shall not be deemed dissolved by the 
 death or act of any associate, but his successor in interest shall stand in 
 his place ; and the rights of each associate shall depend on his own ful- 
 filment of the conditions imposed on him by these restrictions, or the 
 articles of association and by-laws of the association ; and, in case of 
 his failure to fulfil the same, after twenty days' notice in writing to him 
 so to do, his rights shall be forfeited to, and devolve upon the remain- 
 ing associates. And said associates may, at any time, incorporate them- 
 selves under the general railroad act, whenever two-thirds in interest of 
 the associates shall require it. 
 
 Fifteenth. The associates, whose names are set forth in this resolu- 
 tion, shall, by writing, filed with the clerk of the common council, 
 signify their acceptance thereof, and agree to conform thereto ; and all 
 new associates or assigns, duly admitted according to the provisions of 
 
124 NHW YORK. [X.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., at al. 
 
 the articles of association and by laws, shall be deemed parties to such 
 agreement. 
 
 Held, that a grant of the powers, privileges, and immunities, con- 
 ferred by the resolution in question, is the grant of a franchise, a,nd if 
 the municipal corporation of this city was incompetent to make the 
 grant, the making of it was a usurpation of power which can lawfully 
 be exercised by the legislature of the state only. 
 
 That neither of the city chfl,rters, nor any statute of the state, confers 
 any such power in express terms. That the implication of such a power 
 is not necessary to the exercise of any power expressly granted or in 
 order to properly perform any lawful duty. 
 
 That no corporation municipal or otherwise possesses any powers 
 except such as have been granted to it, and no state can grant to a cor- 
 poration power to do that which it cannot constitutionally do itself. 
 
 That the legislative power of a corporation is not only restricted by 
 the constitutional and statute law of the state, but also by the general 
 principles and policy of the common law as accepted there. 
 
 That when the grantees accepted the resolution in the mode pre- 
 scribed, after It was duly passed by the common council it was not a 
 law or orqlinance to be repealed at the pleasure of the city, but a con- 
 tract, and could not be revoked, under the clause of the Constitution of 
 the United States which prohibits every state legislature from passing 
 any law, which impairs the obligation of contracts. 
 
 That there being no power reserved in it to rescind or modify it, so 
 long as its conditions and provisions were complied with, the corpora- 
 tion would be incompetent to repeal it at its mere wiU and pleasure, so 
 as to divest any rights of property acquired by the grantees under it. 
 
 That the common council cannot divest itself of, nor abridge its legis- 
 lative discretion to alter and regulate the streets as it may deem expe- 
 dient, nor has it any power to prohibit such use of them as the legisla- 
 tive authority of the state has granted to every citizen as a matter of 
 strict right. 
 
 That the resolution is void on the grounds : 
 
 1. That it. grants a franchise, which the common council has no 
 authority to grant. 
 
 3. The grant, by the meaning and legal import of its terms, may be 
 perpetual. 
 
 3. The grant is, in judgment of law, a contract between the corpora- 
 tion and the grantees, and in its legal import, restricts the corporation 
 in the future exercise of its legislative powers. 
 
 4. It confers upon the grantees and their associates exclusive privi- 
 leges to a partial use of Broadway, which may be of perpetual duration. 
 
 5. It absolves them from an obligation imposed on them by a statute 
 of the state {S B. L. 4£4, sec. 198.) 
 
 6. It confers rights, and exempts the associates from consequences in 
 the event of the death of one of their number, repugnant to, and con- 
 flicting with, the settled law of the state. 
 
1854.] NJEW YORK. 125 
 
 Att'y Geu. of State of N. Y. ®«. The Mayor, etc., of N. Y., et al. 
 
 7. It authorizes the grantees and associates to become incorporated at 
 any time, under the general railroad act, although the road may have 
 been previously constructed, and whatever may be their number at the 
 time, while the act itself does not allow an incorporation after a road 
 shall have been buUt, nor of a less number than twenty five persons. 
 
 8. It makes a contract, which the common council has been prohibited 
 from making, by the amended charter of 1849. 
 
 The attempt to make a grant conferring such privileges and impuni- 
 ties, without lawful authority, was a usurpation of power, and the 
 illegal exercise of a franchise, and was void ; and the grantees were 
 properly, perpetually enjoined. 
 
 Held, also, that the attorney general of the state being made a party 
 plaintiff was not an error for which the judgment should be reversed. 
 That he was a proper party, and his presence as a party was necessary 
 to a full determination of the controversy and the court could, at any 
 time, and on such terms as it should deem just, require him to be made 
 a party. 
 
 This is an appeal by the defendants from a judgment ren- 
 dered at special term, and also from an order made thereon. 
 The action was begun in Decemberj 1852, and the pleadings 
 were originally in the names of Thomas E. Davis and Court- 
 landt Palmer, as plaintiffs, against the Mayor, Aldermen and 
 Commonalty of the City of New York as defendants. The 
 complaint alleged that a railroad in Broadway would be a 
 public nuisance : that the two boards had passed a resolution 
 granting the privilege to construct it ; that they had done so 
 in bad faith from corrupt motives and in breach of trust, and 
 without authority ; that they were about to pass it again, 
 over the veto of the mayor and asked that an injunction 
 prohibiting the grant might be issued. The injunction was 
 granted. 
 
 It was set forth in the complaint among other things, that 
 the plaintiffs are owners of real and personal property in the 
 city of New York, liable to taxation, and upon which taxes 
 had been levied and assessed by the corporation, and paid by 
 the plaintiffs to an extent exceeding $350, for many years 
 past. They are citizens and corporators of said city, and 
 owners of real estate situated upon Broadway, and also 
 owners in fee of the land in said street to the centre thereof 
 in front of their property, subject only to the easement, etc. 
 
 That the fee of Broadway is in the adjoining owners and 
 
126 N:EW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y. et al. 
 
 the corporation has no power to establish or authorize the 
 establishment of a railroad therein. 
 
 That if the corporation has such power, it cannot be 
 exercised without paying, or providing for the payment to 
 the adjoining owners of their damages, etc. 
 
 That whatever power, interest, or property the corporation 
 has in the same, is held by it in trust for the citizens, corpora- 
 tors and taxpayers, and to be exercised for the public good. 
 
 That prior to making the grant, many offers were made by 
 responsible parties, to the common council, offering to con- 
 struct and establish such a railroad, and give, for the privilege 
 of using it, etc., as follows : 
 
 1. One to give $1,000,000, in ten annual instalments and 
 charge 3 cents fare. 
 
 2. One to give II, 666. 66 for each car and charge 5 cents fare. 
 
 3. One to give $1,000 per annum for each car, and charge 
 3 cents fare. 
 
 4. One to give the corporation one cent for each passenger, 
 and charge 5 cents fare. 
 
 5. One to give an annual ionus of $100,000, and charge 5 
 cents fare. 
 
 6. One to comply with the covenants and conditions con- 
 tained in the grant to the defendants Sharp, etc., and charge 
 but S cents instead of 5 cents fare, as mentioned in the 11th 
 article. 
 
 The complaint went on to state what these offers would 
 produce, and in what manner the citizens, taxpayers and 
 travelers would be benefited by the acceptance of any one of 
 them, in preference to making the grant to the defendants 
 Sharp, etc. 
 
 " That the grant of the privileges contained in said reso- 
 lution for a trifling sum, with the right to demand five cents 
 fare from travelers, when the trustees might have obtained a 
 million of dollars for the grant, with a charge upon travelers 
 of only three cents fare, was a palpable breach of trust, and a 
 gross fraud upon the plaintiffs and all other taxpayers, in- 
 habitants and travelers in said city." 
 
 That the common council is authorized to hold monthly 
 sessions, and neither board can adjourn for a longer period 
 
1854.] 
 
 
 NJEW YOBE. 
 
 
 
 
 127 
 
 Att'y 
 
 Gen. 
 
 of Slate of N. Y. m. The Mayor, 
 
 etc.. 
 
 , of K. 
 
 Y., 
 
 , etal. 
 
 than three days without the concurrence of the other. Not- 
 withstanding which the board of aldermen, at the November 
 session, adjourned for four days (from the 4th to the 8th) 
 without the concurrence of the assistants : That this put an 
 end to that monthly session, and when the members of the 
 board subsequently met on the 19th, and adopted the resolu- 
 tion and grant, they were not legally assembled. 
 
 That such resolution and grant is invalid : 
 
 Because the grant cannot be made without the concurrence 
 of the mayor, who refused to concur therein. 
 
 Because such grant cannot be made without authority from 
 the legislature, which has not been given. 
 
 Because said resolution and grant " attempts to bind the 
 corporation forever, and thus limit and control the legislative 
 powers of said common council." 
 
 Because said resolution and grant " attempts to create an 
 odious and unjust monopoly, and within the legislative pow- 
 -ers of said corporation or common council." 
 
 Because, if the corporation are authorized to make such 
 grant, the contracts, stipulations and agreements specified 
 therein, are within the province of the executive department 
 known as the " Street Department." 
 
 That the street is too narrow to admit of the establishment 
 of a railroad therein. That if the railway is constructed, it 
 will be a public nuisance in the street, especially injurious to 
 the plaintiffs. That in laying it, the street would be ren- 
 dered almost wholly impassable, and the plaintiffs would be 
 thereby injured and damaged ; and that when established it 
 will be an injury and damage to the plaintiffs ; and that by its 
 establishment the street will be appropriated to a new and 
 unauthorized use, and one exclusive in its nature. 
 
 That making the grant and adopting the resolution in defi- 
 ance of the injunction of this court was an illegal and crimi- 
 nal act, and could confer no right on the grantees Sharp, etc. 
 
 That the resolution and grant, and the acceptance thereof 
 by the grantees Sharp, etc., are of no binding force or effect, 
 and confer no power or authority whatever upon the grantees 
 Sharp, etc., to establish a railroad in Broadway. 
 
 The amended and supplemental complaint on behalf of the 
 
128 Ni:W YORK. [S.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. T., et al. 
 
 plaintiffs and all other citizens and taxpayers and owners on 
 Broadway, prayed for an injunction restraining the defendants 
 Sharp and others, from establishing a railroad in Broadway 
 under the authority of the said resolution and grant. 
 
 On the 2d of April, the Mayor, Aldermen and Commonalty 
 answered the complaint denying the charges of the complaint. 
 
 On April 7th the court made an order allowing the plaintiffs 
 to serve an amended and supplemental complaint, which they 
 did on May 3d, 1853, and in which they alleged that since 
 the original complaint and the injunction granted thereon, 
 the resolution had been repassed by the common council, 
 granting to Jacob Sharp and others the privilege of construct- 
 ing the railroad. It made Sharp and the others defendants, 
 and prayed for an injunction restraining him and them from 
 constructing the railway, which was granted. 
 
 The Mayor, Aldermen and Commonalty on May 19th, 
 answered the amended and supplemental complaint, insisting 
 that the grant was legal. On May 16th Jacob Sharp and the 
 others answered the original and the amended and supple- 
 mental complaint, denying the material charges in the com- 
 plaint and insisting that the grant was valid. 
 
 On the 13th day of June, 1853, the case was tried at special 
 term by Mr. Justice Duer, without a jury, lasting till July 2d. 
 
 On July 2oth, Judge Duer ordered a reargument in the 
 following terms : 
 
 " Instead of giving a final judgment in this cause, I deem 
 it my duty to direct a further argument upon the following 
 questions, which were scarcely, if at all, discussed upon the 
 hearing before me : 
 
 " Have the plaintiffs a right to maintain the action, if the 
 court shall be of opinion that the evidence is not sufficient to 
 prove that the contemplated railroad will be a public nui- 
 sance from which the plaintiffs, as owners of property on 
 Broadway or otherwise, will sustain a special injury ? 
 
 " If such shall be the opinion of the court, must t.he com- 
 plaint necessarily be dismissed, or may it be retained for a 
 certain time in order that the attorney general may be made 
 a prosecuting party ?" 
 
 On October 10th, 1853, the plaintiffs' counsel appeared and 
 
1854.J N£!W YORK. 129 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., et al. 
 
 reargued as ordered, the defendants' counsel appeared, but 
 declined to reargue. 
 
 On October 29tli, 1853, Judge Duer stated that after delib- 
 eration, he had concluded, upon the evidence then given, that 
 the establishment of the proposed railroad in Broadway would 
 not be a public nuisance, or otherwise specially injurious to 
 the plaintiffs, and that in his judgment a complete determina- 
 tion of the controversy on the remaining issues could not be 
 had without the presence of the attorney general of the state 
 of New York, as a prosecuting party to this action. 
 
 The plaintiffs were thereupon given their election, to be 
 made within ten days, to have an issue for a jury upon the 
 question: ''"Whether the contemplated railroad would be a 
 public nuisance specially injurious to the plaintiffs." Or to 
 have an order to bring in said attorney general, as a party plaint- 
 iff in this action. The plaintiffs elected to bring in the attor- 
 ney general as a party and on November 9th, 1853, he filed his 
 consent to be made such a party. On the same day the judge 
 made an order "that the complaint herein be and the same is 
 now amended by inserting therein the name of said attorney 
 general as a party plaintiff to this action. Such amendment 
 to be without costs, and without prejudice to the proceedings 
 already had, and this cause is set down for final judgment on 
 the 21st of November instant, at 11 o'clock A. M., at special 
 term." 
 
 The order making the attorney general a party, was objected 
 to by the defendants. 
 
 Mr. Justice Dube pronoanced the following judgment on 
 November 21, 1853 : 
 
 This cause having been heretofore heard, upon the plead- 
 ings and proofs, and due deliberation thereupon had, and it 
 appearing to the court that the only material issues of fact 
 raised by the pleadings, are the following: 
 
 1. Whether the railroad in Broadway, which Jacob Sharp 
 and his associates, defendants in this suit, claim that they have 
 a lawful authority to construct, and avow their intention to 
 construct, if constructed and regulated in the manner pro- 
 posed, will be a public nuisance ; and 2. Whether the grant 
 
 9 
 
130 NUW YORK. [N.Y. Sup'r Ot. 
 
 Att'y aen. of State of N. T. m. The Mayor, etc., of N. Y., et al. 
 
 made by the common council of the city of New York, to 
 Jacob Sharp and his associates, of the privilege of laying" 
 down and constructing the railroad in question, was made in 
 bad faith, and from corrupt motives ? 
 
 And the evidence applicable to the said issues having been 
 fully considered, and the same appearing to the court insuffi- 
 cient to establish the fact, either that the said railroad will, if 
 constructed, be a public nuisance, or that the grant of the 
 privilege of laying down and constructing the same, was made 
 in bad faith or from corrupt motives, and, therefore, involved 
 no breach of trust on the part of the corporatiiau or common 
 council, by which it was adopted. 
 
 It is ordered and adjudged, that the aforesaid issues of fact 
 be, and the same are hereby determined in favor of the defend- 
 ants. 
 
 And the question of law upon which the right of the plaint- 
 iffs, to the relief demanded by their complaint, is considered 
 to depend, being also weighed and considered, and it appear- 
 ing to the court that the resolution finally adopted by the 
 common council, aforesaid, on the thirtieth of December, 
 1852, granting to Jacob Sharp and his associates, the privilege 
 of laying down and constructing the railroad aforesaid, 
 although an ordinance in its form is not a law, but a grant of 
 franchise, which from the time of its acceptance by the gran- 
 tees, became a contract upon the terms and conditions set 
 forth in the said resolution ; and it also appearing to the 
 court that the common council, aforesaid, had no power or 
 authority to make the said grant and contract, and that the 
 same, for reasons manifest on its face, is wholly illegal and 
 void. 
 
 It is, therefore, ordered and adjudged, that the said defend- 
 ants, Jacob Sharp, Freeman Campbell, William B. Keynolds, 
 James Gaunt, I. Newton Squire, Wm. A. Mead, David 
 Woods, John L. 'Sullivan, Wm. M. Pullis, Jonathan Eoe, 
 John W. Hawkes, James W. Faulkner, Henry Du Bois, John 
 J. HoUister, Preston Sheldon, John Anderson, John R. 
 Flanagan, Sergent V. Bagley, Peter B. Sweeny, Charles B. 
 White, James W. Foshay, Eobert E. Ring, Thomas Ladd, 
 Conklin Sharp, Samuel L. Titus, Alfred Martin, D. Randolph 
 
1854.] 
 
 NEW YORK. 
 
 
 
 
 131 
 
 Att'y Gen. 
 
 of State of N. Y. es. The Mayor, 
 
 etc.. 
 
 , of N. 
 
 Y„ 
 
 , et al. 
 
 Martin, William Menzies, Charles H. Glover and Gershon 
 Cohen, and each of them, and all persons claiming under 
 them or acting under the authority and direction of them 
 or either of them, are hereby perpetually enjoined and re- 
 strained from entering into or upon said street, called Broad- 
 way, for the purpose of laying or establishing a railroad 
 therein, under the grant or resolution of said common council, 
 above referred to. 
 
 And it is further ordered, adjudged, and decreed by this 
 court, that the said defendants, the Mayor, Aldermen and 
 Commonalty of the City of New York, be, and they hereby 
 are, perpetually enjoined and restrained from granting to 
 any person or persons whomsoever, the exclusive right, liberty 
 and privilege of laying down or constructing a railroad in 
 Broadway. 
 
 The. defendants excepted to so much of the said decision of 
 the court, made at the special term in this cause, and entered 
 in the judgment, as decided ; and subsequently, and in due 
 time, appealed to the general term from so much of the said 
 judgment, as decided and adjudged: " That the resolution 
 finally adopted by the common council of the city of New 
 York, and therein mentioned, was not a law but a franchise," 
 which, from the time of its acceptance, became a contract as 
 therein mentioned ; and from so much as decides and 
 adjudges that the common council, aforesaid, had no power 
 or authority to pass the said resolution or make the said 
 grant ; and from so much as decides and adjudges that the 
 said resolution or grant, for reasons manifest on its face, is 
 illegal and void ; and from so much as decides and adjudges 
 that the defendants, or any of them, or any other person or 
 persons, be enjoined and restrained from entering into or 
 upon Broadway,_ for the purpose of laying or establishing a 
 railroad thereon, under the resolution or grant aforesaid ; and 
 from so much as decides and adjudges that the Mayor, Alder- 
 men and Commonalty of the City of New York, be enjoined 
 and restrained from granting, to any person or persons whom- 
 soever, the exclusive right, liberty, or privilege of laying 
 down or constructing a railroad in Broadway. 
 
 The defendants also appealed to the general term of this 
 
132 
 
 NJEW 
 
 YORK. 
 
 
 [N.Y. 
 
 Sup'r Ot. 
 
 Att'y Gen. 
 
 of State of N. Y. vs. 
 
 The Mayor, 
 
 etc 
 
 ., of N. 
 
 T., et al. 
 
 court, from so much of the order made therein, at the special 
 term, on the 9th day of November, 1853, as directs that the 
 complaint be amended by inserting therein the name of the 
 attorney general as a party plaintiff to this action, as well as 
 from that part which directs such amendment to be without 
 prejudice to the proceedings already heard. 
 
 At the time judgment was rendered at special term, the 
 following opinion was delivered by 
 
 DuBR, J. — This cause has been fully heard upon the plead- 
 ings and proofs, and as the complaint has been amended by 
 the introduction of the attorney general as a prosecuting 
 party, I am enabled, and shall now proceed, to deliver my 
 opinion upon the several questions of fact and law that are 
 necessary to be determined. I do not construe section 267 of 
 the Code, as making it the duty of a judge, who has tried a 
 cause without a jury, to set forth in his decision, as in a 
 special verdict, all the facts of the case, including those not 
 controverted by the pleadings, and those which, although 
 controverted, he may deem immaterial. So far as questions of 
 fact are concerned, the judge, in my opinion, fulfils his duty 
 by determining the issues which, in his judgment, are mate- 
 rial. The only issues raised by the pleadings in this case 
 which I deem to be material, are the following : 
 
 1st. Whether the railroad in Broadway, which Jacob Sharp 
 and his associates, defendants in this suit, claim that they 
 have a lawful authority to construct, and avow their intention 
 to construct, if constructed and regulated in the manner pro- 
 posed, will be a public nuisance ? And 2d. Whether the 
 grant made by the common council to Jacob Sharp and his 
 associates of the privilege of laying down and constructing 
 the railroad in question, was made in bad faith and from cor- 
 rupt motives, and must therefore be condemned as a fraudu- 
 lent breach of trust ? 
 
 The affirmative of each of these issues is maintained by 
 the plaintiffs, and from the nature of the facts relied on was 
 necessary to be established by the clearest evidence. The 
 evidence that has been given, I am bound to say, has failed to 
 produce in my own mind that deliberate conviction that in a 
 
1854.] N^W YORK. 133 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. T., et al. 
 
 case like the present could alone justify me in decreeing a 
 perpetual injunction. Whether the contemplated railroad 
 will or will not he a public nuisance is a problem which I am 
 persuaded that experience alone can solye; and, assuredly, 
 no facts have been proved that could warrant me in saying 
 that those members dt the common council who voted for 
 the grant, which is impeached as fraudulent, must necessarily 
 have acted in bad faith, and from corrupt motives. Two of 
 those members have been examined as witnesses and have 
 stated under oath, the reasons by which they were influenced 
 in voting for the grant in question. I have no right to reject 
 their testimony, nor to affirm that those who voted with them 
 were not governed by the same considerations. If they were, 
 the grant, whatever may be my private opinion of its expedi- 
 ency, was made in the honest exercise of a discretion which 
 no court of justice can rightfully interfere with or control. 
 The conclusion is that had the title of the plaintifEs to the relief 
 which they seek, depended solely upon their maintenance of 
 the issues of fact raised by the pleadings, I must have dis- 
 missed their complaint. I proceed next to the question of 
 law, upon the determination of which my judgment will be 
 founded. The resolution of the common council of the 
 30th of December, is not an act of legislation, not a law in the 
 proper sense of the term ; it is the grant of a franchise which, 
 when accepted by the grantees, became a contract upon the 
 terms and conditions set forth in the ordinance. The con- 
 tract, thus made, from its nature and terms, is entire — so 
 that, if any of its provisions, especially those which enter 
 into the consideration of the grant, are found to be illegal, it 
 is void, as a whole. The contract thus considered is, in my 
 judgment, null and void upon its face, for the reasons that 
 follow : 
 
 First. The resolution of the common council not merely 
 grants to Jacob Sharp and his associates the privilege of lay- 
 ing down and constructing the railroad which it describes, 
 but in consideration of their performance of certain stipula- 
 tions and requirements, gives them a perpetual license for 
 running cars for the accommodation of passengers upon the 
 railroad to be constructed ; the contract, therefore, on the 
 
134 Ni:W YORK. [N.T. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 part of the corporation is not merely that the railroad may 
 be built, but that when built, if the grantees so elect, it shall 
 be permanent. These provisions are in my judgment, directly 
 inconsistent with the power which the charter gives to the 
 common council of altering and regulating the streets of the 
 city at its .discretion ; since, if they are valid, it is manifest 
 that no regulation of Broadway can hereafter be made, by 
 which the rights and privileges of the grantees as defined by 
 the contract, can be divested or impaired. If they are valid 
 and the railroad shall be built, the common council will have 
 no power to order its removal, or to prohibit the grantees from 
 running cars thereon for the transportation of passengers. 
 Broadway, so far as it embraces the railroad, will be the 
 property of the grantees, and will no longer be held by the 
 corporation in trust for the city. Hence, if the grant to 
 Jacob Sharp and his associates is valid, the legislative powers 
 of the common council, in relation to the principal street 
 and most important thoroughfare of the city, have ceased to 
 exist. The grant, therefore, cannot be valid, unless the com- 
 mon council may, by contract, relinquish forever the dis- 
 cretionary powers, which the charter gives, and requires them 
 to exercise. No proposition of law, however, is more evident 
 and certain than that a municipal corporation cannot, by 
 contract, or by any other act, abrogate or abridge its own 
 legislative or discretionary powers. Such was the language 
 of Chief Justice Marshall, in Goszler vs. The Corporation of 
 Georgetown, 6 Wheaton, 593, and such the decision, as I under- 
 stand the opinions of the judges of the supreme court of this 
 state in the case of The Corporation of the Brick Presbyterian 
 Church in the City of New York vs. The Mayor, etc., of New 
 York, 5 Cowen, 538, and of Britton vs. The Mayor, etc., of 
 New York, 21 How. Pr., 251. It was not denied, upon the 
 argument, by the counsel for the defendants, that the neces- 
 sary effect of the grant to Jacob Sharp, and his associates, 
 and of the contract which it implies, if construed according 
 to its terms, is to limit and abridge the legislative powers of 
 the common council ; and the only reply given to the objec- 
 tion was that the grant, although absolute on its face, may be 
 repealed, and the contract, although not revocable by its 
 
1854.J 
 
 n:ew yoek. 
 
 
 
 
 135 
 
 Att'y Gen. 
 
 of State of N. Y. vs. The Mayor, 
 
 etc., 
 
 , of N. 
 
 Y. 
 
 , et al. 
 
 terms, be rescinded, whenever the present or any future com- 
 mon council may deem it expedient thus to exercise its inher- 
 ent and inalienable powers. The resolution of the common 
 council, it was insisted, ought now to be construed, as I should 
 have been bound to construe it, had it contained an express 
 provision rendering it subject to a future and unconditional 
 repeal. The reply thus given I am forced to reject, upon full 
 deliberation, as insufficient and unsatisfactory. I have yet to 
 learn that there is or can be any exception from the rule, that 
 a contract which a corporation has no power to make, and, 
 emphatically, where it violates the provisions of its charter, 
 is void in its origin ; and I am yet to learn that a contract, 
 valid when made, can be rescinded by either of the parties, 
 unless the power of rescinding it is expressly reserved, or was 
 given by some constitutional or statutory provision, which 
 was in force when the contract was made. I refer on this 
 subject with full approbation and assent to the observations 
 of Mr. Justice Bosworth in the last of his advisory opinions 
 in the proceedings against the aldermen and assistant alder- 
 men for an alleged contempt. I agree with him that it has 
 certainly never been pretended or supposed that a legislative 
 grant, valid when made, and not falling within either of the 
 exceptions I have stated can ever be repealed ; and I cannot 
 believe that the corporation of this city possesses an author- 
 ity which the legislature of the state would never be permitted 
 to exercise ; I cannot believe that the provision in the con- 
 stitution of the United States which forbids the passage of 
 any law impairing the obligation of a contract is binding upon 
 the legislature of the state, but unmeaning and ineffectual as 
 imposing any restraint upon the action of the common coun- 
 cil. It is, however, unmeaning and ineffectual, if the com- 
 mon council may, by a subsequent ordinance, revoke a grant 
 or rescind a contract, absolute and irrevocable on its face, and 
 which, it is asserted, it had the power to make, and was valid 
 when made. If, by such an ordinance, the obligation of a 
 contract is not impaired, the words of the constitution have 
 no meaning. It follows, from these observations, that where 
 a contract is made by a corporation, which binds and 
 restricts the legislative powers of its successors, it is either 
 
136 Ni:W YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 from the defect of power, void in its origin, or, if valid, can 
 never be rescinded ; and the conclusion which I adopt is not 
 that the contract is valid and revocable, but wholly void. 
 The next common council may repeal the grant to Jacob 
 Sharp and his associates ; but the repeal can never operate to 
 annul a valid and subsisting contract, and will, in reality, 
 amount to no more than a declaration of its original and abso- 
 lute nullity, and this declaration unless sustained by the 
 law, will have no effect on the rights of parties. It will other- 
 wise be nugatory. 
 
 Second. The privileges granted to Jacob Sharp and his 
 associates are plainly exclusive in their nature. The manifest 
 intention of the grant is, that they and they alone shall be 
 licensed to run cars upon the railroad which they undertake 
 to construct, and that they shall alone be authorized to derive 
 profit from the transportation of passengers. It is not pre- 
 tended that the power of granting such an exclusive privilege 
 is expressly given to the corporation, by its charter, nor has 
 it ever been supposed that its possession was incident or nec- 
 essary to the exercise of the powers that are given. On the 
 contrary, it is settled and undoubted law that a by-law of a 
 municipal corporation creating a monopoly is illegal and void. 
 Davenant vs. Hurdis, Moore, 576; Willcoch on Municipal Cor- 
 porations, sec. 390 J and every grant of an exclusive privilege, 
 from the exercise of which a profit is to be derived, is a mono- 
 poly. This objection was endeavored to be met by giving a 
 construction to the resolutions of the common council, to 
 which I find it impossible to assent, and which, I am satisfied, 
 never occurred to the minds of the parties. The common 
 council, it was said, have reserved to themselves the power of 
 making such regulations in relation to the railroad, when con- 
 structed, as they may deem expedient ; and in the exercise of 
 this power may throw open the use of the road to all persons 
 whatsover : to all who may choose to run cars thereon. Such 
 an exercise by the common council of their reserved power, 
 as I interpret the contract of the parties, would be a perver- 
 sion of its language and a violation of its spirit. The power 
 which the common council reserves is merely that of regula- 
 ting the use of the road by the grantees themselves, that is, of 
 
1854.] Ni:W YORK. 137 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 making regulations, which the grantees, in their own exclu- 
 sive use of the road, would be bound to observe. Nor can I 
 at all doubt that it was the clear understanding of the parties 
 that the resolution would secure to the grantees exclusively 
 the beneficial use of the road, in consideration of the labor and 
 ■capital expended in its actual construction, and upon no other 
 terms, I am satisfied, would the grant have been solicited or 
 accepted. Their agreement, therefore, in my opinion, would 
 not be violated more certainly by the total exclusion of the 
 grantees from the occupation of the road, when made, than 
 by the admission of others to share against their wish, in their 
 anticipated profits. The objection, therefore, that this grant 
 •of an exclusive privilege is valid, as creating a monopoly, has 
 not been answered, and as it seems to me, is unanswerable. 
 
 Third. The thirteenth article of the resolution ordinance, 
 containing the grant, provides, inter alia, that the grantees 
 shall form themselves into a joint-stock association, which 
 shall have power, by the votes of a majority in interest of the 
 associates, to establish articles of association and by-laws, 
 and the fourteenth, that such association shall not be dis- 
 solved by the death or act of any associate, but his successor 
 in interest shall stand in his place. These provisions are a 
 very plain attempt to create a joint-stock association, which, 
 without being in all respects a corporate body, shall yet be 
 exempt from the general rules of law by which ordinary 
 partnerships are governed. Such an association, the legisla- 
 ture of the state may possibly create, but assuredly, not the 
 common council of the city, nor can I do otherwise than 
 regard the attempt as a palpable assumption of power. 
 
 Fourth. The twenty-third section of the amended char- 
 ter of 18i9, enacts that all contracts to be made by the author- 
 ity of the common council for work to be done, or supplies 
 to be furnished, shall be made by the appropriate heads of 
 ■departments under such regulations as shall be established by 
 ordinances of the common council. Let it be admitted 
 that the obligation of the grantees and associates to build the 
 intended railroad in Broadway is not a contract for work to 
 be done for the immediate benefit of the corporation, and is, 
 therefore, not within the legal scope of the section that has 
 
138 NJEJW YORK. [E".Y. Sup'r Ok 
 
 Atfy Gen. of State of K. Y. w. The Mayor, etc., of N. Y., et al. 
 
 been recited ; there are other provisions in the grant of the 
 common council which, as it seems to me, by no reasonable- 
 interpretation can be relieved from that objection. The- 
 tenth article of the resolution making the grant, imposed it 
 as a duty upon the associates to sweep and clean the whole of 
 Broadway south of Fourteenth street every morning, and to- 
 remove the sweepings before a certain hour on every day 
 excepting Sunday, and this duty the associates, by the accept- 
 ance of the grant, contracted to perform. Here, then, is a. 
 contract for work to be done — the daily cleaning of a street- 
 for the corporation itself — a contract not made by the head 
 of the proper department, nor under any prior regulations- 
 established by the common council j and why this contract, 
 as transcending the power of the common council and viola- 
 ting the provisions of the amended charter, is not to be- 
 adjudged void, I have^ been and still am unable to understand. 
 If this contract is void, as I am forced to declare, there is a. 
 necessary failure of an essential part of the consideration 
 upon which the grant of the associates was founded and with 
 this failure the entire grant, as deprived of a necessary sup- 
 port, must fall. 
 
 Lastly. By the 372d section of the consolidating act of 
 1813, chap. 86, and by a subsequent act of February 21, 1824, 
 {Laws 0/1824, chap. 60,) the mayor of the.city is authorized, 
 under the direction of the common council, to license for a- 
 certain annual sum, the owners of hackney coaches and car- 
 riages for hire; and these provisions have uniformly been con- 
 strued, and in my opinion rightly construed, as limiting the- 
 power of the common council to fixing the number of licenses 
 to be granted, and the sum to be charged for each, leaving the 
 mayor an absolute discretion in the choice of the person to- 
 whom they are to be given. A car, in which persons are to be- 
 transported for hire on a railroad, is just as certainly a car- 
 riage for hire as a hackney coach or an omnibus ; and so the 
 supreme court of this district, in the important case of DraTce- 
 vs. The Hudson River Railroad Company, 7 Barb., 608, s. c. 
 1 Am. St.-Ry. Dec, 10, has actually decided. 
 
 The 12th article of the resolution of the common council, 
 making the grant to Jacob Sharp and his associates, declares: 
 
1854.] 
 
 NBW TOBK. 
 
 
 
 
 139^ 
 
 Att'y Gen. 
 
 of state of N. T. ««. The Mayor, 
 
 etc., 
 
 , of N. 
 
 Y., 
 
 , et al. 
 
 " Tliat they shall pay, for ten years from the date of opening 
 the railway, the annual license fee for each car now allowed 
 by law, and shall have a license accordingly," and these pro- 
 visions not only abridge the legislative powers of the common 
 council in fixing the annual amount of the license fee, but- 
 take from the mayor all discretion in the choice of persons, 
 and make it his duty to license those whom the common 
 council has selected. Unless the authority of the common 
 council is paramount to that of the legislature, so as to enable 
 them to divest the mayor of an authority that the legislature- 
 has given, these provisions must be void. In my judgment 
 they are so, and consequently, the entire contract of which 
 they are an essential part. Several other objections to the- 
 validity of the grant and contract under consideration, were 
 raised and argued before me, which I forbear to notice, not as 
 rejecting them, but in the conviction that those which have 
 been stated are an ample foundation for the judgment that I 
 pronounce, that the injunction that has been granted must be- 
 made perpetual. The giving of costs in cases like the present 
 rests in the discretion of the court, and as the defendants have 
 succeeded on the issue of facts, and have only failed upon 
 questions of law, in respect to which great differences of opin- 
 ion have existed, no costs are given to either as against the 
 other. I state as a further reason for this decision, that the 
 original plaintiffs have been permitted to amend their com- 
 plaint, without costs, by making the attorney general a party,, 
 and that, but for this amendment, their complaint would have 
 been dismissed. 
 
 The appeals were argued together at the January term,. 
 "1854. 
 
 Mr. David Dudley Field, for the appellants. 
 
 Mr. John, Van Buren and Mr. Henry ' Hilton, for the 
 respondents. 
 
 By the Co [JET : Boswoeth, J.— The appeal from the 
 judgment is stated, in the notice of appe'al, to be from so- 
 much of it as decides : 
 
 First, that the resolution finally adopted by the common 
 
140 NEW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. T., et al. 
 
 council of the city of New York was not a law, but the 
 grant of a franchise, which from the time of its acceptance 
 became a contract. 
 
 Second, from so much as decides that the common council 
 had no power or authority to make such grant. 
 
 Third, from so much as decides that the grant, for reasons 
 manifest on its face, is illegal and void. 
 
 Fourth, from so much as decides that the grantees named 
 in the resolution be enjoined from constructing the railway 
 authorized by it, and 
 
 Fifth, from so much as decides that the Mayor, Aldermen, 
 and Commonalty of the City of New York be enjoined from 
 granting to any person the exclusive privilege of constructing 
 a railroad in Broadway. 
 
 There is also a separate appeal from so much of the order 
 of the 9th of November, 1853, as directs the complaint to 
 be amended by inserting therein the name of the attorney 
 general, as a party plaintiff, and also from so much of that 
 order as directs the amendment to be without prejudice to the 
 proceedings previously had. 
 
 Both appeals were heard at the same time. The appeal 
 from the order involves questions of practice. The appeal 
 from the judgment involves the questions, what is the nature 
 of the resolution complained of ; was the common council 
 legally competent to pass it ; was it illegal and void, or legal 
 and valid ? 
 
 The resolution confers upon certain persons named in it 
 the right to construct a railway, with a double track, thi'ough 
 Broadway, and in or near the middle of the street, from the 
 South ferry to Fifty-ninth street, and to run passenger cars 
 upon it, for their exclusive personal profit and emolument. It 
 contains no provision authorizing the common council to re- 
 scind or repeal it, and so far as its language expresses the period 
 of its duration, it may be perpetual. So long as the "conditions 
 and stipulations," upon which "the said grant of permission 
 and authority" is made, are kept and performed by the 
 grantees, no power is reserved to repeal it. 
 
 The twelfth article stipulates that for ten years from the 
 date of opening the railway, the associates shall have a license 
 lor each car that may be run, for ten dollars per annum. 
 
1854.] 
 
 n:ew yobk. 
 
 
 
 
 141 
 
 Att'y Gen. 
 
 of State of N. Y. vs. The Mayor, 
 
 etc.. 
 
 , of N. 
 
 Y. 
 
 , at al. 
 
 The right is conferred to construct a railroad and run as 
 many cars upon it both ways^ and as frequently, as the public 
 convenience may require, on paying a fee of $10 annually per 
 car, and the privilege is granted of charging each passenger 
 five cents. No other persons can carry passengers for hire 
 during this term of time, through Broadway, by this mode of 
 conveyance. 
 
 The thirteenth, fourteenth, and fifteenth articles, by their 
 terms, confer authority upon a majority, in interest, of the 
 associates to " form themselves into a Joint-stock association," 
 and vest in the association all the rights and privileges 
 granted, and grant the power of determining the mode of 
 transferring the interest of any associate to new associates, 
 and provide that it shall not be dissolved by the " death or 
 act " of any associate, and also that any new associates who 
 may be admitted according to the provisions of the grant and 
 such by-laws as the associates may ordain, shall be deemed 
 parties to the agreement by which the grant has been assented 
 to and accepted. In short, so far as its terms speak, it con- 
 fers all the rights and privileges of an act of incorporation by 
 a statute of the legislature of the state, except that of suing 
 and being sued by the name of the association, and an exemp- 
 tion of the associates from personal liability for the debts of 
 the association. 
 
 The fifteenth article has provided for the difiiculties that 
 might result from these differences between the rights, liabili- 
 ties and exemptions of a quasi corporation created by the 
 common council, and an actual incorporation under a law of 
 the state, by enacting that "said associates may at any time 
 incorporate themselves under the general railroad act when- 
 ever two-thirds, in interest, of the associates shall require it." 
 
 If this provision confers the authority which its terms pur- 
 port to grant then the associates may be incorporated as well 
 after the road is constructed as before it is commenced. The 
 general railroad a,ct does not authorize the creation of an 
 incorporation to maintain and operate an unincorporated 
 railroad not constructed at the time that act took effect. 
 Laws of 1850, chap. HO, p. 211, sec. 1. 
 
 If the authority conferred is valid, two-thirds in interest 
 
142 NHW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., et al. 
 
 may effect an incorporation after the road has been constructed, 
 ■no matter how small the number of the persons holding that 
 interest, and notwithstanding the others dissent. The whole 
 number of associates on whom this authority is conferred is 
 thirty. Two-thirds of this number is twenty, and two-thirds 
 in interest may consist of a smaller number of associates. 
 The act makes it indispensable that not less than twenty-five 
 ■persons shall unite in forming a company. The whole num- 
 ber of associates may be less than this. 
 
 If the authority conferred is valid, the associates may be 
 incorporated, after the road is constructed, although it is not 
 -constructed in conformity with the positive requirements of 
 the general railroad act. 
 
 That act prohibits the use, in the construction of any road, 
 ■by a company formed under it, of any iron rail of less weight 
 than 56 pounds to the lineal yard, sec. 27. It authorizes the 
 running of freight trains, as well as passenger trains, sees. 
 ■36 and 88. It requires every corporation formed under it, to 
 erect and maintain fences on the sides of their road, of the 
 height and strength of a division fence required by law, and 
 to construct and maintain cattle guards, at all road crossings, 
 suitable and sufficient to prevent cattle and animals from get- 
 ting on to the railroad, and provides that if any person shall 
 ride, lead, or drive any horse or other animal upon such road, 
 and within such fences and guards, other than at farm crossings, 
 without the consent of the corporation, he shall, for every 
 •such offence, forfeit a sum not exceeding ten dollars, and 
 shall also pay all damages, which shall be sustained thereby, 
 to the party aggrieved, id. p. SSS, sec. 44- Cities are not 
 ■exempted by the act itself, from the operation of this 
 section. 
 
 As the cars cannot be run, except by keeping their wheels 
 in the grooves of the rails, the resolution abrogates a statute of 
 -the state, relating specially and solely to this city. 
 
 The 198th section of the act of April 9th, 1813, declares : 
 " That in all cases of persons meeting each other in any street 
 or road, in the city and county of New York, in carriages, 
 wagons, carts or sleighs, each person so meeting shall go to 
 that side of the street or road on his right, so as to enable the 
 
1854.] N:EW YORK. 143 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 carriages, wagons, carts or sleighs so meeting, to pass each 
 other, under the penalty of five dollars for every offence, to 
 be recovered by an action of debt, with costs of suit, in any 
 ■court having cognizance thereof, by any person suing for the 
 .same." ^ J?. L., chap. 86, p. 4^2, sec. 198. 
 
 Every person going on either track with a carriage or cart, 
 .and meeting a car going in the opposite direction, must move 
 wholly out of the way of the car, and the car is not obliged to 
 be turned out of the direction marked by its track, and from 
 "the' nature of things cannot be. If instead of meeting a car, 
 any other vehicle had been met at precisely the same spot, the 
 person driving the latter must turn to that side of the street 
 ■on his right, and every failure to do so, would subject him to 
 a penalty of five dollars, and the costs of a suit to recover it. 
 
 A grant of the powers, privileges, and immunities conferred 
 by the resolution in question, is the grant of a franchise, and 
 if the municipal incorporation of this city was incompetent 
 to make the grant, the making of it was a usurpation of 
 power which can lawfully be exercised by the legislature of 
 ■the state only. 
 
 A franchise has been defined to be "a privilege or immu- 
 nity of a public nature, which cannot legally be exercised 
 without legislative grant. To be a corporation is a franchise ; 
 the various powers conferred on corporations are franchises ; 
 the execution of a policy of insurance by an insurance com- 
 pany, and the issuing of a bank note by an incorporated 
 banking company are the exercise of franchises ; without 
 legislative authority, neither could lawfully be done by a 
 ■corporation ; and were a bank to execute a policy of insurance, 
 or an insurance company to issue bank notes, such acts would 
 be usurpations of franchises." The People vs.' Trustees of 
 Geneva College, 5 Wend., 211-217 ; The People vs. Utica 
 Insurance Company, 15 Johns, SB8-S87. 
 
 The, resolution by its terms, assumes, and the defendants' 
 ■counsel insists, that the common council had legislative 
 capacity to pass it, and the merits of the controversy, as the 
 appeal presents them, depend upon the question, whether 
 this assumption is well founded. 
 
 ^either of the city charters, nor any of the statutes of the 
 
144 N:EW YORK. [N.Y. Sup'i Ot. 
 
 Att'y Gen. of State of N. Y. w. The Mayor, etc., of N. Y., et al. 
 
 state, confers any such power in express terms. It is not 
 apparent that it is conferred by implication as being neces- 
 sary to the exercise of any power expressly granted. We 
 have not been referred to the grant of any express powers, or 
 the enactment of any particular duty which makes it neces- 
 sary to imply existence of such authority, in order to prop- 
 erly exercise the one or perform the other. See Thompson vs. 
 Schermerhorn, 6 N. Y., 92; Sharp et al vs. Speir, Jf. Hill, 
 76-83, as to powers of municipal corporations. 
 
 If no such power is conferred by the express terms of its 
 charter, or by the express terms of a statute of the state, or 
 by necessary implication, the assertion of such a right is the 
 usurpation of a franchise. The right here claimed is of a 
 public nature ; it affects the public at large. Here there is 
 no remedy by action to recover damages, no individual in 
 particular is specially aggrieved, but the public at large are 
 affected. The authority of the legislature is put at defiance 
 by a creature of its own creation. People vs. Trustees of 
 Geneva College, 5 Wend., 211-220. 
 
 So far as the terms of the resolution limit the duration of 
 the grant, it may be perpetual. If such is the effect of its 
 terms, if it is valid by reason of the capacity of the common 
 council to make the grant, the acceptance of the grant and 
 the construction and maintenance of a railroad in such man- 
 ner as will fully comply with all the conditions and provi- 
 sions of the grant, will confer rights of property which can- 
 not be divested by a repeal of the resolution by any subse- 
 quent common council, unless upon some ground or for some 
 cause other than a purpose to put an end to the contract, 
 because it wills to do so. 
 
 It was urged on behalf of the defendants, that the grant 
 was not void merely for the reason, that by the necessary 
 meaning of its terms it binds the municipal corporation to 
 allow the enjoyment of the privileges granted as long as the 
 conditions of the grant shall be complied with. That the 
 members of the common council that made it, could not bind 
 their successors ; that any subsequent common council, of its 
 own mere will and pleasure, can annul it ; and that it should 
 be construed as it would be, if the power to annul it at any 
 
1854.J NSW YOBK. 145 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 time, without cause, was expressly reserved in the resolution 
 itself, That neyertheless it was not void when passed, but 
 was valid and revocable, and will remain valid until actually 
 revoked or annulled. 
 
 No case has been cited which asserts the doctrine that a 
 municipal corporation can break its valid contract with im- 
 punity, merely because it does not choose to perform it, or 
 that a mere resolution to rescind it without cause, would not 
 impair the obligation of contracts, if the resolution could be 
 held to repeal it and at the same time to exempt the corporation 
 from liability to damages or from amenability to the process 
 of the courts to compel specific performance. Tliat a statute 
 of the state, which is in its nature a contract, and which does 
 not reserve to the legisliature the power to repeal it, cannot by 
 a subsequent repeal divest rights acquired under it, is settled 
 law. Fletcher vs. Peck, 6 Cranch, 87; The State of New 
 Jersey vs. Wilson, 7 Cranch, 164; Terrett vs. Taylor, 9 id., 
 4S; Trustees of Dartmouth College vs. Woodward, 4 Wheat., 
 518. 
 
 In the latter case, Mr. Justice Story declared the rule to be, 
 that immunities, franchises, and other rights, whenever they 
 are the subjects of a contract or grant are just as much within 
 the reach of the Constitution of the United States, as any 
 other grant. 
 
 Such being deemed to be the settled law, a provision was 
 incorporated into the Eevised Statutes in these words, viz: 
 "The charter of every corporation that shall hereafter be 
 granted by the legislature shall be subject to alteration, sus- 
 pension, and repeal in the discretion of the legislature." 1 
 R. S., 600, sec. 8; The People vs. The President and Direct- 
 ors of the,, Manhattan Co., 9 Wend., 351-S92S. ^ But for this 
 pre-existing law, it would be necessary to insert in every act 
 of incorporation a reservation of the power to repeal or 
 modify it, to enable any subsequent repealing statute, to have 
 the efEect to divest any rights to property, which had been 
 acquired and vested under it. 
 
 It is laid down as an elementary principle, that as neither 
 a state nor the general government can transcend the powers 
 conferred upon them by their constitutions, so a corporation 
 
 10 
 
146 NUW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. vs The Mayor, etc., of N. Y., et al. 
 
 acting by the grant of either, must of course be bound by the 
 supreme law, which limits even the power that created it a 
 corporation. Neither a state, nor the general government, 
 can grant legislative powers larger than they possess them- 
 selves. " Hence, however unlimited in this particular may 
 be the terms of its charter, all by-laws of a corporation, con- 
 trary to the constitutional law of the land, must be void. 
 For this reason, a by-law impairing the obligation of contracts, 
 or taking private property for public use, without just com- 
 pensation, is void." Ang. and Ames on Gorp. ,10th Ed., chap. 
 10, sec. SS3. 
 
 Several cases were relied upon by the defense as deciding 
 the principle that the common council might, at any time, 
 annul the grant, that such an ordinance would divest all 
 rights acquired under it, and would not be a breach of the 
 contract ; and though a legislative act, would not be one 
 impairing the obligation of a contract, and among others we 
 were referred to Corporation of the Brick Presbyterian Church 
 in the City of New Yorlc vs. The Mayor, etc., of New York, 
 5 Cowen, 5S8, and Coates vs. The Mayor, etc., of New York, 7 
 Cowen, 685. We do not think that these cases countenance, 
 much less affirm, such a doctrine. 
 
 In 6 Cowen, 638, the corporation of this city had conveyed 
 the premises, in 1766, on which the brick Presbyterian church, 
 belonging to the plaintiffs, stood, reserving an annual rent, 
 and covenanted that the lessees and their assigns, on paying 
 the rent reserved, and performing the conditions contained in 
 the lease, should quietly use and enjoy the premises without 
 any let or hindrance of the defendants or any other person. 
 On the 27th of October, 1823, the defendants, under a 
 special authority conferred by the legislatute, 2 R. L., JfJfS, 
 sec. 267, passed a by-law prohibiting the use of the premises, 
 as a cemetery, for the interment of the dead. The plaintiffs 
 brought an action to recover damages for a breach of the 
 covenant for quiet enjoyment. 
 
 The court said that "the liability of the defendants upon 
 the covenant in question, must be the same as if it had been 
 entered into by an individual, and the effect of the by-law 
 upon it, the same as if that by-law had been an act of the 
 
1854.] NUW YORK. 147 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., et al. 
 
 state legislature. It is expressly authorized by the legislature, 
 and. whether it be their act or an act of the local city legisla- 
 ture, can make no difEerence." Id., SJfiS^l. 
 
 The cause was decided in favor of the defendants, not 
 on the ground that the grant was rcTocable at pleasure, from 
 mere caprice, nor on the ground that the corporation could 
 relieve itself froni its obligations under a valid contract with- 
 out assigning a cause, or without legislative authority, but on 
 the ground that every right, from an absolute ownership 
 in property, down to a mere easement is purchased and 
 holden subject to the restriction, that it shall be so exercised 
 that its use shall not become a public nuisance. That an act 
 of the legislature declaring a particular use a public nuisance, 
 and prohibiting such use, is a constitutional law, and gives no 
 claim in favor of a purchaser against a vendor, who conveyed 
 with a covenant for its quiet enjoyment. Such a law does not 
 take private property for public use for the property is 
 not taken nor is any entry made upon it; the title is not 
 divested nor impaired; only a certain use is prohibited which, 
 from the increase of population, would be a nuisance. And, 
 for the same reason, in such a case, there is nothing, in 
 the act, impairing the obligation of contracts. The court 
 was also careful to say that "an unwarrantable interference 
 with private property is equally unconstitutional and void, 
 whether by a state legislature or a corporation. By neither 
 can it be touched without necessity; and then, if taken, it 
 must be upon just compensation.-" Stuyvesant vs. The Mayor, 
 etc., of New Yorh, 7 Oowen, 588-606. "The liability of the 
 defendants, therefore, upon the covenant in question, must 
 be the same as if it had been entered into by an individual." 
 Corporation of the Brick Presbyterian Church in the city of 
 New YorTc vs. The Mayor, etc., of New York, 6 Cowen, 638- 
 51fi. 
 
 The grant cannot be annulled from mere caprice. Though 
 an act of the state legislature has empowered the corporation 
 to pass by-laws and ordinances preventing the interment of 
 the dead within the city, it has passed no law authorizing it 
 to annul its valid grants, or terminate its valid contracts 
 because it may be pleased to do so for no reason except that 
 
148 N:EW YORK. [KY.Sup'rCt. 
 
 Att'y Gen. of State of N. Y. «s. The Mayor, etc., of N. T., et al. 
 
 it may be its will and pleasure to repudiate them. No cor- 
 poration, municipal or otherwise, possesses any powers except 
 such as have been granted to it, and no state can grant to a 
 corporation power to do that which it cannot constitutionally 
 do itself. 
 
 The legislative power of a corporation is not only restricted 
 by the constitutional and statute law of the state in which it 
 is located, but by the general principles and policy of the com- 
 mon law, as it is accepted there. It is upon this principle 
 that though many by-laws passed by the ancient municipal 
 corporations and trade companies in England, for the regula- 
 tion of trade and the prevention of monopoly, were held good, 
 yet many have been held void, as being in restraint of trade 
 and an oppression to the subject. Dunham vs. Trustees of Vil- 
 lage of Rochester, 5 Oowen, Jt.62. 
 
 Will it be pretended that a subsequent common council, 
 after the road has been constructed and put in operation, and 
 while all of the conditions of the grant are observed by the 
 grantees, can lawfully repeal the grant and by the same reso- 
 lution make a similar grant, in all respects, to others ? If it 
 cannot, then it has bound itself in perpetuity for the enjoy- 
 ment by the grantees and their assigns, of the rights and privi- 
 leges granted, on their performing the conditions on which 
 the grant was made. 
 
 The fact that the manner of using it is so far subject to 
 legislative control that it can lawfully be so restricted as not to 
 become a public nuisance, or otherwise endanger the health 
 or lives of individuals, furnishes no ground for holding that 
 the grant, if valid, can be arbitrarily repealed, or the rights 
 acquired under it annihilated at the mere will and pleasure of 
 the party, though a corporation, who contracted, upon con- 
 sideration, for their enjoyment in perpetuity. 
 
 It is conceded that the common council cannot divest 
 itself of, nor abridge its legislative discretion, to alter and 
 regulate the streets as it may deem expedient. It cannot be 
 denied that it has no power to prohibit such use of them as 
 the legislative authority of the state has granted to every 
 citizen as a matter of strict right. 2 R. L., ^ZJ,., sec. 198. 
 This grant will produce both results, if valid, and if it con- 
 fers the rights and privileges which it purports to grant. 
 
1854.J NiyW YOEK. 149 
 
 . Att'y Gen. of State of N. Y. w. The Mayor, etc., of N. Y., et al. 
 
 To say that the contract is valid but voidable at pleasure, 
 and valid until avoided, is to affirm that the common council 
 have not, in fact, made such a contract as its provisions 
 express. That though by its terms the rights and privileges 
 granted are to be enjoyed without molestation by the grantees, 
 and their assignees, forever, on their performing the conditions 
 to be observed on their part, yet in fact no such contract has 
 been made. That it is in effect a mere license by the commoh 
 council that these privileges may be enjoyed until it shall be 
 pleased to revoke the license. The contract made is to be deter- 
 mined by the legal import of its terms. If it is not obligatory 
 upon the common council, it must be for the reason that it 
 was incompetent to make it. If incompetent to make a valid 
 contract, such as it has made, it necessarily follows that it is 
 void. It also follows that the attempt to make it, and there- 
 by confer rights and powers which the state legislature is 
 alone competent to confer, and to absolve the grantees from 
 duties from which only the same authority can exonerate 
 them, is a usurpation of power and an illegal exercise of a 
 franchise. 
 
 The privileges granted to the associates are exclusive in 
 their nature. They are granted with the right and authority 
 to appropriate to the use of the grantees and their assigns 
 exclusively, the advantages and emoluments that may arise 
 from their enjoyment. No other person, or association of 
 persons, can be authorized by the common council to run 
 cars for hire upon the road, without a clear violation of the 
 contract. They are to run cars both ways as often as public 
 convenience requires, they are to receive from each passenger 
 fare for riding on their cars, and are authorized to establish 
 by-laws, " providing for the construction, operation and man- 
 agement of the said railway." If at the end of the ten years 
 they do not consent to pay such license fee, per car, as the 
 corporation, with permission of the legislature, shall then pre- 
 scribe, they agree to "surrender the road, with all the equip- 
 ments and appurtenances thereunto belonging, to the said 
 corporation, at a fair and just valuation of the same." 
 
 In a contract between individuals, by which an owner of 
 land should contract that a third person might erect struc- 
 
J 50 NEW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., et al. 
 
 tures and operate machinery upon it, without any limitation 
 as to time on paying a certain rate per annum for the first 
 ten years, and providing that if at the end of ten years he 
 should not pay the annual sum then exacted for the privilege, 
 he should surrender the structures and machinery to the 
 owner of the land upon receiving their just value, it is not 
 clear that the owner, in such contingency, would not be bound 
 to pay such value and accept a surrender of the property. 
 
 However that may be, it is obvious that the spirit and fair 
 meaning of the contract are, that the grantees shall have the 
 exclusive right and privilege of running cars upon the road 
 for their private emolument. And in every grant of a fran- 
 chise, the implied powers and rights conferred by it, are as 
 much beyond the control of subsequent legislation as powers 
 and rights expressly granted. The People vs. The President 
 and Directors of the Manhattan Go. , 9 Wend. , 351. 
 
 It creates an unincorporated association, and exempts it from 
 the operation of the rules of the common law, which define 
 the rights and liabilities of partnerships. The latter declare 
 that a partnership shall be dissolved by the death of one of its 
 members, and give to his personal representatives a right to 
 have an adjustment of the accounts and a division of the 
 property or of its proceeds. This grant declares that neither 
 the death nor any act of either of the associates shall work 
 a dissolution of the partnership, but that the successor in 
 interest of anyone who may die shall stand in his place, 
 and the continuance of his rights shall depend upon his 
 fulfilment of the conditions imposed by the grant, and 
 his compliance with the articles of association, and the by-laws 
 it may establish. Such rights and liabilities the legislature of 
 the state has alone the power to create and impose. 
 
 The 9th section of the amended charter of 1849, Latos 
 of 1849, chap. 187, p. 278-280, declares that the executive 
 power of the corporation shall be vested in the mayor and 
 heads of departments and such other officers as may be created 
 by law, and that the common council shall not perform any 
 executive business whatever, except such as is specially 
 imposed by the laws of the state. The 14th section 
 enacts that there shall be an executive department, to be 
 
1854.] NUW YORK. 151 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 denominated the, " Department of Streets and Lamps/' 
 which shall have cognizance " of cleaning the public streets and 
 collecting the revenue arising from the sale of manure." 
 
 The 33d section, that all contracts to be made for work to be 
 done, shall be made by the appropriate heads of departments, 
 under such regulations as shall be prescribed by the common 
 council. 
 
 The 10th article of the grant makes a contract with the 
 grantees, by which the latter contract to sweep and clean so 
 much of Broadway as extends south of Fourteenth street, in 
 the morning and evening of each day, except Sundays, what- 
 ever the weather may be, and so much of it as lies between 
 Fourteenth and Fifty-ninth streets, equally often, when the 
 weather will permit. It is not a contract to remove so much 
 of rubbish and dirt, as the use of the road shall bring into the 
 street, but to sweep and clean the entire street, and carry away 
 the sweepings, in the morning and evening of each day, for 
 all time tO' come, and the price paid for it is the grant of a 
 franchise with the right of perpetual enjoyment. This would 
 seem to be clearly prohibited by the provisions of the amended 
 charter above referred to. 
 
 Without entering upon the consideration of other objections 
 taken to the legality and validity of the grant, we think it 
 void, on the grounds : 
 
 First. That it grants a franchise, which the common council 
 has no authority to grant. 
 
 Second. The grant, by the meaning and legal import of 
 its terms, may be perpetual. 
 
 Third. The grant is, in judgment of law, a contract between 
 the corporation and the grantees, and, in its legal import, 
 restricts the corporation in the future exercise of its legisla- 
 tive powers. 
 
 Fourth. It confers upon the grantees and their associates 
 exclusive privileges to a partial use of Broadway, which may 
 be of perpetual duration. 
 
 Fifth. It absolves them from an obligation imposed on them 
 by a statute of the state. 2 R. L., 1,24., sec. 198. 
 
 Sixth. It confers rights, and exempts the associates from 
 consequences, in the event of the death of one of their num- 
 
152 NEW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of K. Y. m. The Mayor, etc., of N. Y., ^t al. 
 
 ber, repugnant to, and conflicting with, the settled law of the 
 state. 
 
 Seventh. It authorizes the associates ^ to become incor- 
 porated at any time, under the general railroad act, although 
 the road may have been previously constructed, and whatever 
 may be their ■ number at the time, while the act itself does 
 not allow an incorporation after a road shall have been built, 
 nor of a less number than twenty-five. 
 
 Eighth. It makes a contract, which the common council 
 has been prohibited from making, by the amended charter of 
 1849. 
 
 The attempt to make a grant conferring such privileges and 
 immunities,^ without lawful authority, is a usurpation of power 
 and the illegal exercise of a franchise, and is void. The 
 grantees who insist upon the right to exercise the powers and 
 privileges thus granted; were properly, perpetually enjoined. 
 There are some provisions of statutory law, not referred to 
 by the counsel of either party, which may possibly be thought 
 to favor the proposition, that this grant is to be construed, as 
 it would be if it expressly reserved the power to at any time 
 'modify or repeal it. 
 
 The 374th section of the consolidating act of 1813, pro- 
 vides that all laws and ordinances of the said mayor, alder- 
 men and commonalty in common council convened, may 
 continue in force three years, unless sooner repealed, or 
 enacted for a shorter period, and declares that any ordinance 
 or part of an ordinance "passed in pursuance of the powers 
 hereby granted, may at any time be repealed by the legisla- 
 ture." 2 E. L., U7, sec. 274. 
 
 In 1837, an act, chap. 160, was passed, to the effect that, '^all 
 ordinances heretofore passed by the common council of the 
 city of New York, and now in force, and all ordinances here- 
 after to be passed by the said common council, shall remain 
 and continue in force, until the same shall be repealed. The 
 same act repealed so much of sec. 274 of the act of 1813, as 
 is repugnant to the section above quoted. 
 
 It is obvious, as we think, that it was not the purpose of 
 these sections to authorize the corporation to annul at plea- 
 sure valid contracts, which it was competent to make. * If the 
 
1854.] Ni:W TOEK. 153 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 common council should by resolution contract with anyone to 
 erect a public building, and if authorized to contract directly, . 
 instead of through the head of an executive department it 
 cannot be contended that these sections render it competent 
 for the common council to rescind the resolution when the 
 other party is not in default, without being liable to damages 
 for the breach of it, nor that the legislature attempted to 
 reserve a power to rescind its ordinances, which are in the 
 nature of contracts. On such a construction the legislature 
 may repeal this resolution at any time, or abrogate any right 
 whatever conferred upon any and every person with whom a 
 contract has been made, when the assent or agreement on the 
 part of the corporation is evidenced by an ordinance. 
 
 The word, ordinance or law, as used in those sections, must 
 mean ordinances regulating the duties of the citizens with 
 respect to some subject or matter affectkig all, or particular 
 classes, or kinds of business and other matters general in their 
 character, such as those which relate to the police, the 
 security, the health, and cleanliness of the city. 
 
 But upon no construction can they obviate the fifth, sixth, 
 seventh and eighth, of the objections above specified. 
 
 The only question remaining is, was the order of the 9th of 
 November, 1853, an error, which entitles the defendants to 
 a reversal of the judgment ? An appeal was taken from that 
 separately, but was not brought on to be argued prior to the 
 argument of the appeal from the judgment. As a separate 
 appeal it would be heard as a non- enumerated motion. It is 
 an appeal taken by virtue of sec. 349 of the Code, and not 
 by virtue of sec. 348, and viewed as a separate and distinct 
 appeal, it would not be a calendar cause, but would be heard 
 on the days for hearing non-enumerated motions. Eules of 
 Supreme Court of 1852, Nos. 27, 32, SS; Code, sec. ^70. 
 
 But on an appeal from a judgment the court may review 
 any intermediate order involving the merits and necessarily 
 affecting the judgment. Code, sec, S29. The court may 
 reverse, affirm, or modify the judgment or order appealed 
 from, in the respect mentioned in the notice of appeal, as to 
 any, or all, of the parties. Id. 330. 
 
 The court may, before or after judgment, "amend any 
 
154 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. ««. The Mayor, etc., of N. Y., et al. 
 
 pleading, process, or proceeding, by adding or striking out 
 the name of any party," sec. 173. "Whenever any proceed- 
 ing taken by a party fails to conform in any respect to the 
 provisions of the Code, the court may permit an amendment 
 of such proceeding, so as to make it conformable thereto," 
 id. 17^. 
 
 " The court shall, in every stage of an action, disregard any 
 error or defect in the pleadings or proceedings, which shall 
 not affect the suistantial rights of the adverse party; and no 
 judgment shall be reversed or affected by reason of such error 
 or defect." Id. 176. 
 
 So far as the merits of the controversy depend upon consid- 
 erations growing out of the terms and provisions of the grant, 
 the competency of the common council to make it, the neces- 
 sary legal consequences of assuming to give the authority and 
 create the rights which it purports to confer, and the inevi- 
 table results of an exercise by the grantees of the powers 
 granted, it is to be observed that it was of no importance to 
 the defendants at what stage of the proceedings the attorney 
 general was made a party. The resolution creating the grant, 
 and the instrument by which it was accepted, are spread out 
 upon the record, and there is no controversy or question made 
 by the pleadings, or otherwise, as to their terms. Whether 
 the action had been originally brought by him alone, or by 
 him on the relation of Davis and Palmer, these undisputed 
 facts would present precisely the same point for adjudication 
 so far as the competency of the common council to make the 
 grant, and its legality and its effect upon the rights of the 
 people of the city and county of New York are concerned. 
 If all are proper parties, and the judgment is right upon 
 the merits, there is no defect in form. If right upon the 
 merits, and the attorney general alone is the only proper 
 party plaintiff it should not be reversed in toto, sec. 176. 
 No substantia] right was affected by allowing an unnecessary 
 party plaintiff to appear as such upon the record. The Peo- 
 ple vs. Trustees of_ Geneva College, 5 Wend., 211-220. If the 
 attorney general was unnecessarily made a party, it was not 
 an error or defect affecting the substantial rights of the 
 adverse party. It did not alter the issues between the parties. 
 
1854.J Ni;W YORK. 155 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y:, et al. 
 
 or the trial, in respect to the matters upon which the court at 
 special term decided the controversy. 2 R. 8., 425, sec. 8. 
 The order allowing him to be made a party did not involve 
 the merits, nor necessarily, nor at all affect the judgment, if 
 it can be upheld upon any of the grounds upon which it was 
 decided, or upon which we have concluded it should be 
 affirmed. 
 
 The position taken in the earlier proceedings had in this 
 action, and when among the other facts stated in the com- 
 plaint, were allegations, that the railroad would be a public 
 nuisance specially injurious to Davis and Palmer as property 
 owners, was that the attorney general was a necessary party 
 plaintiff. No one denied that he was a proper party. This 
 court held that he was not a necessary party, in an action to 
 restrain a public nuisance, which would be productive of 
 special pecuniary injury to the individuals who commenced 
 the action. 
 
 If he had been a party at the time the action was com- 
 menced, the suit would have been throughout in the condi- 
 tion as to parties which the defendants, during the proceed- 
 ings in the contempt cases, contended was the only one 
 consistent with technical regularity. 
 
 The Court of Appeals, in the opinion delivered in this case, 
 say, " we are entirely satisfied that the decree of a court of 
 equity, restraining a public nuisance, is not void even though 
 the attorney general be not plaintiff, and though no special 
 injury to the actual plaintiff is averred. It is quite possible 
 that such a decree would be erroneous, perhaps even very 
 clearly wrong, but it would not be void, and the party, who 
 was dissatisfied with it, would be compelled to seek his rem- 
 edy by appeal, and not by setting at defiance the authority 
 of the court." 
 
 Suppose in this case, it had been found as matter of fact, 
 that the railway would have been a public nuisance, but no 
 special injury to the actual plaintiffs, and on that finding a 
 perpetual injunction had been decreed ; would it not have 
 been entirely competent for the court below, even after judg- 
 ment and before an appeal taken, to have allowed an 
 amendment adding the attorney general as a party plaintiff, 
 
156 NEW YORK. [N.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. T. to. The Mayor, etc.. of N Y., et al. 
 
 under sec. 173 of the Code ? It would not affect the form of 
 the issue, in which the action had been decided, the evidence 
 that could be giren under it, nor the form or place of the 
 trial, whether he had been originally a party plaintiff, or 
 was made such at any subsequent stage of the proceedings. 
 
 An action to annul the grant of a franchise made by a 
 municipal corporation, if exercised in conformity with the 
 powers and privileges conferred by the terms of the grant, 
 would interfere with rights conferred by statutory law upon 
 every one residing or traveling within the territorial limits of 
 the corporation, is one in which not only every corporation is 
 directly interested, but is one in the event of which the peo- 
 ple of this state are also interested. 
 
 If we are to look to the Code alone, and to pre-existing 
 statutory law not repealed by it, to determine whether all 
 who now appear as plaintiffs to the record are proper parties, 
 it will be manifest that all of them are. 
 
 An ordinary proceeding by which a party prosecutes 
 another for the protection of a right, or the prevention of a 
 wrong, is a civil action. Code, sec. 2. Every action must be 
 prosecuted in the name of the real party in interest, id. Ill ; 
 and when the question is one of a common or general interest 
 to many persons ; or when the parties are very numerous, and 
 it may be impracticable to bring them all before the court, 
 one or more may sue or defend for the benefit of the whole, 
 id. 119. The questions in this case, are questions' of common 
 interest to every citizen residing within the city, and affect 
 all the corporators alike. The original plaintiffs are citizens, 
 residents within the city, and corporators of said city. This 
 is alleged in the complaint, and not denied by either answer 
 of any of the defendants. They are also alleged to be own- 
 ers of real and personal estate, and taxpayers ; and while the 
 grantees of the railway put these allegations in issue by deny- 
 ing that they have any knowledge or information sufi&cient to 
 form a belief as to these facts, we understand that the judge 
 who tried the cause, found these allegations in favor of the 
 plaintiffs. He allowed the plaintiffs an election to have an 
 issue for a jury upon the question, " whether the contem- 
 plated railroad would be a public nuisance specially injurious 
 
1854.] Ni:W YORK. 157 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., et al. 
 
 to the plaintifEs," which we think he would not haye done, 
 if these facts had not been satisfactorily proved ; and no 
 point has been made on this appeal, that it was not proved 
 that the plaihtifEs owned in fee the real estate situate on 
 Broadway — as the complaint alleges. 
 
 At all events, they were citizens, residents, and two of the 
 corporators of the city. They were proper parties. The 
 complaint, by its terms, states the action to be brought, " as 
 well on their own behalf as on behalf of all other corporators 
 and taxpayers of the city of New York, who may be affected 
 by the several matters" therein complained of. In that 
 respect, it conforms to sec. 119 of the Code. 
 
 The Eevised Statutes makes it the duty of the attorney gen- 
 eral to prosecute or defend all actions, in the event of- which 
 the people of this state shall be irtterested. 1 R. 8., 179, sec. 1. 
 This is one in the event of which the people of this state are 
 interested. The people could not be affected by any judg- 
 ment in this action, in favor of the defendants, unless parties 
 to it. The attorney general was not only a proper party, but 
 was a necessaryparty to a complete determination of the con- 
 troversy. In such a case it was proper that he should be made 
 a party, and the Code contains ample provisions for making 
 all necessary amendments to effect that object. Code, sees. 
 122 and 173; Jennings vs. Spring, 1 Bailey's JEq., 181. 
 
 If technically accurate phraseology required the amendment 
 to be in such form, in its description of the parties as they 
 would stand upon the record after the amendment made, as to 
 state that "The People of the State of New York, by the 
 attorney general of the said state, on the relation of Thomas 
 .E. Davis and Courtlandt Palmer, complain to this court, the 
 said Davis and Palmer, as well in their own behalf," etc., we 
 will intend that it was so made, as nothing to the contrary 
 appears. The object of the amendment was to make the 
 people of the state a party, and, in common parlance to effect 
 that result the attorney general, as representing the people, is 
 made a plaintiff in the action. A mistake in the name or 
 description of a party may be corrected after judgment. Code, 
 sec. 173, and it is not an error for which a judgment can be 
 reversed. It affects no substantial right of the adverse party. 
 
158 NHW YOBK. [JST.Y. Sup'r Ot. 
 
 Att'y Gen. of State of N. Y. vs. The Mayor, etc., of N. Y., et al. 
 
 especially when the description discloses with sufficient dis- 
 tinctness to leave no reasonable doubt who is designated by it. 
 
 There is an obyious propriety in all such cases in joining 
 with the people as plaintiffs responsible individuals who have 
 an interest in the right sought to be protectedj or in pre- 
 venting the threatened wrong. If the action shall prove to 
 have been brought on an erroneous assumption as to the facts 
 or the legal consequences of facts accurately stated, the indi- 
 viduals on whose relation or information it was commenced 
 will be liable for the costs, and the people will not be liable 
 except upon a failure to collect them by execution against the 
 private parties. Code, sees. S19, 320. The Attorney General 
 vs. The Mayor, etc., of Dublin, 1 Bligh, N. JR., S12, as to the 
 olject of uniting private persons with the attorney general as 
 plaintiffs. 
 
 The union of individuals with' the people as plaintiffs is in 
 accordance with the expressed provisions of the Code, in 
 relation to actions substantially like this in their nature, and 
 the object is to exempt the state from the costs in an unsuc- 
 cessful litigation. 
 
 After this grant had been made, if the view which we have 
 taken of the character of the resolution creating it be correct, 
 the attorney general, upon his own information, or upon the 
 complaint of Davis and Palmer, without the previous order 
 of any court, could have brought an action against the cor- 
 poration on the ground that it had "illegally exercised a fran- 
 chise." Code, sees. 4^8 and 432. The grant of the privileges 
 conferred on Sharp and others, if the common council was 
 incompetent to make it, was an illegal exercise of a franchise 
 and a usurpation of power. Tlie People vs. Utica Ins. Co., 
 15 Johns., 358-387 ; The People vs. Trustees of Getieva Col- 
 lege, 5 Wend\, 211-217 ; Commonwealth vs. Fowler, 10 Mass., 
 290, 295, and 301. 
 
 The attorney general is not required by sec. 433 to bring 
 the actions enumerated in it in any particular court. But at 
 the time this action was commenced no grant had been made. 
 The action was brought to protect the rights that would be 
 invaded, and prevent the wrongs that would be inflicted by 
 its passage, and the exercise of the powers it purported to 
 
1854.] NEW YORK. 159 
 
 Att'y Gen. of State of N. Y. m. The Mayor, etc., of N. Y., et al. 
 
 grant, by restraining its passage. After it had been passed 
 in defiance of the injunction of the court, the persons in 
 whom the rights and powers it created and conferred were 
 vested, were also made parties to restrain them from acting 
 under it, and to conclude them by any judgment that might 
 be rendered. 
 
 If the view taken of the grant be correct, its passage and 
 an exercise of the powers it conferred would be an illegal 
 invasion of the rights of every corporator of the city, and of 
 every citizen of the state. To protect these rights and pre- 
 vent the wrong of such an invasion of them, this action was 
 brought. The Code gives a remedy by action to protect the 
 right and prevent the wrong. The suit is prosecuted by the 
 people, who are interested in its event, and by private parties 
 in behalf of themselves and others similarly situated, who 
 would be more immediately and constantly affected by the 
 wrong than citizens not residing within the city. The action 
 was commenced by the service of a summons, the mode of 
 proceeding prescribed by the Code.. The plaintiffs are com- 
 petent to sue, they have commenced an action provided by the 
 Code and in the manner directed by it, sec. 127. It is brought 
 against the party that threatened to do the wrong sought 
 to be prevented. That party is a municipal corporation, one 
 of whose privileges, secured to it not only by the Dongan and 
 Montgomerie charters, but by the statutes and constitution of 
 this state, is that "of suing and being sued in all courts in 
 like cases as natural persons." Art. 8, sec. S of Constitution, 
 1846; IE. S., 699, sec. 1, sub. 2. 
 
 The Court of Appeals having decided that the jurisdiction 
 of this court over actions against this corporation " is as wide 
 as the definition of an action under the Code, and that it is 
 defined to be ' an ordinary proceeding in a court of justice by 
 which a party prosecutes another party for. the enforcement 
 or protection of a right, the redress or prevention of a wrong,' " 
 it would be out of place to enter upon the consideration of 
 the extent of its jurisdiction. 
 
 The right asserted, and recognized and protected by the 
 judgment appealed from could only have been enforced by 
 action. The only full and adequate remedy against the wrong 
 
160 NEW YOBK. [KY. Sup'rOt. 
 
 Weyant m. The New York and Harlem K. E. Co. 
 
 sought to be restrained consisted in preventing the wrong. 
 The judgment appealed from secures redress by inhibiting the 
 wrong. Unless a judgment which merely protects undoubted 
 rights and prevents the commission of acts which would be 
 clearly wrong, should be reversed by reason of some exemption 
 of the defendant from that control to which all natural and 
 all other artificial persons are subjected, which has not been 
 pointed out, we perceive no grounds for disturbing the judg- 
 ment of the special term. The judgment appealed from 
 must, therefore, be aflflrmed with costs. 
 
 Judgment afl&rmed. 
 
 TOBIAS WEYANT vs. THE NEW YOKK AND HAKLEM 
 EAILROAD COMPANY. 
 
 GENERiL TEEM. 
 
 10 N. Y. Superior Court, {3 Duer.) 360. 
 
 Plaintiff was injured by being thrown out of his wagon which 
 collided with a car belonging to the New York and New Haven Rail- 
 road Company, but the horses which drew the car, and the driver who 
 was driving it, were in the employ of the defendants, the New York 
 and Harlem Railroad Company. 
 
 Held, that the action was properly brought against the New York and 
 Harlem Railroad Company, the owners of the horses and employers of 
 the driver. 
 
 The action was tried November 14, 1853, in the Superior 
 Court of the city of New York before Duer, J., and a jury, 
 and the following facts were established : 
 
 The defendants. The New York and Harlem Eailroad Com- 
 pany, were owners of a railroad which ran through certain 
 streets of New York City. There was an agreement between 
 defendants and the New York and New Haven Railroad Com- 
 pany by which the cars of the New Haven Company were 
 allowed to pass over defendants^ track for a considerable 
 distance in the city, A short track had been laid down in 
 Canal street by the defendants for the use of the New Haven 
 Company, and led from the track used by the defendants and 
 
1854.] NJEW YORK. 161 
 
 Weyant vs. The New York and Harlem R. R. Co. 
 
 the New Haven Company in common, to the New Haven 
 Company's depot in Canal street. The contract also provided 
 that the defendants should furnish horses and drivers to draw 
 the cars of the New Haven Company from the depot in Canal 
 street to Thirty-first street. The plaintiff was an ice dealer 
 and supplied his customers from a covered ice-cart. On July 
 35th, 1851, the plaintiff, in his wagon, was going along Canal 
 street, between the track and a pile of bricks, when a car 
 belonging to the New Haven Company, came up behind 
 his wagon and by the negligence of the driver of the car, 
 struck his wagon and broke it and the plaintiff was thrown 
 out. The car passed on and left the plaintiff and his horse 
 and wagon, as one of the witnesses said on the trial, " all in 
 a heap up against the bricks." The horses that drew the 
 car belonged to the defendants, the Harlem Company, and 
 the driver was employed by them and was in general subject 
 to the directions of the conductor employed by the New 
 Haven Company, but no evidence was given that the con- 
 ductor had given him any directions at this time. The 
 judge charged the jury that if the cause of the collision was 
 the negligence of the driver of the car and there was no 
 negligence on the part of the plaintiff, the latter was' entitled 
 to recover. He also instructed them, that if the action could 
 be sustained at all, it was properly brought against the defend- 
 ants. Defendants' counsel excepted to this part of the charge. 
 
 The jury rendered a verdict for the plaintiff for five hun- 
 dred dollars. Judgment was reserved, with leave to plaintiff 
 to move for judgment upon a case to be made. Plaintiff 
 subsequently made such a motion and judgment was rendered 
 for him, from which this appeal is taken. 
 
 Upon the appeal, the only question discussed was whether 
 the action was properly brought against the defendants. 
 
 Mr. C. W. Sandford, for the appellants. 
 Mr. E. H. Owen, for the respondents. 
 
 By the Couet : Campbell, J. — In this case the facts are 
 briefly these. Weyant was thrown out of his wagon and 
 injured in Canal street, by a car which belonged to the New 
 
 11 
 
162 NEW YORK. [KY. Sup'r Ct. 
 
 Weyant vs. The New York and Harlem R. R. Co. 
 
 Haven Railroad Company, but the horses which drew it, and 
 the driver who was driving it, were in the employ of the 
 defendants, the Harlem Railroad Company. 
 
 The sole question which arose was, whether the Harlem 
 Railroad Company or the New Haven Railroad Company were 
 liable. 
 
 This exact question has not, I believe, arisen before in this 
 country. It has arisen, however, in several cases in England ; 
 and among these, I refer especially to the following — Laugher 
 vs. Pointer, 5 Barn. & Or., 560 ; Qttarman vs. Burnett, 6 
 Mees. & Wels., 499; Rapson vs. GuUtt, 6 id. 710 ; Allen 
 vs. Hay ward, 7 Adolph. <& E., N. S., 960. In Laugher vs. 
 Pointer, the judges were divided, but in all the others they 
 were unanimous, and the true rule deducible from all of them 
 is undoubtedly that which is lucidly stated by Parke, Baron, 
 in Quarman vs. Burnett. In that case, the defendant was 
 the owner of a carriage, and had hired from a third person 
 a driver and pair of horses to draw the same for a short time, 
 and during this time, the plaintiff's horse, through the careless- 
 ness of the driver, was injured. The question was, whether 
 the defendant, as owner of the carriage, was liable. The 
 judges were all of opinion that he was not, and in delivering 
 their judgment, Parke, Baron, said : " Upon the principle, 
 ' qui facit per alium facit per se,' that person is undoubtedly 
 liable who stands in the relation of master to the wrong-doer, 
 who had selected him from the knowledge of, or belief in, his 
 skill and care, who could remove him for misconduct, and 
 whose orders the wrong-doer, as a servant was bound to 
 receive and obey." It is evident that every word here said is 
 applicable to the case before us. 
 
 The Harlem Railroad Company was the owner of the horses 
 which drew the car, and the driver was in their employ, paid 
 by them, bound to receive and obey their orders, and liable 
 to be dismissed by them at pleasure. 
 
 The fact of negligence has not been in dispute at all, but 
 we have simply to determine which of the companies is liable, 
 in damages, to the plaintifE. We think the proper parties 
 are sued in this case. 
 
 The sole distinction between this and the English cases 
 
1854.] Ni:W YORK. 163 
 
 Mazetti vs. The New York and Harlem R. R. Co. 
 
 already cited is, that the conductor, who came down in the 
 New Haven cars, might have had a supervision over the driver 
 of the car ; but it does not appear that, in point of fact, 
 this conductor gave any directions in relation to these mat- 
 ters at all. We have, therefore, the case of the Harlem 
 Company being the owners of the horses, and the driver 
 being their servant, and in their immediate employ. Under 
 these circumstances, it appears to me that the Harlem Com- 
 pany were alone liable, and that the judgment rendered 
 against them should be affirmed with costs. 
 
 Judgment affirmed. 
 
 JOSEPH MAZETTI vs. THE NEW YORK AND 
 HARLEM RAILROAD COMPANY. 
 
 SENBEAL TERM. 
 
 3 N. T. Oommon Pleas, {S E. B. Smith,) 98. 
 
 A railroad company duly authorized to lay its track in one of the 
 streets of the city, is not liable, for accidents which may occur by reason 
 thereof, unless there was negligence or want of skill in the manner of 
 laying the rails or in maintaining the same. 
 
 And in order to maintain an action by one who was exercising 
 the common right of passing over the street, for injuries received, 
 proof of such negligence or want of care or skill in the manner of con- 
 structing or maintaining the track, is necessary. 
 
 The court will not set aside the report of a referee upon the facts, 
 •even though after reading the evidence, the court is of the opinion that 
 it would have found differently, unless the finding of the referee is so 
 plainly against the weight of evidence, or is so far without evidence in 
 its support, as to warrant the presumption of partiality or bad faith on 
 his part or unfairness or mistake in his application of some rule of law. 
 
 This was an action for injuries to plaintifE's horse occasioned 
 by the hoof of the horse being, caught between the rails of 
 defendants' track, within the city limits, in such a manner as 
 to lame and permanently injure him. The case came before 
 the court, on an appeal by defendants, from a judgment 
 entered against them, on the report of a referee. During the 
 argument of the appeal, the court ordered its suspension. 
 
1G4 NJEW YORK. [Com. PI. 
 
 I Mazetti l>s. The New York and Harlem K. E. Co. 
 
 until the referee had made a further report as to whether 
 there was any negligence on the part of the defendants, and 
 if so, what it was. The appeal was then heard upon the 
 original and supplemental reports. 
 
 Mr. Charles W. Sandford, for the defendants. 
 Mr. Horton H. BurlocJc, for the plaintiff 
 
 Bt the Court : Woodruff, J. — Numerous exceptions 
 were taken by the defendants to the ruling of the referee upon 
 the admissibility of evidence, and the correctness of some of 
 those rulings appears to me not free from doubt. But the appell- 
 ant's counsel did not urge his appeal upon any such ground, 
 nor submit any point founded upon any alleged error of the 
 referee in this respect. It is therefore unnecessary that we 
 should consider those exceptions in examining the appeal. 
 
 The report of the referee, as first submitted to us, plainly 
 proceeded upon the legal proposition that although the 
 defendants had laid their rails under competent Jegal author- 
 ity, and under the superintendence, direction, and consent of 
 the corporation of this city, and although the rails were laid 
 down without any negligence or want of skill in their con- 
 struction, position, or condition at the time, the company are 
 nevertheless liable to third persons, if the rails cause an injury 
 to them while engaged in the lawful use of the street ; or, in 
 other words, the company could not lay down any rails, how- 
 ever skilfully and carefully, without a liability to pay for 
 accidents occurring to those who used the street in the ordi- 
 nary mode, the latter not being' guilty of carelessness or negli- 
 gence. 
 
 Our impressions, when the case was called for argument 
 and opened, were, that this rule imposed upon the railroad 
 company was too stringent, and not warranted by sound prin- 
 ciple or the authorities, so far as the subject has been brought 
 under judicial discussion. 
 
 The cases cited by the plaintiffs' counsel, Fletcher vs. 
 Auiurn and Syracuse Railroad Company, S5 Wend., ^62: 
 Hamilton vs. New York and Harlem Railroad Company, 9 
 Paige 171; s. c. 1 Am. St.-Ry. Dec, 1 ; Drake vs. Hudson 
 
1854.] NEW YORK. 165 
 
 Mazetti vs. The New York and Harlem R. R. Co. 
 
 River Railroad Company, 7 Barb., 608-648, etc., s. c. 1 Am. 
 St.-Ry. Dec, 10 j Plant ts. Long Island Railroad Company, 
 10 Barb., 26-28 ; Ghapmanys. Albany and Schenectady Rail- 
 road Company, 10 id., 860 ; Hentz vs. Long Island Rail- 
 road Company, IS id., 666 j and Milhau vs. Sharp, 16 id., 
 19S-208; s. c. / Am. St.-Ry. Dec, 68-62, do not appear to me 
 to warrant the proposition contended for. 
 
 If the defendants had a lawful right to lay their track in 
 the street, and I have no doubt they had, " provided (in the 
 language of the chancellor in Hamilton vs. New Fork and 
 Harlem Railroad Company, 9 Paige, 171, s. c. 1 Am. St.-Ry. 
 Dec, 1,) it did not materially interrupt the ordinary use of the 
 street through which it passed," then they were not liable at 
 all events for the consequences of every accident which might 
 occur by reason thereof. No doubt if there was any negli- 
 gence or want of skill either in the manner of adjusting or 
 laying the rails, or in maintaining the same, they were liable, 
 but otherwise not. A pavement is laid in the street to pro- 
 mote the public convenience, and yet it may cause an acci- 
 dent which would not have happened if the street were not 
 paved. A particular mode of paving may be selected which 
 is, upon the whole, most conducive to the public convenience, 
 and which may yet in an individual instance occasion an 
 injury which would not have happened in the use of a pave- 
 ment of a different kind. 
 
 I apprehend that the common right of our citizens to use 
 the streets is in all respects subject to the right of the public 
 authorities to regulate and control it, and to permit new modes 
 of use, as the exigencies of society and the better conduct of the 
 business of the city may require ; and the idea that such alter- 
 ation in the mode of use, or even an appropriation of a por- 
 tion thereof to a specific mode of use, can Only be made upon 
 due compensation to those who may be prejudiced thereby, 
 because it appropriates private property to the use of the pub- 
 lic without compensation, (if such a suggestion has any foun- 
 dation,) has no application to a case like the present. When 
 that argument has been urged, it has been on behalf of owners 
 of lots in the vicinity who claim that their property has been 
 injured. 
 
166 N:EW YORK. [Com. PI. 
 
 Mazetti ««. The New York and Harlem R. R. Co. 
 
 We were, therefore, not prepared to adopt the holding of 
 the referee as unqualified and absolute, that as between the 
 defendants and this plaintifE " the streets cannot be obstructed 
 by rails but at the risk of those who put them down on such 
 streets," irrespective of the question whether they were well 
 or ill constructed, and whether put down under the sanction 
 of legislative authority, and with the approbation of the city 
 authorities, or not. 
 
 Under these circumstances, we ordered the case referred 
 back to the referee for his finding upon the question of actual 
 negligence on the part of the defendants, and that he report, 
 if he find such negligence, in what the negligence consists ; 
 and therefore he has reported, that he finds negligence on the 
 part of the defendants in this, that "the rails were not so 
 constructed and laid so closely together, and in such form as 
 to prevent horses from getting their shoes in between the rails 
 by the ordinary pressure of a horse ; or the swelling after hard 
 frost, between which flat rail, and the main rail the injury to 
 the plaintiff's horse occurred." 
 
 Although the other language of the supplemental report 
 when read in connection with the report first submitted, may 
 warrant a suspicion that his latter finding was mainly gov- 
 erned by the view of the relative rights of the parties above 
 controverted ; yet it is not so clearly so that we can interfere 
 upon that suspicion ; nor can we say that this finding is so 
 plainly against the weight of the evidence that it should not 
 be suffered to stand. 
 
 We have no doubt whatever of the duty of the company in 
 regard to the construction and maintenance of their track, to 
 exercise such care and skill as are reasonable, taking into view 
 the place in which the track is laid ; the common right of 
 our citizens to pass and repass over the track ; the necessity 
 which, at the intersections of streets, especially, compels per- 
 sons with horses and vehicles of all kinds, loaded and unloaded, 
 to cross the track in the pursuit of their ordinary business. 
 And it is equally clear that reasonable care and skill under 
 such circumstances are of a much higher degree than would 
 be imposed upon them under circumstances of a different 
 character. Indeed what is ordinary care and skill is always 
 
1854.] NJEW YORK. 167 
 
 Mazetti m. The New York and Harlem R. R. Co. 
 
 to be determined by reference to the place and circumstances 
 in which a party is acting. 
 
 Upon this question of negligence or care in constructing 
 and maintaining the track, the evidence was conflicting. It 
 was claimed by the defendants that the two rails were laid as 
 closely together as was possible; and some witnesses say they 
 were in actual contact ; and yet the fact is plainly shown that 
 the shoe of the horse or some part of it pressed between them. 
 Other witnesses say there was a considerable space between 
 them — one says two inches — and that there was distance 
 enough to admit a horse's foot or shoe to be caught therein. 
 Another gives us to understand that when the inner rail was 
 " pried up," in order to release the horse's foot, it was done 
 by inserting a " cart rung " two inches in width and thickness 
 between the two rails. There is much other evidence on the 
 point, and if I were called upon to determine the weight of 
 the evidence on this question of negligence, I might perhaps 
 difEer from the referee in his conclusion, but that alone would 
 not warrant a setting , aside of his report. We have held, 
 repeatedly and uniformly, that, unless the preponderance of 
 testimony against the finding of a referee is so great as to 
 warrant the presumption of partiality or bad faith, or at least 
 unfairness or mistake in the application of some rule of law, 
 we cannot disturb the finding. Many reasons for this might 
 be assigned. An obvious suggestion is, that having the wit- 
 nesses before him in person, he has a better opportunity to 
 determine the degree of credit to which their testimony is 
 entitled than we can have. It was conceded on the argument 
 that it was not necessary nor proper to place the rails so far 
 separated from each other as to create any danger of catching 
 the feet of horses passing over, and it was insisted that these 
 rails were not so placed, but were in actual contact with each 
 other. The evidence on the subject conflicts very materially, 
 and I feel bound to regard the finding of the referee as 
 conclusive. The judgment should, therefore, I think, be 
 affirmed. 
 
 Judgment affirmed. 
 
168 N:EW YORK. [Com. PI. 
 
 Oldfleld m. The New York and Harlem R. R. Go. 
 
 THOMAS J. OLDFIELD, Administrator, etc., of Hetty 
 
 Downie, deceased, vs. THE NEW YORK AND 
 
 HARLEM RAILROAD COMPANY. 
 
 GENERAL TSIEUl. 
 
 3 N. T. Gommon Pleas, (3 E. D. Smith,) 103. 
 Affirmed, U N. Y., 310; s. c. 1 Am. Bt.-By. Bee., n^.. 
 
 This was an action for damages for the death of a child caused by 
 the defendants' car running over her. The child was aged six years 
 and ten months and was in the street unattended. 
 
 Held,, that the mere fact of permitting such a child to be alone in the 
 streets of a city unattended, is not as matter of law, presumptive negli- 
 gence. That in such cases, it is properly left to the jury to say under 
 the peculiar circumstances of each case, whether or not it is negligence. 
 
 The complaint charged, that the defendants by the wrongful act, 
 negligence and default of themselves and their agents and servants, ran 
 over the child and caused her death. 
 
 Meld, that evidence could be introduced under this clause, to show 
 the defective construction of the car that tended to occasion the acci- 
 dent, as well as carelessness on the part of the driver of the car and 
 others, in its management. 
 
 The action was brought under the law of 1847. amended in 1849, 
 which provides that the action may be maintained and damages recov- 
 ered whenever a case occurs in which, if death had not ensued, the 
 Injured party could have maintained an action ; the principles of lia- 
 bility on the part of the defendant is the same. 
 
 Held, that it is not necessary for a recovery, that any actual pecuni- 
 ary loss should be proven; mere proof of the death, and that it was occa- 
 sioned by the defendants' negligence, is sufficient. 
 
 The amended second section of the act, limited the recovery to $5,000, 
 and provides " that the jury may give such damages as they may deem 
 a fair and just compensation with reference to the pecuniary injuries, 
 resulting from such death, to the wife and next of kin of the deceased 
 person." 
 
 Held, that the statute was intended to give damages for prospective 
 losses, and not for what could be proven ; and that these damages were 
 to be determined by the jury, after they had before them all the facts 
 and circumstances of the case. 
 
 These laws were intended to compel persons and corporations engaged 
 in a business which endangered the lives of citizens, to be careful ; and 
 in cases of failure, to punish them for their negligence. 
 
 The verdict of the jury for SI, 300, in this action brought by an 
 administrator for the benefit of the mother of the child, held to be not 
 excessive. 
 
1854.] NJEW YORK. 169 
 
 Oldfleld ««. The New York and Harlem R. R. Co. 
 
 This was an action brought by the administrator, for 
 the benefit of the mother of a deceased child, under the Laws 
 of I847, chap. liSO, p. 575, amended by Laws of 18Ifi, chap. 
 256, p. S88, which gives a right of action for the benefit 
 of the next of kin, to the representatives of a deceased person 
 ■whose death has been caused by the negligence of a company 
 or individual. The complaint alleged, that the defendants 
 were a body corporate, and had a business oflBce in the city of 
 New York. That on May 9th, 1849, the deceased was run 
 over by one of defendants' cars on Centre street, negligently 
 and carelessly driven by a servant of the defendants, whereby 
 she was so mangled and crushed, that she died on the same day. 
 The complaint further stated: "And so the plaintifE says, 
 that the said defendants, on the day last aforesaid, at the city 
 of New York aforesaid, by the wrongful act, negligence, and 
 default of themselves and their agents and servants, ran over 
 and crushed and mangled the said Hetty Downie, and caused 
 her death;" and it went on to state that an action had accrued 
 to the administrator, to demand and have, from the defend- 
 ants, compensation in damages for the injury done to the 
 next of kin of the deceased, by their wrongful act. 
 
 The answer denied the allegations of negligence. On the 
 third trial of the case the plaintifE obtained a verdict for 
 $1,300. The child, who was a girl six years and ten months 
 old, was killed, while attempting to cross the railroad track 
 diagonally, by one of the long cars of the defendants, drawn 
 by four horses. A small city car of the defendants had just 
 passed, going in the opposite direction, when she started 
 to cross the street. 
 
 Evidence was given that the child was remarkably proficient 
 in music. 
 
 Daly, J., who presided at the trial, denied a motion for a 
 new trial, made by the defendants at special term, and the 
 case came up on appeal from the order entered upon that 
 decision. 
 
 Mr. Charles W. Sandford, for the defendants. 
 
 Mr. John Graham and Mr. David Graham, for the 
 plaintifE. 
 
170 NUW YOBK. [Com PI. 
 
 Oldfield »s. The New York and Harlem R. R. Co. 
 
 Ingraham, F. J. —This action is to recover damages for 
 the death of a child, produced by the carelessness of persons 
 in the employ of the defendants. The action is brought 
 under the statute of 1847. The child was six or seven years 
 of age, living in the neighborhood of the accident. She was 
 taken to the hospital, and died before night. The evidence 
 tended to show that the car was driven faster than ordinarily; 
 that immediately preceding the accident the driver of the car 
 was looking in a direction different from that in which he was 
 going, and that if he had noticed the child when the witnesses 
 did, the accident might have been avoided. Evidence on the 
 part of the defence was offered, to explain or excuse any 
 apparent negligence on the part of the driver. The evidence 
 on this branch of the case was to some extent contradictory, 
 and was submitted by the judge to the jury for their decision, 
 with proper instructions as to the effect of negligence on the 
 part of the driver, as well as on the part of the child. 
 In regard to the defendants, there can be no daubt that 
 the decision of the jury, as to the negligence of the driver, is 
 conclusive upon that point. In regard to the child, also, 
 I think the same rule must be recognized. There are cases 
 where permitting a very young child to be in the streets, with- 
 out an attendant, is of itself evidence of negligence sufficient 
 to defeat an action of this kind, but those cases are of children 
 much younger than this one; and although there may be 
 negligence in permitting such a child to be alone in the 
 streets of a city unattended, still, at her age, I am not pre- 
 pared to say that, as matter of law, such negligence is to be 
 presumed. On the contrary, I think it is properly to be left 
 to the jury to say whether, under the peculiar circumstances 
 of each case, a child, permitted to go through the streets 
 at such an age, was or was not possessed of sufficient judgment 
 and discretion to avoid ordinary accidents to which she might 
 be exposed in crossing the streets of the city. The defend- 
 ants moved for a nonsuit, on this ground, and also for 
 the want of evidence of any pecuniary damage ; which 
 motion was denied. 
 
 The motion was properly denied. As to the negligence, 
 because that was a question for the jury ; and as to the want 
 
1854.] Ni:W YORK. 171 
 
 Oldfleld m. The New York and Harlem R. R. Co. 
 
 of proof of damages, because at any rate there might be 
 nominal damage. Whether the jury might give more, with- 
 out actual proof of damage, will be considered on another 
 branch of this case. 
 
 A question was asked of a witness, whether there were any 
 guards in front of the car, which question was admitted, and 
 the defendants' counsel excepted. Where the question was 
 the negligence of the defendants and their servants, it cer- 
 tainly was admissible to inquire whether the construction of 
 the car was such as to tend to occasion the accident. If the 
 car had no brake by which it could be stopped, it might be 
 shown as evidence of carelessness. If it had no guards, and 
 if the use of guards would have prevented it, such evidence 
 was properly laid before the jury for their consideration. 
 
 It is said that the complaint did not warrant such an inquiry, 
 but the complaint did charge the negligence either on the 
 defendants or their agents, and although that negligence, as 
 proven, mainly consisted in the acts of the driver, still there 
 was ample room, under that allegation, to add any facts of 
 negligence on the part of the defendants in the construction 
 of their cars which would have aided in causing such injury. 
 The third point of the defendants is, that the judge said, 
 in charging the jury, "that the plaintiff could recover what- 
 ever pecuniary loss the next of kin (the mother) may be sup- 
 posed to incur in consequence of the loss of the child." This 
 was qualified by adding, that the jury were to give what they 
 should deem fair and just, with reference to the pecuniary 
 injury resulting from the death. The judge also excluded all 
 considerations arising from the sufEerings of the child or the 
 anguish of the parent, and confined the rule of damages 
 exclusively to indemnification for a pecuniary loss. 
 
 The acts under which the recovery in this action is sought 
 are, Lavis of ISJfl, chap. ^50, p. 575, amended by Laws of 
 1849, chap. 256, p. 388. They provide that the action may be 
 maintained and damages recovered, whenever a case occurs in 
 which, if death had not ensued, the injured party could have 
 maintained an action. The principle of liability, by the first 
 section, is made the same as if the injured party had survived 
 the accident, and had brought an action for the recovery of 
 
172 NJiJW YORK. [Com. PI. 
 
 Oldfleld m. The New York and Harlem R. R. Co. 
 
 damages for such injury. In such an action by the injured 
 pafty it would not for a moment be pretended that it would 
 be necessary, for a recovery, to show that any actual pecuniary 
 loss should be proven. On the contrary, the mere proof of 
 the injury, and that it was occasioned by the defendants' 
 negligence, would be sufficient to sustain a verdict for such 
 damages as a jury might award. 
 
 The second section of the statute, as amended, limits the 
 recovery to 85,000, and provides " that the jury may give 
 such damages as they may deem a fair and just compensa- 
 tion with reference to the pecuniary injuries, resulting from 
 such death, to the wife and next of kin of the deceased 
 person." 
 
 I cannot suppose that the legislature intended to confine 
 the damages in such a case to proof of actual pecuniary loss. 
 Such a supposition would render the law nugatory. The 
 statute was intended to give damages for prospective losses, 
 and not for what could be proven ; and to require proof of 
 such loss would be merely to obtain the opinion of witnesses 
 on such a question, instead of the opinion of a jury. 
 
 I am of the opinion that such was not the intent of the stat- 
 ute, but that the rule in the act is given to the jury to guide 
 them after they have before them the circumstances of the 
 accident, the condition, relationship, and dependence of the 
 parties ; the ability and means of support to be derived from 
 the deceased, if any, and other facts of this nature in forming 
 their opinion of what the pecuniary loss of the next of kin is 
 under such circumstances. When the judge gave them the 
 words of the statute as the rule of damage, he certainly did 
 not err ; and when he told them that the damages were to be 
 what the mother may be supposed to incur by the death of 
 ^he child, he only told them that the damages were to be a 
 sum which, in their opinion, would be the pecuniary loss of 
 the next of kin. 
 
 Any other cons,truction would entirely destroy the intent of 
 the statute, which was to give to the next of kin a right of 
 action for an injury which the injured person would have had, 
 had not the injury resulted in her death. And we cannot 
 adopt any other conclusion as to the policy of this law, than 
 
1854.] N:EW YORK. 173 
 
 Oldfield m. The New York and Harlem R. R. Co. 
 
 that it was ititended to compel persons and corporations 
 engaged in a business which endangered the lives of the citi- 
 zens, to be more careful than had been the case before its 
 passage, and by affording a redress for such injuries, which 
 did not exist before, to punish them "for their negligence. 
 Such an intent is evidenced by the second section of the act 
 of 1849, which inflicts upon the guilty agent or servant of 
 a company punishment for the same offence for which dama- 
 ges may be recovered. 
 
 In the construction of acts passed, evidently with the intent 
 of requiring from railroad corporations, as well as others, 
 more care in regard to the lives of travelers and persons pass- 
 ing through the streets and highways, it is not the duty of 
 courts to adopt views which would tend to render such acts 
 nugatory, and enable violators of them to escape with impu- 
 nity, as was so often the case before this statute was enacted, 
 but, on the contrary, to give the statute effect, by adopting 
 the evident intent with which it was passed, and ?lolding those 
 who negligently destroy the lives of third persons responsible 
 for the consequences of such negligence. 
 
 But it is said that the damages are excessive. The amount 
 awarded by the jury was 11,300. A slight excess in the 
 amount, under circumstances of the kind which give rise to 
 such an action, would not justify a reversal of the judgment, 
 and where the amount is resting mainly in the discretion of 
 the jury, although they have awarded a sum larger than the 
 court might have granted if the case had been tried without 
 a jury, such an excess does not warrant a new trial. The jury 
 have intended to afford an ample compensation for the loss ; 
 still, although the amount of the verdict is large, it does not 
 afford evidence of prejudice, or partiality or corruption ; and 
 if not, there is no ground for granting a new trial because 
 the damages are large. 
 
 My conclusion is that the judgment should be afiBrmed. 
 
 Daly, J., concurred in the opinion of the First Judge. 
 
 WooDKUPF, J. — The evidence relating to the construction 
 of the car, to which objection was made on the trial in 
 
174 NJEW YORK. [Com. PI. 
 
 Oldfield ««. The New York and Harlem B. R. Co. 
 
 this case, was, I think admissible upon this ground, (even con- 
 ceding that upon a strict construction of the complaint herein, 
 the plaintifE was confined to proof of negligence of the driver 
 in the managenient thereof,) viz. : What would be prudent 
 and careful in the management and driving of a well constructed 
 car, amply provided with brakes by which it could be stopped 
 in due time and with guards to prevent injury to persons in 
 case of accident, might be very imprudent, careless and even 
 reckless in driving a car ill provided with brakes and guards ; 
 and especially in the streets of a city where numbers are con- 
 stantly crossing and recrossing, a car of the latter description 
 should be driven much more slowly and cautiously. 
 
 In respect to the rule of damages in a case like the present, 
 I am not satisfied that the latitude given to the jury in the 
 charge in the present case is warranted by the true construc- 
 tion of the statute under which the suit is brought. Although 
 the words of the statute were stated to the jury, they seem at 
 the same time to have been authorized to indulge somewhat 
 freely in .considering what loss the mother " may be sup- 
 posed to incur ;" and I think it by no means clear that, when 
 the death of a child of six years of age is contemplated solely 
 "with reference to the pecuniary injury resulting from such 
 death to the next of kin," it can be said that such a death has 
 occasioned any damage, and especially where, as in the pres- 
 ent case, the mother, who was the only next of kin, had con- 
 tracted a second marriage. It is not easy to perceive that the 
 death of her young and dependent offspring could occasion 
 pecuniary loss to her beyond, perhaps, the expense of medical 
 attendance and burial expenses, if borne by her. 
 
 The construction of the statute in question is not clear 
 upon this subject. It has been supposed by some to have 
 been only intended for the indemnity of those whose relations 
 to the person killed were such that he or they had legal 
 right to some pecuniary benefit which would result from a 
 continuance of the life and which was lost by the death, and 
 not to be applicable to an injury like the present, where 
 it caused the death of a child of tender years and yet in a 
 state of dependence. 
 
 I am, however, under the circumstances, and especially 
 
1854. J NIIW YORK. 175 
 
 Purple m. The Hudson River R. R. Co. 
 
 after three trials (in two of which the jury failed to agree,) 
 disposed to concur with my brethren in affirming the judg- 
 ment, leaving the defendants, if so advised, to prosecute their 
 appeal, and obtain a construction of the statute in question 
 from the court of last resort. 
 
 Judgment affirmed. 
 
 SAMUEL PUKPLE vs. THE HUDSON RIVER 
 RAILROAD COMPANY. 
 
 SPECIAL TEEM AND eENERAL TERM DECISIONS. 
 
 11 N. T. Su-perior Court, (fi. Bu0r,) 74; a. c. 1 Abb. Pr., SS. 
 
 Plaintiff brought an action for damages as assignee of one who was 
 injured by the negligence of the defendants while a passenger in their 
 cars. 
 
 Held, that such a right of action was not assignable, even though the 
 injuries involved a breach of contract. 
 
 The only alteration in the law made by the Code on this subject is to 
 enable the assignee to maintain an action in his own name when the 
 right of action is assignable in law or equity. 
 
 The Code does not limit the power of assignment to demands arising 
 out of contract, excluding those founded on torts; but that every 
 demand connected with a right in property, which claims redress for a 
 violation of the right, is assignable, whether the violation is a tort or a 
 breach of contract. ^ 
 
 This rule excludes only those torts that are strictly persona^ and that 
 die with the person. 
 
 This was an appeal from a judgment entered by the defend- 
 ants upon a demurrer to the complaint. 
 
 The complaint and demurrer are as follows : 
 The plaintiff complains of the defendants, and shows to 
 the court that the defendants are a body corporate, duly 
 incorporated under the laws of the state of New York, and 
 keeping an office for the transaction of business within the 
 city of New York, and were engaged in the transportation of 
 passengers in cars, upon a railroad running from the village 
 of Greenbush to Chambers street, in the city of New York. 
 And at the times hereinafter mentioned, owned said railroad 
 
176 NJSW YORK. [N. Y. Sup'r Ot. 
 
 Purple vs. The Hudson River R. R. Co. 
 
 and the cars running thereon, and had owned and employed 
 steam engines to draw said cars to Thirty-first street in said 
 city, and horses to draw said cars from Thirty-first street to 
 Chambers street aforesaid, and had, and employed agents and 
 servants to manage and conduct the said cars and the drawing 
 the same as aforesaid. 
 
 And this plaintiff further avers, that Minerva Purple did, 
 on the 17th day of August, 1853, take passage in a train of 
 cars so run by said defendants, to be carried from Greenbush 
 to Canal street in the city of New York, which is one of the 
 usual intermediate stopping places of said train, and paid the 
 said defendants the fare charged by them for such transpor- 
 tation; and the said defendants, in consideration thereof, then 
 undertook to carry the said Minerva Purple to Canal street 
 aforesaid, in their said cars, and there to land her. And the 
 plaintiff further avers, that the said defendants did not land 
 the said Minerva Purple at Canal street aforesaid, in com- 
 pliance with their said contract and agreement, in a proper 
 and reasonable manner, or otherwise than is hereinafter set 
 forth. 
 
 And this plaintiff further avers, that in the course of such 
 transportation, the said Minerva Purple being in the proper 
 place, and in the car in which she was directed to be by the 
 agents of said defendants, and while landing at Canal street 
 in a proper manner, and in pursuance of the directions of 
 said defendants' agents and servants, was violently thrown 
 from said car into the street, upon the pavement ; that said car 
 started suddenly ahead while said Minerva Purple was landing 
 therefrom, and before a proper and reasonable time had been 
 allowed her to land, by which start she was thrown as above 
 mentioned. And he further avers, that her being thrown as 
 above mentioned, was caused wholly by the negligent, careless, 
 and unskilful conduct of the servants and agents of said 
 defendants, and without any fault or negligence on the part 
 of said Minerva Purple. 
 
 And the plaintiff further avers, that the said Minerva Pur- 
 ple was seriously injured by being thrown as aforesaid ; that 
 her, thigh bone, at or near the neck, was thereby broken and 
 will never unite, so as to render the same serviceable ; that she 
 
1854.] Ni:W YOBK. 177 
 
 Purple VB. The Hudson River R. R. Co. 
 
 suffered great pain in consequence thereof, and was confined 
 to her bed nine weeks, and is still unable to walk or use her 
 left leg, and has been obliged to procure medical attendance 
 and nursing, and to expend large sums of money, and that she 
 was thereby, in other respects, severely bruised and injured in 
 her body, and greatly alarmed in mind. 
 
 And the plaintiff further avers, that the said Minerva Pur- 
 ple has heretofore by assignments, duly executed, under her 
 seal and for good and valuable consideration, assigned to the 
 said plaintiff all her claim, demand, and cause of action 
 against the defendants, by reason of the premises, and that 
 he is now the lawful holder and owner thereof. Wherefore, 
 etc. 
 
 The defendants demur to this complaint upon the follow- 
 ing grounds : 
 
 1. That it appears from said complaint that there is a 
 defect of parties to the action, in that Minerva Purple ought 
 to be the plaintiff therein, in the stead of the said Samuel S. 
 Purple, the latter not appearing from the complaint to have 
 any valid cause of action against these defendants. 
 
 2. That the complaint does not state facts sufflcient to 
 constitute a cause of action in the plaintiff against the defend- 
 ants, in that the alleged claim, demand, and cause of action 
 of the said Minerva Purple, are not the legal subject of an 
 assignment by her to the plaintiff. 
 
 Mb. Justice Hoffman- in allowing the demurrer at 
 special term gave the following opinion : 
 
 I do not find that the common law rule that a mere demand 
 for damages to the person, arising out of a tort is not assign- 
 able, has been overthrown. The case of Robinson vs. WeeJcs, 
 6 How. Pr., 161, in which the authorities are reviewed, set- 
 tles indeed that a right of action for a tort in taking and con- 
 verting personal property may be assigned ; and the ease put 
 in Knights vs. Quarles, 2 Brod. and Bing., 102, of injury from 
 careless driving of a stage-coach shows that an executor might 
 sustain the suit. But I have not found a case going further 
 than this. 
 
 The court in Robinson vs. Weeks, (supra) admit that the 
 
 13 
 
178 NUW YORK. [N.Y, Sup'r Ot. 
 
 Purple m. The Hudson River R. R. Co. 
 
 law is clear, that the right to damages for mere personal torts, 
 such as assault and battery, slander, etc., dies with the 
 person. 
 
 Does the allegation of a contract with the defendants, to 
 deliver her safely, vary the case ? Of course, it is the implied 
 contract arising from their situation as carriers on the road. 
 
 Justice Harris, in Hodgman vs. The Western Railroad Cor- 
 poration, 7 How. Pr., 492, allowed a demurrer in a case 
 entirely similar to the present. 
 
 In Flynn vs. The Hudson River Railroad Company, 6 
 How. Pr., 308-SlO, the same judge approves of the view of 
 Justice Johnstone in- Clor vs. Mallory, 1 Code Rep., 126, 
 that though a contract may be involved in the action, it 
 is really founded on the misfeasance or negligence of the 
 defendants. 
 
 I think this view is correct, and that judgment must be for 
 the defendants on the demurrer. 
 
 Mr. 0. I. Betls, for the plaintifE and appellant. 
 
 Mr. William Fullerton, for the defendants and respondents. 
 
 By the Ooukt : Dubk, J. — It is evident upon reading 
 this complaint, that the injuries to the person of Minerva 
 Purple, as caused by the negligence of. the servants of the 
 defendants, are the gravamen, for which the damages claimed 
 are sought to be recovered. The contract with the company 
 is stated merely by way of inducement, as giving a more 
 aggravated character to the negligence charged. 
 
 That a right of action for injuries to the person does not 
 survive to an executor, is quite certain, and we agree with Mr. 
 Justice Paige, Hoyt vs. Thompson, 5 N. Y., 820-3^7, that 
 we find here the proper test of the assignability of a chose in 
 action. It may be assigned if it would survive, and not 
 otherwise. 
 
 It seems to be the opinion, from the cases brought before 
 us, of many members of the profession, that the Code has 
 abolished the distinctions that formerly prevailed, and that 
 every right of action, no matter from what cause it may arise, 
 is now assignable, so as to enable the assignee to maintain the 
 
1854.J Ni:W YORK. 179 
 
 Hope m. The Sixth and Eighth Ave. R. R. Co'b. 
 
 action in his own name, in all cases whatever ; but this is cer- 
 tainly an error, and is the very error which the addition made 
 to sec. Ill of the Code, in the amendments of 1851, was 
 designed to correct. The only alteration made by the Code 
 is to enable the assignee to maintain the action in his own 
 name, in those cases, and in those only, in which, by the law, 
 as it existed when the Code was adopted, the right of action 
 was assignable in law or in equity. The common law ofEences 
 of champerty and maintenance are not wholly obsolete. 
 
 On the other hand, as the Code has not enlarged, neither 
 has it restricted, the power of assignment; for we wholly dissent 
 irom the construction that some judges seem disposed to give 
 to sec. Ill as amended in 1851, namely, that it is limited to 
 demands arising out of contract, and forbids by implication 
 the assignment of any founded on a tort. We hold, that every 
 ■demand that is connected with a right in property, real or 
 personal, and which claims redress for a violation of the right, 
 is assignable, whether the violation is, technically speaking, a 
 tort, or simply a breach of contract. And we think that this 
 rule is a legitimate, if not a necessary deduction from the 
 opinion of the supreme court as delivered by Oowen, J., in 
 "the case of the People ex rel. Stanton vs. Tioga Common 
 Pleas, 19 Wend., 7S. The rule thus stated excludes only 
 those torts that are so strictly personal, that they die with the 
 person, and it corresponds exactly with the views of Mr. 
 Justice Paige in Hoyt vs. Thompson, supra. The demurrer 
 in the case before us, as the cause of action stated in the com- 
 plaint, is for a tort strictly personal, is well taken, and the 
 judgment appealed from is therefore affirmed with costs. 
 
 Judgment aiRrmed. 
 
 HOPE & 00. vs. THE SIXTH AND EIGHTH AVENUE 
 EAILROAD COMPANIES. 
 
 S Limngston's Law Mag., 58 Jf. 
 
 The legislature has no power to establish a railroad in a street in 
 New York City without the assent of the corporation, except upon the 
 _ground of public necessity and it must then provide for compensation 
 for a surrender of a right in property. 
 
180 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Hope m. The Sixth and Eighth Ave. R. R. Go's. 
 
 The common council of the city of New York possesses the power of 
 granting licenses to establish railroads in said city providing the right 
 to annul the power is reserved. 
 
 The grants to the Sixth Avenue Railroad Company and the Eighth 
 Avenue Railroad Company are not liable to the objections that caused 
 the grant to the Broadway Railroad Company to be declared void. 
 
 The defendants are owners of two horse railroads in New 
 York City, and on a part of their route they use the same track 
 running through the same streets. The plaintifEs are whole- 
 sale grocers doing business on the corner of College place 
 and Chambers street, through which streets the track of both 
 companies is laid. 
 
 This was an application for an injunction to restrain the 
 defendants from operating their railroad and to compel them 
 to remove their rails on the ground of the illegality of the 
 resolutions of the common council under which the com- 
 panies were formed, and upon the ground that the running 
 of the cars through College place interfered with the plaintiffs' 
 business, by rendering it impossible for them to leave their 
 wagons in the street, or even to keep them there for the pur- 
 pose of loading and unloading. 
 
 HoFFMAsr, J. — Upon an application at special term certain 
 amendments to the complaint were allowed. These amend- 
 ments were made with a view to raise the question of the 
 entire illegality of the acts of the corporation as to the Sixth 
 and Eighth Avenue railroads, and upon the ground that the 
 decision in the Broadway Eailroad case determines such 
 illegality. 
 
 Prior to the late decision in this court and in the supreme 
 court upon the subject, and after the case of Brake vs. The 
 Hudson River Railroad Gmnpany, 7 Barh., 508; s. c. lAm. 
 St.-Ry. Bee, 10, I should have considered the following 
 propositions as incontestable : 
 
 1. That the establishment of railroads in the city of New 
 York, by the authority having title in the streets, and to the 
 control of them, was an incident to that title and authority, 
 and not in itself an invalid use of the public streets. 
 
 2. That the body vested with such title and control was the 
 
1854.] N:EW YOBE. 181 
 
 Hope vs. The Sixth and Eighth Ave. E. R. Go's. 
 
 common council. In my judgment, this power was in the 
 common council without any aid of any statute of the legis- 
 lature, although there might be a power to restrict it by 
 express enactment. When and to what extent the legislature 
 could restrict it was an open question. But the great princi- 
 ple was, that the power existed without legislative grant, and 
 it must be shown to be abridged, and, at any rate, that the 
 legislature never could empower others to construct roads with- 
 out the approbation of the corporation. 
 
 3. That the corporation of New York held the naked fee 
 of the streets of the city, but held the same as trustees ; and 
 were trustees upon the tenure of holding and keeping them 
 as open public streets ; and that the parties for whom they 
 were trustees were first and principally the citizens and inhab- 
 itants, and next, travelers generally. 
 
 4. In executing this trust, the corporation was amenable, 
 like all other trustees, for the faithful, legal and honest dis- 
 charge of its duty ; and corruption, fraud, or violation of law 
 would not only render its contracts and acts invalid, but would 
 justify the interference of a court, by provisional remedies, to 
 prevent their consummation. 
 
 5. That the right to apply for such relief, as the law stood 
 npon several decisions of the supreme court, was vested in any 
 person injured individually, or as inhabitants of the city and 
 taxpayers. This rule has been disputed, perhaps overruled, 
 in our court ; and the individuals sustaining injury must 
 unite the attorney general with them wherever the question is 
 either one of a public nuisance, or regards the violation of its 
 charter by an incorporated company, or, perhaps, where cor- 
 porate property is sought to be applied illegally to any other 
 than the public purposes to which it has been bylaw devoted. 
 Att'y Gen. of the State of N.Y. vs. Mayor, etc., of N. Y., 12 
 Legal Observer, 17; s. c. 10 JV. T. Superior Court, (S Duer,) 
 128; 1 Am. St.-Ry. Dec., 182. 
 
 But every lawyer will understand the pervading influence, 
 upon every point which may arise, of the solution of the 
 question, whether the corporation of New York has an 
 original chartered right to establish railroads in the streets, 
 or derives that right from acts of the legislature. In the 
 
182 NEW YORK. [N.Y. Sup'r Ot. 
 
 Hope m. The Sixth and Eighth Ave. R. B. Go's. 
 
 former case, they who contest its power must show a restric- 
 tion ; in the latter, the corporation must show where and to 
 what extent it has been vested. 
 
 In my judgment, the legislature has no more power to 
 establish a railroad in a street in the city of New York with- 
 out the assent of the corporation, than to run it through the 
 house of an individual owner without his consent. They 
 may do it in the one case as in the other, upon the ground of 
 public necessity, and upon making proper compensation. 
 But they must, in their legislative capacity, declare the public 
 exigency which demands the appropriation, and must provide 
 the mode of compensation for a surrender of a right in prop- 
 erty. Otherwise they invade the right of the corporation of 
 New York in the streets as much as if they enacted that my 
 house should be torn down without public necessity and ade- 
 quate remuneration. 
 
 But, again, I hold that the corporation of the city possesses 
 the power of establishing railroads, and that it is incumbent 
 upon those contesting its exercise, in any case, to show either 
 that they have violated their trust, or plainly violated a stat- 
 ute of the state, which it was competent to pass, or have broken 
 in upon a fundamental rule of law controlling the power of 
 the corporation. 
 
 It is now my duty to ascertain how far these propositions 
 have been overthrown or modified by the decisions referred to. 
 
 1. I do not find it yet decided by either the Court of Appeals 
 or the general term of this court, that the corporation of New 
 York cannot make any grant to others of the right of con- 
 structing a railroad in the streets of the city, without a specific 
 act of the legislature, whatever may be the terms or con- 
 ditions of the permission. I do not mean to say but that this 
 may be logically reasoned out, from some propositions of some 
 learned judges, but I do not find that it has been judicially 
 pronounced, or that it necessarily results from anything which 
 has been judicially decided. 
 
 On the contrary, we find it declared by Justice Edwards, 
 in his able opinion, after a careful review of Drahe vs. The 
 Hudson Eiver Railroad Company, 7 Barh, 608 ; s. c. 1 Am. 
 St.-Ry. Dec, 10, and the other authorities, that this power 
 
1854.] N:EW YORK. 183 
 
 Hope ««. The Sixth and Eighth Ave. K. R. Go's. 
 
 does vest in the corporation, and we find this sanctioned by 
 Justice Strong and by Justice Morris. Milhaio vs. Sharp, 
 15 Barl., 193; s. c. 1 Am. St.-Ey. Dec, 68. 
 
 3. Next, the question as to where the fee of the streets 
 resides does not arise in this case, for the complaint states that 
 the title to the lands in the streets named was vested in the 
 mayor, aldermen, etc.,- in trust, that the same should be 
 appropriated and kept open forever as public streets, for the 
 free and common use of the citizens. I need not, therefore, 
 attempt to support my individual views upon this subject. 
 
 3. The decisions in the Broadway Railroad case depend upon 
 two great principles. . 
 
 In the first place, there was a violation of the trust reposed 
 in the corporation. They were acting in a reckless or profli- 
 gate disregard of the interests and rights of those of whom 
 they were the agents. In the next place, the grant was not a 
 mere license, revocable at the will of the corporation, or upon 
 prescribed and reasonable terms. It was a contract which 
 must remain perpetually in force, unless the company broke 
 the condition. The corporation could not bind themselves 
 by an inviolable compact, the effect of which was to surrender 
 practically and perpetually the management and regulation of 
 the streets. It was a trust which they could not part with. 
 
 With this view. Justice Strong, Justice Harris, Justice 
 Duer and the general term of this court, consisting of Justices 
 Oakley, Bosworth and Slosson, have concurred. These points 
 are settled by authority, and rest upon incontestable prin- 
 ciples. 
 
 But if the license to use the streets for a railroad is not an 
 irrevocable contract, if it is not an attempt to divest the cor- 
 poration of an inalienable control, and to confer vested rights 
 upon others, which may not be abridged, then I see no neces- 
 sity for an enabling statute of the legislature ; but I find the 
 power of the corporation is in itself sufficient. 
 
 In the case before me, the common council have reserved 
 the power to cause the road, or any part thereof, to be taken 
 up at any time they shall see fit ; have provided that the road 
 shall be transferred to them whenever they demand it, upon 
 payment of the cost and ten per cent, added ; and that the 
 
184 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Hope m. The Sixth and Eighth Ave. R. R. Cos. 
 
 parties on being required at any time by the corporation, and 
 to such extent as the common council shall determine, shall 
 take up, at their own expense, said rails, or such part thereof, 
 as they shall be required, and upon failure so to do, the same 
 may be done at their expense by the street commissioner. 
 
 In words, then, the power to purchase for the use of the 
 city, and thus to extinguish a monopoly in others, the power 
 to remove such portions as may be found injurious to public 
 convenience, and the absolute power to annul the license, is 
 reserved. "When the companies accepted the permission thus 
 conferred, they were bound to know that the law was, as it is 
 now pronounced to be, that the corporation could not give 
 them an irrevocable right ; and hence, that the power to take 
 up the rails was not an unmeaning or contradictory reserva- 
 tion, but a declaration of the legal rights and position of the 
 parties. 
 
 I take, then, the first four propositions at the close of the 
 opinion delivered by Justice Bosworth at the general term, in 
 Att'y Gen. of the State of N. Y. vs. The Mayor, etc., of 
 JSr. T., 10 N. Y. Superior Court, {S Duer,) 119-152 ; s. c. 
 1 Am. St.-Ry. Dec, 122-161, as concentrating the conclu- 
 sions to which so many judges have arrived. Now I do not 
 understand those propositions as involving more than this : 
 that the grant in question was such a grant of a franchise as 
 the corporation had no power to make, because by its legal 
 import it might be perpetual ; because it was a contract 
 which restricted the corporation in the future exercise of its 
 powers over the streets ; and because it conferred upon the 
 grantees exclusive privileges to a partial use of Broadway, 
 which might be of perpetual duration. 
 
 If the observations before made possess the weight I sup- 
 pose they have, the grant to the Sixth Avenue Railroad is not 
 liable to any of these objections ; and the same views apply 
 to the Eighth as to the Sixth Avenue Eailroad. 
 
 It is not clear from the case as now made, whether any 
 injury arising from invasion of a right of use has been done 
 to the plaintiffs. However, what is now decided could not 
 operate to prevent a new action, if the plaintiffs are advised 
 to bring one, founded upon such personal violation and 
 damage only. 
 
1855.] LOUISIANA. 185 
 
 Varillat vs. New Orleans and Carrollton R. R. Co. 
 
 VAKILLAT vs. THE NEW ORLEANS AND 
 CARROLLTON RAILROAD COMPANY. 
 
 10 La. Ann., 88. 
 
 The plaintiff while a passenger in the defendants' horse car received 
 injuries in a collision between that car arid the steam cars of the com- 
 pany, and brought thi.s suit for damages for such injuries. The judge 
 charged the jury that if they believed there was gross neglect or care- 
 lessness, or want of skill on the part of the servants of the company, 
 then it was for them to assess the damages, for such an amount as they 
 might deem the circumstances of the case justified. 
 
 Held, no error. 
 
 In actions of this nature much discretion must be left to the jury, and 
 therefore a refusal to charge the jury that under the circumstances they 
 could not give damages with the view to punish the defendants, or to make 
 an example, but were only to consider and assess damages sustained by 
 the plaintiff, was correct. 
 
 From the Fourth District Court of New Orleans, tried 
 before Reynolds, J., and a jury. 
 
 Mr. Michel, for the plaintiff. 
 
 Messrs. Benjamin and Micou, for the defendants and 
 appellants. 
 
 Ogden", J. — The plaintiff brought this suit to recover dama- 
 ges for injuries sustained by her while a passenger on defend- 
 ants' cars, resulting from a collision between the horse and 
 steam cars of the company. She obtained a verdict and judg- 
 ment for one thousand dollars, from which the defendants 
 have appealed. 
 
 The judge of the court below, at the request oi the defend- 
 ants' counsel, charged the jury, that if they believed from 
 the evidence there was no wilful fault on the part of the 
 company or its oflQcers, they could not give vindictive dama- 
 ges. He was then requested to charge the jury : "That, under 
 such circumstances, the jury cannot give damages with the 
 view to punish the defendants, or to make an example, but are 
 only to consider and assess the damages sustained by the 
 plaintiff ;" that charge the judge refused to give, but charged 
 
186 LOUISIANA. [Sup. Ot. 
 
 Varillat vs. New Orleans and CarroUton R. R. Co. 
 
 the jury, that if they believed there was gross neglect or care- 
 lessness, or want of skill on the part of the servants of the 
 company, then it was for them to assess the damages for such 
 an amount, as they might deem the circumstances of the 
 case Justified. The defendants took a bill of exceptions. 
 
 We think the judge did not err. The Louisiana Code, 
 Article 1928, provides, that in the assessment of damages in 
 actions of this nature, much discretion must be left to the 
 jury ; and Article 516 of the Code of Practice declares, that 
 the judge in charging the jury, must limit himself to giving 
 the jury a knowledge of the laws applicable to the cause sub- 
 mitted to them, and that he should abstain from saying any- 
 thing about the facts, or even recapitulating them, so as to 
 exercise any influence on their decision in that respect. How- 
 ever anomalous it may be to forbid the judge to charge the 
 jury on the facts when he has the power, and it is even his 
 duty to set aside their verdict, if contrary to his opinion, yet 
 such is the law. In the case recently decided of Black vs. 
 OarrolUon Railroad Company, 10 La. Ann., 33, we have con- 
 sidered these articles as authorizing a judgment for vindictive 
 damages in actions of this nature, when the circumstances of 
 the case warrant it. 
 
 The next question relied on by the appellant is, that the 
 damages assessed by the jury are excessive. This involves two 
 considerations : 
 
 1st. The degree of culpability to be attached to the acts of 
 the servants of the company which occasioned the injury. 
 
 3d. The nature and extent of the loss and suffering which 
 it inflicted on the plaintiff. 
 
 It appears to us, that such an accident could not have 
 happened, without the grossest negligence on the part of the 
 employees of the company, on one or both of the cars which 
 came in collision, and both cars belonging to the defendants. 
 A witness introduced by the defendants, and who was on the 
 same car with the plaintiff at the time of the accident, says : 
 " The horses were driven very fast to pass the switch before 
 the arrival of the steam train, and he supposes that if the 
 horse car had reached the switch a half a minute sooner, they 
 might have escaped." He says, that at the point where the 
 
1855.] LOUISIANA. 187 
 
 Varillat vs. New Orleans and Caixollton R. R. Co. 
 
 accident happened, there are but two tracks, and the horse 
 car was on the track on which the steam car was running. 
 The witness, considering his dangerous position, jumped off 
 the car before the collision. We consider that the ease is pre- 
 sented, without any testimony for the defense to explain or 
 excuse the accident. The evidence shows utter recklessness 
 of human life. When the safety of passengers is made to 
 depend on minutes and half minutes in the accomplishment 
 of speed requisite to prevent collisions, railroad companies 
 ought not to complain when accidents happen, if the damages 
 are assessed against them on the most liberal scale. 
 
 As to the nature and extent of the injury inflicted on the 
 plaintiff, the testimony of the physician who attended her 
 shows, that her leg was swollen to twice its natural size ; that 
 the contusion was deep and long, and the muscles injured. 
 She was confined to her bed six weeks. He paid her forty- 
 two or forty-three visits ; says he charged her only fifty dol- 
 lars, on account of his intimate acquaintance with Mr. Varil- 
 lat, but would have charged another, for the same services, 
 three hundred dollars. Although not appreciable in money, 
 the jury had a right to allow damages for the bodily suffering 
 occasioned by the injury, which must have been very great. 
 The plaintiff was a music teacher, and was thrown out of 
 employment for some time— the loss sustained in this respect 
 ought not to be measured simply by estimating what she 
 could have made during that time — it was proper to make a 
 liberal allowance for it, because it is not easy to estimate the 
 full extent of the injury a person may sustain under such cir- 
 cumstances, in the loss of patrons, and of favorable oppor- 
 tunities of securing friends and employment, which might 
 not occur again. 
 
 In view of all the facts, we are not prepared to say that the 
 amount of damages is excessive. 
 
 The judgment of the court below is therefore aflSrmed, with 
 costs. 
 
 BuoHANAsr, J., and "Vookhies, J., concurring. 
 
 Spofford, J., dissenting.— I think the District Judge erred 
 
188 LOUISIANA. [Sup. Ot. 
 
 Varillat vs. New Orleans and CairoUton R. R. Co. 
 
 in refusing to charge the jury as requested by the defendants' 
 counsel, and in charging them as he did, on the third point. 
 
 That in an action for a private injury, damages may be given 
 against a railroad company, with a view to punish the com- 
 pany or make an example, is a position to which I cannot 
 assent. 
 
 But it seems to have been sanctioned by the District Judge, 
 in what he charged, and what he refused to charge. 
 
 It is true, the judge cannot recapitulate the facts ; this 
 makes it the more necessary that he should lay clearly before 
 the minds of the jury, those rules and principles of law, which 
 govern the class of cases in question. To tell a jury, in a case 
 of this kind, that "it is for them to assess damages for such 
 an amount as they may deem the circumstances of the case 
 may justify," is to give them either no guide or a fallacious 
 one. 
 
 The discretion left to a jury in assessing damages is not 
 arbitrary and unlimited^ but is to be guided by sound legal 
 principles applicable to the case before them ; and it is the 
 duty of the judge to give them such directions as will draw 
 their thoughts to the proper points of inquiry, and exclude 
 irrelevant considerations. 
 
 Had the judge, in this case, instructed the jury, that if 
 they found the plaintiff had been injured, as alleged in her 
 petition, through the negligence and improper management 
 of the agents of the defendants, then it was obligatory on 
 the defendants to repair such injury ; that, in assessing 
 damages, they should consider the expenses, loss of time, 
 loss of employment, and bodily .suffering of the plaintiff, 
 and having weighed the evidence upon these alleged griev- 
 ances, should give such damages as, in their judgment, were 
 commensurate with the injury ; had such a charge been given, 
 I would not deem it proper for this court to subject the ver- 
 dict to a close mathematical analysis. 
 
 But as I think that an erroneous charge deprives the ver- 
 dict of its weight, I am of opinion that the judgment should 
 be reversed, and the cause remanded for a new trial. 
 
 Slidell, C. J. — I concur with Mr. Justice Spofford in the 
 
1855.] LOUISIANA. 189 
 
 Thompson m. New Orleans and Carrollton R. R. Co. 
 
 opinion, that the District Judge erred in refusing to charge 
 the jury as requested by the defendant, and in charging, as 
 he did, upon the third point. 
 
 My Tiews on the subject of damages, in cases of offences 
 and quasi offences, were stated in Black vs. Carrollton 
 Railroad Company, supra, to which I refer. 
 
 I think the judgment should be reversed, and the cause 
 remanded for a new trial. 
 
 Judgment aflBrmed. 
 
 V. W. THOMPSON vs. THE NEW OELEANS AND 
 CAEEOLLTON RAILROAD COMPANY. 
 
 10 La. Ann., 403. 
 
 In an action for damages for injuries to the plaintiff's carriage occa- 
 sioned hy the negligence of a servant of persons to whom the railroad 
 company had leased the road, it was shown that the persons in the 
 lease were denominated stewards and were paid a salary. 
 
 Held, that the company were liable. 
 
 Appeal from the Fifth District Court of New Orleans. 
 
 Mr. Roselius, for the plaintiff. 
 
 Messrs. Benjamin, BradfordwA Finney, for the defendants. 
 
 VooEHiES, J. — This is an action by the plaintiff to recover 
 the sum of $850, the value of his carriage, alleged to have 
 been destroyed by the negligence, imprudence or want of skill 
 of the driver of an omnibus, belonging to the defendants, in 
 running against said carriage as it was standing in Ohartres 
 street. 
 
 The case has been pending since July, 1838, and now comes 
 up on appeal before this court for the third time. 
 
 On the first appeal, the court in remanding the case, 
 observed : " The evidence satisfies us that it was an act of gross 
 negligence ; the jury gave $800 damages ; and we should not 
 hesitate to aifirm the judgment rendered on the verdict, if the 
 
190 LOUISIANA. [Sup. Ot. 
 
 Thompson vs. New Orleans and Carrollton R. R. Co. 
 
 evidence had made it probable that the omnibus was the prop- 
 erty of the defendants." It was also decided by the court, 
 that the defendants would be bound if the damages were 
 caused by the negligence or want of skill in their' driver, or 
 the vicious temper of the horses, if the horses belonged to 
 them, or the driver was in their service ; and that under Arti- 
 cle 2299 of the Civil Code, the responsibility of a master or 
 employee was not limited to cases where he might have pre- 
 vented the act which caused the damage, etc. ITart vs. New 
 Orleans and Carrollton Railroad Company, 1 Roh., 178 ; 
 s. c. 1 Am. Si.-Ry. Dec, 4- 
 
 The second appeal came up on a bill of exceptions, to the 
 opinion of the District Judge in excluding evidence offered by 
 the defendants to show, that the railroad establishment, 
 with its movables and dependencies, including its omnibuses, 
 was leased to two individuals for a term of years. The evi- 
 dence was held to be admissible under the pleadings, and the 
 case ordered to be remanded, with directions to the District 
 Judge to admit the same. Hart vs. New Orleans and Carrollton 
 Railroad Company, 4- Lo,- Ann., 261 ; s. c. 1 Am. St.-Ry. 
 Dec, 8. 
 
 The plaintiff is appellant from a judgment rendered against 
 him on the last trial. 
 
 , The only question left in this case for our consideration, 
 is one exclusively of fact. 
 
 The District Judge was satisfied from the evidence that the 
 driver of the omnibus, by which the plaintiff's carriage was 
 destroyed, was not at the time an employee of the defendants, 
 but of Harper and Merrick, as lessees of said defendants. It 
 is shown by the testimony of one of the witnesses for the 
 defendants, that "the driver of the omnibus said to have 
 broken the carriage of the plaintiff, was employed and paid 
 by Harper and Merrick, and the omnibus was entirely under 
 their control." From a careful examination of the contract 
 of lease between the defendants and Harper and Merrick, and 
 the testimony on the record, we are satisfied that the judge 
 d quo did not err in his conclusion. 
 
 It is therefore ordered, adjudged and decreed, that the 
 judgment of the District Court be affirmed with costs in both 
 courts. 
 
1855.] Ni:W YORK. 191 
 
 Johnson m. The Hudson River R. R. Co. 
 
 Spobfokd, J. — Upon a re-examination of the case, we are 
 convinced that the railroad company, by its settlement with 
 Harper and Merrick, as stewards of the company, precluded 
 itself from denying their agency. The company is, therefore, 
 liable. 
 
 By a clause in the authentic act, which is styled a lease. 
 Harper and Merrick made themselves responsible for all loss 
 and damages which might result from the incompetency, 
 neglect, bad management or maladministration of the per- 
 sons employed by them, whether such loss or damage should 
 arise from accidents on the road or otherwise, or from any mat- 
 ter connected' with the establishment. 
 
 Perhaps, under this stipulation, the plaintiff might have 
 sued Harper and Merrick ; certainly the company could have 
 called them in warranty. 
 
 But this fact does not destroy the right of the plaintiff to 
 call upon the company to repair the damage occasioned by an 
 employee of persons with whom they have settled, and to whom 
 they have paid a stipulated salary, as their stewards. 
 
 It is, therefore, ordered that the judgment heretofore ren- 
 dered in this cause, be set aside ; it is further ordered and 
 decreed that the judgment of the District Court be reversed, 
 and that the plaintiff recover from the defendants the sum of 
 $800, with legal interest thereon, from the day of judicial 
 demand until paid, and costs in both courts. 
 
 Me. Chief Justice Slidell, having been of counsel for 
 defendants, declined sitting in this cause. 
 
 Judgment reversed. 
 
 CATHARINE M. JOHNSON, Executrix, etc., vs. THE 
 HUDSON RIVEE RAILROAD COMPANY. 
 
 GENBRAL TERM. 
 
 IS N. T. Superior Court, (5 Duer,) 21. 
 3d appeal, IS N. T. Superior Court, (6 Diier,) 6SS ; s. c. 1 Am. St. -By. 
 
 Dee., S54. 
 The plaintiff brought this action against the defendants for damages 
 for injuries to the plaintiff's testator, resulting in his death, and proved 
 the negligence of the defendants, but did not prove that the deceased 
 
192 NEW YORK. [KY. Sup'r Ot. 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 was free from negligence, which the defendants contended the plaintiff 
 should have done. 
 
 Meld, that the plaintiff in order to maintain the action was not bound 
 to prove that there was no want of ordinary care on the part of the 
 deceased ; that the burden of proving that there was a want of ordinary- 
 care on the part of the person injured which contributed directly to 
 the accident, rested upon the defendants. 
 
 Held, further, that the rule of evidence, which casts the burden of 
 proof upon the party who maintains the affirmative, should admit of no 
 exception unless established by precedents, that the court is bound to 
 follow. 
 
 Held, that the decisions of the courts of sister states have no binding 
 force as precedents on the courts of this state, but are only to be fol- 
 lowed when the reasons and authorities given, receive the assent of the 
 courts of this state. 
 
 Meld, that the question whether the plaintiff's evidence was suflSoient 
 to warrant the inference that there was a want of ordinary care on the 
 part of the deceased, was for the jury alone to determine. 
 
 This was an appeal, by plaintiff, from a judgment of the 
 Superior Court dismissing the complaint. The action was tried 
 before Campbell, J., and a jury, in November, 1854, and 
 was brought for the recovery of damages for causing the death 
 of Peter A. Johnson, plaintiff's testator and husband. The 
 complaint stated that the deceased had been run over, on a 
 public highway, by a car belonging to the defendants, and 
 that the injuries and wounds he received occasioned his death ; 
 that the accident was owing entirely to the negligence of the 
 servants of the defendants, in the management and running 
 ' of the car. The defendants by their answer denied any neg- 
 ligence on their part, and alleged that the injuries to the 
 deceased were caused solely by his own negligence. The 
 plaintiff's evidence tended to prove all the material allegations 
 in the complaint, but it was left somewhat in doubt whether 
 the deceased had not contributed to the accident by being 
 guilty of a want of ordinary care. 
 
 At the close of the plaintiff's evidence, the counsel for the 
 defendants moved the court to dismiss the complaint upon 
 the following grounds : 1st. That there was no proof of neg- 
 ligence on the part of the defendants, and, 2d. That there 
 was no evidence showing that the deceased was not guilty of 
 negligence, which contributed to the accident. 
 
1855.] NEW YORK. 193 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 The court granted the motion, holding that the evidence 
 given was not sufficient to prove that the deceased was free 
 from negligence, and the counsel for the plaintiff excepted to 
 the decision. 
 
 The case upon appeal was heard upon the evidence and the 
 exception. 
 
 Mr. J. B. Slieys, for the plaintiff. 
 
 Mr. William Fullerton, for the defendants. 
 
 By the Court : Duer, J. — A¥e are all of the opinion that 
 the evidence, on the part of the plaintiff, was quite sufficient 
 to take the cause to the jury. If not contradicted, it was suf- 
 ^cient to prove that the fatal accident, which has given rise to 
 this action, was, in reality, caused hy the culpable negligence 
 of the servants of the defendants, and whether the evidence 
 was also sufficient to warrant the inference that there was a 
 want of ordinary care on the part of the deceased, which 
 contributed to the accident, was a question which belonged, 
 not to the court, but to the jury alone to determine. Nor 
 did our brother, who tried the cause, otherwise decide. It is 
 apparent that he did not withdraw the case from the jury 
 because he deemed that the negligence of the deceased was 
 conclusively shown, but upon another and wholly distinct 
 ground. The only question, therefore, is, whether the com- 
 plaint ought to have been dismissed for the reason that was 
 alleged, namely, that the plaintiff had failed to prove that the 
 deceased was free from the negligence which was imputed to 
 him by the answer of the defendants. In other words, had 
 failed to prove a negative. That the evidence, as it stood, 
 was consistent with the supposition that the deceased was free 
 from fault, cannot be denied, while on the other hand, it must 
 be admitted, that it fell very far short of showing that he 
 certainly was so. The question, therefore, is, whether it is 
 this proof that the plaintiff was bound to give. 
 
 We believe that this is the first time that the question as to 
 the necessity of such proof on the part of the plaintiff, in 
 actions like the present, has been raised in this court, or, 
 indeed, in any court of this state ; and, from the frequency 
 
 13 
 
194 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Johnson vs. The Hudson Ei^er R.K. Co. 
 
 of such actions, it is a question of no ordinary importance, 
 and merits an attentive consideration. 
 
 It is certainly true, as a general rule, that there can' be no 
 recovery in these actions, when it is proved that there was a 
 want of ordinary care, on the part of the person accidentally 
 injured, which directly contributed to the accident ; but it 
 by no means follows, that the plaintifE is, in the first instance, 
 bound to show that the person so injured could not have been 
 guilty of the negligence imputed : that is, is bound to prove a 
 state of facts necessarily excluding the supposition of what, 
 for convenience, may be termed his guilt. Yet this, as we 
 understand it, is exactly the proposition that is now contended 
 for. It is exactly the proposition, if the plaintiff, in all these 
 cases, is bound to prove, in order to maintain the action, that 
 there was no want of ordinary care, on his part, or that of the 
 person whom he represents. It is manifest, however, upon a 
 slight consideration, that this proposition, if admitted to be 
 true, is equivalent to saying that, in all these cases, the law 
 presumes, that the negligence of the person accidentally 
 injured contributed to the accident, and that this presumption 
 unless overthrown by positive evidence, isalone suflBcient to 
 defeat a recovery. If such is the law, we are bound so to 
 declare it ; but we are unable to see that there is any warrant 
 from reason and good sense, from justice, or public policy, 
 for such a presumption. It is, it seems to us, purely gratui- 
 tous and arbitrary, and if established by authority, upon prin- 
 ciple, is not to be defended. The presumption would be just 
 as reasonable, if not more so, that accidental injuries, in all 
 cases where a compensation in damages is sought, were in 
 reality occasioned, solely by the negligence of the defendant 
 or his servants, so as to entitle the plaintifE to recover, merely 
 by proving that the accident happened, and the injury followed, 
 and, in all cases casting upon the defendant the burden of repell- 
 ing the presumption, by demonstrative proof of its falsity. This, 
 however, is a proposition for which no lawyer would willingly 
 contend, and which, assuredly, no court of justice could be 
 expected to sanction. Yet is there,, in reality, any difEerence in 
 the cases? If negligence cannot be imputed to the defendant, 
 but must be proved, can any reason be given why, without proof. 
 
1855.] NEW YORK. 195 
 
 Johnson »«. The Hudson Kiver R. R. Co. 
 
 it should be imputed to the plaintiff ? If the plaintiff, in order 
 to maintain the action, is bound to prove the negligence of 
 the defendant, must it not be just as incumbent upon the 
 defendant to prove the negligence of the plaintiff, in order to 
 bar a recovery ? We certainly think so, and, unless the law 
 is otherwise settled, must so decide. 
 
 But we are told that the law is otherwise settled, and, in 
 proof of the assertion, are referred to the decision of the 
 Supreme Court of Massachusetts, in Lane vs. Crombie, 12 Pick., 
 177. That this decision distinctly affirms the doctrine for 
 which the counsel for the defendants so earnestly contended, 
 cannot be denied ; but whether it is alone sufiBicient to estab- 
 lish that doctrine as law, is a different question. The court, 
 in that case, ordered a second trial upon the ground that, on 
 the first, the judge had failed to instruct the jury that the 
 plaintiff was bound to prove that the accident by which he 
 was injured was not occasioned by his own want of ordinary 
 care. The court, therefore, decided that the burden of proof 
 was upon the plaintiff, to show that his own negligence was 
 not a cause of the accident, and not upon the defendant to 
 prove that it was ; and if this decision ought to govern us, 
 we cannot do otherwise than hold that the complaint, in the 
 present case, was properly dismissed. 
 
 But with the utmost respect for the learned court by which 
 this decision was pronounced, we cannot regard it as an 
 authority by which we ought to be governed. Upon the 
 fullest consideration, we cannot regard it as evidence of the 
 law, that we are bound to declare. It is scarcely necessary to 
 say that the decisions of the courts, however respectable and 
 learned, in our sister states, have with us no binding force as 
 precedents, but are only to be followed so far as they com- 
 mand our assent by the reasons and authorities upon which 
 they are founded. When we cannot reconcile them with our 
 own deliberate convictions, it is our duty to reject them. 
 
 The decision of Lane vs. Grombie was not rested upon argu- 
 ment or analogy but upon authority alone. No reasons were 
 given to show the propriety or justice of the rule which the 
 court held itself bound to follow, but it was considered as set- 
 tled by prior decisions, the cases to which the court referred. 
 
106 NEW YORK. [N.Y. Sup'r Ot. 
 
 Johnson lis. The Hudson River R. R. Co. 
 
 Those cases are Butterfield vs. Forrester, 11 East, 60 ; Harlow 
 vs. Humiston, 6 Cowen, 191, and Smith vs. Smith, 2 Pick., 621. 
 We have examined them all with attention, and find ourselves 
 unable to assent to the interpretation that was given to them 
 by the Supreme Court of Massachussets. As we understand 
 them, they are very far from justifying the conclusion at 
 which the court arrived. In our deliberate judgment, they 
 prove this, and only this, that when it appears by the evidence 
 on the part of a plaintiff, who seeks to recover damages for 
 accidental injuries, that by the exercise of ordinary care he 
 might have avoided the accident, he is not permitted to 
 recover ; but this is wholly different from holding that he is 
 not permitted to recover unless he shows, aflBrmatively, that 
 there was no such want of ordinary care on his part as could 
 have contributed to the accident. The distinction between 
 the two propositions is manifest. In the first, the negligence 
 which is to bar a recovery is proved ; in the second, without 
 proof, it is presumed to have occurred. It is presumed, since 
 that which is not proved can rest only upon a presumption. 
 
 It escaped the attention of the Supreme Court of Massachu- 
 setts, that in numerous cases — we believe in a majority of 
 those that are reported — in which a plaintiff claims damages 
 for accidental injuries, the fact that his own negligence con- 
 tributed to the accident, is treated expressly or by implication 
 as purely a matter of defense, the burden of proving which, 
 as in every other case of a defense, necessarily rests upon the 
 defendant. According to our own experience and information, 
 it is this rule, that in practice has been constantly observed in 
 the courts of this state, and has been understood by all our 
 judges to be that which they were bound to follow, and we 
 cannot think that it ought now to be departed from, in 
 deference to a single case in which, upon mistaken grounds, 
 its authority has been denied. 
 
 There are other considerations that have strengthened our 
 conviction that it is the rule which we are bound to declare 
 and to follow. 
 
 If the plaintiff in every action for accidental injuries, were 
 bound to prove, before his case could go to the jury, that the 
 accident could not have been occasioned by any want on his 
 
1855.] N:EW YORK. 197 
 
 Johnson m. The Hudson River R. R. Co. 
 
 own part of ordinary care, it is certain, that an allegation in 
 the declaration that there was no such want, would be a 
 material and necessary averment ; it would be so, upon the 
 principle that every fact is necessary to be averred which 
 is necessary to be proved, in order to maintain the action, 
 and hence the omission of such an averment would render 
 the declaration bad upon demurrer. It is true, that such an 
 averment is found in some of the precedents of declaration, 
 in the collections of Wentworth and others, but in many 
 more it is wholly omitted, and we are convinced that there 
 is no adjudged case in which it has been held or intimated 
 that such an omission is a valid cause of demurrer. That ' 
 it is not so regarded there is positive evidence. 
 
 For more than thirty years past, the Court of Exchequer in 
 England, has been distinguished for its adherence to the 
 strictest rules of pleading and of evidence, and if there are any 
 errors in the pleadings before them that escape the notice of 
 counsel, they are sure not to escape the zealous vigilance of the 
 judges. The action in each of the cases of Gough vs. Bryan, 
 2 Mees. & Welsh., 770, and Bridge vs. The Grand Junction 
 Railroad Company, S Mees. & Welsh., ^H, was to recover 
 damages for accidental injuries, and in each, a plea, which 
 set up, in a defective form, the negligence of the plaintiff as 
 a bar to his recovery, was held to be bad upon demurrer, and 
 judgment, therefore, rendered for the plaintiff ; but in neither 
 case did the declaration contain an averment that the accident 
 had happened without any want of ordinary care on the part 
 of the plaintiff, and we may be certain, that had the omission 
 been deemed a fatal defect, it would not have escaped the 
 observation of the counsel or of the court, and would have 
 been so determined. Had the averment been deemed mate- 
 rial—as it certainly would be if the rule of law as to the 
 burden of proof were such as has been adopted in Massachu- 
 setts — we do not doubt that the court would, in each case, 
 have rendered judgment for the defendant, instead of the 
 plaintiff, in conformity -to the well-known rule, that when a 
 demurrer is interposed, no matter in what stage of the plead- 
 ings, judgment must be rendered against the party by whom 
 the first fault in pleading is shown to have been committed. 
 
198 NEW YORK. [N.Y. Sup'r Ot. 
 
 Johnson m. The Hudson River R. R. Co. 
 
 It is not irrelevant to observe that some of the more recent 
 decisions in England have gone to the extent of holding that 
 the negligence of the plaintiff, even when it is proved to have 
 contributed to the accident, is not, in all cases, a bar to his 
 recovery. In the case of Davies vs. Mann, 10 Mees. & Welsh., 
 51fi, the act of the plaintiff, which it could not be denied had 
 contributed to the accident that led to the action, was an act, 
 not merely of negligence, but of positive illegality, and yet 
 the defendant, upon the ground that by the exercise of ordi- 
 nary care he might have prevented the accident, was held to be 
 liable in damages for the injury to his property that the 
 plaintiff had sustained. Comparing the decisions, the doc- 
 trine now established in England appears to be this : — that as 
 the plaintiff in the action is not allowed to recover, notwith- 
 standing the clearest proof of the negligence of tlie defendant, 
 when it is so also proved that his own negligence directly con- 
 tributed to the accident, so the defendant is not shielded from 
 a recovery, notwithstanding such negligence on the part of 
 the plaintiff is proved, when it appears, that but for his own 
 subsequent negligence the accident would never have occurred; 
 that is when it appears that his own negligence was its sole 
 proximate cause. We are not aware that the exact question 
 has yet arisen in our own coiirts, but we are not prepared to 
 say that the doctrine, although somewhat novel, is not highly 
 reasonable, and whether it may not be applicable to the case 
 before us, is a question that, upon a future trial, may deserve 
 consideration. 
 
 As the decision in Lane vs. Cronibie has no adequate sup- 
 port from authority, so it has certainly none from reason or 
 analogy, but, if followed, would introduce an exception from 
 the rules of evidence, unreasonable in itself, as well as before 
 unknown. We know of no rule of evidence that rests upon 
 plainer and surer grounds of equity and good sense, than that 
 which in every controversy casts the burden of proof upon the 
 party who maintains the affirmative — which, in other words, 
 requires that he who asserts a fact, necessary to be shown to 
 sustain the action or bar a recovery, shall prove its existence. 
 That there are some exceptions from this rule we do not deny, 
 but these, when examined, will be found to rest mainly upon 
 
1855.] Ni:W YORK. 199 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 technical rules of pleading, and as all such rules are now 
 abolished, it may well be doubted whether any exception 
 ought' now to be allowed, unless in cases where the law has 
 settled that the right to maintain the action depends upon 
 proof of a negative allegation — and in all these cases, as has 
 already been observed, the negative allegation is an essential 
 averment in the declaration or complaint. So also in actions 
 founded upon contract, an exception may be created by the 
 very terms in which the parties have chosen to express their 
 agreement ; but we are unable to perceive that any valid 
 reason for allowing an exception, in any other eases, can now 
 be alleged. Although it may not be universally true that a 
 negative proposition is from its nature incapable of proof, 
 it is certain, that in most cases the proof is diflBcult, and in 
 some, impossible ; and to exact the proof in these would be 
 equivalent to a denial of justice. It would frequently operate 
 to deprive a plaintiff of the compensation to which a jury, 
 upon the whole evidence, might justly deem him to be 
 entitled. And by exacting the proof in actions like the pres- 
 ent, founded upon the statute, we are persuaded that the just 
 as well as benevolent intentions of the legislature in favor of 
 the wife and children of every person whose death has been 
 caused by the culpable negligence of others, would, in many 
 cases, be wholly defeated. 
 
 We think, for the reasons that have been given, that the 
 judgment dismissing the complaint was erronous. 
 
 It is, therefore, reversed, and there must be a new trial, 
 with costs to abide the event. 
 
 Judgment reversed. 
 
200 NJEW YORK. [Sup. Ot. 
 
 Wetmore m. Story. 
 
 APOLLOS R. WETMORE, HOWELL HOPPOOK, 
 ROBERT L. STUART and ALEXANDER STUART 
 vs. MINER C. STORY, WILLIAM RADFORD and 
 JAMES MURPHY. 
 
 GENERAL TERM. 
 
 SS Barb., iU; s. c. 3 Abb. Pr., S6S. 
 
 Suits for the redress or preveDtion of public wrongs, can be main- 
 tained only by, or in the name of, the people ; therefore, when individu- 
 als sue, they must show that their private rights are endangered. 
 
 Wrongs sustained by corporators by the mismangement of Iheir cor- 
 porate funds or property, by their officers, are private wrongs. 
 
 When a grant is by an act of legislation, and not by individuals, pur- 
 suant to it, a seal is unnecessary. 
 
 In the country the possession of land adjoining a public highway is 
 some, although not conclusive, evidence of the possession of the adjoin- 
 ing half of the road, subject to the public easement, and the owners 
 retain some rights in the soil. But in cities the owners of the strata of 
 the streets cannot exercise any acts of possession, for their individual 
 benefit, nor have they any possession which can raise a presumption of 
 title. 
 
 Property bounded by streets in general terms, in deeds, carries the 
 title to the centre of the streets, providing the vendor had the title to 
 the centre. 
 
 An injunction will not be granted to the owners of the soil of a city 
 street to protect their interest therein, as such interest is of merely nomi- 
 nal value. 
 
 It is the practice of all legislative bodies consisting of two branches, 
 that all business unfinished at the end of a session is discontinued and 
 at tbeir next meeting is to be taken up de now, if taken up at all. 
 
 Seld, that this rule of action must govern and control the common 
 council of New York in their legislative proceedings, and that there- 
 fore, a resolution adopted by the board of assistant aldermen in 1853, 
 and by the board of aldermen in 1853, was void. 
 
 Seld, that the resolution having been adopted by but a single board 
 during the existence of any one common council, was not at any time 
 the act of the entire body and was neither a grant, license nor resolution 
 and was, therefore, not confirmed by the " peace act" of April 4, 1854. 
 
 Seld. that an authorized railroad in a city is not a public nuisance. 
 The sanction of the principal act legalizes the temporary obstruction to 
 the public caused by the prosecution of the appropriate work, and 
 would prevent any effectual action by individuals on account of any 
 consequential injury which should necessarily result from it— even 
 though the injury be peculiar to them. 
 
1856.] NEW YORK. 201 
 
 Wetmore ««. Story. 
 
 But it is otherwise when the railroad is constructed without the 
 requisite authority. In order to maintain a suit for an injunclion to 
 restrain the placing of a railroad in a city street on the ground that 
 plaintiffs would sustain special injury because it would obstruct access 
 to their lots, an allegation of such special injury in the complaint is 
 required. But no motion having been made to reform the complaint 
 and no objection being taken on the trial, to the introduction of evi- 
 dence tending to show such injury, the defect will be considered as 
 having been waived. 
 
 Any unlawful interruption with the free access to lots on streets is 
 such an injury to the private rights of the owners as will be restrained 
 by injunction. 
 
 This was an appeal from a judgment entered at a special 
 term, dissolving an injunction. By the plaintiffs' complaint 
 it was sought to restrain the defendants from constructing a 
 railroad, (known as the Ninth Avenue Railroad,) through 
 Washington and Greenwich streets in the city of New York 
 upon the ground that the grant by the common council of the 
 city to the railroad was invalid and upon the further ground of 
 the ownership of the soil of the streets by the plaintiffs, who 
 alleged that they were property owners and taxpayers in New 
 York City. The injunction restrained the defendants " from 
 entering into, or upon, G-reenwich and Washington streets for 
 the purpose of laying or establishing a railroad therein, and 
 from digging up, or subverting the soil, or doing any other 
 act in those streets, tending to incumber them, or to prevent 
 the free and common use thereof, as the same have been here- 
 tofore enjoyed." The defendants answering the complaint 
 denied the invalidity" of the grant as alleged by the plaintiffs, 
 and alleged that the common council had the power to make 
 the grant and it was denied that the plaintiffs were the owners 
 of the soil in the streets, but on the contrary it was alleged 
 that the corporation of the city were the owners thereof. Mr. 
 Justice CowLES tried the case at special term without a jury, 
 and on part of the defendants the following resolutions of the 
 common council were given in evidence and were relied upon 
 as authority for the construction of the railroad in question : 
 
 " Resolved, That the common council do hereby grant the 
 right and privilege to James Murphy, William Eadford and 
 
202 JS':EW YORK. [Sup. Ot. 
 
 Wetraore vs. Story. 
 
 Miner 0. Story, and their respective assigns, and to those they 
 may associate with them, to construct a railroad from JB'ifty- 
 first street to the Battery, and back, in and through the fol- 
 lowing streets, yiz : 
 
 With a double track from Fifty-first street through the 
 Ninth avenue to Gansevoort street, thence by a single track 
 through Greenwich street to the Battery, and by a single track 
 through Gansevoort street to Washington street, and through 
 Washington street to the Battery, and through Battery place 
 between Greenwich and Washington streets, to connect the 
 said single tracks. 
 
 And also to run cars for the conveyance of passengers, etc., 
 upon said road, each and every day, at such times as they 
 may think proper, subject to provisions hereinafter named. 
 
 Provided, said railroad shall be constructed in all respects 
 after the manner of the construction of the Eighth Avenue 
 Eailroad ; and. 
 
 Provided, that in no case steam power be used on any part 
 of said railroad ; and also. 
 
 Provided, that the said grantees shall begin the construc- 
 tion of said road on or before the first day of May next, and 
 shall complete the same, and commence running cars there- 
 on within eighteen months thereafter ; and also. 
 
 Provided, that the said grantees shall run cars upon the 
 road so constructed, each way between Fifty-first street and 
 the Battery, every day as often as every fifteen minutes, from 
 5 to 6 A. M., and every four minutes from 6 A. M. to 8 P. 
 M.; every fifteen minutes from 8 P. M. to 12 M., and as much 
 oftener as public convenience may require, under such direc- 
 tions as the common council may from time to time prescribe ; 
 and, 
 
 Provided, that not more than five cents be charged for each 
 . passenger riding over the whole or any portion of the dis- 
 tance of said road ; and also. 
 
 Provided, that said grantees shall keep the space between 
 the tracks, and the space for two feet each side of the same, 
 at all times in thorough repair ; and also. 
 
 Provided, that the said cars shall be licensed by the mayor, 
 and the grantees shall pay the annual fee of twenty dollars 
 per car for such license ; and also, > 
 
1856.] Ni:W YORK. 203 
 
 Wetmore m. Story. 
 
 The said grantees, and their associates and assigns, shall 
 have the privilege to organize a joint-stock association, either 
 with or without incorporation, to carry out the objects of this 
 grant, and a majority in interest of the grantees, their assigns 
 and associates, shall have the control, management and direc- 
 tion of the road, and the business thereof ; and should any or 
 either of the grantees or their associates, or of the sharehold- 
 ers, neglect to pay their respective proportion of the money 
 required for carrying into full effect the grant hereby made, 
 when by such majority thereunto required, the others shall 
 be at liberty to make such payment, and this grant shall 
 inure to the benefit of those who pay in the proportion of 
 their respective contributions. 
 
 These resolutions shall be certified by said g rantees above 
 named, and a copy thereof, signed by them, shall be deemed 
 the agreement between the Mayor, Aldermen and Commonalty 
 of the City of New York and said associates, and shall be suf- 
 ficient in all respects to give and grant to the said grantees, 
 their associates and assigns aforesaid, the right and privilege 
 above mentioned, and bind them to conform to the directions 
 herein contained. 
 
 And also provided that said railroad shall be continued from 
 Pifty-first street, along the Ninth avenue, to the Blooming- 
 dale road ; thence along the Bloomingdale road to the Tenth 
 avenue ,■ thence along the Tenth avenue to the Harlem river, 
 whenever required by the common council, and as soon and 
 as fast as said avenues are graded. 
 Adopted by the board of assistants, December 20, 1852. 
 Adopted by the board of aldermen, January 5, 1853. 
 Received from his Honor the Mayor, January 12, 1853, with 
 his objections thereto. 
 
 Board of aldermen, November 14, 1853. Taken up, recon- 
 sidered and adopted, notwithstanding the objections of his 
 Honor the Mayor, thereto, two-thirds of the members elected 
 voting in favor thereof. 
 
 Board of assistants, December 28, 1853. On ayes and noes, 
 adopted, notwithstanding the objections of his Honor the 
 Mayor thereto, two-thirds of all the members elected voting 
 in favor thereof ; therefore, under the provisions of .the 
 amended charter, the same became adopted. 
 
 D. T. Valentine, Clerk, G. C." 
 
204 NJEW YORK. [Sup. Ot. 
 
 Wetmore m. Story. 
 
 The defendants also introduced in evidence and proved the 
 following acceptance of the said grant : " City and county of 
 New York, ss. : We, James Murphy, William Eadford and 
 Miner 0. Story, the grantees in the foregoing resolutions, do 
 hereby certify, as therein required, that the said resolutions, 
 and the conditions and provisions therein specified, contain 
 the agreement between us and the Mayor, Aldermen and Com- 
 monalty of the City of New York, in relation to the right, 
 privilege and grant made and conferred upon us and our 
 associates and assigns, by said Mayor, Aldermen and Com- 
 monalty, in and by the same. 
 
 In witness whereof, we have hereunto subscribed our names, 
 at the city of New York, the thirtieth day of December, one 
 thousand eight hundred and fifty-three. 
 
 James Muepht, 
 William Radfobb, 
 MiNBE C. Story. 
 
 In the presence of Johit B. Haskin." 
 
 The court made the following findings of fact : 
 
 First. That the permission to lay down a railroad track was 
 granted to the defendants, under certain resolutions set forth 
 in the complaint and passed by the common council of this 
 city. 
 
 Second. That such resolutions were accepted by the defend- 
 ants, who executed the instrument provided therefor in such 
 resolutions. 
 
 Third. That the defendants commenced the construction 
 of such railway track within the time specified in such reso- 
 lutions. 
 
 Fourth. That it was not proved that any ofEer more favor- 
 able to the taxpayers of the city or to passengers in the cars 
 to be run over such track, than the permission granted to the 
 defendants, was made in good faith to such common council. 
 
 Fifth. That the construction of such railroad along the 
 line of either Washington or Greenwich streets, intermediate 
 the intersection of the northerly line of Eeade and the south- 
 erly line of Courtlandt streets, with said Washington and 
 Greenwich streets, would inflict serious private injury upon 
 
1856.] N:EW YORK. 205 
 
 Wetmore m. Story. 
 
 the plaintiffs, in unduly obstructing them in approaches to 
 their respective places of business adjoining upon such streets, 
 amounting in its effects and consequences to a private nui- 
 sance to the plaintiffs, unless the grant is valid — but on the 
 other parts of the line would be neither a public nor a private 
 nuisance. 
 
 And as matter of law the court made the following 
 findings : 
 
 First. That all proper legal formalities had been complied 
 with in the passage of such resolutions requisite to render 
 them valid. 
 
 Second. That it was a matter of discretion resting with the 
 common council to determine whether or not such permission 
 should be given. That having exercised such discretion, and 
 made the grant in the manner and after the form required by 
 law, it was an exercise of legislative discretion, which this 
 court has not the power to rescind. 
 
 Third. That such grant was legal and valid, and that the 
 defendants could not be restrained from proceeding with the 
 construction of such road. That the injunction granted 
 should be dissolved, and that the defendants have judgment 
 therefor. 
 
 The court granted the motion to dismiss the complaint, 
 and dissolved the injunctioa. The plaintiffs excepted to the 
 decision and took this appeal to the general term of this 
 court. 
 
 Mr. Samuel Beardsley and Mr. John Van Buren, for the 
 appellants. 
 
 Mr. Charles 0' Conor, for the respondents. 
 
 S. B. Stbong, J. — The plaintiffs are owners in fee of lots 
 and buildings —Wetmore and Hoppock severally on Washing- 
 ton street, and the Stuarts on Greenwich street— all south of 
 and below Keade street. They respectively claim to the centre 
 of the street opposite to their lots. They are taxpayers to a 
 considerable extent in the city of New York. They complain 
 that the defendants threaten and intend to construct a rail- 
 way through the two streets, their entire length, and extend- 
 
206 N:EW YORK. [Sup. Ot. 
 
 Wetmore m. Story. 
 
 ing through the Ninth avenue to Fifty-first street, under an 
 alleged grant from the common council of the city, by reso- 
 lutions purporting to have been adopted by the board of assist- 
 ants on the 20th of December, 1853, and by the board of alder-- 
 men on the 5th of January, 1853, and subsequently on recon- 
 sideration, after the mayor's veto, in November and Decem- 
 ber of the latter year. The plaintiffs aver that the grant is 
 invalid, and that they have a right to prevent its operation, as 
 taxpayers, as proprietors of lands which it is proposed to 
 devote to a new purpose without allowing them any compen- 
 sation and as persons who will sustain a special injury by the 
 construction and proposed use of the railway ; and therefore 
 ask for an injunction restraining the defendants "from enter- 
 ing into, or upon Greenwich and "Washington streets, for the 
 purpose of laying or establishing a railroad therein, and from 
 digging up or subverting the soil, or doing any other act, in 
 these streets, tending to incumber them, or to prevent the free 
 and common use thereof, as the same have been heretofore 
 enjoyed." The defendants in their answer deny that the 
 plaintiffs are the owners of the soil of the streets mentioned 
 in their complaint, or any part thereof ; but they allege that 
 the ownership is wholly vested in the corporation of the city. 
 They aver that the corporation had power to make the grant 
 in question, and that it was correctly made ; and they state in 
 a supplemental answer that "they actually commenced the 
 construction of the proposed railroad, prior to the 4th of 
 April, 1854, and that before that day the said road was in part 
 actually constructed in conformity to the resolutions of the 
 common council," and that on that day the legislature of the 
 state passed an act ratifying, confirming and establishing the 
 grant to them ; and they admit that they were constructing, 
 and claim that they have the right to complete, and use the 
 proposed railroad. The judge before whom this action was 
 tried at the special term, decided that the construction of the 
 proposed road along the streets where they passed the plaint- 
 iffs' lots, would inflict serious private injury upon the plaint- 
 iffs, in unduly obstructing them in approaching to their 
 respective places of business adjoining upon such streets, 
 amounting in effect to a private nuisance to them, unless the 
 
1856.] NUW YORK. 207 
 
 Wetmore «s. Story. 
 
 grant is valid ; but he also held that the grant was legal and 
 valid, and that the defendants should not be restrained from 
 proceeding with the construction of the road ; and he there- 
 fore dissolved a preliniinary injunction which had been 
 granted, and gave judgment for the defendants. An appeal 
 from his decision has been brought by the plaintiffs, and is 
 now before us for oar determination. 
 
 It is entirely clear that suits for the redress or prevention of 
 public wrongs, where there is no pretense of injury to indi- 
 viduals in their private capacity, can be maintained only by, 
 or in the name of, the people. Where, therefore, individuals, 
 without invoking the aid of the public, call upon our courts 
 for protection, they must show that their private rights are 
 endangered. The principle is too clear to need any illustra- 
 tion, and too well supported to require the citation of any 
 authority. In speaking of public wrongs, I do not intend to 
 include such as may be sustained by corporators by the mis- 
 management of their corporate funds or property, by their 
 officers. These are included in the class of private wrongs. 
 Their officers act in the capacity of trustees, and their conduct 
 as such is subject to the rules applicable to individuals. It is 
 not a matter in which the people of the entire state in their 
 collective capacity have any interest. K the proposed grant 
 to the defendants in this case is of a franchise in the streets, 
 that would unquestionably be property belonging originally to 
 the corporation ; and if the grant is improvident, and involves 
 a breach of trust, it would for that reason be invalid, as much 
 so as if it had emanated from individuals in their private 
 capacity. Then, too, the plaintiffs as corporators, and there- 
 fore the beneficiaries, would have the right in behalf of them- 
 selves and their associates, to impeach the transaction. In 
 the case of The Mayor, Aldermen and Commonalty of the City 
 of New York vs. Britton, (pamphlet report,) Chief Justice 
 Nelson says that in the case of Bailey vs. Mayor, etc., of New 
 York, S Hill, 63 1, it was held that "the grant of the legisla- 
 ture authorizing the city to furnish the inhabitants with pure 
 and wholesome water, by means of the Croton aqueduct, was 
 the grant of a special private franchise made as well for the 
 private emolument and advantage of the city as for the public 
 
208 IfJSW YORK. [Sup. Ot. 
 
 Wetmore ts. Story. 
 
 good, and that the defendants, quoad hoc, were to be regarded 
 as a private company, and to be dealt with accordingly ; that 
 they stood upon the same footing, in this respect, as would any 
 person or body of persons upon whom the like special fran- 
 chise had been conferred." I retain the opinion which I 
 expressed in the case of Milhau vs. Sharp, 15 Barb., 198-230, 
 s. c. 1 Am. St.-Ry. Dec, 68-88, that these grants of permission 
 to construct, and in a limited manner use, railways in the city, 
 are in terms grants of franchises. The resolutions in this 
 case purport to conv.ey to the grantees, and as I conceive, to 
 them exclusively, the right to run cars upon the rails, for the 
 conveyance of passengers, subject to the provisions therein 
 specified ; and they provide that the joint stock association 
 which may be formed, " shall have the control, management 
 and direction of the road, and the business thereof." It was 
 insisted on the argument that the resolutions in question 
 cannot operate as the grant of a franchise, because they are 
 not under seal. But when a grant is by an act of legislation, 
 and not by individuals, pursuant to it, a seal is unnecessary. 
 There is no limitation of the time for which the grant is to 
 endure, nor is there any express power of revocation. If 
 such a power can be implied from the character of the trust 
 devolved upon the corporation by its charter, that would not 
 deprive what is granted of its character as a franchise, while 
 it continued. I do not intend to say that it is competent for 
 the corporation to grant to individuals a franchise in the use 
 of the public streets ; I only speak of these resolutions as they 
 read. If the grant would have been valid according to its 
 plain import, provided it had been made in good faith, it 
 seems to me that the plaintiffs can assail it for unfaithful- 
 ness in the administration of a trust, not in their character of 
 taxpayers, for that would include non-resident owners of real 
 estate, but as beneficiaries or cestuis que trust. But it is a 
 serious difficulty in their way in this particular, (and one 
 which relieves me from considering the question of good faith 
 in the common council,) that the judge who heard the evi- 
 dence on this subject has decided that no breach of trust was 
 proved. So grave a charge ought not to be lightly inferred, 
 but to be of any avail should be affirmatively and clearly sus- 
 
1856.] Ni:W YORK. 209 
 
 Wetmore m. Story. 
 
 tained by the evidence. The charge was, that more advan- 
 tageous offers were rejected by the common council, but the 
 judge says that a better bona fide offer is not proved to have 
 been made. In an equity case we are not, it is true, con- 
 cluded by the verdict of a jury or the decision of a judge on 
 qfuestions of fact ; but upon a full examination of the evidence, 
 I am satisfied that the judge came to a correct conclusion 
 upon this question. The plaintiffs cannot, therefore, avail 
 themselves of this alleged ground to sustain their action. 
 
 The allegation of the plaintiffs, that the defendants pro- 
 pose to take their respective land for the track of the road, is 
 not sustained by the proof. Their titles to the lots claimed by 
 them were not admitted in the answer, nor were the convey- 
 ances to them produced in evidence on the trial. There was 
 proof of possession of the lots and buildings adjoining the 
 streets by the plaintiffs, or under them, as owners ; but there 
 was no direct evidence of their possession of any part of the 
 streets in front of their lots, except of the vaults, for which 
 they had respectively made compensation to the common 
 council, to which body they had applied for permission to con- 
 struct them. In the country the possession of land adjoining 
 a public highway is justly deemed some, although not conclu- 
 sive, evidence of the possession of the adjoining half of the 
 road, subject to the easement. Ordinarily the owners of the 
 land devoted to public use, in the rural districts, retain some 
 right in the soil — all the private rights which may be com- 
 patible with the free and unobstructed exercise of the public 
 privilege. Thus they have the exclusive right to the pasture 
 and the wood, which are frequently of considerable value. 
 The existence and the common exercise of the right raise a 
 presumption in favor of the adjoining proprietors. It is but 
 , a presumption of fact, however, and may be rebutted. In 
 cities, the pristine or, (if there be any such,) the existing 
 owners of the strata of the streets cannot exercise any acts of 
 possession, for their individual benefit, over the devoted soil. 
 The many uses to which it may be appropriated preclude that. 
 They have not, therefore, any possession which can raise a 
 presumption of title. Especially is this true in a city, where 
 the title to the land, in a great portion of the streets, is vested 
 
 ' 14 
 
210 Ni:W YORK. [Sup. Ot. 
 
 Wetmore m. Story. 
 
 under the provisions of law in the corporation. If, how- 
 ever, there was any presumption of title in the plaintiffs, by 
 reason of their possessing the lands adjoining the streets, that 
 would be fully met by their admission of title in the corpora- 
 tion, implied by their application for permission to construct 
 vaults under the half of the streets adjoining their lands, and 
 paying a compensation for the privilege. I do not deny but 
 that if the plaintiffs had proved that the title to their lots had 
 emanated from those who at the time had owned the beds of 
 the streets, and their deeds had bounded the property by the 
 streets in general terms, their title would have extended to the 
 centre. The vendor could have had no inducement to retain 
 any title to the portions of the streets fronting the lots and 
 buildings of other proprietors ; and besides, as a street bound- 
 ary may be the margin or the centre, the construction most 
 favorable for the grantee might be applied, which would carry 
 him to the more capacious boundary. That is the rule where 
 the conveyance is between private,individuals, acting in refer- 
 ence to their own property. It is different when the state is 
 a grantor ; and I am inclined to think that it is inapplicable 
 where the grantor is a corporation, holding the lots for private 
 and the streets for public purposes. There the boundary of 
 the private property by that held for public purposes would 
 apply to the dividing line between the two, the same as when 
 one lot is bounded by another. If a vendor has no title beyond 
 the adjoining margin of a highway, and bounds the grantee 
 by the highway, in general terms, with a covenant of seisin, 
 it would be no breach of the covenant that his title did not 
 extend to the centre of the highway. If, therefore, the 
 plaintiffs had traced their titles back to their corporation, and 
 the corporation had, in the original conveyances, bounded the 
 lots by the streets, I think that they would not have thereby . 
 established their claims to any part of the adjoining streets. 
 If, however, the plaintiffs had clearly proved that their titles 
 extended to the centre, the value of their interest would have 
 been merely nominal. The public would still have a right to 
 engross the use, to the exclusion of the enjoyment of any 
 private right, so long as the public easement should continue ; 
 and as there is no probability of a discontinuance, the right 
 
1856.] NEW YORK. 211 
 
 Wetmore m. Story. 
 
 of reverter would be worthless. It is for this reason that 
 when the corporation demand^ and acquire by legal proceed- 
 ings, the absolute title to the lands dedicated by the owners to 
 the public for streets, a nominal compensation only is awarded. 
 In the matter of Thirty-second street, 19 Wend., 128. In the 
 matters of Twenty-ninth and Thirty-ninth streets, 1 Hill, 
 189, 191. If, then, the prosecution of the proposed measure 
 had been for a purpose to which the lailds claimed by the 
 plaintiffs had not been previously devoted, they would not 
 have been entitled to an injunction to protect an interest of 
 merely nominal value ; more especially as they could have 
 obtained ample redress after the actual infliction of the injury. 
 But the use of the street for a railway would not vary its pri- 
 mary designation. It was designated principally for a pass- 
 way, and a railway furnishes an improved method of locomo- 
 tion. The late Judge Jones says truly, in Drake vs. The 
 Hudson River Railroad Company, 7 Barb., 5.08; 1 Am. St.- 
 Ry. Dec., 10, that " the said road, with its cars pro- 
 pelled by the application of steam, or by animal power, 
 is a new mode of using the street, but still it is a 
 use of it for passing and repassing through it with vehicles 
 for the carriage of passengers, and of goods and freights ; 
 and the use of the streets by cars with passengers is equally 
 within the acknowledged right thus to traverse the streets with 
 carriages, as the use of them by other vehicles for similar 
 purposes." If, therefore, the plaintiffs had any title to the 
 lands in the streets, their property will not be used for any 
 purpose other than to pursue previously acquired privileges, 
 and they are not entitled to any compensation, nor, of course, 
 to an injunction, for the reason that no compensation has 
 been awarded to them. If the objections which I have been 
 considering had been originally valid, they would not have 
 been cured by the confirmatory act of April 4, 1854. The 
 legislature may, as some suppose, (although I do not,) pos- 
 sess despotic power, except where the people have been so 
 fortunate as to restrict it by their organic law ; but that con- 
 tains a restriction broad enough to prevent the enactment of 
 an effectual law to sanction the breach of a private trust, or 
 to prevent private property not only from being taken, but 
 
212 NEW YORK. [Sup. Ct. 
 
 Wetmore m. Story. 
 
 from being in effect annihilated, without a fair and just com- 
 pensation to the owners. It is, however, unquestionably 
 competent for the legislature to relieve a measure from any 
 objections exclusively of a public character. That would of 
 course be no infringement of private rights ; and the rights 
 of the people in their collective capacity are generally subject 
 to legislative control. If, therefore, the resolutions in ques- 
 tion exceeded the power conferred upon the city legislature, 
 in authorizing the construction of the proposed railway at all, 
 or in creating or conferring upon private individuals a fran- 
 chise which would constitute a monopoly in the public streets, 
 and which would in effect violate a general provision in the 
 law of the state for the benefit and protection of travel- 
 ers, or in restricting the common council in their power to 
 regulate the streets, or in authorizing the creation of a 
 public nuisance, irrespective of its effects upon the rights 
 of private individuals ; or if the common council, in making 
 the grant, assumed executive or administrative powers which 
 had been expressly denied to them ; or if the resolutions 
 would interfere with the power conferred upon the mayor, 
 to license carriages ; all these being, as was truly said by 
 the counsel for the defendants, "objections with which no 
 private individual has any concern, and of which the state 
 alone can complain," were effectually released by the confirm- 
 atory statute, and which, so far as it relates to these matters, 
 the same learned counsel very properly denominated " a peace 
 act." 
 
 The remaining objection is, as I view it, of a much more 
 formidable character. It is that these alleged resolutions 
 were never adopted by the common council — that they 
 were never legally passed. That the two boards, in what 
 they passed in this matter, acted in their legislative capac- 
 ity, I do not entertain a doubt. Whether it is consid- 
 ered as a simple regulation of the streets, revocable at 
 any time, or as a grant of franchise, it is still a legis- 
 lative act. The delegation of legislative power to the com- 
 mon council is in general terms. It is limited, of course, 
 by the constitution and laws of the state, but neither 
 restricts it in the particular which I am considering. As 
 
1856.] Ni:W YORK. 213 
 
 Wetmore vs. Story. 
 
 the statute gives iio definition of the term, it must be under- 
 stood and interpreted according to its ordinary signification. 
 The practice of the constituting power may always be con- 
 sidered, and should have controlling weight in the interpre- 
 tation of its own language. Now it has ever been the prac- 
 tice of our legislature to confer franchises, and even to convey 
 lands to individuals, by legislative acts. If a principle like 
 this needs confirmation, it has it in the case of Fletcher vs. 
 Peck, 6 Oranch, 87, which was cited by the defendants' coun- 
 sel. I do not think that it was decided otherwise by our court 
 of appeals in the case of the People ex rel. Davis, vs. Sturte- 
 vant, 9 N. Y., 26S. It is difficult to say how far the court 
 intended to go in that case. The only point necessarily decided 
 was, that if those proceedings of the common council purport- 
 ing to authorize the construction and use of railways were 
 legislative acts, they were not so far exempt from judicial in- 
 terference that an injunction restraining legislative action 
 was void, or could be safely disregarded. That was enough for 
 the determination of that case, and whatever else was said in 
 the opinion of the learned judge was an obiter dictum, and 
 no doubt would be so considered by him in any sub- 
 sequent case. The common council, in the years 1852 
 and 1853, consisted of a board of aldermen and a board 
 of assistants, who together possessed and wielded the legis- 
 lative power of the corporation. There could be no act 
 of the common council without the co-operation of both 
 boards. The term board, as applied to those bodies, may have 
 two meanings — one abstract, having reference to the legisla- 
 tive creation, which is continuous ; and the other referring 
 to its members, in which latter and more important sense it is 
 changed by every new general election. The members, of 
 course, constitute the board for all purposes of action ; and 
 when powers are to be exercised, the members legally assem- 
 bled can alone act. Legislation, to be effectual, must be per- 
 formed by the two boards who together constitute the common 
 council. Now, as an acting body, the common council of 
 1852 was not the common council of 1853, because there was 
 an entire change in the members of one of the constituted 
 bodies — the assistants — on the first of January, 1853. The 
 
214 Ni:W YORK. [Sup. Ot. 
 
 Wetmore ®s. Story. 
 
 resolutions in question were not passed by the common coun- 
 cil of 1853, as they were not then adopted by the board of 
 aldermen, nor by the common council of 1853, as they were 
 not then adopted by the assistants. It is not pretended that 
 the resolutions were passed in 1853. They were not passed in 
 1853, because the assistants of 1853 and the aldermen in 1853 
 could not, in the latter year, coalesce so as to form one com- 
 mon council. I The members of the two boards are the legisla- 
 tive representatives of the corporators, and their acts .in that 
 capacity are considered as the acts of the corporation. They 
 derive their efficacy from the principle of representation. 
 They are representatives only during their official term. Who, 
 then, were the legal representatives in 1853 ? Most assuredly 
 the then existing aldermen and assistants, and no act could 
 be passed in that year without their co-operation. But if the 
 procedure in this instance was valid, an act might be passed, 
 not only without the co-operation of the two existing boards, 
 but in opposition to the views of the members of one board, 
 by whom it had never been approved, or even considered. 
 The legislature might have authorized this anomalous pro- 
 cedure ; but it has not done so, certainly not in direct terms, 
 nor, as it seems to me, by inference. The provision in the 
 amended charter of 1849, " that when the mayor is prevented 
 from returning an ordinance or resolution of the common 
 council by the close of its session, it shall not be a law until 
 the expiration of five days after the commencement of the next 
 session of the common council, by whom the ordinance or 
 resolution shall be reconsidered, if returned within such time, 
 and be disposed of in the same manner and with the like 
 effect as if presented at the preceding session," has reference 
 to the same council by whom the ordinance or resolution was 
 originally passed, and not to one whose members had been 
 changed. That construction is supported by the direction 
 that the ordinance or resolution shall be reconsidered at the 
 latter session. Reconsidered by whom ? Certainly not by 
 those who had never considered it before. But if the pro- 
 vision may apply to a newly elected board, it is special, rela- 
 ting simply to a reconsideration of a measure by the two 
 existing boards, and can be extended no farther — certainly 
 
1856.J Ni:W YOBE. 215 
 
 Wetmore m. Story. 
 
 not so far as to violate a principle of representation. The 
 case of Coles ^s. The Trustees of Williamsburgh, 10 Wend., 
 669, simply decides that where a petition is necessary to any 
 act of a municipal corporation, one presented to a former 
 board will authorize their successors to proceed. That may 
 very well be, as the presentation of the petition was a per- 
 fected act, so far as it related to the subscribers. Nothing 
 more was to be done by them, and as to them it mattered not 
 to which board it was presented. That has no reference to 
 the case where the conjoint action of two constituent bodies 
 is requisite to make it the action of the composite body. The 
 delegation of legislative powers to the common council, as it 
 was constituted in 1853 and 1853, was by statute. The Don- 
 gan charter, it is true, recites that "the city of New York is 
 an ancient city, and the citizens of the said city have been 
 anciently a body politic and corporate." That was not enough, 
 however, to show that it was a corporation by prescription ; 
 nor could it have been such, as sufficient time to make it such, 
 under the English law, had not elapsed since the discovery of 
 .the continent. If, however, it had been a corporation by pre- 
 scription, the division of the common council into two boards 
 was by statute and of modern date. The principles which 
 control this new institution are such as are applicable to 
 recent enactments. In such cases the grant to the corpora- 
 tion cannot be explained, and most assuredly its powers can- 
 not be created, by usage. In ancient grants, and especially 
 when expressed in obsolete phraseology, usage under them 
 may be resorted to for explanation, but never, even in such 
 cases, to establish additional powers. That the common 
 council may have adopted a practice conformable to what was 
 done in this instance, and pursued it for a period of twenty- 
 five years, if it had been fully proved, ' which ■ it has not, 
 would not have shown that it was legal, or within the com- 
 pass of their powers. Their legislative powers were not 
 derived from usage, but were acquired wholly under the 
 statute. In all such cases, if there are express statutory 
 definitions, they must control ; but if there are not, any 
 power conferred must be taken with its ordinary qualities 
 and incidents. That is the reasonable rule, and it has been 
 
216 NJ]:W YORK. [Sup. Ofc. 
 
 Wetmore vs. Story. 
 
 established by authority. What then was the rule, in the 
 particular which I am considering, in legislative bodies con- 
 sisting of two branches ? In England, when there was an 
 election of a new house of commons, the unfinished business 
 pending in the preceding parliament was at an end. There 
 was never an instance where a bill adopted by the house of 
 commons, only, of one parliament, was taken up by the house of 
 lords and finally passed without the concurrence of the newly 
 elected body. The rule has been extended to prorogations, and 
 where the same houses reassembled. Blackstone says, {Com. vol. 
 1, p. 186,) that "prorogation puts an end to the session, and 
 then such bills as are only begun, and not perfected, must be 
 resumed de novo, (if at all,) in a subsequent session." Jefferson 
 says, {Manual, sec. 61,) "Parliaments have three modes of 
 separation, to wit : by ad journment, by prorogation or dissolu- 
 tioh by the king, or by the efflux of the term for which they 
 were elected. Prorogation or dissolution constitutes there what 
 is called a session, provided some act has passed. In this case, 
 all matters depending before them are discontinued, and at 
 their next meeting are to be taken up de novo, if taken up at 
 all. An adjournment, which is by themselves, is no more 
 than a continuance of the session from one day to another, or 
 for a fortnight, a month, etc., ad lihitum. All matters 
 depending remain in statu quo, and when they meet again, 
 be the term ever so distant, are resumed, without any fresh 
 commencement, at the point at which they were left." Pritcli- 
 ard's Case, 1 Lev., 165 ; Lex. Pari., c. 2 ; 1 Rolle, 29 ; 4 Inst., 
 7, 27, 28; Hutt., 61; The Earl of Shaftsbury's Case, 1 Mod., 
 m-162; Jac. L. Die, tit. Parliament. He subsequently 
 remarked, that " when it was said above, that all matters 
 depending before parliament were discontinued by the deter- 
 mination of the session, it was not meant for judiciary cases 
 depending before the house of lords, such as impeachments, 
 appeals and writs of error. These stand continued, of course, 
 to the next session. Jones vs. Axen, 1 Ld. Raymond, 119, 
 120"; Jac. L. D., tit. Parliament. Impeachments stand, in 
 like manner, continued before the senate of the United 
 States." It is stated in a note, "that it was held in 
 the case of Hastings, that a dissolution did not work the 
 discontinuance of an impeachment." Impeachments are 
 
1856.] NJEW YORK. 217 
 
 Wetmore m. Story. 
 
 like indictments, and when once preferred, they remain 
 pending before the courts until they are decided; so, too, 
 the house of lords acts as a court in hearing and deciding 
 appeals and writs of error, and is then governed by the 
 same rule of procedure. But the action of the house of 
 lords, when sitting as a court and acting alone, furnishes no 
 rule for governing their conduct when acting in their legisla- 
 tive capacity, where the concurrence of another body is 
 requisite. Bacon, in his abridgement, title Court of Parlich 
 menf, F., says "the diversity between a prorogation and an 
 adjournment or continuance of the parliament is, that by the 
 prorogation in open court there is a session, and. then such 
 bills as passed in either house, or by both houses, and had 
 no royal assent to them, must at the next assembly, begin 
 again ;" " but if it be only adjourned or continued, all 
 things continue in the same state they were in before the 
 adjournment or continuance." The practice of the English 
 parliament, when acting legislatively, has been uniformly 
 followed by the congress of the United States, by the 
 legislature of this state, and, so far as I know, by the 
 legislatures of all the other states. In all these bodies, 
 when there has been a new election of either branch, the 
 unfinished business of their predecessors is considered as abso- 
 lutely discontinued, and if taken up at all, is acted upon 
 without reference to what has been done before. Why is not 
 this rule applicable to the common council of New York ? 
 Can a power delegated to them be taken without the restrict- 
 ive incidents which enter into its definition ? And above all, 
 can it be supposed that when a superior body confers some of 
 its own power upon an inferior one, it designs to go beyond 
 its own limits ? I am satisfied that this rule of action in all 
 legislative bodies must govern and conti'ol the common coun- 
 cil of New York in their legislative proceedings. The sup- 
 posed resolutions in question were, therefore, null and void 
 when presented to the mayor for his consideration. The sub- 
 sequent action of the two branches was not, therefore, upon 
 the reconsideration of a previously adopted ordinance. If it 
 could have any effect it would have been as an original or a 
 new enactment. In that view it was ineffectual, as it was not 
 subsequently presented to or approved by the mayor. In fine. 
 
218 N:EW YORK. [Sup. Ot. 
 
 Wetmore m. Story. 
 
 what was attempted to be done was neither a grant, license, 
 resolution nor contract of the common council, or, in fact, of 
 anybody. It was not, therefore, confirmed by the "peace 
 act " of April 4, 1854. It was not embraced in its terms, nor 
 could it have been the design of the legislature to complete 
 the unfinished business of the common council, or of either 
 of its branches. The resolutions in qliestion had been adopted 
 but by a single board in any year, or during the existence of 
 any one common council, and were not, therefore, at any time 
 the act of the entire body. If such resolutions are character- 
 ized by what they are, and not by what they are designed to 
 be, a confirmation of the acts of the common council would 
 not reach them. In this point of view it is unnecessary to 
 consider the question discussed at the bar — whether a nullity 
 from inherent defects can be confirmed by an act of the 
 legislature ? Or, another question, whether the legislature, 
 having devolved the power of regulating the streets upon the 
 common council, can resume it without the consent of the 
 inferior body, legally expressed ? 
 
 Connected with the objection which I have last considered, 
 are the questions whether, by the construction or use of the 
 proposed railroad, the plaintifEs would clearly sustain a serious 
 special injury which would produce a public nuisance ; and if 
 so, one peculiar to themselves, by the noxious procedure. I 
 agree to what appears to be the predominant judicial senti- 
 ment in this state, that an authorized railroad in a city is not 
 a public nuisance. When the principal act is sanctioned, that 
 legalizes the temporary obstruction to the public caused by 
 the prosecution of the appropriate work, and would prevent 
 any efEectual action by individuals on account of any conse- 
 quential injury — although it might be peculiar to them— which 
 should necessarily result from it. But it is otherwise when the 
 railroad is constructed without the requisite authority ; then 
 the obstructions, at least in removing the pavement and lay- 
 ing the rails would be unjustifiable, and as they would neces- 
 sarily be considerable, they would amount to a public nui- 
 sance. If the injury would be confined to travelers, (and by 
 that term I intend to include all who use the street simply as 
 a passway,) the people alone could sustain an action for its 
 
185fi.] NUW YORK. 219 
 
 , Wetmore vs. Story. 
 
 reformation or prevention. In order to enable individuals to 
 maintain a suit for prevention in their own behalf, it must be 
 apparent that the injury of which they complain will ensue, 
 and will be peculiar to themselves. The apprehended dele- 
 terious result must be reasonably certain, and not merely pos- 
 sible or even probable. Thus if one threatens to dig a 
 pit, or deposit a log in the highway, an individual cannot 
 obtain an injunction>to prevent the nuisance because he is* in 
 the habit of riding in that part of the highway in the night, 
 and he or his horse will probably sustain a fall; not even if it 
 should be near his dwelling house. The danger might be 
 imminent under such circumstances, but not certain, and it 
 would also be one which he would share with the traveling 
 public, and would extend no further than to what might be 
 incurred in the use of the street simply as a passage, and the 
 greater probability or extent of the apprehended injury by 
 reason of propinquity would not change its character from 
 public to private. The judge who tried this action found 
 substantially that the plaintiffs would sustain special injury by 
 the obstruction, to the access to their stores. This appre- 
 hended grievance is not one of those particularly specified in 
 the complaint. It is included in the general charge that the 
 proposed work would, if prosecuted, be specially injurious to 
 them. The rules of good pleading would seem to require 
 greater particularity; but if the complaint was defective in 
 that particular, the defendants should have moved for an 
 order upon the plaintiffs to reform it, or at any rate should 
 have objected on the trial to the introduction of evidence to 
 support a charge not sufficiently specified. As they did 
 neither, it is too late for them to raise it now. It must be 
 considered as having been waived, especially as it was not 
 even mentioned in the argument of the defendants' counsel, 
 who never omits raising an available, or even plausible, point 
 in behalf of his client. The judge's conclusion that the 
 access to the plaintiffs' buildings on the nearer side of the 
 streets through which it is proposed to construct the railroad, 
 seems to be warranted by the evidence, and indeed was not 
 seriously controverted on the argument. But the defendants' 
 counsel contended so strenuously and ingeniously that this 
 
220 'Ni:W YORK. . [Sup.Ot. 
 
 Wetmore »s. Story. 
 
 apprehended injury would not be special and peculiar to 
 the plaintifEs, that it produced considerable doubt in my mind 
 whether I had not been mistaken in the opinion which I had 
 expressed to the contrary, in the Broadway Eailroad case. 
 Milhau vs. Sharp, 15 Barb., 19S-2S0; 1 Am. 8t.-Ry. Dec, 
 58-8 J).. I there say, " if the grant iS' void from the want of ade- 
 quate power to make it, or indeed invalid from any cause, the 
 plaintiffs as proprietors of buildings on Broadway, would be 
 peculiarly and seriously injured by an attempt on the part of 
 the defendants to construct the proposed railway, and they 
 would be entitled to an injunction to prevent evils for which 
 they could obtain no adequate redress in the law." My exam- 
 ination of the subject since the argument of this case has 
 dissipated the doubts which were then created, and led me to 
 a resumption of my former opinion. The injury in .this case 
 is not to the passage along or across the street from one part 
 to another, which is a public privilege, but to the access from 
 the street to the plaintiffs' buildings, which is a private right, 
 in which the public does not share. An interruption to such 
 access would inflict an injury upon the owner peculiar to 
 himself, in which others have no concern. It is true that the 
 number of sufferers in this instance would be very great, but 
 that would not prevent any of them from obtaining individ- 
 ual redress. It might be a valid reason for including as 
 plaintiffs in one action numerous persons who have no joint 
 interest, for the purpose of averting a threatened evil from a 
 common cause affecting them all. The injury, if inflicted, 
 would be direct, and not remotely consequential, and the dif- 
 ference is very essential. Thus, if a serious obstruction shouldi 
 be created in the mouth of the Mississippi, it would to some 
 extent impair the access from the ocean to the lands of the 
 riparian owners on that noble river, But, then, the injury 
 would be consequential to the interruption of a public ■ privi- 
 lege, and not directly acting upon a strictly private right. 
 The public privilege of passing from the ocean into the river 
 would be alone invaded, and that would not furnish a valid 
 cause of action to individuals to whom the consequences 
 might prove injurious. That distinction would prevent or 
 render' innocuous the "shower of subpoenas" in suits insti- 
 
1856.] , NEW YORK. 221 
 
 Wetmore vs. Stoiy. 
 
 tuted by the successive riparian proprietors, to wliich allusion 
 was made by the defendants' counsel. The decision of the 
 court of appeals in the case of Gould vs. The Hudson River 
 Railroad Company, 6 N. Y., 522, does not overrule this doc- 
 trine. I say the decision, because that applied to the ques- 
 tions actually involved, and was not necessarily accordant 
 with all the remarks of the learned judge who expressed an 
 opinion in that case. The question in that case was, 
 whether an owner of land on the banks of the Hud- 
 son river could maintain an action against a railroad com- 
 pany for damages sustained by him, in being deprived, 
 by an embankment, of his access to the river. The court 
 held that the action could not be sustained, ibecause the 
 damages resulted from an obstruction authorized by the 
 statute organizing the railroad. But if that is good .law, it 
 by no means follows that the action would have failed if the 
 obstruction had been unauthorized by the legislature. The 
 owner, it is true, would sustain a damage whether the causa 
 causans was sanctioned by legislation or not, but if it resulted 
 from a lawful cause it would be damnum absque injuria. I 
 cannot suppose that the court of appeals intended to decide, 
 nor do I believe it to be law, that the owner of land adjoining 
 a highway, by land or water, has not a private right of access 
 to it, (and if there is such a right it must necessarily be pri- 
 vate, as the public cannot share in it,) or that damages caused 
 by an interruption to it by an obstruction unlawfully inter- 
 posed are irrevocable. 
 
 Upon the wholfe, I am satisfied that the project for the pro- 
 posed railway was never legally adopted by the common coun- 
 cil, and that its pursuit, if tolerated, would inflict some serious 
 injuries upon the plaintiffs, in which none but the proprietors 
 of the land adjoining the streets through which it is designed 
 to construct said railway would participate, and that, therefore, 
 the injunction for which they asked should be granted. 
 
 The judgment at the special ternl should be reversed, and 
 an injunction should be awarded pursuant to the prayer in the 
 complaint. 
 
 I am not inclined to allow any costs. 
 
222 NJEW YORK. [Sn'p. Ot. 
 
 Wetmore vs. Story. 
 
 EoosEVBLT, J. — Messrs. Wetmore, Hoppock and Stuart, in- 
 habitants of this city, and also owners of property on Greenwich 
 and Washington streets, complain that the defendants, under 
 the name of the Ninth Avenue Railroad Company, and under 
 color of a pretended grant from the city authorities, are about 
 extending their rails through those streets, in front of the 
 plaintiffs' premises, to their great injury and annoyance, and 
 in violation of their rights. An injunction granted in the 
 first instance, on their application to restrain the proceeding, 
 was subsequently, at special term, dissolved and the complaint 
 dismissed. From that judgment the plaintiffs have appealed, 
 insisting that the injunction originally issued, instead of being 
 dissolved, should be made perpetual. 
 
 On the part of the defendants, it is not pretended that 
 everi/ citizen has a right to lay a rail track in the streets of 
 the city. The corporation, however, it is claimed, may do 
 it ; or, in their discretion, by a resolution of the common 
 council, may grant the privilege, as a franchise to a particu- 
 lar individual or association of individuals. Such a grant, it 
 is alleged, has been made in this instance. The judge so 
 held at special term. He placed his final decision on that 
 ground. And the question therefore is, can a resolution 
 adopted by the board of assistants in one year, be concurred 
 in by the board of aldermen in another year, so as to make 
 it, without consulting the existing board of assistants, an 
 ordinance of the common council? Or must it, as in the case 
 of unfinished business in other legislative bodies, be taken up 
 de novo? When the charter of 1830 declared that "the legis- 
 lative power of the corporation of the city of New York 
 should be vested in a board of aldermen and a board of assist- 
 ants, who together should form the common council of the 
 city," it must be considered as having adopted by implication, 
 so far as applicable, the universally recognized principles of 
 legislative bodies, constituted of two independent branches. 
 The settled practice and understanding — indeed, we may say 
 the common law— of such bodies, as illustrated in the con- 
 gress of the United States, the legislature of this state, and, 
 it is believed, in the legislatures of every state in the Union, 
 as well as in the parliament of Great Britain, repudiates the 
 
1856.] NEW YORK. 223 
 
 Wetmore vs. Story. 
 
 idea that the board of aldermen of 1853 could take up and 
 pass the resolution of the politically deceased board of assist- 
 ants of 1853j and give it effect as lav, without consulting 
 the newly elected body; it might have been, although not so 
 in the present instance, on the express ground of opposition 
 to the particular act of their predecessors, and for the express 
 purpose of preventing its consummation. 
 
 No case has been cited, in which the senate of a state, or of 
 the United States, or in the upper house of Great Britain and 
 Ireland, has attempted to give effect to the inchoate action of 
 a previous assembly, house of representives or house of com- 
 mons, whose term had expired and whose places were filled by 
 others newly chosen in their stead. To allow an opposite 
 practice in the legislation of the city common council since 
 its new organization, would be at times to defeat the will of 
 the constituents, clearly expressed through the regular channel 
 of the ballot-box, and to render the elective franchise a nul- 
 lity. Although the corporation of the city is a continuous 
 body, the common council, since its division into two branches, 
 is not. Its legal term, like that of the state legislature, upon 
 whose model it was formed, is one year, and no longer. The 
 common council of 1853 is not the common council of 1853. 
 The resolution, therefore, set up by the defendants as their 
 justification, although by a board of aldermen and by a board 
 • of assistants, was not a resolution of the common council, and 
 as a consequence, was not confirmed by the state law of April 
 4th, 1854. 
 
 The primary object of that act was to prevent the common 
 councils of cities from permitting the construction of railroads 
 in the streets of cities, without the consent of a majority of the 
 property owners immediately interested; and when it excepted, 
 from its operation, railroads already " constructed in part," 
 it meant those constructed under lawful authority, and not 
 under " grants, licenses, resolutions or contracts " which had 
 never been made, given, passed or entered into according to 
 the charter, and which, therefore, having in judgment of 
 law no existence, could not be "confirmed." The confirma- 
 tion intended was a confirmation as against the state, and not 
 against the common council itself. An opposite construction 
 
224 N:EW YORK. [Ot.App. 
 
 Oldfleld m. The New York and Harlem R. R. Co. 
 
 of the act, instead of restraining the common council from 
 permitting injurious railroads, would go to sanction roads 
 commenced in violation of law, and which had never been 
 permitted at all. Having had, therefore, no warrant for its 
 commencement, and none for its continuance^ the road in 
 question, under the evidence, is not only a public nuisance, 
 but a public nuisance of which the plaintiffs have a legal 
 right to complain as specially injurious to them in their 
 ingress and egress to and from their places of business on the 
 street. Such a nuisance, it is well established by numerous 
 decidons, can and ought to be restrained by injunction, if 
 demanded, as in this case, by the parties specially aggrieved. 
 The judgment therefore of the special term, we all agree, 
 should be reversed, and a perpetual injunction awarded. 
 
 ' Clekkb, J. — For the reasons above expressed 'in Judge 
 Roosevelt's opinion, I concur in the conclusion at which both 
 my associates arrived. 
 
 Judgment reversed. 
 
 THOMAS J. OLDFIELD, Administrator, etc., of Hetty 
 
 Downie, deceased, vs. THE NEW YOEK AND 
 
 HARLEM RAILROAD COMPANY. 
 
 U N. T., 310. 
 
 Affirming 3 N. Y. Oommon Pleas, (3 B. D. Smith,') 103 ; 1 Am. St.-By. 
 
 Dec., 168. 
 
 PlaintiflE as administrator of a child, between six and seven years 
 of age, who was run over and killed by one of the defendants' cars, 
 brought this action under Laws of 1847, amended in 1849, to recover 
 damages for the death of the cliild. 
 
 Reld, that the question of the negligence of the parties was one emi- 
 nently for the consideration of the jury. 
 
 Held, also, that in order to sustain the action, it was not necessary 
 for the plaintiff to prove that any pecuniary or special damage had been 
 sustained by the mother of the child, in consequence of its death. 
 
 The complaint averred that the death was caused by the negligence 
 and default of the defendants and their agents and servants. 
 
1856.] NUW YORK. 225 
 
 Oldfleld m. The New York and Harlem R. R. Co. 
 
 Seld, that a question respecting the construction of the car, was 
 admissible in order to prove negligence on the part of the defendants. 
 
 Objections to a judge's charge should be specifically taken, and wherd 
 a number of propositions are stated, some of which are unquestionably 
 correct and the exception is general to all, there is no question for review 
 on appeal. 
 
 Seld, therefore, that the only exception taken by defendants being, 
 "to all that part of the judge's charge which related to the amount of 
 damages," it was within the rule, and the court could not consider 
 whether the damages were excessive or the verdict against the weight - 
 of evidence. 
 
 The action was brought by Thomas J. Oldfleld, as adminis- 
 trator of Hetty Downie, deceased, a child aged six years and 
 ten months, who it was alleged was killed on May 9th, 1849, 
 by the negligence of the defendants. The complaint alleged 
 the negligence of the defendants and then stated that an 
 action had accrued to the plaintiff, as administrator, to 
 demand and have from the defendants compensation in dama- 
 ges for the injury done to the next of kin of the said Hetty 
 Downie, deceased, by their wrongful act in causing her death. 
 
 On the part of the plaintiff evidence was given which tended 
 to show that Hetty Downie, a girl aged six years and ten 
 months, and of more than ordinary intelligence and activity, 
 had attended a public school in the city of New York for 
 more than a year and was, on the 9th day of May, 1849, 
 returning from school, and arrived at the corner of Walker 
 and Centre streets, the latter of which she had to cross. 
 Centre street ran nearly north and south, was crossed at right 
 angles by "Walker street, and was occupied in part by a double 
 track of the defendants' road. When the deceased, who 
 was passing up Centre, reached the corner of Walker and 
 Centre streets, a small car, belonging to the defendants, was 
 passing down on the west track, and as soon as it passed, she 
 started to cross Centre street ; but when on or near the east 
 track, she discovered a large passenger car, drawn by four 
 horses, approaching at speed, and then ran, in a diagonal 
 direction, towards the northeasterly corner of Walker and 
 Centre streets ; but before she could clear the track, the off 
 leader of the team attached to the car, struck her and knocked 
 her down, and the car passed over her and went some distance 
 
 15 
 
226 N:EW YORK. [Ot. App. 
 
 Oldfleld vs. The New York and Harlem R. R. Co. 
 
 before being stopped. She was thrown across one of the rails 
 of the east track, and so crushed and mangled by the wheels 
 of the car, that she died the same afternoon. "When the 
 deceased first started to cross the street, the horses attached 
 to the large car were forty or fifty feet from the crosswalk, and 
 when she commenced to run diagonally, to avoid the horses, 
 they were twelve or fifteen feet from it. Several persons 
 called to the driver to stop, but he did not. An acquaintance 
 stood beside him on the platform with whom he was convers- 
 ing, and his horses were going on a fast trot. Nothing pre- 
 vented his seeing the child, if he had been looking ahead. 
 Ko object was between the driver and the child except the 
 man on the platform ; and if he had seen her, he could have 
 turned his horses so as not to have run over her. 
 
 Evidence was also given on the part of the plaintiff, tend- 
 ing to show that the car was not provided with suitable safe- 
 guards and brakes for stopping ; and that the deceased lived 
 with her mother, Mrs. Oldfield, who was her next of kin. 
 The plaintiff called a witness, who was asked whether there 
 were any guards in front of the car. This was objected to by 
 the defendants' counsel, there being nothing in the complaint 
 on the subject of the construction of the car. The court 
 decided that the plaintiff might show anything in the con- 
 struction 'of the car by which, if otherwise, the accident might 
 have been prevented. The defendants excepted to this decision. 
 The plaintiff rested ; and the defendants' counsel moved to 
 dismiss the complaint, on the following grounds: First. That 
 the accident was occasioned by negligence on the part of the 
 plaintiff, or the child ; Second. That there was no proof of 
 any pecuniary or special damage sustained by the plaintiff, or 
 by the next of kin, in consequence of the death of the child. 
 The motion was denied, and the defendants' counsel took an 
 exception. 
 
 The defendants then gave evidence tending to show that 
 there was no defect in the construction of the car, and that 
 the driver was giving his attention to the horses at the time 
 of the accident ; that the child ran behind the small car as 
 soon as it passed, ran against the horses of the large car, and 
 was thrown down and run over before the car could be 
 stopped. 
 
1856.] Ni:W YORK. 227 
 
 Oldfleld vs. The New York and Harlem R. R. Co. 
 
 On the question of negligence of the parties the judge, 
 charged the jury at length, and no exception was taken. 
 He then charged as follows : "The remaining question in 
 this case is one of damages. This action is brought under a 
 peculiar statute giving an action to the next of kin when 
 death is caused by the negligence of another. The damages 
 in any event are limited to $5,000,' and the statute has declared 
 what the measure of damages shall be. The next of kin may 
 recover, in such a case, compensation for the pecuniary injury 
 resulting from the death. 'As in the case of a husband or a 
 father, upon whom a wife or family are dependent for sup- 
 port, the statute contemplates that ample compensation shall 
 be made for the pecuniary loss sustained by such a death. 
 This is not such a case. It is the loss of a child, and the 
 plaintiff, as the representative of the next of kin, recovers, if 
 he has satisfied you that death was occasioned by the culpable 
 negligence of the defendants, whatsoever pecuniary loss the 
 next of kin, the mother in this instance, may be supposed to 
 incur in consequence of the loss of this child. In the words 
 •of the statute, you are to give what you shall deem fair and 
 just, with reference to the pecuniary injury resulting from 
 the death. I will not, as the counsel for the plaintiff requested, 
 instruct you that the plaintiff may recover for the physical 
 suffering of the child, or the anguish of mind inflicted upon 
 the parent by such a calamity unless, in the latter case, it was 
 attended with pecuniary loss, of which there is no proof. The 
 measure of compensation is strictly pecuniary, to indemnify 
 fully for any pecuniary loss that may have attended or resulted 
 from the death of this child." 
 
 It is stated in the case that "to all that part of the judge's 
 charge which related to the amount of damages the defend- 
 ants' counsel excepted." The jury found a verdict for the 
 plaintiff for 11,300, for which judgment was entered, and the 
 defendants appealed to the general term, where the judgment 
 was affirmed and then appealed to this court. 
 
 Mr. 0. W. Sandford, for the appellants. 
 Mr. N. Hill, Jr., for the respondent. 
 
228 NSW YORK. [Ot. App. 
 
 Oldfleld m. The New Tork and Harlem R. R. Co. 
 
 Weight, J. — The inquiry as to guards in front of the car 
 was not improper ; at least, not for the reason assigned. The 
 action being founded on the negligence of the defendants, it 
 was competent to deduce it, either from the conduct of the 
 driver, or the default of the defendants themselves in provid- 
 ing unsuitable vehicles, or from a combination of those 
 causes. The complaint averred that the death was caused by 
 the negligence and default of the defendants and their agents 
 and servants. This authorized evidence of the defendants' 
 neglect or misconduct tending to produce the injury, without 
 a more particular statement in the pleading. 
 
 The dismissal of the complaint was properly denied. Evi- 
 dence adduced by the plaintiff tended to show gross negli- 
 gence on the part of the defendants. The circumstances 
 under which the death occurred, as detailed by the witnesses, 
 were not conclusive, in law, that the injury was occasioned 
 by the fault of the child, or that such fault contributed to 
 produce it. The question of the negligence of the parties 
 was one, under the proof when the plaintiff rested, eminently 
 for the consideration of the jury. Nor was the court justi- 
 fied in nonsuiting the plaintiff for the reason that there was 
 no proof of any pecuniary or special damage sustained by the 
 mother of the child in consequence of its death. Sufl&cient 
 evidence had been given to warrant a verdict for the plaint- 
 iff, on the ground of injury to the next of kin, if only for 
 nominal damages. Nominal damages, at least, were recov- 
 erable, unless the statute under which the action was brought 
 be construed as inapplicable to a case like the present, where 
 the injury caused the death of a child of tender years and yet 
 in a dependent state. The defendants claimed no such con- 
 struction of the law; nor do we think it is susceptible of it. 
 
 But one exception was taken to the charge, and this is of 
 the most general kind. It was to all that part which related 
 to the amount of damages. There were several propositions 
 stated, relating to this question, entirely unexceptionable. 
 Indeed, the jury were instructed in the words of the statute; 
 and it is not claimed that more than a single observation of 
 the judge was erroneous. Such an exception is not now 
 available. The objections should be specifically taken; and 
 
1856.] NHW YORK. 229 
 
 Oldfield m. The New York and Harlem E. R. Co. 
 
 where a number of propositions are stated, the correctness of 
 some of which is not questioned, and the exception is general 
 to all, it has often been held that such an exception presents 
 no question for review on appeal. Hart vs. The Rensselaer 
 and Saratoga Railroad Company, 8 N. Y., 37; ' Caldwell vs. 
 Murphy, 11 id., ^16; Decker vs. Matthews, 12 id., SIS. But 
 were this otherwise, I am inclined to the opinion that there 
 was no error in that part of the charge which related to the 
 question of damages. The action was brought under a special 
 statute, passed in 1847, and amended in April, 1849. Laws 
 of 18^.7, chap. 450, p. 575; id., 181fi,, chap. 256, p. SS8. 
 This act provided that whenever the death of a person should 
 be caused by wrongful act, neglect or default, and the act, 
 neglect or default is such as would, if death had not ensued, 
 have entitled the party injured to maintain an action and 
 recover damages in respect thereof, then and in every such 
 case the person who or the corporation which would 
 have been liable, if death had not ensued, should be 
 liable to an action for damages, to be brought by and 
 in the name of the personal representatives of such deceased 
 person, notwithstanding the death of the -person injured ; 
 the sum recovered to be for the exclusive benefit of the 
 widow and next of kin of such deceased person, and to be 
 distributed to such widow and next of kin in the proportions 
 provided by law in relation to the distribution of personal 
 property left by persons dying intestate. The act further 
 authorized the jury, in any such action, to give such damages 
 as they should deem fair and just, with reference to the 
 pecuniary injury resulting from such death to the wife and 
 next of kin of such deceased person. The amendment in 
 1849 limited the damages to a sum not exceeding $5,000, and 
 made every agent, engineer, conductor or other person in the 
 employ of such company or persons, through whose wrongful 
 act, neglect or default the death of a person shall have been 
 caused, liable to indictment, and, upon conviction, to be 
 punished as for a felony. At common law, the right to 
 maintain an action for personal injuries died with the person. 
 A leading object of the statute was to authorize the main- 
 tenance of such actions in cases where death had ensued from 
 
230 NJEW YORK. [Ot.App. 
 
 Oldfleld M. The New York and Harlem R. R. Co. 
 
 the wrongful act, neglect or default. The personal represent- 
 atives of any deceased person, who could himself, if living, 
 have maintained an action for personal injuries, may bring 
 and maintain a suit for the exclusive benefit of the widow 
 and next of kin of the deceased. The statute does not, as 
 has been supposed by some, only create a liability in those 
 cases where the relations of the persons to be indemnified 
 to the person killed were such that the former had a legal 
 right to some pecuniary benefit which would result from a 
 continuance of the life of the latter, and which was lost by 
 the death. It is applicable to the case of any person, when 
 death ensues, who could himself, if living, have maintained 
 the action, and cannot Justly be limited to the cases of a wife 
 for the loss of a husband or children of parents. Nor, as it 
 has been sometimes claimed, is it to be restricted to cases 
 where there are both a widow and next of kin to be the dis- 
 tributees of the recovery. The words "widow and next of 
 kin " are evidently used for the twofold purpose of desig- 
 nating the persons entitled to a participation in the recovery, 
 and those with reference to whose pecuniary loss by the 
 death in question the damages are to be assessed. The terms 
 "widow" and "wife" are used to designate a person who 
 would not be included in the term "next of kin." Were 
 this otherwise, in the case of a father leaving children but no 
 wife, an action could not be maintained upon the statute ; 
 for a conjunctive reading of the words would require that 
 there should be both a "widow" and "next of kin" at 
 the time the action was brought. This was not the intention 
 of the legislature. Such intention manifestly was to impose 
 on corporations and others more care in regard to human 
 life ; and, that they might not escape the consequences of 
 their wrongful acts by the death of the person injured, to 
 prevent the action dying with such injured person. 
 
 Had death not ensued in this case, and the action had been 
 brought by the child, it would not be pretended that to have 
 entitled her to recover it was necessary to prove an actual 
 pecuniary loss. A verdict for such damages as the jury might 
 award would be sustained by evidence of the injury and the 
 defendants' negligence. The principle of liability, it has been 
 
1856.] N:EW YORK. 231 
 
 Oldfield m. The New York and Harlem R. E. Co. 
 
 seen, is made the same by the statute as though the injured party- 
 had survived and brought the action herself. It is not required, 
 therefore, to sustain the action, that there should be proof of 
 actual pecuniary loss. Any difficulty or confusion on the 
 question of damages arises from a power conferred on the jury. 
 In every action brought by the personal representatives of the 
 deceased, it is provided, that "the jury may give such dama- 
 ges as they shall deem a fair and just compensation, not 
 exceeding five thousand dollars, with reference to the pecu- 
 niary injuries resulting from such death to the wife and next 
 of kin of the deceased person." {8ec. 2.) I neither suppose 
 that the limitation of $5,000, imposed by this clause, shows 
 that the jury were to be the uncontrolled judges of the pecu- 
 niary injury to that extent, nor that to sustain the action, 
 even for nominal damages, it is essential that there should be 
 affirmative proof of actual pecuniary loss. The damages are 
 to be assessed by the jury with reference to the pecuniary 
 injuries sustained by the next of kin in consequence of such 
 death. This is not the actual present loss which the 
 death produces, and which could be proven, but prospective 
 losses also. Should the action be brought to compensate a 
 wife for the killing of her husband, would it be pretended that 
 a recovery could only be had for the actual outlays occasioned 
 by the death ? Or might the jury, having before them the 
 relationship and dependent condition of the parties, the ability 
 of the husband to maintain the wife, and other facts of 
 a like kind, estimate the pecuniary loss of the wife under 
 such circumstances ? I think the jury are not limited to the 
 assessment of damages for the actual present loss that may be 
 proved, but they may go further, and compensate for the rela- 
 tive injury with reference to the future. They may compen- 
 sate for " pecuniary injuries," present and prospective. If 
 this were not so, how would the widow and next of kin be 
 indemnified in the case of a person killed leaving property 
 sufficient to cover all the outlay consequent upon his death ? 
 A construction which should exclude damages for prospective 
 losses, and confine them to such actual pecuniary loss as was 
 proved, would render the law nugatory. It would be worth- 
 less to secure greater caution, and compel compensation for 
 
232 N£:W YOBK. [Ot. App. 
 
 Oldfleld m. The New York and Harlem R. R. Co. 
 
 death occasioned by negligence. What I think the legisla- 
 ture intended was, that the jury who had all the circumstances 
 of the casualty, and the precise condition and relationship 
 of the parties before them, should give such a compensation 
 as they should deem fair and just, keeping in view that it 
 was to be measured by the injury done to the next of kin. 
 They were not to compensate for the pain and suffering 
 endured by the deceased, or the anguish and mental distress 
 of a wife or children, incident to the loss of a husband or 
 father, but were to measure the compensation by the pecu- 
 niary injury exclusively, the statute assuming that every 
 person poss'esses some relative value to others. 
 
 The judge instructed the jury that, under the statute, the 
 next of kin might recover for the pecuniary injury resulting 
 from the death. He then remarked that, in case of a husband 
 or a father, the statute contemplated that ample compensation 
 should be made for the pecuniary loss sustained ; but that 
 this was not such a case. That it was the loss of a child ; 
 and the plaintiff, as the representative* of the next of kin, 
 recovers whatever pecuniary loss the next of kin, (the mother,) 
 may be supposed to incur in consequence of the loss of the 
 child. In the words of the statute, they were to give what 
 they should deem fair and just with reference to the pecuniary 
 injury resulting from the death. The judge further instructed 
 the jury that they could not give damages for the physical 
 suffering of the child, or the anguish of mind inflicted upon 
 the parent by such a calamity, that the measure of compensa- 
 tion was strictly pecuniary, to indemnify fully for any pecuni- 
 ary loss that may have attended or resulted from the death 
 of the child. All that was claimed on the argument to be 
 erroneous was, that whilst the judge instructed the jury in 
 the words of the statute, he observed that, in a case of this 
 kind, the plaintiff might recover whatever pecuniary loss the 
 mother may be supposed to have incurred in consequence of 
 the child's death. But this was not error. It was only 
 another way of instructing the jury that the damages were to 
 be a sum which, in their opinion, taking into view all the cir- 
 cumstances of the case, would be the pecuniary loss of the 
 next of kin. This was right, unless the statute expressly 
 
1856.] Ni:W YOEK. 233 
 
 Oldfleld vs. The New York and Harlem R. R. Co. 
 
 limits the recovery to the actual pecuniary loss proved on the 
 trial. We think it does not. 
 
 It may be that, under the whole proof, the question of 
 
 negligence of the parties was incorrectly determined by the 
 
 jury, and their assessment of damages excessive. But these 
 
 ' are matters not reviewable by this court on appeal. The 
 
 judgment should be aflBrmed. 
 
 CoMSTOCK, J. — When the plaintiff rested at the trial, the 
 defendants' counsel moved to dismiss the complaint on the 
 grounds : First. That the accident was occasioned by the 
 negligence of the child. Second. That there was no proof of 
 any pecuniary or special injury sustained by the plaintiff or 
 next of kin, in consequence of the death of the child. On 
 examining the evidence upon the question of negligence I am 
 satisfied that it was proper for the consideration of the jury, 
 and the charge in that respect has not been complained of. 
 As to the other ground of the motion, it is sufficient answer 
 that without any special proof of pecuniary loss, nominal 
 damages, at least, could be recovered. The statute, in terms, 
 gives the action to the representative in all oases where the 
 person injured would be entitled to sue if death had not 
 ensued. Laws of 1847, chap. 450, p. 575. In this case, if 
 the child had been only wounded instead of killed, the action 
 to recover the expenses incurred in its cure and for the 
 loss of service could have been maintained only by the parent 
 or person entitled to the service. But the child could also 
 sue for the personal wrong to itself, and could recover, at 
 least, a nominal compensation. Whether more than that, or 
 what amount could be recovered, would depend on circum- 
 stances in regard to which it is unnecessary to speculate. It 
 is enough that the action would lie, for that brings the pres- 
 ent suit within the very terms of the statute. 
 
 In the course of the trial, evidence was received to show 
 that there were no guards in front of the wheels of the 
 defendants' car. The complaint alleges that the car was 
 driven over the child carelessly and negligently by the defend- 
 ants' servant, and it says nothing about the guards; and 
 on this ground it was insisted that the evidence should not be 
 
234 N:EW YORK. [Ot. App. 
 
 Oldfield M. The New York and Harlem R. R. Co. 
 
 / 
 
 admitted. On this point I concur in the ohservation of Mr. 
 Justice Woodruff, in the court below, who thought the evi- 
 dence admissible on the ground that what would be prudent 
 and careful in the management of a well constructed car, pro- 
 vided with brakes and guards to prevent injury in case of 
 accident, might be imprudent and careless in driving a car 
 not thus provided. It is hardly probable that this evidence 
 had any influence upon the result of the trial ; but I cannot 
 say it was so remote from the question of the negligent driv- 
 ing and management of the car, that it ought not to have 
 been received. 
 
 The judge, in charging the jury, laid down a series of propo- 
 sitions on the subject of damages, and the defendants' coun- 
 sel put in a single exception'to "all that part of the charge." 
 On the argument before us, one and only one expression of 
 the judge has been selected and claimed to be erroneous. 
 The general tenor of the charge is admitted to have been cor- 
 rect, as it clearly was, and when such is the case, it is well 
 settled that an exception to the whole in gross raises no ques- 
 tion upon a particular paragraph. I think the expression 
 referred to was loose and inaccurate ; but it was the duty of 
 the defendants, instead of putting in a general exception to a 
 charge correct in all its essential features, to call the attention 
 of the judge to the particular part supposed to be erroneous. 
 Had that been done I have no doubt there would have been 
 nothing to complain of. 
 
 The remaining points of the appellants' counsel, that the 
 damages were excessive, and that the verdict was against evi- 
 dence and against the law of the case as laid down at the trial, 
 were properly addressed to the supreme court, which could 
 reverse the judgment and grant a new trial on those grounds. 
 But this court has no such power. Where a trial and general 
 verdict have been had, we can deal only with questions of 
 law upon exceptions duly taken, and we cannot correct the 
 errors of the jury. The judgment should be affirmed. 
 
 All the judges concurring, judgment affirmed. 
 
1856.] Ni:W YORK. 235 
 
 Davis m. The Mayor, etc., of New York. 
 
 DAVIS and others vs. THE MAYOE, ALDERMEN AND 
 
 COMMONALTY OF THE CITY OP NEW 
 
 YORK and others. 
 
 U N. T., 506. 
 
 Reversing Tlie AU'y Gen. of State of N. T. vs. Tfie Mayor, etc., of N. Y. 
 
 et. al., 10 N. Y. Superior Court, (S Duer,) 119, s. c. 1 Am. 
 
 St. -By. Dec. 122. 
 
 A resolution of the common council of the city of New York granted 
 to an association of persons the right to construct and maintain, for a 
 term of years, a railway in one of the streets of the city, for the trans- 
 portation of passengers for private gain. 
 
 Held, that the corporation of the city of New York has not, by vir- 
 tue of its general power over the streets of the city, authority to grant 
 such a right and that such resolution was void. 
 
 Whether the municipal government of New York by mere license 
 may authorize the construction and maintenance of railroads in streets 
 discussed by Denio, C. J., and Combtock, J. 
 
 An action to prevent the construction of a railway was brought by 
 a resident and taxpayer of the city who did not own real estate on the 
 street where the railway was proposed to be laid and whom it would 
 not specially injure. 
 
 Seld, that he could not maintain the action. 
 
 After all the evidence was given the trial court so held, and made 
 an order permitting the attorney general to be added as a party plaint- 
 iff, and then gave judgment for the relief asked. 
 
 Seld, that such order was reviewable here. 
 
 Beld, further, that the Code did not authorize the amendment and it 
 was error to grant the order. 
 
 The law regards an unauthorized obstruction of a highway as a nui- 
 sance per «e, Denio, C. J. But that which is legally authorized can- 
 not be a nuisance, Denio, C. J. Allowing amendments, under the 
 Code, by adding or substituting parties, discussed, by Denio, C. J. 
 
 Appeal, by defendants, from a judgment of the general 
 term of the superior court, which affirmed a judgment of 
 the special term. Exceptions to the several orders and 
 decisions of the special term, were taken by the defendants' 
 counsel and the appeal to the general term was from the 
 order by which the attorney general was brought in, and also 
 from the final judgment. The facts are fully stated in 
 
236 JSfJEW YORK. [Ot. App. 
 
 Davis vs. The Mayor, etc., of New York. 
 
 the case of The Att'y Gen. of the State of N. Y. vs. The 
 Mayor, etc., of N. Y., reported ante, 122. 
 
 Mr. David Dudley Field, for the appellants. 
 
 Mr. John Van Buren and Mr. S. Beardsley, for the respond- 
 ents. 
 
 Denio, 0. J. — The question whether the railway proposed 
 to be constructed in Broadway would be a public nuisance, 
 arose upon the pleadings, and it was a question of law. The 
 width of the street and of the contemplated railway, its posi- 
 tion relatively to the surface of the pavement, the length of 
 the cars to be used, and the power by which they were to be 
 moved, with the character of the street as a crowded thorough- 
 fare extending through the heart of a populous city, were 
 facts about which there was no material disagreement in the 
 pleadings. The degree of inconvenience which the railway 
 would occasion to persons owning or occupying property on the 
 street, and the advantage and accommodation it would afford to 
 the whole community, were, if material, open questions, to be 
 determined by the evidence. If the admissions in the plead- 
 ings showed that the railway if constructed would be a public 
 or private nuisance, neither the testimony nor the finding of 
 the judge would affect the legal result which would follow 
 from these admissions. The questions to be determined are, 
 therefore, whether the defendants had acquired a lawful right 
 to construct the railway, and if they had not, then whether 
 what they avowed they proposed to do would in point of law 
 amount to the offence of nuisance. If the transaction between 
 the corporation on the one part and Sharp and his associates 
 on the other, by whatever name it may be called, was a legal 
 act, conferring upon the latter the rights and privileges which 
 it proposed to give them, then it is impossible that the 
 railway should have been a public nuisance, that being an 
 offence which cannot be predicated of the lawful exercise 
 of authority upon a subject to which it is applicable. It is 
 therefore necessary to inquire in the first place whether the 
 common council had power to authorize the construction and 
 establishment of the railway, according to the provisions 
 
1856.] N:EW YORK. 237 
 
 Davis m. The Mayor, etc., of New Tork. 
 
 of the resolution. If it shall appear that the proceeding 
 was unauthorized and illegal, then it will become important 
 to ascertain what the character of the act which Sharp 
 and his associates propose to perform in Broadway, would 
 be, if it were sought to be done by individuals of their 
 own authority. A railroad has no necessary relation to or 
 connection with a common highway or street. It may be 
 laid along the surface of such a road where the grade will 
 permit it, but it may equally well run through the country, 
 remote from a highway, and upon a level graduated for 
 the purpose. When a railroad and a highway coincide, the 
 circumstance is simply accidental. They are separate and 
 distinct agencies to facilitate passage and traffic, differing 
 from each other in many essential particulars. The object of 
 a highway or street is to afford to every citizen an opportunity 
 to pass on foot or with his horses and carriages from one 
 locality to another, and it is essential to the legal idea of such 
 a road that it shall be common to all. Where the question on 
 the trial of an indictment was, whether the place where an 
 obstruction had been put was a highway. Sir Matthew Hale 
 said that, to entitle it to that character, it must be a " way 
 for all travelers." Austin's case, 1 Vent., 188. "The 
 king's highway " is defined in English law to be a public pas- , 
 sage for the king and his subjects, and from them its name 
 is derived ; and the test whether a road is entitled to that 
 designation is to inquire whether it be common to all the peo- 
 ple. Woolrych on Ways, 8. A road does not cease to be a 
 highway by being subjected to the control of a turnpike or 
 plank road corporation, this being considered as a method of 
 keeping it in repair, and of taxing the travel upon it for that 
 purpose. Benedict vs. Goit, 8 Bari., 469; Tlie Common- 
 wealth vs. Wilkinson, 16 PicTc., 175. JSTow, a railroad does 
 not facilitate traveling on foot or on horseback, or with one's 
 own carriages. It does not generally admit of those methods 
 of passage ; although, where the railroad carriages are not 
 moved by the power of steam but by horses, the tracks, where 
 they do not rise above the street level, may be safely crossed, 
 and, to a limited extent, may be used for passing lengthwise. 
 This is, however, only incidental, and not a necessary feature 
 
238" NEW YORK. [Ot.App. 
 
 Davis m. The Mayor, etc., of New York. 
 
 of a railroad. Those who use a railroad for its proper pur- 
 poses do not travel according to their own volition, but are trans- 
 ported, like freight or baggage, by the proprietors of the road, 
 in their own vehicles. But the feature which most widely dis- 
 tinguishes a railroad from ordinary highways, and streets is, 
 that the former is a strict monopoly, entirely excluding all 
 idea of competition. A traveler who would go upon a rail- 
 road must take his seat in the carriage of the proprietors, and 
 pay them the price of his transportation. The nature of the 
 subject requires a unity of control and management, which 
 precludes the existence of competing carriages. There may be 
 rival roads, but there can be no rivalry on the same road ; and 
 no more than one road can exist in Broadway without 
 excluding altogether every other kind of traveling with car- 
 riages. We may be allowed without the testimony of witnesses 
 to know enough of the method of operating railroads to say, 
 that their carriages are quite unlike the vehicles used on other 
 roads. They are necessarily large machines, occupying the 
 space which would be required for several carriages of any 
 other kind, and containing passengers enough to fill a great 
 many of the carriages used on other streets or roads. I have 
 mentioned these particulars which distinguish a railroad from 
 every other other species of way, for the purpose of explain- 
 ing the reason why, in my Judgment, the establishment 
 of such a road is not within the jurisdiction conferred 
 upon the corporation of N^ew York over the roads and 
 streets in that city. The power of the corporation over 
 this subject is necessarily very large. It may lay out, 
 open, alter, repair and amend and regulate streets, lanes, 
 alleys and highways, and may direct the draining, pitch- 
 ing and paving of them ; and moreover, the common coun- 
 cil are commissioners of highways, and they may discon- 
 tinue and close up streets in the manner specified in the act. 
 The Montgomerie Charter, Kent's Notes, sec. 16, p. 99, and note 
 SI at p. 262; R. L. of 18 IS, chap. 86, sees. 19S-197; Laws of 
 1818, chap. 21S ; Laws of 1821^, chap. Jf9. But this power 
 relates to and is confined to streets, lanes, etc., as such. 
 Everything which is fairly within the idea of regulating, 
 altering, repairing and amending the streets, with a view 
 
1856.] Ni:W YORK. 239 
 
 Davis w. The Mayor, etc., of New York. 
 
 to their uses and purposes as streets, may be exercised 
 by the corporation, but the converting of a street or a part of 
 a street into a new piece of machinery for transporting per- 
 sons with which the existence of a street has no natural or nec- 
 essary connection, is not, in my judgment, at all within tlie pur- 
 view of the charter and acts of the legislature to which I have 
 referred. If an existing street can be converted into a rail- 
 way, I see no reason^ why the corporation cannot authorize the 
 laying out of a railroad where at present no street exists. 
 They have as ample power to lay out and establish streets as 
 to alter and amend them; and if they can consider a railway as 
 falling within the legal notion of a street, the power extends 
 as well to the laying out of new railroads as to changing the 
 present streets into railroads. They can exercise the right of 
 eminent domain in the opening of new streets, and if a rail- 
 road is only an improved species of street, the power could be 
 rightfully applied in constructing a railroad whenever it 
 might be considered that the public good would be promoted 
 by it. I have examined with respectful attention the several 
 cases in which the power which I have been examining is 
 claimed to have been expressly or impliedly affirmed. They 
 are, without 'exception, cases in which the right to establish 
 the railroad at the places where it was proposed to be con- 
 structed had been granted, mediately or immediately, by the 
 legislature. In some of them, it is true, the right was chal- 
 lenged on the ground that compensation had not been pro- 
 vided for the taking of or the injury to private property, and 
 the exception in thab respect was not allowed. Lexington and 
 OJiio Railroad Company vs. AppUgate, 8 Dana, 289 j Hamilton 
 vs. The Neio York and Harlem Railroad Company, 9 Paige, 
 171; s. c. 1 Am. Si.-Ry. Dec, 1; Draheys. The Hudson River 
 Railroad Company, 7 Barh., 508; s. c. 1 Am. 8t.-Ry. Dec, 10; 
 Plant vs. The Long Island Railroad Company, 10 Barh., 26; 
 Adams vs. The Saratoga, etc, Railroad Company, 11 id., ^H; 
 Milhau vs. Sharp, 15 id., 198; s. c. 1 Am. St.-Ry. Dec, 58; 
 Milhau vs. Sharp, 17 Barh., 437; s. c. 1 Am. St.-Ry. Dec, 
 111; Stuyvesant vs. Pear sail, 15 Barb., 2Ji4; s. c. 1 Am. St.- 
 Ry. Dec, 98; Chapman vs. The Albany and Schenectady 
 Railroad Company, 10 Barb., 360 ; Williams ys. The New 
 
240 N:EW YOBK. [Ot. App. 
 
 Davis m. The Mayor, etc., of New York. 
 
 York Central Railroad Company, 18 id., 222, now under 
 review in this court. In none of these adjudications, 
 with the exception of the one in the court of appeals of 
 Kentucky, has the position which I am opposing been affirmed 
 in a case requiring its determination, though it is true in 
 several other cases, as in Drahe vs. The Hudson River Rail- 
 road Company and in Adams vs. The Saratoga Railroad Com- 
 pany the position has been stated as contended for by the 
 defendants' counsel in this case, and in others it has been 
 assumed to be the law. It has been laid down in the case in 
 Kentucky, and in Williams vs. Tlie New York Central Rail- 
 road Company it may be said to have been decided by the 
 supreme court of this state, that the laying a railroad 
 in a street or highway is only a new and improved 
 method of making use of the public easement over lands dedi- 
 cated or appropriated, pursuant to law, for a street or high- 
 way. This doctrine has been predicated of what is truly said 
 to be the plastic and accommodating nature of the common 
 law. That system of jurisprudence is, no doubt, a code of 
 principles, as distinguished from one of positive and arbi- 
 trary prescriptions, and where a doctrine of common law can, 
 without violence, be applied to a state of things brought into 
 existence by the change of times or the progress of civilization, 
 it may often be properly applied, though the facts are circum- 
 stantially different from those which existed when the rule 
 was originally established. But the difference between a 
 highway in the country, or a street in a city or village, and 
 the modern contrivance of transporting persons by railroad 
 cars running upon a grooved iron track, is, in my judgment, 
 radical in its nature, and is not capable of being subjected to 
 the same legal rules. The legislature appears to have taken 
 the same view of the subject which I entertain, for whenever 
 it has been considered necessary or proper to allow a highway 
 or street to be used to any extent for the purpose of a railroad, 
 the right has been conferred in express terms. The first rail- 
 road company chartered in this state was the Mohawk and 
 Hudson, which was to run between Schenectady and Albany. 
 The eleventh section of the act gives the directors the right 
 whenever it becomes necessary to cross any road or highway. 
 
1856.] N:EW YOBK. 241 
 
 Davis, vs. The Mayor, etc., of New York. 
 
 to run the track "across or upon" the same. Zaws of 
 1826, chap. 253, p. 289. A similar proTision is contained 
 in all the railroad charters granted prior to the year 1836, 
 when the Attica and Buffalo company was chartered with 
 the same provision, connected with a direction to the com- 
 pany to restore the road so as not unnecessarily to have 
 impaired its usefulness. Laws of 1836, chap. 2^2, p. 
 325, sec. 11. Most of the subsequent acts granting rail- 
 road charters adopted the Attica and Buffalo act as a pat- 
 tern bill, with the provision respecting roads and highways 
 which I have mentioned. In 1835, an act was passed for the 
 benefit of associations or individuals who might engage in 
 constructing a railroad upon lands purchased by themselves, 
 by which the commissioners of highways were authorized to 
 give a written consent for the tracks to be laid across or along 
 the highways. Laws of 1836, chap. 300. The constitution of 
 1846 enjoined upon the legislature the providing for the crea- 
 tion of corporations by general acts; .and accordingly, in 1848, 
 and again inl850,general statuteswere enacted for that purpose, 
 in each instance containing a provision similar to the one which 
 has been referred to in the several special charters, enlarged 
 by giving the corporations of cities the powers conferred upon 
 commissioners of highways. Latvs of 1848, chap, llfi, p. 227, 
 sec. 19l siM. 6 ; Laws of 1850, chap. IJfi, p. 22^, sec. 28, 
 siibd. 5. The special subject of railroads passing through 
 or terminating in cities, early engaged the attention of the 
 legislature, and in particular cases where such roads termi- 
 nated in the city of New York, express power was given to 
 the municipal government to license their location in the 
 streets. Charter of The New York and Harlem Railroad Com- 
 IMiiij, Laws of 1832, chap. 93, p. 156, sec. 1; charter of The 
 Hudson River Railroad Company, Laws of 18Jfi, chap. 216, p. 
 272, sec. 1. It will be remembered that the cases provided for in 
 these statutes were railroads running from one part of the state 
 to another, and to be located for the most part in the country, 
 and upon land to be purchased or acquired by the companies, 
 and where the intersection of a highway or the running upon 
 the streets of a city, was merely an accident of the general 
 design, and where the whole enterprise would be greatly 
 
 16 
 
242 N:EW YORK. [Ot. App. 
 
 Davis m. The Mayor, etc., of New York. 
 
 embarrassed or entirely frustrated unless some power to run 
 upon highways or streets were vested in some public body or 
 magistrate. The acts assume that, without legislative author- 
 ity the railroad corporations would have no right to interfere 
 with any public road or street. To leave no doubt respecting 
 the intention of the legislature, an act was passed, in 1854, 
 expressly forbidding the municipal councils of cities to permit 
 a railroad commencing and ending in the city to be estab- 
 lished in any street or avenue without the consent of a major- 
 ity in interest of the owners of property upon the street. 
 Laws of 186J^, chap. HO. The corporation of New York, in 
 the instance under consideration, assumed to establish a rail- 
 road running wholly on a city street without any other legis- 
 lative authority than the general power to regulate, amend and 
 alter the streets, roads and alleys of the city. Up to a certain 
 period the supreme court of this state seem to have entertained 
 the views upon this subject which I have considered sound. 
 In Fletcher vs. The Auburn and Syracuse Railroad Company, 
 26 Wend., ^62, and again in The Trustees of the Presbyte- 
 rian Society in Waterloo vs. Auburn and Rochester Railroad 
 Company, S Hill, 667, the question arose, whether the clause 
 in the railroad charters in which I have referred furnished a 
 defense to a railroad company against the reclamation of the 
 owner of the soil in a highway over which a railroad had been 
 located. In other words, the point , to be determined in each 
 of these cases was, whether an easement for the purpose 
 of a highway authorized, as against the proprietor of the soil, 
 the laying down of a railroad upon the track of such highway. 
 The court decided against the railroad companies, holding that 
 the statute related only to the right of the public ; and that if 
 it could be construed to aflect the interest of the individual 
 proprietor, it was void for want of a provision for compensa- 
 tion. It was held that the use of the land by the railroad 
 company was wholly different from that public right of 
 passage, to promote which highways were established. These 
 cases, if correctly decided, are conclusive upon the question 
 we are examining. It was said on the argument of the 
 present case that these adjudications were inconsistent with 
 the resolution of the court of errors in Bloodaood vs. The 
 
1856.] NJEW YORK. 243 
 
 Davis m. The Mayor, etc., of New York. 
 
 Moliawk and Hudson Railroad Company, 18 Wend., 9-77, to 
 the effect that the legislature may authorize a private company 
 to take the property of a citizen for the construction of a 
 railroad, making provision for compensation. It is a sound 
 inference from this principle that the construction of a rail- 
 road is to be regarded as a public object and that it promotes 
 the public good. But it by no means follows that it is an 
 object of the same nature as that which highways are estab- 
 lished to subserve. Where an easement is granted or acquired 
 for a public highway, the owner of the soil cannot complain 
 of any use which the land may be put to, substantially of 
 that character ; but it cannot be lawfully appropriated with- 
 out compensation for the construction of an arsenal or 
 magazine, or market, though such structures should be 
 authorized by the legislature for purposes purely public. It 
 may be that, in the case reported in 25 Wendell, the court 
 overlooked the principle that compensation is not necessary to 
 be made where property is not taken, but only subjected 
 to consequential damages by means of a public work. Rad- 
 cliff's Executors vs. The Mayor, etc., of Brooklyn, ^ N. Y., 
 W5,per Bronson, J. But conceding that to be so, it does not 
 affect the authority of the case as to its application to the 
 present question. 
 
 The foregoing considerations have led me to the conclusion 
 that the resolution of the common council, granting to the 
 defendant Sharp and others the right to lay down a railroad in 
 Broadway, was without the scope of the powers of the corpora- 
 tion, and was wholly unauthorized and illegal. 
 
 But I think it was illegal for another reason. It is not 
 pretended that more than one railway can be laid down in 
 that street without destroying it as a road for the passage of 
 other, carriages and vehicles. The resolution did not con- 
 template any participation on the part of the public or the 
 citizens generally in the ownership or in the profits of the 
 contemplated railway. Indeed, it is not susceptible, as has 
 been shown, of any such participation. The public might, 
 indeed, as passengers, be benefited by the use of it; but as a 
 business enterprise it was to be carried on by and for the 
 emolument of the associates alone. The manifest design of 
 
244 NJEW YORK. [Ot. App. 
 
 Davis ««. The Mayor, etc., of New York. 
 
 the resolution was to confer on the associates the exclusive 
 right of carrying passengers by railroad on this public street 
 for profit, and it was this circumstance alone which rendered 
 it of any value to those who sought to obtain it. I will sup- 
 pose, then, that it would be wholly unobjectionable as an 
 obstruction in or an interference with the street, and that it 
 would not impair in the slightest degree the adaptation of 
 that thoroughfare for all other purposes for which it could 
 ever have been used. The right granted to these associates 
 would be the very definition of a franchise. The privilege of 
 making a road or bridge, or of establishing a ferry, and of 
 taking tolls from the citizens for the use of the same, are 
 among the most common examples of a franchise. S Kent's 
 Com., 458; 2 Bl. Com., 37 ; Charles Hiver Bridge vs. 7'he 
 Warren Bridge, 11 Pet., 1,20-639, per Story, J. Chancellor 
 Walworth, in Beekman vs. The Saratoga and Schenectady Rail- 
 road Company, 3 Paige, 75, said: "The privilege of making 
 a road and taking tolls thereon is a franchise, as much as the 
 establishment of a ferry or a public wharf, and taking tolls 
 for the use of the same." The corporation of New York may, 
 without doubt, make grants of this character, respecting the 
 public waters which surround the city, but independently of 
 that power, which is in terms conferred by the charters, they 
 have no more authority to make such a grant than any other 
 administrative board in the state. If they could make this 
 grant, they could charter, upon the city streets, a turnpike 
 or plank road company. They could grant to individuals the 
 right to pave or otherwise improve the streets, and to impose 
 tolls thereon, to be exacted from all who should travel upon 
 them. I do not now speak of the attempt to give a power to 
 establish a succession, in the nature of a corporate succession, 
 for the grant would be equally objectionable in this aspect of 
 it, if it was made to an individual and his assigns. The 
 answer given to this view of the case, upon the argument, 
 was that the board could, in the exercise of what is called its 
 legislative power, rescind its resolution at its pleasure. With- 
 out examining the authorities upon which that argument is 
 founded, the applicability of which to this case I am not, 
 however, prepared to admit, I do not see that the grant would 
 
1856.] NUW YORK. 245 
 
 Davis vs. Tlie Mayor, etc.. of Kew York. 
 
 be any the less objectionable had it contained' upon its face 
 the reservation of a right to rescind it at pleasure. The 
 board had no power to grant to any person a franchise for 
 transporting passengers on the public streets, for profit, for a 
 single day, and the attempt to do so was absolutely void. 
 
 If the foregoing conclusions are sound, the defendants, at 
 the time the amended complaint was filed, were, of their own 
 authority as private individuals, and without any lawful right, 
 about to convert the central part of Broadway into a railroad, 
 by taking up portions of the pavement and laying iron tracks 
 thereon and putting upon those tracks cars for the transporta- 
 tion of passengers for their own profit; and the only remain- 
 ing question is, whether the proper form of remedy has been 
 adopted by the parties who have instituted this suit. I have 
 already said that if authority to establish the railroad had been 
 granted by the legislature mediately or immediately, the road 
 could not have been a nuisance ; and this is all that the cases 
 upon the subject in this state establish. But the defendants 
 were about to proceed without any such authority; and before 
 speaking of the remedy it is necessary to determine the other 
 question which I have stated : What would have been the legal 
 character of the act if the defendants had been suffered 
 to perform it? In my opinion, it wotild, upon the facts 
 admitted in the answer, have been a public nuisance. Any 
 permanent or habitual obstruction in a public street or high- 
 way is an indictable nuisance, although there be room enough 
 left for carriages to pass, and it is ^ot less so though the 
 thing which constitutes the obstruction is not fixed to the 
 ground, but is capable of being and actually is removed from 
 place to place in the street. If the railway proposed to be con- 
 structed by the defendants were in operation, it could not 
 fail to happen that Broadway would at all times during the 
 day be incumbered by a great number of those large recep- 
 tacles for railway passengers which are an esseni)ial part of the 
 apparatus of a railway. If authorized by law to run upon the 
 street, the inconvenience would have to be submitted to; but 
 if placed there without right, the authors of the act could 
 not defend themselves from the charge of nuisance. The 
 authorities for this position are constant and uniform. 
 
246 Ni:W YORK. [Ot. App. 
 
 Davis m. The Mayor, etc., of New York. 
 
 and leave no donbt upon the question. Fowler vs. San- 
 defs, Gro. Jac, 44^ J The King vs. Russell, 6 East, ^27; 
 Rex vs. Carlile, 6 Carr. d Payne, 686 j Rex vs. Cross, 
 3 Camp., 226; Rex vs. Jones, id., 230; The King vs. 
 Moore, 3 Barn. S Adolph., 184; The Commonwealth vs. 
 Passmore, 1 Serg. S Rawle, 219 ; The King vs. Ward, 4 
 Adolph. & Ellis, 384; The People -vs. Cunningham, 1 Denio, 
 524; Hart vs. The Mayor, etc., of Albany, 9 Wend., 571. 
 The question is not before us, whether the advantages arising 
 from the establishment of a railroad in the street would not 
 be an ample compensation for all the injury and inconvenience 
 which the public would sufEer from the obstruction it would 
 occasion. It may be that upon the whole such a change in 
 the character of the street would be a public benefit ; but 
 this is for the legislature to determine. In the case of The 
 King vs. Ward, which was an indictment for a nuisance, in a 
 navigable river and king's common highway, by erecting a 
 certain building of stones across the stream and water way 
 of the river, the jury found the fact that the alleged nuisance 
 had been erected by the defendant, but that the inconvenience 
 was counterbalanced by the public benefit arising from the 
 alteration thus made. The court held that this finding 
 amounted to a verdict of guilty. Lord Denman, C. J., 
 , stated the principle with great distinctness : " In the infinite 
 variety of active operations always going forward in this indus- 
 trious community, no greater evil can be conceived than the 
 encouragement of capitalists and adventurers to interfere 
 with known public rights from motives of personal interest, 
 on the speculation that the changes made may be rendered 
 lawful by ultimately being thought to supply the public with 
 something better than what they actually enjoy. There is no 
 practical inconvenience in abiding by the opposite principle, 
 for daily experience proves that great and acknowledged pub- 
 lic improvement soon leads to a corresponding change in the 
 law, accompanied, however, with the first condition of being 
 compelled to compensate any portion of the public which may 
 sufEer for their advantage." See also the opinion of Lord 
 Tenterden, in The King vs. Russell, 6 Barn. <& Cress., 566. 
 It is well settled that where such an offense occasions, or is 
 
1856.] N:EW YORK. 247 
 
 Davis m. The Mayor, etc., of New York. 
 
 likely to occasion, a special injury to an individual, which, can 
 not well be compensated in damages, equity will entertain 
 jurisdiction of the case at his suit ; and also that the attorr 
 ney general, in all cases where a preventive remedy is called 
 for by the circumstances, or the state in its own name, may 
 apply for an injunction against the perpetrator of the wrong. 
 Z Story's Eq. Jurisp., sees. 921, 922 ; The Attorney General 
 vs. The Cohves Co., 6 Paige, ISS; BainesTS. Baker, Ami., 158; 
 Sampson vs. Smith, 8 Sim., 272 j Spencer ys. The London 
 and Birmingham Railroad Company, id., 193; The Attor- 
 ney General vs. Richards, 2 Anstr., 80S; Corning vs. 
 Loweree, 6 Johns. Ch., 4-39, 
 
 But the allegation that the plaintiffs were the owners of 
 lots in Broadway was put in issue by the answer, and the 
 afiSrmalive has not been found to be true ; and besides, the 
 judge who tried this cause has found as a matter of fact, that 
 constructing the railway would not be specially injurious to 
 the plaintiffs. I do not see, therefore, how, consistently with 
 these findings, the action can' be sustained in their behalf, and 
 such seems to have been the view of the superior court at 
 special term. The attorney general was, on that account 
 made a party plaintiff ; but to the granting of this order the 
 defendants objected, and from it they appealed to the gen- 
 eral term. By the terms of the Code that order is review- 
 able here, provided it involves the merits, and I am 
 unable to deny that if the defendants were entitled to 
 have the complaint dismissed, for wan,t of interest on the 
 part of the plaintiffs, the order, which virtually refused such 
 a judgment, and which admitted the substitution of a party 
 standing in a different and better position in that respect, was 
 one which involved the merits of the action. The names of 
 the original plaintiffs, it is true, remain on the record; but 
 this does not improve the plaintiffs' case, if they are not in a 
 situation to maintain an action. The general term sustained 
 the judgment, on the grpund that the order in question was 
 authorized by certain sections of the Code of Procedure {sees. 
 122, 173). By the first of these sections, the court is author- 
 ized to " determine any controversy between the parties 
 before it, when it can be done without prejudice to the rights 
 
248 NHW YORK. [Ot. App. 
 
 Davis m. The Mayor, etc., of New York. 
 
 of others, or by saving their rights; but when a complete 
 determination of the controversy cannot be had without the 
 presence of other parties, the court must cause them to be 
 brought in." Section one hundred and seventy- three relates 
 to amendments, and is in very comprehensive terms. The' 
 court may add or strike out the names of parties, or correct a 
 mistake in any respect; and it may confine the pleading or 
 proceeding to the facts proved, when the amendment does 
 not change substantially the claim or defence. The section 
 first quoted evidently refers to cases where one or more of the 
 original parties had such an interest as would enable him to 
 sustain the action, but where the controversy would not be 
 completely settled without the presence of other parties. This 
 was a familiar rule of the court of chancery, which would 
 have been properly stated in the precise words of this section. 
 The other section contains language if construed literally, 
 broad enough to embrace this case. A possible construction 
 of the power to strike out and to insert the names of parties 
 would admit the striking out of all the existing ones, on the 
 ground that they had no cause of action, and inserting an 
 entirely new set who really had such right, but this would be 
 too unreasonable to have been intended. So with the unlim- 
 ited provision to correct a mistake. It cannot authorize the 
 giving of judgment in favor of parties who have no right to 
 the subject in' litigation. So also with the provision author- 
 izing the conforming of the pleading or proceeding to the 
 facts proved. This, I think, does not permit an entire change 
 of parties on one side. It obviously relates to the facts given 
 in evidence on the trial. 
 
 If the original parties had shown an interest in themselves 
 which would have entitled them to invoke the jurisdiction of 
 the court, and the only difficulty had been that the judgment 
 would not have been complete without the intervention of a 
 party who would represent all others who had a similar inter- 
 est, the case would be relieved from its present embarrassment. 
 The view of the superior court was, that it presented such a 
 case. By section one hundred and nineteen of the Code, 
 where the question in an action is one of common and gen- 
 eral interest,, or where the parties are very numerous, one or 
 
1856.] NUW YORK. 249 
 
 Davis vs. The Mayor, etc., of New York. 
 
 more may sue or defend for the benefit of the whole. This 
 is also a rule borrowed from the practice of the late court of 
 chancery. It would be giving an undue extension to this 
 rule to hold it to embrace such a case as the present. The 
 relief to be granted in this action must proceed upon the 
 ground that the act imputed to the defendants is either a 
 public nuisance^ or the usurpation of a franchise detrimental 
 to all the people of the state. It may not affect every citizen 
 equally, but in judgment of law, assuming that no special 
 injury is shown, they have an equal right to complain. Now, 
 it cannot be maintained for a moment that an action will lie 
 by an individual citizen for such an offence. Such a rule 
 would confound all distinctions between public and private 
 rights and' remedies, and would introduce inextricable con- 
 fusion. 
 
 I am of opinion therefore that the judgment appealed from 
 should be reversed. Whether the complaint should be dis- 
 missed depends upon some other considerations. The find- 
 ing that the railway, if established without lawful authority, 
 would not be a public nuisance, was contrary to the admis- 
 sions in the pleadings and must be disregarded. It was 
 arrived at, I presume, by taking into consideration the sup- 
 posed advantages of a railway ; for in one of the opinions with 
 which we are furnished, the question of nuisance in this case 
 is stated to be a problem, which experience alone can solve. 
 Experience would only be useful in balancing the advantages 
 of the railway against the effects of the obstruction and incon- 
 venience it would cause. We have seen that the law regards 
 an unauthorized obstruction of a highway as a nuisance j^e?" 
 se. It is also found that the railway would not be specially 
 injurious to the plaintiffs ; but there is no finding upon the 
 question whether they were the owners of lots on Broadway, 
 as alleged in the complaint. If the finding, that it would not 
 be specially injurious to the plaintiffs, was based upon the 
 idea that it was problematical whether it would or would not 
 be upon the whole advantageous to the persons more particu- 
 larly interested in Broadway as a thoroughfare, as is highly 
 probable from what is said . in the papers upon the general 
 question of nuisance, the point was determined upon incorrect" 
 
250 NJEW YORK. [Ct.App. 
 
 Davis vs. The Mayor, etc., of New York. 
 
 principles and the question should be again submitted to the 
 court, with the law relating to it ascertained and settled. I 
 am therefore in favor of reversing the present judgment and 
 awarding a new trial in the superior court. 
 
 CoMSTooK, J. — The judgment should be reversed for the 
 reasons stated by the chief judge. I am not able, however, 
 to assent to his views in regard to the power of the common 
 council over the subject embraced in the resolution out of 
 which the present controversy has arisen. I am confidently 
 of opinion that the municipal government of New York may 
 construct, or by mere license authorize others to construct, an 
 iron track in Broadway adapted to vehicles of the kind used 
 upon railroads, and that licenses may be granted to the own- 
 ers of such vehicles, as other carriages are now licensed. With- 
 out going at large into the discussion, my reasons are briefly 
 as follows : 
 
 As I have defined this power, it cannot be objected to its 
 exercise that it grants a franchise or monopoly. It is true 
 that railroads are usually built by private corporations, organ- 
 ized under special charters or general laws, and the right so 
 to build and to use them exclusively becomes a coi*porate fran- 
 chise. A road thus constructed becomes the property of the 
 corporation which builds it, and all others are excluded from 
 its use. But it*byno means follows that a railroad track may 
 not exist in a public highway in a city, open to the public use as 
 a street improvement, under such regulations as the municipal 
 government charged with the superintendence and control of 
 streets may see fit to prescribe. The idea of a corporate fran- 
 chise, or of a monopoly existing in favor of individuals or 
 associations of individuals, has no necessary connection with 
 a railroad. Eailroads are physical improvements, and they 
 may or may not possess the characteristics of a monopoly or 
 franchise according to the conditions under which they are 
 built and used. If they simply constitute a feature of the 
 public highway and are open to the public use, then it is 
 extremely plain that they are not liable to objections of this 
 character. 
 
 The inquiry then next occurs, is there an absolute incom- 
 
1856.] NJEW YORK. 251 
 
 Davis ««. The Mayor, etc., of New York. 
 
 patibility between a highway and a railroad track laid upon it 
 for the public use? This is not a question whether the track 
 of a private corporation or of an association of persons can, 
 under municipal or legislative authority, be rightfully laid in 
 a public street without compensation to the owners of the 
 soil, where that is owned by individuals. The course of judi- 
 cial decision is certainly in favor of that' right, upon the 
 ground substantially that the public easement or highway is 
 not destroyed or obstructed, but only used according to a new 
 and improved mode, although the iron track is not owned by 
 the public, and the public can only use it by riding or con- 
 veying their property in the cars of those who are its owners. 
 But this I repeat is not the question. Can a highway and a 
 railroad track coexist and constitute one public easement, 
 where no person or corporation can claim an exclusive right 
 to use the track, and where all may use it under such regu- 
 lations and licenses as the municipal government may provide? 
 Of this I do not entertain any doubt. 
 
 But if we were disposed to doubt upon this question, or 
 even to deny the conclusion stated, still the inquiry is not one 
 upon which the law pronounces a Judgment until the facts 
 are ascertained, and to ascertain them we have no power. If 
 a municipal corporation, in the exercise of its authority over 
 streets, determines that iron rails and their use by the 
 licensed portion of the publi6 are a legitimate street improve- 
 ment, I am not aware of any power in us to determine other- 
 wise. We are in possession of no peculiar knowledge which 
 enables us to declare that a city government, chartered with 
 full authority to alter, regulate and improve its thoroughfares, 
 violates its trust or transcends its powers in coming to such a 
 determination and passing proper ordinances to carry it into 
 effect. For one, I do not know, and I cannot know judicially, 
 that the street known as Broadway, in New York, will be 
 obstructed, or its usefulness on the whole impaired, by a par- 
 ticular kind of carriage drawn by horses upon an iron rail 
 laid down for that purpose. This use of the street may have 
 both its inconveniences and its advantages. It is not for us 
 to say which will predominate. 
 
 Whether the proposed railway will be a nuisance is a mere 
 
252 NUW YORK. [Ot. App. 
 
 Davis vs. The Mayor, etc., of New York. 
 
 question of fact, and as such it has been found in the negative 
 on the trial in the court below, after the examination of a 
 large number of witnesses. If it had been found the other 
 way, then it might have been the duty of the court of original 
 jurisdiction to interpose by injunction, and arrest the evil on 
 th^t special ground, and it might be our duty to affirm the 
 decision. But we have nothing to do with the comparative 
 advantages and disadvantages merely of the proposed change 
 in the street. Those were considerations peculiarly addressed 
 to the knowledge and judgment of the local government, 
 charged with the care of all the streets in the city ; and I 
 should regard it as a usurpation by courts of power which 
 does not belong to them, if they undertake to control the 
 municipal authority in this respect. Courts are certainly not 
 wiser on this subject than the common council of New York, 
 and unfortunately for their right to interfere, the supreme 
 law-making power of the state has vested in the council, and 
 not in them, the power to regulate and control the streets of 
 the city. 
 
 Such are my views upon the general question. In regard 
 to the particular resolution of the common council author- 
 izing Jacob Sharp and his associates to construct a railroad 
 in Broadway, I have had some doubts whether it could not 
 be sustained as a mere license revocable at pleasure, and 
 imposing no obligations upon the city government ; but my 
 conclusion is that this cannot be done. The resolution, in its 
 first clauses, is a simple authority to Sharp and others to con- 
 struct the road in the manner specified, but these clauses are 
 so connected with an entire scheme that the whole must stand 
 or fall together. As the consideration for constructing the 
 road, the ordinance clearly contemplates that it is to become 
 the private property of the associates. They alone will be 
 entitled to place their cars upon it, and within a maximum 
 limit they can charge what they please for the carriage, of 
 passengers. These rights are in effect granted in perpetuity, 
 because the only provision for their termination is in case the 
 associates, after ten years, shall decline to pay such license 
 fees " as the corporation, with the permission of the legislature, 
 shall prescribe." In that event, the road, with its equipments. 
 
1856.] NUW YORK. 253 
 
 Davis m. The Mayor, etc., of New York. 
 
 is to be surrendered at a fair and just valuation. Taking, there- 
 fore, the whole ordinance together, and giving efEect to it 
 according to its terms and intention, it is no less than an abro- 
 gation by the common council of their powers and duties over 
 and concerning the public streets, and a surrender of a con- 
 siderable portion of those powers and duties into the hands of 
 private individuals or of a private corporation. This the cor- 
 poration of New York cannot do. Time and experience may, 
 for aught we know, give a very unfavorable solution to the 
 question whether this railroad or any railroad in Broadway 
 can be beneficial to the public, but the hands of the city gov- 
 ernment will be tied by the contract into which it has entered, 
 and future change and improvement may be prevented by 
 this voluntary surrender of its own powers. On this ground, 
 and without looking at the question in other and more special 
 aspects, I am satisfied that the ordinance is void and that no 
 efEect can or should be given to any of its provisions. 
 
 "Wright, J., delivered an opinion to this efEect: First. That 
 although the resolution of the common council which 
 authorized Sharp and the others to construct and maintain 
 the railroad was in form a grant or contract, still it was a 
 license and valid, being revocable at pleasure: Second. That 
 even if it was admitted that the resolution was void, the 
 original parties to the action could not maintain it, and he 
 was of the opinion that the order permitting the attorney 
 general to be brought in was made without authority and 
 erroneous. 
 
 All the judges, except Mitchell, J., who did not take any 
 part, voted to reverse the judgment and ordered a new trial. 
 
 Denio, C. J., JoHxsoBT, Sbldek, Oomstock and Hub- 
 bard, JJ., were of the opinion that the resolution was void. 
 
 Wri&ht and T. A. Johnson, JJ., were of the opinion 
 that the resolution was not void. 
 
 Judgment reversed and new trial ordered. 
 
254 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Johnson «s. The Hudson River R. R. Co. 
 
 CATHARINE M. JOHNSON", Executrix, etc., vs. THE 
 HUDSON RIVEE RAILROAD COMPANY.* 
 
 GENERAL TERM. 
 
 13 N. Y. Superior^ Court, (fi Duer,) 633. 
 Affirmed in SO N. Y., 65; s. c. 1 Am. 8t.-By. Bee., 393. 
 
 The rule laid down in this case on the first appeal, that absence of 
 negligence on the part of the plaintiff is not necessary to be shown in 
 order to maintain an action for injuries to the person, recognized and 
 sustained. 
 
 Held, that, as between a railroad company and a foot passenger in the 
 street, the rule is : that the company is bound to use a degree of care 
 and vigilance in respect to the use of the means whereby accidents or 
 injury to those using the same thoroughfare in common with themselves 
 may be avoided, which is proportioned to the dangerous character of its 
 business, while the foot passenger is bound to that degree of caution 
 which persons thus exposed on a public thoroughfare ought in common 
 prudence to exercise. 
 
 Upon the trial the judge charged the jury that considering the nature 
 of the business in which the defendants were engaged, and the hazards 
 attending the running of cars in the streets of the city, particularly on a 
 dark night, they were bound to exercise the utmost care and diligence, 
 and for the purpose of avoiding accidents, endangering Ufe, were bound 
 to use all the means and measures of precaution that the highest prudence 
 would suggest, and which it was in their power to employ, and that if 
 the use of bells and of lights on the cars was a measure by which disas- 
 trous accidents would probably be avoided, the omission to use them, 
 if proved to the satisfaction of the jury, was culpable negligence, and it 
 was for the jury to say, whether to this culpable negligence the fatal 
 accident that had given rise to the action might not justly be imputed. 
 
 Beld, a proper instruction. 
 
 Held, that as vigilance and care are to be proportioned to the danger to 
 be avoided, it was immaterial by what name the obligation was designated 
 or defined, and that in any definition of ordinary care, as applied to 
 these defendants under the circumstances detailed in this case, the 
 judge could not have required a less degree of vigilance and care than 
 that which he laid down as the measure of their actual obligation. The 
 defendants' counsel contended that the degree of care to be exercised in 
 any given case, was a matter of law to be determined by the court, and 
 that the court erred in leaving it to the jury to determine whether the 
 defendants should have carried lights or bells. 
 
 Held, that the judge committed no error; that he did determine the 
 question of law, to wit : that the prudence exacted of the defendants 
 
 *lst appeal reported in is N. Y. Superior Court, (5 Duer,') SI ; s. c. 1 Am. St.-By. 
 Dec, 191. 
 
1857.] Ni:W YORK. 255 
 
 Johnson vs. The Hudson River. B. R. Co. 
 
 was that which, in view of the hazardous character of their business, 
 would tend to diminish the danger of accident, and that— whether the 
 use of bells and lights was a measure of that character, was a question 
 of fact and was properly left to the jury. 
 
 The judge also charged the jury, that the person alleged to have been 
 killed by defendants' negligence was bound to exercise only ordinary 
 care; and he defined that care to be ''that care and foresight which men 
 of ordinary prudence are accustomed to employ, and which, placed 
 in like circumstances with the deceased, they probably would have 
 employed." 
 
 Held, no error. 
 
 Meld, that the judge properly refused to charge that the manner in 
 which the deceased was found on the track, without any explanation as 
 to how he got there, was prima facie evidence of negligence on his 
 part. 
 
 On the question of damages the judge charged that the "deceased 
 was a young man in good health and the probable continuance of his life 
 was at least twenty years." It was in evidence that he was between 
 thirty and forty years of age. 
 
 Held, no error, that this was a matter of experience, and it was proper 
 for the judge to instruct the jury concerning the expectation of human 
 life. 
 
 Appeal by defendants from a judgment in favor of the 
 plaintiff for $4,456.18, damages and costs. 
 
 The complaint alleged that the plaintiff was the executrix 
 of the last will, etc., of Peter A. Johnson, her husband, that 
 his death was caused by the culpable negligence of the defend- 
 ants or their servants and asked judgment for $5,000, as 
 damages for his loss to his widow and children. 
 
 The answer denied any negligence on the part of the defend- 
 ants and alleged that the injuries and death of the deceased 
 were occasioned solely by his own negligence. 
 
 The action was tried before Dubr, J., and a jury, in Jan- 
 uary, 1856. 
 
 The evidence showed that on the night of August 28, 1853, 
 the deceased was run over by a freight car belonging to the 
 defendants in West street at the corner of G-ansevoort street in 
 the city of New York, and that his death which occurred 
 shortly afterwards, was occasioned solely by the injuries and 
 wounds which he received at that time ; it was also shown 
 that the night was very dark. 
 
 It was also determined, in effect, by the verdict of the jury, 
 that there were no bells on the horses nor lights on the car. 
 
256 NEW YORK. [N.Y. Sup'r. Ot. 
 
 Johnson as. The Hudson River R. R. Co. 
 
 The argument at general term was confined entirely to the 
 exceptions that were taken to the judge's charge, so it is 
 unnecessary to state any more of the evidence or the excep- 
 tions taken on the trial. 
 
 At the close of the testimony, the judge charged the jury: 
 " That there were two questions which the jury, in the first 
 instance, must consider, and both of which must be deter- 
 mined in favor of the plaintiff to entitle her to recover." 
 
 1st. Whether the accident, which resulted in the death of 
 the deceased, was owing to the negligence of the defendants 
 or" their servants ? 2d. Whether there was any negligence 
 on the part of the deceased that directly contributed to the 
 accident ? If the jury determined both these questions in 
 favor of the plaintiff, they were then to determine what sum, 
 not exceeding the amount limited by the statute on which the 
 action was founded, ought to be awarded to her as damages. 
 That it was the province of the jury to decide these questions 
 exclusively ; and that a statement of the rules of law by which 
 their deliberations ought to be governed, limited the duty of 
 the judge. That the negligence imputed to the defendants 
 was, that there were no bells on the horses to warn persons of 
 the approach of the car, and no lights on the car to enable the 
 driver to see the track in front of his horses ; and that the 
 car was being driven more rapidly than was consistent with 
 ordinary prudence. That it was his, the judge's, duty to 
 instruct them, that considering the nature of the business in 
 which the defendants were engaged, and the hazards attend- 
 ing the running of cars in the streets of the city, and particu- 
 larly on a dark night, they were bound to exercise the utmost 
 care and diligence ; and for the purpose of avoiding accidents 
 endangering property and life, were bound to use all the 
 means and measures of precaution that the highest prudence 
 would suggest, and which it was in their power to employ. 
 To these propositions the defendants' counsel excepted. 
 
 Hence, if the use of bells and of lights was a measure that 
 the prudence and foresight they were bound to exercise ought to 
 have suggested, and if by such use disastrous accidents would 
 probably be avoided, the omission to use them, if proved to 
 the, satisfaction of the jury, was culpable negligence ; and it 
 
1857.] NUW YORK. 257 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 was for the jury to say, whether to this culpable negligence 
 the fatal accident that had given rise to the action might not 
 justly be imputed. To these propositions the defendants' 
 counsel excepted. 
 
 That it appeared to him, for divers reasons, that the driver 
 of a car at night ought to be enabled to see whether there 
 were any obstacles or persons on the track in front of him ; 
 and if the light afforded by the lamps in the street was not 
 sufficient for that purpose, the use of lamps on the car seemed 
 to him a necessary precaution. To this portion of the judge's 
 charge the defendants' counsel excepted. 
 
 It was not to be supposed that the driver of the car had 
 seen deceased on the track, and had wilfully run over him. 
 To this opinion and proposition the defendants' counsel 
 excepted. 
 
 It was more probable, that from the want of light he could 
 not see in front of his horses ; or, if there was suflScient light, 
 that his attention was directed another way ; and, upon either 
 supposition, there was negligence, to which the accident might 
 reasonably be imputed. The defendants' counsel then and 
 there excepted. 
 
 That according to the testimony of the witnesses of the 
 plaintiff, there were neither bells on the horses, nor lights on 
 the car, when the accident happened, and that the jury had a 
 right to take into consideration the fact that none of the ser- 
 vants of the defendants who were on the car, neither the con- 
 ductor nor driver, or brakeman, had been called as witnesses 
 for the defence, and as their absence had not been explained 
 it was a reasonable presumption that, if called, they would 
 not have contradicted materially the witnesses of the plaintiff. 
 The defendants' counsel excepted to this opinion and propo- 
 sition of the judge. 
 
 The judge went on to say, that although the jury might be 
 satisfied that there was culpable negligence on the part of the 
 defendants, still the plaintiff would not be entitled to recover, 
 if the jury believed, from the evidence that there was any 
 negligence on the part of the deceased that directly contrib- 
 uted to the accident. Certainly he would not have been 
 killed had he not been on the track of the railroad, and if his 
 
 17 
 
258 NJEW YORK. [A^.Y. Sup'r Ot. 
 
 Johnson m. The Hudson River R. R. Co. 
 
 being there, as seemed to be contended, was conclusive proof 
 of negligence, there was an end to the action. He certainly 
 had not seen or heard the approach of the car in time to make 
 his escape, and if this fact was alone sufficient to bar a recovery, 
 no action like the present, however gross and culpable the 
 negligence of a railroad company, could ever be maintained. 
 It would be a sufficient answer to the plaintiff to say the 
 deceased was on the track of the road, and, therefore, per- 
 ished by his own rashness and folly. The defendants' counsel 
 then and there excepted. 
 
 The judge further charged, that in his opinion this was not 
 a conclusion that the jury were bound to draw, the deceased 
 was bound to exercise ordinary prudence and no more, and 
 the question the jury were to determine, was whether it 
 appeared from the evidence that there had been a want on 
 the part of the deceased of that care and foresight that men 
 of ordinary prudence are accustomed to employ, and which, 
 placed in like circumstances with the deceased, they probably 
 would employ, and in judging of the conduct and motives of 
 the deceased, they were bound to consider all the circum- 
 stances of the case as they had been established by the 
 evidence. 
 
 The defendants' counsel then and there excepted and 
 excepted specially to the phrase "this was not a conclusion 
 the jury were bound to draw ;" and also to the instruction 
 that "the deceased was bound to exercise ordinary prudence 
 and no more, and the question the jury were to determine 
 was, whether it appeared from the evidence that there had 
 been a want on the part of the deceased of that care and fore- 
 sight that men of ordinary prudence are accustomed to employ, 
 and which, placed in like circumstances with the deceased, 
 they probably would employ, and in judging of the conduct 
 and motives of the deceased, they were bound to consider all 
 the circumstances of the case as they had been established by 
 the evidence." 
 
 1. As to that part of the judge's charge that related to the 
 degree of prudence which the deceased was bound to 
 exercise. 
 
 3. As to that part of the judge's charge that stated the 
 
1857.] NEW YORK. 259 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 question the jury were to determine, and the question sub- 
 mitted to the jury. 
 
 3. Because it was calculated to mislead the jury, even if it 
 was otherwise correct. First, in the use of the word " prob- 
 ably," and second in the use of the words "placed in like 
 circumstances," which tended to make intoxication, or sleep 
 of the deceased, an excuse for the want of care. 
 
 The judge then stated to the jury, the evidence that bore 
 upon this branch of the case. 
 
 The judge charged on the question of damages, that if the 
 jury should be of the opinion, that the plaintiff was entitled 
 to recover, they could give no other or greater damages— not 
 exceeding 15,000— than would be sufficient to compensate the 
 pecuniary loss which the .widow and children had sustained 
 from his death. There was no certain mode of estimating 
 this loss, as it consisted entirely in a deprivation of the sup- 
 port and maintenance which they wouldi have derived from 
 him had he continued to live, and the question of its amount 
 was therefore one not of positive calculation, but of mere 
 probability. The deceased was a young man, in good health, 
 and the probable continuance of his life was at least twenty 
 years. 
 
 The defendants' counsel excepted to that part of the charge 
 which stated the probable duration of the life of the deceased. 
 
 During this time it was reasonable to believe that his wife 
 and his children, during their minority, would have been 
 supported by him; and the jury would, therefore, give such 
 damages as in their judgment would be a full compensation 
 for the loss of his support, and no more. 
 
 The defendants' counsel asked the judge to charge, that the 
 fact that the manner in which the deceased was found on the 
 track, without any explanation as to how he got there, was 
 prima facie evidence of negligence on his part ; which the 
 judge refused to do, and the defendants' counsel then and 
 there excepted to such refusal. 
 
 The defendants' counsel requested the judge to charge, that 
 the defendants were not bound to carry bells on their horses 
 when drawing the cars, and they further requested the judge 
 to charge that the defendants were not bound to carry lights 
 
260 iV^TT TOBK. [N.Y. Sup'r Ot. 
 
 Johnson vs. The Hudson Rivei- R. E, Co. 
 
 on their cars when being drawn by their horses through the 
 streets. The judge refused both requests and the defendants' 
 counsel then and there excepted to the refusals. 
 The jury rendered a Terdict for the plaintiff for $4,000. 
 
 Mr. William Fullerton, for the defendants and appellants. 
 
 Mr. J. Morrison, for the plaintiff and respondent. 
 
 By the Couet : Slgssou";, J. — On the 28th day of August, 
 1853, at about 8 o'clock in the evening, the deceased, Peter 
 A. Johnson, was run over by a freight car of the defendants, 
 in West street, at its intersection with Gansevoort street, and 
 killed. 
 
 The day had been rainy and the evening was very dark. 
 The verdict of the jury determines that there were no bells on 
 the horses nor lights on the car. 
 
 The deceased was a cartman, and was on his return home in 
 the evening, driving up on the east side of the track ; a sewer 
 was in the process of construction through Gansevoort street, 
 it had extended across the track in West street ; but at the 
 time of the accident, it had been so far completed, as that it 
 had been arched over on the west side to about the middle of 
 the track, while on the east side it was open, so that no vehi- 
 cle going north could pass on that side beyond the south line 
 of Gansevoort street, at which point there was a mound of 
 earth and some barrels which had been placed there to prevent 
 any attempt at a passage. A temporary bridge had been 
 thrown across the sewer, where the rails crossed it, to enable 
 the horses attached to the cars to pass over. During the day 
 a pole was placed across the track to prevent carts passing 
 over the bridge, which was taken down when the cars were 
 to pass, and appears to have been removed altogether at 
 night. On the west side of the track carts could pass, accord- 
 ing to some of the witnesses, to some little distance north of 
 the sewer, when the projection of a pile of lumber narrowed 
 the passage to nine or ten feet, and just beyond this, a build- 
 ing used as a corporation office, formed another projection, so 
 as to leave between it and the track only four feet four inches. 
 It was shown that ordinary carts are seven and a half feet 
 
1857.] NEW YORK. 261 
 
 JohBson m. The Hudson River R. R. Co. 
 
 wide, while dirt carts are two feet narrower, so that neither 
 description of cart could pass at this point except by running 
 in part on the track itself. This corporation office was nearly 
 opposite the north . sidewalk of Gansevoort street, and at the 
 same point there was a pile of stones and dirt from a foot to 
 a foot and a-half in height. One witness says, that the west 
 side of the track, by which I understand him to mean the 
 side west of the track, " was impassable on account of the 
 excavation, the dirt, the paving stones, and the corporation 
 office." 
 
 As has been stated, the night was vei-y dark; the sound of 
 the rolling of the car was obstructed by the water on the rails, 
 though the clattering of the horses' feet was heard half a 
 block ofE, and might have been heard farther, as one witness 
 states, by one in the street. 
 
 The deceased appears to have stopped and tied his horse 
 near the embankment on the east side of West street, at about 
 twenty feet below the south line of Gansevoort street, and to 
 have dismounted and gone on the track, for when the cars 
 had passed he was found lying across it, about six feet south 
 of the embankment. 
 
 It is reasonable to conjecture that his object in going upon 
 the track, was to make a personal examination of the bridge 
 over the causeway, with a view of ascertaining whether he 
 could safely pass over it, with his cart. The car had crushed 
 one of his legs. He was removed to the hospital, and died 
 soon afterwards. He was between thirty and forty years of 
 age, of good habits, and making from 125 to $30 a week 
 by his business. He left a widow, the plaintiff, and three 
 infant children, the youngest but three months old. 
 
 On the trial, a motion was made for a nonsuit, on the 
 ground, among others, that the plaintiff had offered no proof 
 showing affirmatively that the deceased was hot guilty of neg- 
 ligence which contributed to the accident, which motion was 
 overruled, and the defendants excepted. 
 
 This court has never recognized the rule which seems to be 
 laid down by the Supreme Court in Spencer vs. The Utica 
 and Schenectady Railroad Company, 5 Barb., 337, to wit: That 
 absence of negligence on the part of the plaintiff is to be 
 
262 NJEW YORK. [N.Y. Sup'r Ct. 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 shown by him aflarmatively, but have held directly otherwise. 
 The case of Britton, administratrix, etc., vs. The Hudson River 
 Railroad Company, recently decided by the general term of 
 this court, is directly in point. It had been previously so 
 decided in this very case, 6 Duer, 21; s. c. 1 Am. 8t.-Ry. 
 Dec, 191. The judge, in charging the jury, told them, 
 "that considering the nature of the business in which 
 the defendants were engaged, and the hazards attending 
 the running of cars in the streets of the city, and par- 
 ticularly on a dark night, the defendants were bound to 
 exercise the utmost care and diligence, and for the purpose 
 of avoiding accidents, endangering property and life, were 
 bound to use all the means and measures of precaution that 
 the highest prudence would suggest, and which it was in their 
 power to employ." " Hence," he added, " if the use of bells 
 and of lights was a measure that the prudence and foresight 
 the defendants were bound to exercise ought to have sug- 
 gested, and if by such use disastrous accidents would probably 
 be avoided, the omission to use them, if proved to the satis- 
 faction of the jury, was culpable negligence, and that it was 
 for the jury to say, whether to this culpable negligence the 
 fatal accident that had given rise to the action might not 
 justly be imputed." 
 
 To both the general proposition itself, and the application 
 of it by the judge, the defendants excepted. The supreme 
 court in Brand vs. The Schenectady Railroad Company, 8 
 Bart., S68, held " that ordinary prudence was all that 
 could be exacted from a railroad company, as between it and 
 a foot passenger in the street, being the same rule or degree of 
 care which is exacted, as between each other, in the case of 
 two carriages using a common highway to which each has an 
 equal right." 
 
 With the highest respect for the learning and ability of the 
 eminent judge who pronounced the decision in that case, I 
 cannot but think that this proposition is open to serious 
 criticism. It seems to me that the only safe rule in such 
 a case, is this, to wit : That the company is bound to use a 
 degree of care and vigilance in respect to the use of the means 
 whereby accidents or injury to those using the same thorough- 
 fare in common with themselves, may be avoided, which is 
 
1857.] NEW YORK. 263 
 
 Johnson ««. The Hudson River R. R. Co. 
 
 proportioned to the dangerous character of its business, or of 
 the mode and means of conducting the same, while the 
 foot passenger is bound to that degree of caution which 
 persons thus exposed on a public thoroughfare ought in com- 
 mon prudence to exercise. This prudence may in both be 
 called ordinary, yet the degree of diligence and precaution 
 which it exacts of each is as widely different, as is the risk to 
 which each exposes others from the want or absence of it. 
 
 In the case of Kelsey vs. Barney and others, 12 N. Y., Jt25, 
 which was a case of collision between two vessels, Johnson, 
 Justice, in defining ordinary care, uses this language : " The 
 degree of vigilance which the law will exact, as implied by 
 the requirement of ordinary care, must vary with the prob- 
 able consequences of negligence, and also with the command 
 of means to avoid injuring others, possessed by the person on 
 whom the obligation is imposed. Under some circumstances 
 a very high degree of vigilance is demanded by the require- 
 ment of ordinary care ; where the consequence of negligence 
 will probably be serious injury to others, and where the 
 means of avoiding the infliction of injury upon others are 
 completely within the party's power, ordinary care requires 
 almost the utmost degree of human vigilance and foresight." 
 
 The learned justice refers in his opinion to the case of the 
 Scioto, in which Judge Ware uses the expression that " a ves- 
 sel entering a harbor in the night time, is put on her utmost 
 vigilance." Not that the vessel so entering the harbor would 
 be responsible, if by any possible means the danger of a coIt 
 lision might have been avoided but that from the increased 
 hazard arising from the circumstance of entering the harbor 
 in the night time, an increased vigilance and watchfulness 
 would be required, which Judge Ware exemplifies by saying, 
 that under such circumstances the master and crew ought to 
 be on deck, and in such parts of the vessel as to be able to 
 control her motions, and see any vessel which lies in her track. 
 It certainly would not be contended that it would be neces- 
 sary that both the master and the crew should all be on the 
 look-out and on deck if the vessel were entering the port in 
 broad daylight. The principle asserted is, that the vigilance 
 and care are to be proportioned to the risk and danger to be 
 avoided. 
 
264 NSW YOBK. [N.Y. Sup'r Ct. 
 
 Johnson m. The Hudson River R. R. Co. 
 
 The good seuse aud soundness of this view of the question 
 -cannot, I think, be doubted. If the vigilance and care are to 
 be proportioned to the danger to be avoided, it becomes imma- 
 terial by what name the obligation is designated or defined. 
 If the judge in the case at bar had instructed the jury, that 
 in the exercise of ordinary care, the defendants were bound 
 to the exact degree of vigilance which he stated as the meas- 
 ure of their actual obligation, I do not see how the charge 
 could have been complained of ; and certainly if the standard 
 of care which he laid down was correct, the question — 
 whether a proper definition was given to it or not ?— is wholly 
 immaterial. 
 
 The judge, in applying the rule to the case in hand, defines 
 his meaning so clearly, that it cannot, I think, be mis- 
 apprehended. 
 
 He told the jury that, if the use of bells and lights would 
 probably prevent the occurrence of such disasters, and if 
 their use was a measure that the prudence and foresight the 
 defendants were bound to exercise ought to have suggested, it 
 was culpable negligence in them not to have used them. Now 
 I think it must occur to the commoi^st apprehension, that 
 the very least or lowest degree of vigilance which could be 
 required at the hands of the defendants in running loaded 
 cars at night, with four horses, through the streets of a 
 crowded city, would be the use of bells aud lights, or some 
 similar precaution, to give warning of their approach. In 
 submitting to the jury, therefore, the question of their use 
 as a measure called for by the prudence which the law 
 exacted from the defendants, the judge left them clearly 
 within the range of the rule of ordinary care, as commonly 
 understood, if he did not indeed, limit them to it altogether. 
 Nor was this left to them as a question to be arbitrarily 
 determined; its propriety was to be tried by this criterion, to 
 wit: Whether the use of bells and lights would probably pre- 
 vent the occurrence of disasters of this nature ? Of this the 
 jury were exclusively the judges, and if, in their opinion, 
 such would be the beneficial result of the use of bells and 
 lights, then, as upon any rule of prudence, the defendants 
 were bound to guard against the danger of such accidents, 
 
1857.] NJEW YORK. 265 
 
 Johnsbii vs. The Hudson River R. R. Co. 
 
 their use was a measure called for by the degree of care which 
 the law imposed upon the defendants. 
 
 Nor do I think that in Judging of the propriety of the use 
 of bells and lights, the jury wei-e led by anything in the charge 
 to adopt a standard of obligation on the part of the defendants, 
 which was not the true one, or that the result would have 
 been at all different had the Judge prefaced his definition of 
 the prudence to which the defendants were bound, by calling 
 it "ordinary care." Nor do I think that in any definition of 
 ordinary care, as applied to these defendants under the cir- 
 cumstances detailed in this case, he could have required a less 
 degree of vigilance and prudence than that which he laid 
 down as the measure of their actual obligation. 
 
 The good sense of the charge seems to me to be plainly 
 this : The defendants, considering the great hazard to which 
 their business exposes the lives and safety of the passers by 
 and travelers in the street, are bound to use that diligence 
 and care, if practicable, by which the danger of casualty may 
 be diminished. They cannot run their cars without any pre- 
 cautions whatever, and no precautions will suffice, save such as 
 tend to secure against tjie occurrence of the disasters to which 
 the exercise of their business peculiarly exposes others; and if, 
 in the Judgment of the Jury, the use'of bells and lights would 
 have this tendency, then the use of that expedient was one 
 which the prudence, exacted of them by the law, required at 
 their hands. The test of the obligation to use them, as the 
 case was thus put to the Jury, was not the forjnal definition of 
 the rule of diligence, but the tendency of the expedient to 
 diminish the danger of those disasters, which the defendants 
 were bound, upon the commonest principles of humanity, 
 and under the lowest obligations of a reasonable >diligence, 
 to guard against. 
 
 The defendants' counsel denies altogether that the use of 
 bells or lights is called for by the rule of ordinary care ; on 
 the contrary, he says the degree of care which should be 
 exercised in any given case, is a matter of law to be determined 
 by the court ; and that in leaving to the Jury to determine, 
 whether the defendants should have carried lights or bells, the 
 court shifted from itself to the Jury the duty of determining 
 
266 NUW YORK. [N.Y. Sup'r Ot. 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 whether the defendants ought not to have exercised more 
 than ordinary care. 
 
 We think there is a fallacy in this proposition. The judge 
 did not leave to the jury to say, whether the defendants were 
 bound to carry bells and lights, but whether the use of them 
 was called for by that prudence which they were bound to 
 exercise. In other words, whether, in view of the peculiarly 
 hazardous character of -their business, and under all the cir- 
 cumstances of the case, it would have been a prudent measure 
 on the part of the defendants, rendering danger of accident 
 less liable ; and if so, then, as a matter of law, he instructed 
 them the defendants were bound to have used them ; and not 
 to have done so, was negligence. 
 
 He therefore did determine the question of law, to wit : 
 That the prudence exacted of the defendants was that which, 
 in view of the hazardous character of their business, would tend 
 to diminish the danger of accident, leaving to the jury only 
 this question — whether the use of bells and lights was a meas- 
 ure of that character ? which was a question purely of fact. 
 
 I think the rule laid down by the judge at the trial is the 
 true one, to wit : A degree of care proportioned to the 
 danger to others — whether this be called "ordinary" care, or 
 " the utmost," or " highest " care, o» " diligence," is imma- 
 terial, a mere question of words ; so long as the standard is 
 right, its name is a matter of no consequence. A great prin- 
 ciple may easily be lost sight of in this adherence to defini- 
 tions. It seems to me that no other rule can be safely 
 adopted. It is one which is not dependent on contract or the 
 consideration of a compensation for service, but is founded on 
 the general principle of humanity towards others, and the 
 obligation so to use one's own property and exercise one's own 
 rights as not to injure others. 
 
 The judge also charged, that as respects the deceased, he 
 was bound to exercise only ordinary care ; and to this there 
 was an exception. This is certainly not a proposition that 
 the defendants should quarrel with, as it is the one they con- 
 tend should be applied to themselves. 
 
 The difficulty of applying the rule of diligence to either 
 party in cases of this kind, arises from the very terms in which 
 
1857.] NEW YORK. 267 
 
 Johnson m. The Hudson River R. R. Co. 
 
 the law has, from custom, clothed the definition of it. 
 "Ordinary" care, in its common acceptation, means the 
 same thing, to whomsoever applied and under whatever circum- 
 stances. The only solution to the difficulty, is, in measuring 
 the requirements of " ordinary care" hy the circumstances of 
 the party ; and to use the language of the learned judge, in 
 Eelsey vs. Barney, already cited : "By the probable conse- 
 quences of negligence, and by the command of means to 
 avoid injuring others, possessed by the person on whom the 
 obligation is imposed." As respects these defendants, the 
 probable consequences of their negligence would be death, or 
 maiming to the party injured ; and as to the command of 
 means to avoid such a disaster, if the use of bells or lights 
 would tend to such a result, it is for them to show that it is 
 not in their power to adopt such an expedient, or they should 
 be estopped from denying that the obligation of prudence 
 exacts it at their hands. 
 
 When, however, we speak of ordinary prudence, as applied 
 to a passenger in the street, we mean something widely differ- 
 ent. His being on the track, may, under certain circum- 
 stances, be negligence, which would relieve the company 
 from liability for the consequences of an injury to him, but it 
 is not a negligence which exposes them to hazard; the pru- 
 dence which he is to exert is one which is necessary for his 
 own protection, and must be of precisely that degree which is 
 commensurate with the danger to which he is exposed. To 
 attempt to pass in front of a carriage driven slowly, at a 
 moderate distance, might not violate any rule of prudence, 
 while to make the same attempt in front of a car, approach- 
 ing at the same speed, and at the same distance, might be 
 extremely hazardous. There is no applying "ordinary care" 
 by a fixed measure, to all possible cases. It must vary in 
 the degrees of its requirement according to circumstances. 
 " Eeasonable care" would have been a much happier and more 
 intelligible expression. We think the judge sufficiently and 
 promptly defined it when he said that it was " that care and 
 foresight which men of ordinary prudence are accustomed to 
 employ, and which, placed in like circumstances with the 
 deceased, they probably would have employed." 
 
268 NIJW YORK. [N.Y. Sup'r Ot. 
 
 Johnson m. The Hudson River R. R. Co. 
 
 The defendants also contend that it was error in the judge 
 to have charged that the negligence of the plaintiff, which 
 would excuse the defendants, must have contributed directly 
 to the accident. 
 
 This ruling is in exact accordance with the language of the 
 court, in Caldioell vs. Murphy, 1 Duer, 233, and with the deci- 
 sion in Carroll vs. Tlie New York and New Haven Railroad 
 Company, 1 Duer, 571. 
 
 The judge further told the jury that it was probable that 
 from the want of lights the driver of the car could not see in 
 front of his horses, or if there was sufficient light, that his 
 attention was directed another way; and that upon either 
 supposition, there was negligence to which the accident 
 might reasonably be imputed, and to this part of the charge 
 also the defendants excepted. 
 
 As the judge had already left it to the jury to say whether 
 the use of lights in the cars was a measure that the prudence 
 and foresight which the defendants were bound to exercise 
 ought to have suggested, this part of the charge must be read 
 in that connection; and thus read, the meaning of it is, that 
 if the jury should find the question thus submitted to them 
 in the affirmative, then the absence of lights, enabling the 
 driver to see in advance of his horses, was negligence; or if in 
 fact there were lights but his attention was not given to his 
 horses but diverted elsewhere, that would be negligence. It 
 was reiterating in another form the proposition already 
 advanced by him. 
 
 We think the judge properly refused to charge that the 
 manner in which the deceased was found on the track, with- 
 out any explanation as to how he got there, was prima facie 
 evidence of negligence on his part. 
 
 He was not discovered until after the car had passed over 
 him, and to hold that, because he was then found lying 
 athwart the track, his position was presumptive evidence of 
 negligence on his part, which, unexplained, would excuse the 
 negligence of the defendants, would be giving the latter the 
 benefit of their own wrong, and would forever preclude the 
 possibility of a recovery in this action. 
 
 The judge further told the jury, in this connection, that the 
 
1857.] NJEW YOEK. 269 
 
 Johnson »«. The Hudson River R. R. Co. 
 
 deceased "certainly had not seen or heard the approach of the 
 car in time to make his escape, and if the fact of his being 
 found on the track was alone sufficient to bar a recovery, no 
 action like the present, however gross and culpable the negli- 
 gence of a railroad company, could ever be maintained." 
 
 The defendants contend that it was error in the judge to 
 tell the jury that the deceased " certainly had not seen or 
 heard the approach of the car in time to make his escape." 
 
 As it was not pretended that the deceased was a voluntary 
 victim, it seems to follow that he could not have seen or heard 
 the approach of the cars. Was it negligence in him not to 
 have done so ? The defendants contend that it was. That 
 question was not withdrawn from the jury, for they were told 
 that if they believed from the evidence that he was guilty of 
 any negligence directly contributing to the disaster, the 
 plaintiff could not recover. The effect of the language in 
 question is this : The deceased was, certainly, not on the 
 road for the purpose of self-destruction ; no presumption of 
 this kind can be entertained, and if so, then the mere fact 
 that he was found dead on the track does not, of itself, raise 
 a pi'esumption of negligence on his part which will bar a 
 recovery. 
 
 The judge also charged that the omission of the defendants 
 to call either the conductor, driver, or brakeman, as wit- 
 nesses on their behalf, unexplained, raised a reasonable pre- 
 sumption, that if called, they would not have contradicted 
 materially the witfiesses of the plaintiff, and to this there was 
 an exception. 
 
 This is in clear accordance with an elementary rule, that a 
 party who has the power to produce the best evidence on the 
 subject, and omits to do it without excusing the omission 
 justifies by such omission the presumption that the evidence, 
 if adduced, would operate to his prejudice, or, at least, would 
 not help his case. 1 Starkie's Ev., S^; Cowen & Hill's 
 Notes, n. 298. 
 
 On the question of damages, the judge, among other things, 
 said to the jury, that the "deceased was a young man in 
 good health, and the probable continuance of his life was at 
 least twenty years." The defendants contend that it was 
 
270 ]S'i:W YORK. [Sup. Ot. 
 
 The Second Avenue R. R. Co. vs. Coleman. 
 
 error thus to have instructed the jury in respect to the prob- 
 able continuance of the life of the deceased. The evidence 
 was, that he was over thirty years old — how much does not 
 appear ; but the reasonable inference from the expression, 
 " over thirty years of age," is that he was under forty. 
 
 I have been referred to certain tables prepared from the 
 combined experience of seventeen life insurance oflS.ces, from 
 which it appears that the expectation of human life at thirty 
 years of age is 34-43 years, and at forty years is 37-38 years, 
 so that the judge was within limits when he said that it was 
 at least twenty years. This is a matter of experience, about 
 which it was not error in the judge to instruct the jury. 
 
 On the whole case the judgment should be affirmed, with 
 costs. 
 
 Justice Woodruff dissented from the foregoing opinion 
 and its conclusions. 
 
 Judgment affirmed. 
 
 THE SECOND AVENUE EAILROAD COMPANY 
 vs. COLEMAN. 
 
 GENEBAL TERM, , 
 
 U Ba/rb.,300. 
 
 The plaintiffs brought this action against the defendant who was 
 their treasurer, for moneys in his possession, belonging to them. There 
 was no allegation in the complaint that a demand had been made. 
 
 Seld, that the duty of a treasurer is to keep the moneys of his prin- 
 cipal distinct from his own, unless otherwise agreed, and to pay, on 
 demand, any balance due. 
 
 Held, further, that although he cannot be indebted until a demand be 
 made of him, an allegation in. the complaint "that he is indebted," with 
 a statement of the items of money received by him, is an allegation that 
 all that is essential to make him indebted has been done; and conse- 
 quently that a demand has been made. 
 
 In such a case, the summons is a sufficient demand; and is sufficiently 
 definite to be upheld on demurrer. 
 
1857.] Ni:W YORK. 271 
 
 The Second Avenue R. R. Co. m. Coleman. 
 
 This is aa appeal from a judgment of the special term, 
 overruling the defendant's demurrer to the complaint. 
 
 Mr. A. A. Thompson, for the appellant. 
 
 Mr. J. E. Burrill, for the respondents. 
 
 By the Court : Mitchell, P. J. — The complaint shows 
 that the defendant was the treasurer of the plaintiffs, and for 
 a hire agreed faithfully to perform every act appertaining to 
 the office. It further shows that he was such treasurer 
 and bound to perform the duties of the ofi&ce from the 10th 
 of January, 1855, to the 17th of March, 1856. And having thus 
 stated matters of fact, it proceeds further, in the same style, 
 to set forth another /ac^, and says, "the plaintiffs further 
 show that the defendant is indebted to them in the sum of 
 $5,886.74 for money received by the defendant while acting as 
 such treasurer ; and that the items in their account are as 
 follows ;" giving the amounts received on each week day from 
 the 11th to the 21st day of January, 1856, inclusive; and 
 then demands judgment. The demurrer of the defendant 
 was overruled at special term, and he appeals ; arguing that a 
 treasurer is not liable until a demand is made on him, and 
 that none is alleged. 
 
 The duty of a treasurer is to keep the moneys of his princi- 
 pal distinct from his own, (unless a special agreement be made 
 otherwise,) and to be ready at all times to pay over what 
 balance he owes to his principal, and to pay the balance 
 on demand. If he cannot be indebted until a demand be 
 made of him, the allegation, as a matter of fact, that he 
 is indebted, with a statement of the items of moneys received 
 by him, is an allegation that all that is essential to make him 
 indebted has been done ; and consequently that a demand has 
 been; made. In such a case the summons is a sufficient 
 demand; and if none were made, the defendant should pay 
 the debt, but not the costs. It may not be as definite as 
 is proper, but it is sufficient 'on demurrer. 
 
 The judgment in favor of the plaintiff should be affirmed, 
 with costs. 
 
 Judgment affirmed. 
 
272 NJEW YORK. [Ot. App. 
 
 Hegan m. The Eighth Avenue R. R. Co. 
 
 HEGAN vs. THE EIGHTH AVENUE RAILROAD 
 COMPANY. 
 
 15 N. T., S80. 
 
 1. Defendants' oar struck plaintiff's cart as he was turning off the 
 track to the left. Plaintiff was thrown to the ground and injured. 
 Defendants relied upon a statute which declared that when persons trav- 
 eling in carriages shall meet on a road or highway they shall reasonably 
 turn their carriages to the right of the centre of the road so as to pass 
 one another. 
 
 HeM, that this statute had no application to the meeting of railroad 
 cars with common vehicles, and that there was nothing wrong in plaint- 
 iff's attempt to turn ofE towards the left. 
 
 A cart or carriage about to meet a railroad car must yield the whole 
 track ; but there is no greater obligation to turn to the right side than 
 to the left. 
 
 Suit brought in the Superior Court of the City of New 
 York for injuries received by plaintifE through the alleged 
 negligence of the defendants. 
 
 Plaintiff was driving his cart south on the east track of the 
 defendants' railroad in Hudson street, when a car approached, 
 going north on the same track ; plaintiff attempted to turn 
 out of the way and into King street, but before his cart was 
 clear of the track the car struck his cart and plaintiff was 
 thrown to the ground and severely injured. When the plaint- 
 iff rested, the defendants made a motion to dismiss the com- 
 plaint, on the ground that plaintiff's own witnesses proved 
 nim to have been guilty of negligence. The court denied the 
 motion, and the defendants excepted. The jury found for the 
 plaintiff and assessed the damages at $400. The exception to 
 the denial of the motion to dismiss the complaint, was the 
 only one taken. The general term of the superior court 
 affirmed the judgment entered upon the verdict, and the 
 defendant appealed to this court. 
 
 Mr. W. L. Learned, for the appellant. 
 
 Mr. N. Hill, for the respondent. 
 
 Paige, J. — The only question raised on the trial was, 
 whether the plaintiff had himself been guilty of negligence. 
 
1857.] Ni:W YORK. 273 
 
 Hegan ««. The Eighth Avenue R. R. Co. 
 
 and thereby contributed to the injury he sustained. This was 
 a question of fact for the jury. Sawyer ts. Joslin, 2 Am. Rail- 
 way Cases, S82; s. c. 20 Vt., 172 j Hegeman vs. Western 
 Railway Corporation, 13 N. Y., 9; Stokes vs. Saltonstall, 
 IS Peters, 181. This question was complicated with two 
 others, viz.: whether the alleged negligence of the plaintiff 
 did not occur in an effort to extricate himself from the 
 peril in which he was placed ; and whether he was not 
 placed in such peril by the negligence and carelessness of the 
 defendants' servant. These questions were questions of fact 
 for the jury; and there being evidence on both sides, and no 
 misdirection of the judge who tried the cause, the superior 
 court decided correctly in refusing a new trial. The judge 
 who tried the cause would have erred if he had taken the 
 cause from the jury and dismissed the plaintiff's complaint. 
 Astor vs. Union Insurance Company, 7 Cow., 202; Lewis vs. 
 Payn, ^ Wend., Ji^S; Fleming vs. Hollenhech et al., 7 Barh., 
 271. I do not think that the provision of the Eevised Stat- 
 utes, in relation to the meeting of persons traveling with 
 carriages on any turnpike road or public highway, applies to 
 the meeting of carriages in the streets of a city, {1 R. S., 695, 
 sec. 1, 1st ed.,) and if it did, it does not appear in this case 
 whether the east track of the defendants' railroad, on which 
 the plaintiff was driving, lies east of the centre of the street. 
 
 Dbkio, C. J. — The only exception in the case is that taken 
 to the refusal of the court to nonsuit the plaintiff after he had 
 rested. The motion was not placed on the ground that the 
 plaintiff had not shown negligence on the part of the defend- 
 ants, but on the ground that the plaintiff's own negligence had 
 concurred with that of the defendants to produce the injury. 
 The only negligence of the defendants, indicated by the evi- 
 dence, consisted in the speed at which the car was driven. 
 One of the plaintiff's witnesses thought it was passing at the 
 rate of eight or ten miles an hour. As the defendants' counsel 
 did not, upon the motion, -contest the allegation of negligence 
 by the defendants, and as that negligence consisted of the rate 
 of speed of the defendants' car, we must assume that the 
 car was being driven at an immoderate and unsafe rate upon 
 this crowded thoroughfare. This is important to be remem- 
 
 18 
 
274 NUW YORK. [Ot.App. 
 
 Hegan vs. The Eighth Avenue R. R. Co. 
 
 bered while we are endeavoring to ascertain whether the plaint- 
 iff was culpable or not. It is argued, in the first place, that 
 the plaintiff had no right to be with his cart where he was. 
 He was driving towards the south upon the easterly track. 
 The defendants' car was proceeding north, upon the same 
 track. The defendants rely upon the statute, which declares 
 that when persons traveling in carriages shall meet on a road 
 or highway they shall seasonably turn their carriages to the 
 right of the centre of the road, so as to permit such carriages 
 to pass without interference or interruption. 1 B. S., 695, 
 sec. 1. The plaintiff did not turn soon enough to prevent 
 a collision, and when he did turn, it was to the left and not to 
 the right. I am of opinion that this statute has no applica- 
 tion to the meeting of railroad cars with common vehicles. 
 The former run in a grooved track, and cannot turn to the 
 right or to the left. The statute refers to cases where there 
 is an equal ability in the carriages which are about to meet, 
 commensurable with the mutual obligation which the statute 
 imposes. The cart or carriage about to meet a railroad car 
 must yield the whole track, but I do not see that there is any 
 greater obligation to turn upon the right side than upon the 
 left. The evidence is that, in this instance, the right side 
 was so encumbered with other carts that there was no room to 
 turn in that direction. There was nothing wrong then in the 
 plaintiff's attempting to turn off towards the left. Besides, 
 by turning to the left he could go into King street, which was 
 his destination. 
 
 Where railroads are laid lengthwise upon a street or high- 
 way, it is not unlawful for common vehicles to travel upon 
 the track, across it or lengthwise. The company has the 
 exclusive right to the track over which its cars are passing, 
 but its right is not otherwise exclusive. Other carriages must 
 keep out of the way of the cars, and if they are hit, when the 
 latter are proceeding at a reasonable and lawful speed, and 
 with all such care as, considering the subject can reasonably 
 be used, they cannot maintain an action against the company. 
 But they have no right to drive immoderately, and it is in 
 the highest degree dangerous for them to do so. Still if they 
 offend in that respect, and the driver of a common carriage 
 
1858.] NHW YORK. 275 
 
 Owen DS. The Hudson River R. R. Co. 
 
 will negligently or wilfully place himself or remain in their 
 path he has no right to claim damages. It is not, however, 
 unreasonable for the private traveler to assume that the rail- 
 road will be driven moderately and prudently. He can calcu- 
 late distances and the time required to effect his own change 
 of position, in order to prevent injury in such cases. But if 
 he encounter a car driven furiously through a crowded street, 
 and make a mistake as to time in attempting to get out of 
 the way, culpable negligence is not necessarily to be imputed 
 to him. This was the plaintiff's case. He had turned his 
 cart at a right angle with the track, and was driving off, but 
 the cart was hit within about six inches of its hinder end. A 
 few seconds more would have placed him out of danger. The 
 defendants were clearly in the wrong Whether the plaintiff 
 was also in the wrong, by unreasonably delaying to turn out, 
 was a question for the jury. It may be that this collision 
 resulted wholly from the defendants' rapid driving. "We can- 
 not pronounce as matter of law that the plaintiff was guilty of 
 negligence in not turning out earlier. 
 
 I think the nonsuit was properly denied, and that the judg- 
 ment should be affirmed. 
 
 CoMSTOCK and BROWnr, JJ. did not hear the argument. 
 All the other judges were in favor of affirmance. 
 
 Judgment affirmed. 
 
 DANIEL OWEN" and JEREMIAH G. LUGAE, Respond- 
 ents, vs. THE HUDSON RIVER RAILROAD 
 COMPANY, Appellants. 
 
 QENEIUL TERM. 
 
 IS N. T. Superior Court, (S Boaw.,) 374. 
 3d Appeal, W N. Y. Superior Court, (7 Bom.,) SS9 ; s. c. 1 Am. 
 
 St.-By. Dec, 467. 
 In an action against a railroad company for damages for injuries to 
 the plaintiffs' omnibus caused by a collision between the railroad cars 
 and the omnibus, it was alleged by each party that the negligence of 
 the other was the cause of the collision, and the proof tended to show 
 that both were negligent. 
 
276 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Owen e«. The Hudson Eiver R.R. Co. 
 
 Held, that if the collision and injury were caused by the concurring 
 negligence of both parties, the plaintifiEs could not recover and the 
 defendants were entitled to a verdict 
 
 On the trial the judge charged : " If the jury believe that the brakes 
 of the car were not in good or sufficient working order, so that they 
 were inefficient for the purpose of checking the progress of the car, 
 and if you shall be satisfied that the driver of the car had time enough, 
 after he discovered the dangerous position of the stage, to have avoided 
 the collision by the application of the brakes, if they had been in good 
 order, then the plaintifEs will be entitled to recover, notwithstanding 
 the plaintiffs' driver was guilty of imprudence or carelessness in getting 
 into such a position." 
 
 Held, error, that although it was negligence for the company not to 
 have their car furnished with efficient brakes, it was the negligence of 
 the plaintifEs that concurred with the defendants' negligence, that pro- 
 duced the injury and no recovery can be had. 
 
 Appeal by the defendants, from a judgment, entered on the 
 verdict of a jury, in favor of the plaintiffs, for $1,187.73. 
 The trial took place in May, 1856, before Me. Justice 
 Slosscjt and a jury. 
 
 The plaintiffs, Daniel Owen and Jeremiah G. Lugar, were 
 partners in, and owned and ran a stage omnibus line through 
 the Tenth avenue, in New York city, in which avenue the 
 defendants' railroad track is laid. 
 
 On the 33d of February, 1853, a collision occurred between 
 one of the plaintiffs' omnibuses and the defendants' cars, on 
 the Tenth avenue near Twenty-fourth street, while both were 
 proceeding in the same direction, and this action is brought 
 to recover the damages which the plaintiffs sustained thereby 
 as well as for damages sustained in a collision between 
 another of their omnibuses and the defendants' cars in Tenth 
 avenue, near Twenty-sixth street, on the 30th of July, 1853, 
 while the cars and omnibus were going in opposite direc- 
 tions. 
 
 Tenth avenue extends both north and south of the places 
 of collision in a straight direction and as the collisions occurred 
 in broad daylight, objects could have been seen in either 
 direction for at least half a mile from the place of either col- 
 lision. 
 
 The negligience of the defendants and their servants and 
 their own freedom from negligence, was the ground upon 
 
1858.] NUW TOEK. 277 
 
 Owen vs. The Hudson Biver R. R. Co. 
 
 which plaintiffs sought to recover. When the plaintiffs 
 rested, the counsel for the defendants moved for a nonsuit, 
 on the following grounds : 
 
 " First. That it appeared that the plaintiffs were guilty of 
 negligence, which contributed to the accident." 
 
 "Second. That it also appeared that the defendants were 
 not guilty of any negligence which contributed to the acci- 
 dent." 
 
 The judge denied the motion, and the defendants' counsel 
 excepted. 
 
 When the plaintiffs rested, and the motion for the nonsuit 
 was made, the evidence given tended to show, that it was the 
 negligence of the driver of each omnibus, in getting into such 
 a position, that caused the collision. 
 
 At the close of the testimony, the evidence given tended to 
 show, that the brakes of the defendants' cars were not in 
 good working order at the time of the collisions, and that if 
 they had been, the drivers of the cars, when they saw there 
 was danger of a collision, might have stopped the cars and 
 prevented a collision ; that the absence of suflBcient brakes, in 
 good working order, was the only negligence on the part of 
 the defendants. 
 
 The judge charged the jury, that the plaintiffs in this case 
 could not recover, if the carelessness of their servant contribut- 
 ed directly to the accident ; but he further charged that 
 that rule was subject to this qualification : — " If the jury 
 believe that the brakes of the car were not in good, or sufficient 
 working order, so that they were insufficient for the purpose 
 of checking the progress of the cars ; and if you shall be sat- 
 isfied that the drivers of the cars had time enough, after they 
 discovered the dangerous position of the stage, to have avoid- 
 ed the collision by the application of the brakes, if they had 
 been in good order ; then the plaintiffs will be entitled to 
 recover ; notwithstanding the plaintiffs' driver was guilty of 
 imprudence or carelessness in getting into such a position." 
 The defendants' counsel excepted to the qualification. 
 
 No exception was taken to the other parts of the charge. 
 
 Mr. William Fuller ton, for the appellants. 
 Mr. John Graham, for the respondents. 
 
278 Ni:W YOBK. [N .Y. Sup'r Ot. 
 
 Owen vs. The Hudson River R. R. Co. 
 
 By the Cotjet : HoFPMAiir, J. — It has become a settled 
 axiom in our state, that if the negligence of a plaintifE who 
 complains of an injury has contributed to produce it, he is not 
 entitled to recover. Rathlun vs. Payne, 19 Wendell, 399; 
 Collins YS.The Albany S Schenectady Railroad Company, 12 
 Barbour, 492: Hunger vs. Tonawanda Railroad Company, 
 U N. Y., Slfi; Tonawanda Railroad Company vs. Hunger, 
 5 Denio, 255. 
 
 This rule is modified by another, which is thus stated by 
 Chief Justice Duer, in Johnson vs. The Hudson River Railroad 
 Company, 5 Duer, 21-27; s. c. 1 Am. St.-Ry. Dec, 191-198. 
 "As the plaintifE in the action is not allowed to recover, not- 
 withstanding the clearest proof of the negligence of the defend- 
 ants, when it is also proved that his own negligence directly 
 contributed to the accident, so the defendant is not shielded 
 from a recovery, when it appears that but for his own 
 subsequent negligence the accident would not have occurred; 
 that is, when it appears that his own negligence was the sole 
 proximate cause." 
 
 The doctrine thus stated was applied by the late Chief 
 Justice in the case of Williams vs. The New York and Harlem 
 Railroad Company,* tried December 14th, 1852. The law, as 
 laid down in his charge, was affirmed at the general term 
 of this court, February 11th, 1854, and by the Court of 
 Appeals. 
 
 After stating the general rules, as to the necessity of 
 finding the defendants guilty of negligence ; and if so, then, 
 next, whether the party injured had been negligent on his 
 part; the learned judge proceeded: "If the deceased was 
 guilty of negligence in attempting to cross the track, or 
 in jumping out of the wagon, still, if when he was on the 
 ground, the driver could have stopped the car before it went 
 over him, the plaintifE was entitled to recover." 
 
 To understand this, it is sufficient to observe, that the 
 deceased was thrown from a wagon and run over by a car 
 of the defendants, and that there was no little testimony 
 to show that the car was driven at a great rate of speed, and 
 that the driver made no attempt to check it when he dis- 
 covered the situation of the party, and that he could have 
 stopped the car so as to have avoided the accident. 
 
 * Not reported. 
 
1858.] N:EW YORK. 279 
 
 Luby m. The Hudson River R. R. Co. 
 
 This, then, was the case of a wilful neglect of ordinary 
 means of avoiding the accident at the period of its occurrence. 
 Had the driver of the car, in the present instance, wholly- 
 neglected to apply the brakes, the cause would have been 
 similar. 
 
 But if the ruling of the learned judge here is right, the 
 most remote neglect of the company, or its agents, in the con- 
 struction of its car, road, or equipment, would make them 
 liable, whatever might be the fault of the other party. If 
 they are responsible, because of the inefficiency of the brakes, 
 they would be so for any deficiency or imperfection, no 
 matter how far back it might be traced, which could be 
 deemed to have contributed to the event. Itideed, it would, 
 in principle, go far to give as entire protection to a traveler, 
 or party grossly in fault himself, and to place him in the 
 same position, as one who is wholly free from fault, and who 
 has a guaranty for even these latent defects which ordinary 
 diligence has failed to discover. See the cases collected in 
 the valuable Treatise of Judge Eedfield on Eailways, p. 325, 
 and notes. 
 
 Another exception was to the charge as to the rule of 
 damages. No point has been made by the defendants' counsel 
 as to this, nor was any argued. We omit, therefore, to con- 
 sider it. 
 
 We think that there was error in the charge, and that there 
 must be a new trial, with costs to abide the event. 
 
 Ordered accordingly. 
 
 LUBY and wife vs. THE HUDSON EIVBE KAILEOAD 
 , COMPANY. 
 17 JSr. T. 131. 
 
 A policeman who arrested the driver of a car that had run against a 
 woman, was allowed to testifly as to the arrest, in an action against the 
 employer of the driver, for negligence. 
 
 KeU, that the evidence was inadmissible. 
 
 After the arrest, but before leaving the car, the driver in answer to the 
 policeman's inquiry why he did not stop the car, stated that the brakes 
 were out of order. 
 
 Eeld, to be mere hearsay and not admissible in evidence against the 
 driver's employer. 
 
280 NHW TOEK. [Ot. App. 
 
 Luby vs. The Hudson River R. R. Co. 
 
 On appeal from the supreme court. This action was brought 
 against the defendants for their alleged negligence in running 
 a railroad car drawn by horses against the plaintifE Mrs. Luby, 
 in one of the streets of the city of New York. Mason, a 
 policeman, called as witness by the plaintiffs, testified that he 
 was on duty near the spot where the accident occurred, and 
 was called by several persons assembled around the injured 
 woman. He was permitted to testify that he arrested the 
 driver of the car which ran against Mrs. Luby, and the defend- 
 ants' counsel took an exception. The court also permitted 
 him to testify, under exception, that upon arresting the driver 
 as he was getting off the car and out of the crowd which sur- 
 rounded it, he asked him why he did not stop the car, to 
 which the driver replied that the brake was out of order. 
 The jury brought in a verdict for the plaintiff, and judgment 
 was entered thereon which was on appeal affirmed by the gen- 
 eral term of the supreme court in the first district, and the 
 defendants appealed to this court. 
 
 Mr. Charles 0' Conor, for the appellants. 
 Mr. Richard 0' Gorman, for the respondents. 
 
 CoMSTOCK, J.— Mason, the police officer, was allowed to 
 testify, against the objection of the defendants, that he 
 arrested the driver of the car, and that the driver on being 
 arrested assigned as a reason why he did not stop the car that 
 the brakes were out of order. This took place directly after 
 the accident, the citizens having stopped the car and the 
 driver having got outside of the crowd which had gath- 
 ered about. We think it was erroneous to receive the evi- 
 dence, and that the judgment must be reversed on this ground. 
 
 First. In regard to the arrest. That fact was irrelevant 
 to the case, and we cannot tell what infiuence it may have had 
 upon the minds of the jury. It is true that the jury ought 
 not to attach any importance to the circumstance in trying 
 the issue before them, but this only proves that this fact 
 ought not to have been shown for their consideration. It cer- 
 tainly has some tendency to prove that at the very time of the 
 transaction the defendants' driver was considered by the 
 
1858.] N£:W YORK. 281 
 
 Luby w. The Hudson River E. R. Co. 
 
 officer and others as guilty of culpable negligence. The ques- 
 tion of his negligence was in issue and on trial ; and how far 
 the jury were aided in their conclusion by the manner in 
 which the driver was treated by a police officer, or others who 
 witnessed or were near the transaction, it is impossible for us 
 to say. There is no pretence for saying that this evidence 
 was necessary or proper, for the purpose of identifying the 
 occasion. Indeed I can see no reason why the police officer 
 was called as a witness at all, unless for the irrelevant pur- 
 pose of proving the arrest and what the driver then said. 
 
 Second. The declarations of an agent or servant do not in 
 general bind the principal. Where his acts will bind, his 
 statements and admissions respecting the subject-matter of 
 those acts will also bind the principal, if made at the same 
 time and so that they constitute a part of the res gestcB. To be 
 admissible, they must be in the nature of original and not of 
 hearsay evidence. They must constitute the fact to be 
 proved, and must not be the mere admission of some other 
 fact. They must be made, not only during the continuance 
 of the agency, but in regard to a transaction depending at 
 the very time. 1 Greenl. Ev.,sec. IS; Thallhimer vs. Brinck- 
 erhoff, 4 Wend., S96; Bank of Monroe vs. Field, 2 Hill, 445; 
 Story on Agency, sees. 135, 136; Fairlie vs. Hastings, 10 
 Ves., 12S-m8; Barker vs. Binninger, 14 N. Y., 270. 
 
 In this case it seems to have been thought material on the 
 part of the plaintiff to prove that the brake of the defend- 
 ants' car was out of order. Whether this was or was not the 
 direct object of introducing the declaration of the driver, 
 such declaration at all events proved the fact, if the jury saw 
 fit to credit his statement. But the fact, if true, could not 
 be proved in this manner. The declaration was no part of 
 the driver's act for which the defendants were sued. It was 
 not made at the time of the act, so as to give it quality and 
 character. The alleged wrong was complete, and the driver, 
 when he made the statement, was only endeavoring to account 
 for what he had done. He was manifestly excusing himself 
 and throwing the blame on his principals. I do not by any 
 means suggest that the conduct of the servant himself, as it 
 was proved on the trial, was not so negligent as to justify the 
 
282 Ni:W YORK. [Com. PI. 
 
 N Y. and Harlem R. R. Co. m. The Mayor, etc., ol N. T. 
 
 verdict; but the error was in allowing the jury, if they so 
 pleased, to regard another material fact as proved by a mere 
 declaration of the agent— a fact which may possibly have 
 exercised a decisive influence upon the result. What effect 
 the jury gave to the evidence we cannot tell. I see no way of 
 getting over this diflBculty. 
 All the judges concurring. 
 
 Judgment reversed and new trial ordered. 
 
 THE NEW YORK AND HARLEM RAILROAD COM- 
 PANY vs. THE MAYOR, ALDERMEN AND COM- 
 MONALTY OP THE CITY OF NEW YORK, THE 
 BOARD OP COMMISSIONERS OP THE METRO- 
 POLITAN POLICE DISTRICT, and PREDERICK 
 A. TALLMADG-E, Superintendent,' etc. 
 
 SPECIAL TEBM. 
 
 B JV. Y. Common Pleas, {1 Hilton,) 56S. 
 
 1. The plaintiffs were incorporated, by an act of the legislature, 
 passed April 35tli, 1831, (Lams 1831, cliwp. S6S, p. 3^3,) with power to con- 
 struct a railroad in the streets of the city of New York. One of the sections 
 of the act provided ; that nothing in the act should be deemed to author- 
 ize the construction of the railroad, across or along any of the streets 
 or avenues of the city, without the consent of the municipal authorities, 
 who were authorized to grant permission to construct the railroad, or to 
 prohibit the construction of it ; and after its construction, to regulate 
 the time and manner of using the same, and the speed with which car- 
 riages might be allowed to move thereon. On December 33d, 1831, the 
 municipal authorities, upon the application of the plaintiffs, adopted an 
 ordinance permitting the construction of the railroad in certain streets, 
 providing, that if, at any time after its construction, it should appear to 
 the municipal authorities, (who were to be the sole judges thereof,) that 
 the railroad constituted an obstruction or impediment to the future regu- 
 lation of the city, or the ordinary uses of any street or avenue, the 
 plaintiffs should forthwith provide a satisfactory remedy for the same, 
 or failing to do so to remove the railroad and replace the street in as 
 good condition as before the railroad was laid down. The right of regu- 
 lating the description of propelling power to be used on the railroad. 
 
1858.] NEW YORK. 283 
 
 N. Y. and Harlem R. R. Co. w. The Mayor, etc., of N. Y. 
 
 and the speed of same, as well as all other power reserved to the muni- 
 cipal authorities, in the act of incorporation, was expressly retained and 
 reserved. It was also declared, that the ordinance should not be bind- 
 ing on the common council, or go into effect, until the plaintiffs exe- 
 cuted in wilting and under seal, an agreement to perform the conditions 
 and requirements of the ordinance. The plaintiffs accordingly executed 
 such an agreement which was filed with the comptroller, and then laid 
 their track in Fourth avenue. In 1854, the municipal authorities 
 adopted a resolution, forbidding the running of locomotives or steam 
 engines on the tracks of the plaintiffs, on Fourth avenue south of Forty- 
 second street, after eighteen months after the passage of the ordinance. 
 
 Held, that the ordinance of 1854 was valid and that the plaintiffs 
 must obey it, and that it was not a violation of the franchises granted to 
 the plaintiffs by the legislature. 
 
 Held, further, that although the power to give permission to operate 
 the railroad had to be derived from the legislature, yet its exercise did 
 not deprive the city corporation of its legislative control of the streets in 
 all otlier respects, and it might impose upon the plaintiffs such restric- 
 tions as the city authorities thought proper in regard to the manner in 
 which the rail track should be used, and also conditions upon which the 
 future use of the track might depend. 
 
 EM, further, that the agreement made by the plaintiffs was binding 
 upon them, that it was not a transfer of the right to determine the motive 
 power to be used, but only a restriction upon the right. 
 
 Held, further, that any contract made by the municipal authorities 
 tending to deprive them of the control of the streets, would not only be 
 revocable at pleasure, but void. 
 
 fi«M, further, that "the legislative power and control of the city, 
 over the streets and avenues within its limits, are very extensive, and 
 the only limitation upon them is, that they shall be appropriated to no 
 use or purpose which is not alike free and common to all citizens and 
 travelers." 
 
 But, that converting them to railroad purposes, and permitting rail 
 tracks to be laid upon them, to be used by an individual or an associa- 
 tion in the transportation of merchandise and passengers for hire, is a 
 devotion of them to an exclusive use, and express authority from the 
 legislature must be obtained. 
 
 Held, also, that a party, applying to a court for the application of its 
 equitable powers, should be held to the rule, " that he who seeks equity 
 must do equity." He will not be permitted to claim a benefit under a 
 contract and repudiate conditions contained therein, and which formed 
 the consideration therefor. 
 
 Held, also, that corporations, like individuals, may be bound by 
 implied contracts, provided the acts contemplated thereby are within 
 the scope of the corporate authority. 
 
 Held, also, that " courts are bound to assume that, where a discretion 
 
284 NSW YORK. [Com. PI. 
 
 N. Y. and Harlem R. R. Co. m. The Mayor, etc., of N. Y. 
 
 — — ^— 
 
 is vested in a municipal body, exercising functions of a legislative char- 
 acter, good reasons existed for the adoption of a regulation or ordinance 
 which was the result of such a discretion." 
 
 Beld, also, that " the duty of enforcing all the public ordinances of 
 the city, and especially those which are applicable to police or health, 
 is imposed by law upon the board of police commissioners," and that the 
 ordinance in question might be classed under either head. 
 
 Meld, also, that the police commissioners are not state officers, within 
 the meaning of the term, as used in chap. 4S8 of Laws of 1851. p. 9^0 ; 
 and in a proper case may be restrained by this court in the exercise of 
 its eciuity powers, in the same manner, and to the like extent, as other 
 local or county officers. 
 
 Held, also, that this court had jurisdiction of an action of this nature 
 against the corporation of the city. 
 
 Held, also, that an order to show cause should be considered as a 
 notice for all the purposes of a motion, and that the moving party was 
 entitled to open and close the argument. 
 
 This was a motion made at a special term of the Court of 
 Common Pleas of the City of New York, for an injunction to 
 restrain the corporation of the city from enforcing an ordi- 
 nance, which prohibited the use of steam engines or locomo- 
 tives, by the plaintiffs, upon their tracks on Fourth avenue, 
 below Forty-second street. 
 
 The plaintiffs founded their application for the injunction, 
 upon a complaint duly vei-ified, of which the substance appears 
 in the opinion. 
 
 The following "agreement and ordinance are those, under 
 which the plaintiffs were permitted originally to lay their rails 
 upon the streets of the city : 
 
 "Articles of agreement made this ninth day of January, 
 one thousand eight hundred and thirty-two, between the New 
 York and Harlem Eailroad Company, parties of the first part, 
 and the Mayor, Aldermen and Commonalty of the City of 
 New York, parties of the second part : Whereas, an ordi- 
 nance of the common council of the city of New York was 
 passed by the board of aldermen on the sixteenth of Decem- 
 ber last, and by the board of assistants on the nineteenth 
 day of December last, and approved by the mayor of the said 
 city on the twenty-second day of December last, which ordi- 
 nance is in the words and figures following, to wit : ' A law 
 to authorize the New York and Harlem Railroad Company to 
 construct their railway. 
 
1858.] N:EW YORK. 285 
 
 N. Y. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 
 "'See. 1. Be it ordained, etc., that the New York and 
 Harlem Eailroad Company be, and they are hereby permitted 
 to construct and lay down, in pursuance of their act of incor- 
 poration, a double or single track or railroad or railway along 
 the Fourth aTenue, from Twenty-third street to the Harlem 
 river, in conformity to a map now on file in the Kegister's 
 oflBce, and a branch thereof along One Hundred and Twenty- 
 fifth street, from the Fourth avenue to the Hudson river ; 
 provided that the width of such double railroad or way shall 
 not exceed twenty- four feet. 
 
 " ' Sec. 2. And be it further ordained: That if, at any time 
 after the construction of the aforesaid railways by the said 
 New York and Harlem Eailroad Company, it shall appear to 
 the Mayor, Aldermen and Commonalty of the City of New 
 York, that the said railways, or any part thereof, shall con- 
 stitute an obstruction or impediment to the future regulation 
 of the city, or the ordinary uses of any street or avenue, (of 
 which the said Mayor, Aldermen and Commonalty shall be 
 the sole judges,) the said railroad company, or the directors 
 thereof, shall, on the requisition of the said Mayor, Aldermen 
 and Commonalty, forthwith provide a remedy for the same, 
 satisfactory to the said Mayor, Aldermen and Commonalty ; or, 
 if they fail to find such remedy, they shall, within one month 
 after such requisition, proceed to remove such railway or other 
 obstruction or impediment, and to replace the street or avenue 
 in as good condition as it was before the said railway was laid 
 down ; and should the said directors decline or neglect to obey 
 such requisition, the said Mayor, Aldermen and Commonalty 
 may, upon the expiration of the time limited in such notice, 
 cause the obstruction or impediment to be removed and the 
 avenues or streets restored, as aforesaid, at the expense of the 
 said railroad company. 
 
 " ' Sec. 3. That the right of regulating the description of 
 power to be used in propelling carriages on and along said 
 railways, and the speed of the same, as well as all other power, 
 reserved to the said Mayor, Aldermen and Commonalty, by the 
 act of incorporation of the said company, or any part thereof, 
 be, and the same are hereby expressly retained and reserved. 
 
 " ' Sec. 4. That it shall especially be incumbent on the said 
 
286 iV^TF TOBK. [Com. PL 
 
 N. Y. and Harlem E. E. Co. m. The Mayor, etc., of N. Y. 
 
 Harlem Kailroad Company, at tlieir own cost, to construct 
 stone arches and bridges for all the cross streets, now or here- 
 after to be made, (which will be intersected by the embank- 
 ments or excavations of the said railroad,) and which in the 
 opinion of the common council the public convenience requires 
 to be arched or bridged ; and also to make such embankments 
 or excavations, as in the opinion of the common council may 
 be required to make the passage over the railroad and embank- 
 ments at the intersected cross streets easy and convenient, for 
 all the purposes for which streets and roads are usually put 
 to ; and also, that the said company shall make, at their own 
 like cost and charges, all such drains and sewers as their 
 embankments or excavations may, in the opinion of the com- 
 mon council, make necessary ; all which work to be done 
 under the like requisitions and under like disabilities as in the 
 second section of this ordinance mentioned ; and, further, 
 that the said company shall make their railroad path, from 
 time to time, conform to what may hereafter be the regu- 
 lations of the avenues and roads through which said railroad 
 
 ' ' ' Sec. 5. That it shall be incumbent on the said Harlem 
 Eailroad Company to commence and complete their said rail- 
 road in the respective times allowed for that purpose in their 
 act of incorporation, and unless they commence and complete 
 the same in the periods of time for the said commencement 
 and completion in said incorporation specified, that then the 
 consent of the common council and all the powers and privi- 
 leges given in this ordinance shall cease and be null and void. 
 
 " ' Sec. 6. That in case the said railroad should not be com- 
 pleted within the times for that purpose in their charter men- 
 tioned, or if, at any time after the construction of the said 
 railroad, the same should be discontinued or not kept up and 
 in repair, as a good and sufficient railroad, that then the strip 
 of land to be taken for the said railroad should be thrown 
 open and become as part of the street or public avenue, with- 
 out any assessments on the owners of adjoining lands or the 
 public therefor. 
 
 " ' Sec. 7. That no building shall be erected on said strip 
 of land to be taken for said railroad, and that such railings 
 
1858.] Ni:W YORK. 287 
 
 N. Y. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 
 or other erections shall be made on the outer edges of the 
 embankments or railroad path, and also such railings or 
 fences on the edges of the excavations, as the common coun- 
 cil shall from time to time deem necessary to prevent acci- 
 dents and loss of lives to our fellow-citizens. 
 
 " ' Sec 8. That thig ordinance shall not be considered as 
 binding on the common council, nor shall the said ordinance 
 go into effect until the said HarlemEailroad Company shall first 
 duly execute, (under their corporate seal,) such an instrument 
 in writing, promising, covenanting and engaging, on their 
 part and behalf, to stand to, abide by, and perform all the 
 conditions and requirements in this ordinance contained, as 
 the mayor and the counsel of the board shall by their certifi- 
 cate approve, and not until such instrument shall be filed, so 
 certified, in the comptroller's office of this city. 
 
 " 'Passed by the board of aldermen, December 16, 1831. 
 
 " ' Passed by the board of assistants, December 19, 1831. 
 
 " ' Approved by the Mayor, December 23, 1831.' 
 
 " How, this agreement witnesseth : That for and in consid- 
 eration of the premises, and in pursuance of the requirements 
 of the eighth section of the said ordinance, the said parties of 
 the first part do hereby, for themselves and their successors, 
 promise, covenant and engage, to and with the said parties of 
 the second part, and their successors and assigns, to stand to, 
 abide by, and perform all the conditions and requirements in 
 the said ordinance contained. 
 
 "In witness whereof, the said parties of the first part have 
 hereunto affixed their corporate seal, and caused the same to 
 be signed by their Vice-President, (in the absence of their 
 President,) and attested by their Secretary, the day and year 
 aforesaid. 
 
 " John Mason, Vice-President, [l. s.] 
 " Witness, Isaac Adeiakcb, Secretary pro. tern." 
 
 [Endorsed.] 
 
 " Between the New York and Harlem Railroad Company, 
 and the Mayor, etc., of the City of New York." 
 
288 NEW YORK. [Com. PI. 
 
 N. r. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 COVENANT. 
 
 " We hereby certify that we approve of the within, as being 
 such an instrument in writing as the New York and Harlem 
 Eailroad Company are required to execute and file in the 
 comptroller's oflBce, according to the eighth section of the 
 ordinance within recited. 
 
 Dated, January 13th, 1832. 
 
 " "Waltee Bowne, Mayor. 
 
 " E. Emmet, Counsel, etc. 
 
 " Filed on Monday, January 16th, 1832. 
 
 T. J. Waters, Comptroller." 
 
 The plaintiffs obtained an order to show cause why an injunc- 
 tion should not be granted restraining defendants from enforc- 
 ing the ordinance as before stated. The defendants were 
 restrained by the order until its determination. 
 
 A number of affidavits were read by the defendants in 
 opposition, showing plaintiffs' representations to the city cor- 
 poration, at different times, when action was being taken in 
 regard to the use of plaintiffs' track ; the reasons which 
 induced defendants to pass the ordinance in controversy; that 
 the use of steam engines on plaintiffs' track below Forty- 
 second street was a nuisance, and that the neighborhood 
 adjacent to Fourth avenue was injured thereby. Plaintiffs 
 also read affidavits, which rebutted, to some extent, the state- 
 ments contained in defendants' affidavits. 
 
 The counsel for the defendants claimed the right to open 
 and close the argument which was about to be presented, 
 because they were brought into court by an order to show 
 cause why an injunction should not issue against them. 
 
 It was held by the judge, that an order to show cause should 
 be considered as a notice for all the purposes of a motion, and 
 that the rights of the parties were not at all affected by the 
 manner in which they were heard by the court. That the 
 plaintiff should be regarded in cases like this, as the moving 
 party and was therefore entitled to open and close the 
 argument. 
 
1858.] NIJW YORK. 289 
 
 N. Y. and Harlem R. R. Co. »s. The Mayor, etc., of K. Y. 
 
 Mr. Charles W. Sandford and Mr. Charles 0' Conor, for 
 the plaintiffs. 
 
 Mr. David Dudley Meld and Mr. Greene C. Bronson, for 
 the defendants, the Board of Police Commissioners. 
 
 Mr. Richard Busteed and Mr. Gilbert Dean, for the defend- 
 ants, the Mayor, etc., of Ifew York. 
 
 Hilton, J. — The plaintiffs are a railroad company, incor- 
 porated by an act of the legislature, passed April 25th, 1831, 
 {Laws 1831, chap. 263, p. 323,) with power to construct a 
 railroad, or way, from Twenty-third street to the Harlem 
 river, and " to transport, take, and carry property and per- 
 sons upon the same, by the power and force of steam, of 
 animals, or any mechanical or other power, or of any combi- 
 nation of them, which the said company may choose to 
 employ." The act contains eighteen sections, most of which 
 are devoted to the manner in which the capital stock shall be 
 subscribed, and the right of way acquired upon the route, to 
 be fixed upon by the company, subject to the approval of the 
 common council of the city of New York. After provision is 
 made respecting these subjects, section sixteen further pro- 
 vides, that " nothing in this act shall be deemed to authorize 
 the said corporation to construct or use their railroad, or way, 
 across or along any of the streets or avenues, as designated on 
 the map of the city of New York, whether such streets or 
 avenues shall have been opened or not, without the consent of 
 the mayor, aldermen and commonalty of said city, who are 
 hereby authorized to grant permission to the said corporation 
 to construct their said railroad, or way, across or along said 
 streets or avenues, or prohibit them from constructing the 
 same ; and after the same shall be constructed, to regulate the 
 time and manner of using the same, and the speed with 
 which carriages shall be permitted to move on the same, 
 or any part thereof," etc. 
 
 On December 22d, 1831, the Mayor, Aldermen and Com- 
 monalty of the City of New York, upon the application of the 
 plaintiffs, adopted an ordinance permitting a railway, or track 
 to be laid down pursuant to thjs act, and in conformity with 
 
 19 
 
290 NIIW YORK. [Com. PI. 
 
 K. T. and Harlem E. R. Co. m. The Mayor, etc., of N. Y. 
 
 a map on file in the register's office. Section two of the 
 ordinance is to the effect, that if at any time after the con- 
 struction of the r&ilff&j, it shall appear to the Mayor, Alder- 
 men and Commonalty of the City of New York; that the rail- 
 ways, or any part thereof, constitute an obstruction or 
 impediment to the future regulation of the city, or the 
 ordinary uses of any street or avenue, (of which the mayor, 
 aldermen and commonalty should be the sole judges,) the 
 plaintiffs, or the directors thereof, shall on the requisition of 
 the said mayor, aldermen and commonalty, forthwith provide 
 a remedy for the same, satisfactory to the mayor, aldermen 
 and commonalty ; or if they fail to find such remedy, they 
 shall, within one month after such requisition proceed to 
 remove such railway or other obstruction or impediment, and 
 to replace the street or avenue in as good condition as it was 
 before the railway was laid down, etc. By section three, the 
 right of regulating the description of power to be used in pro- 
 pelling carriages on and along the railways, and the speed of 
 the same, as well as all other power, reserved to the said 
 mayor, aldermen and commonalty, by the act of incorpora- 
 tion of the plaintiffs was expressly retained and reserved. 
 By section eight it was declared, that the ordinance should not 
 be considered as binding on the common council, nor should 
 it go into effect until the plaintiff's first duly execute, under 
 their corporate seal, an instrument in writing, promising, 
 covenanting and engaging, on their part and behalf, to stand 
 to, abide by, and perform all the conditions and requirements 
 of the ordinance, such as the mayor and counsel to the board 
 should approve ; and, when so signed and approved, to be 
 filed with the comptroller. 
 
 On January 9th, 1833, the plaintiffs accordingly executed, 
 under their corporate seal, and filed with the comptroller an 
 agreement reciting the ordinance, and in consideration thereof, 
 and pursuant to its' requirements, covenanted, engaged, and 
 promised, on their part, to stand to, abide by, and perform 
 all the conditions and requirements contained in it. After hav- 
 ing thus obtained the consent of the corporation of the city, 
 the plaintiffs proceeded to, and did acquire, under their act of 
 incorporation the title to a strip of land twenty-four feet in 
 
1858.] N:EW YOBK. 291 
 
 N. Y. and Harlem R. R. Co. ®«. The Mayor, etc., of N. Y. 
 
 width in the Fourth avenue, extending from Twenty-third 
 street to the Harlem river, and upon which their track is now 
 laid. 
 
 Subsequently, and in 1848, the avenue was opened as a pub- 
 lic street, in the manner prescribed by law and by which it 
 appears the plaintiffs' title, thus acquired, was extinguished. 
 
 In December, 1844, and while the engine-house and steam 
 depot of the plaintiffs was located on the avenue at Twenty- 
 sixth street, the mayor, aldermen and commonalty adopted a 
 resolution or ordinance requiring the discontinuance of steam 
 power below Thirty-second street, prior to August 1, 1845. 
 This direction was not complied with until the fall of 1846, 
 when the plaintiffs removed their engine-house, machine- 
 shop, etc., to Thirty-second street upon the alleged suggestion 
 and assurance of the corporation of the city that the location 
 at Thirty-second street would be permanent, and not subject 
 to further interference. Under these suggestions and assur- 
 ances, it is alleged that the plaintiffs have constructed 
 improvements at the location named, at an expenditure of 
 upwards of «94,000. 
 
 On August 8, 1850, the mayor, aldermen and commonalty 
 adopted a resolution requiring the plaintiffs to construct an 
 arch over that part of their road which was laid in the trench 
 cut through the avenue at Murray hill, and extending from 
 Thirty-second to Forty-second streets. The plaintiffs were 
 induced, as they allege, to acquiesce in this measure, and make 
 the expenditure requisite to construct the arch, under assur- 
 ances made before the committee of the common council, that 
 such improvement would obviate all objections to the per- 
 manent erection of the depot at Thirty-second street. 
 
 After the arch had been completed in accordance with the 
 resolution, and on December 27, 1854, the mayor, aldermen 
 and commonalty adopted a resolution or ordinance in the fol- 
 lowing words : 
 
 " Resolved, That no locomotive or steam engine be allowed to 
 run on the tracks of the Harlem and New Haven Eailroad Com- 
 pany on Fourth avenue, south of Forty-second street, eighteen 
 months after the passage of this ordinance." I'he plaintiffs 
 neglected to conform to this requirement, and the Board of 
 
292 Ni:W YORK. [Com. PL 
 
 N. Y. and Harlem R, R. Co. vs. The Mayor, etc., of N. Y. 
 
 Commissioners of the Metropolitan Police District made an 
 order directing their superintendent to enforce it. The 
 plaintiffs rest their refusal to obey it on the ground that 
 the ordinance was passed in violation of their rights and fran- 
 chises, as granted by acts of the legislature ; claiming that it 
 is without' any legal or equitable authority to authorize its 
 passage ; and also that it is in violation of the aforesaid 
 agreement. 
 
 Upon a complaint embodying substantially the facts stated, 
 and alleging that the enforcement of the ordinance of Decem- 
 ber, 1854, would be ruinous to the business of the plaintiffs, 
 this court is asked to restrain the defendants from interfering 
 with the running of the steam engines of the plaintiffs or of 
 the New York and New Haven Kailroad Company, upon the 
 Fourth avenue to Thirty-second street. 
 
 lu opposition to this application, the defendants have fur- 
 nished affidavits showing that Murray hill and the lands adja- 
 cent to the plaintiffs' engine depot at Thirty-second street, 
 has become a thickly settled part of the city, and is used as a 
 place of residence by citizens who have erected there valuable 
 and expensive buildings; that the plaintiffs have placed their 
 rails on the sidewalk and carriageway of the avenue at Thirty- 
 second street, and use them with their cars and engines in 
 such a manner as to render that part of the avenue highly 
 dangerous to travelers on foot, or in their own vehicles, and 
 that the smoke, gas and noise resulting from the running of 
 locomotive engines on the avenue below Forty-second street, 
 creates a nuisance noxious and offensive to the neighboring 
 inhabitants, and materially interfering with the proper enjoy- 
 ment by them of their property. 
 
 Upon the argument, the counsel for the police commission- 
 ers presented two preliminary objections, which seem entitled 
 to attention. 
 
 First. That this court has no jurisdiction of an action of 
 this nature against the corporation of the city. 
 
 The jurisdiction of this court is partially defined by section 
 thirty-three of the Code of Procedure. It extends to actions 
 which relate to the determination in any form of a right or 
 interest in, and for injuries to, real property ; to actions of 
 
1858.] Ni:W YORK. 293 
 
 N. Y. and Harlem R. R. Co. m. The Mayor, etc., of N. Y. 
 
 partition and foreclosure ; to certain actions for the recovery 
 of a penalty or forfeiture imposed by statute ; and to actions 
 against public officers in certain cases ; also to all other 
 actions where the defendants reside, or are personally served 
 with summons, in the city ; or where one or more of .several 
 defendants, jointly liable on contract, reside or are personally 
 served with summons within the city ; and also to actions 
 against corporations, created by or under the laws of this 
 state, and transacting their general business, or keeping an 
 office for the transaction of business, within the city, or estab- 
 lished by law therein ; or created by the laws of any other 
 government, for the recovery of any debt or damages, whether 
 liquidated or not arising upon contract made, executed, or 
 delivered within this state, or upon any cause of action aris- 
 ing therein. Code, sees. S3, 123, 12^ ; Laws of I84.7, p. 279, 
 sec. 7 ; ibid, 185^., p. JfiJi.. The constitution, {^Art. 8, sec. S,) 
 also provides, that "all corporations shall have the right to 
 sue, and shall be subject to be sued, in all courts in like cases 
 as natural persons." 
 
 These provisions of law would seem decisive upon the ques- 
 tion ; and the decision of the Court of Appeals, in The Peo- 
 ple ex rel. Davis and Palmer vs. Sturtevant, 9 N. Y., 263, 
 so fully sustains the jurisdiction, that the point here taken 
 can scarcely be considered open for discussion. And it is 
 proper to add, that the counsel for the corporation not only 
 declined to present it, but expressly disclaimed it. 
 
 Second. It is objected that this court has no jurisdiction 
 to restrain the police commissioners; that they are state 
 officers, and comprise a board of state officers, and, against 
 such, an injunction can only be granted by the supreme court 
 at a general term. 
 
 In support of this view I am referred to chap. 488, Laws of 
 1851, p. 920. But upon reference to section two of that act, 
 it will be seen that the words "state officers," in the sense 
 there used, were only intended to include such as had been 
 theretofore so denominated ; and to designate those who were 
 immediately connected with the government of the state, and 
 in actions against whom it was the duty of the attorney gen- 
 eral to appear for and defend. Constitution of 18Jfi, art. 5, 
 
294 NEW YORK. [Com. PL 
 
 N. Y. and Harlem R. R. Co. m. The Mayor, etc., of N. Y. 
 
 see marginal note to section 1 ; Ohristman vs. Floyd, 9 Wend., 
 SJi^. The police commissioners are merelocal, district officers, 
 and are not state officers, within the proper meaning of the 
 term, as used in the act of 1851 ; consequently in a proper case, 
 they can be restrained by this court in the exercise of its 
 equity powers, in the same manner, and to the like extent, a& 
 other local or county officers. 
 
 These objections having been disposed of, I proceed to the 
 examination of the principal question : Whether the ordi- 
 nance intended to be enforced was passed in violation of pre- 
 vious agreements between the corporation of the city and the 
 plaintiffs, or of the rights or franchises granted to the plaint- 
 iffs by the legislature ; or without any legal authority ? 
 
 The legislative power and control of the corporation of the 
 city, over the streets and avenues within its limits, are very 
 extensive, and the only limitation upon them is, that they 
 shall be appropriated to no use or purpose which is not alike 
 free and common to all citizens and travelers. Everything 
 which tends to render the streets useful or convenient, for 
 the purposes of traveling upon them as common public high- 
 ways, is within the power of, and may be exercised by the cor- 
 poration. But as converting them to railroad purposes, and 
 permitting rail tracks to be laid upon them, to be used, by an 
 individual or an association, in the transportation of mer- 
 chandise and passengers for hire is a devotion of them to a 
 use exclusive in its nature and which, from its very character^ 
 cannot be alike common to all travelers ; hence the legislature, 
 in the act of incorporating the plaintiffs, gave to the corpora- 
 tion of the city express authority to grant permission to the 
 plaintiffs to construct their road across or upon the streets 
 over which their route might be laid. Davis vs. The Mayor, 
 etc., of New York, U N. Y., 606, 515, 617, 622, 62^; 
 s. c. 1 Am. St. -By. Dec, 236; Milhau vs. Sharp, 17 
 Barb., Ji35 ; s. c. 1 Am. St.-Ry. Dec, 111; Williams vs. 
 New Yorh Central Railroad Company, 16 N. Y., 97 ; 
 Attorney General, etc.. ofNetvYork vs. The Mayor, etc., of New 
 York, 3 Duer, 119-163; s. c. 1 Am. St.-Ry. Dec, 122-162. 
 Although the power to give this permission must be derived 
 from the legislature, yet its exercise does not in any way 
 deprive the corporation of its legislative control over the streets- 
 
1858.] NHW YOBK. 295 
 
 N. Y. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 
 in all other respects, and it is entirely competent to impose, 
 upon the parties asking permission, such restrictions as the 
 corporation may think proper in regard to the manner in which 
 the rail track shall be used, and also such conditions upon 
 which the right to continue the future use of the same road 
 may depend. 
 
 But apart from the restrictions imposed by the sixteenth 
 section of the act incorporating the plaintiffs, and the rights 
 expressly reserved to the corporation by the contract entered 
 into by the plaintiffs on December 22, 1851, upon obtaining 
 permission to lay their track, the corporation might at any 
 time regulate the manner of using and the motive power to 
 be used upon the track, whenever in its opinion the public 
 interests required such interference or regulation. 
 
 This regulating or legislative power of the corporation over 
 the streets partakes of the character of legislative sovereignty, 
 originally conferred by the charter of Governor Dongan in 
 1686, confirmed in 1730 by the Montgomerie charter and sub- 
 sequently by legislative grants ; it may well be doubted 
 whether the city can be wholly deprived of it even by an act 
 of the legislature itself. Certain it is, however, that the cor- 
 poration cannot surrender any part of it into the hands of pri- 
 vate individuals, or of a private corporation, without previous 
 legislative sanction, and any attempt by it to do so, without 
 such authority, would be utterly void. See cases cited supra. 
 
 In the present case, not only did the legislature abstain 
 from authorizing the corporation to grant the plaintiffs 
 any permission except to construct their railroad across or 
 along certain streets and avenues of the city, but, in addition, 
 recognized this regulating and legislative power of the corpora- 
 tion over its streets, by providing, that after the road should 
 be constructed under such permission, the titne and manner of 
 using the same, and the speed with which carriages should be 
 permitted to move on the same or any part thereof, should be 
 subject to it. The plaintiffs accepted their charter with this 
 restriction ; upon obtaining permission to lay their rails they 
 recognized it as such ; and by their agreement of January 9th, 
 1832, bound themselves to conform to it, and all the other 
 conditions required by them, by the ordinance of December 
 22, 1831. 
 
296 NUW YORK. [Com. PI. 
 
 N. Y. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 
 But it is contended that this agreement is not binding 
 npon the plaintiffs, because it attempted to transfer to the 
 •corporation the discretion Tested in the plaintiffs, by their 
 act of incorporation, and by which it is said that they alone 
 possess the right to determine the motive power to be used on 
 their road. 
 
 The answer to this is twofold : 1st. A party, applying to 
 a court for the application of its equitable powers, should 
 be held to the rule, "that he who seeks equity must do equity." 
 He should not be permitted to found his claim for relief upon 
 a permission contained in a contract, while he repudiates the 
 conditions and covenants entered into by him, and which 
 formed the consideration upon which the permission was 
 granted. Linden vs. Heplurn, 8 Sandf., 668; Willard Eq. 
 Juris., p. 3Ji.6. 
 
 2d. The agreement, for the reasons I have stated, was not 
 a transfer of the corporate power of the plaintiffs. The cor- 
 poration might grant or withhold its permission, and, if 
 granted, it had the right to impose upon it such restrictions 
 and conditions as would enable the mayor, aldermen and com- 
 monalty to so regulate the use of the plaintiffs' road as to pre- 
 vent it being an inconvenience to citizens and travelers. 
 Besides, as before stated, the plaintiffs accepted their charter 
 with this restriction upon their corporate power, and cannot 
 now be permitted to complain that it turns out to be more 
 burdensome or inconvenient than was at first anticipated. 
 
 Again : It is contended, that even admitting that the cor- 
 poration originally had the power, under the act incorporating 
 the plaintiffs, and the ordinance contained in the agreement 
 of January 9, 1833, yet by subsequent assurances to, and 
 agreements with the plaintiffs, and upon the faith of which 
 the plaintiffs had incurred large expenditures, and submitted 
 to great inconveniences, it has deprived itself of the right to 
 interfere in any way with the plaintiffs in their present use of 
 their road. 
 
 The answer to this is likewise twofold: 1st. There can now 
 exist no doubt that corporations, like individuals, maybe bound 
 by implied contracts, to be deduced by inference from corpo- 
 rate acts, without either a vote, writing or deed. Ex parte 
 
1858.] NBW YOBK. 297 
 
 N. Y. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 
 Peru Iron Company, 7 Cowen, 5Jfi; American Insurance 
 Company vs. Oakley, 9 Paige, Jfi6; Peterson vs. The Mayor, 
 etc., of New York. 17 N. Y., l^lfi. But in applying this rule 
 we must be careful not to violate other legal principles, such 
 as, that no act can be made valid which is without the power of 
 the corporation or the scope of its authority. Here, as we have 
 seen, the corporation could not deprive itself of its legislative 
 power over the streets, and prevent its hereafter regulating 
 their use by all persons, including the plaintiffs ; and any 
 attempt to do so by contract, either express or implied, would 
 not only be revocable at pleasure, but void. 
 
 2d. The papers read on this motion failed to convince me 
 that the corporation ever entered into any such agreements 
 as the plaintiffs claim ; or that their acts were such as would 
 lead me to infer any contract of the nature alleged. It is 
 quite probable the plaintiffs supposed, when they arched over 
 the trench from Thirty-third street to Forty-second street, that 
 they had put an end to all further interference with them in 
 the use of their steam engines above Thirty-second street ; 
 but if this act was based entirely upon such a supposition, the 
 court cannot give any relief founded upon it, though it may 
 have been entertained and acted upon in good faith. 
 
 Having, for the reasons stated, arrived at the conclusion 
 that the ordinance, which the plaintiffs ask to have the 
 enforcement of restrained, is valid, and one that the plaint- 
 iffs are bound to obey, it does not seem necessary to inquire 
 into the reasons which actuated the Mayor, Aldermen and 
 Commonalty of the City of ]!few York in adopting it, nor 
 would such an inquiry be proper, because courts are bound to 
 assume that, where a discretion is vested in a municipal body, 
 exercising functions of a legislative character, good reasons 
 existed for the adoption of a regulation or ordinance which 
 was the result of such a discretion. Oneida Common Pleas vs. 
 People, 18 Wend., 79-99. But, were it otherwise, it would 
 be sufficient to say that the affidavits presented by the defend- 
 ants go far to show that the use of steam engines at the 
 plaintiffs' depot at Thirty-second street constitutes a nuisance 
 to the neighborhood, and the constant running of engines 
 across the sidewalks, and the condition of the avenue at this 
 
298 Ni:W YORK. [Com. PL 
 
 JSr. Y. and Harlem R. R. Co. vs. The Mayor, etc., of N. Y. 
 
 point, produced by the plaintiffs' acts, constitute an obstruc- 
 tion to its free use by our citizens to such an extent as to call 
 for the adoption of the ordinance in question, and its enforce- 
 ment by the police commissioners. These may have been the 
 reasons which controlled the defendants in their conduct ; 
 but whether they were or were not, as I before remarked, it 
 is not my duty to consider, having determined the ordinance 
 in question to be within the power of the corporation to 
 adopt, and one that the police may properly enforce. 
 
 Although upon the argument it was deemed, by counsel on 
 both sides, necessary to inquire into the powers and duties of 
 the board of police commissioners, and the powers of a police- 
 man or constable, both at common law and under the broad 
 provisions of the metropolitan police act, 2 Laivs 1857, chap. 
 569, p. 200, it seems unnecessary that I should follow them, 
 after having arrived at the conclusion stated. It is enough to 
 state, that the duty of enforcing all the public ordinances of 
 the city, and especially those which are applicable to police or 
 health, sees. 5, 20, is imposed by law upon the board of police 
 commissioners, and to add that, upon the aflSdavits read on 
 this motion, the ordinance in question might very properly be 
 classed under either head. 
 
 I have abstained from inquiring whether, under the law 
 amendatory of the act incorporating the plaintiffs, passed 
 March 29, 1848, Laws of 18^8, chap. 143, p. 2S8, the New 
 York and New Haven Railroad Company acquired any greater 
 rights in respect to the use of the plaintiffs' track than is 
 possessed by the plaintiffs, because that company is not 
 before the court as a party to this action. But if the views I 
 have here stated are correct, it is difficult to perceive wherein 
 their position, under the ordinance in question, differs materi- 
 ally from that of the plaintiffs. 
 
 The motion for injunction is denied. * 
 
 * Subsequently the New York aad New Haven Eailroad Company applied to the 
 United States Circuit Court for an injunction like the one asked for in this case and 
 against the same defendants. Substantially the same facts were presented on the 
 motion and after hearing the parties the application was denied by Judge Nelson, in 
 August, 1858. The case is reported in k Slatchford, 19S. 
 
1858.] PENNSYLVANIA. 299 
 
 Thomas vs. The Citizens' Passenger Railway Co. 
 
 THOMAS vs. THE CITIZENS' PASSENGER RAIL- 
 WAY COMPANY, and AMOS ELLIS and others. 
 
 NISI PBIUS. 
 
 16 Legal Intelligencer, 189. 
 
 The general railroad act of July 19, 1849, is opposed to monopolies. 
 The policy of the act is to prevent condensations of the stock into a few 
 hands. 
 
 The discretionary power vested in commissioners appointed under 
 the act, to accept or reject proposals for stock subscriptions of a horse 
 railroad company, was properly exercised when the commissioners 
 rejected a proposal made by one person, to subscribe for 5,000 shares of 
 the stock, the capital stock being 10,000 shares. 
 
 One who proposes to subscribe for stock in a horse railroad company 
 as " Trustee," must disclose the cestui que trust, or the commissioners 
 may properly refuse the subscription. 
 
 Motion for injunction, and petition and suggestion for 
 mandamus. 
 
 The bill sets forth the incorporation of the company with 
 capital stock of 10,000 shares at $50 each, and that the co-de- 
 fendants were commissioners authorized to receive subscrip- 
 tions thereto ; that upon the opening of the books for that 
 purpose, the complainant by his attorney, subscribed for 5,000 
 shares, as follows : "William Schott, Trustee, residence No. 10 
 South Thirteenth street, 5,000 shares," and tendered the 
 sum of $35,000 as the first instalment of $5 per share, and 
 that defendants refused to receive the subscription, although 
 there was a greater number than 5,000 shares remaining 
 unsold at the time. 
 
 The answer admits the incorporation and subscription, but 
 claims more than clerical and ministerial duties for the com- 
 missioners, and that they, while acting in good faith, may 
 and by law can exercise a discretion as to the manner of taking 
 the amount of shares, and persons who may be permitted to 
 subscribe thereto. And alleges further that this subscription 
 and that of five shares previously made by one Ridgway were 
 intended to monopolize the control of the affairs of the 
 company for the benefit of another of similar character of 
 which complainant is president, and denies that the offer 
 
300 PENN8YLYANIA. [Sup. Ct. 
 
 Thomas vs. The Citizens' Passenger Bailway Co. 
 
 of bank bills and of a check marked " payable in gold, at the 
 United States Mint," was a legal tender. 
 
 Pending the hearing, the necessary amount of stock having 
 been subscribed, letters patent were issued by the governor, 
 and complainant files a supplemental bill, embracing as 
 defendants the ofl&oers elect of the company and the subscri- 
 bers to the stock. 
 
 Mr. William RotcJi Wistar and Mr. William L. Hirst, for 
 the complainant. 
 
 Mr. Stephen Benton, Mr. St. George Campbell and Mr. G. 
 M. Wharton, for the defendants. 
 
 The opinion of the court was delivered by: 
 
 Woodward, J. — The plaintiff complains that the commis- 
 sioners appointed to open the books and receive subscriptions 
 to the capital stock of the Citizens' Passenger Eailway Com- 
 pany, declined to recognize a subscription which he caused to 
 be made on the 31st of April, 1858, in the name of William 
 Schott, as trustee, for 5,000 shares. 
 
 The capital stock of the company was fixed by law at ten 
 thousand shares, at fifty dollars each. Schott's subscription 
 was for one-half of the whole Capital, and in connection with 
 the subscription of Jacob E. Eidgway, who accompanied him 
 to the office of the commissioner, and subscribed at the same 
 time for five shares, would have vested the efficient control of 
 the company in the holders of this portion of the stock. 
 
 The commissioners acted under the provisions of our gen- 
 eral railroad law of 19th July, 1849. The policy of that enact- 
 ment is opposed to monopolies. It makes railroads incorpo- 
 rated under it, public highways for purposes of travel and 
 transportation, and it throws open the stock of new roads to 
 the public in the fullest and fairest manner. 
 
 If railroad stocks are desirable there is no reason why one 
 man should not have a chance to subscribe to them as well as 
 another. The best possible basis of any such enterprise is a 
 widely diffused subscription to the stock. By enlisting the 
 interests and sympathies of the community in general through 
 which the railroad is to be built, a local guardianship is pro- 
 
1858.] PENN8YLTANIA. 301 
 
 Thomas vs. The Citizens' Passenger Railway Co. 
 
 vided along the whole line ; waste and mismanagement are 
 sooner detected and repressed, and the public favor, without 
 which no enterprise, individual or corporate, can prosper, is 
 more readily conciliated and steadfastly retained. The policy 
 of the law, therefore, is to prevent condensations of the stock 
 into a few hands. 
 
 Accordingly, the first section of the act provides that the 
 commissioners shall give notice of the time and place of open- 
 ing the books of subscription. And' at that time and place, 
 two of them at least, shall attend and "furnish to all persons 
 duly qualified, who shall offer to subscribe an opportunity of so 
 doing, and it shall be lawful for all such persons, and for all 
 firms and copartnerships, by themselves or by persons duly 
 authorized, to subscril^e for shares in said stock." 
 
 This section invests the commissioners with large discretion- 
 ary powers. They are to determine when and where the books 
 shall be opened, in what newspapers the twenty days'" notice 
 shall be published, and what persons are duly qualified to 
 subscribe. 
 
 Abuses of these powers may be corrected by judicial pro- 
 ceedings, but that cannot be deemed an abuse of their dis- 
 cretion which keeps the books open to the public, and pre- 
 vents one man from controlling through a single subscription, 
 a full moiety of the whole stock. If one man may take half 
 the stock, another may take the other half, and would this be 
 furnishing all persons duly qualified an opportunity to sub- 
 scribe ? To permit such a disposition of the stock to be made, 
 before a full and fair opportunity had been given to the uni- 
 versal public, would be a palpable violation of both the spirit 
 and letter of the enactment. These commissioners did no 
 more nor less than they were bound to do in setting aside 
 Schott's subscription. Whether it was an attempt to seize 
 upon the stock for purposes inconsistent with the charter, or 
 to monopolize the anticipated profits, is quite immaterial ; it 
 was the duty of the commissioners to frustrate it. The 
 books had been opened on that day for the first time, some 
 1,400 shares had been subscribed, no large subscription had 
 been offered or received, and many citizens along the line of 
 the projected road would not have had the opportunity to sub- 
 scribe at all if Schott's subscription had been received. 
 
302 PE'SNSYLVANIA. ' [Sup. Ot. 
 
 Thomas vs. The Citizens' Passenger Railway Co. 
 
 The terms in which he made his subscription were objec- 
 tionable also as well as the amount. 
 
 It turns out now that he did not disclose that in the terms 
 of his subscription. He called himself " trustee," but for 
 whom ? 
 
 It was important that the commissioners should know for 
 whom he was subscribing, that they might judge of qualifica- 
 tions of his constituents. And besides, if he was acting in a 
 representative capacity he was bound to disclose his creden- 
 tials that they might see that he was "duly authorized." 
 
 It was agreed that the word trustee meant nothing, and 
 that Schott, who is a responsible man, was personally bound. 
 If this were so, what reason, it may be asked, has Mr. Thomas 
 to complain that Schott's subscription was not received ? If 
 it was indeed a subscription on his own account, for which he 
 alone was to be responsible, he alone has a right to complain 
 of its rejection. 
 
 But the plaintiff's bill is founded on the allegation that the 
 subscription was made for Mm, that he was the cestui que 
 trust of Schott. Then the commissioners had a right to know 
 it ; they were bound to pass on Thomas's qualification and on 
 Schott's authority. If there was no other reasons, the sup- 
 pression of this necessary information would have been 
 adequate ground for rejecting the subscription. 
 
 I see nothing in the conduct of the commissioners of which 
 the plaintiff has cause to complain. 
 
 The policy of the statute to which I have alluded is pecu- 
 liarly applicable to these passenger railways. They are con- 
 structed on ground already graded, occasion but a small 
 outlay to the proprietors and promise large rewards. If they 
 wrong anybody it is the inhabitants of the streets through 
 which they run, and the whole of that population ought for 
 their own sakes, as well as for the good of the road, to have 
 an opportunity to subscribe to the stock. The law secures 
 them this right, and the commissioners, in setting aside a 
 subscription that tended in any undue degree in its diminution, 
 were in the very line of their legal duties. 
 
 There are some technical difficulties in the way of the 
 injunction asked for, growing out of the full organization of 
 
1858.] PENNSYLYANIA. 303 
 
 Brower m. The Second and Third St. Pass. Ry. Co. 
 
 the company, and the letters patent issued by the governor ; 
 but in refusing the injunction, I rest my judgment, not on 
 these, but on the broad ground that such a subscription as 
 Schott made was properly I'ejected. 
 
 The motion for special injunction is denied. 
 
 Same plaintiffs vs. same defendants. Eule to show cause 
 why mandamus should not issue. 
 
 Woodward, J. — The reasons given above for refusing a 
 special injunction, are equally decisive against this rule, and 
 it is, therefore, discharged. 
 
 BROWER vs. THE SECOND AND THIRD STREET 
 PASSENGER RAILWAY COMPANY. 
 
 NISI PRIUS. 
 
 S PMla., 161; s. c. 15 Leg. Int., m. 
 
 Oommissioners, named in an act of assembly incorporating a railway 
 company, to open books for stock subscriptions, adopted a resolution 
 that no person should have the privilege of subscribing for more than 
 two hundred shares of stock on the first day. 
 
 Held, that the commissioners had discretionary power in the matter, 
 and that the measure was a proper one to adopt. 
 
 The complainant proposed to subscribe for twenty -six hundred 
 shares, and upon refusal of the commissioners to accept the subscription 
 asked for an injunction. 
 
 Held, that his offer to subscribe and his tender of the amount of the 
 first instalment gave him no equity, and that he had no standing in 
 court, as he made no offer of a subscription within the prescribed limits. 
 
 The commissioners could not lawfully take any subscriptions with 
 closed doors ; the law requires the books to be opened and the public 
 to have an an opportunity to subscribe ; but that whether the subscrip- 
 tions were properly taken or not, could not be inquired into in this pro- 
 ceeding. 
 
 The facts are stated in the opinion. 
 
 Mr. W. L. Hirst and Mr. W. R. Wistar, for the complainant, 
 
 Mr. John M. Read and Mr. Jos. P. Longhead, for the 
 defendants. 
 
304 PENISSYLYANIA. [Sup. Ct. 
 
 Brower m. The Seeond and Third St. Pass. Ry. Co. 
 
 STROj>iG, J.— As this case is now pi'esented upon bill, 
 answer and afiBdavits, I am unable to discover that the com- 
 plainant has any interest in the subject-matter of his bill, or 
 that he has any title to institute this proceeding in equity. 
 His complaint is that the defendants, who were designated by 
 an act of assembly commissioners to open books for stock sub- 
 scriptions, and to organize the Second and Third Street Pas- 
 senger Kailway Company, refused to permit him to subscribe 
 for twenty-six hundred shares of the capital stock of said 
 company. He complains also, that certain subscriptions were 
 made with closed doors before the books were opened to tlie 
 public, and that they were made by one of the commissioners 
 in the names of divers persons, without his having any author- 
 ity to make them. The prayer of the bill is that the commis- 
 sioners may be restrained by a special injunction from further 
 refusing to receive the complainant's proposed subscription ; 
 that it may be declared valid, and that they may be decreed 
 to vacate and annul all subscriptions made with closed doors. 
 
 The answer and affidavit show that on the day appointed 
 for opening the books for subscriptions to the capital stock of 
 the proposed company, the commissioners met at the place 
 appointed and adopted a resolution that no commissioner or 
 other person should have the privilege of subscribing for 
 more than two hundred shares of the stock on the first day. 
 
 I am of opinion that this resolution was such as the com- 
 missioners had power to adopt and to enforce. Their powers 
 and duties were defined by the provisions of the general rail- 
 road law, enacted February 19th, 1849. Purdon's Digest, 
 p. 126. 
 
 I concur fully with what was said by Mr. Justice Woodward 
 in the case of Thomas vs. The Citizens' Passenger Railway 
 Gompany, 16 Legallntelligencer, 189; s. c. 1 Am. St.-Ry. Dec, 
 299, in regard to the policy of this enactment. It is decidedly 
 adverse to a monopoly of the stock of any of the companies 
 that may be organized under it. It does not contemplate that 
 either the commissioners or any other person shall obtain pos- 
 session of the whole stock or even a majority of it. The cor- 
 porations created under the act were intended to be corpora- 
 tions aggregate, not sole. The duties of these corporations 
 
1858.] PENN8YLYANIA. 305 
 
 Brower w. The Second and Third St. Pass. Ey. Co. 
 
 are in a certain sense public duties, and it could not have 
 escaped the view of the legislature that their usefulness is 
 likely to be greatly enhanced by enlisting in their behalf the 
 interest of many individuals. Accordingly, the act of assem- 
 bly directs the commissioners to give at least twenty days' 
 notice of the time and place of opening the books ; to furnish 
 to all persons duly qualified, who shall offer to subscribe, an 
 opportunity for so doing, and to keep the books open six 
 hours a day for at least three judicial days, or until there 
 shall have been subscribed the whole authorized stock. If, at 
 the end of the three days, the stock shall not all have been 
 subscribed, the commissioners are authorized to adjourn, but 
 are required again to give notice of the time and place of 
 adjournment. Why all this, if the legislative intention was 
 not to throw open fully to the public the privilege of sub- 
 scribing to the stock ? What else is meant by requiring that 
 an opportunity shall be given to all qualified persons to sub- 
 scribe ? To carry out this legislative purpose seems to me to 
 have been the principal object of the appointment of commis- 
 sioners. Nor are they simply ministerial agents. They have 
 discretionary powers, and, in my judgment, they are acting 
 strictly within the line of their duty when they adopt meas- 
 ures to prevent any one individual from appropriating to him- 
 self the whole or even a controlling majority of the stock of 
 the company proposed to be organized. I must hold, there- 
 fore, that when the complainant offered to subscribe, neithei- 
 he nor any one else had a right to take more than two hun- 
 dred shares. The resolution adopted by the commissioners 
 embraced and controlled his case as well as that of all others. 
 It follows, that when he proposed to subscribe for twenty-six 
 hundred shares, which was more than half of the whole stock 
 of the company, it was not in the power of the commissioners 
 to receive his subscription, and he had no right to insist that 
 they should, and this is equally true whether there remained 
 at that time so much stock untaken or not. His offer to sub- 
 scribe that number of shares, coupled as it was with the tender 
 of thirteen thousand dollars, the amount of the first instal- 
 ment, gave him no equity, and upon that offer he has no 
 standing in court. He made no offer of a subscription within 
 the prescribed limits, and none was refused. 
 
 20 
 
306 PENN8YLYANIA. [Sup. Ot. 
 
 Brower vs. The Second and Third St. Pass. Ry. Co. 
 
 This disposes of all which is necessarily involved in the case, 
 for if the plaintiff has no equity, it is useless to inquire 
 whether the subscriptions which the commissioner's did receive, 
 as it is averred, "with closed doors," be valid or not. Their 
 character cannot be determined under a bill flled by the plaint- 
 iff. To prevent misapprehension, however, I will add that 
 I am not to be understood as holding that any subscriptions 
 could lawfully be taken with closed doors. The law required 
 the books to be opened and an equal opportunity to be afforded 
 to all to subscribe. The rights of the commissioners to take 
 stock were no greater than those of the public generally. The 
 act of assembly designated them to open the books, receive 
 subscriptions, and organize the company; but in other respects 
 gave them no priority over such as are not commissioners. 
 The policy of the law would be as much violated by permit- 
 ting them to appropriate the whole stock to the exclusion of 
 others, as by allowing this to one who is not a commissioner. 
 The same limits must" be imposed upon their subscriptions as 
 are imposed upon the subscriptions of others. Perhaps it 
 would have proved a protection against possible favoritism 
 and even fraud in some cases, had commissioners to receive 
 subscriptions to the capital stock been treated as trustees, and 
 prohibited from subscribing for themselves until a full oppor- 
 tunity had first been given to others. But such has not been 
 the rule, and if adopted hereafter it should originate in the 
 legislature. 
 
 Kor do I express any opinion upon the controverted ques- 
 tion of fact, whether any subscription was taken with closed 
 doors. If the subscriptions were illegally received, and if the 
 letters patent of the company were unadvisedly granted, the 
 law affords a remedy, but the remedy is not that which the 
 plaintiff has selected. I have treated this case without 
 regard to the facts that the company has already been -organ- 
 ized, that the charter has been granted, that the powers of 
 the commissioners as such have ceased, and that consequently 
 the special injunction prayed for would not in any manner aid 
 the complainant. 
 
 I prefer to rest the case upon the general ground already 
 stated, that the complainant has no equity. 
 
 The motion for a special injunction is denied. 
 
1858.] H^EW YORK. 307 
 
 Wilbrand m. The Eighth Avenue R. R. Co. 
 
 FEANK WILBKAND, Plaintiff and Respondent, vs. THE 
 
 EIGHTH AVENUE RAILROAD COMPANY, 
 
 Defendants and Appellants. 
 
 GENERAL TERM. 
 
 le N. T. Biiperior Oowrt, {3 Bom.,) 314- 
 
 A city railroad company, having obtained the proper legal author- 
 ity to do so, constructed a railroad, and ran its cars thereon through the 
 streets of the city of New York. 
 
 Held, that the public, nevertheless had the right to drive upon and 
 across their track, but not so as to interfere with the business of the 
 company. 
 
 Plaintiff's wagon was struck by the pole of one of defendants' cars 
 going in the same direction, while plaintiff was driving in the car track 
 of the defendants and just as plaintiff was about to turn out of the 
 track. Plaintiff claimed not to know of the near approach of the car. 
 He was thrown out and injured and his wagon was broken. 
 
 Held, that if an individual sees fit to run his carriage or wagon upon 
 the rails, he is bound to exercise more care than he would in driving 
 upon the common pavement, to avoid collision. 
 
 Seld, further, that the company is entitled to the unrestricted use of 
 its rails, for the progress of its cars, within that limit of speed which 
 the law allows them ; and that as between them and the driver of any 
 other vehicle who may be upon their track, in front of one of their 
 cars, the latter, being unnecessarily there, must exercise more care than 
 he would if he were upon the common pavement, to see that an 
 approaching car is not impeded, and if through negligence *r wilfulness 
 on his part in this respect, a collision ensues, he should not have 
 damages against the company, even if the latter are also in fault.* 
 
 The case was tried in the Superior Court of the City of 
 New York before Mr. Justice Bosworth and a Jury on 
 October 20, 1857. The jury rendered a verdict for the plaint- 
 iff upon which judgment was entered and from which judg- 
 ment this appeal was taken. 
 
 The defendants are a corporation and obtained authority from 
 the city of New York and also from the legislature, to con- 
 struct a railroad through the Eighth ayenue and other streets 
 in the city for the purpose of carrying passengers thereon. 
 
 This action was brought to recover damages for injuries 
 
 *The principle herein expressed as to right of unrestricted use of its rails, by a 
 street railroad company, is afttrmed by the Court of Appeals in Adolph vs. Tlie 
 Central Park, North and East River Railroad Compomy, 76 N. T., 5S0. 
 
308 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Wilbrand m. The Eighth Avenue R. R Co. 
 
 received through the alleged negligence of the defendants' 
 servants in driving the horses and car of defendants against 
 the wagon of the plaintiff while he was traveling through 
 Eighth avenue by reason of which he was thrown out and suf- 
 fered great bodily harm and his wagon was broken, etc. 
 
 The answer denied the plaintiff's allegations, and alleged 
 that the accident, if any, was and the results were due to the 
 plaintiff's own negligence. 
 
 The plaintiff testified that he drove out of one of the streets 
 that intersect Eighth avenue and into that avenue and drove 
 upon the railroad track, that immediately in front of him 
 was a lumber wagon which was also on the railroad track ; 
 that he did not see any car coming up the avenue ; that he 
 did not look to see if any car was coming and that if he had 
 looked he could have seen the car coming ; that he was driv- 
 ing as close behind the lumber wagon "as the pole of his 
 wagon would let him ; " that he was driving at the rate of at 
 least five miles an hour, when after passing a few streets, the 
 lumber wagon turned off the track to the right ; this caused 
 him to stop, and he also turned to go off to the right ; just 
 then he heard some one cry out "halloo," and immediately 
 his wagon seat was struck by the tongue of a car on the track 
 behind him and he was thrown out and his wagon broken ; he 
 had not seen the car at all ; that the reason the wagon seat 
 was hit was because the pole of the car was thrown upwards 
 when the driver of the car endeavored to stop its progress, when 
 the plaintiff paused to turn out ; that his wagon would not have 
 been hit if the lumber wagon had not been there, or if it had 
 continued up the avenue ; that he had not time to drive a foot 
 after he heard the cry of warning ; that immediately he heard 
 the cry, he commenced to turn his wagon, but the hind wheels 
 were on the track. Eighth avenue is 100 feet wide and the 
 carriageway on each side of the track is twenty feet wide ; 
 both these facts were admitted. No evidence was given that 
 the car was being driven faster than the legal rate of speed. 
 
 The defendants made a motion to dismiss the complaint 
 upon several grounds, these being among them : 1st. That 
 there was no evidence of negligence on the part of the defend- 
 ants ; and 2d. That the injury was caused by plaintiff's own 
 negligence. 
 
1858.] NJEW TOBK. 309 
 
 Wilbrand vs. The Eighth Avenue R. R. Co. 
 
 The court denied the motion ; and the defendants ex- 
 cepted. 
 
 After the summing up by the respective counsel, the judge 
 charged the jury, among other things, as follows : 
 
 "The fact that the plaintiff was driving on the railroad 
 tracks of the defendants, was not such a wrong or fault on his 
 part as will prevent his recovering in this action, if he was 
 injured by the carelessness or negligence of the driver of the 
 car, without any negligence on the part of the plaintiff, which 
 contributed to produce the injury. 
 
 ." If an injury is produced by the concurring negligence 
 of the party injured, and of a third person, the one who is 
 injured cannot recover. 
 
 " It was the plaintiff's duty to turn off the track, so as not 
 to interfere with the cars making their trips, or making them 
 within the time required by the articles which prescribe how 
 often they shall be run. 
 
 " But if the driver of the car should see a cart on the track, 
 and that the driver of the cart did not mean to turn off, the 
 driver of the car would have no right to run deliberately into 
 or against the cart. For such improper conduct of a person 
 on the track, other redress should be sought. 
 
 " If there was negligence in the plaintiff in the management 
 of his wagon in turning off the track, which contributed to 
 the collision, and if there would have been no collision had 
 there been no carelessness in that respect on his part, then he 
 cannot recover. 
 
 " But if he would have been run into if he had not turned 
 off, and if there was no negligence in the mode of managing 
 his cart which contributed to the injury, and if it was pro- 
 duced by the negligence of tlie driver of the car, the plaintiff 
 may recover. 
 
 " Although the plaintiff did not look back, and therefore 
 did not see the car, (if you shall believe that to be the fact,) 
 yet if you believe that by the exercise of ordinary care on the 
 part of the driver of the car, either by slackening his speed or 
 applying his brakes, there would have been no injury, the 
 defendants would be liable, if there was no other fault on the 
 part of the plaintiff than mere negligence in not seeing the 
 
310 NJEW YORK. [N.Y. Sup'r Ot. 
 
 Wilbrand vs. The Eighth Avenue R. R. Co. 
 
 car until it was too late to get out of its reach, so as to avoid 
 being injured by it." 
 
 The judge also gave instructions to the jury in relation to 
 the rules which were to govern their determination of the 
 damages due the plaintiff in case they should find for him. 
 
 The defendants' counsel then requested the judge, among 
 other propositions, to charge : " That from the fact of the 
 'plaintiff having driven his wagon upon the railroad track in 
 front of the cars, and continuing thereon without any appar- 
 ent necessity, he was bound to use more care and diligence, 
 and keep a better look-out than he would have been if he had 
 not been on the track, that he might avoid any collision." 
 
 The judge declined to do so, on the ground that, the matter 
 was properly presented to the jury, in his charge as made, 
 and the defendants' counsel then excepted. 
 
 No exception was taken to the charge as made. 
 
 The jury rendered a verdict for the plaintiff for $250, dama- 
 ges, and the defendants appealed from the judgment entered 
 on the verdict. 
 
 Messrs. Mott and Gary, for the defendants and appellants. 
 Mr. Chauncey Shaffer, for the plaintiff and respondent. 
 
 By the Ooubt : Slosson, J. — We are inclined to think, that 
 the motion for a nonsuit might properly have been granted, 
 as the evidence introduced to show negligence on the part of 
 the defendants was very faint, and probably was quite as 
 pertinent to establish negligence on the part of the plaintiff, 
 as of the defendants. 
 
 But however this may be, we think the court should have 
 charged the first proposition, submitted by the defendants' 
 counsel. 
 
 The judge had charged, that if the plaintiff was not guilty 
 ■ of any greater negligence, than in not seeing the car until too 
 late to avoid the collision, still if the driver of the car, in the 
 exercise of ordinary care, by slackening hi^ speed or applying 
 his brakes, could have prevented it, the defendants would be 
 liable. 
 
 The defendants' counsel then requested the court to charge. 
 
1858.] NJEW YORK. 311 
 
 Wilbrand vs. The Eighth Avenue R. K. Co. 
 
 that from the fact of the plaintiff having driven his wagon 
 upon the railroad track in front of the cars, and continuing 
 thereon without any apparent necessity, he was bound to use 
 more care and diligence, and keep a better look-out, than he 
 would have been if he had not been on the track, that' 
 he might avoid any collision, which proposition the judge 
 declined to charge on the ground that the charge as already 
 made properly presented that matter to the jury. 
 
 The charge as made, was that it was not negligence in the 
 plaintiff, which would excuse the defendants, that the plaint- 
 iff did not see the car in time, the proposition which the 
 defendants' counsel requested the judge to charge was, that 
 from the unnecessary and voluntary position in which the 
 plaintiff had placed himself upon the defendants' track, he 
 was bound to keep a better look-out, than if he had not been 
 on the track. If this proposition is correct, and if the 
 plaintiff's not seeing the car in time was in consequence 
 of his not keeping a proper look-out, then it is apparent that 
 the charge was wrong, or that the proposition requested, 
 should have been also charged. 
 
 We think the proposition embodied in the request is a sound 
 one. The public have a right, undoubtedly, to drive upon 
 and across the track, but not'so as to interfere with the proper 
 business of the company, and if an individual sees fit to run 
 his carriage or wagon upon the rails, he is bound to exercise 
 more care than he would in driving upon the common pave- 
 ment to avoid collision. Other vehicles may turn out to avoid 
 him, coming or going either way, but a car can turn neither 
 to the right nor left, and if the rule contended for by defend- 
 ants' counsel be not true, and if the charge of the judge be 
 correct, then if the driver of a vehicle sees fit to place him- 
 self in front of a car in motion, and wilfully slackens his 
 own speed so as to delay the car, and impede its progress, and 
 restricts its speed within the time allowed by law, he could 
 recover damages in case of a collision, if the driver of the 
 car, in the exercise of ordinary care, either by retarding his 
 own speed or by applying his brakes, could have prevented the 
 injury. 
 
 We think such a rule would place our city ];ailroad com- 
 
312 PENNSYLTANIA. [Sup. Ot. 
 
 Faust m. The Second and Third St. Pass. Ry. Co. 
 
 panies &i the mercy of every obstinate or reckless driver in 
 the town, and would lead to disturbances and collisions 
 innumerable. 
 
 The true rule is, that the company is entitled to the unre- 
 .stricted use of its rails, for the progress of its cars, within 
 that limit of speed which the law allows them ; and that as 
 between them and the driver of any other vehicle who may 
 be upon their track, in front of one of their cars, the latter, 
 being unnecessarily there, must exercise more care than he 
 would if he were upon a common pavement, to see that an 
 approaching car is not impeded, and if through negligence or 
 wilfulness on his part in this respect, a collision ensues, he 
 should not have damages against the company, even if the 
 latter are also in fault. 
 
 We cannot say that if the request had been charged the 
 verdict would have been as it is. We think it might have 
 been the other way, and, therefore, feel bound to direct a new 
 trial. Costs to abide the event. 
 
 Ordered accordingly. 
 
 FAUST and others vs. THE SECOND AND THIRD 
 STREET PASSENGER RAILWAY COMPANY. 
 
 NISI PRins. 
 
 3 PMla., 164; s. c. 15 Leg. Int., SSI. 
 
 An unauthorized construction of a railway in the streets of a city is 
 a puUie nuisance, and will be restrained by injunction, by a court of 
 equity, at the suit of an owner of property on one of the streets of the 
 proposed route. 
 
 On the other hand as the highways of the state are under the absolute 
 control of the legislature, it may authorize the construction of a rail- 
 road along the line of any street, and when thus authorized, the road 
 cannot be deemed a nuisance ; and neither the local authorities, nor any 
 individual, can successfully interfere to prevent its construction. 
 
 The act of incorporation gave the city councils power, within a lim- 
 ited time, to disapprove by ordinance of the railroad and thus prevent 
 its construction ; the councils did pass an ordinance within the time, 
 the first section of which was a direct disapproval, but the second sec- 
 tion provided that the first section should be inoperative upon the 
 
1858.] P:ENNSYLTANIA. 313 
 
 Faust m. The Second and Third St. Pass. Ry. Co. 
 
 performance by the raUroad company of certain conditions therein 
 prescribed. 
 
 Held, that both sections of the ordinance were to be construed 
 together as parts of one whole, and that the ordinance was not a disap- 
 proval contemplated by the act of incorporation but rather a consent 
 that the road be constructed when the conditions were performed. 
 
 Held, also, that a compliance with the prescribed conditions, which 
 were, that the railroad company should enter into an obligation to obey 
 and submit to all regulations "in force and thereafter to be passed," by 
 the councils, was not a relinquishment of any of the franchises con- 
 ferred by the act of assembly upon the railroad company, as it would 
 be a legal impossibility for the councils to pass any ordinance incon- 
 sistent with the exercise of the corporate rights of the railroad company. 
 
 The city is a creature of the legislature with limited power, and 
 when it attempts to act beyond the limits of its conferred authority, its 
 acts are void. 
 
 The use of a street for a railway, whether the fee of the street is in 
 the adjoining owners or not, is not a " taking" of private property for 
 public use, within the meaning of the constitutional prohibition. The 
 ■damages to the private property are not direct but consequential. 
 
 Motion for a special injunction, heard on bill, answer and 
 affidavits on Saturday, June 26, 1858. 
 
 Mr. W. M. Meredith and Mr. B. Gerhard, for the complain- 
 ants. 
 
 Mr. John M. Read and Mr. Jos. P. Longhead, for the 
 defendants. 
 
 Steong, J. — The construction of a railway along the pub- 
 lic streets of a city, if unauthorized by law, is doubtless a 
 nuisance; and though a public one, it may be restrained by 
 injunction, at the suit of a private person who may suffer a 
 special injury thereby. It is true that ordinarily, in applica- 
 tions to prevent a threatened nuisance, the right of the com- 
 plainant ought to be established at law, or admitted, before 
 an injunction will be granted. But if the injury appre- 
 hended be great, and the danger imminent, or if the act' com- 
 plained of will occasion a constantly recurring grievance, an 
 injunction will still be granted, even though there be a pos- 
 sibility that the anticipated private injury may not result 
 from the erection; Mohawk Bridge Company vs. The Utica 
 
314 PENNSYLVANIA. [Sup. Ct. 
 
 Faust m. The Second and Third St. Pass. Ry. Co. 
 
 and Schenectady Railroad Company., 6 Paige, 55^.; Rowe vs. 
 Granite Bridge Corporation, 38 Mass., Sii. 
 
 Upon these principles, if the proposed construction of the 
 Second and Third Street Passenger Railway, be unauthorized 
 by law, the complainants have sufficient interest in the sub- 
 ject matter of their bill, to warrant their asking the inter- 
 position of this court to prevent the injury which the pro- 
 jected road threatens to them. They are the owners of 
 property fronting on Third street along which the defendants 
 propose to construct their railway, and the business con- 
 ducted upon their property requires frequent use of said street 
 by drays and other vehicles for the purpose of receiving and 
 sending away merchandise. The construction and use of a 
 passenger railway upon the street, would necessarily interfere 
 with the use of such drays and vehicles, render the transac- 
 tion of business at the complainants' stores much less con- 
 venient and economical, and as the proofs show, impair the 
 value of their property. It cannot be denied that this is an 
 injury beyond that of the public generally, one peculiar to 
 the plaintiffs, and sufficient to entitle them to the preventive 
 interposition of this court, unless it appear that the defend- 
 ants have a legal right to construct their railway as they pro- 
 pose to do. 
 
 On the other hand, if the defendants are acting within 
 their authority, if what they threaten be authorized by law, 
 then there is no equity to interfere. A railroad built by 
 authority of law, is not a nuisance, and therefore can work 
 no legal injury, either to the public, or to any private indi- 
 vidual. It may occasion inconvenience or loss, it may depre- 
 ciate the value of property, and render its enjoyment uncom- 
 modious and almost impossible, yet this is " damnum absque 
 injuria." It is no wrong which the law can redress. It is 
 essential to a nuisance, either public or private, that it be a 
 thing done or suffered contrary to law. 
 
 It is unquestionably true, that all the public highways in 
 the state, whether county roads or streets in incorporated 
 boroughs and cities, are under the absolute dominion and 
 control of the legislature. Though usually subjected to the 
 regulation of local authorities for certain purposes, yet the 
 
1858.] PENNSYLVANIA. 315 
 
 Faust ««. The Second and Third St. Pass. Ry. Co. 
 
 power of the legislature ever remains paramount, to direct 
 the mode of their use, whether hy carriages, railway cars, or 
 other means. This doctrine was broadly asserted in the case 
 of The Philadelphia and Trenton Railroad Company, 6 
 Whart., 25, and it has often been reasserted. 
 
 The principle is that the state is the universal trustee, that 
 every highway belongs to the people, the whole people, and 
 that the state, acting through the legislature, may dispose of 
 it at pleasure. It may restrict its use, change the mode of 
 use, and, as is said, take away its use altogether. The last 
 mentioned exercise of power, however, must be understood as 
 relating only to the public use. If one lays out a town, dedi- 
 cates certain avenues to public use, an(^ sells lots, the descrip- 
 tions of which call for those avenues as boundaries, there is a 
 contract between the grantors and grantees that the latter 
 sliall have the use of two avenues as passageways to and from 
 their lots. The paramount authority of the public over the 
 highways, attaches, but although the legislature may vacate 
 the streets as public highways, the right of the lot-holders, 
 secured by their contract, remains unimpaired. But the 
 power of the state to direct how a highway shall be used by 
 the public, is supreme, and unrestricted by any right of an 
 individual lot-holder, whose property may front upon the 
 streets. A legitimate deduction from this absolute dominion 
 of the state, is that the legislature may authorize the con- 
 struction of a railroad along the line of any street. When 
 thus authorized, the road cannot be denominated a nuisance, 
 and neither the local authorities nor any individual to whom 
 it may work special inconvenience, can successfully interfere 
 to prevent its construction. Nor can this court interfere, 
 even though it may think the power was injudiciously 
 granted. 
 
 The defendants aver that they have legislative authority to 
 construct the railway of which the plaintifEs complain. The ' 
 act of assembly which enables the incorporation of the defend- 
 ants, was passed on the 10th of April, 1858. It grants to 
 them the privilege to build a railroad along Third street in 
 the city of Philadelphia, as they propose to build it, in front 
 of the lots of the complainants. But the fourth section 
 
316 PENNSYLVANIA. [Sup. Ot. 
 
 Faust m. The Second and Third St. Pass. Ry. Co. 
 
 enacted as follows : " That before the said railway company 
 shall commence to use the said streets, the consent of the 
 councils of the city of Philadelphia shall be first obtained, 
 and said consent shall be taken and deemed to have been 
 given, if said councils shall not within thirty days after the 
 passage of this act, by ordinance duly passed, signify their 
 disapprobation thereof, and the said councils may from time 
 to time, by ordinances, establish such regulations in regard to 
 said railway, as may be required for the purposes of paving, 
 repaving, grading, culverting, and laying gas and water-pipes 
 in and along said streets, and to prevent obstruction thereon," 
 etc. 
 
 The effect of this section was to give to the select and com- 
 mon councils of the city of Philadelphia, a veto upon the use 
 of the streets for a railway, to be exercised at any time within 
 thirty days from the passage of the act of assembly. Consent 
 of the councils was required, but that consent might be given 
 by silence and would be, unless within thirty days they should 
 disapprove by ordinance. 
 
 On the 10th of April, 1858, the city councils passed an ordi- 
 nance embraced in two sections, with a preamble ; after refer- 
 ring to the several acts of assembly which provide for the incor- 
 poration of these defendants, and other passenger railway 
 companies, the ordinance proceeds in the first section as 
 follows : " The Select and Common Councils of the City of 
 Philadelphia, do ordain, that in pursuance of the power and 
 authority in them vested by the said acts of assemby, councils 
 do hereby declare their disapproval of each and every of the 
 said acts of assembly in the above preamble mentioned, and of 
 the rights therein respectiVfely granted to ' The Philadelphia 
 and Gray^s Perry Passenger Railway Company,' ' The Second 
 and Third Street Passenger Railway Company of Philadel- 
 phia,' ' The North Branch Passenger Railway Company of the 
 city of Philadelphia,' 'The Fairmount Passenger Railroad 
 Company,' and ' The North Philadelphia Plank Road Com- 
 pany,' to occupy the streets and highways of the city of Phila- 
 delphia." 
 
 The second section of the ordinance is : " That if any com- 
 pany in the said preamble named, shall within ninety days 
 
1858.J PENNSYLVANIA. 317 
 
 Faust m. The Second and Third St. Pass. Ry. Co. 
 
 from the passage of this ordinance, and before such company 
 shall occupy any of the said streets or highways, file in the 
 office of the city solicitor a written obligation sufficient in 
 law to bind such company to observe and be subject to all 
 ordinances of the city in relation to passenger railways then 
 in force, and thereafter to be passed ; then the provisions of 
 the first section of this ordinance as to each and every such 
 company as shall file such written obligation as aforesaid, 
 shall cease to have effect." 
 
 By all recognized rules of construction, both sections of this 
 ordinance must be construed together as parts of one whole, 
 and the obvious meaning is to give consent to the construc- 
 tion of their railroad and occupation of the streets by any one 
 of the companies named, which should within ninety days file 
 in the office of the city solicitor, a written obligation legally 
 sufficient to bind such company to observe and be subject to 
 all ordinances of the city in relation to passenger railways 
 then in force, or thereafter or to be passed. 
 
 It has been argued on behalf of the complainants, that the 
 councils having in the first section expressed their disapproval 
 they had no power to attach a condition to it. Construing 
 the ordinance, however, as I do, as an entirety, I cannot but 
 regard the a,rgument as assuming what does not exist. The 
 condition is attached to consent, not to disapproval. If, then, 
 councils had no right to couple a condition with their assent, 
 the consent was absolute. And if this were not so, the acts 
 of assembly enacted that consent should be deemed to have 
 been given, unless councils should signify their disapprobation. 
 In fine, it gave full power to the defendants to occupy and 
 use the streets for the purposes of their railway, on condition 
 that the councils should not disapprove affirmatively within 
 thirty days. The power granted was to be annulled only by 
 an absolute disapproval. If then, the ordinance be, as is 
 contended, a conditional disapproval, and if the councils had 
 no power to make their disapproval conditional, it appears to 
 me it must be held that the privilege of defeating the legisla- 
 tive grant of power to the defendants has not been exercised, 
 and the power remains in force, for it is not from the ordi- 
 nance that the rights of the defendants come, but entirely 
 from the act of assembly. 
 
318 PJENN8YLYANIA. [Snp. Ot. 
 
 Faust m. The Second and Third St. Pass. Ry. Co. 
 
 It is, however, argued, and with more plausibility, that if 
 the ordinance be a consent by councils to the use and occupa- 
 tion of the streets upon the performance of a condition, yet 
 that the condition is precedent and incapable of being legally 
 performed. It is urged that a written obligation to observe 
 and be subject to all the ordinances of the city in relation to 
 passenger railways that may hereafter be passed, amounts to 
 an agreement to surrender a part or all of their corporate 
 franchises at the bidding of the councils, which the defend- 
 ants cannot do without authority from the legislature. As a 
 consequence of this, it is said they can give no obligation 
 sufficient in law to bind them to such observance and subjec- 
 tion ; and as consent to construct their railway is only given 
 to take effect after they shall have assumed such an obligation 
 sufficient in law to bind them, there is in reality no consent 
 at all. 
 
 I do not propose to discuss this question at length. It may 
 be admitted that no municipal or other corporation created 
 for public purposes, can, without legislative consent, either 
 assign away its corporate franchises, or bind itself not to exer- 
 cise any of the powers which have been conferred upon it. If 
 it could, it might thus defeat the very object of its creation, 
 and render itself incapable of discharging the duties which 
 the legislature imposed upon it. But I. do not regard the 
 obligation required by the second section of the ordinance, as 
 in any sense amounting to a relinquishment of any of the 
 franchises which the act of assembly has conferred upon the 
 defendants, or as equivalent to a covenant that any existing 
 power shall never be exercised. The councils of Philadelphia 
 have authority to pass ordinances respecting passenger rail- 
 ways, for certain purposes. It is given to them by the fourth 
 section of the act which provides for the incorporation of 
 these defendants. The corporate rights of the defendants are 
 made subordinate to this municipal power. An agreement to 
 obey such ordinances is an agreement to do precisely what the 
 defendants would be under obligation to do, without such 
 engagement. It may be unnecessary — entirely superfluous, 
 but, if given for a consideration, it cannot be said to be void. 
 Every man is under legal duty to obey the law. I know of no 
 
1858.] PENNSYLVANIA. 319 
 
 Faust vs. The Second and Third St. Pass. Ry. Co. 
 
 reason why he may not superadd to that legal duty the obliga- 
 tion of a contract liability. 
 
 But it is said that the councils may pass ordinances incon- 
 sistent with the exercise of the corporate rights of the defend- 
 ants, and restrictive of their chartered privileges ; and that 
 an agreement to observe such ordinances, would be a consent 
 to give up their power. To this I answer, this is supposing 
 a legal impossibility. The councils can pass no such ordi- 
 nances. They have no such pow er, and their legislative author- 
 ity can be enlarged by no agreement. Like the railway 
 company, the city is a creature of the legislature, with limited 
 power, and when it attempts to act beyond the limits of its 
 conferred authority, its acts are necessarily void. 1 am of 
 opinion, therefore, that the obligation required by the ordi- 
 nance as a condition of the consent of councils to the construc- 
 tion of the defendants' railway and to the use of the streets, 
 is an obligation to obey all such ordinances as the councils can 
 lawfully pass ; that it would impose no new duty upon the 
 defendants, and that it cannot be considered an agreement to 
 surrender or not to use any of their corporate powers. Regard- 
 ing it thus, I see nothing unlawful in it, and no reason why 
 such an obligation sufficient in law to bind the defendants 
 may not be given. 
 
 It remains only to notice one other reason which the com- 
 plainants urge in support of their prayer for an injunction. 
 It is that the use of the street for a railway, without previously 
 tendering or securing compensation for the injury and 
 damages which they may sustain, is in violation of their con- 
 stitutional rights. This argument is based upon the assump- 
 tion that constructing a railroad along Third street would be 
 taking their property for a public use. It is unnecessary now 
 to inquire whether the fee simple of the street, "ad medium 
 filum vice," is in them or not. In neither case is the act 
 proposed to be done a " taking " within the meaning of the 
 constitutional prohibition. It is only changing the mode of 
 use of a public highway. The damages which the complain- 
 ants fear are not direct but consequential. In the case of 
 The Philadelphia and Trenton Railroad Company, 6 Whart., 
 26, a similar question was presented. That was a case of a 
 railroad proposed to be laid upon a street, and the attempt 
 
320 PENNSYLVANIA. [Sup. Ot. 
 
 Faust vs. The Second and Third St. Pass. Ey. Co. 
 
 was resisted. GiBSOif, 0. J., in delivering the opinion of the 
 court said : " What then is the interest of an individual 
 inhabitant as a subject of compensation under the constitu- 
 tional injunction that private property be not taken by a cor- 
 poration for public use without it ? Even agreeing that this 
 ground extends to the middle of the street, the public have 
 a right of way over it. Neither the part used for the street 
 nor the part occupied by himself is taken away from him ; 
 and as it was dedicated to public use without restriction, he 
 is not within the benefit of the constitutional prohibition, 
 which extends not to matters of mere annoyance. The injury 
 of which he can complain is not direct but consequential. It 
 consists either in an obstruction of his right of passage, which 
 is personal; or in a depreciation of his property by decreasing 
 the enjoyment of it ; but no part of it is taken from him and 
 acquired by the company. The clause in the amended con- 
 stitution which narrows the former prohibition to a taking 
 of private property for a public use by a corporation, is to 
 receive the same construction; the word 'taken' being inter- 
 preted to mean taking the property altogether, not a conse- 
 quential injury to it— which is no taking at all. For compen- 
 sation of the latter, the citizen must depend on the forecast and 
 justice of the legislature." So also in Monongahela Navigation 
 Company Y&. Goons, 6 Watts and Serg., 101, it was held, "that 
 neither the state, nor a person artificial, or natural, acting by 
 his authority or command under a law which the legislature is 
 competent to make, is answerable for consequential damages 
 occasioned by a construction of a highway, further than hap- 
 pens to be specially provided." The same doctrine was held 
 in Henry vs. The Pittsburgh and Allegheny Bridge Com- 
 pany, 8. Watts and Serg., 85, and reiterated in Monongahela 
 Navigation Company vs. Coon, 6 Pa. St., 379-S82, and in 
 Mifflin vs. Railroad Company, 16 Pa. St., 182-193. 
 
 Such being the settled law of Pennsylvania, the complain- 
 ants in this case are not entitled to compensation or security 
 before the defendants can make use of the street. 
 
 Upon the whole, I see nothing that warrants any interposi- 
 tion to prevent by injunction, the construction of the railway 
 under the provisions of the act of assembly. 
 
 The motion for a special injunction is denied. 
 
1858.] FENN8YLYANIA. 321 
 
 Moore vs. The Green St. and Coates St. Pass. Ry. Co. 
 
 1). T. MOORE & CO. vs. THE GREEN STREET AND 
 
 COATES STREET PASSENGER RAILWAY 
 
 COMPANY. 
 
 S PMla., 210; s. c. 15 Leg. Int., 318. 
 
 The act incorporating the defendants provided that before the said 
 company should commence to use the streets of their route, the stock of 
 horses, etc., of the omnibus lines on said streets, should be purchased 
 by the company at a price to be assessed, etc. Part of the route of the 
 omnibus lines of the plaintiffs' was over a portion of only one of the 
 streets of defendants' route. 
 
 HeM, that as the language of the act was not clear, a reasonable doubt 
 existed as to whether all omnibus lines using any portion of the streets 
 of the defendants' route were to be purchased by them, and a prelimi- 
 nary injimction restraining the defendants from building their road, 
 would not be granted, especially, as the plaintiffs' remedy at law, was 
 f uU and ample. Every seeming violation of law and right, does not 
 entitle those applying for it, to a preliminary injunction. 
 
 The power of the Court of Common Pleas to interfere by injunction 
 rests mainly, if not solely, upon the clause of the act giving that court 
 equity jurisdiction, which empowers it to enjoin for the prevention 
 or restraint of the commission or continuance of acts, contrary to law 
 and prejudicial to the interests of the community or the rights of indi- 
 viduals. 
 
 By the Court : Allisos", J.— The bill filed in this cause, 
 prays an injunction, to restrain the defendants from com- 
 mencing to build or construct their passenger railway, along 
 the lines of Green street and Coates street, before they shall 
 have appraised and purchased from the complainants their 
 stock of horses, omnibuses, sleighs and harness, which are in 
 actual use by them, in maintaining their omnibus line, the 
 route of which is from the Exchange along Third to Chestnut 
 streets, west along Chestnut street to Twelfth street, north 
 along Twelfth street to Green street and thence west along 
 Green street as far as Twenty-second street. 
 
 The right to this injunction is based upon the following 
 clause of the third section of the act of April 1st, A. D., 1858, 
 incorporating the said passenger railway company: "And the 
 said company, before commencing to use said streets, shall 
 purchase, at the option of the owners, the stock of horses, 
 
 21 
 
322 PJENN8YLYANIA. [Phila.Oom.Pl. 
 
 Moore m. The Green St. and Coates St. Pass. Ry. Co. 
 
 etc., owned and used upon said streets, at the time of com- 
 mencing the said road, at a price to be assessed in the follow- 
 ing manner:" The act then provides for the appointment of 
 appraisers, one by the company and one by the owners, and 
 they to choose a third, whose duty is to appraise the said 
 stock and its value thus fixed, is binding and conclusive on 
 the parties. 
 
 The company resists this application on the ground, that 
 by a proper construction of the law they are not bound to pay 
 for this line of omnibuses before commencing to use the said 
 street, but admit their obligation for what are called : The 
 G-reen and Coates Streets Lines, the former of which runs 
 upon Green street from Third street to Twenty-second street. 
 
 Our power to interfere by injunction, rests mainly, if not 
 solely, upon that clause of the act giving to this court equity 
 jurisdiction, which empowers us to enjoin for the prevention 
 or restraint of the commission or continuation of acts, con- 
 trary to law, and prejudicial to the interests of the commu- 
 nity or the rights of the individuals. If it can be established 
 that the refusal of the defendants to appraise the stock of the 
 line, the route of which is upon G-reen, Twelfth and Chestnut 
 streets, then have the complainants made out a case, which 
 requires the summary interposition of the strong arm of this 
 court. In support of their application, a large mass of testi- 
 mony has been produced in the shape of affidavits of residents 
 and property-holders, residing along or near to the line of 
 Green street, west of Twelfth, which, uncontradicted as it is, 
 establishes the fact, for all the purposes of the pending issue, 
 that this line was established for the accommodation of the 
 inhabitants of that section of the city. It was at the solici- 
 tation of some of those largely interested in the building up 
 of this neighborhood, that the complainants commenced to 
 run upon the route in question, and received from such per- 
 sons loans of considerable sums of money in aid ot the enter- 
 prise, with the view solely, of securing the permanent estab- 
 lishment of a line, that would reach the heart of the city, 
 by a more direct route, than that which carried its passengers 
 as far east as Third street. This fact may be taken as an 
 established, and uncontradicted fact in the cause ; this con- 
 
1858.] PENNSYLVANIA. 323 
 
 Moore vs. The Grreen St. and Coates St. Pass. Ry. Co. 
 
 ceded, is the way clear before us for granting the prayer of 
 the bill ? For if it is not, if, upon an examination of the 
 law which the complainants say has been, or is about to be 
 violated by the defendants, we hesitate, and if a reasonable 
 doubt interposes as to whether the right is a clear one, this 
 application fails. 
 
 Is the refusal of the defendant to appraise the stock of the 
 complainant upon this route, an undoubted violation of law ? 
 The language of the law is, that they shall purchase the omni- 
 buses, horses, etc., owned and used upon said street. If we 
 grant this application for a preliminary injunction we must 
 give to this language a construction, and, in so doing, must 
 decide that its undoubted meaning is, that the defendant shall 
 not only pay for the line known as the Green Street Line 
 proper, but also for the line which travels Green street no 
 further east than Twelfth street. To this proposition we are 
 not prepared to respond in the aflBrmative. We think there 
 is fair room for doubt, as to whether this is the true and 
 proper meaning of the law upon which this application rests. 
 Upon final hearing of the cause we might be able to concur 
 with the complainants, or we might not ; nor can we close our 
 eyes to the importance of the principle here involved, in ques- 
 tions which may hereafter arise whereby the rights of others 
 would be determined in advance. If the language of the act 
 of April 1st, 1858, was such as to leave no room for hesitation, 
 then indeed would this consideration be of no importance in 
 this cause, as if the line in question had been named in the 
 law, an injunction would be clearly the right of the com- 
 plainants ; for the violation of the law would then be clear, 
 and the rights of individuals would be thereby prejudiced. 
 But such is not the case before us. The obscurity of the act 
 consists in not defining whether it was intended to charge the 
 company only with payment for the line running almost the 
 entire length of Green street or whether it intended all lines 
 which used any portion of the street in the route, should be 
 taken by them at an appraised value. 
 
 At this stage of the cause we are not called upon to decide 
 doubtful questions of law, nor will every seeming violation of 
 law and right entitle those applying for it, to a preliminary 
 
324 NJEW YORK. [Sup. Ot. 
 
 Milhau ««. Sharp. 
 
 injunction. In this case the defendants are acting not for 
 .themselves alone, but as representing the rights of the stock- 
 holders of the company. There seems to be no reason to 
 question the good faith of this resistance to the demand of 
 complainants, and as it is at least doubtful whether their 
 defense be not a good one, the plaintiffs must be denied their 
 prayer at this time. This we do with less reluctance because 
 their remedy at law is full and ample. 
 
 MILHAU vs. SHARP.* 
 
 QESERAL TEBM. 
 
 S8 Barb., SS8;s. c. 7 Abb. Pr., nO. 
 Affirming If Barb., 436 ; s. c. 9 How. Pr., 102; 1 Am. St.-Bf'. Bee., 111. 
 
 Owners of lots, upon the public street of a city, may maintain an 
 action to enjoin the construction in such street of a railway, which would 
 be specially injurious to their property. 
 
 Where a nuisance occasions, or is likely to occasion, a special injury 
 to an individual, which cannot be compensated in damages, a court of 
 equity will grant the relief demanded. 
 
 This was an appeal from a judgment rendered at a special 
 term. The complaint filed by the plaintiffs, stated that they 
 were owners of lots on Broadway, in the city of N"ew York 
 with buildings erected thereon, and doing business therein. 
 That the defendants were about to construct a railway on 
 Broadway, without legal authority, and that such railway 
 would be specially injurious to them. The judge before 
 whom the case was tried at special term, found as matters of 
 fact : 1. That the plaintiffs are severally owners and occu- 
 pants of buildings fronting upon said streets and of the lots of 
 land upon which said buildings are erected, as particularly 
 set forth in the complaint, and have been such owners 
 and occupants for several years last past. 3. That the estab- 
 lishment of a railroad in Broadway aforesaid will be specially 
 injurious to the said property of the plaintiffs. Upon this 
 
 ~ *Afflrmed in 27 N. Y., 811; s. c. « Am. St.-By. Dec., 
 
1858.] NHW YOBK. 325 
 
 Milhau vs. Sharp. 
 
 finding a judgment was entered, perpetually enjoining and 
 restraining the defendants from entering into or upon said 
 street called Broadway, for the purpose of laying or establish- 
 ing a railroad therein under the grant referred to in the com- 
 plaint. The defendants appealed to this court, from that 
 judgment. 
 
 Mr. David Dudley Field, for the appellants. 
 
 Mr. G. G. Branson and Mr. J. Van Buren, for the 
 respondents. 
 
 By the Court : Davies, P. J. — The only question neces- 
 sary to consider on this appeal is, whether upon the facts 
 found, the plaintiffs can maintain this action, and if so, are 
 entitled to the relief which has been granted. 
 
 It appears to us that both of these points have been settled 
 in the affirmative, by the Court of Appeals, in the case of 
 Davis and others, vs. Mayor, etc., of New York, H N. Y., 
 606; s. c. 1 Am. St. -By. Dec., 235, a suit relating to this 
 same grant. It is true that other questions were presented 
 and argued in that case, and decided by the court, but it 
 seems to us that the points presented in the case, were also 
 presented and distinctly passed upon. 
 
 Denio, Ch. J., in delivering the opinion of the court in that 
 case, says : " It is well settled that when such an offense, (that 
 is, a nuisance,) occasions or is likely to occasion a special injury 
 to one individual which cannot well be compensated in damages, 
 equity wiU entertain jurisdiction of the case at his suit." 
 And he cites numerous authorities to sustain that position. 
 Wright, J., who delivered the dissenting opinion of the court, 
 manifestly concurred in this view of the law, for he says : 
 "Private persons could not interfere, except the act author- 
 ized, tended to the creation of a public or private nuisance 
 specially injurious to them, and from which they apprehended 
 a direct special damage." 
 
 In that case it was not proven that the plaintiffs were the 
 owners of lots on Broadway, and the superior court found, as 
 matter of fact, that the railway would not be a nuisance or 
 specially injurious to the plaintiffs. It is seen that the facts 
 
326 PENN8YLYANIA. [Phila.O,om.Pl. 
 
 Clark w. The Second and Third St. Pass. Ry. Co. 
 
 found in this case are entirely different, and it appearing here 
 that the plaintiffs are the owners of lots on Broadway, and 
 that the establishment of the proposed railway would be 
 specially injurious to their property, we must affirm the judg- 
 ment of the special term, on the authority of the Court of 
 Appeals in Davis and others vs. Mayor, etc.,of New Yorh, 
 above cited. 
 
 Judgment affirmed with costs. 
 
 HUGH OLAEK vs. THE SECOND AND THIRD 
 STREET PASSENGER RAILWAY COMPANY. 
 
 NISI PKins. 
 S PMla., S59 ; s. c. 15 Leg. Int., S57. 
 
 The footway of a public street or highway Is In no sense private prop- 
 erty and an Injunction will not be granted to the owner of the lot 
 adjoining the footway to restrain a railroad company from laying rails 
 across a portion of the footway. 
 I 
 
 The facts are stated in the opinion. 
 
 Allisok, J. — The complainant is the owner of a lot of 
 ground at the southeast corner of Germantown road and Oxford 
 street. Germantown road inclines to the west, the footway 
 at its extreme point of intersection with Oxford street, in 
 front of complainant's property, is of a width of about twenty 
 feet. The defendants in laying their road at this point of inter- 
 section, have constructed, or are about to construct the curve 
 by which they pass from Oxford street into Germantown road 
 over the extreme point of the footway, and to restrain such 
 construction this injunction has been asked. 
 
 The bill goes upon two grounds ; an alleged alteration of 
 the grade of the footways, and an appropriation of private 
 property by the company, without payment or security for the 
 damages which will be sustained by him, by the construction 
 of this road. 
 
 The latter ground may be dismissed by stating, that the 
 footway of a public street or highway, is in no proper sense 
 
1858.] PJENN8YLYANIA. 327 
 
 Clark vs. The Second and Third St. Pass. Ry. Co. 
 
 private property, no more than is that portion ol it appropri- 
 ated as a cartway. The marking off of a giren portion of a 
 street as a footway, is a mere local or municipal regulation of 
 property given by the owners or taken by due course of law as 
 a highway for the better accommodation of the public, who 
 have a right of unobstructed passage over it at all times. It 
 was admitted that the footway encroached upon had been used 
 for that purpose for upwards of twenty years ; the public had, 
 therefore, acquired a right by use or dedication, which the 
 owner could not take back, and having appropriated his prop- 
 erty to this purpose, he is without any standing in court as a 
 claimant for damages not inflicted upon his property, but if 
 at all, on the property of the public. 
 
 But the owner of a property fronting on a public highway 
 has a right to the interposition of a court of equity, to pre- 
 vent apprehended injury from a public nuisance, such as the 
 construction of a railroad in the street, contrary to law. The 
 bill charges that the footway in question is a part of the reg- 
 ulated footway of the former district of Kensington, as laid 
 out upon a plan made and confirmed under an authority given 
 by the act of the 6th of March, 18x10, incorporating the Ken- 
 sington district. The fact here stated may be admitted as 
 true, for it is not denied by the respondents, but it is also 
 true that this plan was superseded by an altered or revised 
 plan of this section of the city, confirmed by the act of April 
 2, 1848. An examination of this plan shows that this foot- 
 way no longer exists as a portion of the re'gulated footways of 
 the city ; that it is omitted from the plan of 1848, and that 
 Fourth street, as plotted thereon, when opened, will absorb 
 the entire lot of the complainant as well as this portion of the 
 footway of Germantown road and Oxford street. 
 
 It is true that over this portion of the highway as now 
 opened and used, the public have the right of passage until it 
 is taken for the purpose for which the law has appropriated it, 
 namely, for the bed of Fourth street ; but there is now no 
 legal regulation or grade at this point, except the grade of 
 Fourth street, and consequently there is no such violation of 
 law as is complained of in the bill filed. The company 
 appear to be constructing their road at this point within the 
 
328 PENNSYLYANIA. [Phila.Oom.Pl. 
 
 Cooper M. The Second and Third St. Pass. Ry. Co. 
 
 lines of Fourth street, as laid down and established by law, 
 the only highway which is here marked out by the act of 1848, 
 for its use as a footway must be surrendered whenever the 
 public open Fourth street at this point through the property 
 of the complainant. There is in the bill no allegation of an 
 alteration of the grade of Fourth street, so as to thus create 
 a nuisance in the public street, and for these reasons the 
 injunction must be denied. 
 
 JAMES E. COOPEE vs. THE SECOND AND THIED 
 STEEET PASSBNGEE EAILWAY COMPANY. 
 
 HISI PKIUS. 
 
 3 PMla., Z6Z; s. c. 15 Leg. Int., 351. 
 
 The act of the legislature incorporating a street railroad company, 
 provided that before commencing to use the railroad, the company 
 should purchase at an appraisement the horses, omnibuses, etc., owned 
 and used by omnibus lines on the streets through which the railroad 
 was to be operated. 
 
 Held, that this provision did not relate to an omnibus line that had a 
 route that connected the city and several villages and used the streets 
 only incidentally. 
 
 Held, also, that where the court has a doubt as to the right to the 
 injunction, the prayer of the complainant will not be granted. 
 
 The opinion contains the facts. 
 
 Allisoist, J. — The complainant rests his right to an injunc- 
 tion against the defendants, upon the allegation that he is the 
 owner of a line of stages or omnibuses, running between 
 JDock street and Germantown ; that the defendants, in the 
 construction of their railway from Third and Arch street, up 
 Third to Germantown road, and along Germantown road to 
 Oxford street, are using the same streets, formerly and now 
 used by him as a part of his omnibus route. The prayer is, 
 that the defendants may be restrained from running passenger 
 cars, or carrying passengers on their railway until they shall 
 first purchase from the complainant all the stock of horses, 
 omnibuses, sleighs, and harness owned and used by him on 
 
1858.] PJENN8YLYANIA. 329 
 
 Cooper vs. The Second and Third St. Pass. Ry. Co. 
 
 Third street and Germantown road, as he contends they are 
 required to do by the third section of their act of incorporation. 
 
 The defendants, by their answer set up that the line of 
 omnibuses owned by the complainant is more probably a line 
 of stages, which are used only, or mainly, for the transporta- 
 tion of passengers, from Germantown and the intermediate 
 Tillages, and the built up portion of the city and the trans- 
 portation of the United States mails between the Philadelphia 
 and Germantown post-offices, and that the complainant has 
 himself always so regarded them. It is also denied that the 
 business of the said line of stages or omnibuses will be inter- 
 fered with or hindered by the running of the respondents' 
 cars on Third street and Germantown road. 
 
 The object of the legislature, in requiring that, before com- 
 mencing to use the said road, the respondents should take, at 
 an appraisement, the horses, etc., owned and used on said 
 streets, doubtless was to compensate the owners of omnibus 
 lines, using the streets which should thereafter be occupied 
 by the railroad company for property which, it was supposed, 
 would thereby be rendered comparatively valueless to such 
 owners. The legislature, in passing the various acts of assem- 
 bly incorporating the several passenger railway companies of 
 the city, have unfortunately, not defined what is meant by the 
 term " omnibuses, etc., owned and used on said streets." Where 
 the route of a railway and that of an omnibus line are wholly 
 or mainly identical, and where there are no other lines using 
 portions of such streets, the question of the right to com- 
 pensation is comparatively free from difficulty ; but where 
 there are several lines of omnibuses, using portions only, and 
 it may be difEerent portions, of the route of a railway, the 
 question becomes one of more difficulty, one upon which we 
 may well pause upon an application for an interlocutory 
 injunction. This question came up in the case of Moore et al. 
 vs. The Green Street and Goates Street Passenger Railway 
 Company, S PMla., 210j s. c. 1 Am. St.-Ry. Dec, 821, in 
 which application we were asked to enjoin the defendants 
 until compensation was made to the complainants for their 
 omnibuses, etc., running up Chestnut, Twelfth and Green 
 streets to Fairmount. This we declined to do, regarding it as 
 
330 F:ENNSYLYANIA. [Phila.Oom.Pl. 
 
 Cooper vs. The Second and Third St. Pass. By. Co. 
 
 a doubtful question of law, which we were not required — per- 
 haps it would be more correct to say, were not permitted— to 
 decide, at that stage of the cause. For where a doubt as to 
 the right to the injunction exists, the prayer of the complain- 
 ant will not be granted. For the same reason, the injunction 
 here asked for might be refused ; for, by an aflBdaTit filed by 
 the defendants, in resistance of this application, it is asserted 
 there is a regular line of omnibuses for the transportation of 
 passengers, running over precisely the same route laid down 
 in the complainant's bill. 
 
 But it is not necessary to rest the decision on this ground 
 alone. As already stated, the respondents deny that this is, 
 in its proper sense, an omnibus line, alleging that it is more 
 properly a line of stages for the accommodation of persons 
 desirous of passing to and from the villages along its route 
 and the built portion of this city ; that its business is not that 
 of accommodation of local travel, along Third street and Ger- 
 mantown road to Oxford street ; that the use of such portions 
 of said streets is but auxiliary to its more proper and legiti- 
 mate business, and that such business will not he interfered 
 with or hindered by the running of the cars of the respondents. 
 If this be true, then clearly an injunction cannot now be 
 granted ; for this conceded or proved, in our judgment, places 
 the complainant without the pale of the law, whose aid and 
 protection he now invokes. We can see no other reason than 
 that already stated for the insertion of the provision relative 
 to payment for the stock of omnibuses, etc., owned and used 
 on said streets, as a condition precedent to the right of respond- 
 ents to run their cars on their road when finished. So far as 
 it affects this application, all that is set up in the answer, 
 must be regarded as proved, and this requires us to refuse the 
 motion for a special injunction. 
 
1858.] NEW YORK. 331 
 
 Button vs. The Hudson River R. R. Co. 
 
 MAKGAEET BUTTON, administratrix, vs. THE 
 HUDSON RIVER RAILROAD COMPANY. 
 
 18 K Y., m- 
 
 Plaintiff's intestate was seen lying across the defendants' track, and 
 while there, was run over by their horse cars and killed. How he came 
 there was not known ; but about five minutes before the accident he had 
 left a saloon seemingly intoxicated, and it was supposed that he had 
 stumbled and fell on the track. 
 
 Held, that if the deceased, while in a state of intoxication, had lain 
 down before the cars or had tumbled down, it was his negligence that 
 caused the disaster ; and if the driver of the cars did not see him, in 
 time to avoid him, the defendants were not liable. 
 
 The judge charged the jury in substance that the defendants were 
 liable unless the "negligence of the deceased directly contributed to 
 produce the catastrophe." 
 
 Beld, error, that they should have been told, that if the negligence of 
 the deceased, at the time of the accident, in any way concurred to pro- 
 duce it, the plaintiff could not recover. 
 
 Held, also, that the burden was upon the plaintiff to prove affirma- 
 tively, that the deceased was guiltless of any negligence proximately 
 contributing to the accident. 
 
 In actions of this kind negligence is not to be presumed ; and direct 
 evidence to disprove it is not required from the plaintiff, in the first 
 instance ; but where the testimony is conflicting as to the fact, the pre- 
 ponderance must be with the plaintiff, to enable him to recover. 
 
 Appeal from a judgment of the general term of the Supe- 
 rior Court of the City of New York, which affirmed a ,iudg- 
 ment entered on the verdict of a Jury, in favor of the plaintiff. 
 
 The action was brought by the administratrix and widow of 
 Thomas Button, for damages for the death of her husband, 
 who was run over and killed by the horse cars of the defend- 
 ant, passing down West street, in the city of New York, at 
 11 o'clock of the night of November 13, 1853. 
 
 Mr. Justice Slosson tried the case; and it was proved 
 that the intestate had been drinking at one or more dram 
 shops during the early part of the night of the accident ; about 
 five minutes after leaving one of them, which was in West 
 street, and near the track of the defendants' road, the cars 
 passed, and he was killed. His body was found lying straight 
 
332 NUW YORK. [Ot. App. 
 
 Button «s. The Hudson River R. R. Co. 
 
 across the track, the head upou one rail and the legs across 
 the other. The driver of the car which ran over the deceased, 
 testified that he was driving at the rate of four miles an hour ; 
 that he could see the leading horses and could have seen a 
 man if standing on the track ; that at the place where the 
 accident occurred, the leading horses suddenly jumped side- 
 ways from the track, and the driver, seeing something upon 
 the track, applied the brakes, but before he could arrest the 
 car, it had passed over the deceased. Other evidence was 
 given which tended to show, that the car was being driven at 
 a higher rate of speed than four miles an hour. 
 
 The judge charged the jury, that if there was negligence 
 on the part of the deceased, which directly contributed in any 
 degree, to bring about the catastrophe, then, although the 
 defendants might have been also guilty of negligence, the ver- 
 dict must be for the defendants. The defendants are liable only 
 in case the catastrophe was brought about by their own culpable 
 negligence, and without any negligence on the part of the 
 deceased directly contributing to it. The defendants excepted 
 to the use of the word " directly " in this part of the charge. 
 The judge also charged that if the deceased, strolling there, 
 while in a state of intoxication, lay down before the cars, or 
 tumbled down unable to support himself from intoxication, 
 then it was his negligence to which the disaster mtist be 
 attributed, and the defendants must go quit, if the driver 
 did not see him or see him in time to avoid him. The 
 defendants requested the judge to charge, that if the deceased 
 was under the influence of intoxicating liquor, and while in 
 that condition, got upon the track, and when there, was 
 incapable of hearing the approach of the car, or if he was 
 incapable, from any cause, of getting out of the way of 
 the car, with ordinary facility, then the deceased was guilty 
 of negligence, and the plaintiff cannot recover. The judge 
 refused to charge otherwise than as above stated, and the 
 defendants took an exception. The defendants also requested 
 the judge to charge that the plaintiff, in order to recover, 
 must establish affirmatively that the deceased was not guilty 
 of negligence. This the judge also refused, and the defend- 
 ants took an exception. Portions of the charge will also be 
 
1858.] Ni:W YORK. 333 
 
 Button vs. The Hudson River R. R. Co. 
 
 found in the opinion of Harkis, J., post. In answer to 
 questions submitted to them, the jury found specially : 1. 
 That the death of Button was caused by the negligence of the 
 defendants' servants ; 3. That there was no negligence on the 
 part of Button which directly contributed to the accident. 
 
 Mr. Charles 0' Conor, for the appellants. 
 
 Mr. Jonas B. Phillips, for the respondent. 
 
 Stkong, J. — Two points are made for the appellants. 
 First, that the justice, at the trial, erred in instructing the 
 jury, in substance, that negligence of the intestate, to prevent 
 a recovery, must have directly contributed to the injury ; and, 
 second, that the jtistice erred in refusing to charge that it 
 belonged to the plaintiff, in order to maintain the action, to 
 establish aflBrmatively that the intestate was not guilty of 
 negligence. 
 
 In regard to the first point, if there was any negligence on 
 the part of the intestate which contributed to the injury, it 
 consisted of imprudently entering or remaining on the track 
 of the defendants' road, and exposing himself to be crushed 
 and killed by a passing car, as actually happened. Upon the 
 evidence, there is nothing else in the case in respect to which 
 negligence by the intestate, tending to the injury, can be 
 imputed. And assuming that such was the negligence, its 
 influence towards the result was wholly direct ; nothing in 
 any way affecting it intervening between them. It was a 
 proximate cause of the consequence which followed . Whether, 
 therefore, as a general proposition applicable to all cases of 
 actions for injuries from negligence, the negligence of the 
 party injured, to preclude a recovery, must have directly con- 
 tributed to the injury, be sound or not, it would seem to be 
 free from objection as applied to the present case. The use 
 or omission of the word " directly," in stating the doctrine to 
 the jury in this case, if the jury possessed ordinary intelli- 
 gence, which must be supposed, could not make any practical 
 difference ; the negligence of the intestate, if any, could not 
 have operated as a cause of the result otherwise than directly. 
 
 The other point presents the question, upon whom was the 
 
334 NEW YORK. ■ [Ot. App. 
 
 Button V8. The Hudson River R. R. Co. 
 
 burden of proof, in reference to negligence of the intestate 
 conducing to the injury— whether it belonged to the plaintiff 
 to prove affirmatively the absence, or to the defendants to 
 prove affirmatively the presence of such negligence. 
 
 In regard to all the circumstances essential to the cause of 
 action, the plaintiff held and was required to sustain the 
 affirmative. Among those circumstances were, that the defend- 
 ants were negligent, and that the injury resulted from that 
 negligence. If the intestate was negligent, and his negli- 
 gence concurred with that of the defendants in producing the 
 injury, the plaintiff had no cause of action. The reason why 
 no right of action would exist is, that both the intestate and 
 the defendants being guilty of negligence, they were the com- 
 mon authors of what immediately flowed from it, and it was 
 not a consequence of the negligence of either. The court 
 cannot accurately, and will not undertake to, discriminate 
 between them as to the extent of negligence of each and the 
 share of the result produced by each ; neither, therefore, 
 could allege against the other any wrong, and without a wrong 
 there can be no legal injury. In this view, the exercise of due 
 care by the intestate was an element of the cause of action. 
 Without proof of it, it would not appear that the negligence 
 of the defendants caused the injury. The cases on this point 
 lead to the same conclusion. In Butterfield vs. Forrester, 11 
 East, 60, which was an action for an injury from an obstruc- 
 tion in a street, Lord Bllenborough said : " Two things must 
 concur to support this action — an obstruction in the road, by 
 the fault of the defendant, and no want of ordinary care to 
 avoid it, on the part of the plaintiff." In Harloio vs. Humis- 
 ton, 6 Gowen, 189, a similar case, Savage, Ch. J., said : 
 "Negligence by the defendant, and ordinaiy care by the 
 plaintiff, are necessary to sustain the action." The same 
 doctrine is stated in Ratlihtin vs. Payne, 19 Wend., S99 ; 
 Bush vs. Brainerd, 1 Gowen, 78 ; Hartfield vs. Roper, 21 
 Wend., 616 ; Brownys. Maxwell, 6' Hill, 592, and Spencer ^s. 
 The Utica and Schenectady Railroad Gompany, 5 Barb., 337. 
 In Holhrooh and wife vs. The Utica and Schenectady Rail- 
 road Gompany, 12 N. Y., 236, the plaintiffs sued for an 
 injury to the wife, while a passenger on the defendants' 
 
1858.] N:EW YORK. 335 
 
 Button ««. The Hudson River R. R. Co. 
 
 cars, and the question arose, whether the plaintiffs must 
 prove negligence of the defendants, in addition to the fact 
 of the injury ; and it was held that the onus as to negli- 
 gence, and that the injury complained of was Caused by 
 the defendants' negligence, was on the plaintiffs. In Massa- 
 chusetts, it has been adjudged in several cases that in an action 
 for an injury from negligence, the plaintiff must not only 
 prove negligence, but ordinary care on his own part. 
 Smith Y8. Smith, 19 Mass., 6B1 ; Lane ys. Cromlie, 29 id^ 
 177 ; Adams vs. Inhabitants of Carlisle, 38 id., 146 ; Parker 
 vs. Adams, S3 id., 4-15. In Maine and New Jersey the same 
 rule prevails. Eennard vs. Burton, 25 Maine, 39-49; Moore 
 vs. The Central Railroad Company, 24 N. J. L., 284. The 
 English decisions are to the same effect. Lynch vs. Nurdin, 
 1 Adolph. S EL, iV. S., 29-35; Clayards vs! Dethich, 12 id., 
 439-447; Cough vs. Bryan, 2 Mees. and Welsh., 770-773; 
 Bridge vs. The Grand Junction Railway Company, S id., 
 244-247, 248; Martin vs. The Great Northern Raihoay Com- 
 pany, 30 Eng. Law and Eq., 473. 
 
 It must not be understood that it was incumbent on the 
 plaintiff, in the first instance, to give evidence for the direct 
 and special object of establishing the observance of due care 
 by the intestate ; it would be enough if the proof introduced 
 of the negligence of the defendants and the circumstances of 
 the injury, prima facie, established that the injury was occa- 
 sioned by the negligence of the defendants ; as such evidence 
 would exclude the idea of a want of due care by the intestate 
 aiding to the result. Ordinarily, in similar actions, when 
 there has been no fault on the part of the plaintiff, it will suf- 
 ficiently appear in showing the fault of the defendant, and 
 that it was a cause of the injury ; and when it does so, no 
 further evidence on the subject is necessary. The fact must 
 appear in some way, but in what particular mode is unim- 
 portant. The evidence of it may be direct and positive or 
 only circumstantial. Whatever the nature of the evidence, if 
 there is any conflict as to the fact, there must be a preponder- 
 ance of proof in support of it, or the action must fail. 
 
 In cases like the present, it is often of great practical 
 importance that the jury be properly instructed as to the bur- 
 
336 N:EW YORK. [Ot. App. 
 
 Button m. The Hudson Eiver R. R. Co. 
 
 den of proof, in respect to the care required of the plaintiff 
 to entitle him to recover. The party holding it must do more 
 than make a balanced case on that point. The scales must 
 ultimately turn in his favor. In the present case it is quite 
 clear that the error in the instruction on that subject was a 
 material one, for which there should be a new trial. 
 
 In my opinion, the judgment should be reversed and a 
 new trial granted, with costs to abide the event. 
 
 Harris, J. — The verdict oi the jury was clearly against 
 evidence, even as the law was given to them by the judge who 
 presided at the trial. The deceased, when first seen after he 
 left Lyming's oyster saloon, was lying directly across the 
 track, with his head on one rail and his feet on the other. 
 How he came there, or how long he had been there, no wit- 
 ness was able to state. All that was proved was, that he had 
 been drinking at the oyster saloon, and had left there but a 
 few minutes before he was found in this position. In view of 
 this state of facts, the jury were told, very properly, that if 
 the deceased, strolling there while in a state of intoxication, 
 had laid himself down before the cars, or had tumbled down, 
 unable to support himself from intoxication, then, unques- 
 tionably, it was his negligence to which the disaster was to be 
 attributed ; and, if the driver did not see him in time to 
 avoid him, the defendants were not liable. This part of the 
 charge was unobjectionable. If it was his own fault that he 
 was lying on the track in the position in which he was first 
 discovered, and he was not seen in time to stop the car before 
 it reached him, then the deceased was himself the cause of his 
 own death, and the defendants were blameless. The testi- 
 mony warranted no other finding. But then the judge pro- 
 ceeded to open before the minds of the jury a field of conjecture. 
 He stated that the deceased had a right to be where he was 
 found, and the question for the jury was, whether he was there 
 through any fault of his own, or whether he was passing over 
 and was knocked down by the cars ; that if he was passing 
 prudently and properly across the track, and was run over by 
 the cars, and the defendants had omitted the use of such pre- 
 cautions and care as, if used, would have prevented the disas- 
 
1858.] iTETF YOBK. 337 
 
 Button Ds. The Hudson Kiver R. R. Co. 
 
 ter, the plaintiff was entitled to a verdict. This part of the 
 charge was erroneous. The testimony presented no such 
 question. The deceased was found lying on the track. It 
 was not the defendants' fault that he was there. All that the 
 court was called upon to do was, to instruct the jury as to the 
 rule of law applicable to the case as it was presented by the 
 testimony. But to this part of the charge, though erroneous, 
 there seems to have been no exception. 
 
 In another part of the charge the jury were told that the 
 defendants were only liable in case the catastrophe was 
 brought about by their own culpable negligence, and without 
 any negligence on the part of the deceased "directly con- 
 tributing to produce the catastrophe." To the use of the 
 word " directly," there was an exception. The difficulty with 
 this part of the charge is, that it leaves the question vague 
 and indefinite. What were the jury to understand by negli- 
 gence directly contributing to produce the catastrophe ? The 
 same form of expression pervades the entire charge. The 
 fact that the deceased was found lying on the track was 
 uncontroverted. There was no evidence to show that it was 
 any fault of the defendants that he was there. It should 
 have been assumed, nothing appearing to the contrary, that 
 it was his own fault. Why, then, ask the jury to say whether 
 "there was any negligence upon the part of the deceased 
 which directly contributed to the accident ?" There was no 
 such question in the case. The deceased was found lying 
 on the track. This fact was as much the proximate and 
 immediate cause of his death as the fact that the defend- 
 ants' cars passed over his body. The death was the combined 
 result of both causes. The jury should have been instructed 
 that, this being the case, the only question for them to decide 
 was whether, by the exercise of reasonable care and prudence, 
 after the deceased was discovered, the driver might have 
 saved his life. 
 
 A case quite analogous in principle is found in Dowell vs. 
 The Steam Navigation Company, 5 Ellis and Bl., 195. In that 
 case, there had been a collision between two vessels. The 
 plaintiff's was a sailing vessel and the defendant's vessel a 
 steamer. The collision had taken place at the mouth of the 
 
338 N:EW YORK. [Ot. App. 
 
 Button vs. The Hudson River R. B. Co. 
 
 Thames, at night. The plaintiff's vessel had exhibited a light, 
 but had withdrawn it two or three minutes before the collision. 
 The plaintiff's vessel was not seen by those on board the 
 steamer until within two or three lengths of it. It was then 
 impossible to avoid the collision. The jury found, on the one 
 hand, that the sailing vessel was at fault in not continuing 
 the light until the danger was past ; and, on the other, that 
 the steamer was going at too great speed for so dark a night. 
 They also said they were much' inclined to think the prepon- 
 derance of blame was with the steamer. It was held, upon very 
 full consideration, that the finding of these facts amounted to 
 a verdict for the defendant. Lord Campbell, in delivering 
 the judgment of the court, said that the jury must be taken 
 to have found that the fault of the vessel, in not showing 
 a light, led to the collision. He adds : "If this was a proxi- 
 mate cause of the collision, however much the steamer 
 might be in fault, the action cannot be maintained." In that 
 case, the fault of the plaintiff's vessel consisted in lying in an 
 exposed condition all night without adopting the reasonable 
 precaution of exhibiting a light. In this case, the fault of the 
 deceased consisted in his placing himself directly across the 
 railroad track, a position of the greatest possible danger. If 
 the omission to show the light in the one case must be taken 
 to have led to the accident, how much more must the perilous 
 position of the deceased in the other case. 
 
 I think the true rule in such case was laid down by the 
 judge, who tried the case last cited, in his instructions to the 
 jury. He told them that, "if there was negligence on the 
 part of the plaintiff, as well as on part of the defendant, which 
 led to the collision, the plaintiff could not recover if the 
 defendant could not have avoided the accident by reasonable 
 care and skill ; and that even supposing there had been negli- 
 gence on the part of the plaintiff's vessel, still, if the steamer 
 could, by ordinary care and skill, have avoided the collision, 
 the defendant would have been answerable." The fact that 
 a man was on the wrong side of the road does not necessarily 
 constitute a defense in an action against another by whom he 
 was run over ; but if hi? being there was the immediate cause 
 of the accident, it is a defense, even though the person by 
 
1858.] NEW YORK. 339 
 
 Button vs. The Hudson River R. R. Co. 
 
 whom the injury was committed was himself at fault One 
 man cannot, by his own negligence, cast upon another the 
 necessity of extraordinary care. Lord Campbell, in noticing 
 the fact found by the jury, in Dowell vs. The Steam Naviga- 
 tion Oompatiy, that "the preponderance of blame was with 
 the steamer," said : " The jury think there was blame on both 
 sides, by which the accident was occasioned, and this being 
 so, it is immaterial, with regard to the verdict, whether the 
 preponderance of blame was with the steamer or the other 
 vessel." 
 
 The whole subject of mutual negligence is exceedingly well 
 considered in Trow vs. The Vermont Central. Railroad Com- 
 pany, 24 yt,, Ji87. In that case the plaintiff had unlawfully 
 turned his horse upon the highway. The defendants had 
 unlawfully allowed their railroad track to remain closed. 
 The horse, being upon the track of the defendants' road, 
 was run over and killed by the defendants' engine. There 
 was no evidence of any negligence in the manner of con- 
 ducting the engine at the time of the accident. It was 
 held to be a case of mutual negligence, and that no action 
 would lie. In considering the question whether an action 
 can be sustained, when the negligence of the plaintifE and the 
 defendant has mutually co-operated in producing the injury, 
 the following principles are stated. I think they are well estab- 
 lished by authority. 1. When the negligence of each party 
 is the proximate cause of the injury, no action can be sustained. 
 The term "proximate" is used as distinguished from "remote." 
 It refers to negligence occurring at the time of the injury. 
 N"o matter on which side the preponderance of blame lies, if 
 both are at fault at the time of the injury, neither can sus- 
 tain an action. Hawkins vs. Cooper, 8 Carr. and P., ^73, is an 
 apt illustration of this rule. In that case the plaintifE had 
 been run over in the street, by the defendant's horse and cart, 
 and injured. Upon the trial, Tindal, C. J. , said to the jury : 
 " You will determine for yourselves whether the injury was 
 attributable to the negligence, carelessness and improper mode 
 of driving of defendant's servant. If you think it was attrib- 
 utable to that, and to that alone, you will find your verdict for 
 the plaintifE. But if you think it was occasioned, in any 
 
340 Ni:W YOBE. [Ot. App. 
 
 Button 1)8. The Hudson River R. R. Co. 
 
 degree, by tKe improper conduct of the plaintiff herself in 
 crossing, in so incautious and improper a manner, in such 
 case the defendant will be entitled to your verdict." A sim- 
 ilar case was tried before Mr. Justice Coleridge, about the 
 same time. A female, just as she was stepping off the curb- 
 stone to cross a street, in the evening, was struck and knocked 
 down by a cabriolet which was being driven, as the Judge said, 
 at a most improper pace for the time and place. The jury 
 were told that if the plaintiff took proper and reasonable care, 
 and it was on account of the extraordinary speed of the cabrio- 
 let that she could not save herself, and thus met with the acci- 
 dent, she was entitled to their verdict. But if she, by her own 
 negligence and want of care, contributed to the accident, she 
 could not recover, even though they should bhink the driver 
 of the cabriolet was driving too fast, and was, therefore, 
 guilty of negligence. Wool/ yb. Beard, 8 Garr. and P., SIS ; 
 see a&o Pluchwell vs. Wilson, 5 id., S75 ; Williams ys. Hol- 
 land, 6 id., 2S ; Brand vs. The Schenectady and Troy Rail- 
 road Company, 8 Barb., 368, and cases there cited ; Sheffield 
 vs. The Rochester and Syracuse Railroad Company, 21 Barb. , 
 
 2. Where the negligence of the plaintiff is proximate and 
 that of the defendant remote, no action can be sustained. In 
 such a case, the plaintiff himself is the immediate cause of 
 the accident. This rule embraces all that class of cases where, 
 at the time of the injury, the plaintiff was chargeable with a 
 want of proper care. On the other hand, where the negli- 
 gence of the defendant is proximate and that of the plaintiff 
 remote, the action may be sustained. The question then is, 
 whether, it being conceded that the plaintiff was not without 
 fault, the defendant might, by the exercise of reasonable care 
 and prudence at the time of the injury, have avoided it. 
 Kerwhacher vs. The Cleveland, Columbus and Cincinnati 
 Railroad Company, S Ohio St., 172, may be referred to in 
 illustration of this rule. The plaintiff had carelessly let his 
 hogs run at large in the vicinity of the defendants' unenclosed 
 road. Being found upon the track, the hogs were run over 
 and killed by the defendants' servants. It was held that, 
 notwithstanding the carelessness of the plaintiff, the defend- 
 
1858.] NJEW YORK. 341 
 
 Button vs. The Hudson Eiver R. R. Co. 
 
 ants were bound to use reasonable care in avoiding an injury. 
 Being found guilty of gross negligence in the destruction of 
 the hogs, the action was sustained. On the contrary, in Trow 
 vs. The Vermont Central Railroad Company, the action was 
 not sustained, because there was no want of care in avoiding 
 the injury at the time it happened. See also the donkey case, 
 Davis vs. Mann, 10 Mees. and Welsh., 546-54S. 
 
 In the case now before us, the jury, instead of being 
 instructed, in substance, that the defendants were liable 
 unless the " negligence of the deceased directly contributed 
 to produce the catastrophe," should have been told- that if the 
 negligence of the deceased, at the time of the accident, in any 
 way concurred to produce it, the plaintifE could not recover. 
 The verdict of the jury shows that they must have been 
 misled by the charge. Upon the evidence before them, they 
 could not have said that the deceased was not chargeable with 
 negligence, amounting to utter recklessness, in placing him- 
 self in the position in which he was first discovered. If in 
 his senses, as he must be presumed to have been, he courted 
 his own destruction. Under these circumstances, he must be 
 regarded as having co-operated with the defendants to pro- 
 duce his death. Unless the jury could be made to believe 
 that, after the deceased was discovered, the defendants, by 
 reasonable care, could have avoided the fatal result, they were 
 not liable. That they could have done this has not been pre- 
 tended. The testimony would scarcely warrant such a con- 
 clusion. 
 
 I am of opinion, therefore, that the judgment should be 
 reversed and that a new trial should be awarded, with costs to 
 abide the event. 
 
 All the judges concurred in the result of these opinions, 
 and, for the most part, in the grounds stated in both of them. 
 Strong, J., after hearing the opinion of Harkis, J., agreed 
 that the word "directly" ought to have been withdrawn 
 from the charge, though he doubted whether in this case it 
 did any practical injury to the defendants ; and in this John- 
 son', C. J., and Selden, J., concurred. The latter object- 
 ed to an implication which he conceived to lurk in the 
 opinion of Strong, J., (but which Strong, J., disclaimed,) 
 
342 PENN8YLYANIA. [Phila.Oom.Pl. 
 
 Deschamps m. The Second and Third St. Pass. By. Co. 
 
 that, in the absence of proof of any circumstances importing 
 negligence on the part of the plaintiff, there might be a pre- 
 sumption thereof which, he is required to repel ; whereas his 
 negligence must be inferred from evidence, and is not to be 
 presumed. For this reason he and Eoosbvblt, J., put their 
 judgment mainly on the grounds stated by Habbis, J. 
 DEisrio, J., was of opinion that the judge erred in refusing to 
 charge as requested in respect to the negligence of the plaint- 
 iff in going upon the track while under the influence of intoxi- 
 cating liquor. Comstock, J., expressed no opinion. 
 
 Judgment reversed and new trial ordered. 
 
 DESCHAMPS vs. THE SECOND AND THIRD STREET 
 
 PASSENGER RAILWAY COMPANY. 
 
 3 PMla., 379; s. c. IS Leg. Int., 371. 
 
 The legislature has an undoubted constitutional authority to invest 
 a corporation with the rights, powers and privileges contained in its 
 charter; but when a court of equity is applied to, to define the natuie 
 of these rights, it will see that the corporation is restrained within the 
 strict limits of its chartered privileges. 
 
 The act incorporating a horse railroad company provided that before 
 commencing to use the road upon the streets of its route, the company 
 should purchase the horses, omnibuses, etc., of the omnibus lines, 
 owned and used upon said streets. The company refused to pay an 
 award of appraisers, duly appointed, upon the ground, that only a por- 
 tion of the route of an omnibus line, in whose favor the award was 
 made, was used by them, and until the whole route was used by them, 
 they were not liable. 
 
 Held, that such an interpretation if adopted, would pervert the clear 
 language and evident intent of the charter of the company, and that an 
 injunction would be granted restraining the company from running their 
 cars until the payment of the award. 
 
 An answer filed upon notice, after a motion for a special injunction, 
 and before injunction granted, is to be treated as an afiidavit. 
 
 The facts are sufficiently stated in the opinion. 
 
 Ludlow, J.— We are called upon to interpret an act of 
 assembly, which is but one of a series of acts passed at the 
 last session of the legislature of this commonwealth, and 
 
1858.] PENNSYLVANIA. 343 
 
 Deschamps vs. The Second and Third St. Pass. Ry. Co. 
 
 intended to introduce a new method of conveyance from one 
 end of our city to the other, and through and along the pub- 
 lic streets. 
 
 To arrive at a just interpretation of the present case, we 
 must look not only at the charter under which the defendants 
 assume to act, but also at the whole system of legislation by 
 virtue of which the revolution in the method of conveyance 
 already referred to has been, or is about to be, accomplished. 
 
 The legislature of this state, in adjusting the terms of the 
 various railroad charters, undoubtedly intended to cover the 
 city with a network of railways, each of which should in part 
 or altogether, run over and occupy the streets through which 
 the omnibus lines had heretofore run, and which experience 
 had already demonstrated were most in use, and of the great- 
 est convenience to the inhabitants of the city ; but the legis- 
 lature, before granting to the several companies privileges of 
 so valaable, and, in some instances, exclusive a nature, took 
 care to provide for the just compensation of those omnibus 
 proprietors whose business would be destroyed by the supposed 
 superior advantages of this new method of conveyance; and, in 
 order that the burden of compensating the owners and pro- 
 prietors of the numerous lines of omnibuses should not fall 
 upon any one company, so adjusted the terms of the various 
 charters, as to oblige each of the companies to purchase the 
 omnibuses, stock, etc., of the particular omnibus proprietors 
 over whose route the intended railroad was to be laid. 
 
 The justice of this provision, in each of these charters is 
 apparent from the fact that the owners of the omnibus lines 
 had invested large sums of money upon the faith of licenses 
 from the municipal authorities of the city, their rights were 
 vested, the danger of a destruction of their business imminent, 
 and the privileges granted to the railroad companies a matter 
 of grace, and not of common right. The first question, there- 
 fore, presented by this case obviously is, by what principles 
 are we to be governed in the interpretation of the chartered 
 rights of the Second and Third Street Passenger Eailway 
 Company ? If authority were wanting, the solution of this 
 question would be exceedingly plain upon principle ; the 
 defendants are a corporation enjoying a monopoly, and upon 
 
344 PENN8YLrANIA. [Phila.Oom.Pl. 
 
 Deschamps vs. The Second and Third St. Pass. Ry. Co. 
 
 confessedly a valuable railroad route, for all that appears upon 
 the face of their charter ; their rights are of a very extensive 
 nature, and their power commensurate with the extent of 
 their rights. The legislature has an undoubted constitutional 
 authority to invest this corporation with the rights, powers 
 and privileges contained in their charter ; but when a court of 
 equity is applied to, to define the nature of these rights and 
 protect the citizen in the enjoyment of his propertyj it will 
 see to it that the corporation is restrained within the strict 
 limits of its chartered privileges. 
 
 But, (as has already been intimated,) authority is not want- 
 ing to sustain a principle of such vital importance to the com- 
 munity at large. 
 
 Mr. Chief Justice Black, in Packer -vb. Sunhury and Erie 
 Railroad Company, 19 Pa. St., 211-218, says : "All acts of 
 incorporation, and acts extending the privileges of incorpora- 
 ted bodies, are to be taken most strongly against the com- 
 panies ; " and, again, "whatever is not expressly and unequi- 
 vocally granted in such acts is taken to have been withheld." 
 The Chief Justice then refers to the rule as laid down by 
 Chief Justice Marshall, in The Providence Bank vs. Billings 
 et al., 4 Petefs, 51J^, and also to the opinion of Chief Justice 
 Taney, in Proprietors of the Charles River Bridge vs. The 
 Proprietors of The Warren Bridge et. al., 11 Peters, J/MO- 
 SSl, with the remark that " it is not probable we will ever 
 hear it seriously questioned again." 
 
 Mr. Justice Lowrie, in Gommomvealth vs. Pittshtorgh and 
 Connellsville Railroad Company, 24- Pa. St., 169-161, uses 
 this strong language : "If they, (railroad companies,) step one 
 inch beyond their chartered privileges, to the prejudice of 
 others, or of the stockholders, or offer to do any act without 
 the prescribed preliminary steps, they are liable to be enjoined 
 irrespective of the amount of damages ;" and then cites an 
 abundance of authority to sustain the proposition. 
 
 The result of our investigation, therefore, is, that we must 
 so interpret the charter of the defendants, as to restrict their 
 rights within and to the terms of that instrument. 
 
 By the third section of the act of incorporation of " the 
 Second and Third Street Passenger Railway Company," it is 
 
1858.] PUNNSYLYANIA. 345 
 
 Deschamps m. The Second and Third St. Pass. Ry. Co. 
 
 among other things provided — " The said company, before 
 commencing to use the said road upon said streets, shall pur- 
 chase, at the option of the owners, the stock of horses, omni- 
 buses, sleighs and harness, owned and used upon said streets, 
 at the time of commencing, of said road, at a price to be 
 assessed by three disinterested persons, to be appointed in the 
 following manner ; the said owners shall choose one disin- 
 terested person, and the said company shall choose a second 
 person, and the two thus chosen shall choose a third, who 
 also shall be, a disinterested person, and the three shall 
 appraise such stock, and the value thus arrived at shall be 
 binding and final upon both parties ; and the said appraisers 
 shall be sworn to faithfully perform all the duties incident to 
 said appointment, and who shall make the appraisement within 
 thirty days from the time of their appointment." 
 
 The facts developed in this suit seem to be these, to wit : 
 That Deschamps is the owner of a line of omnibuses running 
 upon a portion of the route of defendants' road ; that a valua- 
 tion of the stock of omnibuses owned by Deschamps was made 
 by three persons appointed in the manner prescribed by law, 
 but that only two of these appraisers agreed to a sum satisfac- 
 tory to complainant, the third appraiser valuing the property of 
 complainant at a much lower amount than his colleagues. 
 The defendants deny that they are bound to pay the com- 
 plainant at the present time. Whatever may be their future 
 liability, they allege that the portion of complainant's route 
 now used by them is not greater in extent than one-half of 
 it ; that other omnibus lines are now running upon Third 
 street to within a short distance of the entire length of route 
 traversed by complainant's omnibuses. The defendants fur- 
 ther allege that a fraud has been committed upon them, 
 because the complainant, immediately after he discovered 
 that a road would be constructed, put on his line a number of 
 inferior and almost valueless horses, etc., intending fraudu- 
 lently thereby to compel defendants to purchase the same 
 under the provisions of the charter. 
 
 If the answer filed in this case were to be treated simply as 
 an answer denying the equity of the bill, we might be obliged 
 to refuse this application for an injunction upon the well 
 
346 PENNSYLVANIA. [Phila.Oom.Pl. 
 
 Deschamps vs. The Second and Third St. Pass. Ey. Oo. 
 
 settled principle that an injunction will be refused, after 
 answer filed denying all the circumstances upon which the 
 equity of the bill is founded ; but are we so to regard the 
 answer, or are we to treat it as an affidavit ? 
 
 The authorities prior to the case of Lessig vs. Langton, 
 Brightly, 191, favor the conclusion that an answer filed upon 
 notice, after a motion for a special injunction, and before 
 injunction granted, is to be treated as an affidavit. See 
 Waring vs. Cram, 1 Parsons' Sel. Eq. Cases, 516-625. Nor 
 do we consider the opinion of the court in Lessig vs. Langton, 
 taken in its full extent, to interfere with our intention to 
 treat the answer filed in this case as an affidavit, for the court 
 expressly recognize the authority of Morphett vs. Jones, 19 
 Ves., 350, and also Glassington vs. Thwaites, 1 Simons and 
 Stuart, 1^4. cases similar in every material respect to the one 
 now under consideration, so far as the rule of practice is 
 concerned. 
 
 ]^or are we at all satisfied that the answer would, if regarded 
 as standing alone, and uncontradicted by counter affidavits, 
 be sufficient to defeat this application ; for it must be remem- 
 bered that the appraiser who dissented from the conclusions to 
 which his colleagues had arrived, was the appraiser appointed 
 or chosen by the company, while there is no allegation that 
 the other appraisers acted fraudulently, or that, in point of 
 fact, they appraised any other property than that which 
 belonged to and was in actual use by complainant at the time 
 the appraisement was made, while the answer and affidavit 
 contained only the most general allegations of fraud. 
 
 When, however, we examine and weigh the counter-affida- 
 vits of complainant, we fail to discover any equity upon this 
 point in defendants' case, for these affidavits establish the 
 fact that the complainant had not been guilty of the fraudu- 
 lent acts complained of by defendants. 
 
 Having ihus disposed of the allegation of fraud, is there 
 any other equity suggested by defendants, which would or 
 should oblige us to refuse the motion ? 
 
 That the line of omnibuses of complainant running upon 
 Third street in part, and thence to a point in the northern 
 portion of the city, is one of the lines, " owned and used upon 
 
1858.] PENNSYLVANIA. 347 
 
 Deschamps w. The Second and Third St. Pass. Ry. Co. 
 
 said street," within the meaning of the charter of this com- 
 pany, does not seem to be and has not been in the argument 
 of this case seriously doubted. The allegation of the defend- 
 ants is that as they are only running their cars upon a portion 
 of the complainant's route, they are not to remunerate him 
 until the whole of the route is in actual use, but we are at a 
 loss to understand how this conclusion can by any means be 
 arrived at. The charter expressly provides that " the said 
 company, before commencing to use the said road upon the 
 said streets, shall purchase," etc. Now, if an interpretation 
 is to be adopted, which in substance perverts the clear lan- 
 guage and evident intent of the charter of the company, and 
 enables the defendants to refuse to purchase the omnibuses, 
 etc., of complainant until the road is actually completed, 
 then, indeed, has the most material proviso for the protection 
 of private rights been transformed into a meaningless shadow, 
 and the complainant must stand remediless as he sees, day by 
 day, the most valuable portion of his route in the actual use 
 of a corporation who may in the end, and when it is conveni- 
 ent to them, remunerate him. 
 
 We have considered the method adopted by the appraisers 
 in making the appraisement in this case, and the unsatisfac- 
 tory results which attended their labors, as also the fact that, 
 in point of law, no legal award has been made, but we have 
 failed to perceive that the complainant is justly responsible for 
 the unfortunate differences of opinion which exist in relation 
 to the value of his property. Had it been satisfactorily shown 
 to us that this complainant had improperly interfered with 
 the action of the arbitrators, or either of them, or that be had, 
 either directly or indirectly, perversely refused to accept fair 
 and honorable terms of settlement or that the action of either 
 the complainant or appraisers had been dishonest or fraudu- 
 lent, we would ha;ve refused this motion, upon the principle 
 that when a man enters a court of equity, and asks our inter- 
 position on his behalf, he must himself do that which is 
 equitable and right. When, however, honest differences of 
 opinion exist between the appraisers, we cannot by a decree 
 legislate for the parties concerned, for the legislature has said 
 that ' ' the value, (arrived at by the appraisers, ) shall be binding 
 and final upon both parties." 
 
348 PJENNSTLVANIA. [Phila.Oom.Pl. 
 
 Whitson vs. The Phila. and Gray's Ferry Pass. Ey. Co. 
 
 While, therefore, we are constrained to grant the present 
 motion, we must, in justice to the defendants, say that if 
 hereafter they can make it appear, by further and satisfactory 
 evidence, that the complainant has acted fraudulently, or 
 that by his subsequent conduct he brings himself within 
 either of the exceptions just mentioned, and which would 
 have obliged us to have refused this motion, had evidence 
 upon the subject been presented at the hearing, we will at 
 once dissolve this injunction ; for the summary power of the 
 court, invoked and now exercised, is to be used as a shield for 
 protection, and not as a weapon of offense. 
 
 We ought, in conclusion, to say that we have not been 
 insensible to the practical inconveniences which may arise to 
 the inhabitants along the route of this road by reason of the 
 present action of the court, and which inconveniences were 
 pressed upon our considei-ation with ability and force at the 
 argument of the cause, but we must protect the private rights 
 of individuals at any cost ; the principle involved is of vital 
 importance and must be sternly maintained. Nor should a 
 court of equity allow a well defined private right protected 
 by an express act of assembly, to be seriously endangered, or 
 entirely destroyed, even though, in an effort to prevent a 
 remediless injury from being perpetrated, the march of what 
 some may consider to be a public improvement, is arrested. 
 
 WHITSOJSr AND SKILMAN vs. THE PHILADELPHIA 
 AND GRAY'S PERRY PASSENGER RAILWAY 
 COMPANY. 
 
 NISI PRiua. 
 
 S PMla., S84; a. c. 15 Leg. Int., S7S. 
 
 An act incorporating a horse railroad company provided, that 
 before commencing to run their cars upon the streets, the omnibuses, 
 etc., owned and used on said streets by a certain omnibus line should 
 be purchased by the company ; that appraisers should be chosen as fol- 
 lows ; the omnibus owners to choose one, the company to choose one, 
 and those two to choose a third. An appraisement was made by three 
 persons, but the company resisted the payment, on the ground that the 
 
1858.] PENNSYLYANIA. 349 
 
 Whitson m. The Phila., and Gray's Ferry Pass. Ry. Co. 
 
 appraiser who claimed to represent them, was appointed by the presi- 
 dent of the company, without the authority of the board of directors. 
 
 Held, that the appraiser was not one appointed by the company, and 
 as the company had never appointed an appraiser no legal appraisement 
 had been made. 
 
 Held, further, that as the act provided that the company should pur- 
 chase, etc., "before commencing to run their cars," an injunction 
 restraining them from running their cars, would be granted, until they 
 had appointed an appraiser, in accordance with the terms of the act. 
 
 Ludlow^ J. — We have fully expressed our views of the 
 principles by which we shall be guided in the determination 
 of this class of cases, in the opinion delivered in the matter 
 of the bill filed by DescJiamps vs. The Second and Third Street 
 Passenger Railway Company, S Phila., 279; s. c. 1 Am. St.- 
 Ry. Dec, 84.2, and it is unnecessary now to repeat them. We 
 will, therefore, at once proceed to an investigation of the facts 
 presented by the bill and affidavits in this case, and endeavor 
 to apply to them the principles already announced. 
 
 The charter of this company provides : 
 
 "That the said company before commencing to run their 
 cars upon the said streets shall purchase the stock of omni- 
 buses, sleighs, horses, and harness, owned by and used upon 
 the Spruce street and Pine street lines of omnibuses, at the 
 time of the completion of the said railway, at a price to be 
 assessed in the following manner, to wit : the owners shall 
 choose one disinterested person, and the said company shall 
 choose a second person, and the two persons thus chosen shall 
 choose a third person, whom together shall appraise such said 
 stock and the value thus arrived at shall be binding and final. 
 
 The complainants are the owners of the Pine street line of 
 omnibuses, and they allege that the defendants are now running 
 their cars upon the street used by them and along the route, 
 to a very considerable extent, although they have not paid the 
 price assessed by the appraisers. 
 
 The defendants do not deny their liability to complainants, 
 but resist the payment of the assessed value of the Pine street 
 line of omnibuses, first, because they allege that no appraiser 
 has ever been appointed by them or their agents; and secondly, 
 because the appraisement as made was the result of an undue. 
 
350 PENN8YLTANIA. [Phila.Oom.Pl. 
 
 Whitson M. The Phila. and Gray's Ferry Pass. Ry. Co. 
 
 and it may be fraudulent influence exerted upon the appraisers 
 supposed to have been appointed by the company, whereby 
 he was induced to agree to the award made, including therein 
 the goodwill, as well as the omnibuses of the Pine street 
 line. 
 
 In the view which we take of this case, it will be unneces- 
 sary to consider the second ground of defense to this applica- 
 tion, and we will confine our remarks exclusively to the first 
 proposition. 
 
 The facts of the case, so far as it is necessary for us to con- 
 sider them, are as follows : 
 
 The complainants appointed one appraiser, in accordance 
 with the provisions of the charter of the railway company. 
 William M. Eeilly, president of the company, but as alleged 
 without the authority of the board of directors appointed a 
 second appraiser, and the two selected a third. The three 
 appraisers thus appointed proceeded to discharge their duties, 
 and assessed the value of the property of complainants at 
 $15,000. 
 
 Previous to the appointment of the appraiser by William 
 M. Eeilly, the president of the road, the company had con- 
 tracted with John Prazer to build and fully equip said road with 
 cars and everything necessary, and arrange with, purchase 
 and pay for the omnibus lines, as provided for by the act of 
 assembly, which contract was subsequently assigned by Frazer 
 to Dr. William Young and Joseph Singerly. 
 
 After the three appraisers had reported the amount of their 
 appraisement, the contractors refused to recognize their act, 
 inasmuch as neither the company nor the contractors had 
 authorized the appointment of an appraiser, and the appoint- 
 ments which had been made were to be considered as informal, 
 and, therefore, not binding upon either of the parties, the 
 contractors having upon several occasions notified the' board 
 of directors of their right to appoint an appraiser on the part 
 of the company and the board having as often referred the 
 whole matter to the contractors for their consideration and 
 action. 
 
 Upon this statement of facts it must be apparent that the 
 difficulty has arisen by reason of the contract made by the 
 
J 858.] PENNSYLVANIA. 351 
 
 Whitson m. The Phila. and Gray's Perry Pass. Ry. Co. 
 
 company with Prazer, and in all probability through a mis- 
 taken idea of the relative rights of the parties to that con- 
 tract. 
 
 The charter undoubtedly requires the appointment of an 
 appraiser on behalf of the company, and after due delibera- 
 tion, we have come to the conclusion that the true intent and 
 meaning of the charter is that the company shall elect that 
 appraiser. The complainants had a right to look to the com- 
 pany, and to the company alone, for the appointment. The 
 board of directors may undoubtedly contract with whom they 
 please, and so far as they and the company are concerned, 
 they will be bound by their acts ; but when the rights of 
 third persons are interfered with, or are to be in any way 
 affected, neither the company nor any person who may con- 
 tract with them, can be allowed to take advantage of their 
 own private acts, especially if by so doing a wrong may be 
 committed. The affidavits of the defendants themselves fully 
 establish the fact that neither the company nor the contrac- 
 tors have ever appointed an appraiser, and the person who 
 then acted for the railroad was undoubtedly appointed by the 
 unauthorized act of the president, under, we doubt not, a mis- 
 taken view of his own power, or, it may be, informally. 
 
 The evidence has not satisfied us, however, that the com- 
 plainants were entirely ignorant of the method by which the 
 company's appraiser had been appointed ; and yet, in balan- 
 cing the testimony, we have concluded that they might have 
 been misled by the apparent concurrence of all parties in the 
 acts of this appraiser up to the time of the final award. 
 
 Upon a view of the whole case, we think there has been no 
 appraisement whatever made,- within the meaning of the 
 charter of the company, and the only question remaining for 
 our consideration is, what power have we in the premises, 
 and what course is to be pursued for the future ? 
 
 It has been suggested that the complainants are without a 
 remedy until the final completion of the road, but from this 
 view of the case we must entirely dissent. The rights of the 
 defendants are specified in their charter : "Before commen- 
 cing to run their cars," they shall purchase the stock of omni- 
 buses, etc., "owned and used upon said streets," and we 
 
352 PENNSYLVANIA. [Phila.Oom.Pl. 
 
 Whitson m. The Phila. and Gray's Ferry Pass. Ry. Co. 
 
 cannot consent to an interpretation of the charter which 
 might destroy the rights of the complainants altogether. 
 
 Again : " Before commencing to run their cars upon said 
 streets," the company shall purchase the stock of omnibuses, 
 etc., "at a price to be assessed." There has been, as we have 
 before remarked, no assessment ; this, therefore, is not the 
 case of a disagreement between the appraisers, nor of a stub- 
 born intent upon the part of the complainants not to appoint 
 an appraiser upon their part, and thus defeat the whole spirit 
 and intent of the charter, nor of the fraudulent appointment 
 of an appraiser; but it is the case of a company running their 
 cars upon a public street without having complied with the 
 most material preliminary step. We think our right to inter- 
 fere is undoubted ; the complainant has a strong claim upon 
 our consideration, for he appears to have acted as in equity he 
 ought to have done, and this claim is made the stronger 
 because the award made is, in effect, destroyed by this decree. 
 
 In the meantime, we must protect the rigjits of the com- 
 plainants to the use of their property, and we will so mould 
 the decree as to secure to the defendants their rights under 
 the charter of the company. 
 
 The special injunction, therefore, in this case is granted, 
 and we deem it proper to say that, under the peculiar circum- 
 stances of this case, should the defendants, upon a motion to 
 dissolve the injunction, satisfy us that, within ten days from 
 this date, they have appointed an appraiser and complied, on 
 their part, with the terms of their charter, after full notice to 
 the complainants, and a refusal on their part to appoint an 
 appraiser for the purpose of obtaining a proper valuation 
 of the stock, etc., then the court will feel at liberty to dis- 
 solve the injunction. 
 
1858.] NJEW YORK. 353 
 
 Booney ««. The Second Avenue R. R. Co. 
 
 EOONBY vs. THE SECOND AVENUE RAILEOAD 
 COMPANY. 
 
 18 N. r., 368. 
 
 The plaintiff made an agreement with his attorney to give him 
 one-half of the amount recovered in a suit against the defendants. The 
 defendants had notice of the agreement, but nevertheless made a settle- 
 ment with the plaintiff for a less sum than the amount of the judgment. 
 
 Held, that the lien of an attorney for his costs upon a judgment 
 recovered by him has not been abolished by the Code, but that the lien 
 may now cover not only the taxable costs, but also any portion of the 
 recovery which may have been stipulated as the compensation for the 
 attorney's services. 
 
 Meld, therefore, that the defendants negotiated with the plaintiff at 
 their peril, and that the attorney could recover from them the amount 
 he was entitled to by the agreement. 
 
 Appeal from an order of the Superior Court of the City of 
 New York, vacating the satisfaction of a judgment entered on 
 the record, by the plaintiff, unless the defendant should 
 within five days, pay to the plaintiff's attorney $379.17 the 
 amount of the taxed costs included in the judgment, with 
 $10 costs of the motion. The facts are fully stated in the 
 opinion. The attorney for the plaintiff was the respondent 
 in person. 
 
 Mr. John H. Reynolds, for the appellant. 
 
 Haeris, J. — It had been agreed between the plaintiff and 
 his attorney, that the latter should commence and prosecute 
 this action to its final termination, without fee and at his own 
 risk, and upon his final success he should receive for his ser- 
 vices one-half the recovery, and if the amount should not 
 exceed $600 he was also to have the taxable costs. The judgment 
 recovered, including costs, was $1,179.17. Of this amount, 
 according to the terms of the agreement, the attorney became 
 entitled to $589.58. The plaintiff gave the attorney an irrev- 
 ocable power of attorney to receive the amount of the 
 recovery. Of these facts the defendants had sufficient notice. 
 
 Under these circumstances the defendants negotiated with 
 
 23 
 
354 Ni:W YORK. [Ot. App. 
 
 Booney m. The Second Avenue E. R. Co. 
 
 the plaintiii for a compromise, at their peril. Before the 
 Code, nothing was better settled than that the attorney had a 
 lien upon the judgment recovered by him for his services. 
 The legal measure of those services was the taxable costs, so 
 that it always happened that the extent of the lien was equal 
 to the costs recovered in the action. To that extent the 
 attorney was regarded as the equitable assignee of the judg- 
 ment. It was said by Lord Kenyon, in Read vs. Dupper, 6 
 Term R., 361, that it had been settled long ago, that a party 
 should not run away with the fruits of the cause without sat- 
 isfying the legal demands of his attorney, by whose industry 
 and expense those fruits were obtained. Martin vs. Hawks, 
 Sheriff, etc., 15 Johns., 4.05, and cases there cited ; Wilkins 
 vs. Batterman, Sheriff, etc., 4 Barb., 47 ; Sweet \s. Bartlett, 
 Jf Sandf., 661; 2 Kent's Com., 6^.1. " I am inclined to hold," 
 says Lord Mansfield, in Welsh vs. Hole, 1 Doug., 238, "that 
 if the attorney give notice to the defendant not to pay till his 
 bill shall be discharged, a payment by the defendant after 
 such notice would be in his own wrong, and like paying a 
 debt which has been assigned after notice." 
 
 The question now to be determined is, whether, by any- 
 thing that the legislature has done, in enacting the Code, this 
 equitable right of the attorney, so long recognized and pro- 
 tected, has been destroyed. The principle upon which the 
 right has been sustained is certainly unaffected by the Code. 
 As in other cases of lien, the attorney is puotected,! because it 
 is by his labor and skill that the judgment has been recovered. 
 The judgment being under the control of the court, and the 
 parties within its jurisdiction, it will see that no injustice is 
 done to its own officers. There is no less reason for the exer- 
 cise of this power now than before the adoption of the Code. 
 
 Under any system of proceedings the recovery of costs is a 
 statutory right. By way of indemnity for his expenses, it has 
 been thought fit to allow the prevailing party to recover, in 
 addition to his debt or damages, certain prescribed allowances. 
 These are as much a part of the recovery as the verdict itself. 
 They become a part of the judgment. It is one entire thing. 
 But, because the judgment has only been recovered through 
 the instrumentality of the attorney, and his money and labor 
 
1858.] Ni;W YORK. 355 
 
 Rooney «s. The Second Avenue R. R. Co. 
 
 and talents have been expended for that purpose, courts have 
 declared that he shall have a lien upon it to the extent of his 
 claim against his client. The lien is not more upon one part 
 of the judgment than another. It is upon the whole judg- 
 ment. TruCj it was equal to the costs embraced in the judg- 
 ment, but this was only because the legislature had thought 
 fit to fix this amount as the limit of the compensation to 
 which the attorney should be entitled. 
 
 All that the Code has done in this respect is, to remove this 
 restriction. The party recovers costs as before, but the 
 amount of compensation which the attorney shall receive is 
 no longer limited. The principle upon which his lien upon 
 the judgment has been maintained is still the same. He still 
 conducts the suit as before. His labor and skill and money 
 still enter into the judgment as before. But now he may 
 agree with his client, .is he could not before, how much he 
 shall receive for his services. In other words, the attorney 
 and his employer may fix beforehand the amount for which he 
 shall have a lien upon the judgment when recovered. Why, 
 when this is honestly and legally done, should the defendant 
 in the judgment be allowed to intervene, and by a settlement 
 with the party, with full knowledge of the claim of the 
 attorney, aid him in depriving the attorney of what is justly 
 due him ? This subject is discussed with very great ability 
 by the present presiding judge of the New York Common 
 Pleas, in Ward^s. Syme,9 How. Ft., 16. I concur entirely 
 in the views he has there so well expressed. The only opera- 
 tion of the Code, in respect to costs is, to substitute a new 
 fee bill in the place of that which had before existed, and to 
 leave the attorney free to agree with his client for a greater or 
 less amount than that which he may recover, according to 
 circximstances.- The lien of the attorney, upon the judgment 
 he recovers, is unaffected by the change. That right stands 
 now as it did before. It is a valid and established right to 
 receive, out of the moneys to be collected from the judgment, 
 the amount due him from his client for his services and 
 expenses in obtaining it. In the absence of any agreement on 
 the subject, I suppose the sum recovered by the party as an 
 indemnity for his expenses would be the measure of compen- 
 
356 N:EW YORK. [Ot. App. 
 
 Rooney m. The Second Avenue R. R. Co. 
 
 sation allowed to the attorney. This, then, would be the 
 extent of his lien. But where there has been an agreement 
 for more or less than that sum, the amount which, by agree- 
 ment, he is entitled to receive will determine the extent of 
 his lien. It is still true, that the attorney is to be regarded 
 as the equitable assignee of the judgment to the extent of his 
 claim for services in the action. Sherwood vs. The Buffalo 
 and New York City Railroad Company, 12 How. Pr., 136; 
 Haight vs. Holcomb, 16 id., 160; id., 173. 
 
 The order from which this appeal is taken provides for the 
 payment of $379.17 only. This is the amount of the costs 
 included in the judgment. The attorney should have been 
 allowed to collect the whole amount due him for his services 
 in obtaining the judgment ; but as the appeal is by the 
 defendant, the order, in this respect, cannot be modified. It 
 should therefore be affirmed, with costs. 
 
 CoMSTOOK, J. — It is not claimed that the order appealed 
 from is erroneous, provided the attorney for the plaintiff had 
 a lien on the judgment for his costs. The defendants had 
 sufficient notice of the lien, if it existed, to protect him 
 against a settlement with his client. The question, therefore, 
 is whether the Code of Procedure has abrogated the lien of an 
 attorney for his costs. Section 303 declares that all statutes 
 establishing or regulating the costs " and fees of attorneys, 
 solicitors, etc., in civil actions, and all existing rules and pro- 
 visions of law restricting or controlling the right of a party to 
 agree with an attorney, etc., for his compensation are repealed, 
 and that the measure of such compensation shall be left to 
 the agreement, express or implied of the parties." " But," 
 the section further declares, "there may be allowed to the 
 prevailing party, upon the judgment, certain sums by way of 
 indemnity for his expenses in the action, which allowances 
 are in this act termed costs." Sections 304, ^05 and 306 pre- 
 scribe the cases in which costs may be recovered, and section 
 307 specifies the particular rates, being specific sums sxipposed 
 to be earned in the different stages of a cause. 
 
 In this legislation I discover nothing which deprives an 
 attorney of his lien for costs. Previous statutes establishing 
 
1858.] NEW YORK. 357 
 
 Rooney vs. The Second Avenue R. R. Co. 
 
 or regulating costs and fees are repealed, but in their place a 
 new statute is enacted, prescribing different rates of compen- 
 sation, and adjusted upon a different principle. But the legis- 
 lation of this state has frequently undergone changes of the 
 same kind, and relating to the same subject, without impair- 
 ing the lien of the attorney. It is said that costs are now 
 allowed to the party as "an indemnity for his expenses in the 
 action." But this was always the essential nature of costs. 
 The prevailing party recovered them of his adversary, and 
 they became a part of his judgment. They were always, in 
 substance, an indemnity for expenses ; although, before the 
 Code, they were taxed under the name of attorneys' and 
 solicitors' fees. The name given to this indemnity is of 
 no account. The fee bill is abolished, but that was never 
 the foundation of the lien. It might regulate the amount of 
 an attorney's compensation, but he was entitled to a lien as 
 against his client, because his labor and skill contributed to 
 the judgment. On the same principle he had a lien on his 
 client's papers for services, where there was no suit or judg- 
 ment against another party ; and this principle does not differ 
 essentially from that which confers a lien in a variety of the 
 industrial pursuits of mankind. Lord Kenyon said, Read vs. 
 Dupper, 6 Term R., 361-362, "the principle was decided long 
 ago, namely, that a party should not run away with the fruits 
 of a cause without satisfying the legal demands of his attorney, 
 by whose industry, and in many instances at whose expense, 
 those fruits are obtained." 
 
 Section 303 of the Code, above quoted, abrogrates all rules 
 and provisions of law which might restrain an attorney in 
 agreeing with his client for the measure or mode of his com- 
 pensation, and it leaves such compensation to the agreement 
 of the parties, express or implied. What was before not only 
 illegal but disreputable is now lawful, if not respectable. 
 But this question can have no influence upon the present 
 question. If there is a special agreement that will take the 
 place of the pre-existing statutory rates, I am not able to see 
 how this affects the attorney's lien, where no special security 
 is taken, and there is no assignment of the cause of action or 
 a part of it. If there be no such agreement, then the implied 
 
358 PENNSYLVANIA. [Phila.Oom.Pl. 
 
 Martin vs. The Second and Third St. Pass. Ry. Co. 
 
 undertaking of the client will be, to pay either what the 
 services of his attorney are reasonably worth, or else the 
 particular sums which the Code specifies, in the different 
 periods of the litigation. It is not important now to deter- 
 mine what may be the implied agreement of the client with 
 his attorney. In either of these aspects there is no reason for 
 questioning the lien. The attorney contributes his services 
 and skill in the management of his client's case. The result 
 is a judgment with costs, and the attorney has an interest in 
 the judgment either to the amount of those costs, or for some 
 other amount which he is entitled to claim as the measure of 
 his compensation. The principle which lies at the foundation 
 of this lien is by no means an anomalous one, and I do not 
 perceive that it is inconsistent with any of the provisions of 
 the Code. The order should be affirmed. 
 
 All the judges concurring, order affirmed. 
 
 MAKTIN vs. THE SECOND AND THIRD STREET 
 PASSENGER RAILWAY COMPANY. 
 
 NISI FRIUS. 
 
 3 PMla., 316 ; s. c. 15 Leg. Int., JfiS. 
 
 The complainant, an owner of property in the vicinity of the north- 
 ern terminus of the road, was the owner of but one share of stock in the 
 defendant company, purchased after the road was being used and for 
 the purpose of commencing this action. 
 
 Held, that he had such an interest in the railroad as would entitle him 
 to a hearing in court. 
 
 A contract entered into between certain individuals and the original 
 projectors of a railroad, to quiet and withdraw opposition to the passage 
 of its charter through the legislature of the state, will not be enforced 
 in a court of equity. 
 
 A charter of a railroad company when accepted and acted upon is a 
 contract, and as such must be complied with, and a compliance with 
 its terms may be compelled by mandamus or injunction. 
 
 The words, "power and authority to lay out and construct a rail- 
 way," to a certain point named, are imperative, and a court of equity 
 has power to compel a city railroad company to build its road to the 
 said point, 
 
1858.] FENNSYLYANIA. ;}59 
 
 Martin m. The Second and Third St. Pass. Ry. Co. 
 
 Where a city railroad company has entered into a contract with the 
 city to do a certain act upon the completion of their road, the court has 
 power to compel the company to complete the road. 
 
 The facts are fully stated in the opinion. 
 
 Ludlow, J. — The complainants in this bill move for a 
 special injunction, and pray this court to restrain the defend- 
 ants from the further use of their road until they shall have 
 completed it to its northern terminus, Allegheny avenue. 
 The facts of this case may be briefly stated, as follows : 
 
 An act of assembly was passed at the last session of the legis- 
 lature of this state, incorporating "The Second and Third Street 
 Passenger Kailway Company." By the act of incorporation, the 
 company were authorized and empowered to construct a road 
 running upon certain streets of the city " to Allegheny avenue, 
 and thence returning " along certain other streets to its south- 
 ern terminus. The defendants proceeded to construct and 
 use their road until they reached the point of intersection with 
 the Eeading railroad, on Eichmond street, which, it is admit- 
 ted, is five-eighths of a mile south of the northern terminus 
 of the road, to wit : Allegheny avenue, where the defendants 
 have constructed switches, car houses, etc. 
 
 The complainants allege that the company, although they 
 have the right, by their charter, to cross the track of the 
 Eeading railroad at grade, do not intend so to do, nor to com- 
 plete the road to its northern terminus, but have, in fact, 
 established the northern terminus at or near the intersection 
 of the passenger railroad with the Eeading railroad track, 
 contrary to the true intent and meaning of their charter, 
 which charter passed the legislature of the state and became 
 a law, partly because a warm opposition to its passage was 
 withdrawn in consideration of the Allegheny avenue being 
 fixed as the northern terminus of the road, in conformity 
 with the wishes of a large number of the inhabitants and 
 owners of real estate residing at or near the northern terminus 
 specified in the charter. 
 
 The defendants deny the fact that the charter passed the 
 legislature in whole or in part by reason of any legislative bar- 
 gain or contract, and further assert that it is their iona fide 
 
360 FENNSYLYANIA. [Phila.Oom.Pl. 
 
 Martin «s. The Second and Third St. Pass. Ry. Co. 
 
 intention at some future day to complete the road, but at what 
 precise time does not appear. They further allege, that it is 
 extremely dangerous to cross the Eeading railroad with their 
 cars, and that negotiations are now in progress by which it is 
 supposed that the necessity for crossing the track of the Read- 
 ing railroad at grade, will be avoided by the construction of 
 a bridge. And further, the defendants deny the right of the 
 complainant to interfere, because he is the owner of but one 
 share of stock, purchased after the road was being used, and 
 for the purpose of commencing this proceeding. 
 
 As a preliminary matter, we may at the outset dispose of 
 some objections to the equitable standing of complainant, 
 and also of such arguments as were urged, based upon the 
 supposed danger of crossing the Eeading railroad at grade. 
 
 If the complainant had been guilty of laches, we would not 
 be inclined to enter upon an extended examination of his 
 case, but he does not come in bo this court guilty of any such 
 unreasonable delay ; he is a property owner in the vicinity of 
 the northern terminus of this road, and being thus interested 
 in its operations, he buys a share of stock of this company, 
 and files this bill within three weeks after the commence- 
 ment of the business of the road. Certainly he has not slept 
 upon his rights, nor is the fact of his being the owner of a 
 single share of stock any sufficient reason why he should be 
 turned out of this court ; he has an equitable technical stand- 
 ing in court and if he has developed such equities as to be 
 entitled to a hearing, why should the court overlook, not only 
 the direct interest of this stockholder, but of the public at 
 large, because of the comparatively trifling value of the stock, 
 it plainly appearing that he has otherwise a direct interest in 
 the question. To assert such a principle, would be to subject 
 the feeble and defenseless to the will of the stronger and more 
 powerful, and render it an easy matter for any corporation 
 to place itself beyond the control and power of the courts. 
 
 Nor do we think that the argument derived from the dan- 
 ger of crossing the Eeading railroad at grade, entitled to very 
 great consideration ; for sixbeen years have the omnibuses 
 crossed and recrossed at the very point specified by defend- 
 ants, and without any serious consequences to any one person 
 
1858.] PENNSYLVANIA. 361 
 
 Martin va. The Second and Third St. Pass. Ry. Co. 
 
 so far as we are informed. TruSj the directors of the Second and 
 Third Street Eailway Company will be obliged to use due care 
 and caution in conveying their passengers over the Reading rail- 
 road track, and the legislature intended that they should use 
 this care and caution, when they expressly provided that " it 
 shall be the duty of the said company, at every point of cross- 
 ing at grade any railroad upon which locomotive steam engines 
 are employed, to have flagmen stationed, and use all precau- 
 tions and means of safety." 
 
 Having thus disposed of these preliminary matters, we 
 approach the consideration of the real questions presented in 
 this case, and which may be considered under three proposi- 
 tions, the discussion of which will bring us, we trust, to a sat- 
 isfactory and safe conclusion. 
 
 First. Will a contract entered into between the complain- 
 ants and other persons with the original projectors of this 
 road, to quiet and withdraw opposition to the passage of the 
 charter through the legislature of the state be enforced in a 
 court of equity ? 
 
 Secondly. Will this court compel the defendants, by injunc- 
 tion, to desist from the use of their I'oad, as to any portion 
 thereof actually completed, until its final completion ? 
 
 Thirdly. Has this company entered into any such contract 
 with the municipal authorities of the city as will oblige them 
 to finish their road ? 
 
 Under the first proposition the question arises, was there, 
 in fact, any contract in existence ? But, we are relieved from 
 the necessity of determining this question, because of the view 
 which we take of the law of the case upon this point. 
 
 The earlier English cases did, undoubtedly, decide that 
 contracts, such as ai'e now the subject of consideration, might 
 be enforced in a court of equity. Queen vs. Eastern Coun- 
 ties Railway Company, 10 Adolpli. and Ellis, dSlSJfi ; Ed- 
 wards vs. Grand Junction Railway Company, 1 Railway 
 Cases, 178 ; Lord Petre vs. Eastern Counties Railway Com- 
 pany, id. , Ji.62. But the modern adjudications have modified, 
 if not entirely destroyed, the authority of these decisions. 
 The last two cases above cited were the subject of criticism in 
 the house of lords, where the Lord Chancellor and Lord 
 
362 FENNSYLTANIA. [Phila.Oom.Pl. 
 
 Martin w. The Second and Third St. PasB. Ry. Co. 
 
 Brougham are reported to have said : " These, and other sim- 
 ilar cases which have followed them, are not supported in 
 principle;" and again, "the custom sometimes adopted by 
 committees in parliament, of omitting special clauses from 
 acts of incorporation, on the agreement of the promoters that 
 the object proposed to be attained by these clauses, should be 
 carried out, appears to be illegal and improper. Caledonian, 
 etc., Junction Railway Company vs. Helensburgh Harbor 
 Trustees, S9 Eng. Law and Eq., 28 ;" and the whole current 
 of modern English authority tends strongly against the enforce- 
 ment of these contracts. 
 
 In the United States no attempt seems ever to have been 
 made, before the present, to enforce such a contract ; and as 
 a question of policy, we think the courts cannot too strongly 
 insist upon the adoption of the modern English views of the 
 subject. To enable suitors to enforce such contracts, even in 
 meritorious cases, is certainly throwing open the door to the 
 approach of fraud, and exposing the legislative branch of 
 the government to the most dangerous temptations. Where 
 a definite pecuniary interest is about to be sacrificed, the easy 
 and natural method is to incorporate in the charter of the 
 company, a section making ample provision for the interests 
 involved and to be destroyed ; certainly no court of equity 
 ought to enforce a contract based not upon an actual taking 
 of valuable property, but upon an agreement to quiet and 
 withdraw a formidable opposition in the legislature. 
 
 We are not, however, without American authority binding 
 us, which prohibits us from examining into the circum- 
 stances which attended the passage of a bill through the 
 legislature ; and to this point is the decision of our own 
 supreme court, in BanTc of Pennsylvania vs. Commonwealth, 
 69 Pa. St., m; and also in Massachusetts, Commonwealth vs. 
 Fitchburg Railroad Company, 62 Mass., (8 Cush.) 2^0. 
 
 If, therefore, we had determined the question of fact in 
 favor of the complainants, and that a contract existed, we 
 would not enforce it. 
 
 The second proposition to be discussed, to wit, the right 
 and power of this court to compel the defendants, by injunc- 
 tion, to desist from the use of any part of their road, until its 
 final completion, is novel and important. 
 
1858.] PENNSYLVANIA. 363 
 
 Martin ««. The Second and Third St. Pass. Ry. Co. 
 
 In the absence of any direct authority upon this subject, we 
 turn to the English cases, and there find that this question 
 has been considered only, however, in a very few instances. 
 The subject was carefully considered in an elaborate opinion, 
 delivered by the late Chief Justice Jervis, in York and North 
 Midland Railway Company vs. Regina, Redfield on Railways, 
 p. J/J/S ; to which we refer as containing a review of the 
 authorities upon this subject. 
 
 The opinion of the court in this case was pressed strongly 
 upon our consideration at the argument, as being decisive of 
 the point in question, and would certainly be entitled to great 
 consideration, but for the policy inaugurated by our own 
 supreme court in Commonwealth vs. Urie and North East 
 Railroad Company, 27 Pa. St., ' SS9-S51, and the rules of 
 interpretation applied to the operative words of the charter in 
 the case then before the court. 
 
 Chief Justice Jervis interpreted the words of the law then 
 before him, "it shall be lawful for the said company to make 
 the said railway," as "permissive only, and not imperative," 
 and upon this point turned the decision of the court ; for had 
 the section contained imperative terms, we think he intimates 
 that his opinion would have been the other way. 
 
 The supreme court of this state, in 27 Pa. St., S51 supra, 
 interpreted the words " shall have power to construct a rail- 
 road from the borough of Brie to some point on the east 
 boundary line of the township of North Bast, in the county 
 of Erie," as imperative, for the chief justice expressly says, 
 " the place at which the terminus should be established ^^eing 
 precisely designated by the act of incorporation in words 
 which render mistake impossible, all other places, whether 
 near or far off, are as surely excluded as if they had been 
 expressly forbidden. If we cannot hold companies to a 
 strict compliance with their charters, we cannot hold them 
 at all. 
 
 The defendants in this case have, by the terms of their 
 charter, " potoer and authoi-ity to lay out and construct a rail- 
 way to Allegheny avenue," that being the northern terminus 
 of their road. Now, if the words of this charter are impera- 
 tive, as they certainly must be interpreted to be, according to 
 
364 PENNSYLYANIA. [Phila Oom.Pl. 
 
 Martin vs. The Second and Third St. Pass. Ey. Co. 
 
 the spirit, if not the very letter, of the authority last above 
 cited, then the duty of the defendants becomes no longer 
 questionable, for, as by their charter the option no longer 
 remains with them, they maybe compelled to do that which 
 the legal interpretation of the charter commands to be done. 
 
 The termini of the road of defendants are fixed by their 
 charter ; they have clearly no right to substitute any other 
 points upon the roads as such termini, and if they could not 
 be compelled to complete the route, they might at once evade 
 the terms of the charter, by an indefinite extension of the 
 time when they might see fit to finish the road. 
 
 Besides, the current of authority in this state, and in the 
 Union, seems to settle the question that these charters are 
 contracts, and as such must be complied with. Lord Eldon, 
 long ago, was of the same opinion, for he says : " When I 
 look upon these acts of parliament, I regard them all in the 
 light of contracts made by the legislature, on behalf of every 
 person, interested in any thing, to be done under them, and I 
 have no hesitation in asserting, that unless that principle be 
 applied in construing statutes of this description, they become 
 instruments of greater oppression than anything under the 
 whole system of administration under our constitution." 
 Blachmore vs. Glamorganshire Canal Navigation, 1 Myl. and 
 E., 16 J^. 
 
 The present case is an illustration of this principle. The 
 defendants have purchased the entire line of omnibuses run- 
 ning upon Second and Third streets ; they have secured a 
 valuable route. The legislature intended not only that the 
 stockholders should profit by the act of incorporation ; but 
 that the public at large should receive substantial benefits. 
 Now, if to suit the convenience of the company, they may 
 stop short of either the northern or southern terminus of 
 their road, then they may stop at any intermediate point, as 
 we have before said, and thus destroy the very object of the 
 legislature in granting to them the franchises which they 
 enjoy. 
 
 If they had totally neglected to build the road, or having 
 built it, had then abandoned it, the question would have been 
 a different one ; but having accepted the charter, and acted 
 
1858.] PI:NN8YLTANIA. 305 
 
 Martin vs. The Second and Third St. Pass. Ry. Co. 
 
 upon and under it, they are bound in good faith to comply 
 with its terms, and if bound by law thus to act, then they 
 may be compelled by any appropriate remedy, either by man- 
 damus or injunction. That, in this instance, the defendants 
 are precluded from maintaining the positions assumed by 
 their counsel, will, we think, further appear by the consid- 
 eration of the third proposition, now under discussion, to 
 wit : " Has this company entered into any such contract 
 with the municipal authorities of the city as will oblige them 
 to finish their road ?" 
 
 By the fourth section of the act of incorporation, it is pro- 
 Tided that " before the said company shall commence to use 
 said streets, the consent of the councils of the city of Phila- 
 delphia shall be first obtained." 
 
 By an ordinance passed by the city councils, April 16 th, 
 1858, the councils declared their disapproyal of the act of 
 incorporation now under consideration, but provided that this 
 disapproval should be withdrawn if the defendants should 
 enter into certain obligations, and agree "to observe and be 
 subject to all ordinances of the city in relation to passenger 
 railways then in force, etc." 
 
 These defendants entered into the necessary obligations 
 and agreements, and thereupon became subject to the legal 
 operation of an ordinance approved July 7th, 1857, to regu- 
 late passenger railways. 
 
 By the eighth section of this ordinance, it is provided that : 
 "The directors of any .such company or companies shall, 
 immediately after the completion of any passenger railroad in 
 the city, file in the office of the city solicitor, a detailed state- 
 ment, under the seal of the company, and certified, under 
 oath or affirmation, by the president and secretary, of the 
 entire cost of the same ; and the city of Philadelphia reserves 
 the right at anytime to purchase the same by paying the orig- 
 inal cost of said road or roads at a fair valuation." Here then 
 is an express contract, deliberately entered into by defendants 
 with the city to do a certain act upon the completion of their 
 road ; now, if they may refuse to build the road to its north- 
 ern terminus, then the road may never be completed, and if 
 this court has no power to compel a specific performance of 
 
366 PENNSYLVANIA. [Sup. Ot. 
 
 Musser vs. The Fairmount and Arch St. Ry. Co. 
 
 this contract, then the whole power and authority of the 
 municipal corporation is at an end. True, the councils have, 
 as a consideration for this contract, delivered over in one 
 sense, the control of certain public streets to the defendants ; 
 but, if the principle asserted upon the argument is correct, 
 the defendants may evade the law when and as they please. 
 Such a construction of these several ordinances, and the agree- 
 ments under them, cannot be tolerated ; and, if there was 
 nothing beside in this case to direct and convince our judg- 
 ment, this point alone would be decisive of the whole con- 
 troversy. 
 
 "We are not disposed, however, to exercise the power of the 
 court in this instance, except it shall become imperatively 
 necessary. The interests of the public and of the stockholders 
 are of too important a nature to be injured by any sudden and 
 harsh action. We have come to a conclusion, founded, we 
 think, upon both reason and authority ; and, in protecting 
 the rights of the complainant, we intend also to pay due 
 regard to the interests of the company. 
 
 The defendants admit that it is their intention to finish the 
 road at some future day ; but, as they have entirely failed to 
 fix the precise time, it becomes our duty so to do. 
 
 Let the motion stand over to the first Monday of April, 
 A. D. 1859, upon defendants agreeing to use all practical 
 diligence to complete their railway at the time specified-: 
 injunction to stay in the meantime. 
 
 MUSSEE and others vs. THE FAIRMOUNT AND ARCH 
 STREET RAILWAY COMPANY. 
 
 5 Penn. Law Journal Bepts., JfiB; s. c. 7 Am. Law. Beg., S84. 
 
 The legislature passed an act incorporating a city passenger railway, 
 in which it was provided that before the company should use or occupy 
 the streets, the consent of the city councils should be obtained, and that 
 such consent should be deemed to have been given, unless the councils 
 signified their disapproval by the passage of an ordinance, within thirty 
 days aif ter the passage of the act. The city councils did pass an ordinance 
 
1859.] PENNSYLVANIA. 367 
 
 Musser vs. The Fairmount and Arch St. Ry. Co. 
 
 ■within the thirty days declaring their disapproval of the said act. Six 
 months thereafter the councils passed another ordinance, by which con- 
 sent was given to the company to use the streets. 
 
 Held, that in statutes, as in contracts, the right of election, where 
 exercised, like the execution of a power, satisfies the right. That the 
 councils having once elected, the power designated by the legislature 
 was exhausted, and the subsequent ordinance could not vitalize what 
 the previous one had destroyed. 
 
 An unauthorized occupancy of a street by railroad tracks upon it, is 
 a nuisance per se, and may be enjoined, and the removal of the tracks 
 may be compelled by any citizen. 
 
 Application for an injunction to restrain the defendants 
 from constructing a passenger railway in the city of Phila- 
 delphia, commencing at Tenth and Arch streets and con- 
 tinuing westward to Twenty-first street, and thence to Fair- 
 mount. 
 
 The facts are fully stated in the opinion of the court which 
 was delivered by 
 
 Thompson, J. — The public have a right to the mainte- 
 nance of streets and roads as common highways, subject to 
 restriction by the legislative power of the commonwealth. 
 There is no longer any reason for controTersy as to the right 
 of the legislature to grant the use of them to companies pro- 
 posing to facilitate the traHsit of the public along them. This 
 is settled definitely in the cases of The Philadelphia and 
 Trenton Railroad Company, 6 Whart., 25, and Commonwealth 
 vs. The Erie and North East Railroad Cmnpany, 27 Pa. St., 
 SS9. An unauthorized occupancy, of a street by railroad tracks 
 upon it, is a nuisance ^er se, etc., and its use as well as their 
 removal may be controlled by the injunction at the suit of 
 any member of the public. 27 Pa. St., SS9. The question now 
 before us turns solely upon the lawfulness or unlawfulness of 
 the occupancy of Arch street by the Fairmount and Arch 
 Street Passenger Railway Company. If they have a valid 
 charter, all questions of inconvenience to the immediate resi- 
 dents along the street are outside of the case. If they have 
 not, considerations of convenience to the public generally, 
 from passenger railways are equally unimportant here. 
 
 On the 16th day of April, 1858, the respondents were inoor- 
 
368 PENN8YLTANIA. [Sup. Ot. 
 
 Musser vs. The Fairmount and Arch St. Ry. Co. 
 
 porated, with power to " lay out and construct a railway, 
 commencing at Tenth and Arch streets, and continuing west- 
 ward along the same with a double track, to Twentieth and 
 Twenty-first streets respectively, with a single track to Callow- 
 hill street, and thence westwardly with a double track to the 
 wire bridge at Fairmount." 
 
 This absolute grant in the first section, however, was to be 
 dependent for vitality on the action, or silence of the city 
 councils. The provision on the subject is in these words : 
 " And provided further, that before the said company shall 
 use or occupy the said streets, the consent of the councils of 
 the city of Philadelphia shall be first obtained, and the con- 
 sent shall be taken and deemed to have been given if said 
 councils shall not, within thirty days after the passage of this 
 act, by ordinance duly passed, signify their disapproval 
 thereof." 
 
 It was to be, as is apparent from this provision, equally 
 effective in giving vitality to the company, whether consent 
 was affirmatively given within thirty days, or entire silence 
 was observed by the council. In either case the company 
 were authorized to " use and occupy the streets." But if, 
 within the time limited, the council disapproved the act of 
 assembly in the mode prescribed there, the privileges granted 
 to the company were to be at an end. In common parlance, 
 the councils were invested with the power to veto the pro- 
 posed road. If they exercised the power, and did nothing 
 more, it could not be doubted, I think, but that the privi- 
 lege granted to occupy the streets would thereafter become 
 functus. 
 
 On the 5th of May, 1858, and within the prescribed period, 
 the councils did in due form " ordain, that in pursuance of 
 the power and authority in them vested by the said act of 
 assembly, councils do hereby declare their disapproval of the 
 said act of assembly, in the above preamble mentioned, and 
 of the rights therein respectively granted to ' the Fairmount 
 and Arch Street City Passenger Eailway Company,^ to occupy 
 the streets and highways of the city of Philadelphia." 
 
 This ordinance, authorized by the legislature, and passed 
 in pursuance of the act, if there be nothing following it suffici- 
 
1859.] PENNSYLVANIA. 369 
 
 Musser vs. The Fairmount and Arch St. Ry. Co. 
 
 ently efficacious to control its efEect, certainly terminated 
 the rights of the company to use and occupy the streets men- 
 tioned in the act from and after its passage. 
 
 On the 16th of December, 1858, more than six months 
 after the passage of the foregoing ordinance, the councils 
 passed another, by which they gave consent to use the streets, 
 on condition that the company would surrender certain privi- 
 leges, granted in the act of incorporation, and give security 
 to be obedient to existing and future ordinances of the city. 
 
 The complainants contend that the legislature conferred 
 upon the councils the right of election, whether the company 
 should or should not have the privileges granted to use the 
 streets, and limited the time to thirty days, within which it 
 should be exercised, and that they did elect within the period 
 prescribed, that they should not be so used. 
 
 In statutes, as in contracts, the right of election, where 
 exercised, like the execution of a power, satisfies the right. 
 If this were not so, there would be no such thing as election ; 
 for otherwise it would be dependent on the varying and 
 changing opinions and minds of those exercising it. This 
 would not be an election. The councils in this instance were 
 the constituted agents to give vitality to the legislative enact- 
 ment, and the mode and manner of doing it, and the time 
 within which it was to be done, were all prescribed. Their 
 consent was to give vitality, their disapproval to nullify. 
 Within thirty days they had power to elect to do either. After 
 that there -was no authority to choose. A power granted must 
 be executed, according to the terms prescribed, and within the 
 time limited, otherwise it will be void. Loomis vs. McGlintoch, 
 10 Watts., 2H-279. If executed within these terms the 
 power is exhausted ; and it lies with the grantor of the power 
 to renew it, the agent cannot re-invest himself with it ; if he 
 could, the power would exist independently of its conditions 
 and limitations, and in disregard of the expressed will of the 
 grantor. The right of election exists upon the same princi- 
 ples. We cannot view the case before us as distinguishable 
 from, or an exception to these general principles. When the 
 legislature, out of regard to the local interests to be affected 
 by the grant to this company, conferred upon tlje councils 
 
 24 
 
370 FI:NNSYLVANIA. [Sup. ct. 
 
 Musser m. The Fairmount and Arch St. Ry. Co. 
 
 the power of disapproval of the act of incorporation^ they 
 undoubtedly meant that if disapproved within the time lim- 
 ited, it should be inoperative as to the privileges granted, or 
 why confer it ? It must also be conclusively presumed .that 
 the effect of disapproval was contemplated, and that the efEect 
 was the nullification of the act. When the act of election to 
 disprove took place, the grant of the privileges fell, and thus 
 the matter remained until after the prescribed period of 
 action passed by. After this, to whom did the power of 
 resuscitation belong ? To the legislature or the councils ? 
 The latter could only act on the authority given by the former. 
 They have no inherent power over the matter, and we look in 
 vain for any express power to elect a second time, and thus 
 vitalize what they had destroyed. Like the company, the 
 municipal corporation can only exercise such functions as are 
 given to it, and when the mode and manner are prescribed, 
 they must be followed. They cannot exist as doubtful pow- 
 ers, for the principle is applicable to them, as to other cor- 
 porations, that whatever is not clearly granted is withheld. 
 Possessing the delegated power to nullify an act of the legis- 
 lature, without a similar delegation of power, they could not 
 revive a defunct act or privilege. There is no such delegation 
 in this case, and I think the conclusion cannot be resisted 
 that the councils could not revive privileges totally nullified by 
 the ordinance of disapproval, and that the act of 16th of Decem- 
 ber conferred no rights upon the company. 
 
 I do not subscribe to the theory that the only object of dis- 
 approval was to prevent the presumption of assent. This was 
 not what the legislature meant or said, and what the councils 
 intended is another thing. We look to the former, and are 
 obliged to disregard the latter, unless it is in accordance with 
 the legislative will. The councils did the act they were 
 authorized to do. They did it in the manner prescribed and 
 within the time; after that they were powerless, and the law 
 gives effect to the act and withholds the privileges denied to the 
 company by them. The only power that can revive those 
 privileges is the legislature, and to that the company must 
 appeal. If the councils could disapprove, and afterwards, 
 without regard to time, approve, where would be the end and 
 
1859.] PENNSYLYANIA. 371 
 
 Musaer m. The Fairmount and Arch St. Ry. Co. 
 
 limit to their right of choice or election ? The rights and 
 privileges of the company, under such circumstances, might 
 with truth be said to be vagrant, indeed sometimes in abey- 
 ance, sometimes active, and again in abeyance, as the changes 
 in opinion of a changing majority might happen to be. 
 
 It is unnecessary, under this view of the case, to discuss 
 fully the ordinance of 16th of December, 1858. To my mind, 
 it is obnoxious to the most grave objections as an exercise of 
 the right of election, on the execution of a power. It is con- 
 ditional, dependent on the act of the company in surrendering 
 certain privileges. The legislature undoubtedly only conferred 
 the right of election upon councils, under the law as passed. 
 There is no room, I think, for an argument, that they might 
 change the form of enactment to suit their views, and then 
 approve. This would be to assent to, and bring into active 
 operation, what the legislature did not assent to and enact, 
 and would be legislation in its fullest sense. It will not 
 answer the objection in my mind, to point to the immateriality 
 of the change, the legislative will is unalterable, excepting by 
 its own authority. If councils, under the authority given, 
 should in any particular stipulate for a distinct change of the 
 enactment as a condition for their assent, they might do the 
 same thing in several or many particulars, and thus change 
 the whole character of the organic law of the company. This 
 would be legislation beyond their chartered limits, and could 
 not be sustained for a moment, there being no authority to 
 sanction it. But the very act of approval in this instance 
 was conditional, and contingent upon the surrender of certain 
 privileges, to be evidenced by prescribed acts of the company. 
 Standing alone, the ordinance was virtually a disapproval, for 
 it was conditional, and not to be an act of assent until the 
 law was modified by a withdrawal of the privileges mentioned. 
 It was to become an assent under the law, not by the act of 
 councils alone, as the statute required, but on the performance 
 of an act by the company. This, I think, was a defective and 
 inoperative exercise of the power of election conferred, even if 
 it had been within their power to act, which I deny, after the 
 passage of the ordinance of the 6th of May, 1858, and without 
 regard to the time fixed for action. The railway company 
 
372 NUW TOEK. [Oom.Pl. 
 
 Winterson vs. The Eighth Avenue R. R. Co. 
 
 does not possess the power to occupy and use the streets in the 
 complainant's bill mentioned, and it is my duty to grant the 
 preliminary injunction as prayed for, to restrain them from so 
 doing. The majority of the judges who sat in the hearing of 
 this case, concur in opinion that the injunction should issue. 
 The reasons given are my own. 
 
 Decree accordingly. 
 
 MARIA WINTERSON and SAMUEL S. WINTERSON 
 
 vs. THE EIGHTH AVENUE RAILROAD 
 
 COMPANY. 
 
 &EKEBAL TERM. 
 
 6 N. Y. Oormrwn Pleas, {2 Hilton,) 389. 
 
 The complaint in an action against a railroad company for damages 
 for injuries, recited that the injury was caused by the conductor giving 
 the signal to start the car before the plaintiff was fairly on the car, 
 whereby she was thrown to the ground, etc., and then followed an aver- 
 ment that the conductor acted in a negligent and culpable manner as 
 aforesaid, and by his wilfulness and gross neglect caused the injury. 
 
 Held, that the latter part of the averment might be rejected, and that 
 the recital of the facts coupled with the averment that the conductor 
 acted negligently, was a sufficient averment of a cause of action. 
 
 A complaint is sufficient if an averment of a good cause of action can 
 be gathered from it. 
 
 Held, that if the complaint was bad for duplicity, the defendants 
 should have demurred, and not having done so, were not entitled to a 
 nonsuit at the trial on that ground. 
 
 Held, further, that the only objections that can be taken to a com- 
 plaint at the trial are, that a cause of action could not be collected from 
 it, or that the court has no jurisdiction. 
 
 The case on appeal did not contain the judge's charge to the jury, 
 nor did it appear that any exception had been taken to the charge. 
 
 Held, that it was to be assumed that the charge was correct, and that 
 the questions involved were fully submitted to the jury with all due and 
 proper instructions. 
 
 For the wilful acts of a servant the company is not liable. 
 
 This was an appeal by the defendants, from a judgment 
 entered upon a verdict of a jury, in favor of the plaintiffs, 
 
1859.] NEW YORK. 373 
 
 Winterson ««. The Eighth Avenue R. R. Co. 
 
 who brought the action to recover damages for injuries 
 received by the plaintifE, Maria Winterson, while attempting 
 to get on one of the defendants' cars. It was alleged in the 
 complaint that, while the car was standing to receive passen- 
 gers, the conductor who was on the platform, saw the plaint- 
 ifE Maria Winterson, approach and attempt to get on ; that 
 while she was getting on he gave the signal to start the car, 
 and before she had time to get on the platform, the car 
 started, and by the sudden movement she was thrown off and 
 fell upon the street pavement and received serious injuries. 
 The complaint then averred, "that the conductor of said car 
 acted in a negligent and culpable manner, as aforesaid, and he, 
 by his wilfulness and gross neglect, caused the plaintifE to fall, 
 as aforesaid, and receive her said several injuries ; and she 
 alleges that the defendants are guilty of carelessness and 
 negligence in having in their employ and service such careless 
 and negligent servants. She alleges that she was attempting 
 to get upon said car when the same was at rest, and in pres- 
 ence and view of the said conductor, and she was using care 
 and caution at the time, and the said conductor was guilty of 
 gross and wilful negligence and carelessness." 
 
 The answer of the defendants denied all the allegations of 
 the complaint. 
 
 At the trial, before any testimony had been taken, a motion 
 was made by the defendants' counsel that the complaint be 
 dismissed on the ground that it did not state facts sufiBcient 
 to constitute a cause of action against the defendants, for the 
 reason that, as appeared by the complaint, the act complained 
 of was charged to be the wilful act of the conductor of the 
 car of the defendants, and that there was nothing stated or 
 charged therein, whereby the defendants became or were 
 responsible for the wilful misconduct of the conductor. The 
 court denied the motion and the defendants' counsel excepted. 
 It was then consented on the part of the plaintifEs to strike 
 out of the complaint, that part that alleged that the careless- 
 ness was wilful, and only claimed for carelessness and 
 negligence. 
 
 The trial then proceeded. The evidence as to the manner in 
 which the injury occurred was very conflicting; the plaintiffs' 
 
374 N:EW YORK. [Oom.Pl. 
 
 Winterson ««. The Eighth Avenue R. R. Co. 
 
 witnesses testifying substantially as stated in the complaint, 
 and the conductor, the defendants' witness, to an entirely 
 different cause for the injury, and which, if not contradicted, 
 freed the defendants from responsibility. The case upon 
 appeal, gave the testimony of the witnesses in full, and con- 
 cluded thus : 
 
 " The jury, under a charge from the judge, retired, and 
 afterwards came into court with a verdict for the plaintiffs, 
 and assessed their damages at five hundred dollars, upon 
 which a judgment was entered." 
 
 Mr. Hamilton W. Robinson and Mr. Henry Sacia, for the 
 appellants. 
 
 Mr. Charles S. Spencer and Mr. A. Sandford, for the 
 respondents. 
 
 By the Ooubt : Dalt, F. J. — The complaint recites the 
 particular facts from which the injury proceeded, namely : 
 that while the car was standing to receive passengers, the 
 plaintiff, Maria Winterson, approached it and stepped with 
 one foot upon the step of the car, and took hold of the railing 
 with one hand, intending to get on the car ; when the con- 
 ductor, who was standing on the platform, and saw her 
 attempting to get on, gave the signal for the car to start, at 
 the same time saying to her, "you are too late," and before 
 she had time to get on the platform, that she was thrown off, 
 and fell upon her face and breast, receiving a serious injury. 
 This statement is followed by an averment that the conductor 
 acted in a negligent and culpable manner as aforesaid, and by 
 his wilfulness and gross neglect caused the plaintiff to fall, 
 and that he was guilty of gross and wilful negligence and 
 carelessness. The latter part of the averment may be rejected, 
 and the recital of the facts constituting the cause of action, 
 coupled with the averment that the conductor acted in a 
 negligent and culpable manner, and that the defendants were 
 guilty of carelessness and negligence in having such careless 
 and negligent servants, is an explicit and sufficient averment 
 of a cause of action, proceeding from the negligence of the 
 defendants. If the complaint relied alone upon the averment 
 
1859.] NUW TOBE. 375 
 
 Winterson vs. The Eighth Avenue E. R. Co. 
 
 of a cause of action arising from the wilful act of the con- 
 ductor, then it would show that the action should have been 
 against him and not against the company, and it would have 
 been the duty of the judge to have granted a motion for a 
 nonsuit ; but as the acts of the conductor are set forth, and 
 he is averred to have acted negligently, all the averments set- 
 ting up wilfulness on his part may be disregarded, and a good 
 cause of action will remain. It is sufficient if an averment of a 
 good cause of action against the defendants can be collected 
 from the complaint. If the complaint is double in setting up a 
 cause of action against the servant of the defendants growing 
 out of his wilful act, and one against the defendants for the 
 servant's negligence, arising out of the same transaction ; 
 then the defendants should have demurred upon the ground 
 that two causes of action had been improperly joined ; Max- 
 well vs. Farnam, 7 How. Pr., 2S6; Cooh vs. Chase, S Duer, 
 6Ji3; and the plaintiffs would have been compelled to elect. 
 Not having availed themselves of this, which was their proper 
 remedy if the complaint was bad for duplicity, they were 
 not entitled to a nonsuit at the trial upon that ground. The 
 only objection they could take to the complaint at the trial 
 would be, that a cause of action could not be collected froni 
 it, or that the court had not jurisdiction. 
 
 Treating the complaint as averring a good cause of action 
 arising from the negligence of the defendants' servant, it 
 remains but to consider whether the proof upon the trial 
 showed that the injury was caused by a wilful act of the 
 conductor, or was simply the result of his negligence, and 
 upon that point it was sufficient to say that the question 
 was one eminently fit for the jury, and as the charge of 
 the judge is not given, and was not objected to, we must 
 assume that it was fully submitted to them with all due 
 and proper instruction. It is suflBcient for us to say that it 
 does not appear as a matter of law upon the evidence that the 
 conductor acted wilfully ; that is, with a deliberate intention 
 to injure Mrs. Winterson, or exhibited that reckless disregard 
 of the life or person of another which is equivalent, or amounts 
 to the same thing, and for which he alone and not the com- 
 pany would have to answer. His own evidence is conclusive 
 
376 PENN8YLYANIA. [Quarter Sess. 
 
 In Re Citizens' Passenger Railway Co. 
 
 upon that point, for the transaction as narrated by him is to 
 the effect that he was entirely without blame ; that the injury 
 was caused by the act of Mrs. Winterson alone, to which he 
 in no way contributed by his negligence or otherwise ; in 
 which he was contradicted by the plaintiffs' witnesses, Mr. 
 and Mrs. Gay. One of these witnesses testified that he pushed 
 her, but the witness afterwards stated what he did, that is, 
 touched her with his hand upon her back while she had hold 
 of the rail, and that she fell, which was also the statement of 
 the other witness. If this raised any doubt as to the nature 
 of the act that caused the injury ; that is, as to whether it 
 was wilfully done or not, it was a question for the considera- 
 tion of the jury, and as they have passed upon it, the judg- 
 ment must be aflBrmed. 
 
 Judgment affirmed. 
 
 IN KE CITIZENS' PASSENGER RAILWAY 
 COMPANY. 
 
 QUARTER SESSIONS OP ALLEGHENY CO. 
 h, 10. 
 
 An act of assembly authorized the construction of a horse railroad 
 upon the roadway of a turnpike company incorporated by a previous 
 act of assembly. The subsequent act provided for the compensation 
 for the taking of the roadway. 
 
 Held, that the subsequent act was not unconstitutional. 
 
 The legislature may invest a corporate body or individual with the 
 privilege of taking private property for public use, upon compensa- 
 tion being made or ad equate security given, before the property is 
 taken. And the principle operates upon the property of corporations 
 with equal force as upon that of individuals. 
 
 The grant of the franchise of a ferry, bridge, turnpike or railroad is 
 not in its nature exclusive, so that the state cannot interfere with it by 
 the creation of another similar franchise, tending materially to impair 
 its value ; the charter is a mere easement and not a grant of fee simple 
 in the soil, and the legislature has full power to grant as many more 
 easements, on the same territory, as public convenience may require, 
 always making indemnity for damage done to those corporations 
 which were the first objects of its bounty, or the recipients of ante- 
 cedent grants. 
 
1859.] PENNSYLVANIA. 377 
 
 In Ee Citizens' Passenger Railway Co. 
 
 It Is indispensable tliat eacli legislature should assemble with the 
 same measure of sovereign power which was held by its predecessors, 
 and any act of the legislature disabling itself from the future exercise 
 of powers intrusted to it for the public good, is void. 
 
 The facts are fully stated in the opinion. 
 
 Mr. 0. H. Rippey, for the petitioners. 
 
 Mr. Geo. P. Hamilton, Mr. D. D. Bruce, and Mr. Wm. B. 
 Negley, for the respondents. 
 
 McClueb, p. J. — The proceedings in this and other cases 
 now before us, arise under the provisions of a recent act of 
 assembly, incorporating the Citizens' Passenger Eailway 
 Company of Pittsburgh. Corporations such as these origi- 
 nate from motives of private and personal advantage for the 
 sake of pecuniary gain, direct or incidental, real or fancied, 
 to the corporators or stockholders. The public interest is 
 not the motive to embark in them, but the public reaps a 
 collateral advantage, when public convenience is one result of 
 the enterprise. 
 
 We consider the public has an interest in good roads of any 
 kind, and that the public will have bad roads on this great 
 thoroughfare until the controversies of these corporations 
 cease. There is an end of repair on all the line of road this 
 passenger railway will travel, which will not be resumed 
 pending these controversies. In this the public is an inter- 
 ested sufferer. In all these important cases this court is 
 compelled by law to make contracts for men who are far 
 better qualified to make them for themselves. 
 
 On the 23d of March, 1859, an act of assembly was approved, 
 entitled, " An act to incorporate ' The Citizens' Passenger 
 Eailway Company of the city of Pittsburgh.'" Paviplilet laws 
 of 1859, No. 208, page 20S. The first section of the act indi- 
 cates the style and title of the corporation, and the starting 
 point, route, and terminus of the road. Section 10 is in these 
 words: " That before the said railway company shall use or 
 occupy any portion of any turnpike, plank road, bridge, or 
 street, or road of any borough, if the said railway company and 
 said turnpike, plank road, or bridge company, or councils of 
 
378 FE'SNSYLYANIA. [Quarter Sess. 
 
 In Re Citizens' Passenger Railway Co. 
 
 any borough, cannot agree upon the terms for the use thereof 
 within thirty days from the organization of the said company, 
 that either party may apply, by petition, to the Court of 
 Quarter Sessions of Allegheny county, setting forth the facts, 
 and praying the court to appoint a time for the hearing of 
 the parties, not more than twenty days from the filing of the 
 said petition, of which time and place the opposite party shall 
 have at least ten days' notice, and the court shall immediately 
 after hearing the said parties, proceed to fix and adjudge the 
 rate of compensation to be allowed and paid by said company, 
 for the use of such turnpike, plank road, bridge, or street, 
 and the terms on which it shall be used, and the mode and 
 manner in which the same shall be kept up by the respective 
 parties ; which judgment shall be and remain final and con- 
 clusive between the parties : provided further, that the, com- 
 pany shall have power to make such changes in the grade of 
 the turnpike and plank road as may be required to enable 
 them to use their railway with ease and convenience." Sec- 
 tion 16 directs when the railway shall be commenced and 
 completed. 
 
 This railway route is from the intersection of Market and 
 Fifth streets to Liberty street, thence along and across said 
 street to Cecil's alley, thence along said alley to Penn street, 
 thence along Penn street to the G-reensburg and Pittsburgh 
 turnpike road, thence along said road to Butler street in the 
 borough of Lawrence ville, thence along said street to the 
 Lawrenceville and Sharpsburg plank road, thence by said 
 plank road, and by way of Sharpsburg bridge into the borough 
 of Sharpsburg, a distance of between five and six miles. Here 
 we haye the city of Pittsburgh, the turnpike road, the borough 
 of Lawrenceville, the plank road, the Sharpsburg bridge, 
 the borough of Sharpsburg, and the petitioners — seven cor- 
 porations. This act of assembly confers upon the court novel 
 and extraordinary powers, with correspondent responsibilities 
 annexed to their exercise. " The court shall fix and adjudge 
 the rate of compensation to be allowed and paid by said com- 
 pany for the use of such turnpike, plank road, bridge, or 
 street, and the terms on which it shall be used, and the mode 
 and manner in which the same shall be kept up by the respect- 
 
1859.] FENN8YLYANIA. 379 
 
 In Ee Citizens' Passenger Railway Co. 
 
 ive parties, which judgment shall be final and conclusive 
 between the parties." 
 
 The portion of the turnpike over which the passenger rail- 
 way will pass, is from the city limit to the mouth of Butler 
 street, in the borough of Lawrenceville, about sixteen feet in 
 width, and twenty-three hundred feet in length. 
 
 The counsel for this road allege that the act incorporating 
 the Citizens' Passenger Kailway is unconstitutional. This 
 comprises all the objections made by the turnpike road com- 
 pany. Is the act constitutional ? The position assumed is 
 that the charter of the Greensburg and Pittsburgh Turnpike 
 Company is a contract which no future legislature can 
 impair, and that its franchise is exclusive and above and 
 beyond legislative interference. A summary answer to such 
 objections might be that the power which granted the char- 
 ter, reserved the power to revoke it. But what is closer to 
 the point, the legislature expressly declared that " if the legis- 
 lature should at any time after the year one thousand eight 
 hundred and thirty-six, think proper to take possession of the 
 road or any part thereof," it can be done in the mode 
 described, and thereupon all the right, title, and interest of 
 the road shall cease. See charter of this road, sec. 25; 
 approved 34th of February, 1806. The legislature might, 
 under this section, take the road, or any part of it, in the 
 manner described, and abolish the toll on the whole road or 
 any part of it in the manner pointed out by the terms of the 
 charter itself. 
 
 The legislature may invest a corporate body or individual 
 with the privilege of taking private property for public use, 
 upon compensation made or adequate security given, before 
 the property is taken ; and it cannot be shown that the rights 
 of corporations are any more sacred in any legal or constitu- 
 tional view than those of individuals. The same turnpike 
 took private property for public use, in a strip or line three 
 or four hundred miles long, from Pittsburgh to Philadelphia. 
 I shall make no reference to the right of "eminent domain," 
 in Pennsylvania ; it is familiar to popular apprehension as well 
 as the professional mind. 
 
 In regard to the position that the grant of the franchise of 
 
380 PENN8YLYANIA. [Quarter Sess. 
 
 In Re Citizens' Passenger Railway Co. 
 
 a ferry, bridge, turnpike or railroad is in its nature exclusive 
 so that the state cannot interfere with it 'by the creation of 
 another similar franchise, tending materially to impair its 
 value, it is, with great deference, submitted that an import- 
 ant distinction should be observed between those powers of 
 government which are essential attributes of sovereignty, 
 indispensable to be always preserved in full vigor, such as the 
 power to create revenue for public purposes, to provide for 
 the common defense, to provide safe and convenient ways for 
 the public necessity and convenience, and to take private prop- 
 erty for public uses and the like ; and those powers which are 
 not thus essential, such as the power to alienate the lands and 
 other property of the state, and to make contracts of service, 
 or of purchase and sale and the like. 
 
 Powers of the former class are essential to the constitution 
 of society, as without them no political community can well 
 exist, and necessity requires' that they should continue unim- 
 paired. They are intrusted to the legislature to be exercised, 
 and not to be bartered away, and it is indispensable that each 
 legislature should assemble with the same measure of sover- 
 eign power which was held by its predecessors. Any act of 
 the legislature disabling itself from the future exercise of 
 powers intrusted to it for the public good, must be void, 
 being in effect a eovena,nt to desert its paramount duty to the 
 whole people. Oreenleaf's note, Cruise, vol. 2, title 27, sec- 
 tion 29. 
 
 I consider that the constitutionality of acts of the legisla- 
 ture like this we are considering, has ceased to be a question. 
 A multitude of cases in many states has put the question to 
 rest. A few of the more prominent authorities may be refer- 
 red to. Bonaparte vs. Camden and Amhoy Railroad Company, 
 1 Bald., 205-228; Ames' Railway Cases, 86, I4S, 285, 825, 
 508, 5Jfi; West River Bridge Gomimny vs. Dix, 6 Hotv., 
 507 J Young vs. McKenzie, 3 Eelly, (Ga.,) 81 j Barber vs. 
 Andover, 8 N. H., 898 ; Peirce vs. Somersworth, 10 N. H., 
 19; Armington vs. Towns of Barnet, Ryegate and Neioberry, 
 15 Yt., 745; Commonwealth vs. Erie and Northeast Railroad 
 Company, 27 Pa. St., 889-85 ^ ; Philadelphia and Trenton 
 Railroad Company, 6 Whart., 25-48; see also, Redfield on 
 
1859.J NHW TOBK. 381 
 
 Van Schaick vs. The Third Avenue R. R. Co. 
 
 Railways, Part III., chap. XI., sec. 8, title, " Corporate 
 Franchises Condemned, 255-261;" and what is more to the 
 purpose, our own supreme court recognize the principle in all 
 those cases which involye it. 
 
 Here is Butler street, in Lawrenceville, on which, (if it be 
 on it now,) the old Pittsburgh and Butler pike has an ease- 
 ment ; Lawrenceville has an easement ; the plank road has an 
 easement; the Citizens^ Passenger Kail way has an easement, 
 but no fee simple in the soil. All these easements are mere 
 creatures of the legislature, created by a constitutional inva- 
 sion of individual or private rights, and the legislature has 
 full power and vigor to grant as many more easements in all 
 future time as public convenience and necessity may require, 
 always making indemnity for damage done to those corpora- 
 tions which were the first objects of its bounty, or the recipients 
 of antecedent grants. 
 
 So far as regards the objection of the respondents that 
 this court has no jurisdiction, the petition recites what in the 
 words of the act of assembly confers it. We are of opinion 
 that the act is constitutional, and the court has Jurisdiction. 
 
 MYNDBKT VAN SCHAICK vs. THE THIRD 
 AVENUE RAILROAD COMPANY.* 
 
 SPECIAL TERM. 
 
 SO Ba/rb., 189; s. c. 8 Abb. Pr., 380. 
 
 The plaintiff leased certain premises to a person as agent of an associ- 
 ation which afterwards became incorporated. After the incorporation 
 the association transferred all its property to the corporation, (the defend- 
 ants,) and caused the lease to he assigned to them, the latter covenanting 
 to do and perform all things which the association were bound to do. 
 
 Held,, that the plaintiff could maintain an action against the defend- 
 ants upon the covenants of the lease and that their liability for the rent 
 was not limited to the time that they had been in occupation as a corpora- 
 tion. 
 
 ♦This case was reversed in 2b How. Pr., khS ; s. o. 2 Am. St.-By. Dec. ; but, by a 
 divided court; and on a subsequent trial and on almost the same state of facts the 
 special terra again decided in favor of the plaintiff, which decision was afSrmed by 
 the general term in A5 Barb. U09 ; s. c. a Am. St.-By. Dec. ; which was affirmed 
 by the court of appeals in S9 N. Y., She; s. c. 2 Am. St.-By. Dec. 
 
382 Ni:W YORK. [Sup. Ot. 
 
 Van Schaick vs. The Third Avenue R. R. Co. 
 
 This action was brought by the plaintifE Myndert Van 
 Schaick for the recovery of rent of certain premises which he 
 had leased to one Henry Van Schaick as agent or trustee of 
 an association that was afterwards incorporated as the Third 
 Avenue Eailroad Company. The lease was assigned to the 
 company after incorporation. 
 
 Davies, J. — If the defendants can be regarded as standing 
 only in the position of assignees of the lease made by plaintifE 
 to Henry Van Schaick, then they are not liable to the 
 original lessor, (the plaintiff,) for rent which has accrued 
 since they ceased to have the possession of the demised 
 premises. If they are only assignees of the lease, they are 
 not liable for any breaches of the covenants of the lease since 
 their assignments of the lease to Searles. 
 
 This court in Carter vs. Hammett, 18 Barb., 608, held that 
 ''the only liability of the assignees at any time was the 
 result of their possession, and was limited in its duration 
 by the operation of that possession. * * * ijjjg j-^jg j^, 
 such eases is — and it is founded on the principles of justice and 
 implied contracts — that each successive party, other than the 
 original lessee, is liable only by reason of, and for the term of 
 his own possession. Possession is, therefore, both the founda- 
 tion and the boundary of the liability." 
 
 Chancellor Walworth, in Childs vs. Glarh, S Barb. Oh., 
 5%-60, says : "It is perfectly well settled, however, that the 
 assignee of a lease is only liable, as such assignee, for the 
 rents which accrued or became payable, or for other covenants 
 broken, while he was such assignee ; and that he may dis- 
 charge himself from all further liability by assigning his 
 interest in the premises to a stranger, even if the assignee is a 
 beggar, provided he actually relinquishes the possession of 
 the premises and all interests therein, so that the assignment 
 is not merely colorable or fraudulent. For as there is no 
 privity of contract between the lessor and the assignee of the 
 lease, the latter is personally liable only in respect to his 
 privity of estate in the land, or in respect to covenants running 
 with the land, for the rents which accrued and became payable 
 after such privity of estate commenced, and before it termi- 
 
1859.] NEW YORK. 383 
 
 Van Schaick m. The Third Avenue R. R. Co. 
 
 nated ; that is, while he enjoyed, or had the right to enjoy the 
 premises, or some part thereof , as an assignee of the lease." 
 In support of these propositions, he cites Armstrong vs. 
 Wheeler, 9 Cow., 88; Tovey vs. Pitcher, Garth., 177 ; Leheux 
 vs. Nash, 2 Strange, 1221; Taylor ts. Shwn, 1 Bos. & 
 Pul, 21. 
 
 The cases referred to fully sustain the position of the 
 chancellor, and the case in Strange further holds that it was 
 no fraud in the assignee to assign to a prisoner in the Fleet, to 
 whom he lent fire shillings, to pay to him the foundation of 
 the assignment. 
 
 It is clear, therefore, upon the authorities referred to, that 
 if the defendants stand in the character of assignees solely, 
 they are not liable for any rent accrued since their assignment 
 to Searles. 
 
 But it seems to me that the facts disclosed an entirely 
 different case, and by it their liability is to be tested. 
 
 The lease was in fact made to Henry Van Schaick, as the 
 agent or trustee of the company of which the defendants 
 are the successors. The original association or company 
 assumed all the covenants of the lease, and the present defend- 
 ants have taken from that association all its property, with 
 covenants to do and perform all things which the association 
 were bound to do. And immediately upon the execution of 
 such transfer by the association, and to effectuate and carry 
 into effect the grant made by it to the defendants, Henry 
 Van Schaick, the trustee and agent of the association, assigned 
 the lease to the defendants. 
 
 The defendants are therefore the true owners of the lease, 
 and Van Schaick held it for their benefit. If he had refused 
 to transfer it to them, this court would have compelled him to 
 do so. He did voluntarily what he was under a legal obliga- 
 tion to do : vest the title to the lease in the name of his princi- 
 pals. It cannot be denied, that if Henry Van Schaick had been 
 sued for the rent reserved by this lease, or was about being 
 sued therefor, he might maintain his action against these 
 defendants, to compel them to relieve him from the position 
 he occupied, as their trustee and surety. 
 
 I think, therefore, when the defendants took the assignments 
 
384 NJEW YORK. [Sup.Ot. 
 
 Van Schaick m. The Third Avenue R. R. Co. 
 
 of the lease from Van Schaick on the organization of this 
 company, they but carried out and gave effect to the intention 
 of all parties, that when the company became legally organized 
 and competent to take title, they were to become the lessees of 
 the premises, and subject to the performance of all the 
 covenants contained on the part of the lessees. 
 
 Eegarding the transaction in this light, and which I am 
 satisfied is the true aspect to regard it; and which is confirmed 
 by the acts of the parties, the case of Lorillard vs. Lorillard, 
 Jf Abb. Pr., 210, is not without significance. In that case 
 it was clearly intimated, that if the original lessee was the 
 mere instrument of the subsequent assignee, and that in fact 
 it was not intended that any title should vest in the original 
 lessee, then that the subsequent assignee might be liable 
 to pay the rent, even though he had assigned the lease. 
 
 These views were expressed upon the principle that the real 
 party in interest should pay the rent, and that when that party 
 was discovered, he might be made liable. In this case there 
 can be no controversy that the original association was in fact, 
 though not in name, the true and actual lessee, and it seems 
 to me that the defendants have assumed the same position, 
 and have subjected themselves to the same liabilities. 
 
 There can be no doubt that Henry Van Schaick is liable to 
 pay this rent, and standing as he does, in my opinion, as 
 surety for the defendants, his creditor can avail himself of 
 his right primarily to call upon the defendants, to pay 
 directly to him, instead of compelling Henry Van Schaick to 
 pay him, and leave him to call upon the defendants for reim- 
 bursement. 
 
 This rule is clearly laid down in Curtis vs. Tyler, 9 Paige, 
 4S£, and is every day followed in this court. In that case the 
 plaintiffs were held entitled to avail themselves of a security 
 given to the debtor for the payment of the debt owing to 
 them. The chancellor says : " It is well settled, however, 
 that when a surety, or person standing in the situation of a 
 surety for the payment of a debt, receives a security for his 
 indemnity, and to discharge such indebtedness, the principal 
 creditor is in equity entitled to the full benefit of that security. 
 And it makes no difference that such principal debtor did 
 
1859.] PENNSYLVANIA. 385 
 
 Commonwealth vs. Jeandell. 
 
 not act tipon the credit of such security in the first instance, 
 or even know of its existence." 
 
 I therefore hold, that the defendants contracted with the 
 plaintifE through Henry Van Schaick, as their agent or 
 trustee : 
 
 1. That they implied by as well as expressly agreed to pay 
 the rent, to assume the position of lessees, and to indemnify 
 Henry Van Schaick. 
 
 2. That the contract originally made between the company, 
 while unincorporated, and Henry Van Schaick and the 
 plaintifE, was legally and equitably made with the defend- 
 ants when incorporated, and that they adopted it, and availed 
 themselves of its benefits, etc. 
 
 3. It follows that taking the benefits resulting from the 
 arrangement, they are also subject to its burdens, certainly to 
 the extent of relieving and indemnifying Henry Van Schaick 
 to the extent of his liability to the plaintiff. 
 
 4. That in equity, Henry Van Schaick's right to indemnity 
 is the property of the plaintiff, his creditor, and may be 
 enforced by him. 
 
 The plaintiff is therefore entitled to judgment, that the 
 defendants perform with him all the covenants of the lease to 
 be kept and performed by the lessees, and pay the back rent, 
 and pay off and discharge all assessments unpaid on the 
 premises since the date of the lease, and that the plaintiff 
 recover his costs, to be adjusted, etc. 
 
 COMMONWEALTH vs. WILLIAM H. JEANDELL. 
 
 NISI PBIUS. 
 
 ^ Grant's Cases, 506 ; s. c. 7 Am. Law Beg., 615. See s. c. 3 Phila., 509 ; 
 16 Leg. Int., S64 ; 1 Am. Bt.-By. Bee, JiSS. 
 
 The act of 32d of April, 179i, inflicted a penalty upon those who 
 performed worldly employment on the " Lord's day, commonly called 
 Sunday." The penalty imposed was a fine of four dollars for each 
 oilense. 
 
 Rdd, that the driver of a horse car was doing worldly employment 
 within the meaning of the statute. 
 
 25 
 
386 PENNSYLYANIA. [Sup. Ot. 
 
 Commonwealth m. Jeandell. 
 
 Meld, also, that the driver of the car was also guilty of a breach of 
 ' the peace. That the law gives to the public the right of enjoying the 
 Sabbath, as a day of rest and of religious exercise, free and clear of all 
 disturbance from merely unnecessary and unauthorized worldly employ- 
 ment. That where this law is contravened in such a manner as to dis- 
 turb that enjoyment, by noise or disorder accompanying it or incident 
 to it, it may be treated as a breach of the peace. 
 
 The prisoner, Wm. H. Jeandell, was brought before Jus- 
 tice Thompson, of the Supreme Court, sitting at Nisi Prius, 
 on a writ of haieas corpus. 
 
 The facts of the case are fully set forth in the following 
 opinion delivered July 33, 1859, by 
 
 THOMPSOif, J. — The prisoner, Jeandell, was arrested on 
 Sunday, the 17th inst., by oflBcer Sergeant Orr, on instruc- 
 tions from the mayor, while in the act of driving one of the 
 cars of the Green and Ooates Street Passenger Eailway Com- 
 pany, filled with passengers, at Coates and Twenty-second 
 streets. The arrest took place at 1 o'clock, P. M., of the day, 
 and shortly after the starting of the car. He was one of the 
 ordinary drivers of the line, and it is admitted was at the 
 time driving for hire for the company, in the business of car- 
 rying passengers, on and along the line of the company's 
 road, for the usual week day fare. It appears from a letter 
 of the president of the company to the mayor, that it was 
 the intention of the company to run their cars on the day 
 mentioned, and on Sundays generally, under certain regula- 
 tions, as to the rate of speed in passing churches, and in 
 changing their bells for others making less noise. The mayor 
 having received this notice, thought it his duty to direct the 
 arrest of those engaged in driving the cars, upon the grounds 
 of a breach of the public peace. 
 
 The evidence disclosed that the car was full of passengers, 
 and it was testified that there was considerable noise, and 
 much discussion on the subject of the rumored arrest, and 
 the right of the line to run their cars on Sunday. It also 
 appeared, that a pretty large concourse of people were col- 
 lected at the depot of the company, and at the place of the 
 arrest, and that, after the driver and conductor were arrested. 
 
1859.] PENNSYLVANIA. 387 
 
 Commonwealth m. Jcandell. 
 
 there was singing in the car. Evidence was heard without 
 objection, on both sides, upon the question of the alleged 
 breach of the peace, as to the noise made by those in the 
 car, and of the noise and disturbance made by the car 
 itself. It appeared that the cars had been run, on and 
 along this line the preceding Sunday, and several witnesses 
 testified that it greatly disturbed the public worship in some 
 of the churches along the line, as well as private citizens. 
 This evidence was proper, as showing the extent of the dis- 
 turbance, occasioned by the running on the day of the arrest, 
 and what the extent of it would have been, if continued. The 
 witnesses for the commonwealth were generally of the 
 opinion that the running of the cars was a great disturbance 
 of the peace and quiet of the Sabbath. On the other side, it 
 was claimed that the noise made by the cars was only such as 
 was incident to that mode of conveyance and was not a dis- 
 turbance to any inconvenient extent, and to this effect they 
 examined several witnesses. 
 
 The question for determination now is, whether the prisoner 
 is guilty of a breach of the peace, or only answerable to the 
 penalty inflicted by the act of 22d April, 1794, for perform- 
 ing worldly employment on the " Lord's day, commonly 
 called Sunday." If the latter, he must be discharged, but if 
 guilty of the former, he must be held to answer in the quar- 
 ter sessions at its next term. 
 
 That driving a public conveyance for hire, is doing worldly 
 employment within the provisions of that statute cannot be 
 doubted, since the decision of the court, in the case of 
 Johnston vs. The Commonwealth, 22 Pa. St., 102. It was a 
 similar case against an omnibus driver, on a line between 
 Pittsburgh and Lawrenceville, and the driving for pay for the 
 owners of the line; and it was determined by a majority of this 
 court, that this was a violation of the act of assembly of 
 1794. This statute was not the first in Pennsylvania on the sub- 
 ject of Sunday. The statutes of 1705, and 1786, had existed 
 previously thereto, but were in most particulars supplanted 
 by the act of 1794. The provisions of all of them seem to 
 have had in view the same object, the prohibition of worldly 
 business on the Sabbath day, and establishing and maintain- 
 
388 PENN8YLYANIA. [Sup. Ot. 
 
 Commonwealth m. Jeandell. 
 
 ing that condition by positive civil enactment as a day of rest 
 and repose. The penalty imposed by the act of 1794, for a 
 breach of its provisions, is the sum of four dollars, for 
 each and every offense, and in default of payment, imprison- 
 ment for six days. If I were determining the liability of this 
 defendant under the evidence, to the penalty of the act, 
 I could not hesitate a moment to say that he had incurred it, 
 but I am not. A different question arising out of this act, is the 
 object of this inquiry; and that is, whether the defendant, in 
 doing an act prohibited by law, did it in a manner to disturb 
 the public peace ? The existence of the penalty in the act, as 
 a consequence of worldly employment on the Sabbath, is to be 
 taken as a prohibition of the act complained of. Kepner vs. 
 Keefer, 6 Watts, 233; Bartlett vs. Vinor, Garth., 252. It 
 has been decided, that one penalty covers the combined infrac- 
 tions of a whole day. 
 
 It certainly cannot be contended that every violation of 
 that statute is necessarily a breach of the peace. Work, noise- 
 lessly and quietly done, may disturb no one, and still the per- 
 former of it, if proceeded against, may have to pay the 
 penalty, but would be answerable no further. 
 
 But, when worldly employment is carried on in such a 
 manner, and in such places, as to disturb the peace and quiet, 
 and the religious exercises of a community, either at home or 
 in churches, or places of public worship, and it may not or 
 cannot be restrained by the imposition of the defined penalty 
 in the act, do not such circumstances constitute a breach of 
 the public peace of the Sabbath, and may not the offender or 
 offenders be held to bail to keep the peace ? That work thus 
 publicly performed, might amount to a breach of the peace, 
 seems to have been the opinion of Chief Justice Tilghman. 
 In the case of The Commonwealth vs. Myre, IS. S R., 347- 
 350, he said : " The violation of the Sabbath is a crime which 
 deserves punishment ; but when the work done is without 
 noise or disorder, there is nothing in it like an actual breach 
 of the peace." Similar language was held by Chief Justice 
 Yeates in the same case. The converse of the last portion of 
 the proposition is clearly deducible from the statement of it in 
 the terms used. In The Commonwealth vs. Dupuy et al.. 
 
1859.] PENNSYLVANIA. 389 
 
 Commonwealth vs. Jeandell. 
 
 Brightly 4-4} Kennedy, Justice, sitting at Nisi Prius, said, 
 that "doing unnecessary work, so as to disturb the worship of 
 others, is indictable. If arrested, and held to answer for this, 
 the prisoner would be held to good behavior in the meantime." 
 So in The Commonwealth vs. Teamann, 1 Phila., JfiO; it was 
 an attempt to hold to bail a newsvendor, for crying and sell- 
 ing his papers on Sunday. On the hearing, Judge Thompson, 
 of the court of common pleas, said : " The crying of news- 
 papers in the public street on Sunday, is a breach of the peace. 
 As well might the oysterman cry his oysters, or the charcoal 
 man ring his bell. The peace of Sunday may be disturbed 
 by acts which, on other days, cannot be complained of ; such 
 acts as interfere with the rights which the law vouchsafes 
 to the public, who desire to observe that day, as a period 
 of religious observance and rest from worldly business." The 
 prisoner was discharged, and the reason stated by the learned 
 judge, in the remark that, "if it had appeared that any per- 
 son complained of being disturbed by the defendant, or that 
 any one was accosted by him for the purpose of selling his 
 papers, such complaint would have rendered the defendant 
 liable on the charge now made " — surety of the peace, as I 
 understand the case. 
 
 These opinions show, as far as they go, the inclination of 
 the minds of judges, of learning and experience, in regard to 
 this question. I -concur with the doctrine that the law gives to 
 the public the right of enjoying the Sabbath, as a day of rest 
 and of religious exercise, free and clear of all disturbance 
 from merely unnecessary and unauthorized worldly employ- 
 ment. That where this law is contravened in such a manner 
 as to disturb that enjoyment, by noise or disorder accompany- 
 ing it, or incident to it, it may be treated as a breach of the 
 peace. In this I do not mean the disturbance of conscience 
 — constructive disturbance — but actual ; occurring so long, or 
 so frequently, and in such a place, as to amount to a public 
 disturbance. The reason that the law holds it to be such is, 
 that the occurrence may not be prevented otherwise than by 
 treating it as such, and it is so to be treated to prevent violent 
 remedies to redress the wrong. If we must wait until breaches 
 of the peace, in the ordinary week-day sense of the term. 
 
390 PUNNSYLVANIA. [Sup. Ct. 
 
 Commonwealth ««. Jeandell. 
 
 occur, before we may interpose a preventive remedy, then is 
 the mischief done, and the breach of the public peace aggra- 
 vated. If the running of cars on passenger railroads is a dis- 
 turbance of the public peace of the Sabbath, and the rights 
 of worship and of rest, by reason of noise accompanying them, 
 and they are not restrainable, by reason of the inefficiency of 
 existing laws, and must be permitted to continue, because 
 they have not produced actual resistance and collision on the 
 part of, or with those who oppose such a course, this reason 
 will not, in all probability, long be wanting, and we may have 
 the realization of what the unlawful act has a tendency to 
 produce — breaches of the peace, of a more unmistakable char- 
 acter. It was the duty of the conservators of the public 
 peace to prevent this, if possible. The history of mankind 
 shows that there is nothing against which they will more 
 zealously and fiercely struggle, than encroachment on the 
 rights of conscience or conscientious exercises. The defend- 
 ant here acted, in driving the car in question, by direction of 
 his employers, who well knew that they were violating an act 
 of assembly ; for the! law was plain, and the decision on it 
 recent. They acted in violation of it, not through any prin- 
 ciple of necessity, but simply for gain, as the evidence clearly 
 shows, and the prisoner was bound to know the law, and does 
 not deny that he knew the purpose of his employers. His 
 driving the car, at the time of the arrest, was accompanied 
 by noise sufficient, as the testimony shows at the time, and by 
 the experience of the preceding Sabbath, to greatly interfere 
 with public worship, and disturb the people along the line, 
 and was accompanied by a crowd of persons and some disor- 
 derly conduct, if the witnesses are to be believed. I think 
 this constituted a breach of the peace of the Sabbath, as 
 ordained and established by the act of 1794, and that under 
 the circumstances, an arrest was proper. 
 
 Traveling, or riding for recreation, is not a breach of the 
 Sabbath, and persons may not be arrested for riding along 
 the street for such purposes. The disturbance, if any, occa- 
 sioned by the vehicle, would be but for an instant, and not 
 soon recurring. That is very unlike, in character, the carry- 
 ing of passengers in a vehicle along the same route every six 
 
1859.] PENNSYLVANIA. 391 
 
 Commonwealth vs. Jeandell. 
 
 minutes, as was intended by the company on the day the 
 arrest was made. Nor do I believe in the right to arrest for 
 doing worldly business, unless in eases where the business done 
 does actually disturb the peace of the neighborhood. Then it 
 amounts to a different offense from that for which the 
 penalty in the act of 1794 is provided ; and this is all that 
 may be necessary to say in answer to the attempted applica- 
 tion of the act of 1806 to the case in hand. That act pro- 
 vides that when a statute enjoins anything to be done in a 
 particular way, or affixes a penalty to the doing of an act, the 
 remedy of the statute shall be followed, and no other. The 
 penalty imposed by the act of 1794, is for the performance of 
 worldly employment — a punishment for the act. The offense 
 complained of here, is the disturbance of the public peace ; 
 and the worldly employment, the kind and manner of it, is 
 only evidence of the offense charged. It is not covered by 
 the act of 1794. 
 
 Although Christians, of all denominations, look upon the 
 institution of the Sabbath as of divine origin, yet it requires 
 statutes to protect its observance ; and the act of 1794, so 
 often referred to, was undoubtedly passed for that purpose. 
 It established what might be called the peace of the Sab- 
 lath. The public have a right to the benefit of the law. 
 If actually disturbed, they can only be redressed by arresting 
 the disturbers. Compensation for it does not remove the 
 evil. If no arrest can be made for the disturbance incident 
 to, or caused by the worldly pursuits of individuals, then it 
 will follow, that whenever it is more profitable to carry on 
 business by paying the penalty of four dollars, than to abstain 
 from it, there will be found persons in the community ready, 
 publicly, and regardless of the peace of society, to engage in 
 it. In short, four dollars will be a license fee for the right to 
 carry on the most noisy employments, it may be, in the most 
 public places, on the Sabbath, instead of a penalty to secure 
 its observance. If one railroad company may run by paying 
 the penalty, all may run, and all the omnibuses, drays and 
 carts in the city, on the same terms. Where would be the 
 peace and quiet of the Sabbath, in such an event as this ? 
 These views do not make the law— they illustrate the reason- 
 ableness and propriety of the remedy applied. 
 
392 PENNSYLVANIA. [Sup. Ot. 
 
 Commonwealth vs. Jeandell. 
 
 This city has for one hundred and fifty years obeyed the 
 law faithfully, in its observance of the Sabbath, and it is 
 not perceptible wherein either its prosperity or character 
 has suffered. If it is likely to do so, those most interested 
 must apply to the law-making power of the common- 
 wealth to exercise privileges at present withheld and pro- 
 hibited. Eailway corporations have accepted their charters 
 under this law, as well as other laws of the land, and should 
 not be the first to grasp at powers not given them in the exer- 
 cise of these highly profitable and beneficial franchises, 
 bestowed by the liberality of the state. That the prisoner is 
 in custody for doing acts by the instigation of the rail- 
 way company, for which he was driving, is not denied. He 
 was their servant, pro liac vice, and the discussion of his 
 rights was greatly made to depend on the rights of his employ- 
 ers. They were not ignorantly violating the Sabbath laws, in 
 directing the running of their cars. N"or is it insisted that 
 the prisoner was ; nor was it insisted that the violation was 
 to be but for a solitary trip or a day. It was, rather, to be the 
 inauguration of a new era, resting itself not so much on the 
 laws of our own happy land, as on the examples of " progress," 
 "liberal sentiments," and modification of morals to suit the 
 wants of the age, of other countries, possessing neither our 
 morality, virtue, freedom, nor indepebdence. These consider- 
 ations were no more reasons operating on my mind, in 
 looking to conclusions, than any extreme sentiments on the 
 other side, which would regard all peaceful recreations on the 
 Sabbath day as violations of God's law, and therefore, neces- 
 sarily of man's. The conclusion I have come to, is to refuse 
 the discharge of this man. I no further decide upon this case 
 than to refuse his discharge. Let the law hand him over to 
 his proper judges at the proper time. They will decide what 
 is best to be done, when they shall have heard all the testi- 
 mony in the case. They have ample power to hold him, if he 
 is a disturber of the peace, to give security to keep it, and to 
 be of good behavior, as they shall think right. I am satis- 
 fied that the conclusions I have arrived at are sustained by 
 law, and are conducive to the peace and best interests of this 
 community. 
 
1859.] Ni:W YORK. 393 
 
 Johnson .««. The Hudson River R. R. Co. 
 
 I have, so far, taken no notice of the fact, that the prisoner 
 commenced running the car at or about one o'clock, or that 
 he was instructed to move slowly by the churches on the 
 route. The rights of the people to the quiet of the entire day 
 must not be dependent upon the caution with which it is vio- 
 lated. If it amounts to a disturbance, it is a breach of the 
 peace ; and if the public are entitled to an undisturbed por- 
 tion of the day, they are to the whole of it. Nor was it the 
 right of the prisoner, or of his employers, to assume that people 
 will perform their religious exercises before one o'clock,?. M., 
 or risk disturbance. They are neither to be constrained in 
 the form of worship, time of worship, nor to engage in it at 
 all, by any power, much less a conventional regulation to 
 which they are no parties. Freedom on this point is a guar- 
 antee to the constitution. 
 
 Discharge refused and prisoner remanded, but he may now 
 enter into recognizance, with security, to appear at the next 
 court of quarter sessions. 
 
 CATHARINE M. JOHNSON, Executrix, etc., vs. THE. 
 HUDSON RIVER RAILROAD COMPANY.* 
 
 so N. T., 65. 
 Affirming IS N. Y. Superior Court, (6 Duer.) 633; s. c. 1 Am. St. -By. 
 
 Bee, S54. 
 
 The plaintifl's testator, a cartman, was found lying fatally injured 
 across the defendants' tracks on a dark night, in a street in New York 
 City. The street was obstructed by a sewer in course of construction, 
 and the circumstances warranted the inference, that the deceased, who 
 it was proved was sober on the night in question, had tied his horse, 
 and while groping in the dark for a safe place for his team to cross, was 
 struck by the defendants' horse car, which was proceediag without 
 lights or bells. There was no witness to the accident. 
 
 Seld, that in the absence of proof to the contrary, it was to be 
 assumed that the deceased had the same regard for his safety as other 
 men, and that the dangerous tendency of the defendants' conduct, 
 created so strong a probability that the accident occurred through 
 defendants' negligence, as to authorize the refusal of a nonsuit. 
 
 *lst appeal reported in 1!S N. Y. Superior Court, (5 Duer,^ ei ; s. c. 1 Am. St.-By. 
 Dec, 191. 
 
394 NJEW YORK. [Ot. App. 
 
 , Johnson m. The Hudson River R. B. Co. 
 
 Held, that the question whether the accident did not happen through 
 the fault of the deceased, was to be decided by considering the facts and 
 circumstances in evidence, in connection with the ordinary habits, con- 
 duct and motives of men. 
 
 Held, that it is not a rule of law of universal application that in suits 
 for damages for personal injuries, the plaintiff must prove affirmatively 
 freedom from negligence, or that the defendant in order to establish his 
 defense, must prove the contrary ; that the character of the defendants' 
 negligence may be such as to prove prima facie, the whole issue, or it 
 may be such as to make it necessary for the plaintifE to show, by inde- 
 pendent evidence, that he himself was not guilty of negligence. 
 
 Held, that in this class of cases, to carry a case to the jury, the evi- 
 dence on the part of the plaintifE must be such, as, if believed, would 
 authorize them to find that the injury was occasioned solely by the 
 negligence of the defendant. 
 
 The judge charged, that in order to exonerate the defendants on the 
 ground of negligence on the part of the deceased, it must be such as 
 directly contributed to the accident. 
 
 Held, no error, that the use of the term under the circumstances, 
 was not significant. 
 
 The judge charged that persons running cars in the night over a 
 course which is also a public street, were bound to exercise the utmost 
 care and diligence, and to use all the means and measures of precaution, 
 which the highest prudence could suggest. 
 
 Held, no error, that the degree of care required from persons driving 
 vehicles upon a thoroughfare, as well as from those walking thereon, 
 varies according to the circumstances of the case, and the judge was 
 calling the attention of the jury to the peculiarities of the case before 
 them. 
 
 This was an appeal from the Superior Court of the City of 
 New York. 
 
 The plaintifE brought this action for damages for negligence 
 on the part of the defendants, who, she alleged, caused 
 the death of her husband by running over him with cars 
 on their railroad in West street at the intersection of Ganse- 
 voort street in the city of New York. The evidence showed 
 that a sewer was being constructed in Gansevoort street across 
 West street, that the opening in the street was so large on the 
 east side of West street, that carts could not cross it ; that 
 there was a very narrow passage on the west side of West 
 street, and some witnesses testified that it could not be crossed 
 at all. That about eight o'clock in the evening of August 
 28, 1853, the deceased was on West street below Gansevoort, 
 
1859.] Ni:W TORE. 395 
 
 Johnson «s. The Hudson River B. R. Co. 
 
 driving his cart towards his home, which was in the northerly- 
 part of the city. It was a dark night; no light of any 
 kind was at the intersection of "West street with the sewer, and 
 it had been raining. There was no witness to the accident. 
 The deceased was found lying across the rails and fatally 
 injured by the cars having passed over his body in going 
 north. His horse and cart were found on the sidewalk on the 
 east side of West street, near the south bank of the ditch. The 
 horse was tied. The plaintifE's theory was, that the deceased 
 finding that he could not cross the sewer on the east side 
 of West street, had tied his horse, and was crossing the track 
 to see if there was a passage on the other side of the 
 street, when he was struck by the cars. The plaintiff claimed 
 that the negligence of the defendants consisted in driving 
 their cars without any bells on their horses, or any light upon 
 the cars and at a high rate of speed. It was undisputed that 
 there were no lights and several witnesses testified that there 
 were no bells, but one of the defendants' witnesses testified, 
 that he had charge of the horses of the line and uniformly put 
 bells on them and it was his opinion that there were bells on 
 the horses of those cars. It appeared that because of the water 
 on the rails, the noise of the cars could not be heard, but that 
 the noise made by the horses' feet could be heard a short dis- 
 tance. It was proved that the deceased was not intemperate, 
 and that when he set out for home he was perfectly sober. 
 
 The defendants' counsel moved for a nonsuit on the ground 
 that it had not been shown that the deceased himself was free 
 from negligence, and also that negligence of the deceased was 
 to be inferred from the evidence. The judge denied the 
 motion and the defendants' counsel excepted. 
 
 In Jais charge to the jury the judge said among other things 
 that " considering the nature of the business in which the 
 defendants were engaged, and the hazard attending the run- 
 ning of cars in the streets of the city, and particularly on 
 a dark night, they were bound to exercise the utmost care 
 and diligence ; and for the purpose of avoiding accidents, 
 endangering property and life, were bound to use all the 
 means and measures of precaution, that the highest prudence 
 could suggest, and which it was in their power to employ. 
 
396 NUW YOBE. [Ot. App. 
 
 Johnson »s. The Hudson River R. R. Co. 
 
 Hence^ if the use of bells and of lights was a measure that 
 the prudence and foresight they were bound to exercise, 
 ought to have suggested, and if by such use, disastrous acci- 
 dents would probably be avoided, the omission to use them, if 
 proved to the satisfaction of the Jury, was culpable negli- 
 gence, and it was for the jury to say whether to this culpable 
 negligence the fatal accident which had given rise to the 
 action, might not justly be imputed. The judge also charged 
 as to negligence on the part of the deceased, that if the jury 
 found that there was any negligence on the part of the 
 deceased that directly contributed to the accident, the plaint- 
 iff could not recover. 
 
 He also charged that the deceased was bound to exercise 
 ordinary prudence and no more, and that the jury were to 
 determine the question, whether it appeared from the evidence 
 that the deceased had been wanting in the care and foresight 
 that men of ordinary prudence are accustomed to employ, and 
 which they probably would employ, if placed in like circum- 
 stances with the deceased ; and that in judging of the conduct 
 and motives of the deceased, they were bound to consider all 
 the circumstances of the case, as they had been established by 
 the evidence. The several propositions contained in the parts 
 of the charge that have been given were excepted to by the 
 defendants' counsel, and he requested the judge to charge, 
 that the manner in which the deceased was found on the track 
 was, without explanation, prima facie evidence of negligence 
 on his part, and on the refusal of the judge to so charge took 
 an exception. The jury brought in a verdict for the plaintiff 
 for $4,000. The judgment was affirmed at general term and 
 the defendants appealed to this court. The plaintiif had been 
 nonsuited on a previous trial in the superior court, and on 
 appeal the nonsuit was set aside. The decision is in 5 
 Duer, %1; s. c. 1 Am. St.-Iiy. Dec, 191. 
 
 Mr. Wm. Fullerton, for the appellants. 
 3Ir. Henry Morrison, for the respondent. 
 
 Denio, J. — It is insisted on behalf of the defendants, that 
 the judge erred in refusing to hold as matter of law, upon the 
 
1859.] iYSTT YORK. 397 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 facts proved, that the deceased was guilty of negligence ; that 
 if any question upon that branch of the case could be left 
 to the Jury, still he erred in charging that the negligence 
 which would preclude a recovery must be such as directly 
 contributed to the injury ; and finally that he erred in his 
 statement of the measure of care and prudence required from 
 the deceased and the defendants respectively. 
 
 First. The general rule has been so often laid down and 
 reiterated, that to enable a party to recover in this class of 
 actions, the person injured must not by his own negligence 
 have contributed to the injury, that it must be considered 
 a legal postulate. I agree that this is an element in the 
 definition of the cause of action, and that the plaintiff's case, 
 when presented to the jury, must not be defective upon that 
 point any more than upon that of the defendants' negligence. 
 This is embraced in the proposition that the injury must 
 be the result of the negligence of the defendants ; for if the 
 culpable conduct of both parties united in bringing it about, 
 that proposition is not true. But I am of opinion that it is 
 not a rule of law of universal application that the plaintiff 
 must prove affirmatively that his own conduct on the occasion 
 of the injury was cautious and prudent. The onus proiandi 
 in this, as in most other cases, depends upon the position of 
 the affair as it stands upon the undisputed facts. Thus 
 if a carrriage be driven furiously upon a crowded thorough- 
 fare, and a person is run over, he would not be obliged to 
 prove that he was cautious and attentive, and he might 
 recover though there were no witnesses of his actual conduct. 
 The natural instinct of self-preservation would stand in 
 the place of positive evidence, and the dangerous tendency of 
 the defendant's conduct would create so strong a probability 
 that the injury happened through his fault that no other evi- 
 dence would be required. But if one make an excavation or 
 lay an obstruction in the highway, which may or may not be 
 the occasion of an accident to a traveler, it would be reasonable 
 to require a party seeking damages for an injury to give gener- 
 al evidence that he was traveling with ordinary moderation 
 and care. The obligation to give such evidence would be 
 greater or less according as the impediment was more or less 
 
398 NJEW YORK. [Ot. App. 
 
 Johnson m. The Hudson River B. R. Co. 
 
 dangerous. Thus, in Butterfield vs. Forrester, 11 East, 60, 
 the defendant, in making some repairs to his house in a town, 
 had put up a pole across the road, leaving however a free pas- 
 sage by a branch or street in the same direction. The plaint- 
 iff rode against it and was injured. No question arose as 
 to the onus; but it being proved that he was riding immoder- 
 ately, it was held that he could not recover. So in Smith vs. 
 Smith, 19 Mass., {2 Pich.,) 621, the defendant had piled cord- 
 wood by the side of the highway at the foot of a hill, and 
 one stick projected eight inches into the road. The plaintiff 
 in a dark night drove an overloaded wagon down the 
 hill without any shaft-girth to the harness. The wagon 
 struck the horse and he ran alongside of the wood pile and 
 against the projecting stick and caused an injury. A verdict 
 for the defendant was sustained by the court on the ground 
 that the plaintiff's conduct had contributed to the accident. 
 There was no controversy here as to the onus, all the facts 
 being before the jury. If there had been no evidence of the 
 circumstances, but only that the plaintiff had driven in the 
 daytime against the stick of wood, and had been injured, 
 although leaving the stick in that position was an act of 
 negligence, still it might be reasonable to require the plaintiff 
 to show that his carriage was properly equipped, and that he 
 drove with ordinary circumspection, and in such a case I con- 
 ceive that it might be quite right to nonsuit the plaintiff for 
 not having made out a case proper to be submitted to the 
 jury. But suppose the case of a dangerous excavation in a 
 highway which a very prudent man might possibly avoid, but 
 which he would be in great danger from, and a man was 
 found to have fallen into it, the case being so situated that 
 the precise circumstances could not be shown, must the plaint- 
 iff be nonsuited on the assumption of a positive rule of law 
 requiring him to show afllrmatively that the accident did 
 not happen in part through his fault? I think not. The 
 purpose of a jury trial is that the experience, intelli- 
 gence and judgment of twelve men may be availed of 
 to settle disputed questions of fact. The duty of the 
 judge presiding at the trial is the same in this class of 
 cases as in others ; it is to determine whether a case is pre- 
 
1859.] NJEW YOBK. 399 
 
 Johnson m. The Hudson River R. R. Co. 
 
 sented fit for the deliberation of the jury. This is to be 
 decided, not by the ^application of any artificial rule respect- 
 ing the onus prolandi, but by considering the facts and cir- 
 cumstances in evidence in connection with the ordinary hab- 
 its, conduct and motives of men. The culpability of the 
 defendant must be affirmatively proved before the case can go 
 to the jury, but the absence of any fault on the part of the 
 plaintiff may be inferred from circumstances ; and the dispo- 
 sition of men to take care of themselves and keep out of diffi- 
 culty, may properly be taken into consideration. Nor is it 
 correct to say as a universal rule that the defendant must 
 himself prove, in order to establish his defense, that the 
 plaintiff was guilty of negligence. That, as well as the 
 absence of fault, may be inferred from the circumstances, and 
 the negligent act of the defendant may be of such a mitigated 
 character that a party complaining of an injury from it ought 
 to show that it occurred without fault on his own part. This 
 seems to me entirely consistent with the principle that the 
 Jury must, in order to find a verdict for the plaintiff, be able 
 to say that the injury happened from the negligence of 
 the defendant, to which the plaintiff did not by any act of 
 his contribute. I have come to this conclusion, from the 
 reason of things, and from general legal analogies ; but I have 
 not failed to look into the several cases to which we have been 
 referred, and many others. It generally happens that the 
 evidence on one side or the other discloses the material facts 
 bearing upon the case, so that courts have not often been 
 called upon to speak of the burden of proof as to the plaintiff's 
 freedom from negligence. Besides the case of Button vs. The 
 Hudson River Railroad Company, 18 N. Y., ^48; s. c. 1 Am. 
 St.-Ry. Dec, SSI, in the decision of which we were not 
 sufficiently agreed to make it a lucid precedent, I do not find 
 that the question has been considered in the English courts 
 or in those in this state. Upon the rule as to what the case 
 when fully disclosed must contain, the authorities are abund- 
 ant, but this does not settle the question as to the burden of 
 proof. There are two cases in the Supreme Court of Massa- 
 chusetts, apparently, if not really, in hostility to the conclu- 
 sion which 1 have stated. In Lane vs. Cromhie, 29 Ifass., 
 
400 JSTJSW YORK. [Ot. App. 
 
 Johnson m. The Hudson River R. R. Co. 
 
 {12 Pick.,) 177, the defendant was sued for driving over 
 the plaintiff with a two-horse sleigh in the highway, and 
 the plaintiff had a verdict. None of the evidence is given, 
 nor any of the facts stated. It is merely said that the Judge 
 stated to the jury, in the course of his charge, that the burden 
 of proof was upon the plaintiff to prove negligence in the 
 defendant, that being the gist of the case ; but that when 
 the defendant relied upon the fact that the plaintiff conducted 
 herself carelessly, the burden of the proof was upon the defend- 
 ant to show that the plaintiff had not used ordinary care. 
 This instruction was considered erroneous, and a new trial 
 was ordered. The court said that in the actual state of the 
 evidence it was extremely probable that the direction made no 
 difference in regard to the result ; still, it was added, if the 
 evidence was such that the jury might have decided the 
 other way upon this point without going decidedly against 
 the weight of evidence, or in other words if the evidence was 
 doubtful or balanced, such a direction may have had an 
 influence to mislead the jury. Upon this I have to remark 
 that in the absence of a statement of the nature and extent 
 of the defendant's negligence, it is impossible to say what it 
 was incumbent upon the plaintiff to show. If slight and not 
 such as necessarily or probably to endanger a person on foot, 
 then the plaintiff was bound to show that she did not by her 
 own negligence bring the misfortune upon herself. I do not 
 understand the court to hold that in all cases of injury from 
 alleged negligence, the plaintiff must prove affirmatively that 
 he was without fault ; but that in the case before them it was 
 necessary for her to do so. If the case goes further I think it 
 cannot be sustained. The cases which the court refers to in 
 its opinion are not upon the subject of the onus prolandi. 
 The case of Adams vs. Inhabitants of Carlisle, S8 Mass., 
 {21 Pick.,) 146, was an action against a town to recover 
 damages sustained by the plaintiff by the overturning of 
 his stage coach in consequence of alleged defects in the 
 highway. The facts are not stated, but the charge of the 
 judge was that the burden of proof was upon the plaintiff 
 to satisfy the jury beyond a reasonable doubt that the over- 
 turning of the coach was caused by a defect in the highway 
 
1859.] NEW YORK. 401 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 and not by his own negligencsj and for that purpose to 
 show that he was using ordinary skill and diligence at 
 the time when the accident happened. The ruling was 
 affirmed on a motion for a new trial. This, I think, was 
 correct, if we assume that the defects shown to exist in the 
 road were such as the driver of the coach in the exercise 
 of ordinary caution could avoid. The court does not affirm 
 that if there was no direct evidence as to the conduct of the 
 driver, the plaintiff would necessarily fail ; on the contrary, 
 the chief Justice remarks that proof that the person driving 
 was commonly careful and skilful, that there was no apparent 
 cause for the accident but the bad condition of the highway, 
 and the condition in which the carriage was at the time, were 
 all circumstances upon which the jury might pass their judg- 
 ment, and infer that due skill and care were used. 
 
 The true rule in my opinion is this : The jury must eventu- 
 ally be satisfied that the plaintiff did not by any negligence of 
 his own contribute to the injury. The evidence to establish 
 this may consist in that offered to show the nature or cause of 
 the accident, or in any other competent proof. To carry a 
 case to the jury the evidence on the part of the plaintiff must 
 be such as, if believed, would authorize them to find that the 
 injury was occasioned solely by the negligence of the defend- 
 ant. It is not absolutely essential that the plaintiff should 
 give any affirmative proof touching his own conduct on the 
 occasion of the accident. The character of the defendant's 
 delinquency may be such as to prove, prima facie, the whole 
 issue ; or the case may be such as to make it necessary for the 
 plaintiff to show by independent evidence that he did not 
 bring the misfortune upon himself. No more certain rule 
 can be laid down. 
 
 The present case is not wholly free from difficulty, but I 
 think it presented a fair question for the jury. Its determina- 
 tion depended upon the view which should be taken of the 
 tendency of driving a railroad train at considerable speed 
 through a city street, not lighted, on a dark evening, and 
 without any proper means of giving notice to persons who 
 might be upon the track, and without any lamps on the cars 
 to enable the driver to see what might be on the rails before 
 
 26 
 
402 N^EW YORK. [Ct.App. 
 
 Johnson m. The Hudson River R. R. Co. 
 
 him. That such running was hazardous in a high degree I 
 cannot doubt. Then we are to consider that the railroad was 
 at the same time a thoroughfare for persons on foot and with 
 carriages, and that such persons might innocently be upon it 
 at all times, save when the cars were actually passing, and 
 also that at the point of intersection with Gansevoort street. 
 West street was, upon one view of the evidence, substantially 
 a cul de sac as to all purposes except the passage of the cars. 
 The deceased was proved to have been perfectly sober on the 
 night in question. The evidence left it to be inferred that he 
 had been stopped by the excavation and the earth thrown 
 upon its margin ; and the inference was a probable one that, 
 having fastened his horse, he was groping his way to the 
 other side to see whether there was an outlet there when the 
 cars came upon him. If the forward car had been suitably 
 lighted in front it would have warned him, and at the same 
 time have notified the driver ; or if the horses had been pro- 
 vided with bells, it may well be that he would have heard them 
 and have moved ofE the track. In the absence of proof to the 
 contrary, we are to assume that he had the same regard for 
 his own safety as other men, and the remark of the judge in 
 his address to the jury that he could not have heard the cars 
 was a reasonable suggestion. I think it fell within the class 
 of cases which I have mentioned, of an act so eminently sug- 
 gestive of dangerous consequences, that when we find that an 
 accident has actually occurred, it is reasonable, prima facie, 
 to refer it to the conduct of the defendants' servants without 
 requiring further proof. 
 
 Second. Upon the question whether there was error in the 
 instruction, that in order to exonerate the defendants on the 
 ground of negligence on the part of the deceased, it must be 
 such as directly contributed to the accident, I concur in the 
 reasoning of Judge Strong in the case of Button vs. The Hud- 
 son River Railroad Company, before referred to. I do not see 
 that the term used was particularly significant ; but as there 
 was no conceivable negligence which could be imputed to the 
 deceased which would operate remotely,or collaterally, or other- 
 wise than directly, I am of opinion that the jury were not mis- 
 led. The attention of the judge was not specially called to the 
 
1859.] N:EW yore. 403 
 
 Johnson vs. The Hudson River R. R. Co. 
 
 expression, as in the case of Button. In Tuff vs. Warman, 
 2 Com. Bench, N. S., llfl, -which Tvas the case of a collision 
 between two vessels, and the alleged negligence of the plaintiff 
 was in not keeping a look-out and porting his helm when he 
 found himself in danger of meeting the defendant's vessel, 
 the Judge charged the jury that if they were of opinion that 
 the plaintifE by his own negligence directly contributed to the 
 accident, they must find for the defendant ; but that if they 
 thought that the defendant directly caused the injury, they 
 must find for the plaintifE. Much of the discussion on the 
 motion for a new trial turned upon the use of the word 
 " directly ;" the defendant's counsel contending that the 
 instruction should have been that the plaintiff could not 
 recover if he in any way contributed to the accident. The 
 court however held in substance that the only way in which 
 the imputed negligence could operate was direct, and that 
 the instruction could not mislead, and a new trial was refused. 
 Lastly. In that part of the charge which relates to the 
 degree of care required from the respective parties, the judge 
 was not led to speak of the distinction between the duty 
 which a carrier of persons owes to his passengers, and that 
 which persons outside the carriage are entitled to claim from 
 the carrier, but he was calling the attention of the jury to the 
 peculiarities of the case before them. He did not in my 
 opinion overstate the obligations which attach to persons run- 
 ning cars in the night over a course which is also a public 
 street, in saying that they were bound to exercise the utmost 
 care and diligence, and to use all the means and measures of 
 l)recaution which the highest prudence could suggest. The 
 degree of care required from persons driving vehicles upon a 
 thoroughfare varies according to the circumstances of the 
 case, and is proportioned to the danger to be apprehended of 
 infiicting injury upon others. The rule which would apply 
 to ordinary carriages on common roads would be quite inade- 
 quate as a test of that required from the managers of railroads. 
 Eelsey vs. Barney, 12 N. Y., Ii25 ; Hegeman vs. The Western 
 Railroad Corporation, IS id., 9. 
 
 As to the party injured the rule is that he must have con- 
 ducted himself with ordinary care and prudence, but he also 
 
404 LOUISIANA. [Sup. Ot. 
 
 Brown m. Duplessis. 
 
 must have regard to the particular circumstances of the case, 
 and one who has a right to go across or upon a railroad track 
 must exercise quite another sort of vigilance than that of a 
 man who travels on a common road. This is what the judge 
 meant when he instructed the jury that the question was 
 whether the deceased used that care and foresight which men 
 of ordinary prudence would probably employ when placed in 
 like circumstances. The defendants had no cause to com- 
 plain of that instruction. 
 
 These views if concurred in will lead to an affirmance of 
 the judgment of the superior court. 
 
 Sbldes", J., was absent ; S. B. Strong, J., doubted 
 whether there could be a presumption in this case, that 
 the defendant used any care whatever, and was disposed 
 to reverse; all the other judges concurred. 
 
 Judgment affirmed. 
 
 M. BKOWN & CO., and others, vs. V. DUPLESSIS AND 
 
 THE CITY OF NEW OELBANS. 
 
 14. La. Ann., 8I1S. 
 
 The city of New Orleans offered for sale the right of way In Its 
 streets to certain private individuals, for twenty years, for the establish- 
 ment of a horse railroad, the cars to he run according to a tariff fixed by 
 the common council. Plaintiffs, who were property owners in the city, 
 prevented the sale by an injunction. 
 
 Reld, that the power to sell the right of way was conferred upon the 
 city by its charter and upon all incorporated cities or towns in the state 
 by the act of 1855. 
 
 That the selling of this right of way is not an alienation or appro- 
 priation of a portion of the public streets for private uses. 
 
 The streets are destined for public use, but not for a pa/rtieular mode 
 of public use. 
 
 Appeal from the Fifth District Court of New Orleans. 
 
 EGGLESTOliT, J. 
 
 Messrs. Koontz <& Roselius, for the plaintiffs and appellants. 
 
 Messrs^ Michel & Diofour, for the defendants and respond- 
 ents. 
 
1859.] LOUISIANA. 405 
 
 Brown m. Duplessis. 
 
 Cole, J. — The principal question in this case is, whether 
 the corporation of the city of New Orleans has the power to 
 sell the right of way for twenty years for the establishment of 
 a railroad in the streets of the city ; the cars to be drawn by 
 horses or mules, and to be run as often, per day or night, as 
 the contractors may deem proper, but not at greater intervals 
 than every ten minutes, from daylight until ten o'clock, P.M., 
 and every thirty minutes froin ten o'clock until midnight. 
 
 The comptroller, in pursuance of the authority vested in 
 him by an ordinance of the common council of New Orleans 
 ofEered the right of way for sale. 
 
 The adjudication was arrested by an injunction, at the 
 instance of the plaintiffs, who allege themselves to be owners 
 of real estate in the city, situate on the streets through which 
 the railroads are to be laid and run. 
 
 Plaintiffs allege that the common council of New Orleans 
 is without authority in law to sell or lease the right of way 
 aforesaid, because said right and authority are not by law 
 vested in the common council, but in the legislature of the 
 state of Louisiana. 
 
 They allege, further, that the city of New Orleans has not 
 the right to lease said right of way, without first having 
 obtained the consent of the property holders on said streets. 
 
 That the construction of said railroad track, and the run- 
 ning of cars upon said road, in said streets, will cause their 
 property to depreciate in value; and further, will deprive 
 petitioners and others, of the free and unreserved use of 
 open streets, accessible at all times and places, for vehicles 
 usually traversing the public streets of New Orleans, and will 
 create and maintain an obstruction in said streets for twenty 
 years. 
 
 Petitioners further allege, that the common council of New 
 Orleans is not authorized in law to grant said right of way, 
 in said public streets, for twenty years, for railroad purposes, 
 to the exclusive use and benefit of the parties who may 
 purchase the same, because said acts are an appropriation of a 
 portion of the public streets of the city of New Orleans for 
 private uses, which is illegal and reprobated by law. They 
 also aver that the ordinance creates an obstruction, because 
 
406 LOUISIANA. [Mp. Ot. 
 
 Brown vs. Duplessls. 
 
 it prescribes that on certain of said streets, the cars shall only 
 be allowed to run in one direction, and never in the other 
 direction. 
 
 The corporation of New Orleans took a rule on the plaintiffs 
 to show cause why the injunction should not be dissolved, 
 because the petition exhibited on its face no grounds for the 
 issuance of the writ. 
 
 Upon the trial of the rule, it' was made absolute, and the 
 injunction was dissolved. Plaintiffs have appealed. 
 
 The material inquiry in the decision of this case is, what are 
 the rights of plaintiffs to the streets of New Orleans; for 
 if their rights are not disturbed, they have no personal ground 
 of complaint. 
 
 Streets, public walks and quays, are things which belong in 
 common to all the inhabitants of cities and other places, and 
 to the use of which all the inhabitants of a city or other 
 place, and even strangers are entitled in common. Civil 
 Code, Arts. JfJfi, ^44 <^nd Jf4B. 
 
 Plaintiffs cannot then claim an exclusive use of the streets, 
 or complain if their use of the same be impeded by a similar 
 use of the streets by other persons. No citizen is empowered 
 to demand such an exclusive use of the streets, as will free 
 him absolutely from inconvenience. It is an inconvenience 
 for him who wishes to take an airing in his carriage, to be 
 impeded by omnibuses and drays; but he cannot exclude them 
 from the use of the streets. 
 
 Bach citizen is entitled to the use of the streets in his mode 
 of conveyance, whether in a carriage, buggy, cart, or on a 
 dray, but he cannot complain, if others adopt a mode of con- 
 veyance different from his own, and which prevents him from 
 traversing the streets as rapidly as he might otherwise do. 
 
 No citizen has a legal right to complain that the streets are 
 used by other citizens, in a peculiar manner, even if it causes 
 him a little inconvenience, so long as he himself is allowed 
 the free use of the streets in his peculiar mode. 
 
 The streets are destined for public lise, but not for a parti- 
 cular mode of public use. 
 
 If the city of New Orleans wished to expend the money 
 necessary for the laying of rails throughout the city, for 
 
1859.] LOUISIANA. 407 
 
 Brown vs. Duplessis. 
 
 the purpose of permitting all who wished to run their own 
 cars thereupon, drawn by horses or mules, no one could com- 
 plain, as long as it did not prevent other modes of traversing 
 the streets, for traveling in cars on rails is one mode of using 
 public streets, and there is no reason in the nature of things 
 why it should be lawful to travel in a carriage or gig upon the 
 streets, and not lawful to travel in a car upon rails fixed 
 in the streets, but not so laid as to prevent the use of the 
 streets by other modes of conveyance. 
 
 If it does not suit the public coffers, or the public convenience 
 that the city should lay rails for the free use of the public, it 
 follows from the premises that the city has the prerogative of 
 selling the right of way for a specified time, to one or more 
 persons, who shall lay rails and have the privilege of running 
 cars, drawn by horses or mules, according to a tariff fixed by 
 the common council. 
 
 The selling of this right of way does not impede citizens 
 from using the streets in any other mode of ordinary convey- 
 ance ; it promotes trade and commerce ; unites the distant 
 parts of the city, and benefits the health of citizens, by ena- 
 bling them to have their residences at a distance from the 
 crowded thoroughfai'es of the city. 
 
 The selling of this right of way is not an alienation or 
 appropriation of a portion of the public streets for private 
 uses, any more than the licensing of omnibuses or hacks for 
 a specified period, is an alienation or appropriation of the 
 public streets. 
 
 Property holders on the streets through which the proposed 
 railroads shall be constructed, cannot complain, for they still 
 have the use of the streets in their desired mode of convey- 
 ance, with the additional privilege of riding for a small com- 
 pensation in the cars. If the running of these cars should 
 depreciate their property, they cannot legally complain, 
 because they are not divested of the use of the streets, and 
 the destination of the public streets is not for any peculiar 
 mode of traveling, but for all such modes as shall best suit 
 the convenience of the public. 
 
 The preserving a certain space in a street, for the use of 
 the cars, which pursue one direction without deviation, can- 
 
40,8 LOUISIANA. [Sup. Ot. 
 
 Brown m. Duplessis. 
 
 not be said to obstruct the streets, for they can occupy, but 
 for a short time, any particular part of the streets. 
 
 An omnibus or carriage, and erery other vehicle, occupies 
 a certain space in the streets, and it does not seem to be a 
 suflBcient objection to cars, that they move in a fixed direc- 
 tion ; on the contrary, it is more easy to get out of their way, 
 than out of the way of those vehicles whose course depends 
 upon the volition of the driver. 
 
 It cannot be considered as an objection, that on certain 
 streets, the cars shall run up, and shall never be run in the 
 opposite direction. 
 
 This is a mere arrangement for public convenience, depend- 
 ent upon the discretion of the common council. 
 
 It does not abridge the rights of the public, for they are not 
 obliged to use the cars unless they think proper. 
 
 If the running of cars in one direction benefits the public, 
 the common council cannot be deprived of the right of doing 
 this much good, because the running of them up and down 
 might benefit the city still more. 
 
 The city charter empowers the common council to establish 
 railroads, such as are proposed in this instance, to be run by 
 horses or mules. It says : " The mayor and common coun- 
 cil shall ha.Ye full power and authority to make and pass such 
 by-laws and ordinances as are necessary and proper, and are 
 not contrary to the constitution and laws of the United 
 States or this state. * * * Second, to regulate and make 
 improvements to the streets, public squares, wharves, and 
 other property. * * * Twelfth, to make regulations 
 for the proper government of carts, drays, carriages, omni- 
 buses, and other vehicles of every descriptiop, which run 
 in the streets, or anywhere within the limits of the city, 
 and to determine through what streets the same shall pass." 
 Revised Statutes, sec. 51, p. S68, 370. Vide also. Civil Code, 
 Art. 859; Pulley vs. Municipality Number 2, 18 La., 278- 
 284- J Drake vs. 27ie Hudson River Railroad Company, 7 
 Bari., 508-524; s. c. 1 Am. Si. Ry.-Dec, 10. 
 
 The city charter vests the mayor and common council with 
 full power to make such bylaws and ordinances as are 
 necessary and proper, for regulating and making improve- 
 ments to the streets. 
 
1859.] PENNSYLVANIA. 409 
 
 Moore vs. The Green and Ooates St. Pass. Ry. Co. 
 
 It is left to their discretion, under the control of the courts, 
 to decide what improTements shall be made in the streets, 
 and we cannot say that they have abused this discretion 
 in the ordinances now under consideration. 
 
 We would also observe, that the 13th section of the act of 
 1855, relative to the organization of corporations for works of 
 public improvement, declares that : "No railroad, plank road 
 nor canal, shall be constructed through the streets of any 
 incorporated city or town, without the consent of the munici- 
 pal council thereof." Revised Statutes, p. 116, sec. IS. 
 
 This section implies that the city has the power to establish 
 railroads, if she thinks proper so to do. 
 
 Judgment afBrmed, with costs of appeal. 
 
 D. T. MOOEE AND CO., vs. THE GEEEN AND OOATES 
 STKEET PASSENGER RAILWAY COMPANY.* 
 
 KISI PBICS. 
 
 S PUla.. U7 ; s. c. 16 Leg. Int., 173. 
 
 An appraisement of the value of certain property, agreed upon by a 
 majority of the appraisers, appointed under an act incorporating a city 
 railroad is a valid and binding appraisement. 
 
 An act of the legislature, which provided that where appraisers 
 appointed to assess the amounts to be paid by any citj' passenger 
 railway company have failed to agree, other appraisers shall be 
 appointed by the district court, has no application. 
 
 The facts are fully stated in the opinion. 
 
 Allison, J. — In this case, a special injunction having been 
 granted, the defendants ask that it be dissolved, basing their 
 application upon the act of the 24th of March, 1 859, entitled : 
 " An act relative to passenger railway companies of Philadel- 
 phia," which provides, that in all cases where the appraisers 
 appointed to assess the amounts to be paid by any passenger 
 railway company in the city of Philadelphia, shall have failed, 
 or shall hereafter fail to agree in their appraisement of prop- 
 erty required to be purchased by such, company, it shall be 
 
 For a full history of the litigation in this case see Ch-een and Coates Streets Pass. 
 By. Co vs. Moore, 6k Pa. St., 79; s. o. S Am. St.-Ry. Dec 
 
410 PENNSYLVANIA. [Phila.Coin.Pl. 
 
 Moore m. The Green and Coates St. Pass. Ry. Co. 
 
 competent for the district court to appoint three appraisers, 
 etc., " and the decision, by a majority of said appraisers, shall 
 be final and conclusive, when approved by the judges of said 
 district court." 
 
 The act further provides that after such appointment, it 
 shall be lawful for the court which may have granted any 
 injunction, in conseqtlence of the failure of the appraisers to 
 agree upon the value of the property to be appraised, to dis- 
 miss such injunction. Upon the tender of good security, for 
 the payment of the value of the property to be thus ascer- 
 tained. 
 
 This motion brings up for decision the legal effect of an 
 appraisement of the property of the complainants, agreed 
 upon by a majority of the appraisers appointed under the act 
 incorporating the Green and Coates Street Passenger Railway 
 Company ; for^if that appraisement was legal and valid, and 
 binding upon the parties to the bill, then this motion must be 
 dismissed. 
 
 The principle which would seem to rule the present appli- 
 cation has been frequently recognized by the courts of 
 England and by the supreme court of our own state. It is 
 usually said that a power of a private nature, that is, a power 
 to do a private act, must be executed by all to whom it is 
 given ; but that a power of a public nature, or to do a public 
 act, may be executed by a majority. This principle has 
 received, by our supreme court, qualifications, which renders 
 somewhat difficult its application to particular cases, as they 
 from time to time arise. 
 
 The case of a Turnpike Road hy Chad's Ford to the State 
 Line, {Baltimore Turnpihe,) 5 Binney, J^Sl, is strongly anala- 
 gous to the one now before us. There the act authorizing 
 the construction of the road gave to the owner, whose ground 
 should be taken by the corporation, the right to apply to the 
 court for the appointment of six persons to view and adjudge 
 the amount of his damage. It was held that if the whole num- 
 ber viewed, five might adjudge the damage. That was a case 
 of a private corporation, in which the public had no other 
 interest than the convenience and facility of travel, and in 
 this it is side by side with the present defendants. Land 
 
1859.] PENN8YLYANIA. 411 
 
 Moore vs. The Green and Coates St. Pass. Ry. Co. 
 
 was to be taken in one instance and personal property in the 
 other, but this cannot affect the principle involved. Persons 
 not named in the law were to be appointed to appraise in each 
 case, who were to become functus officio by the performance 
 of a single duty, that duty being in an equal degree judicial 
 and deliberative. 
 
 And if it be said that in the present case the act to be per- 
 formed is private in its nature, being a question of compensa- 
 tion for property to be purchased by the defendants from the 
 complainants, in the amount of which compensation the pub- 
 lic have no concern, so was it, as between the owner of the 
 land and the turnpike company. And although the public 
 have no direct interest in the amount to be paid by the 
 defendants for the stock of the omnibus lines, yet they have 
 a very clear and apparent interest in having the value fixed 
 by an appraisement, for until that shall be done, they are 
 shut out from the. enjoyment of the advantages of the road, 
 the valuation and purchase of the omnibus stock being made 
 in the charter of the company, a condition precedent to the 
 exercise of corporate franchises granted to the defendants, of 
 which advantages the public were in part at least to be the 
 recipients. And in this sense the act of appraisement is pub- 
 lic in its nature, because it affects the convenience and inter- 
 est of the community generally. 
 
 In the Commissioners of Allegheny County vs. LecTcy, 6 
 S. S R., 166-170, it was held that authority given to the 
 commissioners of the county to purchase ground for the erec- 
 tion of a jail, was well executed by two of the commissioners 
 without the concurrence of the third, because the business, 
 although not judicial, was of a public nature, and the power 
 was conferred upon a board possessing several of the qualities 
 of a body corporate. The general principle is also affirmed 
 in Cooper vs. Lampeter Totvnship, 8 Watts, 125-128. But in 
 Commonwealth ex rel. Hall vs. The Canal Commissioners, 9 
 Watts, ^.66-Ji.ll, Judge Gibson questions the correctness of the 
 rule adopted in the cases already cited, and says the criterion 
 seems to be not so much the character of the power or of the 
 act to be done by virtue of it, as the character of the agent 
 appointed for the performa,nce of it. 
 
412 PENN8YLYANIA. fPhila.Oom.Pl. 
 
 Moore m. The G-reen and Coates St. Pass. Ry. Co. 
 
 Perhaps the result of the cases is, that an authority com- 
 mitted to several as individuals is presumed to have been 
 given to them for their personal qualifications, and with a 
 consequent view to an execution of it by them all, but where 
 it is committed to them as a body, there is no presumption in 
 the way of the usual method of corporate action by a majority. 
 He cites with approval the remarks of the Chief Justice in 
 Commissioners of Allegheny County vs. Lechy, supra, that 
 the rule which requires execution by all has never been iap plied 
 to public business of a judicial or of a deliberative nature. 
 This case went up upon the question of the validity of an 
 appraisement by two of a board consisting of three appraisers 
 appointed by the canal commissioners. The action of the two 
 was held to be legal. 
 
 Johnston vs. Bingham, 9 Watts £ Berg., 56, is a case which 
 illustrates the principle of a granted power to several persons 
 named in the grant to transact private business. The parties 
 to the suit agreed that two surveyors, designated eo nomine, 
 should " go upon the ground and fix the lines " of a certain 
 survey, and return a draft to the court, on which judgment 
 should be entered. A survey and draft was made by one, and 
 approved by the other, who had previously surveyed the prop- 
 erty. It was held that the power was not well executed, and 
 that the duties confided to the individuals named could only 
 be properly performed by a joint execution of them. 
 
 In McCready vs. The Guardians of the Poor, 9 8. & R., 
 94-99, Judge Duncan delivering the opinion of the court. 
 
 "In matters of public concern the voice of the majority 
 must govern. Whether the statute expressly authorizes a 
 majority to act or is silent, the principle to be extracted from 
 the numerous cases is, that where a number of persons are 
 entrusted with powers not of a merely private confidence, but 
 in some respects of a general nature, and all of them are 
 assembled, the majority will conclude the minority." He 
 cites Co. Litt., 186. The question there discussed and decided 
 was the inability of two trustees, in a case of domestic attach- 
 ment, the third person nominated not having accepted, to do 
 any valid or binding act. The case, however, affirms the 
 
1859.] PIJNNSYLYANIA. 413 
 
 Moore «s. The Green and Coates St. Pass. Ry. Co. 
 
 legality of the act of a majority where there are three trustees 
 in the office. 
 
 A review of all the cases thus referred to, leads us to the 
 conclusion, that the appraisement by a majority of persons 
 selected under the act incorporating the defendants as a pas- 
 senger railway company to perform this duty, is a legal and 
 binding appraisement, and that, therefore, the act of March 
 24th, 1859, does not apply. This conclusion, I think, is well 
 founded, whether it be based upon the principle of the execu- 
 tion of powers, judicial and deliberative, and of a public 
 nature, as contrasted with a mere private confidence. In the 
 present case, the public have a concern, equal to that which 
 they had in the case of the Baltimore Turnpike, supra, and 
 more direct and immediate than they had in Johnston vs. Bing- 
 ham, supra, which was a question between a debtor and his 
 creditors, and in which the public had no interest, except the 
 concern which they have in the proper execution of the laws. 
 
 So also, if we regard the rule laid down in The Common- 
 wealth ex rel. Hall vs. TTie Canal Commissioners, supra, and 
 measure the case more by the character of the agent appointed 
 to perform the duty, than by the nature of the power to be exe- 
 cuted, we must hold the appraisement heretofore made to be 
 a valid appraisement ; for it was not a power to A, B, and C, 
 nominative, but to three appraisers to be selected in the mode 
 mentioned in the act of incorporation, who, when appointed, 
 constituted a board for the performance of particular duties, 
 as much so as a jury to assess road damages under a special 
 act of assembly, or as a board of trustees in a case of domestic 
 attachment. In each case the appointees become functti,s 
 officio, when the power conferred has been executed. Or, as 
 Judge Gibson expresses it, the authority not having been con- 
 ferred on several as individuals, but to the body of the board, 
 thereafter to be created, there is no presumption in the way 
 of corporate action by a majority. 
 
 In relation to the argument addressed to the discretion of 
 the court, and based upon a power contained in the proviso to 
 the act of 1859, it is a sufficient answer, that we do not think 
 it is applicable in the present instance ; this not being a case 
 -in our judgment in which it is proper to appoint appraisers 
 
414 NEW YORK. [N.Y. Sup'r Ot. 
 
 Weldon vs. The New York and Harlem B. R. Co. 
 
 as contemplated by that act. And in reply to the considera- 
 tions not based upon the law of 1859, it is only necessary to 
 say, we are not satisfied, that to grant the present motion we 
 would be administering equity between the parties to the bill; 
 for, by so doing, we would essentially change the status of 
 the complainants in the cause, if we did not seriously affect 
 or endanger their rights. Nor is it any hardship upon the 
 defendants, that they should be held to conditions upon which 
 they accepted the grant of corporate power and privileges ; 
 one of those conditions was, before they could use the streets, 
 they should purchase from the proprietor of the Ooates and 
 G-reen street omnibus line, the stock, etc., then in use by 
 them ; and being of opinion that the value of such stock, 
 etc. , has been fixed by Iggal appraisement, we think it would 
 be contrary to equity, and contrary to the letter and spirit of 
 the act of incorporation, to remove the injunction, until the 
 law in this particular has been complied with. 
 
 Motion dismissed. 
 
 JOHN WELDON, Eespondent, vs. THE NEW YOKK 
 AND HAELEM KAILKOAD COMPANY, Appellants, 
 
 AND 
 
 JOHN WELDON and wife. Respondents, vs. THE 
 
 NEW YORK AND HAELEM RAILEOAD 
 
 COMPANY, Appellants. 
 
 aENEBAL TERM. 
 
 18 iV. F. Superior Court, (5 Bom.,) 576. 
 
 The plaintiffs brought this action to recover damages for injuries 
 received by being run over by a team of horses belonging to the defend- 
 ants. It was alleged that the negligence of the defendants' driver in the 
 management of the team while taking it through a public street after 
 being detached from a car, which the team had been drawing, was the 
 cause of tHe injuries. The evidence showed that the method pursued 
 in the management of the team was the same as had been practised by 
 this and another company for years without accident, and that it was an 
 appropriate and a safe method was testified to by several witnesses of 
 
3859.] NEW YORK.' 415 
 
 Weldon ««. The New York and Harlem R. R. Co. 
 
 practical experience in driving teams. The evidence further showed 
 that the accident was caused by the team of horses bein'g struck and 
 frightened by a third person, so that they became unmanageable and 
 then ran over the plaintiffs. 
 
 Held, that a verdict found for the plaintiffs should be set aside as 
 contrary to evidence. 
 
 The person who struck the horse had been in the employ of the 
 defendants, but that he was employed by them at the time of the acci- 
 dent was not clear from the evidence. • 
 
 Meld, that the company was not liable for his acts, as at the time he 
 struck the horses he was not engaged in the actual service of the defend- 
 ants or in any business that concerned them. 
 
 This was an appeal from an order denying a motion for 
 a new trial in each of the two cases. 
 
 The evidence was the same in both actions. On Sunday 
 evening, December %!, 1856, the plaintiffs were crossing 
 Fourth avenue in New York city, between Twenty-seventh 
 and Thirty-second streets when they were run over by a span 
 of horses owned by the defendants, and at the time in charge 
 of their driver, who had detached them at Twenty-seventh 
 street from a car he had been driving and was taking them to 
 the stables of the company. 
 
 The driver was at the time riding one of the horses, and 
 while taking them to the stables a man named Butler who had 
 been previously employed by the company in the stables as an 
 extra man, suddenly ran into the street and struck the horses 
 and frightened them so that they became unmanageable and 
 ran over and injured John Weldon and his wife. One action 
 is for damages for injuries sustained by the husband ; the 
 other for damages for injuries to the wife. 
 
 In each case the plaintiff recovered a verdict, and in 
 each fhe defendants moved for a new trial. The court denied 
 the motions, and the defendants appealed to the general term. 
 The appeals were argued together. The evidence as it was 
 viewed by the court, is stated in the opinion. 
 
 Mr. C. W. Sandford, for the appellants. 
 
 Mr. G. Dean, for the respondents. 
 
 By the Uouet : Bos worth, C. J. — In these actions the 
 evidence is the same in one as in the other. In each the 
 
416 NEW YORK. [N.Y. Sup'r Ot. 
 
 Weldon vs. The New York and Harlem R. R. Co. 
 
 plaintiff obtained a verdict. In each the defendants moved 
 for a new trial, on the ground that the verdict is against evi- 
 dence, and that motion was denied. Prom the order deny- 
 ing it the defendants appealed to the general term. The only 
 question is, whether the verdict is so clearly against evidence 
 that it is the duty of the court to set it aside for that cause. 
 The plaintiffs were run over, in the evening of the 21st of 
 December, 1855, while crossing Fourth avenue, by a span of 
 horses owned by the defendants, and at the time in charge of 
 their driver. 
 
 The horses had been attached,in the afternoon of that day, to 
 one of the short cars of the plaintiffs, running between Twenty- 
 seventh street and the Astor House, and had been detached from 
 the car at Twenty-seventh street, shortly prior to the accident, 
 and the driver was, at the time of the accident, riding the off 
 horse. The two horses were harnessed together, having between 
 them the pole which is attached to the car when it is in use, 
 and the whiffletrees were attached to the pole, and one end of 
 the pole in the rear of the horses' feet was on the ground. 
 There was no negligence or mismanagement on the part of 
 the driver, unless it was negligence or mismanagement to go 
 through the streets of the city with a span of horses as these 
 were taken. 
 
 The driver was in the act of taking the horses from Twenty- 
 seventh street to the stable, which was in a street a short 
 distance further up town. 
 
 The accident was caused by a man by the name of Butler, 
 who suddenly ran into the street and struck the off horse and 
 continued to strike him until he was so frightened that the 
 span moved so rapidly as to get out of Butler's reach. Being 
 thus frightened, they became unmanageable and ran over the 
 plaintiffs. 
 
 Upon the question whether it was negligence or misman- 
 agement to drive a harnessed team through a street of the 
 city in the manner and condition that this was, the evidence 
 is uniform and uncontradicted that this method had been 
 practised for years by this company, and by the Hudson Eiver 
 Railroad Company, and that no accident had resulted from 
 it. All the witnesses who had any practical experience in 
 
1859.] N:EW yore. 417 
 
 Weldon vs. The New York and Harlem E. R. Co. 
 
 driving teams thus harnessed, concurred in the opinion tha,t this 
 method was appropriate and safe, and less likely to result in 
 accidents than an attempt to drive the team walking behind 
 or by the side, instead of riding one of the horses. 
 
 On the evidence before us, we deem the conclusion just 
 that the injury to the plaintiffs was caused by the misconduct 
 of Butler ; that the mode practised to driv-e and manage the 
 horses was not an act of negligence, and that the evidence 
 resulting from the practice of it for years, shows that it was a 
 safe course, and one not fraught with any danger of accident 
 from any causes which it was the defendants' duty to antici- 
 pate and provide against. 
 
 There is some evidence that Butler had been employed by 
 the defendants, prior to this time, in some subordinate capac- 
 ity in or about their stables. As to whether he was or was not 
 employed by them at the time of the casualty, the evidence 
 is not definite. 
 
 There is no ground for pretending that at the time he 
 struck one of these horses he was engaged in any actual service 
 in behalf of the defendants, or in any business which con- 
 cerned them. 
 
 His misconduct was an act of wanton or thoughtless mis- 
 chief, for the consequences of which the defendants, (as the 
 evidence now stands,) are not responsible. 
 
 We cannot avoid the conclusion that the jury attached an 
 undue importance to the fact that Butler had been and per- 
 haps was, at the time an employee of the defendants, although 
 not at the time acting in the scope of his employment, or in 
 fact attending to any business which concerned them. 
 
 Eeluctant as we are to disturb the verdict of a jury upon a 
 mere question of fact, yet we regard these verdicts as so 
 entirely without evidence to support them, that it is our duty 
 to grant a new trial. 
 
 The verdicts must be set aside, and a new trial granted, on 
 payment of the costs of the trial, including the costs of per- 
 fecting the judgments. The costs of the appeals must be 
 costs in the cause, and abide the event. 
 
 Ordered accordingly. 
 
 27 
 
418 PENN8YLTANIA. [Pliila.Oora.Pl. 
 
 The 2d & 3d St. Pass. Ry. Co. vs. The Green & Coates St. Pass. Ry. Go. 
 
 THE SECOND AND THIED STREET PASSENGER 
 RAILWAY COMPANY vs. THE GREEN AND 
 COATES STREET PASSENGER RAIL- 
 WAY COMPANY. 
 3 PMla., 430; s. c. 16 Leg. Int., 197. 
 
 Charters granted to private corporations are contracts, and as no law 
 is valid which impairs the obligation of a contract, a legislative act 
 which attempts to take away or impair any of the essential franehises 
 of a corporation is to that extent unconstitutional and void. 
 
 Held, therefore, that a charter of a street railroad company, which 
 granted the privilege to construct a railroad on certain streets, upon 
 which another company was authorized by its charter, previously 
 granted, to construct a railroad, was invalid. 
 
 The privilege granted by the legislature to other companies to use 
 the established road of a street railroad company, for a given and 
 restricted purpose, cannot be held to (ponfer upon such companies, the 
 rights of ownership or control, but that such companies are to use 
 the road subject to the reasonable regulations and control of the estab- 
 lished company. 
 
 The facts are stated in the opinion of the court which was 
 delivered by 
 
 Allison, J. — The defendants claim to be entitled to run 
 their cars and carry and take up passengers upon the follow- 
 ing portions of the track of the complainants. 
 
 Along Coates street from Second to Oak street, along 
 Second and Third streets from Green to Coates street on the 
 north, and to Dock street on the south. This claim is accom- 
 panied with the assertion of a right to use the aforesaid 
 portion of the Second and Third street road, without regard 
 to order, instructions, or control of the complainants, or their 
 superintendent. 
 
 The right thus set up by the defendants^ is denied by 
 the complainants, and to restrain the exercise and enjoyment 
 of the same a special injunction is prayed in the bill filed. 
 
 By the terms of the sixth section of the act incorpora- 
 ting the defendants, it is provided, " that the said company, 
 (the Green and Coates,) shall have the right to run their cars 
 
1859.] PENNSYLVANIA. .419 
 
 The 2d & 3d St. Pass. Ry. Co. vs. The Green & Coates St. Pass. Ry. Co. 
 
 upon any other passenger railway now incorporated, or that 
 may be hereinafter incorporated, in said city of Philadelphia, 
 upon such terms as provided for in section five." 
 
 Section five provides, that any passenger railroad connecting 
 with or crossing the Green and Coates, shall have the right to 
 run their cars upon said road, upon terms to be agreed 
 upon by the parties interested, and if they cannot agree, then 
 the district court shall appoint two appraisers, who shall fix 
 the amount to be paid by the party using the same. 
 
 Two questions are thus raised for consideration : First, 
 the validity of the grant to use the road of the complainants 
 without their consent ; and second, if any right accrues to 
 the defendants, by virtue of such grant, upon what terms, and 
 subject to what restriction, (if any,) is it to be enjoyed ? 
 
 The complainants are the older company of the two ; their 
 act of incorporation bears date of the 10th day of April, 1858, 
 and that of the defendants, the 28th day of April, 1858. 
 These acts are, therefore, to be compared, the one with the 
 other ; and the rights, privileges and franchises conferred by 
 each of them respectively, are to be carefully considered in 
 coming to the conclusion as to what either company may 
 or may not do, by virtue of their respective corporate powers 
 and privileges. 
 
 The complainants possess whatever rights their charter con- 
 fers upon them, subject to sach limitations and restrictions as 
 are in derogation of their general powers and corporate fran- 
 chises. These restrictions, so far as they relate to the present 
 inquiry, are embraced in the seventh section of the act under 
 which they hold their charter from the state. It is in the fol- 
 lowing language : 
 
 " The said railway on the route described, shall be subject 
 to the use of any part or parts thereof, by any other passenger 
 railway company for the purpose of .completing a route, or mak- 
 ing a circuit, upon such conditions," as to compensation, as may 
 be agreed upon, etc. In accepting their charter from the state, 
 the complainants consented to this as one of the conditions of 
 the grant ; and if it is necessary that the G-reen and Coates 
 street company shall use the portions of the road designated, 
 then whatever be its effect, there is no escape from it. But 
 
420. PENNSYLTANIA. [PhiIa.Oom.P]. 
 
 The 3d & 3d St. Pass. Ry. Co. »«. The Green & Coates St. Pass. Ry. Co. 
 
 the charter of the defendants describes their intended route or 
 circuit, either in express language, or by what would seem to 
 be a necessary implication. It begins at Oak street, running 
 west along Green street to Twenty-second street, north along 
 Twenty-second street to Coates street, west along Coates street, 
 with a double track, to the river Schuylkill, thence east- 
 wardly along Coates street to the place of beginning. The dif- 
 ficulty to be here encountered is in the omission to trace the 
 route from Coates and Oak street, south, along Oak street to 
 Green street, which is the place of beginning. But the inten- 
 tion seems so apparent, even under the strict rule of con- 
 struction, to which corporations are held, that it would seem 
 to follow, from the fact that the route terminated at the 
 starting point, and the return route being upon Coates street, 
 that from Coates and Oak streets, the place of beginning 
 may be reached by following Oak street to Green street. 
 Such was doubtless the intention of the legislature ; but if 
 this power may not be inferred by necessary implication, then 
 the hardship must be submitted to until legislative relief can be 
 obtained. Or if it be necessary to complete the route or 
 circuit, this can be done by using Second and Third street 
 or either of them, between Coates and Green streets, and in 
 such an event this portion of the road of complainants could 
 be used by the defendants upon the terms of compensation 
 provided for by law. But to so much of the claim made 
 by the defendants, as asserts a right to run their cars upon 
 complainants' road, from Green street south to Dock street, 
 we are required to say, that this claim, in our judgment 
 cannot upon any ground upon which it is sought to rest it, be 
 maintained, because it is no part of the route or circuit 
 of Green and Coates street road, and is therefore, no part of 
 the condition upon which corporate rights were granted to 
 and accepted by the complainants. This conclusion we reach 
 upon the principle, now by the vast preponderance of authority, 
 settled as established law, that charters granted to private cor- 
 porations are contracts, and as no law is valid which impairs 
 the obligation of a contract, therefore, whenever an act takes 
 away or impairs any of the essential franchises of a corpora- 
 tion, it is to this extent unconstitutional and void. 
 
1859.] PENNSYLVANIA. 421 
 
 The 3d & 3<i St. Pass. Ey. Co. m. Ther Green & Coates St. Pass. Ry. Co. 
 
 Upon this point, the leading case of the Trustees of Dart- 
 mouthCollege vs. Woodward, 4 Wheaton, 518, was decided. The 
 general doctrine of the inviolability of corporate rights and 
 franchises, so far as private corporations are concerned, and 
 so far, at least, as they are intended and calculated to afEect 
 property, is recognized in all the states in which the question 
 has arisen, unless Ohio form an exception. In the oases of 
 Mechanic^ and Traders' Branch of State Bank of Ohio vs. 
 Debolt, 1 Ohio St., 591-696, &udi Bank of Toledo vs. City of 
 Toledo and Bond, 1 Ohio St., 622, it was held that the charter 
 of a private corporation, like a bank, is not a contract, but an 
 act of legislation, which may be repealed ; but both these 
 cases were reversed by the Supreme Court of the United 
 States, and the doctrine of the Dartmouth College case 
 reasserted so late as 1855, in the case of Dodge vs. Woolsey, 
 18 Howard, SSI, and in The Mechanics' and Traders' 
 Bank, Branch of State Bank of Ohio, vs. Thomas, 18 How- 
 ard, 384. 
 
 In Fletcher vs. Peck, 6 Cranch, 87-1S5, the court feay, 
 where the law is in its nature a contract, where absolute 
 rights have been vested, under that contract, a repeal of the 
 law cannot divest those rights. 
 
 Chief Justice Shaw in Boston and Lowell Railroad Corpora- 
 tion vs. Salem and Lowell Railroad Company, 68 Mass., (2 
 Gray,) 1-S4, says: " Any law granting privileges to others, 
 repugnant to those previously granted, which if available, would 
 be a repeal by implication, is obnoxious to the same objection. 
 That which cannot be repealed in express terms, cannot be re- 
 pealed by implication, by the enactment of laws repugnant to 
 the provisions of the former act." We assume the doctrine to 
 be well established, that the charter of a private corporation is 
 a contract, inasmuch as it is an implied undertaking on the part 
 of the state, that the corporation as such, and for the purposes 
 therein named or implied, shall enjoy the powers and fran- 
 chises by its charter conferred. And any statute, therefore, 
 essentially modifying these franchises, is a violation of the 
 charter. To apply this rule to the present case, we hold that 
 the grant of power to the complainants to construct their road 
 upon Second and Third streets, south of Green street, for pas- 
 
422 PENNSYLVANIA. [Phila.Oom.Pl. 
 
 The 2d & 3d St. Pass. Ry. Co. vs. The Green & Coates St. Pass. Ry. Co. 
 
 senger railway purposes, including the right to take compen- 
 sation for carrying passengers over the same, is a contract as 
 between the state and the Second and Third Street Passenger 
 Railway Company; and this contract cannot be impaired, by 
 subsequent legislation, without the consent of the complainants. 
 And that a subsequent grant to another corporation of the fran- 
 chise first vested in them, is invalid, because this portion of 
 their road is no part of the route or circuit of the Green and 
 Coates street company, which alone could subject it to their 
 use. 
 
 In answer to the second question raised, as to the terms 
 upon which defendants may use such portions of complain- 
 ants' road as are necessary to complete their route, it may be 
 stated in brief, that the privilege granted to other companies 
 to use the road of the complainants for a given and restricted 
 purpose, cannot, by any fair construction, be held to confer 
 upon such companies the rights of ownership or control ; and 
 that the use of the road " for the purpose of completing a 
 route" must be taken to mean, subject to the reasonable 
 regulations and control of the company complainant, as near 
 as may be, to such regulations as their own cars and employees 
 are subjected. There cannot be two equal powers exercising 
 at the same time, the arrangements of the time table and the 
 police regulations and supervision of the same road. 
 
 The question as to what portions of the Second and Third 
 street road, from Green street north, the defendants may be 
 entitled to use, may be left for future determination, as it will 
 in a great measure depend upon the construction of the road 
 of defendants upon Oak street, from Green to Coates street. 
 The question of compensation and the right to take up 
 passengers upon such portions of complainants' road as may 
 be used by defendants, may also stand over for the present, 
 upon bond, in such amount and with such securities as may be 
 approved by the court, being given by the defendants to 
 secure to the complainants such amounts as may be hereafter 
 decided to be due them for the causes aforesaid. 
 
 A special injunction is granted to restrain the running 
 of defendants' cars upon the road of complainants, south of 
 Green street. 
 
1859.] FENN8YLYANIA. 423 
 
 Commomvealth vs. Jeandell. 
 
 COMMONWEALTH vs. JEANDELL.* 
 
 QUARTER SESSIONS, PHILADELPHIA. 
 
 3 PUla., 609 ; s. c. 16 Leg. Int., 364. 
 
 Sunday, or the first day of the week, is a part of Christianity. 
 
 By the common law of the commonwealth, every citizen is entitled 
 to enjoy the first day of the week in undisturbed quiet and repose, and 
 whatever actual noise or disorder hinders seriously, or destroys alto- 
 gether this inalienable right, is, and always has been, a breach of the 
 peace. 
 
 The defendant, a driver of a horse car was arrested for committing a 
 breach of the peace, in driving the car on Sunday. It was proved that 
 some passengers in the car had made considerable noise and that a num- 
 ber of people gathered, when the car was stopped by the officer making 
 the arrest. The car had only proceeded two squares when the arrest 
 was made. 
 
 Seld, that the defendant was not guilty of a breach of the peace. 
 That he was not responsible for the acts of the passengers or of the 
 people who were in the crowd. 
 
 The facts are contained in the opinion. 
 
 Ludlow, J. — The defendant, in this case, was held to bg,il 
 by a magistrate of the city for having committed a breach of 
 the peace, " in running a car of the Green and Coates Street 
 Passenger Kail way, on Sunday, the 17th day of July ; " and 
 the case having been returned to this court, was heard by me 
 at length at the August Sessions, and is now to be decided. 
 
 The questions, both of law and of fact, involved in the deci- 
 sion of this case, are of vast importance, and have excited the, 
 interest and divided the judgment of the entire community ; 
 and although much that may be said in this opinion will not 
 be new, yet in all that is said I shall endeavor to be guided 
 not by passion or prejudice, but by the law of Pennsylvania 
 and the dictates of my own conscience. 
 
 It will be necessary, first, to consider the question of law, 
 and secondly, the facts of the case. 
 
 The authority to demand surety of the peace is derived 
 from the common law and from statutory enactments, and a 
 distinction is to be observed between such as are held to bail 
 
 *0n a writ of fiobeas corpus the defendant had been brought before Justice 
 Thompson of the Supreme Court, sitting at Nisi Prius, who refused to discharge the 
 prisoner. 2 GranVs Cases, 506; s. c. 1 Am. Law Beg., 615; 1 Am. St.-By. Dec, S85. 
 
424 PENNSYLVANIA. [Quarter Sess. 
 
 Commonwealth vs. Jeandell. 
 
 to keep the peace, and such as are held to bail to keep the 
 peace and be of good behavior. Any justice of the peace may 
 ex-officio, bind those to keep the peace whose offenses fall 
 within the class enumerated in the books, and to be found in 
 1 Haw. P. G.,p. Jfl8, while by virtue of the statute passed 
 in the thirty-fourth year of Edward III., which is in force in 
 Pennsylvania, a justice of the peace may demand surety for 
 good behavior of all such as "be not of good fame" to the 
 intent that the peace be not blemished. The construction 
 given to the language of this statute has extended this opera- 
 tion beyond its original meaning. So that by virtue of its 
 provisions, not only such as be not of good fame in the ordi- 
 nary acceptation of that language, but such as are stispected of 
 intending to break the peace, and others who are guilty of 
 misbehavior not strictly relating to the peace, may be com- 
 pelled to find surety for their good behavior. 1 Haw. P. C, 
 Ji85 ; Gommonwealth vs. Duane, 1 Binn., 99, note. 
 
 It is obvious that in all questions relating to suretyship to 
 keep the peace, or for good behavior, much depends, and 
 must necessarily depend, upon the discretion of the particular 
 magistrate who has jurisdiction of the cause, nor can any pre- 
 cise rules be suggested for the direction of the magistrate, 
 and especially is this remark true with reference to the 
 offenses within the statute of 34 Edw. III. Under the lib- 
 eral construction given, however, to language of that statute, 
 we have no doubt that if this defendant has committed an 
 actual breach of the peace, he may be compelled to find surety 
 for his good behavior. 
 
 The question next to be considered is, what is a breach of 
 the peace under the laws of this commonwealth, as applied 
 to this case ? 
 
 The word " peace " in the sentence " breach of the peace " 
 is a relative term, and must be interpreted with reference to 
 surrounding circumstances. Thus, if regard is had simply to 
 the time at which a breach of the peace is said to have been 
 committed, the solution of the question at issue will depend 
 upon the solution of a question of fact, as whether the offense 
 was committed during the hours of the day ordinarily so 
 called, or at the dead hour of the night, for no man can or 
 
1859.] PJENN8YLYANIA. 425 
 
 Commonwealth <ca. Jeandell. 
 
 will doubt that, in many cases, that act would amount to a 
 breach of the peace at night which would be innocent if per- 
 formed during the day ; so if reference is had to place alone, 
 that act would be a breach of the peace if committed in a 
 cemetery, and at a burial, or at a political, social, or religious 
 meeting, which, if committed elsewhere, would be innocent. 
 In each of the instances just referred to, no statute will be 
 found by virtue of the precise terms of which the offenders 
 may be arrested and punished for a Ireach of the peace, and 
 yet the usages of the people have established what may be 
 called the common law of the state, which cannot be violated 
 with impunity; and this common law recognizes a distinc- 
 tion between different places, as well as hours of the same day. 
 
 The question, then, whether this defendant has committed 
 an offense, depends as well upon the time when, and place 
 where, as upon the manner in which the act was done, and 
 admitting that the act would have been an innocent one if 
 done at some other place and at another time, can it be so 
 considered if committed upon the "Lord's day, commonly 
 called Sunday," and in the public street ? 
 
 The answer to this question brings directly into considera- 
 tion the main point of law involved in the decision of this cause, 
 and if it is to be answered affirmatively, must so be, because 
 the law of Pennsylvania has clothed the first day of the week 
 with peculiar sanctity; has made it a day of extraordinary 
 quiet and repose, precisely as the laws of God and man have 
 devoted the hours of the night upon each and every day 
 of the year to the service of man for his necessary quiet, 
 relaxation, and repose. 
 
 Christianity has been decided to be a part of the common 
 law of Pennsylvania. Undegraph vs. The Commonwealth, 
 11 S. <& R., S94, and although it is so in a restricted or 
 modified sense, yet its divine origin and truth are admitted, 
 and " therefore it is not to be maliciously and openly i;eviled 
 and blasphemed against, to the annoyance of believers, or the 
 injury of the public." 
 
 I find that the first legislative act in the colony of Pennsyl- 
 vania, was the recognition of the Christian religion and the 
 "Lord's day," and also the establishment of liberty of con- 
 
426 PjENNSYLYANIA. [Quarter Sess. 
 
 Commonwealth w. Jeandell. 
 
 science. Says Judge Duncan, in Undegraph vs. The Common- 
 wealth, supra, referring to the first legislative act: "It is called 
 the great law of the body of laws, in the Province of Pennsyl- 
 vania, passed at an assembly at Chester, the 7th of the 12th 
 month, December." 
 
 The language of the preamble is so striking that I am 
 tempted to quote at length : 
 
 " Whereas, ye glory of Almighty God, and ye good of man- 
 kind, is ye reason and end of government, and therefore govern- 
 ment in itself is a venerable ordinance of God ; and forasmuch 
 as it is principally desired and intended by ye proprietary, and 
 governor, and ye freemen of ye Province of Pennsylvania, and 
 territorys thereunto belonging, to make and establish such 
 laws as shall best preserve true Christians and civil liberty 
 in opposition to all unchristian, licentious and unjust prac- 
 tices, whereby God may have His due, Gaesar his due, and ye 
 people their due, from tyranny and oppression on ye one 
 side, and insolency and licentiousness on ye other, so that ye 
 best and finest foundations may be laid for ye present and 
 future happiness both of ye governor and people of this 
 province and territorys aforesaid, and their posterity. Be it 
 enactment, etc." 
 
 By a clause or section in this act the observance of the 
 " Lord's day " is provided for. The first act of the provin- 
 cial legislature upon the subject of labor upon the " Lord's 
 day " or first day of the week, was passed in 1705. It read as 
 follows : 
 
 " To the end that all people within this province may with 
 great freedom devote themselves to religious and pious exer- 
 cises, be it enacted," etc. And then follow these sentences: 
 " That according to the example of the primitive Christians, 
 and for the ease of creation, every first day of the week, com- 
 monly called Sunday, all the people shall abstain from toil 
 and labor, that whether masters, parents, children, servants 
 or others, they may better dispose themselves to read and 
 hear the holy Scripture at home and frequent such meetings 
 of religious worship abroad as may best suit their respective 
 persuasions." 
 
 The acts of 1786, and also of 1794, contain substantially the 
 
1859.] PENNSYLYANIA. 427 
 
 Commonwealth vs. Jeandell. 
 
 same proTisions in regard to the first day of the week, or the 
 " Lord's day." It will be observed, so far as the legislation of 
 the state is concerned, as well as that of the colony and prov- 
 ince of Pennsylvania, that the " Lord's day " is recognized 
 not only as a day of rest and quiet, but as a day of religious 
 rest and quiet. These various acts are illustrative of the views 
 and feelings of the founders of the colony of Pennsylvania, 
 and of its ancient inhabitants, men who sustained Christian- 
 ity upon the one hand and civil and religious liberty upon 
 the other, so that the acts themselves are but the embodi- 
 ment of the usages and customs of the people, and are, there- 
 fore, also illustrative of the common law of the state. The 
 right to repose and quiet upon the " Lord's day " rests upon 
 the same basis with the law which declares Christianity to be 
 a part of the common law, and would have existed though 
 the statutes prohibiting work upon the " Lord's day " had 
 never been enacted. 
 
 In further illustration of these views it will appear that by 
 the constitution of the state, which is beyond all question the 
 great embodiment of the customs, usages, and will of the 
 people, Sunday is by art. 2, sec. 2S, excepted from the 
 calculation fixing the number of days allowed to the executive 
 for the consideration of legislative bills, thus imparting to it 
 an extraordinary position in the calendar of days, and which, 
 coupled with the natural and indefeasible right to worship 
 Almighty God according to the dictates of conscience, guaran- 
 teed by the same constitution, goes far to settle the question 
 now under consideration. 
 
 All of the judges who have either written or spoken upon 
 this subject, have invariably given to the "Lord's day" the 
 position now contended for. Chief J. Tilghman declares 
 " that the violation of the Sabbath is a crime which deserves 
 punishment. But when work is done without noise or dis- 
 order, there is nothing in it like an actual breach of the peace." 
 Commonwealth vs. Eyre, 1 S. and R., 3^7. Judge Kennedy, 
 in The Commonwealth vs. Dupuy, Brightly, Ji4, establishes 
 the same principle; and Chief J. Lewis, in Commonwealth vs. 
 Johnstone, in his dissenting opinion, delivered in that case, 
 declares "the Sabbath is a Christian institution, recognized by 
 
428 PIJNNSYLVANIA. [Quarter Sess. 
 
 Commonwealth vs. Jeandell, 
 
 the common law and the constitution, and on this ground 
 alone have the legislature a right to pass laws for its obser- 
 Tance." 2 Am. Law Reg., 520. 
 
 It is unnecessary to refer to the opinions of the other able 
 jurists, nor to the class of cases wherein contracts have been 
 held to be void because executed upon the "Lord's day," 
 because these last decisions are based upon statutes which are 
 themselves based upon the common usages and customs of 
 the people, so far as the day as a distinct portion of time is 
 concerned. 
 
 If Christianity is a part of the common law of the state, 
 and the observance of Sunday, or the first day of the week, is 
 a distinctive feature of Christianity ; if the ancient, colonial, 
 provincial, and state legislature, and the constitution itself, 
 are all based upon Christianity as a part of the common law, 
 and distinctly recognize Sunday, the first day of the week, 
 then it follows that the day itself is clothed with peculiar 
 sanctity, and is intended by law to be a day of extraordinary 
 quiet and repose. 
 
 By the common law of the commonwealth, then, every 
 citizen is entitled to enjoy the first day of the week in undis- 
 turbed quiet and repose, that he may exercise his "natural 
 and indefeasible right to worship Almighty God according 
 to the dictates of his own conscience," and whatever actual 
 noise or disorder hinders seriously, or destroys altogether this 
 inalienable right, is, and always has been, a breach of the 
 peace. 
 
 It foUpws as a result of this view of the subject, that the 
 offense consists, if committed, in the noise or disorder actually 
 made, so that whether it is the result of worldly employment 
 or not, whether occasioned by a car^ or any other vehicle, by 
 the rich or the poor, it matters not, all are answerable to the 
 law, no matter in what method they disregard its provision or 
 break its commands. 
 
 This view of the law answers, in my judgment, the argu- 
 ment based upon the fact that the act of 1794 inflicts a pen- 
 alty for performing worldly employment on the "Lord's 
 day ;" for the act creates an ofEense not necessarily involving 
 a breach of the peace. The acts of April 2, 1833, March 
 
J 859.] PENNSYLVANIA. 429 
 
 Commonwealth vs. Jeandell. 
 
 16j 1847, and April 14, 1851, were all passed for the purpose ^ 
 of protecting the religious, social and political meetings of 
 the citizens from disturbances, whether involving a breach of 
 the peace or not, and each creates an offense unknown to the 
 common law, and inflicts a penalty when there may be actually 
 no breach of the peace. 
 
 Nor can we regard either the practices or laws of any 
 country, nation or state ; we are to be guided by the laws of 
 Pennsylvania alone. Sunday or the first day of. the week, is, 
 as we have before said, a part of Christianity. Upon its 
 peaceful observance Christianity in a great measure depends 
 for its support. Destroy this day and a revolution of the 
 most astounding character is produced. Whatever conclusion 
 may be arrived at upon the evidence submitted in the ease 
 before the court, we cannot assert as law a principle which 
 must lead to the most disastrous results — which must shake 
 Christianity itself — which Christianity, in the expressive lan- 
 guage of Judge Duncan, "is not proclaimed by the com- 
 manding voice of any human superior, but expressed in the 
 calm and mild accents of customary law. Its foundations are 
 broad, and strong, and deep ; they are laid in the authority, 
 the interests, the affections of the people. Waiving all ques- 
 tions of hereafter, it is the purest system of morality, the 
 firmest auxiliary and only stable support of all human laws." 
 
 Entertaining the views which we have just expressed of the 
 law by which this case is to be governed, we have experienced 
 the greatest embarrassment in arriving at a conclusion upon 
 the facts presented upon the hearing, because it is necessary 
 to determine whether this defendant has committed an actual 
 breach of the peace for which he alone is to be held 
 responsible. 
 
 The good sense of the people of this country has heretofore 
 prevented them from attempting to enforce a perfectly correct 
 principle in doubtful cases, and thus fanaticism and bigotry 
 have never yet driven the courts to dangerous extremes. A 
 liberal sentiment has prevailed, and conservative men have 
 united in sustaining the spirit of the law, while they have 
 accommodated themselves to the wants and necessities of a 
 populous city. 
 
430 PENNSYLTANIA. [Quarter Sess. 
 
 Commonwealth vs. Jeaudell. 
 
 The evidence for the prosecution fails to connect this 
 defendant with the transactions of the Sunday preceding his 
 arrest ; he is therefore not responsible for the alleged breach 
 of the peace which occurred on that day, and we dismiss that 
 testimony as irrelevant, unless the running of a single car at 
 the usual rate of speed is, indeed a breach of the peace, a 
 question to be hereafter noticed and determined. 
 
 The evidence for the prosecution relating to the occurrences 
 of the day, and at or about the time of the arrest, has also 
 failed to convince us that this defendant committed a breach 
 of the peace, for the car which he drove moved without actual 
 noise or disturbance of any kind for a distance of two squares, 
 when the arrest took place. Nor is this defendant respon- 
 sible for a breach of the peace, because a crowd of persons 
 assembled at the western terminus of the road and at the point 
 at which the arrest took place, because there is no evidence of 
 a single act of disorder occurring at either spot ; for the 
 gross misbehavior of those in the car after the arrest took 
 ■place, we cannot hold the defendant responsible, because, 
 if he was improperly arrested, the occasion of his misconduct 
 was not the act of the defendant, for which he should be 
 punished. 
 
 Some testimony was submitted tending to prove, that the 
 acts of the passengers in the car were disorderly immediately 
 before the arrest. But the testimony for the defendant has com- 
 pletely refuted this evidence for the prosecution, or rendered 
 it a question of doubt, and therefore unreliable as proving the 
 actual breach of the peace. 
 
 The only testimony, therefore, upon which we can be 
 asked to draw an inference of guilt, is, that which proves 
 that the defendant was driving a single car at the usual rate 
 of speed. 
 
 Now the evidence for the prosecution established the fact, 
 that the breach of the peace supposed by the witnesses to 
 have been committed upon the preceding Sunday, resulted 
 not from the running of a single car, but from the perpetual 
 repetition of that act at intervals of six minutes, while the 
 evidence for the defendant shows that upon the day of this 
 arrest, the cars were to be driven according to a code of 
 
1859.] PENN8YLYANIA. 431 
 
 Commonwealth m. Jeandell. 
 
 printed rules, adopted by the company, and intended to pre- 
 vent an actual breach of the peace of the day. What would 
 have been the result of the experiment about to be tried by 
 the company is, of course, a matter of mere conjecture, and 
 we cannot assume as a matter of fact that which can only be 
 substantiated by legal proof. The case of this particular 
 defendant is to be disposed of upon the evidence produced at 
 the hearing of his cause, and we will not adopt as a standard 
 of comparison the acts committed upon a preceding day, and 
 which may have no connection with or relation to the acts 
 not actually, but about to be committed, by the defendant on 
 the day of arrest. 
 
 While we are ready and willing to sustain the law when- 
 ever it is violated, we will not strain the law, or the facts, for 
 the' purpose of demanding surety of the peace from this 
 defendant, or, in the event of his failing to enter into any 
 recognizance, committing him to prison. 
 
 When the fact is clearly established, by competent legal 
 testimony, that a "defendant has committed, or is about to 
 commit, an actual breach of the peace, according to the prin- 
 ciples heretofore announced, it will be our duty to dispose of 
 him according to law ; to pronounce him to be guilty of the 
 ofEense with which he is charged upon the evidence before 
 me, would be to inflict a severe blow upon Christianity itself, 
 which would continue to be a part of the common law of the 
 state, so long as the judiciary expound the law with firmness, 
 and also determine the facts of each case of this description as 
 it arises, with discrimination, caution, and judicious ability. 
 
 The arrest in this instance, having been premature, the 
 defendant is entitled to his discharge. 
 
432 N:EW YORK. [Com. PL 
 
 Edwards m. The Ninth Avenue R. R. Co. 
 
 I. W. EDWARDS vs. THE NINTH AVENUE 
 RAILEOAD COMPANY. 
 
 SPECIAL TERM. 
 
 S2 Howard's Pi., 4U- 
 
 All the proceedings on the part of the plaintiff in an action will be 
 stayed until the costs of a previous action brought for the same cause 
 are paid, and also the costs of the motion to stay. 
 
 This was a motion by the defendants to have all the pro- 
 ceedings in the present action stayed, until the costs of a 
 former action for the same cause bfought in the marine 
 court and in which a judgment of nonsuit had been entered, 
 were paid, as also the costs of this motion. 
 
 Messrs. Abieti and Ashmead appeared for the defendants and 
 cited many English cases beginning with Hacker vs. New- 
 born, Styles' Rep., 41S, decided in 1653, showing that it had 
 been the uniform practice to thus stay all proceedings in the 
 second action until the costs of the first were paid. They 
 also cited the following New York cases: Dresser vs. Brooks, 
 5 How. Pr., 76 ; Ex parte Stone, S Gowen, 880 ; Ouyler vs. 
 Vanderwerk, 1 Johns. Cases, 2Jf7 ; Taylor vs. Vandervoort, 9 
 Wend., ^Jfi ; Perkins vs. Hinman, 19 Johns., 237. 
 
 Mr. Wm. McDermott, for the plaintiff. 
 
 Judge Daly, after hearing the argument of the counsel, 
 determined that all proceedings must stay in this action until 
 the plaintifE paid the defendants the costs incurred in the 
 marine court, and also the costs of the present motion. That 
 it would be a dangerous precedent to permit a party to harass 
 another by first discontinuing in one suit and then allowing 
 him to commence another before payment of costs of the first 
 action. That the uniform practice of this court is, in such 
 cases, to stay the proceedings until all the costs of the former 
 suit are paid, and also the costs of the motion to stay. 
 
 Order entered accordingly. 
 
I860.] MASSACHUSETTS. 433 
 
 Whitney m. The Union Railway Co. 
 
 SUSANNAH WHITNEY vs. THE UNION RAILWAY 
 COMPANY. 
 
 77 Mass., (11 Gray,) 359; s. c. 17 Leg..Int., 317; 23 Lavs Reporter, ^01. 
 
 The owner of a tract of land laid it out in lots for dwellings and 
 con-veyed a lot by a deed, which restricted the manner in which the 
 land granted should be used. The restrictions were beneficial to the 
 adjacent land of the grantor. 
 
 Held, that the restrictions could be enforced in equity against the 
 assigns of the grantee, who had notice of the restrictions, as well as 
 against the grantee, and whether they were in the form of conditions or 
 covenants or any other form, provided they were not against public 
 policy. 
 
 The restrictions contained in a deed were as follows : "That if 
 the grantee, his heirs or assigns, shall use or follow, or suffer any 
 person to use or follow, upon any part thereof, the business of a 
 taverner, or any. mechanical or manufacturing, or any nauseous or 
 offensive business whatever, then the grantors, or any person or persons 
 at any time hereafter, who at the time then being shall be a proprietor 
 of any lot of land " of the tract described, " shall have the right, after 
 sixty days' notice thereof, to enter upon the premises, and forcibly, if 
 necessary, to remove therefrom any buildings erected or used contrary 
 to the above restrictions and to abate all nuisances." 
 
 Edci, that the record of the deed was notice to a street railway 
 company that had purchased a lot from a grantee of the owner of 
 the tract, and such restrictions could be enforced in equity by such 
 owner who continued to own one of the lots and was not guilty of 
 laches, to prevent the erection of a stable by such railway company; 
 but that a stable already erected by the grantee with the knowledge 
 of the original grantor could not be abated. 
 
 Whether the erection of a stable is a " nauseous or offensive business," 
 within the meaning of those words as used in the restrictive clause. 
 
 The objection that a bill is multifarious because it set forth two 
 distinct and independent grounds of complaint, is obviated by the 
 removal of one of those grounds by the defendant, after the filing of 
 the bill and before answer. 
 
 The plaintiff filed a bill in equity at the April term, 1857, 
 in which she alleged that for forty years she had been seised 
 in fee of certain lands in Cambridge ; that she had incurred 
 great expense in procuring a survey and plans thereof, and 
 constructing and grading streets thereon, intending the same 
 
434 MASSACHUSETTS. [Sup. Ct. 
 
 Whitney vs. The Union Railway Co. 
 
 for private residences ; that on the 10th of September, 1851, 
 she sold and conveyed by warranty deed, (duly recorded,) to 
 Artemas White a lot of this land, subject to these restrictions: 
 "That if the said Artemas White, his heirs or assigns, shall 
 suffer any building to stand or be erected within ten feet of 
 Lambert avenue, or shall use or follow, or suffer any person 
 to use or follow, upon any part thereof, the business of 
 a taverner, or any mechanical or manufacturing, or any 
 nauseous or offensive business whatever, then the said 
 grantors, or any person or persons at any time hereafter, 
 who at the time then being shall be a proprietor of any 
 lot of land, represented upon said plan, east of lot No. 27 and 
 north of Lambert avenue, shall have the right, after sixty 
 days' notice thereof, to enter upon the premises with his, her 
 or their servants, and forcibly, if necessary, to remove tbere- 
 from any building or buildings erected or used contrary to 
 the above restrictions, and to abate all nuisances, without 
 being liable to any damages therefor, except such as may be 
 wantonly and unnecessarily done." 
 
 It was further alleged in the bill, that White erected a 
 stable on this lot, and kept horses for hire and at livery, 
 against the remonstrance of the plaintiff, and to her nuisance 
 and injury ; that the defendants had since by mesne convey- 
 ances acquired White's title, and enlarged and added to the 
 stable, and were building further additions, and kept and 
 intended to keep a much larger number of horses, contrary 
 to the reservations and restrictions in the deed, and to the 
 injury, nuisance and annoyance of the plaintiff, and to the 
 injury of a lot with a dwelling-house thereon, still owned and 
 occupied by the plaintiff, on the opposite side of the same 
 street and within the tract mentioned in the restrictions ; and 
 that the defendants had laid down rails and were proceeding 
 to construct a turntable in Lambert avenue. 
 
 The bill prayed for an injunction to restrain the defendants 
 from erecting additional stables, or laying rails or construct- 
 ing a turntable in the street, or keeping a stable for horses 
 upon the premises, and for an abatement of these nuisances. 
 
 The answer of the defendants admitted the allegations of 
 the bill, which related to the laying down of rails and the 
 
I860.] MASSACHUSETTS. 435 
 
 Whitney vs. The Union Railway Co. 
 
 construction of a turntable, but alleged that immediately 
 after the filing of the bill the same were entirely removed ■ 
 and abated. 
 
 Mr. B. F. Butler and Mr. N. Si. J. Green, for the 
 defendants. 
 
 Mr. E. R. Hoar, for the plaintiff. 
 
 BiGELOW, J. — The claim of the plaintiff to equitable relief 
 rests mainly on the validity of the restrictions contained in 
 her deed to Artemas White, of September 10th, 1851, under 
 which the defendants hold the estate described in the bill. 
 By the facts stated in the bill and admitted by the demurrer, 
 it appears that the plaintiff was originally the owner in fee of 
 a large tract of land, which she caused to be surveyed and 
 laid out in lots, with suitable ways or streets affording con- 
 venient access thereto, intending to seU them to be used and 
 occupied by private dwellings. One of these lots she sold and 
 conveyed to White by the deed above mentioned, containing the 
 clause as to the use and occupation of the premises, which is fully 
 stated in the bill. This lot by mesne conveyances has become 
 vested in the defendants. The plaintiff still continues the 
 owner of a part of the tract originally laid out by her, and 
 occupies a dwelling house thereon, nearly opposite to the lot 
 now owned by the defendants. She was therefore the original 
 grantor by whom the restrictions were created, and, as the 
 owner and occupier of a part of the estate out of which the 
 land, owned by the defendants was granted, and for the benefit 
 and advantage of which the restrictions were imposed, she has a 
 present right and interest in their enforcement. The purpose 
 of inserting them in the deed is manifest. It was to prevent 
 such a use of the premises by the grantee and those claiming 
 under him, as might diminish the value of the residue of the 
 land belonging to the grantor, or impair its eligibility as sites 
 for private residences. That such a purpose is a legitimate 
 one, and may be carried out consistently with the rules of 
 law, by reasonable and proper covenants, conditions or restric- 
 tions, cannot be doubted. Every owner of real property has 
 the right so to deal with it, as to restrain its use by his 
 
436 MASSACHUSETTS. [Sup. Ot. 
 
 Whitney vs. The Union Railway Co. 
 
 grantees within such limits as to prevent its appropriation to 
 .purposes which will impair the value or diminish the pleasure 
 of the enjoyment of the land which he retains. The only 
 restriction on this right is, that it shall be exercised reason- 
 ably, with a due regard to public policy, and without creat- 
 ing any unlawful restraint of trade. Nor can there be any 
 doubt that in whatever form such a restraint is placed on real 
 estate by the terms of a grant, whether it is in the technical 
 form of a condition or covenant, or of a reservation or 
 exception in the deed, or by words which give to the accept- 
 ance of the deed by the grantee the force and effect of a parol 
 agreement, it is binding as between the grantor and the 
 immediate grantee, and can be enforced against him by suit- 
 able process, both in law and equity. 
 
 The more difficult question, and the one on which the deci- 
 sion of this case must turn, is, to what extent and in what 
 cases are such stipulations binding on those who take the 
 estate under the grantee, directly or by a derivative title ? 
 Upon this point, the better opinion would seem to be that 
 such agreements are valid, and capable of being enforced in 
 equity against all those who take the estate with notice of 
 them, although they may not be strictly speaking real cove- 
 nants, so as to run with the land, or of a nature to create 
 a technical qualification of the title conveyed by the deed. 
 This opinion rests on the principle that, as in equity that 
 which is agreed to be done shall be considered as performed, a 
 purchaser of land, with notice of a right or interest in it, 
 subsisting in another, is liable to the same extent and 
 in the same manner as the person from whom he made the 
 purchase and is bound to do that which his vendor had agreed 
 to perform. Therefore an agreement or covenant, though 
 merely personal in its nature, and not purporting to 
 bind assignees, will nevertheless be enforced against them, 
 unless they have a higher and better equity as bona fide pur- 
 chasers without notice. It is on this ground, that a pur- 
 chaser of an estate, taking it with notice of a prior agreement 
 by the vendor to sell it to another, can be compelled in equity 
 to convey it according to such agreement. In like manner, 
 by taking an estate from a grantor with notice of valid agree- 
 
I860.] MASSACHUSETTS. 437 
 
 Whitney vs. The Union Railway Co. 
 
 ments made by him with the former owner of the property, 
 concerning the mode of occupation and use of the estate 
 granted, the purchaser is bound in equity to fulfil such agree- 
 ments with the original owner, because it would be uncon- 
 scientious and inequitable for him to set aside and disregard 
 the legal and valid acts and agreements of his vendor in 
 regard to the estate, of which he had notice when he became 
 its purchaser. In this view, the precise form or nature of the 
 covenant or agreement is quite immaterial. It is not essen- 
 tial that it should, run with the land. A personal covenant 
 or agreement will be held valid and binding in equity on a 
 purchaser taking the estate with notice. It is not binding on 
 him merely because he stands as an assignee of the party who 
 made the agreement, but because he has taken the estate with 
 notice of a valid agreement concerning it, which he cannot 
 equitably refuse to perform. Sugden on Vendors, 11th ed., 
 HSi-HS ; Duke of Bedford vs. Trustees of the British 
 Museum, 2 Myl. and K., 552 ; Bristow vs. Wood, 1 Colly er, 
 480 ; Whatman vs. Gibson, 9 Sim., 196 ; 8chreiher vs. Greed, 
 10 id., 9; Barrow vs. Richard, 8 Paige, 351, S66, 360. 
 
 The validity of agreements similar to those in the plaintiff's 
 deed to White has been also recognized and established, and 
 their performance enforced in equity, as against subsequent 
 purchasers with notice, upon the ground that such stipula- 
 tions create an easement or privilege in the land conveyed, 
 for the use and benefit of the grantor, and those who might 
 afterwards claim under him as owners of adjacent land, of 
 which the land granted originally formed a part. In such 
 cases, although the covenant or agreement in the deed, 
 regarded as a contract merely, is binding only on the original 
 parties, yet in order to carry out the plain intent of the 
 parties it will be construed as creating a right or interest, 
 in the nature of an incorporeal hereditament or easement, 
 appurtenant to the remaining land belonging to the grantor 
 at the time of the grant, and arising out of and attached to 
 the land, part of the original parcel, conveyed to the grantee. 
 When therefore it appears by a fair interpretation of the 
 words of a grant that it was the intent of the parties to create 
 or reserve a right in the nature of a servitude or easement, in 
 
438 MA8SACHU.8JETT8. [Sup. Ot. 
 
 Whitney vs. The Union Eailway Co. 
 
 the property granted, for the benefit of other land owned by 
 the grantor, and originally forming with the land conveyed 
 one parcel/ such right will be deemed appurtenant to the land 
 of the grantor and binding on that conveyed to the grantee, 
 and the right and burden thus created will respectively pass 
 to and be binding on all subsequent grantees of the respective 
 lots of land. Cases have arisen where the owner of a large 
 tract of land, for the purpose of providing an area in front of 
 it, to be kept forever open, or securing its permanent use and 
 enjoyment for dwellings and excluding all offensive and nox- 
 ious trades from the premises, has inserted covenants or con- 
 ditions in his grants, restricting the use of the land conveyed 
 so as to effect these objects. It has been held in such cases, 
 on the grounds just stated, that each grantee of a part of the 
 land subject to such restrictions is bound to observe the stipu- 
 lations in favor of other grantees of a part of the same land, 
 and is entitled to claim a like observance in his own favor as 
 against them. Kor does it make any difference that a party 
 cannot maintain a suit at law in his own name to enforce the 
 stipulation as a covenant or contract. A court of equity will 
 give full effect to the stipulation, on the complaint of a party 
 for whose benefit and protection, as owner of the land, the 
 stipulation was intended. Hills vs. Miller, S Paige, 254-266. 
 Trustees of the Village of Watertotvn vs. Cowen, ^ id., 510. 
 Barrow vs. Richard, 8 id., S51-S60. 
 
 This class of cases is clearly distinguishable from Keppell 
 vs. Bailey, 2 Myl. <& E., 517. There was in that case no 
 covenant or agreement between grantor and grantee concern- 
 ing the particular mode of using the estate granted, as a 
 privilege or benefit to other land belonging to the grantor. 
 The sole question was, whether assignees of a lease were bound 
 to perform certain covenants made by their assignors with 
 owners of property held by a distinct and independent title as 
 to the use of such property by the assignors for certain pur- 
 poses. The covenant was originally between strangers having 
 no privity of estate with each other, and there was nothing 
 on which to found any right or privilege in the nature of a 
 grant or reservation of an easement. The decision, however, 
 in Keppell vs. Bailey, has been severely criticised in Sugden 
 
18G0.] MASSACHUSETTS. 439 
 
 Whitney vs. The Union Railway Co. 
 
 an Vendors, 737-74-1, and the soundness of several of the dicta 
 of the lord chancellor, and of the decision of the case, called 
 in question by the learned author of that valuable treatise. 
 
 In the light of these principles and authorities, it is not 
 material to the decision of this case to determine the precise 
 nature of the clause in the deed to White, by which restric- 
 tions were imposed on the use and enjoyment of the estate 
 now owned by the defendants. It is suflBicient that the inten- 
 tion of the parties to the original deed to place restrictions on 
 the use and enjoyment of the estate granted, is clear. The 
 grantee, by accepting the deed and taking title under it, was 
 bound to comply with its stipulations, so far as from their 
 nature they were to be performed by the owner of the land, 
 or created a right or privilege therein in the nature of an 
 easement in favor of his grantor and those claiming under 
 him. This deed was duly registered, and the defendants, 
 claiming title derivatively under the grant, have constructive 
 notice of its stipulations, and are bound in equity to observe 
 them. 
 
 The objection that the terms of the restrictions are contrary to 
 public policy and in unreasonable restraint of trade is not well 
 founded. They do not restrict the alienation of land. The 
 owner of the fee can convey it at his pleasure. They do not 
 tend to perpetuity. The person who is entitled to the rights 
 or privileges created or secured by the restrictions can at any 
 time release them. They do not impair the enjoyment of the 
 property. This remains in the respective parties according 
 to their legal rights under the contract and grant ; in the 
 same manner as in case of a right of way, where one person 
 owns the land, which he may use and occupy, subject only to 
 the enjoyment of the easement by him who has the right of 
 way over it. Nor do such restrictions operate to impose any 
 unlawful restraint pi trade. While they are confined to sepa- 
 rate parcels of land of limited extent, they are at most only 
 in partial restraint of trade, and do not transcend the legiti- 
 mate exercise of the right which every owner has to control 
 and dispose of his own estate. 
 
 Upon the grounds therefore that the plaiutifE is the grantor 
 in the original deed by which the land now owned by the 
 
440 MASSACHUSETTS. [Sup. Ot. 
 
 Whitney vs. The Union Railway Co. 
 
 defendants was conveyed, and is the owner and occupier of a 
 part of the original tract for the benefit of which the restric- 
 tions in the deed to White were inserted ; that these restric- 
 tions were useful and beneficial to the enjoyment of the land 
 of the plaintiff, and are in the nature of an easement or privi- 
 lege in the land granted, reserved to the grantor, and are not 
 unreasonable or against public policy; and that the defendants 
 took their estate with notice of these restrictions, and are 
 equitably bound to regard them in the use and enjoyment of 
 their property ; we are of opinion that the plaintiff can main- 
 tain this bill to enforce their observance, if she has not waived 
 or relinquished the right by her own laches. 
 
 But it is very clear that a suit in equity to compel a com- 
 pliance with such stipulations concerning the use of property 
 must be seasonably commenced, before the persons in.posses- 
 sion of the estate have expended money or incurred liabilities 
 in erecting buildings or other structures on the premises. It 
 would be contrary to equity and good conscience to suffer a 
 party to lie by and see acts done involving risk and expense by 
 others, and then permit him to enforce his rights and thereby 
 inflict loss and damage on parties acting in good faith. In such 
 cases, a prompt assertion of right is essential to a just claim for 
 relief in equity. In the present case, the plaintiff can have no 
 equitable relief to prevent the use or procure the abatement of 
 the stable erected by White. Having stood by and permitted 
 its erection, she cannot now invoke the aid of the court to 
 enforce a remedy in equity for its removal. Whether she has 
 been guilty of further laches, so as to prevent her maintaining 
 the bill against the defendants for acts done by them in enlarg- 
 ing the stable, can be determined only upon hearing the facts 
 bearing on the question. 
 
 Nor can we decide in the present position of the case 
 whether the erection of a stable is a "nauseous or offensive 
 business/' in the proper sense of those words as used in the 
 deed to White. This is mainly a question of fact, to be 
 determined on a view of the evidence relevant to the inquiry, 
 and depending in some measure on the extent and mode of use 
 of the premises by the defendants for the purposes of a stable. 
 
 The objection that the bill is multifarious, if originally 
 
I860.] ILLINOIS. 441 
 
 The City of Chicago m. Evans. 
 
 tenable, is now obviated by the defendants' answer that they 
 have removed the railroad track and turn-table from the 
 street or avenue, and entirely abated the same. This allega- 
 tion may therefore be now deemed as stricken from the bill. 
 
 It does not appear by the allegations in the bill, that any 
 person other than the plaintiff has any right or interest in the 
 enforcement of the agreements contained in the deed to 
 White. Nor does it appear, except by an uncertain and 
 remote inference, that there was any other grantor in that 
 deed but the plaintiff. 
 
 Demurrer overruled. 
 
 THE CITY OF CHICAGO, Plaintiff in error, vs. JOHN 
 
 EVANS and others, Defendants in error. 
 
 U 111, 5S. 
 
 The act entitled: " An act to enable railroad corporations to enter into 
 operative contracts, and to borrow money," passed February 12. 1855. 
 
 Held, to extend to street railways, and that when two roads connect 
 under this act, each must conform to the charter of the road being used, 
 and that the lessee of a road must, in operating it, be governed by the 
 charter of the lessor. 
 
 Two street railroads in the city of Chicago desired to extend their 
 tracks and connect with one another and for that purpose were about to 
 obtain the passage of an ordinance by the common council. 
 
 Held, that if their charters conferred no such power to extend, etc., 
 the common council could not confer it. 
 
 Held, also, that the passage of ordinances which confer no rights or 
 authority, are harmless, until steps are taken to make them available. 
 
 It was alleged in the bill, that on January 10, 1860, and 
 prior thereto, Clark street, in Chicago, ran north and south 
 and crossed the Chicago river by a bridge. That teams, carts, 
 wagons, etc., were continuously passing along that street for 
 business purposes and that it was a principal thoroughfare from 
 Randolph street to the river and greatly thronged. That 
 when the bridge across the Chicago river, which is a draw 
 bridge, was drawn, passage along Clark street was 'impeded 
 and the people and property holders along the street were 
 
442 ILLINOIS. [Sup. Ot. 
 
 The. City of Chicago vs. Evans. 
 
 inconvenienced. That horse railroad companies were char- 
 tered and organized, one for the north, one for the south and 
 west divisions of Chicago, and that the complainants are inter- 
 ested in that part of Clark street which is in the south divi- 
 sion. That the common council were about to pass the 
 following ordinance: 
 
 " An ordinance authorizing the connection of the 
 tracks of the North Chicago City Eailway Company, and 
 the Chicago City Eailway Company. 
 
 " Section 1. Be it ordained by the common council of the 
 city of Chicago, that the North Chicago City Eailway Com- 
 pany is hereby authorized to extend its road across the Chica- 
 go river at such points and in such ways, as that they 
 shall make connections with the tracks of the Chicago City 
 Eailway Company, (by arrangement with said company,) at or 
 near Eandolph street, thereby making continuous lines of 
 horse railroads between the difPerent divisions of the city, and 
 for this purpose the last named company is authorized to lay 
 such tracks and extensions as will furnish all proper facilities 
 for a convenient and useful connection of said tracks. The 
 said North Chicago City Eailway Company, in consideration 
 of the privileges hereby granted, agree to pay annually into the 
 city treasury, the sum of one hundred dollars for each bridge 
 that they may cross, for the purpose of keeping such bridge or 
 bridges in repair; provided, further, that nothing herein con- 
 tained shall authorize the cars of said companies to stand on 
 South Clark street at any other place than along the east side 
 of the public square as near the curbstone as possible, without 
 interfering with the sidewalk. 
 
 " Section 3. The construction and operation of any road or 
 roads, that may be built under this ordinance, shall be subject 
 to all the rules and limitations and restrictions that are 
 prescribed in the ordinance heretofore passed by the common 
 council." 
 
 That the common council had no right to grant such power, 
 and that the North Chicago City Eailway Company had no 
 right to operate a road in the south division. That the com- 
 mon council intended to pass the aforesaid ordinance, to author- 
 ize the north side company to cross the bridge and run 
 
I860.] ILLINOIS. 443 
 
 The City of Chicago vs. Evans 
 
 along South Clark street on which street the complainants 
 own property to the value of $400,000. That only the north 
 side company applied for the ordinance, and that the south 
 side company had no interest in the passage of the ordinance, 
 and that it was to authorize the operation of the north side 
 company contrary to its charter. That such extension of the 
 north side company's tracks would not benefit the public but on 
 the contrary would be a nuisance, because the cars would be 
 detained by the frequent opening of the bridge, thus obstructing 
 public travel and complainants would be permanently injured 
 in the use of said property, for which damages recovered at 
 law would afford no adequate remedy and that complainants 
 and their tenants by being deprived of the use of the street by 
 the additional hindrance to passage of teams, etc., would be 
 greatly damaged, and the street would become impassable. 
 
 Then followed in the bill a prayer for an answer, and for an 
 injunction restraining the common council from passing said 
 ordinance or any other ordinance giving power to said North 
 Chicago City Railway Company to operate a railway on Clark 
 street. 
 
 The court granted an order for an injunction and the in- 
 junction writ accordingly issued. The city appealed on Feb- 
 ruary 3, 1859, and moved to dissolve the injunction : 
 
 1. Because there is no equity in said bill. 
 
 ^. Because the injunction improperly issued, there being 
 no sufficient reason assigned in said bill for an injunction. 
 
 3. Because the complainants were attempting illegally to in- 
 terfere with said defendants, in a matter peculiarly within the 
 authority and discretion of the common council. 
 
 4. Because the said bill showed no cause whatever for an 
 injunction ; it neither showed fraud, nor that its common 
 council was attempting to do anything contrary to law, or 
 what it had not a right to do. 
 
 5. Because said injunction illegally issued. i 
 On February 27th, 1859, the'court overruled the motion 
 
 to dissolve the injunction and dismiss the bill. Then the 
 city of Chicago demurred to the bill ; the court overruled the 
 demurrer, made the injunction perpetual and' gave judgment 
 for costs against the city. 
 
444 ILLINOIS. [Sup. Ot. 
 
 The City of Chicago m. Evans. 
 
 The case was brought to this court by writ of error by- 
 defendants below, who assign for error : 
 
 1. That the court below erred in overruling said plaintiff's 
 motion to dissolve said injunction and dismiss said defend- 
 ants' bill. 
 
 2. That the court below erred in overruling said plaintiff's 
 demurrer to the bill of complaint of the said John Evans and 
 others. 
 
 3. That the court below erred in making said injunction 
 perpetual. 
 
 4. That the judgment and decree in the court below should 
 have been for the plaintiff in error, and not for the defend- 
 ants in error. 
 
 Defendants in error have appeared and joined in error. 
 
 Mr. 0. Beckuoitli, and Messrs. Hosmer & Pech, for the 
 plaintiff in error. 
 
 Messrs. Van Buren & Geary, for the defendants in error. 
 
 Walkbe, J. — This record presents the question, whether 
 under the act of 12th February, 1855, {Special Laws, SOj^,) 
 horse railways in this state may unite their roads, and piake 
 running arrangements with each other. That act, in terms, 
 applies to all railroads organized or incorporated under, or 
 which may be incorporated or organized under, the authority 
 of the laws of this state, and it provides that they shall have 
 the power to make such contracts and arrangements with 
 each other for leasing or running their roads, or any part 
 thereof, also the right of connecting with each other on such 
 terms as shall be mutually agreed upon by the companies 
 interested. This language is manifestly sufittciently compre- 
 hensive to embrace horse railways as well as railroads whose 
 cars are propelled by steam or other power, as well roads 
 authorized to transport passengers only, as roads authorized 
 to transport passengers and freight by other power. The 
 language of the enactment embraces all roads then organized, 
 as well as those which might afterwards become so, and the 
 act makes no distinction, or reservation, as to the character 
 of the railroad. I'he members of the general assembly were 
 
I860.] ILLINOIS. 445 
 
 The City of Chicago ««. Evans. 
 
 fully aware that these various roads existed, and if any roads, 
 answering either description, were not designed to be 
 embraced, they would, it appears to us, have limited the 
 operation of the act so as to have excluded them. Horse city 
 railways unquestionably fall within the description of the class 
 of subjects of which they were legislating. They are, in 
 every sense of the term, railroads; they are incorporated under 
 laws of the state, and are embraced within the language of 
 the statute, and we have no doubt within its spirit. 
 
 Whilst a road chartered for the transportation of persons 
 only, by the use of horse power, could not connect with a road 
 authorized to employ steam power, so as to convert a horse 
 railroad into one using steam, or a road only authorized to 
 transport persons, into a road to transport passengers and 
 freight, yet roads employing the same propelling power, and 
 created for the same purposes, may so connect, under this act, 
 as to use each other's roads, with their several cars, etc., or 
 may lease from each other all or any portion of their several 
 tracks, and use them for the purposes authorized by their char- 
 ters. But when two roads connect with each other under this 
 act, they acquire no new or greater powers and privileges than 
 are conferred by their several charters, and each of such roads, 
 while using the road of the other company, must, in all 
 things, conform to the provisions of the charter of the company 
 whose road is being thus used. And when one company 
 leases its road to another, the lessee must, in operating it, be 
 governed by the charter of the lessor. The lessee cannot use 
 its franchise and charter privileges on the road of another 
 company, but for the time being must be governed by the 
 charter of the road they are operating. Any other construc- 
 tion would lead to inextricable confusion, and the legislature 
 could never have intended to permit each company, when 
 running, or using their rolling stock upon another road, to 
 carry with them their own charter and privileges wherever 
 their cars and employees might go. We have no doubt that 
 these two horse railways, created for the same purpose, and 
 operated by tte same description of propelling power, have 
 the power to connect with each other, make running arrange- 
 ments or lease their tracks to each other, according to this 
 
446 ILLINOIS. [Sup. Ot. 
 
 The City of Chicago «s. Evans. 
 
 act of the general assembly. We are unable to perceive 
 any injury that could result to any person by passing the 
 proposed ordinance of the common council. Such an ordi- 
 nance could confer upon the companies no power, and it 
 may be the act is useless ; but, for aught that appears, 
 the common council and the companies differed as to their 
 charter privileges and power to so extend their roads as to 
 connect with each other, without the assent of the common 
 council, and if so, the dispute would be ended by the adoption 
 of the ordinance, and its passage may have been desired for 
 no other purpose. These companies must look to their char- 
 ters for power, and if it is not thus conferred, it cannot be 
 supplied by any action of the common council, but alone by 
 the general assembly. It may have been a question whether 
 these companies had the power to extend their roads so as to 
 connect, and the only object in procuring the adoption of the 
 ordinance was to obtain the consent of the city preparatory to 
 an application for authority to thus unite their roads, without 
 the design of proceeding to connect them, previous to pro- 
 curing legislative authority for that purpose. And if so, no 
 possible injury w;ould result by the passage of the ordinance. 
 If the charter of these companies authorizes them to extend 
 their roads on the streets in which they are located, until 
 thereby their roads were connected, they may continue them 
 within their several territorial limits until they intersect on 
 the boundary, without any assent on the part of the city. If 
 their charters confer no such power, the common council are 
 unable to confer it. They could not extend their roads 
 beyond the line of the territorial district to which their char- 
 ters limit them. And if they wei-e to attempt to continue 
 their roads beyond, or to construct, a road outside of those 
 limits, under the city ordinance alone, they may undoubtedly 
 be prevented by an appropriate remedy. But until they 
 attempt to act outside of the authority conferred by the gen- 
 eral assembly, there can be no reason why the courts should 
 interpose. The procuring the adoption of this ordinance is 
 not such an illegal and unwarranted act as can produce 
 injury, and until they attempt to act under it as their only 
 warrant, no reason is perceived why they should be stayed in 
 
I860.] NJEW YORK. 447 
 
 McDowell lis. The Second Avenue R. R. Co. 
 
 their action. The passage of ordinances which confer no 
 rights or authority, are harmless, until steps are taken to 
 make them available. 
 
 For these reasons the decree of the court below is reversed, 
 and the bill dismissed. 
 
 Decree reversed. 
 
 THOMAS McDowell, Kespondent, vs. THE SECOKD 
 AVENUE EAILEOAD COMPANY, Appellants. 
 
 eEKERAL TERM. 
 
 17 N. T. /Superior Court, (4 Bom.,) 670. 
 
 A settlement of an action made by the parties before trial is valid 
 providing the attorney has not served the adverse party with notice for- 
 bidding a settlement without him, and it was made without any design 
 to deprive the attorney of his costs. 
 
 A judgment entered by the attorney after notice of such a settlement, 
 will be set aside on motion. 
 
 In January, i860, the plaintiff brought this action to 
 recover damages for the loss of services of his infant daughter, 
 which he alleged resulted from injuries caused by the negli- 
 gence of the defendants' servants. On January 16th, 1860, 
 the defendants paid the plaintiff seventy-five dollars in set- 
 tlement of the action, who, in consideration thereof, executed 
 and delivered to the defendants a full release of the cause of 
 action. The release contained this clause, viz.: "All actions 
 at law, or otherwise, are hereby discontinued without costs to 
 either party." 
 
 On the twentieth day after the service of the summons and 
 complaint, a written notice of which the following is a copy, 
 was served on the attorney for the plaintiff : 
 
 "D. B. Taylor, Esq. : 
 
 " Dbak Sik. — The claim of Thomas McDowell against 
 this company has been settled, and we hold the release of the 
 same. 
 
 " Very respectfully, 
 
 "John O'Bkxbn', Treasurer." 
 
448 NHW YORK. [N.Y. Sup'r Ot. 
 
 McDowell vs. The Second Avenue R. R. Co. 
 
 John O'Brien was the defendants' treasurer. In an affidavit 
 made by the plaintifE's attorney it was stated that the plaintifE, 
 when the suit was commenced, agreed that the attorney 
 should have half of any sum that might be recovered in the 
 suit for his services, and in the event of nothing being recov- 
 ered, he was to receive no compensation ; that he told the 
 person who delivered the said notice of settlement to him, 
 "that that was not the proper way to treat him about a set- 
 tlement of said action ; * * * ^■)^^^ j^g jjg]^ g^ jjgjj q^ gg^j^ 
 
 action, and that, under the circumstances, he should not 
 regard the note then handed to him." 
 
 No answer being served, the plaintiff's attorney took judg- 
 ment by default, had the plaintiff's damages assessed and the 
 costs taxed, perfected judgment and issued execution thereon. 
 The damages were assessed at $1,000, and on March 14, 1860, 
 judgment was perfected for $1,025.41 damages and costs. 
 The defendants on the 38th of the same month obtained an 
 order to show cause why the judgment and execution should 
 not be set aside. 
 
 The motion papers contained nothing that tended to show 
 that at the time of the settlement, the defendants had any 
 . notice of the agreement between the plaintifE and his attor- 
 ney; nor that the defendants' motive in making the settle- 
 ment was to deprive the attorney of his costs, unless the fact 
 that the settlement was made without consulting the attorney 
 would cause such an inference. 
 
 Mr. Justice Monceief after hearing both parties on the 
 order to show cause made an order on the 7th of April, 1860, 
 setting aside the judgment and execution on payment to the 
 attorney the amount of his costs as adjusted, and the sheriff's 
 fees on execution, and that in default thereof, the motion to 
 set them aside be denied with seven dollars costs to the 
 plaintifE. 
 
 The defendants take this appeal from that order. 
 
 Mr. John Slosson, for the appellants. 
 
 Mr. D. B. Taylor, for the respondent. 
 
 HoFFMAis', J. — The subject of the present appeal is one of 
 importance, and as considerable difEerence of views appears to 
 
I860.] NJEW YORK. 449 
 
 McDowell 1)8. The Second Avenue R. R. Co. 
 
 exist, especially in late decisions, we have examined the points 
 with some care. 
 
 As long ago as the year 1805, it was settled in our state, 
 that if a defendant has bona-fide paid the debt and costs to 
 the plaintiff, and got a full discharge, without notice from 
 the attorney of his claim, and without collusion to defraud 
 him, it is valid, and a judgment taken by the attorney would 
 be set aside on motion. If the adverse party applied to can- 
 cel the judgment by a set-ofE, then the court would take care 
 that the attorney's bill be paid. Pinder vs. Morris, S Oaines' 
 165. 
 
 In The People vs. Hardenbergh, 8 Johns., SS5, a settlement 
 of costs awarded to defendant in ejectment, made without 
 notipe from the attorney, and without collusion, was held 
 valid, and an attachment set aside. 
 
 Martin vs. Hawks, Sheriff, etc., 16 Johns., Jfi5, was the case 
 of a judgment for plaintiff for six cents damages and costs; 
 notice to the defendant by the attorney to pay over the judg- 
 ment to him, and a ca. sa. directing the sheriff to pay the 
 amount to him. It was held that the attorney had a lien on 
 the judgment for his costs, and stood with the same equity 
 as if the judgment had been assigned to him, and he could 
 not be defrauded of such lien and equity when all the parties 
 were informed of it, and forbidden to do any act of prejudice 
 to it. The sheriff, therefore, could not avail himself of a 
 release by the original plaintiffs in an action for an escape. 
 
 Power vs. Kent, 1 Cow., 172, is to the same effect, there 
 being judgment on demurrer, disposing of the whole cause of 
 action, with written notice from the attorney of his claim to 
 the costs, and forbidding any arrangement without him, 
 before the settlement made by the parties. 
 
 In Ten Broech vs. DeWitt, 10 Wend., 617, the defendant 
 paid damages and costs to the plaintiff, after being apprised 
 by a counselor of the court, that the plaintiff was not author- 
 ized to receive the costs. The court refused to set aside an 
 execution; holding that the information given to the defend- 
 ant was equivalent to a notice from the attorney not to pay 
 the costs to the plaintiff. 
 
 The following subsequent cases, before and since the Code, 
 
 39 
 
450 NEW YORK. [KY. Sup'rOt. 
 
 McDowell w. The Second Avenue R. R. Co. 
 
 have been examined : Talcott vs. Branson, 4 Paige, 501; 
 Sweet vs. Bartlett, ^ Sandf., 661; Brown vs. Comstock, 10 
 Barb., 67; Haight vs. Holcomh, 16 How. Pr., 178; Ward vs. 
 Syine, 9 id., 16; Sherwood y a. The Buffalo and New York City 
 Railroad Gompahy, 12 id., 1S6; Rooney-^s. The Second Avenue 
 Railroad Company, 18 N. Y., 368; s. c. 1 Am. St.-Ry. Dec, 
 353. They sustain the proposition thus stated in Shank 
 vs. Shoemaker, 18 N. Y., 4.89; " The claim of the attorney 
 for the appellant for his costs had not been perfected by a 
 judgment. There is no case which goes far enough to show 
 that a party who has not obtained a judgment in his favor 
 cannot settle a suit because it may prejudice the possibility 
 or even probability, that his attorney might obtain his costs 
 by a future trial, and a judgment in favor of his client." 
 
 It seems undeniable, that, in our state, the points laid down 
 in the early case from Caines' Eeports, supra, are the rules in 
 force to this day, with the addition that a settlement of the 
 debt, without receipt of the costs, stands precisely upon the 
 same footing as the payment of both debt and costs in that 
 case to the client. And the English cases correspond with, 
 and support, these rules. 
 
 The lien of an attorney upon a judgment is established. 
 No set-ofE of cross- judgments can be had after one has been 
 obtained in the suit in which he acts. No settlement will 
 then avail against his rights. Domett vs. Helyer, 2 Dowl. 
 Pr. Cas., 540 ; Caddell vs. Smart, 4 id., 760. But, even 
 then, the attorney is far from being constituted dominus 
 litis. He cannot carry a judgment into effect against the 
 order of his client. Barker vs. St. Quintin, 12 Mees. <& 
 Welsh., 441. If the client chooses to discharge the debt, or 
 from imprisonment on execution, the attorney cannot prevent 
 it. Marr vs. Smith, 4 Barn. & Aid., 466. 
 
 So, if the attorney gives notice to the opposite party that 
 he looks to the proceeds of the action for payment of his 
 costs, and directing payment to himself, or forbidding it to 
 be made to any other, a settlement without payment will not 
 be effectual. Lord Mansfield, in Welsh vs. Hole, 1 Doug., 
 238, said that it was like paying a debt to A, after notice that 
 it had been assigned to B. The case of Read vs. Dtipper, 6 
 
1860.] NEW YORK, 451 
 
 McDowell ««. The Second Avenue E. E. Co. 
 
 T. R., 361, is explicit to the same point, and it is recognized 
 by Coltman, J., in Francis vs. Webb, 7 C. B. R., 731. 
 
 And so, if the plaintiff, before judgment, chooses to release 
 or compromise the action, without the intervention of his 
 attorney, and without regard to his costs, he may do so ; and, 
 provided there be no collusion, fraud, or mala fides in the 
 opposite party, the prospective lien of the attorney is lost. 
 Chapman vs. Haw, 1 Taunt., 3Ji.l ; Rooke vs. Wasp, 5 Bing., 
 190 ; Nelson vs. Wilson, 6 id., 568 j Glark vs. Smith, 6 Mann. 
 & Gran., 1051; Francis vs. Welb, 7 C. B. R., 731. 
 
 It is clear, I think, that, in the most favorable view for the 
 attorney in this case, and assuming that he can, in opposition 
 to this motion, justify his proceeding on the ground of collu- 
 sion, this remains the only question open for consideration. 
 Has he made out a case of that nature ? 
 
 Some authorities may be referred to. In Cole vs. Bennett, 
 6 Price, 15, after service of process in the action, the defend- 
 ant purchased some articles of the plaintiff, for which he paid 
 and took a receipt, in which was introduced a memorandum 
 that no further proceedings were to be had in the action 
 which had been commenced, each party to pay his own costs. 
 The defendant then swore that, after he had got notice of 
 service of notice of the declaration having been put upon the 
 door of his former dwelling, he called on the solicitor and 
 showed him the memorandum, who observed that the defend- 
 ant should have settled with him. The attorney swore that 
 the defendant had requested time, after being served with 
 process ; that some little time before interlocutory judgment 
 was signed, the defendant acknowledged receipt of the notice 
 of declaration ; said he liad paid the plaintiff the debt, with- 
 out mentioning the other matter of dealing between them, or 
 showing him the memorandum ; and the deponent then 
 informed the defendant that unless his costs were paid he 
 should proceed in the action. On the writ of inquiry, he 
 had taken nominal damages only. He believed there was 
 collusion, and was informed that the plaintiff had gone to 
 America. 
 
 The court put the decision on the ground of there being 
 collusion, and say, all the cases proceed on the ground that 
 
452 iV^TT YORK. i^.Y. Sup'r Ot. 
 
 McDowell w. The Second Avenue R. R. Co. 
 
 the parties are not to be permitted, by any such collusion, to 
 cheat the attorney. The motion to set aside the proceedings 
 was denied. 
 
 In Francis vs. Webi, 7 G. B. R., 7S1, the court said : "In 
 cases of this sort, the court requires a clear case of collusion 
 to be made out before they will, at the instance of the plaint- 
 iff's attorney, interfere to prevent effect being given to an 
 adjustment of the dispute between the parties themselves. 
 There was nothing in the affidavits to show that the party 
 entertained the design to deprive the plaintiff's attorney of 
 his costs. The conduct of the plaintiff, (who was a pauper 
 plaintiff,) was very ungenerous towards his attorney ; and if 
 we could discover any evidence of collusion on the part of the 
 defendant, I should feel satisfaction in visiting him with 
 costs. It was no part of the defendant's duty to see that the 
 attorney's costs were paid." Coltman, J., said : "If there 
 had been notice not to settle without paying the costs, I 
 should have thought the affidavits would have made a case of 
 collusion. But there was nothing to lead the defendant to 
 suppose that a fraud would be committed by the plaintiff on 
 his attorney." 
 
 In Olarlc vs. Smith, 6 Mann. & Gran., 1051, a verdict had 
 been given for £78, 5s, 6d, damages and costs. The parties 
 then settled for fifty guineas, and a release was given. Judg- 
 ment was then entered up by the attorney. A motion was 
 made to set it aside, with costs, to be paid by the attorney. 
 The chief justice said: "The court must clearly see, that 
 the defendant fraudulently colluded with the plaintiff to defeat 
 the attorney's lien. Suspicious circumstances were not 
 enough." Maule, J., said: "The plaintiff and defendant 
 settled in the absence of their attorneys. The plaintiff's 
 attorney had, therefore, no right to sign judgment. It lies 
 upon him to show why it should not be set aside. The 
 ground he goes upon is, fraudulent collusion. I think the 
 affidavits, which are, in some respects, contradictory, leave 
 that matter quite uncertain." 
 
 In Nelson vs. Wilson, 6 Bing., 568, Chief Justice Tindal 
 said : " It is undoubtedly competent for the party to settle 
 the cause without the intervention of his attorney ; and, if 
 
I860.] NEW YORK. 453 
 
 McDo-well ««. The Second Avenue E. R. Co. 
 
 the attorney proceeds, in order to secure his costs, he is 
 hound to make out a clear case of collusion hetween the 
 plaintiff and defendant to deprive him of them. Upon 
 reading the aflSdavits, we think that, though there is ground 
 for suspicion, the collusion has not been clearly made out." A 
 verdict had been taken after notice of the settlement ; and 
 all the proceedings were set aside, with costs, to be paid by 
 the attorney. 
 
 In a late case in Georgia, McDonald vs. Napier, H Ga. 
 S9, the subject has been carefully considered. The following 
 are the propositions established : 
 
 1. The attorney has a special lien upon the money of his 
 client which may come into his hands, and upon a judgment 
 procured by him for his client. If the money is in his hands 
 he may retain it in satisfaction of his bill, and if in the hands 
 of the officer of the court, the court in the exercise of its 
 equitable power, (I mean a court of law,) will lay hold of it 
 and prevent its payment over until his lien is satisfied. 
 
 3. If the defendant pay to the plaintiff the debt and costs 
 due on a judgment, after notice from the attorney of the 
 plaintiff not to do so, he will pay it in his own wrong, and is 
 liable to pay to the attorney his fees notwithstanding. 
 
 3. A settlement between the parties, with a view to defraud 
 the attorney out of his fees, will not discharge the defendant 
 from liability to pay them, or extinguish the judgment as to 
 them, even without notice ; yet, if the parties without notice 
 lonafide settle or compromise the debt and costs, the attorney 
 cannot afterwards proceed against the defendant for his costs. 
 
 4. And in case of a collusive settlement of a cause, the 
 attorney may proceed in the cause for the mere purpose of 
 obtaining his costs. These propositions, I am clear, may be 
 considered as settled law in England, and have been recog- 
 nized as law very generally in our states. They are settled in 
 the courts of law and chancery. 
 
 5. The lien on the money of a client is limited to the bill of 
 costs accruing to the attorney or solicitor in the case in which 
 it is raised, and the lien on a judgment is in like manner 
 restricted. An execution issued upon a valid judgment in 
 the hands of an attorney is a paper belonging to client, upon 
 
454 NJEW YORE. [N.Y. Sup'r Ot. 
 
 McDowell ®s. The Second Avenue E. R. Co. 
 
 which a lien for a general balance will attach as well as upon 
 any other paper. At the same time it is to be noted that the 
 security which the execution gives for fees, is not the mere 
 right of detention until they are paid, but a process available 
 for their collection out of the defendant. I do not see why it 
 should not be detained as against the plaintiff for a general 
 balance, whilst it is clear that in case of a settlement by the 
 defendant with notice, or without it coUusively, the judg- 
 ment cannot be enforced against him for more than the fees 
 due in the particular case. It is important too that in 
 reference to the lien of the attorney on the judgment, his 
 power over it should be well understood. Because he has the 
 lien stated, it is not to be understood that it supersedes all con- 
 trol which the plaintifE has over it, and the attorney as dominus 
 litis can "marshal the proceedings on the judgment as 
 he may think fit." The lien amounts to this, that he has 
 a right to control it for the collection of fees through an 
 order of the court directing its use for that purpose in the 
 exercise of an equitable power which appertains to it over 
 its own process, and over the lien of its of&cers. 
 
 Tested by the rules thus declared, it is impossible to say 
 that upon these affidavits the defendants did, in making the 
 settlement, act with the design of aiding the plaintifE in 
 depriving the attorney of his costs. If the facts here made 
 out a case of collusion, it would be difScult to imagine a case 
 in which a settlement without the privity of the attorney 
 could be made. 
 
 It is, however, necessary to notice some cases which seem 
 to conflict with the long line of authorities I have cited. 
 
 The case of Keenan vs. Dorflinger, 19 How. Pr., 158, in the 
 supreme court, to which we have been referred, was one of a 
 settlement between the parties after a report of a referee 
 against the defendant for the sum of $500. Then a release 
 and consent to discontinue without costs were given. The 
 court denied the motion to discontinue absolutely, but 
 allowed it on payment of costs. A report of a referee on all 
 the issues upon which a judgment may immediately be 
 entered, may be deemed upon this question equivalent to a 
 judgment. Sweet vs. Bartlett, i Sand/., 661. 
 
I860.] NEW YORK. 455 
 
 McDowell vs. The Second Avenue E. R. Co. 
 
 In Owen vs. Mason, 18 How. Pr.,156, there was a motion by 
 the defendant to set aside an inquest for irregularity. When 
 the cause was moved for trial, an attorney on behalf of the 
 plaintifE, but not the one on the' record, stated that the action 
 had been settled by the parties, to which the defendant's 
 attorney assented, and moved to dismiss the complaint with- 
 out costs. The attorney of the plaintiff on the record 
 objected, producing a notice of lien served upon the defend- 
 ant, forbidding a settlement except with him, and moved 
 for judgment for the amount of his costs. The motion of the 
 defendant was denied, and Justice Ingraham intimated that 
 he should move to file a supplemental answer, setting up the 
 settlement, and that the court would then make it a condi- 
 tion that all the costs up to the settlement be paid. No 
 motion was made by him. When the cause was next reached, 
 the plaintiff's attorney took an inquest, perfected judgment, 
 and issued execution for $77, the amount of his costs. A 
 motion to vacate the inquest and execution was denied by 
 Justice Mullen. If, as we are probably warranted in sup- 
 posing, the notice had been served upon the defendant before 
 the trial, the case is entirely consistent with the other 
 authorities. 
 
 There is also the case of Wood vs. The Trustees of the North 
 West Presbyterian, Church, 7 All. Pr., 210, note, in which 
 the settlement was made the day before the trial, and a 
 receipt in full given. The plaintiff's attorney went on, know- 
 ing of the settlement, and took judgment, the defendant 
 not appearing. He issued execution for his costs as adjusted. 
 It was held by Justice Hilton that the judgment could not 
 be vacated. The defendant could only set up the settlement 
 by supplemental answer, and the court would only allow this 
 upon payment of costs to the time. 
 
 It is stated by a late writer on the English practice. Lush's 
 Practice ly Stephens, p. 226, " that it is the proper and safe 
 course, (except perhaps in clear cases of fraud and collusion,) 
 for the attorney whose lien has been destroyed by the con- 
 duct of the parties to the suit to apply to the court for a rule 
 calling on the opposite party to pay him his costs, and not 
 himself to go on with the proceedings." He cites Graves vs. 
 
456 MASSACHUSETTS. [Sup. Ot. 
 
 Commonwealth vs. Temple. 
 
 Eades, 6 Taunt., JfZQ, and Welsh vs. Hole, supra, with other 
 authorities. 
 
 The result of the cases, and in our judgment, the sound 
 rule upon the subject is, that if an attorney has omitted to 
 protect himself by a notice forbidding a settlement without 
 him, and the parties compromise the action before judgment, 
 of which he has notice, he then proceeds in the suit for his 
 costs, at the peril of establishing conclusively that the adverse 
 party had the design when making the settlement of defeat- 
 ing his demand for the costs. If he fail in satisfying the 
 court of this, his proceedings, subsequent to notice, will be 
 set aside. In the present instance, the plaintiff's attorney 
 has failed in making out such a case. 
 
 The order below must be reversed without costs, and the 
 judgment and execution must be set aside. 
 
 The other judges, (except EoBEETSOiir, J., who dissented,) 
 concurred in the views stated, in the concluding part of the 
 opinion of Judge Hoffman^. 
 
 Order reversed. 
 
 COMMONWEALTH vs. lEA TEMPLE. 
 
 80 Mass., {U Orwy,) 69; s. c. 8 Am. Lwm Beg., 678; S3 Law 
 Reporter, 3SH. 
 
 The defendant, with a heavily loaded team was driving on one of 
 the public streets, with one of the wheels of the wagon in the track of a 
 railroad, when a car belonging to the railroad company came up behind 
 him. The defendant's team wag moving at the usual rate for teams of 
 that class, but at a leas rate of speed than the cars were in the habit of 
 moving. There was room outside the track for either vehicle to pass 
 the other. When the car came up, the conductor asked the defendant 
 to remove from the track, but he refused and continued at the same 
 rate of speed for several hundred feet, and then turned off. It was 
 shown that it was usual and much easier to drive such wagons with one 
 wheel upon the railroad track. It was also shown that defendant had 
 no intention of obstructing the cars of the railroad company and con- 
 tinued on the track, without intending to obstruct them, but merely for 
 his own convenience. 
 
I860.] MASSACHUSETTS. 457 
 
 Commonwealth vs. Temple. 
 
 Seld, that defendant was liable to indictment nnder a statute prohib- 
 iting the wilful and malicious obstruction of the railroad. 
 
 A railroad company has the right, and, in reference to passengers, 
 are bound, to move at the rate of speed usual for vehicles for the 
 carriage of passengers, drawn by horses, provided it can be done with- 
 out preventing other vehicles on the highway from moving at their 
 usual rate of speed. 
 
 This was an appeal from a convictioQ on an indictment 
 under sec. 5 of the statutes of 1856, chap. SG2. That statute 
 , incorporated the Maiden and Melrose Railroad Company and 
 authorized them to construct, maintain and use with horse 
 power only, a railroad over the streets and highways of the 
 towns of Melrose and Maiden and the city of Charlestown. 
 The authorities of the respective towns and of the city were 
 to fix the route of the railroad and determine the distance it 
 should be laid from the sidewalks. The railroad was to inter- 
 sect in Charlestown, at some convenient point to be fixed by 
 the city council, the railroad of the Middlesex Eailroad Com- 
 pany, and to enter upon and use the track of that company in 
 such mode and upon such terms as should be agreed upon, 
 and in case of disagreement, the commissioners appointed by 
 this court were to determine the mode of use and the terms. 
 
 The fifth section of the act reads as follows : " If any per- 
 son shall wilfully and maliciously obstruct said corporation 
 in the use of said road or tracks, or passing of the cars or 
 carriages of said corporation thereon, such person, and all 
 who shall be aiding or abetting therein, shall be punished by 
 a fine not exceeding five hundred dollars, or may be impris- 
 oned in the common jail for a period not exceeding six 
 months." 
 
 The case was tried in the court of common pleas in Middle- 
 sex, at the February term, 1859, before Bishop, J., who 
 signed the following bill of exceptions : 
 
 "It appeared, from the evidence on the part of the com- 
 monwealth, that the defendant was driving his heavily loaded 
 wagon from Charlestown to Boston, in a public street, 'with 
 one wheel in the track of the Middlesex Eailroad, when one 
 of the cars of the Maiden and Melrose Railroad Company 
 came up behind him. The defendant's team was moving at 
 
458 MASSACHUSETTS. [Sup. Ot. 
 
 Commonwealth vs. Temple. 
 
 the usual rate for teams of that class, but at a less rate of 
 speed than the horse cars were in the habit of moving. There 
 was room outside the track for either vehicle to pass the 
 other. When the car came up, the conductor asked the 
 defendant if he would please to remove his team from the 
 track. The defendant did not, but continued upon it at the 
 same rate of speed several hundred feet, and then turned off. 
 It also appeared from the same testimony that it was usual 
 for those in charge of vehicles like that of the defendant, to 
 drive them with one wheel in the track ; and that they could 
 be drawn much more easily in that place than in any other 
 part of the street. There was no evidence that the defendant 
 got upon the track in the first instance with the intention of 
 obstructing the cars, or that he changed his rate of speed on 
 the approach of the car, or that he used the street or did 
 any act in any other than the usual manner. There was no 
 other evidence than this, bearing upon the question of malice. 
 As bearing upon the question of intention, the defendant 
 offered to show that it is not the custom for those in charge 
 of vehicles to turn out, when a car comes up behind them, 
 until it suits their convenience. The evidence was objected 
 to, and ruled out. 
 
 "The defendant contended that malice must be shown, 
 and that it could not be inferred from the mere fact that the 
 defendant used a part of the street, the most convenient to 
 him, in the ordinary way, knowing that the car would be 
 obstructed by such use. 
 
 " The defendant also prayed for the following instructions : 
 
 " 1st. If the jury find that the defendant was using the 
 highway in the ordinary way, they must find for the defendant, 
 without reference to the motive of his act. 
 
 " 3d. In the absence of regulations on the subject, the cor- 
 poration has no right to drive its cars at any particular rate 
 of speed, and the mere slackening of the speed of the car by 
 the defendant, if he was moving at the ordinary and proper 
 rate of speed, was no obstruction, within the meaning of the 
 statute. 
 
 3d. There is not sufficient evidence to warrant the jury to 
 find a verdict of guilty. 
 
I860.] MASSACHUSETTS. 459 
 
 Commonwealth vs. Temple. 
 
 4th. The right of the horse railroad company to use the 
 highways is subject to the right of the public to use such 
 highways as they had previously done. 
 
 " 5th. If the jury find that the defendant went upon the 
 track in the ordinary use of the street, without intending to 
 obstruct the car, and continued on the track, after the car 
 came up behind him, for his own convenience, and because 
 that was the best part of the street to drive on, the defendant 
 is not guilty. 
 
 "^6th. In order to establish the Crime of obstructing the 
 cars, some act must be shown besides the use of the street in 
 the ordinary way. 
 
 " 7th. The act incorporating the railroad company created 
 no new crime ; it merely attached a new penalty. 
 
 " 8th. In the absence of regulations as to the rate of speed 
 and the mode of use of the track, they have no right to any 
 given rate of speed. 
 
 " The court declined to give any of the instructions as 
 prayed for ; but did instruct the jury that, although the pub- 
 lic might drive their vehicles over the tracks of the railroad 
 when the cars were not approaching, the corporation had a 
 prior right to the track ; and if the jury should find that the 
 defendant was on the track, and hindered the progress of the 
 car, and was requested to remove from it, and could reason- 
 ably have removed, he was bound so to do ; and his remain- 
 ing there, knowing that the car would be thereby obstructed, 
 intending thereby to obstruct it, in the use of the track, was 
 a wilful and malicious obstructing within the meaning of the 
 statute ; that it was not material whether the defendant 
 stopped his vehicle, or whether it continued to moive on the 
 track at the ordinary rate for such vehicles ; that no other 
 proof of malice was necessary than that the defendant know- 
 ingly and intentionally obstructed the car, although he may 
 have made only the ordinary use of the street. 
 
 " To all of these rulings and instructions and refusals to 
 instruct the defendant excepts." 
 
 Mr. P. W. Chandler and Mr. G. 0. Shattuch, for the de- 
 fendant. 
 
 Mr. 8. H. Phillips, (Attorney General,) for the coihmon- 
 wealth. 
 
460 MASSACHUSETTS. [Sup. Ot. 
 
 Commonwealth ««. Temple. 
 
 Shaw, 0. J. — Since horse railroads are becoming frequent 
 in and about Boston, and are likely to become common in 
 other parts of the commonwealth, it is very important that 
 the rights and duties of all persons in the community, having 
 any relations with them, should be distinctly known and 
 understood, in order to accomplish all the benefits, and, as 
 far as practicable, avoid the inconveniences, arising from their 
 use. This is important to proprietors and grantees of the 
 franchise, who expend their capital in providing a public 
 accommodation on the faith of enjoying, with reasonable 
 certainty the compensation in tolls and fares, which the law 
 assures to them ; to all mayors, aldermen, selectmen, commis- 
 sioners or surveyors specially appointed by law for the care 
 and superintendence of streets and highways ; to all persons, 
 for whose accommodation in the carriage of their persons and 
 property these ways are especially designed ; and to all persons, 
 having occasion to use the ways through or across which these 
 horse railroad cars may have occasion to pass. These rail- 
 roads being of recent origin, few cases have arisen to require 
 judicial consideration, and no series of adjudicated cases can 
 be resorted to, as precedents, to solve the various new questions 
 to which they may give rise. 
 
 But it is the great merit of the common law, that it is 
 founded upon a comparatively few broad, general principles 
 of justice, fitness and expediency, the correctness of which is 
 generally acknowledged, and which at first are few and simple; 
 but which, carried out in their practical details, and adapted 
 to extremely complicated cases of fact, give rise to many and 
 often perplexing questions; yet these original principles remain 
 fixed, and are generally comprehensive enough to adapt them- 
 selves to new institutions and conditions of society, new modes 
 of commerce, new usages and practices, as the progress of 
 society in the advancement of civilization may require. 
 
 In the first place, all public easements, all accommodations 
 intended for the common and general benefit, whatever may 
 be their nature and character, are under the control and 
 regulation of the legislature, exercising the sovereign power 
 of the state, either by general law or special enactment. It 
 may be done by a charter or special act of incorporation, as in 
 
I860.] MASSACHUSETTS. 461 
 
 Commonwealth w. Temple. 
 
 case of a bridge over broad navigable waters ; or, where the 
 necessity for its exercise is of frequent recurrence, it may be by 
 the delegation of power to special tribunals, or municipal gov- 
 ernments, by general laws. 
 
 Again ; where the entire public, each according to his own 
 exigencies, has a right to the use of the highway, in the 
 absence of any special regulation by law, the right of each is 
 equal ; but as two or more cannot occupy the same place at 
 the same time with their persons, their horses, carriages and 
 teams, or other things necessary to this use, each is bound to 
 a reasonable exercise of his absolute right, in subordination to 
 a like reasonable use of all others, and not to incumber it over 
 a larger space, or for a longer time, to the damage of any 
 other, than is reasonably necessary to the beneficial enjoyment 
 of his own right. If an adjacent proprietor has occasion to 
 stop at his own gate with a carriage or team, if he has occa- 
 sion to deliver wood, coal or other necessaries, or, if he is a 
 trader, to deliver or receive merchandise, he must place his 
 team or carriage, for the time being, in such a manner as to 
 obstruct the way for the use of others as little as is reasonably 
 practicable, and remove the obstruction within a reasonable 
 time, to be determined by all the circumstances of the case. 
 
 So in the actual use of the highway. Each may use it to 
 his own best advantage, but with a just regard to the like 
 right of others. Persons in light carriages, for the convey- 
 ance of persons only, have occasion, and of course a right when 
 not expressly limited by law, to travel at a high rate of speed, 
 so that they do not endanger others. But all foot passengers, 
 including aged persons, women and children, have an equal 
 right to cross the streets ; and all drivers of teams and car- 
 riages are bound to respect their rights, and regulate their 
 own speed and movements in such a manner as not to violate 
 the rights of such passengers. So in regard to the drivers of 
 fast and slow carriages, each must respect the rights of the 
 other. Take a single illustration ; if a heavily loaded ox 
 team be passing along a street wide enough only for one car- 
 riage, say fourteen feet, and other fast carriages follow, these 
 last must, for the time being, be restrained in their speed, 
 because this necessarily results from these circumstances — 
 
462 MASSACHUSETTS. [Sup. Ot. 
 
 Commonwealth ««. Temple. 
 
 the narrowness of the way, and the ordinary slowness of the 
 ox team ahead. If parties thus traveling in the same direc- 
 tion should come to a portion of the way wide enough for 
 carriages to pass each other, say twenty feet wide, it is 
 obTions that if the driver of the heavy team would turn to 
 either side, it would give the fast team room to pass, whereas, 
 if he should keep the middle, the five or six feet on either side 
 would not permit any carriage to pass. Now, supposing no 
 impediment should intervene, and no circumstances should 
 render it dangerous for the driver of the slow team to bear 
 off, in our opinion it would be his duty to do so, although it 
 might suit his convenience better to keep ia the middle ; and 
 his refusal thus to bear ofE would be an abuse of his own equal 
 and common right, for which, if injurious to another, an 
 action would lie ; and if it was a public highway, the party 
 would subject himself to a public prosecution. 
 
 In some few cases, the regulation of the use of the highway 
 is important enough to require a rule of positive law, requir- 
 ing each traveler, when meeting, to turn to the right of the 
 centre ; in some states, to the left. But the circumstances 
 under which travelers may be placed in relation to each other 
 are so various, that it would be impracticable to prescribe any 
 .positive rule approaching nearer to certainty than the rule of 
 the common law, that each shall reasonably use his own right 
 in subordination to the like reasonable use of all others. 
 
 With this view of the law regulating the use of public ways, 
 we will examine the present case, as it appears on the excep- 
 tions. 
 
 We understand that a horse railroad and cars are a mod- 
 ern invention, designed for the carriage of passengers, and, 
 though not moving with the speed of steam cars, yet with the 
 average speed of coaches, omnibuses and all carriages designed 
 for the conveyance of persons. 
 
 The accommodation of travelers, of all who have occasion 
 to use them, at certain rates of fare, is the leading object and 
 public benefit for which these special modes of using the 
 highway are granted, and not the profit of the proprietors. 
 The profit to the proprietors is a mere mode of compensating 
 them for their outlay of capital in providing and keeping up 
 this public easement. 
 
I860.] MASSACHUSETTS. 463 
 
 Commonwealth vs. Temple. 
 
 A franchise for the railroad, which the defendant was 
 accused of obstructing, had been duly granted to the pro- 
 prietors, which grant included the right to lay down tracks 
 on a public highway, and also to use and maintain horse cars 
 thereon for the carriage of passengers. 
 
 Every grant, by an obvious and familiar rule of law, carries 
 with it all incidental rights and powers necessary to the full 
 use and beneficial enjoyment of the grant ; and where such 
 grant has for its object the procurement of an easement for 
 the public, the incidental powers must be so construed as 
 most effectually to secure to the public the full enjoyment of 
 such easement. 
 
 It appears that the proprietors of the horse railroad, having 
 received a franchise, had laid down a railway track, and had 
 procured horse cars, with suitable conductors, and were in the 
 actual use of the track. The defendant with a heavily loaded 
 team— it does not appear whether an ox team or a horse team 
 — was on the public street, driving from Charlestown to 
 Boston, with one of his wheels on the railroad track, when 
 the cars came up behind him. The defendant's team was 
 moving at the usual rate for teams of that class, but at a less 
 rate of speed than the cars were in the habit of moving. 
 There was room outside the track for either vehicle to pass 
 the other. When the cars came up, the conductor asked the 
 defendant if he would remove his team from the track ; he 
 did not, but continued upon it, at the same rate of speed, 
 several hundred feet and then turned ofE. 
 
 Several things are here to be observed. The cars could only 
 pass on one precise line. The wagon could deviate to the 
 right or to the left, within the limits of the traveled part of the 
 road. The public, by the grant of the franchise, had granted 
 the right to move on that precise line, and had given to all 
 passengers the right to be carried on that line at the usual 
 rate of speed at which passengers are carried by horses, sub- 
 ject only to occasional necessary impediments. , The cars can- 
 not so move, and the passengers cannot be so carried, whilst 
 the wagon moves on the track. No impediment is shown to 
 prevent the wagon from turning out. The wagon therefore 
 was for the time being an unnecessary obstruction of the 
 public travel, and therefore unlawful. 
 
464 MASSACHUSETTS. [Sup. Ct. 
 
 Commonwealth »«. Temple. 
 
 It is stated among the above mentioned circumstances in 
 the bill of exceptions, as if the two vehicles were upon an 
 equality in this respect, that there was room on either side for 
 either vehicle to turn out. But this is mere illusion ; the 
 wagon could turn out, the cars could not ; ad impossibilia lex 
 non cogit. 
 
 It is said, above, that it was usual for those in charge of 
 heavy and slow teams, to drive them with one wheel on the 
 track, and that they could be drawn much more easily in that 
 place than in any other part of the street. This is no justi- 
 fication. Whilst the track was not required for the cars, per- 
 haps the teamster had a right so to use it. But when required 
 for the cars, which could pass in no other mode, he had no 
 legal right to consult his own convenience, to the great incon- 
 venience, the actual injury, of the equal rights of another. 
 
 It is no excuse that the defendant did not get upon the 
 track in the first instance with the intention of obstructing 
 the passage of the cars, or that he did not slacken his rate of 
 speed on their approach ; it is a, nuisance, if, for his own 
 benefit, he violates the rights of others ; and if this consists 
 in the violation of a public right, indictment is the appropri- 
 ate remedy for its vindication and redress. Nor is express 
 malice, a disposition or desire to cause damage to another, 
 as in case of malicious mischief, necessary to the comple- 
 tion of the offense. It is a nuisance if one wilfully seeks 
 and pursues his own private advantage, regardless of the 
 rights of others, and in plain violation of them ; it is a wrong 
 done. And as every man must be presumed to intend all the 
 necessary, natural and ordinary consequences of his own acts, 
 it is a wilful and intended wrong ; it is malice— a thing done 
 malo animo — in the sense of the law ; and no other malice 
 need be proved to show the act to be a nuisance. 
 
 If it be said that the obstruction in this case was very 
 slight, that the cars were delayed but a very short time ; the 
 answer is, that this is very true, and the injury may be 
 trifling in itself ; but vindicated and justified, as it is in the 
 argument, on the ground of right, it tests a principle of very 
 great importance. If the driver of a heavily loaded truck or 
 wagon may, for his personal convenience, use one rail of the 
 
I860.] MASSACHUSETTS. 465 
 
 Commonwealth vs. Temple. 
 
 track wilfully for a few hundred feet, others may use the 
 other rail for the like purpose, and for any distance which suits 
 their convenience. Cars which, at the ordinary speed of horses 
 in carriages, would pass a given space in one hour, may be 
 • three or four in accomplishing it. Passengers whose business 
 requires them to be at the place of destination at a iixed time, 
 and who expect, and have a right to expect, that it will be 
 reached in that time, may find their business greatly deranged. 
 Men who, relying on the establishment of horse cars for their 
 daily passage, have fixed their domicil in one place and their 
 ordinary place of business in another, may find their plans of 
 life thus defeated. Indeed — without pursuing the effect of 
 the right contended for into all its consequences — the estab- 
 lishment of such a principle might essentially impair the 
 value of real estate in many situations. 
 
 We will now consider some of the points specially raised by 
 the bill of exceptions. 
 
 1st. The defendant contended that malice must be shown, 
 and that it could not be inferred from the mere fact that the 
 defendant used a part of the street, the most convenient to 
 him, in the ordinary way, knowing that the car would be 
 obstructed by such use. 
 
 If the term malice is here used in the sense of ill will, 
 a desire to injure another, as an actuating motive, the opinion 
 of the court is, that malice need not be shown, but that if a 
 wilful intent to follow his own convenience, in violation of 
 the equal rights of others, exists, it is sufficient, and no other 
 malicious motive need be proved. 
 
 2d. The defendant contended that, in the absence of regula- 
 tions on the subject, the corporation has no right to drive its 
 cars at any particular rate of speed, and the mere slackening 
 of the speed of the car by the defendant, if he was moving at 
 the ordinary and proper rate of speed, was no obstruction 
 within the meaning of the statute. 
 
 This position, we think, is untenable. We think the cor- 
 poration had a right, and in reference to passengers, were 
 bound, to move at the rate of speed usual for vehicles for the 
 carriage of passengers, drawn by horses, provided this right 
 could be enjoyed without preventing the loaded team from 
 
 30 
 
466 MASSACHUSETTS. [Sup. Ot. 
 
 Commonwealth m. Temple. 
 
 moving at its usual and proper speed ; and both could be 
 done by the team ahead turning off the track, which the car 
 in the rear could not do. It was therefore the duty of the 
 team, in the reasonable use of the public right, to do it. 
 What was the usual and proper rate of speed of the one was 
 not that of the other. 
 
 3d. The evidence was properly left to the jury. 
 
 4th. It was contended that the right of the horse railroad 
 company to use the highways is subject to the right of the 
 public to use such highways as they had previously done. 
 
 This position we think manifestly unsound. The legisla- 
 ture having granted a new and peculiar use of the highways, 
 the right of the public to use them as they had done is there- 
 by qualified, and must be adapted to such new use. Suppose 
 the legislature should authorize a canal to cross a highway, 
 with a draw, to be raised whilst boats are passing ; the public 
 cannot use the highway as they had previously done, at all 
 times, but must use it in subordination to the new right 
 granted. So here the law having authorized a horse railroad 
 which cannot deviate from one line, other vehicles must con- 
 form their use of the way to such new and authorized use, 
 although it prevents them to some extent from using it as 
 they had previously done. 
 
 The fifth, sixth, seventh, and eighth prayers for instructions, 
 we think, were rightly rejected, for reasons which are already 
 sufficiently stated. 
 
 The instructions actually given were, in our opinion, cor- 
 rect in law, carefully guarded, and precisely adapted to the 
 circumstances of the case, and therefore the exceptions must 
 be overruled, and judgment entered on the verdict. 
 
I860.] Ni:W YORK. 467 
 
 Owen vs. The Hudson River R. R. Co. 
 
 DANIEL OWEN and JEREMIAH G. LUGAE, Respond- 
 ents, vs. THE HUDSON RIVER RAILROAD 
 COMPANY, Appellants.* 
 
 GENERAL TERM. 
 
 SO If. T. Superior Court, (7 Bom.,) 3S9. 
 Affirmed 35 JST. Y., 516; a. c. S Am. St.-By. Dee. 
 
 "When a collision occurs between two vehicles upon the public high- 
 way and the negligence of both parties concurred to cause the collision, 
 neither is liable to the other for the damages resulting from such 
 collision. 
 
 A street railroad company whose car collided with an omnibus care- 
 lessly and negligently driven across the railroad track in front of the 
 car is not liable for damages for the injuries to the omnibus caused by 
 the collision, from the mere fact that the car was not furnished with 
 proper brakes and could not therefore be promptly stopped. 
 
 Therefore that it was erroneous for the judge to instruct the jury that 
 if, when the driver of the car saw the driver of the omnibus attempting 
 to cross the track, the driver of the car by ordinary care could have 
 slackened the speed of his car, if the brakes had been in good order so as 
 to have avoided a collision, the company was liable. 
 
 A street railroad company is bound to keep "the brakes of their 
 cars in good working order and they are bound to cause them to be 
 driven through the streets in a careful and proper manner ; and if, in 
 either particular, they are negligent, they are liable to whomsoever is 
 without any concurring fault or negligence injured thereby, and only to 
 such as are free from such concurring fault or negligence." 
 
 This is the second time this case was before the general 
 term; on the first appeal a new trial was ordered for the reasons 
 stated in the opinion, and on the 9th of February, 1859, 
 before Bosworth, C. J., and a jury, the second trial took 
 place. 
 
 The plaintiffs brought the action for damages for injuries 
 to two of their omnibuses caused by collisions between the 
 omnibuses and the defendants' cars> The report of the former 
 appeal of the case ante 275, contains the material facts in con- 
 troversy. When the plaintiffs rested, the defendants made a 
 motion for a nonsuit, as they did on the former trial, on the 
 
 *lst appeal reported in 16 N. Y. Superior Court, (i Bosw.,') S7U ; a. c. 1 Am. St.-By. 
 Dec, ns. 
 
468 NEW YORK. [N.Y. Sup'r Ot. 
 
 Owen vs. The Hudson Eiver R. R. Co. 
 
 ground that the evidence showed that the negligence of the 
 plaintiffs' driver in attempting suddenly to cross the railroad 
 track in Tenth avenue was the cause of the collision and the 
 resulting injury to the plaintiffs' omnibus; and on the ground 
 that in one instance the driver turned his omnibus on to the 
 track just as the defendants' car was approaching at a point 
 in the avenue where the car could be seen when a long dis- 
 tance off, and would have been seen if the driver of the omni- 
 bus had looked in that direction, as he ought to have done : 
 and, also, that it was not shown that there was any negligence 
 on the part of the driver of the car. The judge denied the 
 motion and the defendants took an exception. The evidence 
 tended to show the negligence of the drivers of the stages as 
 claimed by the defendants, but the plaintiffs claimed that they 
 had shown negligence on the part of the driver of the car; evi- 
 dence was given that after the driver of the car saw the dan- 
 ger of a collision, he did all in his power to stop the car, but 
 there was also evidence that the brakes on the car were not in 
 good working order, and for that reason the car could not be 
 stopped so soon as if they were in good repair. 
 
 The counsel for the defendants asked the court to charge 
 the jury, that if the plaintiffs' drivers were guilty of negli- 
 gence, then the defendants would not be liable, provided the 
 drivers of the cars used reasonable care and skill in the use 
 of the means which they had to avoid the accident. 
 
 The defendants' counsel also asked the court to charge that 
 if the plaintiffs' negligence in any degree contributed to the 
 accident, the plaintiffs cannot recover, although they believe 
 the brakes were out of order. 
 
 The court refused to charge as requested, but in respect 
 thereto charged the jury as hereinafter stated, and the defend- 
 ants' counsel excepted to each refusal. 
 
 The judge charged the jury that the plaintiffs were not 
 entitled to recover merely because there was negligence on the 
 part of the defendants' drivers, or other agents, if it were also 
 true that the drivers of the stages were negligent, and that 
 their negligence contributed to produce the collision and 
 injury : this was illustrated by the judge at some length and 
 he defined what, udder the circumstances as shown by the 
 
I860.] N:EW YORK. 469 
 
 Owen vs. The Hudson River R. R. Co. 
 
 evidencej was negligence on the part of the drivers of both 
 vehicles respectively, that contributed to produce the collision. 
 
 He further charged : "If both drivers were negligent, and 
 the negligence of both concurred to produce the collision and 
 injury, it is immaterial which of the two was most to blame. 
 You cannot, without violating the rules of law, give a verdict 
 for the plaintiffs on the ground that the driver of the car 
 was negligent, even if you should find such to be the fact, 
 provided the evidence satisfies you that the driver of the omni- 
 bus was also negligent at the time, and that his negligence 
 contributed to produce the collision and injury. In order to 
 recover in an action of this kind, there must not only be 
 negligence on the part of the defendants, but there must 
 have been none on the part of the plaintiffs, which contributed ' 
 to produce the injury. And you cannot find for the plaintiffs, 
 unless the evidence convinces you that there was no negligence 
 on the part of the plaintiffs' drivers which contributed to pro- 
 duce the injury. The negligence of the drivers of the cars, if 
 there was any, for all the purposes of this action, is to be treated 
 as the negligence of the defendants. The negligence of the 
 drivers of the omnibuses, if there was any, is also, for all 
 the purposes of this action, to be treated as the negligence of 
 the plaintiffs, and they are to be affected by it precisely as 
 they would be if they had been themselves driving, and had 
 conducted precisely as their drivers did. You will therefore, 
 determine whether either or both collisions were caused by the 
 negligehce of the defendants' drivers, without any negligence 
 of the plaintiffs' drivers concurring to produce such collision. 
 If either or both of them was, you will find a verdict for the 
 plaintiffs. If, on the other hand, you find that the negligence 
 of the plaintiffs' drivers contributed to produce both collisions, 
 then the law makes it your duty to find for the defendants." 
 
 In relation to the matter as affected by the condition of the 
 brakes of the defendants' cars the judge charged : 
 
 "If when the driver of the downgoing car saw him, (the 
 stage driver,) attempting to cross to the west, the driver of the 
 car going down, by ordinary care, could have so slackened the 
 speed of his car, {if Ms brakes had been in good order, ) so as to 
 have avoided a collision, the company would be liable. " 
 
470 NUW YORK. [J^.Y. Sup'r Ct. 
 
 Owen m. The Hudson River R. R. Co. 
 
 The counsel for the defendants excepted to the words "if 
 his brakes had been in good order." 
 
 The judge continued : " But under such circumstances, 
 the company would not be liable merely because its drivers 
 failed to use extraordinary care to avoid a collision. If, by 
 ordinary care, the driver of the car, if it had a brake that 
 was suitable and in good condition, could not have prevented 
 the collision, the company is not liable. If the negligence of 
 the driver of the car going down consisted in a large degree in 
 not seeing the omnibus until it was too late to prevent a col- 
 lision, even if the brake had been a good one and in good 
 order, then such negligence was of the same character as that 
 of the driver of the omnibus, in not seeing the car approach- 
 ing until it was too late for him to pass out of its reach." 
 
 The jury found for the plaintiffs and assessed the damages 
 at $951.61. 
 
 The defendants made a motion at special term for a new 
 trial, and the motion being denied they appealed to the general 
 term. 
 
 Mr. William Fullerton, for the appellants. 
 
 Mr. J. W. Gerard, for the respondents. 
 
 By the Court : Woodruff, J. — This case came before 
 the general term in January, 1858, on appeal from a judg- 
 ment in favor of the plaintiffs. It appeared from the case as 
 there presented, that the judge presiding at the trial had 
 charged the jury that " if the. jury believed that the brakes 
 of the defendants' car were not in good or sufficient work- 
 ing order, so that they were inefficient for the purpose of 
 checking the progress of the car; and if they were satisfied 
 that the driver of the car had time enough, after he discovered 
 the dangerous position of the stage, to have avoided the col- 
 lision by the application of the brakes, if they had been in 
 good order, then the plaintiffs were entitled to recover, not- 
 withstanding the plaintiffs' driver, (of the stage,) was guilty of 
 imprudence or carelessness in getting into such position." 
 
 This construction was held by the general term erroneous, 
 and the judgment was reversed, and a new trial ordered for 
 this error. 
 
I860.] N:EW YORK. 471 
 
 Owen m. The Hudson River R. R. Co. 
 
 On such second trial, the chief justice charged, in general 
 terms, and with great distinctness, that if both drivers were 
 negligent and the negligence of both contributed to produce 
 the collision and injury, it is immaterial which was most to 
 blame; that if the negligence of both drivers concurred to pro- 
 duce the injury, the plaintifEs cannot recover. But he also 
 charged, in view of the claim of the plaintiffs, that the brakes 
 attached to the defendants' car, were not in proper working 
 order, as follows : 
 
 " If, when the driver of the down-going car saw him, (the 
 driver of the plaintifEs' stage,) attempting to cross, (the 
 track,) to the west, the driver of the car going down, by 
 ordinary care, could have slackened the speed of his car, if the 
 brakes had been in good order, so as to have avoided a col- 
 lision, the company, (the defendants,) would be liable." 
 
 "We are not able to reconcile this instruction with the former 
 decision a'bove stated. This instruction imports, by obvious 
 implication, that, although the driver was active and diligent 
 to the utmost of his power in the use of all the means at his 
 command, and was therefore entirely free from the imputation 
 of negligence ; still, if his diligence was ineffectual by reason of 
 imperfection in the brakes, the defendants are liable notwith- 
 standing the plaintiffs' servant may have been guilty of negli- 
 gence in attempting to cross the track in front of the defend- 
 ants' car. In other words if the defendants were negligent in 
 not keeping the brakes in good order, they are liable, although 
 the negligence of the plaintifEs concurred therewith in pro- 
 ducing the injury. 
 
 It is unquestionable that the defendants were bound to keep 
 the brakes of their cars in good working order, and they were 
 bound to cause them to be driven through the streets in a 
 careful and proper manner; and if, in either particular, the 
 defendants neglected to perform their duty, they are liable to 
 whomsoever is without any concurring fault or negligence 
 injured thereby, and only to such as are free from such 
 concurring fault or negligence. 
 
 This proposition was stated to the jury in so far as relates 
 to the defendants' duty to cause their cars to be properly 
 driven, and also that if both drivers were in fault and the 
 
472 N:EW YORK. ' [N.Y. Sup'r Ot. 
 
 Owen vs. The Hudson River R. R. Co. 
 
 negligence of both concurred to produce the collision and 
 injury, the plaintiffs could not recover. 
 
 The same rule is applicable to the duty of the defendants 
 to keep their brakes in order. If, in this respect, the defend- 
 ants were negligent and the driver of the stage was also 
 negligent, and such negligence of both concurred to produce 
 the injury, the plaintiffs were not entitled to recover. Or to 
 present the question in another aspect : If it was negligence 
 to attempt to drive through the streets, a car which was not 
 furnished with proper brakes, in good order, still, if the 
 negligence of the plaintiffs concurred with that of the defend- 
 ants in causing the injury, the defendants are not liable. 
 
 If the driver of the car, after he saw the dangerous position 
 in which the plaintiffs' driver had negligently placed himself 
 and his stage, could, by ordinary care in the use of the means 
 which were then in his command, have arrested the progress 
 of the car and so have prevented the injury, it was his duty to 
 use that care ; but if the plaintiffs' servant was, by his own 
 negligence, placed in a situation of danger, proof of mere 
 negligence on this part of the defendants in not having kept 
 their brakes in good order, only proved a case of concurring 
 negligence of both parties, for the consequences of which, 
 neither was liable to the other. 
 
 This, we understand, to be the decision of the general term 
 when this case was before the court on the former appeal. 
 We forbear, therefore, from discussing the questions at length 
 or reviewing the authorities. 
 
 The order appealed from must be reversed, and a new trial 
 must be ordered, costs to abide the event. 
 
 Ordered accordingly. 
 
I860.] CONNECTICUT. 473 
 
 Elliott m. The Fair Haven and Westville R. R. Co. 
 
 WILLIAM H. ELLIOTT and others vs. THE FAIR 
 
 HAVEN AND WESTVILLE RAILROAD 
 
 COMPANY. 
 
 NISI FRIUS. 
 
 32 Oonn., 579. 
 
 A company was duly authorized to lay and use a horse railroad track 
 in a public street in a city; 
 
 Seld, that such authority was not a new servitude imposed upon the 
 land, for which the owners of the fee were entitled to compensation, 
 but that it was only another way of using the highway by the public. 
 
 Bill for an injunction by owners of lands lying on a street 
 in the city of New Haven, to prohibit a horse railroad track 
 being laid in said street. Pacts and points are stated in the 
 opinion. 
 
 Mr. R. I. Ingersoll, Mr. 0. Ives and Mr. Doolittle, for the 
 petitioners. 
 
 Mr. Button and Mr. L. G. Peck, for the respondents. 
 
 Ellswokth, J. — From the best consideration I am able to 
 give this case, aided as I have been by the researches and 
 arguments of counsel, I am constrained to decide upon the 
 proof before me, if not upon the bill itself, that the petition- 
 ers are not entitled to the relief prayed for ; and- 1 therefore 
 pass by all formal objections to the bill. 
 
 They complain that the respondents are about to impose a 
 new servitude upon their soil and freehold, by placing thereon 
 a track of iron suitable for a railroad. I find the road which 
 the respondents are about building to be a horse railroad, in 
 distinction from one of the common character where steam is 
 used as the motive power. No other than a horse railroad 
 can be constructed or enjoyed under the charter before me. 
 
 This then is the road which they insist is a new servitude, 
 and ought not to be constructed on their freehold without a 
 new assessment of damages, though it is conceded that the 
 land has been already condemned for a public highway, and 
 paid for. 
 
474 CONNECTICUT. [Sup'r Ct. 
 
 Elliott M. The Fair Haven and Westville R. R. Co. 
 
 This presents a question of some interest and importance, 
 one that is new in the courts of this country so far as I can 
 learn from books within my reach or from the references of 
 counsel ; and it is this silence, while horse railroads have 
 existed for years and are greatly multiplied in all the chief 
 cities of the United States, that induces me to believe there 
 can be nothing in the petitioner's claim. Were it otherwise 
 I think the objection must have been discovered ere this, for 
 such roads have, in this country, encountered opposition in 
 every form. The position assumed is that a horse railroad is 
 a new and additional servitude. If so, there must be some 
 provision for indemnifying the owners for appropriating their 
 soil and freehold ; but if it be otherwise, if it be a mere modi- 
 fication of an existing servitude, a modification called for by 
 the necessities of the public, as I think the fact is, then the 
 petitioners have no case, and should have addressed themselves, 
 as they still may, to the legislature rather than to a court 
 of justice. 
 
 In deciding upon the character and extent of this servitude 
 we must carefully consider the mode and manner in which the 
 respondents intend to build and use their road, else we can- 
 not ascertain the true character of the new and modified use 
 of the highway. The, terms of the charter may, as said by 
 Chief Justice Eedfield in his Treatise on Eailways, page 160, 
 have a material bearing upon the question whether the servi- 
 tude is new and additional. The rails are to conform to the 
 grades of the streets now existing or hereafter to be established 
 by the common council of the city of New Haven ; and they are 
 to be laid down without cuttings or embankments, or other 
 changes in the highways, calculated to affect the present 
 modes and lines of travel. Hence it follows that when the 
 rails are fixed, vehicles can pass over them crosswise or longi- 
 tudinally without obstruction, and travel upon them, as is 
 done in most of the cities, at pleasure. It has likewise been 
 testified by a professional engineer that a horse car passing 
 along the track at the ordinary rate can be stopped in about 
 four feet. 
 
 I am satisfied that horse railroads do not come under the 
 general statute with regard to railroads passed in 1849. Hence 
 
3860.] CONNECTICUT. 475 
 
 Elliott m. The Fair Haven and Westville R. R. Co. 
 
 they may, and I think they should, be distinguished from 
 general railroads upon the question of servitude, wherever 
 that question arises. This is most obvious upon a slight view 
 of several of the sections of the general statute. Very many 
 of its provisions are certainly inapplicable to horse railroads, 
 and others can have little or no relation to them ; from 
 which I infer that the legislature in enacting the general stat- 
 ute had not in view horse railroads, confined as they mostly 
 are to cities and their suburbs. I refer particularly to sec- 
 tions 2, 3, J,., 12, IS, 17 and 22, of the act of 18Jfi ; to the act 
 of 1850 ; to sections 1 and 2 of the act of 1851 ; and to sec- 
 tions 1, 3 and If of the act of 1853. 
 
 We come then to the question whether this horse railroad is 
 a new and additional servitude upon the soil and freehold, or 
 fee, as we sometimes say, of the highway. To my mind it is 
 not. It has no such character. Let the existing servitude 
 or highway be defined with intelligence and accuracy, and the 
 definition will be found to embrace all puMic travel not pro- 
 hibited by law ; on foot, in carriages, omnibuses, stages, 
 sleighs, or other vehicles, as the wants and habits of the pub- 
 lic demand. The power to regulate this franchise, to pre- 
 scribe the manner and mode in which it may be used, is cer- 
 tainly vested in the legislature quite as much as is the original 
 right to provide the highway at all, and certainly it is their 
 imperative duty, by themselves or subordinate authorities, to 
 provide all necessary highways, bridges and ferries. Whether 
 this power is exercised by municipal corporations, or other 
 corporations, or by individuals unincorporated, or by the legis- 
 lature itself, can make no difference in the nature and extent 
 of the servitude itself. It is the same in each case, and 
 adjoining proprietors have nothing to do with the modifica- 
 tion or regulation of it, except as other citizens through 
 those whose business it is to provide and regulate highways. 
 This follows from the fact that their land has been regularly 
 condemned and paid for, for all public travel. Nothing is 
 more absurd than that the mode of traveling is to be subject 
 to their will and pleasure, and not to the supervision and 
 determination of the legislature. If the legislature are satis- 
 fied that one mode is better than another they may certainly 
 
476 CONNECTICUT. [Sup'r Ot. 
 
 Elliott m The Fair Haven and Westville R. R. Co. 
 
 allow it, and grant charters when necessary to secure that 
 mode. If companies or corporate bodies will alone undertake 
 the enterprise, it is both legal and proper to intrust it to them, 
 rather than to overburden municipalities, which may have 
 little or no interest in its success. This power has hitherto 
 been thought to be both proper and necessary. Is it not exer- 
 cised whenever turnpikes are chartered, especially along and 
 over old highways, or whenever bridges, or ferries are char- 
 tered with right of toll ? The franchise or servitude is the 
 same ; it is but a highway still ; or, in other words, it is the 
 right of the public to travel as their necessities or convenience 
 require. And what is said about the fee being in the owners 
 of the lots bounded on the street, though correct enough in 
 theory and important in a certain point of view, is not of the 
 slightest importance in deciding upon the right of the legis- 
 lature to regulate the public travel, whether by horse cars or 
 omnibuses drawn over the road, upon iron, earth, stone or 
 timber. This matter of using the highway for travel ought 
 to be looked at with the eye of common sense, rather than 
 with an over-nice technicality, provided the right itself is 
 admitted to be fully in the public. Is the servitude, I ask, 
 a new one because the mode of traveling by the people is new? 
 Is it more than the public require ? If not, I must insist 
 that it is not new because the form of the vehicle is new ; 
 however proper it may be for the legislature to provide for 
 special damages to adjoining owners. 
 
 It is said that the servitude is new because the respondents 
 get an exclusive right to their track, one which may last longer 
 than the highway itself. This again is very unsatisfactory to 
 my mind. It is not so certain that their right will outlast 
 the authorized highway, certainly the right is given to facili- 
 tate travel in the highway— the language of the charter being 
 the " line of the highway ;" and when these highways in the 
 city of New Haven are legally discontinued and disused, it is 
 quite probable that the entire travel, railroad and all, will of 
 necessity cease. Certainly the legislature may so order. 
 
 And as to the supposed exclusive right, it is not so except 
 in a qualified sense ; not more than the legislature are in the 
 practice of allowing, whenever it is found necessary for the 
 
I860.] CONNECTICUT. 477 
 
 Elliott vs. The Pair Haven and WestvlUe R. R. Co. 
 
 -7 
 
 full enjoyment by the people of a public franchise. Cannot 
 the legislature apportion or regulate a franchise for the gene- 
 ral good ? Can they not and do they not charter turnpike 
 companies with power to take toll, or companies to build 
 bridges or raise causeways on existing roads ? Suppose it to 
 be ascertained by experience that a stage coach cannot be 
 supported on a certain road without it can take all that kind 
 of traTel, may not the legislature give a charter for that pur- 
 pose, upon condition that the company will raise the road, or 
 bridge it, or pave it and keep it in repair ? And yet this is 
 in a sense an exclusive right, but not in an offensive sense ; 
 nor does this modification change or enlarge the servitude. 
 Nor in fact can the horse railroad in question be said to be 
 absolutely exclusive. The legislature can still license as many 
 other roads as they find necessary, and when they are fin- 
 ished the people can travel as freely as they could if they were 
 not there, except that if a car is coming toward them they 
 may be obliged to turn out, just as they would if in riding on 
 horseback they should meet a load of hay. The truth is that 
 any supposed exclusive power or privilege in the respondents, 
 confined as they are to a given line of the path, is quite too 
 insignificant to found thereon an argument of exclusiveness 
 and monopoly. The legislature have often passed laws quite 
 as exclusive, in requiring persons on the highway to stop 
 for a time, or check their pace, or turn to the right or left, 
 or to go entirely around in passing others. They have always 
 made numerous distinctions among the vehicles on the road. 
 If now a new modification has become expedient, and horse 
 cars are introduced to meet that want, the legislature may well 
 license a track of iron suitable for their use. And the com- 
 mon law requires due care and forbearance among travelers 
 when they meet or overtake each other, and neither can insist 
 upon an absolute right irrespective of that of the other. This 
 very question has recently been elaborately examined and 
 decided in the supreme court of Massachusetts. In Common- 
 wealth vs. Temple, 23 Law Reporter, 332 ; s.c. 80 Mass., {H 
 Or ay,) 69; 1 Am. St. -By. Dec, 456; Ch. J. Shaw lays down the 
 law in harmony with the view I have taken. This was the case 
 of a heavily loaded wagon passing along the track of a horse 
 
478 CONNECTICUT. [Sup'r Ot. 
 
 Elliott m. The Fair Haven and Westyllle R. R. Co. 
 
 railroad in Boston, when it was overtaken by one of tlie cars. 
 The court, not recognizing any absolute right on the part of 
 one mode of traveling over another, decided that the parties 
 must act discreetly and fairly as to each other ; d;nd in apply- 
 ing the rule to the facts in the case, they held that the wag- 
 oner was in fault, and fined him for his conduct ; but not a 
 word is heard from the court to the effect that a horse rail- 
 road is exclusive, or in any way in contravention of the laws 
 or constitution of the commonwealth. It is quite worthy of 
 notice too, that in all the charters for horse railroads in Mas- 
 sachusetts which have been read to me, damages for land 
 " taken " are given only when private lands, and not high- 
 ways, are made use of. The same court in Massachusetts had 
 before them, on the same circuit, another case reported in the 
 same number of the Law Eeporter, Grew vs. The Broad- 
 way Railroad Company, 23 Law Reporter, 8^.1; s. c. 2 Am. 
 St.-Ry. Dec, 1, which was severely contested by able counsel 
 on every point of law and fact. The case involved the 
 point of making horse railroads in many of the important - 
 streets and some of the narrow ones in the city of Boston ; and 
 here too, not a word is heard about incumbering the fee of the 
 highway with a new servitude, although in an early case, 
 Craigie vs. Mellen, 6 Mass., 7, it had been decided that the 
 fee of the highway is in the adjoining owners. 
 
 There is a general statute in Massachusetts giving adjoin- 
 ing owners a right to recover special damages against towns 
 and cities, which by their agents injure their lands by making 
 excavations or embankments, though it is done of necessity 
 and in a prudent manner, in repairing or altering highways. 
 This statute probably extends to all corporations, but if so it 
 applies only to special damages to adjoining lands, and not to 
 general and common damages which arise of course, (if the 
 petitioners are correct,) from placing an iron track upon the 
 soil and freehold of the highway. This is a very proper 
 statute, and one which might well be adopted elsewhere, for 
 in the language of Ch. J. Kedfield, in his Treatise on Rail- 
 ways, it is confessedly competent for the legislature to require 
 railway corporations, in laying their track along the highway, 
 to compensate adjoining owners for any increased detriment to 
 
I860.] CONNECTICUT. 479 
 
 Elliott vs. The Fair Haven and Westville R. R. Co. 
 
 them, though it be in the nature of consequential damage. 
 We have substantially such a law in this state as to railway 
 corporations, for our courts, in the construction of the words : 
 " Shall pay all damage that shall arise to any person or per- 
 sons," which are generally found in the charters, have held 
 that consequential damages can be recovered. It was so held 
 in Bradley vs. New York and New Haven Railroad Company, 
 21 Conn., 294; Nicholson vs. the same, 22 id., 7^ ; Hooker vs. 
 New Haven and Northampton Company, Hid., H6 and 15 id., 
 S12 ; and in Denslow vs. the same, 16 id., 98. These companies 
 were held liable in case for special damages for acts done under 
 legislative authority. In English charters the words " injuri- 
 ously affected " have been held sufiBoient for the recovery of 
 like damages. In analogy to those cases if we assume the 
 servitude in question to work special damage to the respond- 
 ents' inclosures, I see not why each one may not recover any 
 special damage he can establish by proof. 
 
 The 6th section of the respondents' charter, to which my 
 attention has been called, as providing damages for lands of a 
 femme covert, etc., taken, throws very little light on the ques- 
 tion in issue, for the road will doubtless more or less pass 
 through private lands at the west end, in which case, land 
 may be taken, and if I am correct in what I have already said, 
 it will not be taken in any other case. 
 
 The greatest difficulty I have had in this case is to distin- 
 guish it from that of Imlay vs. Union Branch Railroad 
 Company, 26 Conn., 249; but I think it is distinguishable, 
 practically so, certainly ; and on this ground I hold that 
 the doctrine there laid down is not applicable here. That was 
 an amicable case on facts mutually agreed upon in order to 
 obtain, (under the statute,) the opinion of the supreme court 
 without suit. A general railroad had been granted to the 
 Union Branch Kailroad Company to be made in a portion of 
 Commerce street, in the city of Hartford, which is one of the 
 narrowest streets in the city. In the charter there was no 
 restriction as to the width of the railroad or the manner of 
 its construction, whether with or without cuttings and embank- 
 ments, except what is found in the general railroad act of 
 184:9, and the acts amendatory thereto. In fact the road was 
 
480 CONNECTICUT. [Sup'r Ot. 
 
 Elliott ««. The Fair Haven and Westville R. R. Co. 
 
 treated throughout as made or about to be made under that 
 act, and to be clothed with the ordinary attributes of a rail- 
 road ; and a horse railroad on the grade of the street was not 
 even thought of. The track there being laid, was found to 
 have in places embankments " so high as to create an unsightly 
 obstruction before the doors and windows of buildings, and 
 to impede the approaches from the roadway to stores, ware- 
 houses and dwellings." Here was a positive nuisance, and 
 the plaintiffs claimed that damages should be appraised — 1st, 
 for taking their soil in the highway ; 2d, for injuries to 
 adjoining lands resulting from such an appropriation of the 
 highway ; and, 3d, for injuries resulting to their stores and 
 dwellings from the embankments raised in the highway. 
 Here was enough to show, beyond all question, that the rail- 
 road company were proceeding at their peril, and ought to 
 pay damages for some or all of their acts. The court did 
 undoubtedly say that damages must be paid for the soil and 
 freehold of the highway, for the works contemplated were a 
 new and additional servitude. That opinion, however, I think 
 is applicable only to a case like the one before the court, a 
 railroad constructed and used under the general latu of the 
 state; and I do not believe my learned brethren intended 
 to pass upon a horse railroad constructed and used as the 
 present is to be. I find the Chief Justice, in giving the 
 reasons for the decision, saying in effect, that if the new 
 use of the land is within the scope of the original seques- 
 tration or dedication, it would follow that the railway 
 privileges are not an encroachment on the estate remaining 
 in the owner of the soil, and that a new mode of enjoying 
 the public easement will not enable him to assert a claim 
 to damages therefor ; and further, that in that particu- 
 lar case the court had simply to decide whether there is such 
 an identity between a highway and a railway as that they may 
 be treated substantially as the same easement or servitude, or 
 as being designed for the same objects and uses. If so, he 
 admits that the plaintiffs have no case, but he thought there 
 was not such an identity. Now, in my judgment, this horse 
 railroad is essentially different from that in its chief character- 
 istics, and therefore, in deciding upon this servitude, I am 
 
I860.] NEW JERSEY. 481 
 
 McFarland vs. The Orange and Newark R. R. Co. 
 
 bound to look at the circumstances which distinguish the two 
 cases. The former, as I have already said, was a railroad 
 under the statute of 1849, to be constructed and used accord- 
 ing to the provisions of that act and the amendments thereto, 
 such as the width of the road, its cuttings, embankments, 
 locomotives with their tenders and trains, rapid and danger- 
 ous in their progress, its fires, steam whistles, bells, and other 
 accompaniments, making the highway inconvenient or impass- 
 able. These things might well be held to be most important 
 in that case, as giving character to the servitude complained 
 of, although there are very great authorities denying even 
 this distinction ; but however that may be, none of these cir- 
 cumstances are found in this case. There are no cuttings, no 
 embankments, no locomotives, no tenders, or trains, no 
 rapid or dangerous progress, no fire, steam whistles or bells, 
 but only a jogging horse with a species of omnibus attached, 
 stopping every few rods to take in and let out passengers. 
 
 If in making this distinction I have fallen into an error, I 
 am happy to know that my opinion can be reviewed and 
 reversed by our learned court of errors ; and that an action at 
 law can be brought to try the question in issue in another 
 form by a jury. Entertaining these views, I dismiss the 
 bill. 
 
 OWEN MoFARLAND vs. THE ORANGE AND 
 
 NEWARK HORSE CAR RAILROAD 
 
 COMPANY.* 
 
 13 N. J. Eq., (2 Beas.,) 17. 
 
 Defendants' charter, sec. 7, read as follows; " The president and 
 directors of the said company be and they are hereby authorized and 
 invested with all the rights and powers necessary and expedient to survey, 
 lay out, and construct a raUroad from some suitable point in the town- 
 ship of Orange, in the county of Essex, to some suitable point in Orange 
 street, or some street north of said street, or south of Market street, in 
 the city of Newark." 
 
 * The decree of the chancellor was affirmed without opinion in is N, J. Eq., (2 
 
 I.,) sei. 
 
 31 
 
483 N:EW JEB8EY. [Ohanc. 
 
 McFarlaad m. The Orange and Newark R. R. Co. 
 
 Held, that the enactment related not to the route, but to the termina- 
 tion of the road. 
 
 Meld, further, that there was nothing in the act to prohibit the com- 
 pany from running their road through Market street ; the statute was 
 complied with when the company's terminus was at a point south of 
 Market street, whether that point was in a street south of Market or not. 
 
 Motion to dissolve an injunction. The facts are stated in 
 the opinion. 
 
 Mr. Oliver 8. Hoisted, sen., for the complainant. 
 Mr. Abraham 0. Zabriskie, for the defendants. 
 
 TheChanokllor (Henry W. Grben.) — The whole equity 
 of the complainant's bill rests upon the ground that there was 
 no authority for the location of the railroad in or through 
 Market street, in the city of Kewark. If the company were 
 authorized by their charter to locate and construct their road 
 through that street — if its construction then was authorized 
 by law it could be no nuisance, nor was the injury it occa- 
 sioned to the complainant of a character which entitled him 
 to relief by injunction. 
 
 The injunction was originally granted on the assumption 
 that the charter of the company, by necessary implication if 
 not in express terms, excluded the road from being located in 
 or through Market street. Upon a careful examination of 
 the charter, I am satisfied that there is no ground for that 
 opinion. The language of the act, (sec. 7,) is as follows : 
 " The president and directors of the said company be and 
 they are hereby authorized and invested with all the rights 
 and powers necessary and expedient to survey, lay out, and 
 construct a railroad from some suitable point in the town- 
 ship of Orange, in the county of Essex, to some suitable 
 point in Orange street, or some street north of said street, 
 or south of Market street, in the city of Newark." This 
 enactment relates not to the route, but to the termination of 
 the road. Its design was not to exclude the line of the road, 
 but its terminus, from the district included between Market 
 and Orange streets. Whether the language of the act be con- 
 strued to fix the terminus at & point south of Market street. 
 
I860.] NEW JERSEY. 483 
 
 McFarland ««. The Orange and Newark R. R. Co. 
 
 or at some point in a street south of Market, is immaterial. 
 In either event the statute is complied with. It appears, by 
 the answer, that although the line of the road is through 
 Market street, its terminus is a point and in a street south of 
 Market street. 
 
 There is authority, both from the legislature and from the 
 corporate authorities of Newark, to construct the road in its 
 present location. 
 
 The injunction must be dissolved with costs. 
 
INDEX. 
 
 PAGE. 
 
 ABUTTING OWNERS— 1. Owners of lots, upon the public 
 street of a city, may maintain an action to enjoin the construc- 
 tion in such street of a railway, which would be specially 
 injurious to their property. 
 MiLHATJ m. Sharp 334 
 
 2. The footway of a public street or highway is in no sense 
 
 private property, and an injunction will not be granted to the 
 owner of the lot adjoining the footway to restrain a railroad 
 company from laying rails across a portion of the footway. 
 
 Clare m. Second & Thibd St. Pass. Ry. Co 336 
 
 See also Stbbets, 4, 5, 15, 27, 28, 34, 35, 42; Injunction, 
 9,10. 
 
 ACTION — 1. Plaintiff was injured by being thrown out of his 
 wagon which collided with a car belonging to the New York 
 and New Haven Railroad Company, but the horses which drew 
 the car, and the driver who was driving it, were in the employ 
 of the defendants, the New York and Harlem Railroad Com- 
 pany. 
 
 Held, that the action was properly brought against the New 
 York and Harlem Railroad Company, the owners of the horses 
 and employers of the driver. 
 
 Wbyant vs. New Yoke & Harlem R. R. Co. , 160 
 
 3. Suits for the redress or prevention of public wrongs, can 
 
 be maintained only by, or in the name of, the people ; there- 
 fore, when individuals sue, they must show that their private 
 rights are endangered. 
 Wetmore vs. Story 200 
 
 Bee Negligence, 4-6. 
 
 ■ Bight of taxpayers to institute suit in their own names. 
 
 See Injunction, 1, 6. 
 
 ■ Assignment of right of. 
 
 See Assignment of right op action, 1-4. 
 
 ■ To present construction of railway. 
 
 See Practice, 1, 3. 
 
 33 
 
486 INDEX. 
 
 ACTION— Oontinued. page. 
 By physician for sermces at request of superintendent. 
 
 See Physician, 1. 
 By stockholder- to compel completion ofrwil/ma/y. 
 
 See Stockholdehs, 1. 
 
 See also EMorBNT Domain, 1 ; Teaok, 2, 3 ; Child, 1. 3. 
 
 ADJOINING OWNERS— 
 
 See Abutting Owneks. 
 
 AGENCY— 1. PlaintifE, a physician, at the request of defend 
 ants' superintendent, rendered service to a child that had been 
 run over by one of the defendants' cars and brought this action 
 to recover for such services. The superintendent testified that 
 he had a general supervisory control over the whole line of. 
 the road, everything connected with the running of the road 
 being under 'his supervision and control ; that he paid money 
 to drivers, conductors and other persons employed by him, as 
 superintendent, but that he had no direction over the treasury. 
 
 Held, that this description of the superintendent's powers did 
 not justify the inference that he was authorized, by his office, 
 to arrange and liquidate claims made against the company for 
 the negligence of their servants in running their trains, or to 
 contract with third persons, as their agent, to repair or remedy 
 the consequences of such negligence, and Held, therefore that 
 he had no authority to bind the defendants by the employment 
 of the plaintiff. 
 
 Held, further, that there being no other proof to charge the 
 defendants, the plaintiff was properly nonsuited. 
 
 Stephenson vs. New Yobk & Haelem R. R. Co 105 
 
 See also Lease, 1, 2. 
 
 AGREEMENT— 
 
 ietween attorney and client. 
 
 See Attoknet and Client, 1-3. 
 
 APPRAISERS — 1. An appraisement of the value of certain prop- 
 erty, agreed upon by a majority of the appraisers, appointed 
 under an act incorporating a city railroad is a valid and bind- 
 ing appraisement. 
 ' Moore vs. Gbben & Coates St. Pass. Rt. Co 409 
 
 2. An act of the legislature, which provided that where ap- 
 praisers appointed to assess the amounts to be paid by any city 
 passenger railway company have failed to agree, other ap- 
 praisers shall be appointed by the district court, has no appli- 
 cation Id. 
 
 Of stock ofomnibvs lines. 
 
 See Injunction, 11, 12, 16-18. 
 
INDEX. 487 
 
 ARGUMENT— page. 
 
 Bight to open and close. 
 
 Bee Pbactice, 3. 
 
 ASSIGNMENT OF RIGHT OF ACTION— 1. PlaintifE brought 
 an action fo» damages as assignee for one who was injured by 
 the negligence of, the defendants while a passenger in their 
 cars, 
 
 Hel/i, that such a right qf action was not assignable, even 
 though the injuries involved a breach of contract. 
 
 PuEPLE lis. Hudson Rivbk R. R. Co. 175 
 
 2. The only alteration in the law made by the Code on this 
 
 subject is to enable the assignee to maintain an action in his 
 own name when the right of action is assignable in law or 
 equity Id. 
 
 3. The Code does not limit the power of assignment to de- 
 mands arising out of contract, excluding those founded on 
 torts ; but that every demand connected with a right in prop- 
 erty, which claims redi;pss for a violation of the right, is assign- 
 able, whether the violation is a tort or a breach of contract. . . Id. 
 
 4. This rule excludes only those torts that are strictly per- 
 sonal, and that die with the person Id. 
 
 ASSOCIATION— 
 
 Oorporation liable upon covenants in a lease made before in- 
 corporation. 
 See Lease, 2. 
 
 ATTORNEY AND CLIENT— 1. The plaintiff made an agree- 
 ment with his attorney to give him one-half of the amount 
 recovered in a suit against the defendants. The defendants 
 had notice of the agreement, but nevertheless made a settlement 
 with the plaintiff for a less sum than the amount of the judg- 
 ment. 
 
 Held, that the lien of an attorney for his costs upon a judg- 
 ment recovered by him has not been abolished by the Code, 
 but that the lien may now cover not only the taxable costs, 
 but also any portion of the recovery which may have beeli 
 stipulated as the compensation for the attorney's services. 
 
 Seld, therefore, that the defendants negotiated with the 
 plaintiff at their peril, and that the attorney could recover 
 from them the amount he was entitled to by the agreement. 
 
 RooNBY vs. Second Avenue R. R. Co 353 
 
 8. A settlement of an action made by the parties before trial 
 
 is valid providing the attorney has not served the adverse party 
 
488 INDEX. 
 
 ATTORNEY AND CLIENT— Coreforawf?. page. 
 with notice forbidding a settlement without him, and it was 
 made without any design to deprive the attorney of his costs. 
 McDowell ««. Secokd Avenxib B. E. Co 447 
 
 3. A judgment entered by the attorney after notice of such 
 
 a settlement will be set aside on motion Id. 
 
 ATTORNEY GENERAL OF STATE OP NEW YORK— 
 
 When not proper party to action to prevent construction of 
 
 See Practice, 1, 2. 
 
 AWARD— 
 
 Of apprais&rs of stock of omnibus lines. 
 
 See Charter, 1-5 ; Appraisers, 1, 3. 
 
 BELLS AND LIGHTS— 
 
 Whether the omission to use on cars is negligence, is a ques- 
 tion of fact for the jury. 
 Johnson vs. Hudson Hiter R. R. Co 354, 393 
 
 BRAKES— 
 
 Negligence for company not to haw efficient. 
 
 See Collision, 11, 15-17 ; Evidekce, 16, 17. 
 
 BREACH OF THE PEACE— 
 
 Driving horse ear on Sunday is. 
 
 See Sunday, 3, 3. 
 Driving horse car on Sunday is not. 
 
 See Sunday, 4^6. 
 
 BURDEN OF PROOF— 1. The plaintiff brought this action 
 against the defendants for damages for injuries to the plaintiff's 
 testator, resulting in his death, and proved the negligence of the 
 defendants, but did not prove that the deceased was free from 
 negligence, which the defendants contended the plaintiff should 
 have done. 
 
 Hdd, That the plaintiff in order to maintain the action was 
 not bound to prove that there was no want of ordinary care on 
 the part of the deceased ; that the burden of proving that there 
 was a want of ordinary care on the part of the person injured 
 which contributed directly to the accident, rested upon the 
 defendants. 
 
 Held, further, that the rule of evidence, which casts the bur- 
 den of proof upon the party who maintains the aflBrmative, 
 should admit of no exception unless established by precedents 
 that the court is bound to follow. 
 
 Johnson vs. Hudson River R. R. Co 191 
 
 OAR— 1. The complaint charged that the defendants by the 
 
INDEX. 489 
 
 CAR — Continued. page. 
 
 wrongful act, negligence and default of themselves and their 
 agents and servants, ran over the child and caused her death. 
 
 Seld, that evidence could be introduced under this clause, to 
 shovf the defective construction of the car that tended to occa- 
 sion the accident, as well as carelessness on the part of the 
 driver of the car and others, in its management. 
 
 OijDpield va. New Yobk & Harlem R. R. Co 168 
 
 Negligent eonstruetion of. 
 
 See Evidence, 13 ; Collision, 10, 11. 
 
 Collision with other mhicle. 
 
 See Collision, 1-17. 
 
 CHARTER — 1. The act incorporating the defendants provided 
 that before the said company should commence to use the 
 streets of their route, the stock of horses, etc., of the omnibus 
 lines on said streets, should be purchased by the company at a 
 price to be assessed, etc. Part of the route of the omnibus lines 
 of the plaintiffs' was over a portion of only one of the streets 
 of defendants' route. 
 
 Held, that as the language of the act was not clear, a reason- 
 able doubt existed as to whether all omnibus lines using any 
 portion, of the streets of the defendants' route were to be pur- 
 chased by them, and a preliminary injunction restraining the 
 defendants from building their road, would not be granted, 
 especially, as the plaintiffs' remedy at law, was full and ample. 
 Every seeming violation of law and right, does not entitle those 
 applying for it, to a preliminary injunction. 
 
 Moore m. Gbeen & Coatbs St. Pass. Rt. Co 321 
 
 2. The act of the legislature incorporating a street railroad 
 
 company provided that before commencing to use the railroad, 
 the company should purchase at an appraisement the horses, 
 omnibuses, etc., owned and used by omnibus lines on the streets 
 through which the railroad was to be operated. 
 
 Held, that this provision "did not relate to an omnibus line 
 that had a route that connected the city and several villages and 
 used the streets only incidentally. 
 
 Cooper m. Second & Third St. Pass. Rt. Co 328 
 
 3. The legislature has an undoubted constitutional authority 
 
 to invest a corporation with the rights, powers and privileges 
 contained in its charter ; but when a court of equity is applied 
 to, to define the nature of these rights, it will see that the cor- 
 poration is restrained within the strict limits of its chartered 
 privileges. 
 Deschamps vs. Second & TmRD St. Pass. Rt. Co 342 
 
 4. The act incorporating a horse railroad company provided 
 
 that before commencing to use the road upon the streets of its 
 
490 INDEX. 
 
 CSARTER—Oontimied. page. 
 
 route, the company should purchase the horses, omnibuses, etc. , 
 of the omnibus lines, owned and used upon said streets. The 
 company refused to pay an award of appraisers, duly 
 appointed, upon the ground that only a portion of the route of 
 an omnibus line, in whose favor the award was made, was used 
 by them, and until the whole route was used by them, they 
 were not liable. 
 
 Held, that such an interpretation if adopted, would pervert 
 the clear language and evident intent of the charter of the com- 
 pany, and that an injunction would be granted restraining the 
 company from running their cars until the payment of the 
 award Id. 
 
 5. An act incorporating a horse railroad company, provided, 
 
 that before commencing to run their cars upon the streets, the 
 omnibuses, ■ etc., owned and used on said streets by a certain 
 omnibus line should be purchased by the company ; that 
 appraisers should be chosen as follows : the omnibus owners to 
 choose one, the company to choose one, and those two to choose 
 a third. An appraisement was made by three persons, but the 
 company resisted the payment, on the ground that the appraiser 
 who claimed to represent them, was appointed by the president 
 of the company, without the authority of the board of directors. 
 
 Held, that the appraiser was not one appointed by the com- 
 pany, and as the company had never appointed an appraiser no 
 legal appraisement had been made. 
 
 Whitson m. Philadelphia & Grat's Fkket Pass. Ry. Co. 348 
 
 0. A charter of a railroad company when accepted and acted 
 
 upon is a contract, and as such must be complied with, and a 
 compliance with its terms may be compelled by mandamus or 
 injunction. 
 Maetin m. Secosd & Third St. Pass. Rt. Co 358 
 
 7; The legislature passed an act incorporating a city passen- 
 ger railway, in which it was provided that before the company 
 should use or occupy the streets, the consent of the city coun- 
 cils should be obtained, and that such consent should be deemed 
 to have been given, unless the councils signified their disap- 
 proval by the passage of an ordinance, within thirty days after 
 the passage of the act. The city councils did pass an ordi- 
 nance within the thirty days declaring their disapproval of the 
 said act. Six months thereafter the councils passed another 
 ordinance, by which consent was given to the company to use 
 the streets. 
 
 Held, that in statutes, as in contracts, the right of election, 
 where exercised, like the execution of a power, satisfies the 
 right. That the councils having once elected, the power desig- 
 
INDEX. 491 
 
 CHARTER— Continued. page. 
 Dated by the legislature was exhausted, and the subsequent 
 ordinance could not vitalize what the previous one had destroyed. 
 Mtjsseb m. Faiemount & Abch St. Rt. Co 366 
 
 8. An act of assembly authorized the constinction of a horse 
 
 railroad upon the roadway of a turnpike company incorporated 
 by a previous act of assembly. The subsequent act provided 
 for the compensation for the taking of the roadway. 
 
 Held, that the subsequent act was not unconstitutional. 
 
 In be Citizens' Pass. Rr. Co. 376 
 
 9. The grant of the franchise of a ferry, bridge, turnpike or 
 
 railroad is not in its nature exclusive, so that the state cannot 
 interfere with it by the creation of another similar fraiudiiee. 
 tending materially to impair its value ; the chaiter ie a mere 
 easement and not a grant of fee simple ia Hne bcSI, and the legis- 
 lature has full power to praat as many more easements, on 
 the same territory, as puTBlic convenience may require, always 
 , making indemnity for damage done to those corporations which 
 were the first objects of its bounty, or the recipients of antece- 
 dent grants Id. 
 
 10. The power to sell the right of way in streets was con- 
 ferred upon the city of New Orleans by its charter and upon 
 all incorporated cities or towns in the state by the act of 1855. 
 Bhown w. Dtjplessis 404 
 
 11. An appraisement of the value of certain property, agreed 
 
 upon by a majority of the appraisers appointed under an act 
 incorporating a city railroad, is a valid and binding appraise- 
 ment. 
 MooBE m. Gbebn & Coates St. Pass. Rt. Co 409 
 
 13. Charters granted to private corporations are contracts, 
 
 and as no law is valid which impairs the obligation of a con- 
 tract, a legislative act which attempts to take away or impair 
 any of the essential franchises of a corporation is to that extent 
 unconstitutional and void. 
 
 Held, therefore, that a charter of a street railroad company, 
 which granted the privilege to construct a railroad on certain 
 streets, upon which another company was authorized by its 
 charter, previously granted, to construct a railroad, was invalid. 
 
 Second & Thibd St. Pass. Ry. Co. m. Gbeen & Coates 
 St. Pass. Ry. Co 418 
 
 13. The privilege granted by the legislature to other com- 
 panies to use the established road of a street railroad company, 
 for a given and restricted purpose, cannot be held to confer 
 upon such companies, the rights of ownership or control, but 
 
492 INDEX. 
 
 OJHARTER— Continued. page. 
 that such companies are to use the road subject to the reasona- 
 ble regulations and control of the established company Id. 
 
 14. The act entitled : " An act to enable railroad corpora- 
 tions to enter into operative contracts, and to borrow money," 
 passed February 12, 1855. 
 
 3eld, to extend to street railways, and that when two roads 
 connect under this act, each must conform to the charter of the 
 road being used, and that the lessee of a road must, in oper- 
 ating it, be governed by the charter of the lessor. 
 
 City of Chicago vs. Evans 441 
 
 15. Two street railroads in the city of Chicago desired to 
 
 extend their tracks and connect with each other and for that 
 purpose were about to obtain the passage of an ordinance by 
 the common council. 
 
 Seld, that if their charters conferred no such power to ex- 
 tend, etc., the common council could not confer it Id, 
 
 See also Eminent Domain, 1-6 ; Stkeets, 9-16, 18-33, 36, 
 31, 33 ; Injunction, 3-6 ; Gbant, 1-8 ; Common Cottn- 
 ciL op New Yoke City, .5 ; Okdinancb, 5-17 ; Route, 1. 
 
 CHILD — 1. This was an action for damages for the death of a 
 child caused by the defendants' car running over her. The 
 child was aged six years and ten months and was in the street 
 unattended. 
 
 Seld, that the mere fact of permitting such a child to be 
 alone in the streets of a city unattended, is not as matter of law, 
 presumptive negligence. That in such cases, it is properly left 
 to the jury to say under the peculiar circumstances of each 
 case, whether or not it is negligence. 
 Oldfield vs. New York & Hablem R. R. Co 168 
 
 2. The verdict of the jury for $1,300, in this action brought 
 
 by an administrator for the benefit of the mother of the child, 
 held to be not excessive Id. 
 
 3. Plaintiff as administrator of a child, between six and sev- 
 en years of age, who was run over and killed by one of the 
 defendants' cars, brought this action under Laws of 1847, 
 amended in 1849, to recover damages for the death of the 
 child. 
 
 Eeld, that the question of the negligence of the parties was 
 one eminently for the consideration of the jui-y. 
 
 Held, also, that in order to sustain the action, it was not nec- 
 essary for the plaintiff to prove that any pecuniary or special 
 damage had been sustained by the mother of the child, in con- 
 sequence of its death. 
 
 Oldfibld vs. New York & Hablem R. R. Co 234 
 
INDEX. 493 
 
 PAGE. 
 
 CITY — 1. The city is a creature of the legislature with limited 
 power, and when it attempts to act beyond the limits of its con- 
 ferred authority, its acts are void. 
 Faust vs. Second & Third St. Pass. Ry. Co 312 
 
 OITT COUNCIL— 
 
 lAcenaefrom to operate radlroad m streets. 
 
 See Stkbbts, 17. 
 Disapproval by ordinance of construction of street railway. 
 
 See Ordinance, 15, 16, 17. 
 
 Passage of ordinance disapproving tbse of streets by ra/ilway 
 
 company, when final. 
 
 See Charter, 7. 
 
 CODE OF PROCEDURE OF N. Y.— 1. Plaintiff brought an 
 action for damages as assignee of one who was injured by the 
 negligence of the defendants while a passenger in their cars. 
 
 Held, that such a right of action was not assignable, even 
 though the injuries involved a breach of contract. 
 
 PtTBPLE vs. Hudson Eiver R. R. Co 175 
 
 3. The only alteration in the law made by the Code on this 
 
 subject is to enable the assignee to maintain an action in his 
 own name when the right of action is assignable in law or 
 equity Id. 
 
 3. The Code does not limit the power of assignment to 
 
 demands arising out of contract, excluding those founded on 
 torts ; but that every demand connected with a right in prop- 
 erty, which claims redress for a violation of the right, is assign- 
 able, whether the violation is a tort or a breach of contract. . . . Id. 
 
 4. This rule excludes only those torts that are strictly 
 
 personal, and that die with the person Id. 
 
 Amendments under, by adding or substituting pa/rties. 
 
 Davis vs. Mayor, etc., op New York 335 
 
 Lien of attorney for costs, not abolished by. 
 
 See Attorney and Client, 1. 
 
 COLLISION — 1. In an action by the owner of a horse and cart for 
 damages for injuries caused by a collision with a car of a rail- 
 road company, the justice charged the jury : " That if the 
 plaintiff was, in their opinion, doing his best to get out of the 
 defendants' way, it was all that could be required of him ; that 
 if he was so doing, the defendants were bound, at their peril, 
 to stop their cars to avoid collision ; and if they had not suflS- 
 cient power to do so, or if they omitted to stop their cars, they 
 were responsible for the consequences." 
 Seld, that the charge was palpably erroneous and unjust,it 
 
494 INDEX. 
 
 COLLISION — Continued. page. 
 
 being in effect, that, if neither party was in fault, the plaintiff 
 was entitled to recover. 
 
 Held, also, that the question, whether the defendants were 
 guilty of negligence, was as material as whether the plaintiff 
 was, and should have been made the primary question, instead 
 of reversing the order and telling the jury that, if the plaintiff 
 was not guilty of negligence, they must assume that the 
 defendants were. 
 Altkeutbr m. Hudson Rivbb R. K. Co 100 
 
 3. The justice, when requested, refused to charge that the 
 
 defendants had a right to travel on the left hand track of the 
 road. 
 Meld, error Id. 
 
 3. The plaintiff brought this action for damages for injuries 
 
 to himself and his horse and cart, received in a collision with 
 the cars owned by the defendants, and operated by machinery 
 through certain streets in the city of San Francisco, under a 
 license from the city council. 
 
 Held, that where the streets of a city are diverted from their 
 ordinary and legitimate uses, by special license, to a private 
 person, for his own benefit, and for the pursuit of a business 
 which involves constant risk and danger, such person is bound, 
 in the exercise of such right, to use extraordinary care. 
 
 Wn-soif m. CtOTNmGHAM lOa 
 
 4. Plaintiff was injured by being thrown out of his wagon 
 
 which collided vdth a car belonging to the New York and New 
 Haven Railroad Company, but the horses which drew the car, 
 and the driver who was driving it, were in the employ of the 
 defendants, the New York and Harlem Railroad Company. 
 
 Held, that the action was properly brought against the New 
 York and Harlem Railroad Company, the owners of the horses 
 and employers of the driver. 
 
 Weyaht m. New Yoke & Harleih R. R. Co 160' 
 
 5. The plaintiff while a passenger in the defendants' horse 
 
 car received injuries in a collision between that car and the 
 steam cars of the company, and brought this suit for damages 
 for such injuries. The judge charged the jury that if they 
 believed there was gross neglect or carelessness, or want of skill 
 on the part of the servants of the company, then it was for 
 them to assess the damages, for such an amount as they might 
 deem the circumstances of the case justified. 
 
 Held, no error. 
 
 Vabillat vs. New Okleanb & Carhollton R. R. Co 185 
 
 6. In actions of this nature much discretion must be left to 
 
INDEX. 495 
 
 COLLISION — Continued. page. 
 the jury, and. therefore a refusal to charge the jury that under 
 the circumstances they could not give damages with a view to 
 punish the defendants, or to make an example, but were only 
 to consider and assess damages sustained by the plaintiff, was 
 correct ' Id. 
 
 7. In an action for damages for injuries to the plaintiff's 
 
 carriage occasioned by the negligence of a servant of persons 
 to whom the railroad company had leased the road, it was 
 shown that the persons in the lease were denominated stewards 
 and were paid a salary. 
 
 Seld, that the company were liable. 
 
 Thompson vs. New Orleans & Oabrollton R. R. Co 189 
 
 8. Defendants' car struck plaintiff's cart as he was turning 
 
 off the track to the left. Plaintiff was thrown to the ground 
 and injured. Defendants relied upon a statute which declared 
 that when persons traveling in carriages shall meet on a road or 
 highway they shall reasonably turn their carriages to the right 
 of the centre of the road so as to pass one another. 
 
 Held, that this statute had no application to the meeting of 
 railroad cars with common vehicles, and that there was noth- 
 ing wrong in plaintiff's attempt to turn off towards the left. 
 
 HBttAN w. Eighth Avenue R. R. Co 272 
 
 9. A cart or carriage about to meet a railroad car must yield 
 
 the whole track : but there is no greater obligation to turn to 
 the right side than to the left Id. 
 
 10. In an action against a railroad company for damages for 
 
 injuries to the plaintiffs' omnibus caused by a collision between 
 the railroad cars and the omnibus, it was alleged by each party 
 that the negligence of the other was the cause of the collision, 
 and the proof tended to show that both were negligent. 
 
 Held, that if the collision and injury were caused by the con- 
 curring negligence of both parties, the plaintiffs could not 
 recover and the defendants were entitled to a verdict. 
 
 Owen vs. Htjdson River R. R. Co 275 
 
 11. On the trial the judge charged : "If the jury believe that 
 
 the brakes of the car were not in good or sufficient working 
 order, so that they were inefficient for the purpose of checking 
 the progress of the car, and if you shall be satisfied that the 
 driver of the car had time enough, after he discovered the 
 dangerous position of the stage, to have avoided the collision 
 by the application of the brakes, if they had been in good order, 
 then the plaintiffs will be entitled to recover, notwithstanding 
 the plaintiffs' driver was guilty of imprudence or carelessness 
 in getting into such a position." 
 
496 INDEX. 
 
 OOIjIalSION— Continued. page. 
 Eeld, error, that although it was negligenee for the company 
 not to have their car furnished with efficient brakes; it was the 
 negligence of the plaintiffs that concurred with the defendants' 
 negligence, that produced the injury and no recovery can be 
 had Id. 
 
 12. Plaintiff's wagon was struck by the pole of one of 
 
 defendants' cars going in the same direction, while plaintiff was 
 driving in the car track of the defendants and just as plaintiff 
 was about to turn out of the track. Plaintiff claimed not to 
 know of the near approach of the car. He was thrown out and 
 injured and his wagon was broken. 
 
 Seld, that if an individual see fit to run his carriage or 
 wagon upon the rails, he is bound to exercise more care than 
 he would in driving upon the common pavement, to avoid 
 collision. 
 
 WiLBBAND vs. EIGHTH AvENUE R. R. Co 307 
 
 13. A street railway company is entitled to the unrestricted 
 
 use of its rails, for the progress of its cars, within that limit of 
 speed which the law allows them ; and that as between them 
 and the driver of any other vehicle who may be upon their 
 track, in front of one of their cars, the latter, being unneces- 
 sarily there, must exercise more care than he would if he were 
 upon the common pavement, to see that an approaching car is 
 not impeded, and if through negligence or wilfulness on his 
 part in this respect, a collision ensues, he should not have 
 damages against the company, even if the latter are also in 
 fault , Id. 
 
 14. When a collision occurs between two vehicles upon the 
 
 public highway and the negligence of both parties concurred to 
 cause the collision, neither is liable to the other for the damages 
 resulting from such collision. 
 Owen vs. Hudson Rivbb R. R. Co 467 
 
 15. A street railroad company whose car collided with an 
 
 omnibus carelessly and negligently driven across the railroad 
 track in front of the car, is not liable for damages for the 
 injuries to the omnibus caused by the collision, from the mere 
 fact that the car was not furnished with proper brakes and 
 could not therefore be promptly stopped Id. 
 
 16. Therefore that it was erroneous for the judge to instruct 
 
 the jury that if, when the driver of the car saw the driver of 
 the omnibus attempting to cross the track, the driver of the car 
 by ordinary care could have slackened the speed of his car, if 
 tJie brakes had been in good order so as to have avoided a collision, 
 the company was liable Id. 
 
INDEX. 497 
 
 COLIjISION — Continued. faoe. 
 
 17. A street railroad company is bound to keep " the brakes 
 
 of their cars in good working order and they are bound to 
 cause them to be driven through the streets in a careful and 
 proper manner ; and if, in either particular, they are negligent, 
 they are liable to whomsoever is without any concurring fault 
 or negligence injured thereby, and only to such as are free from 
 
 such concurring fault or negligence." Id. 
 
 See also Negligence, 1-3. 
 
 COMMISSIONERS— 
 
 Diseretion of to take stock subscriptions. 
 
 See Stock Stjbscriptions, 3, 4. 
 
 COMMON COUNCIL— 1. Two street railroads in the city of 
 Chicago desired to extend their tracks and connect with one 
 another and for that purpose were about to obtain the passage 
 of an ordinance by the common council. 
 
 Held, that if their charters conferred no such power to 
 extend, etc., the common council could not confer it. 
 
 City of Chicago vs. Evans 441 
 
 Bail/road may be extended when authorized by 
 
 See Completion of Road, 1, 3 ; Extension, 1, 3. 
 
 Orant affranchise by 
 
 See Streets, 9-15, 18-33, 30, 31, 33 ; Injunction, 3-6. 
 
 COMMON COUNCIIi OF NEW YORE CITT— 1. It is pro- 
 vided by the 4th section of the act of April 3d. 1849, that 
 "neither board shall adjourn for a longer period than three 
 days, except by a resolution to be concurred in by the other 
 body." One of the boards adjourned without the concurrence 
 of the other from the 4th to the 8th of November, The 7th of 
 November was Sunday. 
 
 Eeld, not an adjournment for more than three days. 
 
 MiLHAU m. Shakp 58 
 
 3. The legislature has no power to establish a railroad in a 
 
 street in New York City without the assent of the corporation, 
 except upon the ground of public necessity and it must then 
 provide for compensation for a surrender of a right in property. 
 Hope m. Sixth & Eighth Avenue E. R. Co.s 179 
 
 3. The common council of the city of New York possesses 
 
 the power of granting licenses to establish railroads in said city 
 providing the right to annul the power is reserved Id. 
 
 4. The grants to the Sixth Avenue Railroad Company and 
 
 the Eighth Avenue Railroad Company are not liable to the 
 objections that caused the grant to the Broadway Railroad Com- 
 pany to be declared void. Id. 
 
498 INDEX. 
 
 COMMON COUNCIL OF NEW YORK CITY— Continued, page. 
 
 5. It is the practice of all legislative bodies consisting of two 
 
 branches, that all business unfinished at the end of a session is 
 discontinued and at their next meeting is to be taken up de novo, 
 if taken up at all. 
 
 Held, that this rule of action must govern and control the 
 common council of New York in their legislative proceedings, 
 and that therefore, a resolution adopted by the board of assist- 
 ant aldermen in 1853, and by the board of aldermen in 1853, 
 was void. 
 
 Held, that the resolution having been adopted by but a single 
 board during the existence of any one common council, was 
 not at any time the act of the entire body and was neither a 
 grant, license nor resolution and was, therefore, not confirmed 
 by the " peace act " of April 4, 1854 
 
 Wetmokb vs. Stokt 200 
 
 Authority of, to grant right to construct railway in streets. 
 
 Davis vs. Ma yob, etc., of New York 335 
 
 Ordinance of, forbidding use of steam on certain streets held 
 
 valid. 
 
 New Yobk & Harlem R. R. Co. vs. Mayor, etc., of 
 NewYobk 283 
 
 COMMON FLEAS OF PHILADELPHIA, COURT OF— 
 
 Power of to interfere ly injunction. 
 
 See Injunction, 11, 13. 
 
 COMPLETION OF ROAD— 1. An extension of the Harlem 
 Railroad, authorized by the act of 1832, maybe made whenever 
 the common council think proper to authorize it. 
 Hamilton vs. New York & Hablem R. R. Co 1 
 
 3. The restriction upon the company by the original act, as 
 
 to the time of completing its road, which time was extended by 
 subsequent acts, applied only to the road as originally author- 
 ized Id. 
 
 3. Where a city railroad company has entered into a contract 
 
 with the city to do a certain act upon the completion of their 
 road, the court has power to compel the company to complete 
 the road. 
 Maetin vs. Second & Third St. Pass. Ry. Co 358 
 
 CONDITIONS— 
 
 In deeds. 
 
 See Deeds, 3, 3. 
 
 In act of incorporation as to purchase of omnibus lines before 
 
 railwa/y company may use streets. 
 
 See Charter, 1-5. 
 
INDIJX. 499 
 
 PAGE. 
 
 CONSTITUTION — 1. No corporation municipal or otherwise pos- 
 sesses any powers except such as have been granted to it, and 
 no state can grant to a corporation power to do that which it 
 cannot constitutionally do itself. 
 
 AtTOBNBT GENBKiL, ETC., VS. MATOR, ETC., OF N. Y 183 
 
 3. The legislative power of a corporation is not only restrict- 
 ed by the constitutional and statute law of the state, but also 
 by the general principles and policy of the- common law as 
 accepted there Id. 
 
 3. When the grantees accepted a resolution in the mode pre- 
 scribed, after it was duly passed by the common council of the 
 city of New York, it was not a law or ordinance to be repealed 
 at the pleasure of the city, but a contract, and could not be 
 revoked, under the clause of the Constitution of the United 
 States which prohibits every state legislature from passing any 
 
 law, which impairs the obligation of contracts. . , Id. 
 
 See also Eminent Domain, 1. 
 
 CONTEMPT— 1. The legislative action of a municipal corpora- 
 tion cannot be restrained by injunction. And a common coun- 
 cil, in granting permission to lay a railway track in a city 
 street, although forbidden to do so by an injunction, will not 
 be guilty of a criminal contempt. The grant will not be void 
 because made in defiance of the injunction. 
 MiLHATi vs. Sharp 58 
 
 CONTRACT— 
 
 Against public policy. 
 
 1. A contract entered into between certain individuals and 
 
 the original projectors of a railroad, to quiet and withdraw op- 
 position to the passage of its charter through the legislature of 
 the state, will not be enforced in a court of equity. 
 
 Martin m. Second & Third St. Pass. Rt. Co 358 
 
 Bight of election under, once exercised, exhausted. 
 
 See Chaster, 7. 
 
 CORPORATION — 1. No corporation municipal or otherwise 
 possesses any powers except such as have been granted to 
 it, and no state can grant to a corporation power to do that 
 which it cannot constitutionally do itself. 
 Attorney General, etc., vs. Matok, etc., of N. Y 133 
 
 8. The legislative power of a corporation is not only 
 
 restricted by the constitutional and statute law of the state, but 
 also by the general principles and policy of the common law as 
 accepted there Id. 
 
500 ind:ex. 
 
 CORPORATION— Continued. page. 
 
 3. "Wrongs sustained by corporators by the mismanagement 
 
 of their corporate funds or property, by their ofiBcers, are pri- 
 vate wrongs. 
 Wetmorb «s. Stoky 200 
 
 4. Corporations, like individuals, may be bound by implied 
 
 contracts, provided the acts contemplated thereby are within 
 the scope of corporate authority. 
 New York & Harlem R. R Co. vs. Mayor, etc., of N.Y 383 
 
 StocKholders of, as witnesses. 
 
 See Witness, 2, 3. 
 
 Of city, power of 
 
 See Ordinance, 15, 16, 17. 
 
 Liable upon covenants in a lease made before incorporation. 
 
 See Leabb, 3. 
 
 COSTS— 1. All the proceedings on the part of the plaintiff in an 
 action will be stayed until the costs of a previous action brought 
 for the same cause are paid, and also the costs of the motion to 
 stay. 
 Edwards vs. Ninth Avenue R. R. Co 433 
 
 3. A settlement of an action made by the parties before trial 
 
 is valid providing the attorney has not served the adverse party 
 with notice forbidding a settlement without him, and it was 
 made without any design to deprive the attorney of his costs. 
 McDowell vs. Second Av. R. R. Co 447 
 
 '8. A judgment entered by the attorney after notice of such 
 
 a settlement, will be set aside on motion Id. 
 
 Lien of attorney for 
 
 See Attorney and Client, 1. 
 
 COURTS OP SISTER STATES— 1. The decisions of the coiurts 
 of sister states have no binding force as precedents on the 
 courts of this state, but are only to be followed when the rea- 
 sons and authorities given, receive the assent of the courts of 
 this state. 
 Johnson vs. Hudson River R. R. Co 191 
 
 COVENANTS— 
 
 In deeds. 
 
 See Deeds, 3. 3. 
 
 CROSS-EXAMINATION— 1. A corporation cannot offer its stock- 
 holders as witnesses ; but those opposing may, and when once 
 admitted they may be cross-examined, and give evidence in 
 favor of, as well as against their interests, on points as to which 
 they are called to testify. 
 Hart vs. New Orleans & Carrollton R. R. Co 4 
 
INDEX. 501 
 
 PA&E. 
 
 DAMAGES — 1. The plaintiff brouglit an action for loss of ser- 
 vice of his son, who had been run over by one of defendants' 
 horse cars. No claim for prospective or probable future loss of 
 service was made in the declaration. 
 
 Held, that the plaintiff's recovery was confined to loss of ser- 
 vice before suit brought, together with reasonable compensation 
 for the expenses incurred and care bestowed by himself and 
 servants during the illness of the child. 
 GiLLiGAN m. New York & Harlem R. R, Co 48 
 
 3. In an action by the boy himself, an averment for damages 
 
 for future continued disability occasioned by the wrong, would 
 be unnecessary, for in such an action, the injury to his person is 
 the gravarmn of the action, but in an action by the parent, loss 
 of service is the gist of the action, the injury to the person the 
 cause only of the loss, and to allow him to recover for a loss of 
 service in nowise alleged, would be a plain violation of the rule, 
 that a party can only recover secundum allegata Id. 
 
 3. An action was brought under the law of 1847, amended 
 
 in 1849, which provides that an action may be maintained and 
 damages recovered whenever a case occurs in which, if death 
 had not ensued, the injured party could have maintained an 
 action ; the principle of liability on the part of the defendant is 
 the same. 
 
 Beld, that it is not necessary for a recovery, that any actual 
 pecuniary loss should be proven ; mere proof of the death, and 
 that it was occasioned by the defendants' negligence, is suffi- 
 cient. 
 
 Oldpield vs. New York & Harlem R. R. Co 168 
 
 4. The amended second section of the act, limited the 
 
 recovery to $5,000, and provides " that the jury may give such 
 damages as they may deem a fair and just compensation with 
 reference to the pecuniary injuries, resulting from such death, 
 to the wife and next of kin of the deceased person." 
 
 Held, that the statute was intended to give damages for pros- 
 pective losses, and not for what could be proven ; and that these 
 damages were to be determined by the jury, after they had 
 before them all the facts and circumstances of the case Id. ' 
 
 5. The verdict of the jury for $1,300, in this action brought 
 
 by an administrator for the benefit of the mother of the child, 
 held to be not excessive ; Id. 
 
 6. On the question of damages the judge charged that the 
 
 "deceased was a young man in good health and the probable 
 continuance of his life was at least twenty years." It was in 
 evidence that he was between thirty and forty years of age. 
 Held, no error, that this was a matter of experience, and it 
 33 
 
502 INDEX. 
 
 HABHAOtS^^— Continued. page. 
 was proper for tbe judge to instruct the jury concerning the 
 expectation of human life. 
 JoHNBOK m. Hudson Riveb R. R. Co 254 
 
 To private property. 
 
 See Eminent Domain, 1. 
 Puriitim damages. 
 
 See Negligence, 16, 17. 
 When not allowed for consequential injury. 
 
 See Nuisance, 5, 6. 
 In action for causing death. 
 
 See Negligence, 22, 23. 
 
 See also Veedict, 1. 
 
 DEATH— 
 
 Action for causing. 
 
 See Statutes, 1-4 ; Negligence, 19-23, 27-29, 32-37. 
 
 DEEDS — 1. Property hounded by streets in general terms, in 
 deeds, carries the title to the centre of the streets, providing the 
 vendor had the title to the centre. 
 Wbtmobe vs. Stout 200 
 
 2. The owner of a tract of land laid it out in lots for dwell- 
 ings and conveyed a lot by a deed, which restricted the manner 
 in which the land granted should be used. The restrictions 
 were beneficial to the adjacent land of the grantor. 
 
 Seld, that the restrictions could be enforced in equity against 
 the assigns of the grantee, who had notice of the restrictions, as 
 well as against the grantee, and whether they were in the form 
 of conditions or covenants or any other form, provided they 
 were not against public policy. 
 Whitney vs. Union Rt. Co 433 
 
 3. The restrictions contained in a deed were as follows : 
 
 " That if the grantee, his heirs or assigns, shall use or follow, 
 or suffer any person to use or follow, upon any part thereof, 
 the business of a tavemer, or any mechanical or manufacturing, 
 or any nauseous or offensive business whatever, then the grant- 
 ors, or any person or persons at any time hereafter, who at the 
 time then being shall be a proprietor of any lot of land " of the 
 tract described, " shall have the right, after sixty days' notice 
 thereof, to enter upon the premises and forcibly, if necessary, to 
 remove therefrom any buildings erected or used contrary to the 
 above restrictions and to abate all nuisances." 
 
 H^d, that the record of the deed was notice to a street rail- 
 way company that had purchased a lot from a grantee of the 
 owner of the tract, and such restrictions could be enforced in 
 equity by such owner who continued to own one of the lots and 
 was not guilty of laches, to prevent the erection of a stable 
 
INDEX. 503 
 
 HEEDS— Oontinued. page. 
 by such railway company ; but that a stable already erected by 
 the grantee with the knowledge of the original grantor could 
 not be abated Id. 
 
 DRIVER— 
 
 Of horse car on. Sunday is performing worldly em/ployrmnt 
 
 within statute. 
 
 See Sunday, 2-6. 
 ' See also Negligbnce, 1, 3, 13 ; Cab, 1 ; Collision, 7, 10, 
 11, 14-17 ; EviDBKCB, 16, 17. 
 
 EASEMEiNT — 1. A charter is a mere easement and not a grant of 
 fee simple in the soil, and the legislature has full power to 
 grant as many more easements, on the same territory, as public 
 convenience may require, always making indemnity for dam- 
 age done to those corporations which were the first objects of 
 its bounty, or the recipients of antecedent grants. 
 In KB Citizens' Pass. Ry. Co 376 
 
 EMINENT DOMAIN— 1. The Hudson River Railroad Com- 
 pany was authorized and empowered by acts of the legislature 
 (Laws of 1846, chapter 216, amended by Laws of 1848, chapter 
 30), to construct a railroad, between the cities of New York and 
 Albany, commencing in the city of New York, with the con- 
 sent of the corporation of that city, and to transport, take, or 
 carry any property and persons upon the same,, by the power 
 and force of steam, of animals, or of any mechanical or other 
 power, or of any combination of them. The act atthorized 
 the location of the railroad on any of the streets or avenues of 
 the city of New York, westerly of and including Eighth 
 avenue, and on or westerly of Hudson street, provided the 
 assent of the corporation of said city was first obtained for such 
 location. The company, with the assent of the corporation of 
 the city, located their railroad on and through certain streets 
 and avenues within the limits mentioned in the act, and after- 
 wards applied for and obtained permission from the corporation, 
 to lay down a double track of rails, with suitable curves and 
 turnouts, from the northerly line of Canal street, at West street, 
 through Canal ' and Hudson streets to Chambers street. The 
 plaintiffs applied for an injunction to restrain the company from 
 laying their rails in those streets and using the same for railroad 
 purposes, and as grounds for their application alleged that they 
 were owners of property on the streets mentioned ; that the con- 
 struction of the railroad through those streets was unauthorized 
 by law ; that it interfered with the free and full use of the 
 streets ; that it injuriously affected their property and business 
 interests ; that it was a nuisance to them ; impaired the value of 
 lots fronting on said streets ; endangered the safety of life ; 
 
504 INDEX. 
 
 EMINENT HOmAXN—Gontinued. page. 
 
 and that real estate had been taken from them by the railroad 
 company without compensation having previously been made. 
 
 Held, that it is a rule of universal application, engrafted in 
 the Constitution of the State, that private property of any des- 
 cription cannot be taken for public use, without full and ample 
 compensation to those who suffer or are injured thereby. 
 
 Dbake m. Hudson River R. R. Co 10 
 
 3. But in carrying out the principle, while lands are not to be 
 
 taken for public improvements, nor injuriously affected by 
 them without just and adequate compensation first being made; 
 yet desirable and useful public improvements are not to be sup- 
 pressed, simply because they may occasion to property in their 
 vicinity some contingent or consequential damage Id. 
 
 3. For this damage, when it occurs, the party aggrieved has 
 
 a remedy by action at law, and by a repetition of such action, 
 during the continuance of the grievance, whenever and as often 
 as loss or damage ensues Id. 
 
 4. And, in the present case, if the railroad or its operation 
 
 should become a nuisance, or the aggression should prove to be 
 permanent and without an adequate remedy by action, the 
 supreme 'court will be competent to administer its equitable 
 relief by injunction, to prevent its continuance, or for its 
 removal Id. 
 
 5. But there must be a much stronger case than the one pre- 
 sented, and the impending danger more imminent and more 
 impressive, to justify the issuing of an injunction as a precau- 
 tionary and preventive rernedy Id. 
 
 6. Where no private property is taken by the railroad com- 
 pany for the purposes of the road, but it is claimed that the < 
 property is, and will be injuriously affected by erections made, 
 and to be made and used by the company in its vicinity, the 
 owners have no claim to have their damages ascertained and 
 paid for, before such erections shall be constructed and used ... Id. 
 
 7. The use of a street for a railway, whether the fee of 
 
 the street is in the adjoining owners or not, is not a " taking " 
 of private property for public use, within the meaning of the 
 constitutional prohibition. The damages to the private prop- 
 erty are not direct but consequential. 
 Fattst iia. Second & Thibd St. Pass. Rt. Co 312 
 
 8. The legislature may invest a corporate body or individual 
 
 with the privilege of taking private property for public use, 
 upon compensation being made or adequate security given, 
 before the property is taken. And the principle operates upon 
 the property of coi-porations with equal force as upon that of 
 individuals. 
 In re Citizens' Pass. Rt. Co 376 
 
INDEX. 505 
 
 EMINENT JiOW.AlN— Continued. page. 
 
 9. The sale of rigkt of way in streets to railway companies 
 
 is not an alienation or appropriation of a portion of the puhlic 
 streets for private uses. 
 Brown vs. Duplessis 404 
 
 10. A company was duly authorized to lay and use a horse 
 
 railroad track in a public street in a city : 
 
 Held, that such authority was not a new servitude imposed 
 upon the land, for which the owners of the fee were entitled to 
 compensation, but that it was only another way of using the 
 highway by the public. 
 
 Elliott vs. Fair Haven & W. R. B. Co 473 
 
 EQUITY — 1. The owner of a tract of land laid it out in lots for 
 dwellings and conveyed a lot by a deed, which restricted the 
 manner in which the land granted should be used. The restric- 
 tions were beneficial to the adjacent land of the grantor. . 
 
 Hdd, that the restrictions could be enforced in equity against ' 
 the assigns of the grantee, who had notice of the restrictions, as 
 well as against the grantee, and whether they were in the form 
 of conditions or covenants or any other form, provided they 
 were not against public policy. 
 Whitney vs. Union Rt. Co 433 
 
 EVIDENCE — 1. The plaintiflE brought an action for damages for 
 the destruction of his carriage, caused by the negligence of the 
 driver of an omnibus, alleged to belong to defendants ; and on 
 the trial the latter offered to prove, under their plea of general 
 denial, that the omnibus had been leased by them to a third 
 person, at the time of the accident. The evidence was excluded . 
 
 Held, error, that as the liability of the defendants depended, 
 not upon the ownership of the omnibus, but on the fact that 
 the accident was caused by their servant, they should have 
 been allowed to prove that the omnibus was under the exclu- 
 sive control of the lessees of the railroad, who alone employed 
 the drivers, and that such evidence was admissible under the 
 plea of general denial. 
 
 Hart vs. New Orleans & Carrollton H. R. Co 8 
 
 — ^ 3. A railroad company duly authorized to lay its track in one 
 of the streets of the city, is not liable, for accidents which may 
 occur by reason thereof, unless there was negligence or want of 
 skill in the manner of laying the rails or in maintaining the 
 same. 
 Mazetti vs. New York & Harlem R. R. Co ' 163 
 
 3. And in order to maintain an action by one who was exer- 
 cising the common right of passing over the street, for injuries 
 received, proof of such negligence or want of care or skill in 
 
506 INDEX. 
 
 XSVIDENCE— Continued. page. 
 the manner of constructing or maintaining the track, is neces- 
 sary •. Id. 
 
 4. The court will not set aside the report of a referee upon 
 
 the facts, even though after readmg the evidence, the court Is 
 of the opinion that it would have found differently, unless the 
 finding of the referee is so plainly against the weight of evi- 
 dence, or is so far without evidence in its support, as to warrant 
 the presumption of partiality or bad faith on his part or unfair- 
 ness or mistake in his application of some rule of law Id. 
 
 5. Thecomplaint charged, that the defendants by the wrong- 
 ful act, negligence and default of themselves and their agents 
 and servants, ran over a child and caused her death. 
 
 ffeld. that evidence could be introduced under this clause, to 
 show the defective construction of the car that tended to occa- 
 sion the accident, as well as carelessness on the part of the 
 driver of the car and others, in its management. 
 
 Oldpield vs. New Yobk & Haklem R. R. Co 168 
 
 6. An action was brought under the law of 1847, amended 
 
 in 1849, which provides that the action may be maintained and 
 damages recovered whenever a case occvurs in which, if death 
 had not ensued, the injured party could have maintained an 
 action ; the principle of liability on the part of the defendant 
 is the same. 
 
 Held, that it is not necessary for a recovery, that any actual 
 pecuniary loss should be proven ; mei-e proof of the death, and 
 that it was occasioned by the defendants' negligence, is suffi- 
 cient Id. 
 
 7. The amended second section of the act, limited the recov- 
 ery to $5,000, and provides " that the jury may give such 
 damages as they may deem a fair and just compensation with 
 reference to the pecuniary injuries, resulting from such death, 
 to the wife and next of kin of the deceased person. " 
 
 Held, that the statute was intended to give damages for pro- 
 spective losses and not for what could be proven ; and that these 
 damages were to be determined by the jury, after they had 
 before them all the facts and circumstances of the case Id. 
 
 8. The rule of evidence, which casts the burden of proof 
 
 upon the party who maintains the affirmative, should admit of 
 no exception unless established by precedents that the court is 
 bound to follow, 
 Johnson i>8. Htjdson Riter R. R. Co 191 
 
 — 9. The decisions of the courts of sister states have no binding 
 force as precedents on the courts of this state, but are only to 
 be followed when the reasons and authorities given, receive the 
 assent of the courts of this state Id. 
 
INDEX. 507 
 
 EVIDENCE! — Oontmued. page. 
 
 10. The question whether the plaintiff's evidence was suffl- 
 
 . cient to warrant the inference that there was a want of ordinary 
 care on the part of the deceased, was for the jury alone to 
 determine '. Id. 
 
 11. In order to maintain a suit for an injunction to restrain 
 
 the placing of a railroad in a city street on the ground that 
 plaintiffs would sustain special injury because it wotild 
 obstruct access to their lots, an allegation of such special Injury 
 in the complaint is required. But no motion, having heen made 
 to reform the complaint and no objection being taken on the trial, 
 to the introduction of evidence tending to show such injury, 
 the defect will be considered as having been waived. 
 Wetmork vs. Story 300 
 
 12. Plaintiff as administrator of a child, between six and 
 
 seven years of age, who was run over and killed by one of the 
 defendants' cars, brought this action under Laws of 1847, 
 amended in 1849, to recover damages for the death of the child. 
 
 Held, that in order to sustain the action, it was not necessary 
 for the plaintiff to prove that any pecuniary or special damage 
 had been sustained by the mother of the child, in consequence 
 of its death. 
 
 Oldfibld vs. New York & Harlem R. K. Co 234 
 
 13 The complaint averred that the death was caused by the 
 
 negligence and default of the defendants and their agents and 
 servants. 
 
 Held, that a question respecting the construction of the car 
 was admissible in order to prove negligence on the part of the 
 defendants Jd. 
 
 14. The manner in which the deceased was found on the 
 
 track, without any explanation as to how he got there, was not 
 priinafoAiie evidence of negligence on his part. 
 Johnson vs. Hudbon River R. R. Co 354 
 
 15. On the question of damages the judge charged that the 
 
 " deceased was a young man in good health and the probable 
 continuance of his life was at least twenty years." It was in 
 evidence that he was between thirty and forty years of age. 
 
 Held, no error, that this was a matter of experience, and it 
 was proper for the judge to instruct the jury concerning the 
 expectation of human life Id. 
 
 16. A policeman who arrested the driver of a car that had 
 
 run against a woman, was allowed to testify as to the arrest, in 
 an action against the employer of the driver, for negligence. 
 Held, that the evidence was inadmissible. 
 LuBT vs. Hudson River R. R. Co 279 
 
508 INDEX. 
 
 HVinHNCE— Continued. page. 
 
 17, After the arrest, but before leaving the car, the driver in 
 
 answer to the policeman's inquiry why he did not stop the car, 
 stated that the brakes were out of order. 
 
 Seld, to be mere hearsay and not admissible in evidence , 
 against the driver's employer. Id. 
 
 18. Plaintiff's intestate was seen lying across the defendants' 
 
 track, and while there, was run over by their horse cars and 
 killed. How he came there was not known ; but about five 
 , minutes before the accident he had left a saloon seemingly 
 Intoxicated, and it was supposed that he had stumbled and fell 
 on the track. 
 
 Held, also, that the burden was upon the plaintiff to prove 
 aflSrmatively, that the deceased was guiltless of any negligence 
 proximately contributing to the accident. 
 
 Button w. Htjdson RrvBB E. R. Co 331 
 
 19. In actions of this kind negligence is not to be presumed ; 
 
 and direct evidence to disprove it is not required from the plaint- 
 iff, in the first instance ; but where the testimony is conflicting 
 as to the fact, the preponderance must be with the plaintiff, to 
 enable him to recover Id. 
 
 20. It is not a rule of law of universal application that in 
 
 suits for damages for personal injuries, the plaintiff must prove 
 affirmatively freedom from negligence, or that the defendant in 
 order to establish his defense, must prove the contrary ; that 
 the character of the defendants' negligence may be such as 
 to prove prifna facie, the whole issue, or it may be such as to- 
 make it necessary for the plaintiff to show, by independent evi- 
 dence, that he himself was not guilty of negligence. 
 Johnson ve. Hudson River R. R. Co 393 
 
 21. In this class of cases, to caiTy a case to the jury, the evi- 
 dence on the part of the plaintiff must be such, as, if believed, 
 would authorize them to find that the injury was occasioned 
 solely by the negligence of the defendant Id. 
 
 Ownership of omnibus. 
 
 See Omnibus, 1 ; Public Reputation, 1. 
 Stockholders, when may be witnesses. 
 
 See Witness, 2, 3. 
 -ISuperintendeni's powers do not authorize employment of phy- 
 sician. 
 
 See Physician, 1. 
 
 Presumption is that person killed had same regard for his 
 
 safety as other men. 
 
 See Negligence, 82. 
 When verdict should beset aside when contrary to evidence. 
 
 See Negligence, 38. 
 
INDEX. 509 
 
 PAGE. 
 
 EXCEPTION — 1. Objections to a judge's charge should be specifi- 
 cally taken, and where a number of propositions are stated, 
 some of which are unquestionably correct and the exception is 
 general to all, there is no question for review on appeal. 
 
 Held, therefore, that the only exception taken by defendants 
 being, " to all that partof the judge's charge which related to 
 the amount of damages," it was within the rule, and the court 
 could not consider whether the damages were excessive or the 
 verdict against the weight of evidence. 
 
 Oldfibld ot. New York & Harlem R. R. Co 224 
 
 EXTENSION— 1. An extension of the Harlem Railroad, author- 
 ized by the act of 1832, may be made whenever the common 
 council think proper to authorize it. 
 Hamilton ot. New York & Harlem R. R. Co 1 
 
 2. The restriction upon the company by the original act, as 
 
 to the time of completing its road, which time was extended by 
 subsequent acts, applied only to the road as originally author- 
 ized Id. 
 
 3. Two street railroads in the city of Chicago desired to 
 
 extend their tracks and connect with one another and for that 
 purpose were about to obtain the passage of an ordinance by the 
 common council. 
 
 &ld, that if their charters conferred no such power to extend, 
 etc.; the common council could not confer it. 
 
 City op Chicago ®«. Evans - 441 
 
 FARE, RATES OF— 1. Although the legislature has declared 
 that the corporation shall have the power and authority from 
 time to time, to regulate the rates of fare to be charged for the 
 carriage of persons,, the corporation has no power to stipulate in 
 a resolution passed by them, that the power shall never be exer- 
 cised in respect to the carriages to be employed on a railroad, 
 authorized to be constructed by such resolution, but that such 
 grantees may continue to demand a certain specified sum, as 
 that would be invading the legislative power of their successors. 
 MiLHAU ««. Sharp Ill 
 
 FRANCHISE — 1. The exclusive privilege of laying a rail track 
 and running cars, and receiving pecuniary emolument there- 
 from, like the franchise of , a bridge or ferry, or other incor- 
 poreal hereditament, is as much a subject of property as the 
 park or the city hall, or the moneyed contents of the city 
 treasury. Per Roosevelt, J. 
 Stuyvesant m. Pbarsall 98 
 
 2. To grant such a privilege to a few favored individuals, 
 
 without any public equivalent, was a gross breach of trust, and 
 
510 INDEX. . 
 
 TRANCHIBE— Continued. page. 
 subject, as such to the jurisdiction of the supreme court, sitting 
 as a court of equity. Per Koosevblt, J Id^ 
 
 3. A compliance with the prescribed conditions in a charter 
 
 ■which were, that the railroad company should enter into an 
 obligation to obey and submit to all regulations " in force and 
 thereafter to be passed," by the councils, was not a relinquish- 
 ment of any of the franchises conferred by the act of assembly 
 upon the railroad company, as it would be a legal impossibility 
 for the councils to pass any ordinance inconsistent with the 
 exercise of the corporate rights of the railroad company. 
 Faust m. Second & Thikd St. Pass. Ry. Co 310 
 
 4. The grant of the franchise of a ferry, bridge, turnpike or 
 
 railroad is not in its nature exclusive, so that the state cannot 
 interfere with it by the creation of another similar franchise, 
 tending materially to impair its value. 
 In re Citizens' Pass. Rt. Co STft 
 
 5. Charters granted to private corporations are contracts, 
 
 and as no law is valid which Impairs the obligation of a con- 
 tract, a legislative act which attempts to take away or impair 
 any of the essential franchises of a corporation is to that extent 
 unconstitutional and void. 
 
 Second & Thtrd St. Pass. Rt. Co. vs. Green & Coatbs St. 
 Pass. Rt. Co 41& 
 
 By corporation of the city of New York to use streets. 
 
 See Streets, 9-15, 18-33, 30-33; Injunction, 3-6; Grant, 
 1-8. 
 
 Ordinance of common council of New York City forbidding 
 
 use of steam cars on streets — not a violation of franchise. 
 
 N. Y. & H. R. R. Co. vs. Mayor, etc., op N. Y 383 
 
 OR ANT — 1. A resolution consisting of fifteen sections was passed 
 by a majority of the votes of each of the two boards, which 
 formed the common council of the city of New York. The 
 resolution granted to Jacob Sharp and others, the right, on cer- 
 tain terms and conditions therein specified, to construct and 
 operate a railroad in Broadway for the purpose of carrying pas- 
 sengers, no time limit being mentioned. It was vetoed by the 
 mayor, and an Injunction was granted by the Superior Court of 
 the City of New York, enjoining the repassage of the resolution 
 or making the grant by the Mayor, Aldermen and Commonalty 
 of the City of New York. Notwithstanding the mayor's veto 
 and the injunction, the resolution was repassed by the required 
 vote of each board of the common coimcil and was accepted in 
 writing by those to whom the grant was made, and in the form 
 the resolution prescribed. 
 
INDEX. 511 
 
 GRANT — Continued. page. 
 
 Held, that a grant of the powers, privileges, and immunities, 
 conferred by the resohition in question, is the grant of a fran- 
 chise; and if the municipal' corporation of this city was incom- 
 petent to make the grant, the making of it was a usurpation of 
 power which can lawfully be exercised by the legislature of the 
 state only. 
 
 Att't Gen., etc., of N. Y. vs. Mayor, etc., op N. T 122: 
 
 2. That neither of the city charters, nor any statute of the 
 
 state, confers any such power in express terms. That the 
 implication of such a power is not necessary to the exercise of 
 any power expressly granted or in order to properly perform 
 any lawful duty Id. 
 
 3. That no corporation municipal or otherwise possesses any 
 
 powers except such as have been granted to it, and no state can 
 grant to a corporation power to do that which it cannot con- 
 stitutionally do itself _. . . Id. 
 
 4. That the legislative power of a corporation is not only 
 
 restricted by the constitutional and statute law of the state, but 
 also by the general principles and policy of the common law 
 as accepted there Id. 
 
 5. That when the grantees accepted the resolution in the 
 
 mode prescribed, after it was duly passed by the common coun- 
 cil it was not a law or ordinance to be repealed at the pleasure 
 of the city, but a contract, and could not be revoked, under the 
 clause Qf the Constitution of the United States which prohibits 
 every state legislature from passing any law, which impairs the 
 obligation of contracts , ig. 
 
 6. That there being no power reserved in it to rescind or 
 
 modify it, so long as its conditions and provisions were com- 
 plied with, the corporation would be incompetent to repeal it at 
 its mere will and pleasure, so as to divest any rights of property • 
 acquired by the grantees under it Id. 
 
 — — 7. That the resolution is void on the grounds : 
 
 1. That it grants a franchise, which the common council 
 has no authority to grant. 
 
 2. The grant, by the meaning and legal import of its terms, 
 may be perpetual. 
 
 3. The grant is, in judgment of law, a contract between 
 the corporation and the grantees, and in its legal import, 
 restricts the corporation in the future exercise of its legis- 
 lative powers. 
 
 4. It confers upon the grantees and their associates exclu- 
 sive privileges to a partial use of Broadway, which may be of 
 perpetual duration. 
 
512 INDEX. 
 
 GRANT— Continued. page. 
 
 5. It absolves them from an obligation imposed on ihem 
 by a statute of the state (^ B. L. 4^^, sec. 198.) 
 
 6. It confers rights, and exempts the associates from con- 
 sequences in the event of the death of one of their number, 
 repugnant to, and conflicting with, the settled law of the 
 state. 
 
 7. It authorizes the grantees and associates to become incor- 
 porated at any time, under the general railroad act, although 
 the road may have been previously constructed, and whatever 
 may be their number at the time, while the act itself does not 
 allow an incorporation after a road shall have been built, nor 
 of a less number than twenty-flve persons. 
 
 8. It makes a contract, which the common council has 
 been prohibited from making, by the amended charter of 
 1849 , Id. 
 
 8. The attempt to make a grant conferring such privileges 
 
 and immunities, without lawful authority, was a usurpation of 
 power, and the illegal exercise of a franchise, and was void ; 
 and the grantees were properly, perpetually enjoined Id. 
 
 9. When a grant is by an act of legislation, and not by indi- 
 viduals, pursuant to it, a seal is unnecessary. 
 Wetmohe vs. Stokt 200 
 
 10. The grant of the franchise of a ferry, bridge, turnpike 
 
 or railroad is not in its nature exclusive, so that the state cannot 
 interfere with it by the creation of another similar franchise, 
 tending materially to impair its value. 
 
 In be Citizens' Pass. Rt. Co 376 
 
 By Oorporation of City of New York to lue streets. 
 
 See Streets, 9-15, 18-33, 30-33 ; Injunction, 3-6. 
 
 HIGHWAYS— 
 
 In the country. 
 
 See Stkbets, 10, 11, 37, 35. 
 
 HORSES- 
 
 Vicious temper of. 
 
 See Negligence, 1 ; Collision, 4. 
 Ownership of. 
 
 See Ownership, 1-4. 
 
 r Action for damages, caused by alleged mismanagement of 
 
 hories, driven through streets after being detached from car. 
 
 See Negligence, 38. 
 
 INJUNCTION — 1. The defendants obtained a grant from the com- 
 mon council of the city of New York by which authority was 
 given to lay railroad tracks in Broadway. The terms were not 
 as advantageous to the city as others offered. 
 
INDEX. 513 
 
 INJUNCTION— Cora*i?it<ec?. pagb. 
 
 Meld, that tie corporation, in making the grant in question, 
 was guilty of a clear breach of trust ; anS that the court was 
 bound to prevent the grant thus illegally made from being car- 
 ried into effect. 
 
 Held, also, that the plaintiffs, as owners of property and tax- 
 payers had such an interest in preventing the grant from being 
 carried into effect that they had a right to institute this suit in 
 their own names, and that an injunction should be issued 
 against the defendants in pursuance of the prayer of the com- 
 plaint. 
 
 MiLHAu vs. Shabp 58 
 
 3. The legislative action of a municipal corporation cannot 
 
 be restrained by injunction. And a common council, in grant- 
 ing permission to lay a railway track in a city street, 
 although forbidden to do so by injunction, will not be guilty of 
 a criminal contempt. The grant wiU not be void because made 
 in defiance of the injunction Id. 
 
 3. The complaint in this case alleged that the common 
 
 council of the city of New York, had granted to the defendants 
 the permission to construct a railroad, commencing on the 
 Second avenue and thence running through other avenues and 
 streets of said city ; that the grant was of great value ; that it 
 was obtained by the defendants without their paying anything 
 therefor to the city ; that if the same had been offered for sale, 
 or if the railroad had been made by the corporation and opera- 
 ted for the benefit of the city, such sale, or operation by the 
 city would have produced large profits and returns to the cor- 
 poration. These allegations were not denied. It was admitted 
 that the plaintiffs were property holders and taxpayers in the 
 city to a large amount. 
 
 Beld, that the corporation in making the grant in question 
 had been guilty of such a breach of trust, as called for the 
 interposition of this court, and that an injunction should be 
 issued restraining defendants from constructing the road. 
 
 Stutvesaht m. Peaesall : 98 
 
 4. The exclusive privilege of laying a rail track and running 
 
 cars, and receiving pecuniary emolument therefrom, like the 
 franchise of a bridge or ferry, or other incorporeal heredita- 
 ment, is as much a subject of property as the park or the city 
 hall, or the moneyed contents of the city treasury. Per Roose 
 
 TELT, J , Id. 
 
 5. To grant such a privilege to 'k few favored individuals, 
 
 without any public equivalent, was a gross breach of trust, 
 and subject, as such to the jurisdiction of the supreme court, 
 sitting as a court of equity. Per Roosbvblt, J Id. 
 
514 INDEX. 
 
 INJUNCTION— Continued. page. 
 6. It was the duty of the court on the complaint of a tax- 
 payer, to restrain the making of such a grant, by injunction, 
 and where already made, to declare it null and void. Per 
 Roosevelt, <f Id. 
 
 7. Where an act is clearly illegal, and the necessary effect 
 
 of such act is to injure the property of another, the court is 
 warranted in restraining the illegal act by injunction. 
 MiLHAu vs. Sharp Ill 
 
 8. An injunction will not be granted to the owners of the 
 
 soil of a city street to protect their interest therein, as such 
 interest is merely of nominal value. 
 Wbtmore vs. Story 200 
 
 9. In order to maintain a suit for an injunction to restrain 
 
 the placing of a railroad in a city street on the ground that 
 plaintiffs would sustain spenial injury because it would 
 obstruct access to their lots, an allegation of such special injury 
 in the complaint is required. But no motion having been 
 made to reform the complaint and no objection being taken on 
 the trial, to the introduction of evidence tending to show such 
 injury, the defect will be considered as having been waived Id. 
 
 10. Any unlawful interruption with the free access to lots 
 
 on streets is such an injury to the private rights of the owners 
 as will be restrained by injunction Id. 
 
 11. The act incorporating the defendants provided that 
 
 before the said company should commence to use the streets of 
 their route, the stock of horses, etc. , of the omnibus lines on 
 said streets, should be purchased by the company at a price to 
 be assessed, etc. Part of the route of the omnibus lines of the, 
 plaintiffs' was over a portion of only one of the streets of 
 defendants' route. 
 
 Beld, that as the language of the act was not clear, a reason- 
 able doubt existed as to whether all omnibus lines using any 
 portion of the streets of the defendants' route were to be pur- 
 chased by them, and a preliminary injunction restraining the 
 defendants from building their road, would not be granted, 
 especially, as the plaintiffs' remedy at law, was full and ample. 
 Every seeming violation of law and right, does not entitle those 
 applyng for it, to a preliminary injunction 
 
 MooBE vs. Grken & CoATES St. Pass. Rt. Co 321 
 
 13. The power of the Court of Common Pleas of Philadel- 
 phia to interfere by injunction rests mainly, if not solely, upon 
 the clause of theact giving that court equity jurisdiction, which 
 empowers it to enjoin' for the prevention or restraint of the com- 
 mission or continuance of acts, contrary to law and prejudicial 
 to the interests of the community or the rights of individuals. . Id. 
 
INDEX. 515 
 
 INJUNCTION — Continued. page. 
 
 13. Owners of lots, upon the public street of a city, may 
 
 maintain an action to enjoin the construction in such street of a 
 railway, which would be specially injurious to their property. 
 MiLHAU vs. Sharp ; 834 
 
 14. Where a nuisance occasions, or is likely to occasion, a 
 
 special injury to an individual, which cannot be compensated 
 in damages, a court of equity will grant the relief demanded. . Id. 
 
 -■ — 15. The footway of a public street or highway is in no sense 
 private property, and an injunction will not be granted to 
 the owner of the lot adjoining the footway to restrain a railroad 
 company from laying rails across a portion of the footway. 
 Clark vs. Second & Third St. Pass. Rt. Co 336 
 
 16. Where the court has a doubt as to the right to the 
 
 injunction , the prayer of the complainant will not be granted. 
 Cooper vs. Second & Third St. Pass. Ht. Co B28 
 
 17. The company refused to pay an award of appraisers, 
 
 duly appointed, upon the ground, that only a portion of the 
 route of an omnibus line, in whose favor the award was made, 
 was used by them, and until the whole route, was used by them, 
 they were not liable. 
 
 Held, that such an interpretation if adopted, would pervert 
 the clear language arid evident intent of the charter of the com- 
 pany, and that an injunction would be granted restraining the 
 company from running their cars until the payment of the 
 award. 
 
 Deschamps vs. Second & Third St. Pass. Rt. Co 843 
 
 18. An act incorporating a horse railroad company provided, 
 
 that before commencing to run their cars upon the streets, the 
 omnibuses, etc., owned and used on said streets by a certain 
 omnibus line should be purchased by the company ; that 
 appraisers should be chosen as follows : the omnibus owners to 
 choose one, the company to choose one, and those two to choose 
 a third. An appraisement was made by three persons, but the 
 company resisted the payment, on the ground that the appraiser 
 who claimed to represent them, was appointed by the president 
 of the company, without the authority of the board of directors. 
 
 Seld, that the appraiser was not one appointed by the com- 
 pany, and as the company had never appointed an appraiser no 
 legal appraisement had been made. 
 
 Seld, further, that as the act provided that the company 
 should purchase, etc., ."before commencing to run their cars," 
 an injunction restraining them from running their cars, would 
 be granted, until they had appointed an appraiser, in accord- 
 ance with the terms of the act. 
 
 Whitson vs. Phila. & G. F. Pass. Rt. Co 848 
 
516 INDEX. 
 
 INJJJNCTlOti— Continued. page. 
 
 19. A charter of a railroad company when accepted and 
 
 acted upon is a contract, and as such must be complied with, 
 and a compliance with its terms may be compelled by man- 
 damus or injunction. 
 MAKTm vs. Second & Third St. Pass. Ry. Co 358 
 
 20. The words, ' ' power and authority to lay out and con- 
 struct a railway," to a certain point named, are imperative, and 
 a court of equity has power to compel a city railroad company 
 to build its road to the said point Id. 
 
 21. Where a city railroad company has entered into a con- 
 tract with the city to do a certain act upon the completion of 
 their road, the court has power to compel the company to com- 
 plete theroad Id. 
 
 33. An unauthorized occupancy of a street by railroad tracks 
 
 upon it, is a nuisance per se, and may be enjoined, and the 
 removal of the tracks may be compelled by any citizen. 
 
 MussEK ««. Faibmount & Abch St. Rt. Co 366 
 
 To compel commissioners to take stock subscription. 
 
 See Stock suBSCKrPTioti, 1-6. 
 
 To prevent sale of right of way over streets in New Orleans. 
 
 See Streets, 38-40. 
 
 See also Eminent Domain, 1. 
 
 INTOXICATION— 
 
 Eailway company not liable for causing death of pedestrian 
 
 when in state of. 
 
 See Negmqence, 27-29. 
 
 JUDGE, CHARGE OF — 1. In an action by the owner of a horse 
 and cart for damages for injuries caused by a collision with a 
 car of a railroad company, the justice charged the jury : " That 
 if the plaintifE was, in their opinion, doing his best to get out 
 of the defendants' way, it was all that could be required of 
 him ; that if he was so doing, the defendants were Tjound, at 
 their peril, to stop their cars to avoid collision ; and it they had 
 not sufficient power to do so, or if they omitted to stop their 
 cars, they were responsible for the consequences." 
 
 Hdd, that the charge was palpably erroneous and unjust, it 
 being in effect, that, if neither party was in fault, the plaintiff 
 was entitled to recover. 
 
 Held, also, that the question, whether the defendants were 
 guilty of negligence, was as material as whether the plaintiff 
 was, and should have been made the primary question, instead 
 of reversing the order and telling the jiiry that, if the plaintiff 
 was rwt guilty of negligence, they ■ must assume that the 
 defendants were. 
 
 Altkbuteb vs. Hudson River R. R. Co 100 
 
INDEX. 517 
 
 JUDGE, CHARGE OF — Oontirmed. faob. 
 
 2. The justice, when requested, refused to charge that the 
 
 defendants had a right to travel on the left hand track of the 
 road. 
 Held, error Id. 
 
 3. The plaintiff while a passenger in the defendants' horse 
 
 car received injuries in a collision between that car and the 
 steam cars of the company, and brought this suit for damages 
 for such injuries. The judge charged the jury that if they 
 believed there was gross neglect or carelessness, or want of skill 
 on the part of the servants of the company, then it was for 
 them to assess the damages, for such an amount as they might 
 deem the circumstances of the case justified. 
 
 Held, no error. 
 
 Vabellat m. New Obleans & Cabkollton R. R. Co 185 
 
 4. In actions of this nature much discretion must be left 
 
 to the jury, and therefore a refusal to charge the jury that 
 under the circumstances they could not give damages with the 
 view to punish the defendants, or to make an example, but 
 were only to consider and assess damages sustained by the 
 plaintiff, was correct Id. 
 
 5. The judge charged the jury in substance that the defend- 
 ants were liable unless the " negligence of the deceased directly 
 contributed to produce the catastrophe." 
 
 Held, error, that they should have been told, that if the neg- 
 ligence of the deceased, at the time of the accident, in any way 
 concurred to produce it, the plaintiff could not recover. 
 Button »«. Hudson RivEB R. R. Co 331 
 
 6. It was erroneous for the judge to instruct the jury that 
 
 if, when the driver of the car saw the driver of (he omnibus 
 attempting to cross the track, the driver of the car by ordinary 
 care could have slackened the speed of his car, if the brakes had 
 been in good order so as to have avoide.d a collisiqn, the company 
 was liable, 
 
 Owen vs. Hudson Riveb R. R. Co 467 
 
 Exception to. 
 
 See Exception, 1. 
 
 Instruction to jv/ry rega/rding care to be exercised by railway 
 
 company while running ca/rsin streets. 
 
 Johnson vs. Hudson Rivbk R. R. Co 354, 893 
 
 That plaintiffs were entitled to recover notwithstanding their 
 
 diriver was guilty of ca/relessness. 
 Meld, error. 
 Owen vs. Hudson Rivek R. R. Co 275 
 
 JUDGMENT— 
 
 A judgment entered by an attorney after notice of a settle- 
 
 34 
 
518 INDEX. 
 
 JUDGIVIENT — Continued. page. 
 
 ment between the parties, will be set aside on motion, provided 
 the attorney has failed to serve a notice forbidding such a settle- 
 ment. 
 
 McDowell m. Second Avenue R. R. Co 447 
 
 Lien of attorney on, for services. 
 
 See Attoknet and Client, 1. 
 
 JURISDICTION— 
 
 New York Oojirt of Common Pleas has, in action against 
 
 the corporation of the city to determine validity of an ordinance. 
 New Yobk & Harlem R. R. Co. vs. Matoe, etc., op N. Y. 283 
 Court of Common Pleas of PMladelpMa has, to grant injunc- 
 tion. 
 
 See Injunction, 11, 12. 
 
 JURY — 1. The question whether the plaintiff's evidence was suffi- 
 cient to warrant the inference that there was a want of ordinary 
 care on the part of the deceased, was for the jury alone to deter- 
 mine. 
 
 Johnson vs. Hudson River R. R. Co 191 
 
 Bias of, influencing verdict. 
 
 See Verdict, 1. 
 
 When question of negligence properly left to. 
 
 See Negligncb, 15. 
 
 To determine omiount of damages. 
 
 See Damages, 3-5. 
 
 Verdict of, not excessive. 
 
 See Verdict, 2. 
 
 Punitive damages in discretion of. 
 
 See Negligence, 16, 17. 
 
 When negligence a question for. 
 
 See Negligence, 22, 23. 
 
 LAW OF, THE ROAD— 
 
 See Collision, 8, 9. 
 XiEASE — 1. In an action for damages for injuries to the plaintiff's 
 carriage occasioned by the negligence of a servant of persons 
 to whom the railroad company had leased the road, it was 
 shown that the persons in the lease were denominated stewards 
 and were paid a salary. 
 Held, that the company were liable. 
 Thompson vs. New Orleans & Carrollton E. R. Co 189 
 
 3. The plaintiff leased certain premises to a person as agent 
 
 of an association which afterwards became incorporated. After 
 the incorporation the association transferred all its property to 
 the corporation, (the defendants,) and caused the lease to be 
 assigned to them, the latter covenanting to do and perform all 
 things which the association were bound to do. 
 
INDEX. 519 
 
 LEASE! — Continued. page. 
 
 Held, that the plaintiff could maintain an action against the 
 defendants upon the covenants of the lease, and that their liabil- 
 ity for the rent was not limited to the time that they had been 
 in occupation as a corporation. 
 
 Van Schaick vs. Third Avbn0b R. R. Co 381 
 
 IiEGISLATIVEi BODIES— 1. It is the practice of all legislative 
 bodies consisting of two branches, that all business unfinished 
 at the end of a session is discontinued and at their next meeting 
 is to be taken up de nemo, if taken up at all. 
 Wetmobe w. Stoby 300 
 
 IiEGISIiATURE — 1. The legislature has no power to establish a 
 railroad in a street in New York City without the assent of the 
 corporation, except upon the ground of public necessity, and it 
 must then provide for compensation for a surrender of a right 
 in property. 
 Hope »s. Sixth & Eighth Aventtb R. R. Cos ■ 179 
 
 3. It is indispensable that each legislatiire should assemble 
 
 , with the same measure of sovereign power which was held by 
 its predecessors, and any act of the legislature disabling itself 
 from the future exercise of powers intrusted to it for the pub- 
 lic good is void. 
 In be Citizens' Pass. Ry. Co 376 
 
 3. The privilege granted by the legislature to other compan- 
 ies to use the established road of a street railroad company, for 
 a given and restricted purpose, cannot be held to confer upon 
 such companies,. the rights of ownership or control, but that 
 such companies are to use the road subject to the reasonable 
 regulations and control of the established company. 
 
 Second & Third St. Pass. Ry. Co. m. Geben & Coates 
 St. Pass. Ry. Co 418 
 
 IiESSEE — 1. The plaintiff brought an action for damages for the 
 destruction of his carriage, caused by the negligence of the 
 driver of an omnibus, alleged to belong to defendants ; and on 
 the trial the latter offered to prove, under their plea of general 
 denial, that the omnibus had been leased by them to a third 
 person, at the time of the accident. The evidence was 
 excluded. 
 
 Held, error, that as the liability of the defendants depended, 
 not upon the ownership of the omnibus, but on the fact that 
 the accident was caused by their servant, they should have 
 been allowed to prove that the omnibus was under the exclusive 
 control of the lessees of the railroad, who alone employed the 
 drivers, and that such evidence was admissible under the plea 
 of general denial. 
 Habt m. New Obleans & Cabrollton R. R. Co 8 
 
520 INDEX. 
 
 JSESSEE— Continued. page. 
 
 3. The act entitled : "An act to enable railroad corporations 
 
 to enter into operative contracts, and to borrow money," passed 
 February 12, 1855. 
 
 Hdd, to extend to street railways, and that when two roads 
 connect under this act, each must conform to the charter of the 
 road being used, and that the lessee of a road must, in opera- 
 ting it, be governed by the charter of the lessor. 
 City of Chicago ®«. Evans 441 
 
 LICENSE— 1. The common council of the city of New York pos- 
 sesses the power of granting licenses to establish railroads in 
 said city providing the right to annul the power is reserved. 
 Hope vs. Sixth & Eighth Av. R. R. Cos 179 
 
 3. Whether the municipal government of New York by mere 
 
 license may authorize the construction and.maintenance of rail- 
 roads in streets discussed by Dbnio, C. J., and Comstock, J. 
 
 Davts vs. Mayor, etc., of New Yoke 235 
 
 See also Ordinance, 3. 
 
 LIEN— 
 
 Of attorney for seraices. 
 
 See Attorney and Client, 1. 
 
 LIGHTS AND BELLS— 
 
 Whether the omission to use on cars is negligence, is a ques- 
 tion of fact for the .lury. 
 
 Johnson vs. Hudson Rivbb R. R. Co 254, 393 
 
 MANDAMUS— 
 
 To compel commissioners to receive subscriptions for stock. 
 
 See Stock Subscription, 1-3. 
 
 To compel completion of railroad in accordance with terms of 
 
 charter. 
 
 See Injunction, 19-31. 
 
 MASTER AND SERVANT— 1. The person had been in the 
 employ of the defendants, but that he was employed by them 
 at the time of the accident was not clear from the evidence. 
 
 Held, that the company was not liable for his acts, as at the 
 time of the accident he was not engaged in the actual service of 
 the defendants or in any business that concerned them. 
 
 Weldon vs. New York & Harlem R. R. Co 414 
 
 See also Negligence, 1, 2, 12. 
 
 MAXIMS— 1. A party, applying to a court for the application of 
 its equitable powers, should be held to the rule, " that he who 
 seeks equity must do equity." He will not be permitted to 
 
INDEX. 521 
 
 MAXIMS — Continued. page. 
 claim a benefit under a contract and repudiate conditions con- . 
 tained therein, and which formed the consideration therefor. 
 N. Y. & H. R. R. Co. vs. Mayor, etc., of N. Y. 283 
 
 MONOPOIiIES — 1. The general railroad act of Pennsylvania 
 passed July 19, 1849, is opposed to monopolies. The policy of 
 the act is to prevent condensations of the stock into a few 
 hands. 
 Thomas m. Citizens' Pass. Rt. Co 399 
 
 MOTIONS— 
 
 Orders to show ccmse are. 
 
 See Practice, 3, 
 
 MUNICIPAL CORPORATIONS— 1. The powers of a munici- 
 pal corporation may be surrendered, but only by authority of 
 the legislature. 
 MiLHAU vs. Sharp '. Ill 
 
 NXiGIiIGEiNCE — 1. Action brought to recover damages caused 
 by the driver of an omnibus, alleged to be the property of the 
 defendants, for negligently running it against the plaintiff's 
 carriage. 
 
 Beld, that in order to recover, it was not necessary for the 
 plaintiff to prove a legal title to the omnibus in the defendants ; 
 thaX prima facie evidence of title such as public reputation was 
 sufficient ; and the court having refused to allow a witness to 
 answer whether the defendants were not generally reputed to be 
 the owners of the omnibus, it was held error. 
 
 Held, also, that the defendants were liable if the damages 
 were caused by the negligence or want of skill of the driver, or 
 by the vicious temper of the horses, if the horses belonged to 
 defendants, or the driver was in their employ. 
 
 Hart vs. New Orleans & Carrollton R. R. Co. . . , 4 
 
 — '-2. When requested, the judge refused to charge "that 
 responsibility only attaches, when the master or employer might 
 have prevented the act which caused the damage, and have not 
 done it." 
 Held, no error .' Id. 
 
 3. The plaintiff brought an action for damages for the 
 
 destruction of his carriage, caused by the negligence of the 
 driver of an omnibus, alleged to belong to defendants ; and on 
 the trial the latter offered to prove, under their plea of general 
 denial, that the omnibus had been leased by them to a third 
 person, at the time of the accident. The evidence was excluded. 
 Held, error, that as the liability of the defendants depended, 
 not upon the ownership of the omnibus, but on the fact that 
 
522 INDEX. 
 
 NEGljICkENCIS— Continued. page. 
 the accident was caused by their servant, they should have been 
 allowed to prove that the omnibus was under the exclusive con ■ 
 trolof the lessees of the railroad, who alone employed the 
 drivers, and that such evidence was admissible under the plea 
 of general denial. 
 Habt vs. New Obleaks & Cabrollton R. R. Co 8 
 
 4. The plaintiff brought this action for loss of service of his 
 
 son, who had been run over by one of defendants' horse cars. 
 No claim for prospective or probable future loss of service 
 was made in the declaration. 
 
 Held, that the plaintiff's recovery was confined to loss of ser- 
 vice before suit brought, together with reasonable compensa- 
 tion for the expenses incurred and care bestowed by himself 
 and servants during the illness of the child. 
 GiLLiGAN vs. New Yobk & Hablbm R. R. Co 48 
 
 5. In an action by the boy himself an averment for damages 
 
 for future continued disability occasioned by the wrong, would 
 be unnecessary, for in such an action, the injury to his person 
 is the gravamen ot the action, but in an action by the parent, loss 
 of service is the gist of the action, the injury to the person the 
 cause only of the loss, and to allow him to recover for a loss of 
 service in nowise alleged, would be a plain violation of the 
 rule that a party can only recover aecurtdum allegata Id. 
 
 6. The judge charged, that if the injury was caused by the 
 
 misconduct or negligence of the boy, the father could not 
 recover. 
 Seld, no error Id, 
 
 7. In determining whether the boy was negligent or not, the 
 
 jury are to take into consideration all the circumstances affect- 
 ing his conduct at the time Id. 
 
 8. The court will not set aside a verdict, (after two trials, in 
 
 both of which tjie verdict was substantially the same,) merely 
 because it deems the evidence greatly preponderating in defend 
 ants' favor upon a question of negligence ; but where the jury 
 also found on a question of damages contrary to the views of 
 the court upon the testimony, the coincidence strengthens the 
 apprehension, that bias, partiality or undue influence operated 
 on the minds of the jury, and would seem to require the inter- 
 ference of the court Id. 
 
 9. In an action by the owner of a horse and cart for dama- 
 ges for injuries caused by a collision with a car of a railroad 
 company, the justice charged the jury : " That if the plaintiff 
 was, in their opinion, doing his best to get out of defendants' 
 way, it was all that could be required of him ; that if he was so 
 
INDEX. 523 
 
 NEGLIGENCE- Cbwfo'raM«d. page. 
 
 doing, the defendants were bound, at their peril, to stop their 
 cars to avoid collision ; and if they had not sufficient power to 
 do so, or if they omitted to stop their cars, they were responsi- 
 ble for the consequences." 
 
 Held, that the charge was palpably erroneous and unjust, it 
 being in effect, that, if neither partj' was in fault, the plaintiff 
 was entitled to recover. 
 
 Held, also, that the question, whether the defendants were 
 guilty of negligence, was as material as whether the plaintiff 
 was, and should have been made the primary question, instead 
 of reversing the order and telling the jury that, if the plaintiff 
 was not guilty of negligence, they must assume that the 
 defendants were. 
 
 Altrbutbb vs. Hudson Eiver R. R. Co 100 
 
 10. The justice, when requested, refused to charge that the 
 
 defendants had a right to travel on the left hand track of the 
 road. 
 Held, error Id. 
 
 11. The plaintiff brought an action for damages for inju- 
 ries to himself and his horse and cart, received in a collision 
 with the cars owned by the defendants,"and operated by machin- 
 ery through certain streets in the city of San Francisco, under 
 a license from the city council. 
 
 Held, that where the streets of a city are diverted from their 
 ordinary and legitimate uses, by special license, to a private 
 ' person, for his own benefit, and for the pursuit of a business 
 which involves constant risk and danger, such person is bound, . 
 in the exercise of such right, to use extraordinary care. 
 
 Wilson vs. Cunningham 103 
 
 12. Plaintiff was injured by being thrown out of his wagon 
 
 which collided with a car belonging to the New York and New 
 Haven Railroad Company, but the horses which drew the car, 
 .and the driver who was driving it, were employed by the 
 defendants, the New York and Harlem Railroad Company. 
 
 Held, that the action was properly brought against the New 
 York and Harlem Railroad Company, the owners of the horses 
 and employers of the driver. 
 Wbtant vs. New York & Harlem R. R. Co 160 
 
 13. A railroad company duly authorized to lay its track in 
 
 one of the streets of the city, is not liable, for accidents which 
 may occur by reason thereof, unless there was negligence or 
 want of skill in the manner of laying the rails or in maintaining 
 the same. 
 Mazetti vs. New York & Harlem R. R. Co 163 
 
 14. And in order to maintain an action by one who was 
 
524 INDEX. 
 
 NECrLlGrliNOIi— Continued. page. 
 exercising tlie common right of passing over the street, for 
 injuries received, proof of such negligence or want of care or 
 skill in the manner of constructing or maintaining the track is 
 necessary Id. 
 
 — 16. In an action for damages for the death of a child 
 caused by the defendants' car running over her, it was proved 
 that the child was aged six years and ten months and was in 
 the street unattended. 
 
 Seld, that the mere fact of permitting such a child to be alone 
 in the streets of a city unattended is not, as matter of law, pre- 
 sumptive negligence. That in such cases, it is properly left to 
 the jury to say under the peculiar circumstances of each case, 
 whether or not it is negligence. 
 
 Oldpield vs. New Yokk & Haklem r! R. Co 168 
 
 — 16. The plaintiflE while a passenger in the defendants' horse 
 car received injuries in a collision between tbat car and the 
 steam cars of the company, and brought this suit for damages 
 for such injuries. The judge charged the jury that if they 
 believed there was gross neglect or carelessness, or want of skill 
 on the part of the servants of the company, then it was for 
 them to assess the damages, for such an amount as they 
 might deem the circumstances of the case justified. 
 
 Seld, no error. 
 
 VakilijAt m. New Orleans & Cabrollton R. R. Co . . . 185 
 
 — 17. In actions of this nature much discretion must be left to 
 the jury, and therefore a refusal to charge the jury that under 
 the circumstances they could not give damages with the view to 
 punish the defendants, or to make an example, but were only 
 to consider and assess damages sustained by the plaintiff, was 
 correct Ja. 
 
 — 18. In an action for damages for injuries to the plaintiff's 
 carriage occasioned by the negligence of a servant of persons to 
 whom the railroad company had leased the road, it was shown 
 that the persons in the lease were denominated stewards and 
 were paid a salary. 
 
 Held, that the company were liable. 
 
 Thompson ■»«. New Orleans & Cabrollton R. R. Co 189 
 
 — 19. The plaintiff brought this action against the defendants 
 for damages for injuries to the plaintiff's testator, resulting in 
 his death, and proved the negligence of the defendants, but did 
 not prove that the deceased was free from negligence, which 
 the defendants contended the plaintiff should have done. 
 
 -^— 30. The plaintiff in order to maintain the action was not 
 bound to prove that there was no want of ordinary care on the 
 
INDEX. 525 
 
 NEQiUGiEXfC^— Continued. faoe. 
 
 part of the deceased ; that the burden of proving that there was 
 
 a want of ordinary care on the part of the person injured which 
 
 contributed directly to the accident, rested upon the defendants. 
 
 Johnson m. Hudson Rivbk R. R. Co 191 
 
 21. The question whether the plaintiff's evidence was suflB- 
 
 cient to warrant the inference that there was a want of ordinary 
 care on the part of the deceased, was for the jury alone to deter- 
 mine Id. 
 
 23. Plaintiff as administrator of a child, between six and 
 
 seven years of age, who was run over and killed by one of the 
 defendants' cars, brought this action under Laws of 1847, 
 amended in 1849, to recover damages for the death of the child. 
 
 Held, that the question of the negligence of the parties was 
 one eminently for the consideration of the jury. 
 
 Held, also, that in order to sustain the action, it was not neces- 
 sary for the plaintiff to prove that any pecuniary or special 
 damage had been sustained by the mother of the child, in con- 
 sequence of its death. 
 
 Oldfibi.d vs. New Yobk & Hablem R, R. Co 324 
 
 23. The complaint averred that the death was caused by the 
 
 negligence and default of the defendants and their agents and 
 servants. 
 
 Held, that a question respecting the construction. of the car, 
 was admissible in order to prove negligence on the part of the 
 defendants Id. 
 
 24. The rule laid down in this case on the first appeal, that 
 
 absence of negligence on the part of the plaintiff is not neces- 
 sary to be shown in order to maintain an action for injuries to 
 , the person, recognized and sustained. 
 
 Held, that, as between a railroad company and a foot passen- 
 ger in the street, the rule is : that the company is bound to use 
 a degree of care and vigilance in respect to the use of the means 
 whereby accidents or injury to those using the same thorough- 
 fare in common with themselves may be avoided, which is pro- 
 portioned to the dangerous character of its business, while the 
 foot passenger is bound to that degree of caution which per- 
 sons thus exposed on a public thoroughfare ought in common 
 prudence to exercise. 
 Johnson vs. Hudson Rivek R. R. Co 254 
 
 25. Upon the trial the judge charged the jury that consider- 
 ing the nature of the business in which the defendants were 
 engaged, and the hazards attending the running of cars in the 
 streets of the city, particularly on a dark night, they were 
 bound to exercise the utmost care and diligence, and for the 
 purpose of avoiding accidents endangering life, were bound 
 
526 INDEX. 
 
 VfEGJalGt'E'NC'Ei— Continued. page. 
 
 to use all the means and measures of precaution that the high- 
 est prudence would suggest, and which it was in their power 
 to employ, and that if the use of bells and of lights on the cars 
 was a measure by which disastrous accidents would probably 
 be avoided, the oniission to use them, if proved to the satisfac- 
 tion of the jury, was culpable negligence, and it was for the 
 jury to say, whether to this culpable negligence the fatal acci- 
 dent that had given rise to the action might not justly be 
 imputed. 
 
 Held, a proper instruction. 
 
 Held, that as vigilance and care are to be proportioned to the 
 danger to be avoided, it was immaterial by what name the obli- 
 gation was designated or defined, and that in any definition of 
 ordinary care, as applied to these defendants under the circum- 
 stances detailed in this case, the judge could not have required 
 a less degree of vigilance and care than that which he laid down 
 as the measure of their actual obligation. The defendants' 
 counsel contended that the degree of care to be exercised in any 
 given case, was a matter of law to be determined by the court, 
 and that the court erred in leaving it to the jury to determine 
 whether the defendants should have carried lights or bells. 
 
 Held, that the judge committed no error ; that he did deter- 
 mine the question of law, to wit : that the prudence exacted of 
 the defendants was that which, in view of the hazardous char- 
 acter of their business, would tend to diminish the danger of 
 accident, and that whether the use of bells and lights was a 
 measure of that character, was a question of fact and was prop- 
 erly left to the jury Id. 
 
 26. The judge also charged the jury, that the person alleged 
 
 to have been killed by defendants' negligence was bound to 
 exercise only ordinary care ; and he defined that care to be 
 "that care and foresight which men of ordinary prudence are 
 accustomed to employ, and which, placed in like circumstan- 
 ces with the deceased, they probably would have employed." 
 
 Held, no error. 
 
 Held, that the judge properly refused to charge that the 
 manner in which the deceased was found on the track, without 
 any explanation as to how he got there, yjas. prima facie evi- 
 dence of negligence on his part Id. 
 
 37. Plaintiff's intestate was seen lying across the defendants 
 
 track, and while there, was run ever by their horse cars and 
 killed. How he came there was not known ; but about five 
 minutes before the accident he had left a saloon seemingly 
 intoxicated, and it was supposed that he had stumbled and fell 
 on the track. 
 Held, that if the deceased, while in a state of Intoxication, had 
 
INDEX. 527 
 
 NEGLIGENCE — Cojutimied. faob. 
 lain down before the cars or had tumbled down, it was his 
 negligence that caused the disaster ; and if the driver of the 
 cars did not see him, in time to avoid him, the defendants were 
 not liable. 
 Button m. Hxidson Rivbr R. R. Co 331 
 
 88. The judge charged the jury in substance that the defend- 
 ants were liable unless the " negligence of the deceased directly 
 contributed to produce the catastrophe." 
 
 Held, error, that they should have been told;- that if the negli- 
 gence of the deceased, at the time of the accident, in any way 
 concurred to produce it, the plaintiff could not recover. 
 
 Held, also, that the burden was upon the plaintiff to prove 
 affirmatively, that the deceased was guiltless of any negligence 
 proximately contributing to the accident Id. 
 
 29. In actions of this kind negligence is not to be presumed ; 
 
 and direct evidence to disprove it is not required from the 
 plaintiflE, in the first instance ; but where the testimony is con- 
 flicting as to the fact, the preponderance must be with the 
 plaintiff, to enable him to recover Id. 
 
 30. The complaint in an action against a railroad company ' 
 
 for damages for injuries, recited that the injury was caused by 
 the conductor giving the signal to start the car before the 
 plaintiff was fairly on the car, whereby she was thrown to the 
 ground, etc., and then followed an averment that the conductor 
 acted in a negligent and culpable manner as aforesaid, and by 
 his wilfulness and gross neglect caused the injury. 
 
 Meld, that the latter part of the averment might be rejected, 
 and that the recital of the facts coupled with the averment that 
 the conductor acted negligently, was a sufficient averment of a 
 cause of action. 
 
 WiNTERsoN m. Eighth Avenue R. R. Co 372 ■ 
 
 31. For the wilful acts of a servant the company is not 
 
 liable Id. 
 
 32. The plaintiff's testator, ' a cartman, was found lying 
 
 fatally injured across the defendants' tracks on a dark night, in 
 a street in New York City. The street was obstructed by a 
 sewer in course of construction, and the circumstances war- 
 ranted the inference, that the deceased, who it was proved was 
 sober on the night in question, had tied his horse, and while 
 groping in the dark for a safe place for his team to cross, was 
 struck by the defendants' horse car, which was proceeding 
 without lights or bells. There was no witness to the accident. 
 Held, that in the absence of proof to the contrary, it was to be 
 assumed that the deceased had the same regard for his safety 
 as other men, and that the dangerous tendency of the defend- 
 
528 INDEX. 
 
 NEGlA.Oi'ElifO'E— Continued. page. 
 ants' conduct, created so strong a probability that the accident 
 occurred through defendants' negligence, as to authorize the 
 refusal of a nonsuit. 
 JoHNBON ««. Hudson Eivbr R. R. Co 393 
 
 33. The question whether the accident did not happen 
 
 through the fault of the deceased, was to be decided by consid- 
 ering the facts and circumstances in evidence, in connection 
 with the ordinary habits, conduct and motives of men Id. 
 
 34. It is not a rule of law of universal application that in 
 
 suits for damages for personal injuries, the plaintiff must prove 
 affirmatively freedom from negligence, or that the defendant 
 in order to establish his defense, must prove the contrary ; that 
 the character of the defendants' negligence may be such as to 
 prove prima faeie, the whole issue, or it may be such as to 
 make it necessary for the plaintiff to show, by independent 
 evidence, that he himself was not guilty of negligence. . . : Id. 
 
 35. In this class of cases, to carry a case to the jury, the evi- 
 dence on the part of the plaintiff must be such, as, if believed, 
 would authorize them to find that the injury was occasioned 
 solely by the negligence of the defendant Id. 
 
 36. The judge charged, that in order to exonerate the 
 
 defendants on the ground of negligence on the part of the 
 deceased, it must be such as directly contributed to the acci- 
 dent. 
 
 Held, no error, that the use of the term under the circum- 
 stances, was not significant Id. 
 
 37. The judge charged that persons running cars in the 
 
 night over a course which is also a public street, were bound 
 to exercise the utmost care and diligence, and to use all the 
 means and measures of precaution, which the highest prudence 
 could suggest. 
 
 Held, no error, that the degree of care required from persons 
 driving vehicles upon a thoroughfare, as well as from those 
 walking thereon, varies according to the circumstances of the 
 case, and the judge was calling the attention of the jury to the 
 peculiarities of the case before them Id. 
 
 88. The plaintiffs brought this action to recover damages 
 
 for injuries received by being run over by a team of horses 
 belonging to the defendants. It was alleged that the negli- 
 gence of the defendants' driver in the management of the team 
 while taking it through a public street after being detached 
 from a,car, which the team had been drawing, was the cause of 
 the injuries. The evidence showed that the method pursued in 
 the management of the team was the same as had been prac- 
 
INDEX. 529 
 
 NEGLIGENOE— COTifo'?ii<e(i. page. 
 
 ticed by this and another company for years without accident, 
 and that it was an appropriate and a safe method was testified 
 to by several witnesses of practical experience in driving teams. 
 The evidence further showed that the accident was caused by 
 the team of horses being struck and frightened by a third per- 
 son, so that they became unmanageable and then ran over the 
 plaintiffs. 
 
 Held, that a verdict found for the t)laintifEs should be set 
 aside as contrary to evidence. 
 
 Weldon w. New York &Ha»lem R. R. Co 414 
 
 See also Assignment of Right of Action fob, 1-4 ; Col- 
 lision, 8-17 ; Evidence, 16, 17. 
 
 NEW YORK, CORPORATION OP THE CITY OP— 1. By 
 
 the Dongan charter the corporation of the city of New York 
 was invested with full power and authority over and concern- 
 ing the streets of the city. This power has never been with- 
 drawn or essentially changed. The corporation yet has the 
 exclusive right to control and regulate the use of the streets in 
 the city. In this respect, it is endowed with legislative sover- 
 eignty ; and the exercise of that sovereignty has no limit, so 
 long as it is within the objects and trusts for which the power 
 is conferred. 
 
 MiLHAu lis. Sharp Ill 
 
 See also Streets, 6, 7, 9, 11, 12, 14, 15, 18-33 ; Injunc- 
 tion, 3-6. 
 
 NEW ORLEANS, CITY OF— 
 
 Power to sell right of way in streets. 
 
 See Streets, 38-40. 
 
 NONSUITS— 1. Plaintiff, a physician, at the request of defend- 
 ants' superintendent, rendered service to a child that had been 
 run over by one of the defendants' cars and brought this action 
 to recover for such services. The superintendent testified that 
 he had a general supervisory control over the whole line of the 
 road, everything connected with the running of the road being 
 under his supervision and control ; that he paid money to 
 drivers, conductors and other persons employed by him, as 
 superintendent, but that he had no direction over the treasury. 
 Held, that this description of the superintendent's powers did 
 not justify the inference that he was authorized, by his office, 
 to arrange and liquidate claims made against the company for 
 the negligence of their servants in running their trains, or to 
 contract with 'third persons, as their agent, to repair or remedy 
 the consequences of such negligence, and Held, therefore that 
 he had no authority to bind the defendants by the employment 
 of the plaintiff. 
 
530 INDEX. 
 
 NONSUITS— Contimted. page. 
 
 Seld, further, that there being no other proof to charge the 
 defendants, the plaintiff was properly nonsuited. 
 
 Stephenson vs. New Tobk & Hablem R. R. Co 105 
 
 In actions for damages foi- negligence. 
 
 See Neglisence, 20, 21, 33, 34, 35. 
 See also Practice, 6-8. 
 
 NOTICE— 
 
 Of attorney's lien for services. 
 
 See Attorney and Client, 1-8. 
 
 Record of a prior deed is notice to street railway company 
 
 that has purchased, of restriction contained in the deed. 
 
 See Bbeds, 3. , _ 
 
 NUISANCE — 1. A properly constructed and authorized railroad 
 running through the streets of a city is not a nuisance. 
 Hamilton m. New York & Harlem R. R. Co 1 
 
 3. The laying of a railroad track in a street of a city, or the 
 
 running of the cars thereon, so long as the right of passage and 
 repassage for other purposes is not abridged or obstructed, is 
 not such an exclusive appropriation of the street as to amount 
 to a purpresture or a nuisance. 
 Brake vs. Hudson River R. R. Co 10 
 
 3. A railroad is not per se a nuisance Id. 
 
 4. A railway in a city is not per se a nuisance or a purpres- 
 ture. 
 MiLHAU vs. Sharp 58 
 
 5. A-n authorized railroad in a city is not a public nuisance. 
 
 The- sanction of the principal act legalizes the temporary 
 obstruction to the public caused by the prosecution of the 
 appropriate work, and would prevent any efEectual action by 
 individuals on account of any consequential injury which should 
 necessarily result from it — even though the injury be peculiar 
 to them. 
 Wetmore vs. Story 300 
 
 6. But it is otherwise when the railroad is constructed with- 
 out the requisite authority Id. 
 
 7. The law regards an unauthorized obs'truction of a high- 
 way as a nuisance per se. But that which is legally author- 
 ized cannot be a nuisance, 
 Davis vs. Mayor, etc,, op Nbw York 335 
 
 8. An unauthorized construction of a railway in the streets 
 
 of a city is a public nuisance, and will be restrained by injunc- 
 tion, by a court of equity, at the suit of an owner of property on 
 one of the streets of the proposed route. 
 Faust vs. Second & Third St. Pass. Ry. Co 313 
 
INDEX. 531 
 
 NUISANCE— Continued. page. 
 
 9. On the other hand, as the highways of the state are under 
 
 the absolute control of the legislature, it may authorize the con- 
 struction of a railroad along the line of any street, and when 
 thus authorized, the road cannot be deemed a nuisance ; and 
 neither the local authorities, nor any individual, can success- 
 fully interfere to prevent its construction Id. 
 
 10. Where a nuisance occasions, or is likely to occasion, a 
 
 special injury to an individual, which cannot be compensated 
 in damages, a court of equity will grant the relief demanded. 
 MiiiHAU BS. Sharp 334 
 
 11. An unauthorized occupancy of a street by railroad tracks 
 
 upon it, is a nuisance per se, and may be enjoined, and the 
 removal of the track's may be compelled by any citizen. 
 
 MussBB va. Faibmount & Akch St. Ry. Co 366 
 
 See also Eminent Domain, 1. 
 
 OBSTRUCTION— 
 
 Of track hy veMde and indictment therefor. 
 
 See Tkack, 8, 9. 
 
 OFFICERS— 
 
 Police commissioners are not state qffleers. 
 
 See Police Commissionebs, 1. 
 
 OMNIBUS — 1. Action brought to recover damages caused by the 
 driver of an omnibus, alleged to be the property of the defend- 
 ants, for negligently running it against the plaintiff's carriage. 
 Setd, that in order to recover, it was not necessary for the 
 plaintiff to prove a legal title to the omnibus in the defendants ; 
 that prima facie evidence of title such as public reputation was 
 V sufficient ; and the court having refused to allow a witness to 
 answer whether the defendants were not generally reputed to 
 be the owners of the omnibus, it was held error. 
 
 Held, also, that the defendants were liable if the damages 
 were caused by the negligence or want of skill of the driver, or 
 , by the vicious temper of the horses, if the horses belonged to 
 defendants, or the driver was in their employ. 
 
 Habt vs. New Obleanb & Cabbollton R. R. Co 4 
 
 ■ See also Negligence, 3 ; Collision, 10, 11, 14-17. 
 
 OMNIBUS LINES— 
 
 Purchase of by street railway company made obligatory. 
 
 See Chaeteb, 1-5; 
 
 ORDINANCE — 1. An ordinance regulating a street is a legislative 
 act, entirely beyond the control of the judicial power of the 
 state. 
 MiLHAtr vs. Shabp Ill 
 
532 INDEX. 
 
 ORDlVfANCE— Continued. page. 
 3. But a resolution of the common council granting author- 
 ity and license to a number of individuals designated as the 
 associates of the Broadway Raikoad, to lay tracks for a rail- 
 way in Broadway and to run cars and carry passengers, etc., 
 upon certain conditions and stipulations, and conferring priv- 
 ileges exclusive in their nature and designed to be perpetual in 
 their duration, is not a legislative act, regulating the use of the 
 street, but is a grant of the use itself, to the extent specified in 
 the resolution, and void Id. 
 
 3. Because in its essential features it is a contract. The cor- 
 poration for what they deem an adequate consideration assumes 
 to surrender a portion of their municipal authority and in legal 
 effect agrees with the defendants that so far as they may have 
 occasion to use Broadway for the purpose of constructing and 
 operating their railroad, the right to regulate and control the 
 use of the street shall not be exercised Id. 
 
 4. The powers of a municipal corporation may be surren- 
 dered but only by authority of the legislature Id. 
 
 5. The plaintiffs were incorporated, by an act of the legis- 
 lature, passed April 25th, 1831, (Laws 1831, chap. S63, p. S^S,) 
 with power to construct a railroad in the streets of the city of 
 New York. One of the sections of the act provided ; that 
 nothing in the act should be deemed to authorize the construc- 
 tion of the railroad, across or along any of the streets or aven- ■" 
 ues of the city, without the consent of the municipal author- 
 ities, who were authorized to grant perlnission to construct the 
 railroad, or to prohibit the construction of it ; and after its con- 
 struction, to regulate the time and manner of using the same, 
 and the speed with which carriages might be allowed to move 
 thereon. On December 32d, 1831, the municipal authorities, 
 upon the application of the plaintiffs, adopted an ordinance 
 permitting the construction of the railroad in certain streets, 
 providing, that if, at any time after its construction, it should 
 appear to the municipal authorities, (who were to be the sole 
 judges thereof,) that the railroad constituted an obstruction or 
 impediment to the future regulation of the city, or the ordi- 
 nary uses of any street or avenue, the plaintiffs should forthwith 
 provide a satisfactory remedyfor the same, or failing to do so, 
 to remove the railroad and replace the street in as good condi- 
 tion as before the railroad was laid down. The right of regu- 
 lating the description of propelling power to be used on the 
 railroad, and the speed of same, as well as all other power 
 reserved to the municipal authorities, in the act of incorpora- 
 tion, was expressly retained and reserved. It was also declared, 
 that the ordinance should not be binding on the common coun- 
 cil, or go into effect, until the plaintiffs executed in writing 
 
INDEX. 533 
 
 ORDINANCE— Comimwed page. 
 
 and under seal, an agreement to perform the conditions and 
 requirements of the ordinance. The plaintiffs accordingly 
 executed such an agreement which was filed with the comp- 
 troller, and then laid their track in Fourth avenue. In 1854, 
 the municipal authorities adopted a resolution, forbidding the 
 running of locomotives or steam engines on the tracks of the 
 plaintiflfs, on Fourth avenue south of Forty-second street, after 
 eighteen months after the passage of the ordinance. 
 
 Held, that the ordinance of 1854 was valid and that the 
 plaintiffs must obey it, and that it was not a violation of the 
 franchises granted to the plaintiffs by the legislature. 
 
 New Yobk & Hablbm R. R. Co. vs. Mayoh, etc., of New 
 YoBK 283 
 
 6. Although the power to give permission to operate the 
 
 railroad had to be derived from the legislature, yet its exercise 
 did not deprive the city corporation of its legislative control of 
 the streets in all other respects, and it might impose upon the 
 plaintiffs such restrictions as the city authorities thought 
 proper in regard to the manner in which the rail track should 
 be used, and also conditions upon which the future use of the 
 track might depend Id. 
 
 .7. The agreement made by the plaintiffs was binding upon 
 
 them ; it was not a transfer of the right to determine the 
 motive power to be used, but only a restriction upon the 
 right Id. 
 
 8. Any contract made by the municipal authorities tending 
 
 to deprive them of the control of the streets, would not only be 
 revocable at pleasure, but void Id. 
 
 9. " The legislative power and control of the city, over the 
 
 streets and avenues within its limits, are very extensive, and 
 the only limitation upon them is, that they shall be appropri- 
 ated to no use or purpose which is not alike free and common 
 to all citizens and travelers." Id. 
 
 10. Converting them to railroad purposes, and permitting 
 
 rail tracks to be laid upon them, to be used by an individual or 
 an association in the transportation of merchandise and passen- 
 gers for hire, is a devotion of them to an exclusive use, and 
 
 ' express authority from the legislature must be obtained Id. 
 
 11. A party, applying to a court for the application of its 
 
 equitable powers, should be held to the rule, " that he who 
 seeks equity must do equity." He will not be permitted to 
 claim a benefit under a contract and repudiate conditions 
 contained therein, and which formed the consideration therefor. Id. 
 
 r.l3. Corporations, like individuals,jmaybe bound by implied 
 
 contracts, provided the acts contemplated thereby are within 
 
 the scope of the corporate authority Id. 
 
 35 
 
534 INDEX. 
 
 ORDINANCE— Oontimted. page. 
 
 13. " Courts are bound to assume that, where'a discretion 
 
 is vested in a municipal body, exercising functions of a legisla- 
 tive character, good reasons existed for the adoption of a regu- 
 lation or ordinance which was the result of such a discre- 
 tion." Id. 
 
 14. " The duty of enforcing all the public ordinances of the 
 
 city, and especially those which are applicable to police or 
 health, is imposed by law upon the board of police commis 
 sioners ; " the ordinance in question might be classed under 
 either head Id. 
 
 15 An act of incorporation gave the city councils power, 
 
 within a limited time, to disapprove by ordinance of the rail- 
 road and thus prevent its construction ; the councils did pass 
 an ordinance within the time, the first section of which was a 
 direct disapproval, but the second section provided that the 
 first section should be inoperative upon the performance by the 
 railroad company of certain conditions herein prescribed. 
 
 Beld, that both sections of the ordinance were to be con- 
 strued together as parts of one whole, and that the ordinance 
 was not a disapproval contemplated by the act of incorporation 
 but rather a consent that the road be constructed when the con- 
 ditions were performed. 
 
 Faust «». Secoitd & Third St. Pass. Ry. Co 313 
 
 16. A compliance with the prescribed conditions, which 
 
 were, that the railroad company Should enter into an obliga- 
 tion to obey and submit to all regulations " in force and there- 
 after to be passed," by the councils, was not a relinquishment 
 of any of the franchises conferred by the act of assembly upon 
 the railroad company, as it would be a legal impossibility for 
 the councils to pass any ordinance inconsistent with the exer- 
 cise of the corporate rights of the railroad company Id. 
 
 17. The city is a creature of the legislature with limited 
 
 power, and when it attempts to act beyond the limits of its con- 
 ferred authority, its acts are void Id. 
 
 18. Two street railroads in the city of Chicago desired to 
 
 extend their tracks and connect with each other, and for that 
 purpose were about to obtain the passage of an ordinance by 
 the common council. 
 
 Beld, that if their charters conferred no such power to extend, 
 etc., the common council could not confer it. 
 
 Held, also, that the passage of ordinances which confer no 
 rights or authority, are harmless, until steps are taken to make 
 them available. 
 
 City of Chicago vs. Evans 441 
 
 Passage of subsequent, does not mtalize what previous ordi- 
 nance had destroyed. 
 See Chaeteb, 7. 
 
INDEX. 535 
 
 PAGE. 
 
 OWNERSHIP — 1. Action brought to recover damages caused by 
 the driver of an omnibus, alleged to be the property of the 
 defendants, for negligently running it against the plaintiff's 
 carriage. 
 
 Held, that in order to recover, it was not necessary for the 
 plaintiff to prove a legal title to the omnibus in the defendants ; 
 ihaX. prima facie evidence of title such as public reputation was 
 sufficient ; and the court having refused to allow a witness to 
 answer whether the defendants were not generally reputed to 
 be the owners of the omnibus, it was held error. 
 
 Held, also, that the defendants were liable if the damages 
 were caused by the negligence or want of skill of the driver, or 
 by the vicious temper of the horses, if the horses belonged to 
 defendants, or the driver was in their employ. 
 
 Hart vs. New Orleans & Carrollton E. R. Co 4 
 
 2. The plaintiff brought an action for damages for the 
 
 destruction of his carriage, caused by the negligence of the 
 driver of an omnibus, alleged to belong to defendants ; and on 
 the trial the latter offered to prove, under their plea of general 
 denial, that the omnibus had been leased by them to a third 
 person, at the time of the accident. The evidence was 
 excluded. 
 
 Held, error, that as the liability of the defendants depended, 
 not upon the ownership of the omnibus, but on the fact that the 
 accident was caused by their servant, they should have been 
 allowed to prove that the omnibus was under the exclusive con- 
 trol of the lessees of the railroad, who alone employed the 
 drivers, and that such evidence was admissible under the plea 
 of general denial. 
 Hart m. New Orleans & Carrollton R. R. Co 8 
 
 3. Plaintiff was injured by being thrown out of his wagon 
 
 which collided with a car belonging to the New York and New 
 Haven Railroad Company, but the horses which drew the car, 
 and the driyer who was driving it, were employed by the 
 defendants, the New York and Harlem Railroad Company. 
 
 Held, that the action was properly brought against the New 
 York and Harlem Railroad Company, the owners of the horses 
 • and employers of the driver. 
 
 Wbyant w. New York & Hablbm R. R. Co 160 
 
 PARTIES— 
 
 See Action, 1. 
 
 Adding or substituting. 
 
 See Practice, 1, 2. 
 
 Action brought against proper parties. 
 
 See Ownership, 3. 
 People improperly made party to action to prevent construc- 
 tion of railway. 
 Davis vs. Mayor, etc., of New York 335 
 
,636 INDEX. 
 
 PEDESTRIAN— page. 
 
 Degree of care required as between pedestrian and railway com- 
 pany— rule stated. 
 
 Johnson vs. Hudson RivbkB. R. Co 354, 393 
 
 Action for death of intoxicated. 
 
 See Negligence, 27-39. 
 
 Struck by runaway horses. 
 
 See Negugenoe, 38. 
 
 See also Evidence, 16, 17. 
 
 PEOPLE— 
 
 '^hen improperly made pa/rty to action to premnt construction 
 
 of railway. 
 
 Davis vs. MAyop., etc., of New York 335 
 
 PHYSICIAN— 1. Plaintiff, a physician at the request of defend- 
 ants' superintendent, rendered service to a child that had been 
 run over by one of the defendants' cars and brousjht this action 
 to recover for such services. The superintendent testified that 
 he had a general supervisory control over the whole line of the 
 road, everything connected with the running of the road being 
 under his supervision and control ; that he paid money to 
 drivers, conductors and other persons employed by him, as 
 superintendent, but that he had no direction over the treasury. 
 
 Eeld, that this description of the superintendent's powers did 
 not justify the inference that he was authorized, by his office, 
 to arrange and liquidate claims made against the company for 
 the negligence of their servants in running their trains, or to 
 contract with third persons, as their agent, to repair or remedy 
 the consequences of such negligence, and Seld, therefore that 
 he had no authority to bind the defendants by the employment 
 of the plaintiff. • 
 
 Seld, further, that there being no other proof to charge the 
 defendants, the plaintiff was properly nonsuited. 
 
 Stephenson vs. New York & Haklbm R. R. .Co ; . 105 
 
 PLEADING — 1. The plaintiff brought an action for damages for 
 the destruction of his carriage, caused by the negligence of the 
 driver of an omnibus, alleged to belong to defendants ; and on • 
 the trial the latter offered to prove, under their plea of general 
 denial, that the omnibus had been leased by them to a third 
 person, at the time of the accident. The evidence was 
 excluded. 
 
 Seld, error, that as the liability of the defendants depended, 
 not upon the ownership of the omnibus, but on the fact that 
 the accident was caused by their servant, they should have 
 been allowed to prove that the omnibus was under the 
 exclusive control of the lessees of the railroad, who alone 
 
INDEX. 537 
 
 PLEADING— Coraijftwd;. page. 
 employed the drivers, and that such evidence was admissible 
 under the plea of general denial. 
 Habt ®s. New Orleans & Cabbollton R. K. Co 8 
 
 8. The plaintiff brought this action for loss of service of 
 
 his son, who had been ran over by one of defendants' horse , 
 cars. No claim for prospective or probable future loss of 
 service was made in the declaration. 
 
 Held, that the plaintiff's recovery was confined to loss of 
 service before suit brought, together with reasonable compensa- 
 tion for the expenses incurred and care bestowed by himself 
 and servants during the illness of the child. 
 
 GiLLiGAN w. New York & Hablem R. R. Co 48 
 
 3. In an action by the boy himself, an averment for damages 
 
 for future continued disability occasioned by the wrong, would 
 be unnecessary, for in such an action, the injury to his person is 
 the gramamen of the action, but in an action by the parent, loss 
 of service, is the gist of the action, the injury to the person the 
 cause only of the loss, and to allow him to recover for a loss of 
 service in nowise alleged, would be a plain violation of the 
 rule, that a party can only recover secundum allegata Id. 
 
 4. The complaint charged, that the defendants by the wrong- 
 ful act, negligence and default of themselves and their agents 
 and servants, ran over the child and caused her death. 
 
 Held, that evidence could be introduced under this clause, 
 to show the defective construction of the car that tended to 
 occasion the accident, as well as carelessness on the part of 
 the driver of the car and others, in its management. 
 
 Oldfield vs. New Yoek & Hablem R. R. Co 168 
 
 5. In order to maintain a suit for an injunction to restrain 
 
 the placing of a railroad in a city street on the ground that 
 plaintiffs would sustain special injury because it would obstruct 
 access to their lots, an allegation of such special injury in the 
 complaint is required. But no motion having been made to 
 reform the complaint and no objection being taken on the trial, 
 to the introduction of evidence tending to show such injury, 
 the defect will be considered as having been waived. 
 Wetmoee m. Stoby 300 
 
 6. Suits for the redress or prevention of public wrongs can 
 
 be maintained only by or in the name of the people ; therefore, 
 when individuals sue, they must show that their private rights 
 are endangered Id. 
 
 7. The complaint averred that the death was caused by the 
 
 negligence and default of the defendants and their agents and 
 servants. 
 
538 INDEX. 
 
 FIjEADING— Continued. pagb. 
 
 Beld, that a question respecting the construction of the car, 
 was admissible in order to prove negligence on the part of the 
 defendants. 
 
 Oldpibld m. New Yokk & Hablbm R. R. Co 324 
 
 8. The plaintiffs brought this action against the defendant 
 
 who was their treasurer, for moneys in his possession, belong- 
 ing to them. There was no allegation in the complaint that a 
 demand had been made. 
 
 Beld, that the duty of a treasurer is to keep the moneys of 
 his principal distinct from his own, unless otherwise agreed, 
 and to pay, on demand, any balance due. 
 Second Atentte R. R. Co. vs. Colemak 270 
 
 9. Although he cannot be indebted untU a demand.be made 
 
 of him, an allegation in the complaint " that he is indebted," 
 with a statement of the items of money received by him, is an 
 allegation that all that is essential to make him indebted has 
 been done ; and consequently that a demand has been made. . . Id. 
 
 10. In such a case, the summons is a sufficient demand ; and 
 
 is sufficiently definite to be upheld on demurrer Id. 
 
 11. The complaint in an action against a railroad company 
 
 for damages for injuries, recited that the injury was caused by 
 the conductor giving the signal to start the car before the plaint- 
 iff was fairly on the car, whereby she was thrown to the 
 ground, etc., and then followed an averment that the conductor 
 acted in a negligent and culpable manner as aforesaid, and by 
 his wilfulness and gross neglect caused the injury. 
 
 Held, that the latter part of the averment might be rejected, 
 and that the recital of the facts coupled with the averment that 
 the conductor acted negligently,- was a sufficient averment of a 
 cause of action. 
 
 WiNTBKSON s«. Eighth Avenue R. R. Co 373 
 
 12. A complaint is sufficient if an averment of a good cause 
 
 of action can be gathered from it Id. 
 
 13. If the complaint was bad for duplicity, the defendants 
 
 should have demurred, and not having done so, were not enti- 
 tled to a nonsuit at the trial on that ground Id. 
 
 14. The only objections that can be taken to a complaint at 
 
 the trial are, that a cause of action could not be collected from 
 it, or that the court has no jurisdiction Id. 
 
 — - 15. The case on appeal did not contain the judge's charge 
 to the jury, nor did it appear that any exception had been 
 taken to the charge. 
 
 Held, that it was to be assumed that the charge was correct, 
 and that the questions involved were fully submitted to the 
 jury with all due and proper instructions Id. 
 
INDEX. 539 
 
 PLEADING— OfarafmMgfZ. page. 
 
 16. The objection that a bill is multifarious because it set 
 
 forth two distinct and independent grounds of complaint, is 
 obviated by the removal of one of those grounds by the defend- 
 ant, after the filing of the bill and before answer. 
 Whitney vs. Union Rt. Co • 433 
 
 Amendment of complaint by adding or substituting parties. 
 
 Davis m. Mayob, etc., op New York 235 
 
 POLICE COMMISSIONERS— 1. The police commissioners are 
 not state officers, within the meaning of the term, as used in 
 cAop. 48S of Laws of 1851, p. 9S0; and in a proper case may be 
 restrained by this court in the exercise of its equity powers, in 
 the same manner, and to the like extent, as other local or 
 county officers. 
 
 New York & Harlem R. R. Co., vs. Mayor, etc., of New 
 York.., 282 
 
 PRACTICE — 1. After all the evidence was given the trial court 
 held, that an action to prevent the construction of a railway 
 brought by a resident and taxpayer of the city who did not own 
 real estate on the street where the railway was proposed to be 
 laid and whom it would not specially injure, could not be 
 maintained by him, and made an order permitting the attorney 
 general to be added as a party plaintiff, and then gave judg- 
 ment for the relief asked. 
 
 Held, that such order was reviewable in the court of appeals. 
 
 Davib vs. Mayor, etc., of New York 235 
 
 2. The Code did not authorize the amendment and it was 
 
 error to grant the order Id. 
 
 8. An order to show cause should be considered as a notice 
 
 for all the purpostes of a motion, and that the moving party is 
 entitled to open and close the argument. 
 
 New York & Harlem R. R. Co. vs. Mayor, etc., of Net 
 York 282 
 
 4. An answer filed upon notice, after a motion for special 
 
 injunction, and before injunction granted, is to be treated as an 
 affidavit. 
 Deschamfb vs. Second & Third St. Pass. Ry. Co 342 
 
 5. A complaint is sufficient if an averment of a good cause 
 
 of action can be gathered from it. 
 WiNTERSoN vs. Eighth Avenue R. R. Co 372 
 
 ^6. If the complaint was bad for duplicity, the defendants 
 
 should have demurred, and not having done so, were not entit- 
 led to a nonsuit at the trial on that ground Id. 
 
 7. The only objections that can be taken to a complaint at 
 
 the trial are, that a cause of action could not be collected from 
 it, or that the court has no jurisdiction Id. 
 
540 INDEX. 
 
 FRACTICE—Oonttmied. page. 
 
 ; 8. The case on appeal did not contain the judge's charge to 
 
 the jury, nor did it appear that any exception had been taken 
 to the charge. 
 
 Seld, that it was to be assumed that the charge was correct, 
 and that the questions involved were fully submitted to the 
 jury with all due and proper instructions Id. 
 
 9. All the proceedings on the part of the plaintiff in an 
 
 action will be stayed until the costs of a previous action 
 brought for the same cause are paid, and also the costs of the 
 motion to stay. 
 Edwards w. Ndith Avenue R. R. Co 433 
 
 10. The objection that a bill is multifarious because it set 
 
 forth two distinct and independent grounds of complaint, is 
 obviated by the removal of one of those grounds by the defend- 
 ant, after the filing of the bill and before answer. 
 Whitney vs. Union Rt. Co 433 
 
 11. A judgment entered by an attorney after notice of a set- 
 tlement, between the parties, will be set aside on motion, pro- 
 vided he has failed to serve upon the defendant, a notice for- 
 bidding such a settlement. 
 McDowell »«. Second Avende R. R. Co 447 
 
 PRECEDENTS— 
 
 See CouBTS of Sistbe States, 1. 
 
 PRINCIPAL AND AGENT— 
 
 Duty of treasurer to keep money of his principal distinct from 
 
 his own. ' 
 
 See Tbeasuber, 1. 
 
 PUBLIC REPUTATION— 
 
 — '- As emdenee of ownership of property. 
 See Ownership, 1. 
 
 PURPRESTURB— 1. The laying of a railroad track in a street of 
 a city, or the running of the cars thereon, so long as the right 
 of passage and repassage for other purposes is not abridged or 
 obstructed, is not such an exclusive appropriation of the 
 street as to amount to a purpresture or a nuisance. 
 Drake m. Hudson River R. R. Co 10 
 
 2. A railway in a city is not per se a nuisance or a purpres- 
 ture. 
 Milhau vs. Sharp 58 
 
 RAILS— 
 
 See Track, 3, 3. 
 
INDEX. 541 
 
 RECORD — PAGE. 
 
 Of a prior deed is notice to a street railway company that has 
 
 purchased, of the restrictions contained in deed. 
 See Deeds, 3. 
 
 referee:— 1. The court will not set aside the report of a referee 
 upon the facts, even though after reading the evidence, the 
 court is of the opinion that it would have found differently, 
 unless the finding of the referee is so plainly against the weight 
 of evidence, or is so far without evidence in its support, as to 
 warrant the presumption of partiality or bad faith on his part or 
 unfairness or mistake in his application of some rule of law. 
 Mazbtti ««. New York & Hablbm R. R. Co 163 
 
 RESTRICTIONS— 
 
 In died. 
 
 See Deeds, 2, 3. 
 
 RIGHT or WAY— 
 
 See Collision, 8, 9. 
 
 SaZe of. 
 
 See Streets, 38-40. 
 
 ROAD, I.AW OF THE— 
 
 See Collision, 8, 9. 
 
 ROADS— 
 
 See Streets, 10-37. 
 
 ROUTE— 1.. Defendants' charter, ««c. 7, read as follows: "The 
 president and directors of the said company be and they are 
 hereby authoiized and invested with all the rights and powers 
 necessary and expedient to survey, lay out, and construct a 
 railroad from some suitable point in the township of Orange, in 
 the county of Essex, to some suitable point in Orange street, or 
 some street north of said street, or south of Market street, in 
 the city of Newark." 
 
 Held, that the enactment related not to the route, but to the 
 termination of the road. 
 
 Held, further, that there was nothing in the act to prohibit the 
 company from running their road through Market street ; the 
 statute was complied with when the company's terminus was at 
 a point south of Market street, whether that point was in a 
 street south of Market or not. 
 
 McFabland vs. Orahgb & N. Horse Car R. R. Co 481 
 
 Street railway company to purchase stock of omnibus lines. 
 
 See Charter, 1-5. 
 - — ■ Sale of right of way over. 
 
 See Streets, 37-39. 
 Extension of, in city of Chicago. 
 
 See Charter, 14, 15. 
 
.'>42 INDEX. 
 
 PAGE. 
 
 SEAL— 1. When a grant is by an act of legislation, and not by 
 individuals, pursuant to it, a seal is unnecessary. 
 Wbtmorb m. Stoet 300 
 
 SERVITUDE — 1. Authority to lay and use a horse railroad track 
 is not a new servitude imposed upon the land. 
 
 Elliott m. Fair Haven & Westville R. R. Co 473 
 
 See also Stkebts, 3, 8 ; Eminent Domain, 7, 9. 
 
 SETTIiEMENT— 
 
 Between street railway company and plaintiff , when invalid. 
 
 See Attorney and Client, 1. 
 When invalid. 
 
 See Attorney and Client, 3, 3. 
 
 SPEED — RATE OF — ^1. A railroad company has the right, and, 
 in reference to passengers, are bound, to move at the rate of 
 speed usual for vehicles for the carriage of passengers, drawn 
 by horses, provided it can be done without preventing other 
 vehicles on the highway from moving at their usual rate of 
 speed. 
 Commonwealth vs. Temple 456 
 
 STABLE— 1. The record of a prior deed containing restrictions is 
 notice to a street railway company that had purchased a lot 
 from a grantee of the owner of the tract, and such restrictions 
 can be enforced in equity by such owner who continued to own 
 one of the lots and was not guilty of laches, to prevent the 
 erection of a stable by such railway company ; but a stable 
 already erected by the grantee with the knowledge of the 
 original grantor cannot be abated. 
 "Whitney vs. Union Ry. Co 433 
 
 2. Whether the erection of a stable is a "nauseous or offen- 
 sive business," within the meaning of those words as used in 
 the restrictive clause, qwwre Id. 
 
 STATUTES — 1. The action was brought under the law of 1847, 
 amended in 1849, which provides that the action may be main- 
 tained and damages recovered whenever a case occurs in which 
 if death had not ensued, the injured party could have main- 
 tained an action ; the principle of liability oh the part of the 
 defendant is the same. 
 
 Held, that it is not necessary for a recovery, that any actual 
 pecuniary loss should be proven ; mere proof of the death, and 
 that it was occasioned by the defendants' negligence, is suffi- 
 cient. 
 
 Olofield vs. New York & Harlem R. R. Co 168 
 
 3. The amended second section of the act, limited the 
 
 recovery to $5,000, and provides " that the jury may give such 
 
INDEX. 543 
 
 STATUTES— Cow^jrewd. page. 
 
 damages as they may deem a fair and just compensation with 
 reference to the pecuniary injuries, resulting from such death, 
 to the wife and next of kin of the deceased person." 
 
 Held, that the statute was intended to give damages for pros- 
 pective losses, and not for what could be proven ; and that 
 these damages were to be determined by the jury, after they 
 had before them all the facts and circumstances of the case ... Id. 
 
 3. These laws were intended to compel "persons and corpora- 
 tions engaged in a business which endangered the lives of 
 citizens, to be careful, and in cases of failure, to punish them 
 for their negligence , Td. 
 
 4. The verdict of the jury for $1,300, in this action brought 
 
 by an administrator for the benefit of the mother of the child, 
 held to be not excessive Id 
 
 5. The power to sell the right of way in streets was con- 
 ferred upon the city of New Orleans by its charter and upon all 
 incorporated cities or towns in the state of Louisiana by the act 
 of 1855. 
 Browk vs. Duplbssis : 404 
 
 6. An act of the legislature, which provided that where 
 
 appraisers appointed to assess the amounts to be paid by any 
 city passenger railway company have failed to agree, other 
 appraisers shall be appointed by the district court, Jias no 
 application. 
 MooBE 118. Gbbbn & CoATEB St. Pass. Rt. Co 409 
 
 Action for death, under. 
 
 See Negligence, 23, 23. 
 Right of election under, once exercised, exhausted. 
 
 See Charter, 7. 
 
 Inflicting penalty for performing worldly employment on 
 
 Sunday. 
 
 See Sunday, 2-6. 
 
 Ihe Illinois act of February 12, 1855, held to relate to street 
 
 railways. 
 
 See Charter, 14, 15. 
 Indictment under, for wilful obstruction of street railway car. 
 
 See Track, 8, 9. 
 
 STEAM CARS— 
 
 See Collision. 5, 6. 
 
 Ordinance pi-ohibiting use of. 
 
 See Ordinance, 5-14, 
 
 STOCEHOIiDERS— 1. The complainant, an owner of property in 
 the vicinity of the northern terminus of the road, was the owner 
 of but one share of stock in the defendant company, purchased 
 
544 INDEX. 
 
 STOCKSOIjJiERS— Continued. page. 
 
 after the road was being used and for the purpose of commenc- 
 ing this action. 
 
 Held, that he had such an interest in the railroad as would 
 entitle him to a hearing in court. 
 
 Mabtin lis. Second & Third Street Pass. Rt. Co 358 
 
 When inay he witnesses. 
 
 See Witness, 2, 3. 
 
 STOCK SUBSCRIPTIONS— 1. The general railroad act of July 
 19, 1849, of Pennsylvania, is opposed to monopolies. The policy 
 . of the act is to prevent condensations of the stock into a few 
 hands. 
 Thomas m. Citizens' Pass. Rt. Co 399 
 
 3. The discretionary power vested in commissioners ap- 
 pointed under the act, to accept or reject proposals for stock 
 subscriptions of a horse railroad company, was properly 
 exercised when the commissioners rejected a proposal made by 
 one person, to subscribe for 5,000 shares of the stock, the 
 capital stock being 10,000 shares Id. 
 
 3. One who proposes to subscribe for stock in a horse rail- 
 road company as " Trustee,'' must disclose the cestui que trust, 
 or the commissioners may properly refuse the subscription. . . . Id. 
 
 4. Commissioners, named in an act of assembly incorporat- 
 ing a railway company, to open books for stock subscriptions, 
 adopted a resolution that no person should have the privilege 
 of subscribing for more than two hundred shares of stock on 
 the first day. 
 
 Held, that the commissioners had discretionary power in 
 the matter and that the measure was a proper one to adopt. 
 
 Beowek vs. Second & Thibd Street Pass. Rt. Co 303 
 
 5. The complainant proposed to subscribe for twenty-six 
 
 hundred shares, and upon refusal of the commissioners to 
 accept the subscription asked for an injunction. 
 
 Held, that his offer to subscribe and his tender of the amount 
 of the first instalment gave him no equity, and that he had no 
 standing in court, as he made no offer of a subscription within 
 the prescribed limits Id. 
 
 6. The commissioners could not lawfully take any subscrip- 
 tions with closed doors ; the law requires the books to be 
 opened and the public to have an opportunity to subscribe ; but 
 that whether the subscriptions were properly taken or not 
 could not be inquired into in this proceeding Id. 
 
 STREETS— 1. A properly constructed and authorized railroad 
 running through the streets of a city is not a nuisance. 
 Hamilton vs. New York & Harlem R. R. Co 1 
 
INDEX. 545 
 
 STREETS — Gontinued. page. 
 
 3. The laying of a railroad track in the street of a city, or 
 
 the running of the cars thereon, so long as the right of passage 
 and repassage for other purposes is not abridged or obstructed, 
 is not such an exclusive appropriation of the street as to 
 amount to a purpresture or a nuisance. 
 Dbake »«. Hudson River E. R. Co. 10 
 
 3. A slight change made in the surface of the streets by 
 
 reason of the rails being laid therein, is not such an infringe- 
 ment of private rights as calls for redress ; provided the pass- 
 age for the public is left free and unobstructed Id. 
 
 4. That the owners of property bounded upon streets in a 
 
 city have rights in those streets, and an interest in the mainten- 
 ance of them in their' integrity is undeniable ; but it is equally 
 true that such right and interest consists in the use, benefit 
 and enjoyment of them as public streets or highways for the 
 legitimate uses and purposes of streets, and no more. The 
 abutting owners have no private or exclusive right to, or prop- 
 
 • erty in the use or enjoyment of, them Id. 
 
 5. All other citizens have an equal right with such owners 
 
 to use the public streets, and the railroad company as part of 
 that public, have the same right, in common with others, to 
 use the same under the rules and regulations prescribed by the . 
 proper authority, for the purposes to which the lands forming 
 the streets were dedicated to the public, or taken by the corpora- 
 tion for public purposes Id. 
 
 6. The corporation of the city of New York have the man- 
 agement and regulation of the public streets, and of the use of 
 them for the trusts and purposes of the dedication or establish- 
 ment of them ; they prescribe the width of the sidewalks and 
 of the carriageway, license the partial and temporary use of 
 parts of them for necessary private purposes, permit or pro- 
 hibit special uses for particular objects, grant rights and priv- 
 ileges for private uses, etc. 
 
 Held, that for these purposes the legal title to the land or soil 
 of the streets was vested in the corporation, subject to the pub- 
 lic use of them as streets Id. 
 
 7. And the corporation of the city, as the owners of 
 
 the legal title to the soil of the streets, are the only parties 
 whose rights of property are violated, or whose ownership may 
 be said to be usurped by the construction of a railroad through 
 such streets. They are the only ones who could claim to have 
 the rails removed, or the proceedings of the railroad company 
 arrested until compensation should be made Id. 
 
 8. The use of a street for a railroad consists merely in adapt- 
 ing its surface to a particular mode of conveyance ; and when 
 
546 INDEX. 
 
 STB.EE'TS— Continued. pagk. 
 so adapted the running of a railroad car is no more an exclu- 
 sive appropriation of the street, than the running of any other 
 species of cotiveyance would be Id. 
 
 9. The corporation of the city of New York has the power 
 
 and right to authorize the use of its streets for the purposes of a 
 railway. 
 MiLHAU w^Shakp 58 
 
 10. According to the ancient rule of the common law which 
 
 has always been adopted in this state, the public have no other 
 right in a highway in the country than that of passage and 
 repassage, and any interference with the soil, other than such 
 as may be regarded as necessary to the enjoyment of this right, 
 will be considered a trespass, and an action will lie in favor of 
 the owner of the fee. But there is a wide difference between a 
 highway in the country, and a street in a populous commercial 
 city Id. 
 
 11. It is an elementary principle of the law that where a 
 
 power, right or thing is granted, either to a natural or an artifi- 
 cial person, all the incidents are granted which are necessary to 
 the enjoyment of the power, right or thing. Whether the' cor- 
 poration of the city of New York be the owner of the fee of the 
 streets in trust for the public, or whether it be merely the trus- 
 tee of the streets and highways as such, irrespective of any 
 title to the soil, it has the power to authorize their appropria- 
 tion to ail such uses as are conducive to the public good and do 
 not interfere with their complete and unrestricted use as high- 
 ways ; and in doing so, it is not confined to such uses as have 
 already been permitted. As civilization advances, new uses 
 may be found expedient Id. 
 
 12. The common council of the city of New York while 
 
 acting in the exercise of its public political powers, and within 
 the limits of its charter, is vested with the Jargest discretion. 
 And whether its laws are wise or unwise ; ^whether they are 
 passed from good or bad motives, it is not the province of the 
 Supreme Court to inquire. But, as regards the acts of the cor- 
 poration in reference to its private property, it stands upon a 
 very different footing. Such property is held for the common 
 benefit of all the corporators. In respect to that, the corpora- 
 tion is charged with high duties. It is the depositary of a trust 
 which it is bound to administer faithfully, honestly and justly. 
 And if it disposes of its property of great value, without any or 
 for a nominal consideration it is guilty of a gross breach of 
 trust and Will stand upon the same footing as the representative 
 of a private individual, or of a private corporation Id. 
 
 13. The mere fact that the forms of legislation are used will 
 
INDMX. 547 
 
 STREETS — Continued. pagk. 
 
 make no difference in the character of the act. It will be in no 
 sense the exercise of a political power delegated for public pur- 
 ' poses. When a public corporation acts in reference to its 
 private property, its acts are equally of a private -(jharacter, and 
 subject, like those of a private corporation, to judicial control. M. 
 
 14. The streets, in the city of New York are a species of 
 
 property, held by the city and subject to the sanle trusts and 
 duties as its other property Id. 
 
 15. The defendants obtained a grant from the common coun- 
 cil of the city of New York by which authority was given to 
 lay railr(jfid tracks in Broadway. The terms were not as advan- 
 tageous to the citj' as others oftered. 
 
 Held, that the corporation, in making the grant in question, 
 was guilty of a clear breach of trust ; and that the court was 
 bound to "prevent the grant thus illegally made from being 
 carried into effect. 
 
 BeXd, also, that the plaintiffs, as owners of property and tax- 
 payers had such an interest in preventing the grant from being 
 carried into effect that they had a right to institute this suit in 
 their own names, and that an injunction should be issued 
 against the defendants in pursuance of the prayer of the corft- 
 plaint Id. 
 
 16. The legislative action of a municipal corporation cannot 
 
 be Restrained by injunction. And a common council, in grant- 
 
 > ing permission to lay a railway track in a city street, although 
 forbidden to do so by injunction, will not be guilty of a criminal 
 contempt. The grant will not be void because made in defiance 
 of the injunction • Id. 
 
 17. The plaintiff brought this action for damage* for injur- 
 ies to himself and his horse and cart, received in a collision 
 with the cars owned by tHe defendants, and operated by 
 machinery through certain streets in the city of San Francisco, 
 under a license from the city council. 
 
 Beld, that where the streets of a city are diverted from their 
 ordinary anti legitimate uses, by special license, to a private 
 person, for his own benefit, and for the pursuit of a business 
 which involves constant risk and danger, such person is bound, 
 in the exercise of such right, to use extraordinary care. 
 
 Wilson ««. Cunningham 103 
 
 18. By the Dongan charter the corporation of the city of 
 
 New York was invested with full power and authority over and 
 concerning the streets of the city. This power has never been 
 withdrawn or essentially chaQged. The corporation yet has 
 the exclusive right to control and regulate the use of the streets 
 in the city. In this respect, it is endowed with legislative'sov- 
 
548 INDEX. 
 
 STREETS— Continued. page 
 ereignty ; and the exercise of that sovereignty has no limit, so 
 long as it is within the objects and trusts for which the power 
 is conferred. 
 MiLHAu m Shabp Ill 
 
 19. An ordinance regulating a street is a legislative act, 
 
 entirely beyond the control of the judicial power of the state. . . Id. 
 
 30. But a resolution of the common council granting author- 
 ity and license to a number of individuals designated as the 
 associates of the Broadway Railroad, to lay tracks for a railway 
 in Broadway and to run cars and carry passenger!, etc., upon 
 certain conditions and stipulations, and conferring privileges 
 exclusive in their nature and designed to be perpetual in their 
 duration, is not a legislative act, regulating the use of the 
 street, but is a grant of the use itself, to the extent specified in 
 the resolution, and void Id. 
 
 21. Because in its essential features it is a contract. The 
 
 corporation for what they deem an adequate consideration 
 assumes to surrender a portion of their municipal authority 
 and in legal effect agrees with the defendants that so far as they 
 may have occasion to use 'Broadway for the purpose of con- 
 structing and operating their railroad, the right to regulate and 
 control the use of the street shall not be exercised Id. 
 
 22. The powers of a municipal corporation may be surren- 
 dered but only by authority of the legislature Id. 
 
 33. The common council cannot divest itself of, nor abridge, 
 
 its legislative discretion to alter and regulate the streets as it 
 may deem expedient, nor has it any power to prohibit such use 
 of them as the legislative authority of the state has granted to 
 every citizen as a matter of strict right. 
 Attobney Ubnekal, etc., vs. Matok, etc., of New Yobk. 123 
 
 24. A railroad company duly authorized to lay its track in 
 
 one of the streets of the city, is not liable, for accidents which 
 may occur by reason thereof, unless there was negligence or 
 want of skill in the manner of laying the rails or in maintain- 
 ing the same. 
 Mazetti bs. New York & Harlem R. R. Co 163 
 
 25. And in order to maintain an. action by one who was 
 
 exercising the common right of passing over the street, for 
 injuries received, proof of such negligence or want of care or 
 skill in the manner of constructing or maintaining the track, is 
 necessary Id. 
 
 26. The legislature has no power to establish a railroad in a 
 
 street in New York City without the assent of the corporation, 
 except upon the ground of public necessity, and it must then 
 
INDEX. 549 
 
 STREElTB— Continued. pagb, 
 provide for compensation for a surrender of a right in prop- 
 erty. 
 Hope vs. Sixth & Eighth Avenue R. E. Cos 179 
 
 27. In the country the possession of land adjoining a public 
 
 highway is some, aithough not conclusive, evidence of the 
 possession of the adjoining half of the road, subject to the 
 public easement, and the owners retain some rights in the soil. 
 But in cities the owners of the strata of the streets cannot 
 exercise any acts of possession, for their individual benefit, 
 nor have they any possession which can raise a presumption of 
 title. 
 Wbtmorb m. Stoky 200 
 
 28. Property bounded by streets in general terms, in deeds, 
 
 carries the title to the centre of the streets, providing the vendor 
 had the title to the centre Id. 
 
 29. An injunction will not be granted to the owners of the 
 
 soil of a city street to protect their interest therein, as such 
 interest is of merely nominal value Id, 
 
 30. A resolution of the common council of the city of New 
 
 York granted to an association of persons the right to construct 
 and maintain, for. a term of years, a railway in one of the 
 streets of the city, for the transportation of passengers for 
 private gain. 
 
 HM. that the corporation of the city of New York has not, 
 by virtue of its general power over the streets of the city, 
 authority to grant such a right and that such resolution was 
 void. 
 
 Davis m. Match, etc., op New Yoek 235 
 
 31. Whether the municipal government of New York by 
 
 mere license may authorize the construction and maintenance 
 of railroads in streets discussed by Denio, C. J., and Com- 
 8T0CK, J Id. 
 
 32. An action to prevent the construction of a railway was 
 
 brought by a resident and taxpayer of the city who did not own 
 real estate on the street where the railway was proposed to be 
 laid and whom it would not specially injure. 
 Held, that he could not maintain the action Id. 
 
 33. A city railroad company, having obtained the proper 
 
 legal authority to do so, constructed a railroad, and ran its cars 
 thereon through the streets of the city of New York. 
 
 Held, that the public, nevertheless had the right to drive 
 upon and across their track, but not so as to interfere with the 
 business of the company. 
 
 WiLBKAND w. Eighth Avenue R. R. Co 307 
 
 36 
 
550 INDEX. 
 
 STREETS— Continued. page. 
 
 34. The use of a street for a railway, whether the fee of the 
 
 street is in the adjoining owners or not, is not a " taking " of 
 private property for public use, within the meaning of the con- 
 stitutional prohibition. The damages to private property are 
 not direct but consequential. 
 Faubt vs. Bbcokd & Third Street Pass. Rt. Co 313 
 
 35. An unauthorized construction of a railway in the streets 
 
 of a city is & public nuisance, and will be restrained by injunc- 
 tion, by a court of equity, at the suit of an owner of property 
 on one of the streets of the proposed route. On the other 
 hand as the highways of the state are under the absolute con- 
 trol of the legislature, it may authorize the construction of a 
 railroad along the line of any street, and when thus authorized, 
 the road cannot be deemed a nuisance ; and neither the local 
 authorities, nor any individual, can successfully interfere to 
 prevent its construction Id. 
 
 36. Owners of lots, upon the public street of a city, may 
 
 maintain an action to enjoin the construction in such street 
 of a railway, which would be specially injurious to their 
 property. 
 MiLHAU w. Sharp 334 
 
 -37. The footway of a public street or highway is in no sense 
 
 private property and an injunction will not be granted to the 
 owner of the lot adjoining the footway to restrain a railroad 
 company from laying rails across a portion of the footway. 
 Clark m. Second & Third Street Pass. Ry. Co 336 
 
 38. The city of New Orleans offered for sale the right of 
 
 way in its streets to certain private individuals, for twenty 
 years, for the establishment of a horse railroad, the cars to be 
 run according to a tariff fixed by the common council. Plaint- 
 iffs, who were property owners in the city, prevented the sale 
 by an injunction. 
 
 Held, that the power to sell the right of way was conferred 
 upon the city by its charter and upon all incorporated cities or 
 towns in the state by the act of 1855. 
 
 Brown vs. Dttplessis 404 
 
 39. The selling of this right of way is not an alienation 
 
 or appropriation of a portion of the public streets for private 
 uses.. Id. 
 
 40. The streets are destined for public use, but not for a 
 
 particular mode of public use Id. 
 
 41. A charter of a street railroad company, which granted 
 
 the privilege to construct a railroad 'on certain streets, upon 
 
INDEX. 551 
 
 STREETS— Coji«m«e<i. page. 
 
 which another company was authorized by its charter, pre- 
 viously granted, to construct a railroad, was invalid. 
 
 Second & Third Stbket Pass. Ry. Co. m. Green & Coates 
 Stbeet Pass. Ry. Co 418 
 
 43. A company was duly authorized to lay and use a horse 
 
 railroad track in a public street in a city. 
 
 Held, that such authority was not a new servitude imposed 
 upon the land, for which the owners of the fee were entitled to 
 compensation, but that it was only another way of using the 
 highway by the public. 
 
 Elliott m. Fair Haven & Wbstville R. R. Co 473 
 
 Bights of pedeatnctns in, as between them and railway com- 
 panies. 
 
 Johnson m. Hudson River R. R. Co 254 
 
 Ordinance forbidding use of steam, on, not a violation of 
 
 fra/nchise — contract depriving municipal authorities of control of 
 streets, void — permitting tracks to be laid upon streets, is devoting 
 them to an exclusive use. 
 
 New York & Harlem R. R. Co. vs. Mayor, etc., op 
 New York .283 
 
 Omnibus lines on, to be purchased by street railway company. 
 
 See Charter, 1-5. 
 
 When city councils may prevent use of. 
 
 See Charter, 7. 
 
 See also Injunction, 3-6. 
 
 SUMMONS — 1. The plaintiffs brought this action against the 
 defendant who was their treasurer, for moneys in his posses- 
 sion, belonging to them. There was no allegation in the com- 
 plaint that a demand'had been made. In such a case, the sum- 
 mons is a sufficient demand ; and is sufficiently definite to be 
 upheld on demurrer. 
 Second Avenue R. R. Co. vs. Coleman 370 
 
 SUNDAY — 1. It is provided by the 4th section of the act of April 
 2d, 1849, of New York, that " neither board shall adjourn for a 
 longer period than three days, except by a resolution to be con- 
 curred in by the other body." One of the boards adjourned 
 without the concurrence of the other from the 4th to the 8th of 
 November. The 7th of November was Sunday. 
 
 Sdd, not an adjournment for more than three days. 
 
 MiLHAU vs. Sharp 58 
 
 2. The act of 33d of April, 1794, of Pennsylvania, inflicted a 
 
 penalty upon those who performed worldly employment on the 
 " Lord's day, commonly called Sunday." The penalty imposed 
 ' was a fine of four dollars for each offense. 
 
552 INDEX. 
 
 SanmAY—Gontinued. page. 
 Seld, that the driver of a horse car was doing worldly, 
 employment within the meaning of the statute. / 
 Commonwealth b8. Jbandell 385 
 
 3. The driver of the car was also guilty of a breach of the 
 
 peace, The law gives to the public the right of enjoying the 
 Sabbath; as a day of rest and o£ religious exercise, free and 
 clear of all disturbance from merely unnecessary and unau- 
 thorized worldly employment. Where this law is contravened 
 in such a manner as to disturb that enjoyment, by noise or dis 
 order accompanying it or incident to it, it may be treated as a 
 breach of the peace , Id. 
 
 4. Sunday, or the first day of the week, is a part of Christi- 
 anity. 
 Commonwealth vs. Jeandell 433 
 
 5. By the common law of the commonwealth, every citizen 
 
 is entitled to enjoy the first day of the week in undisturbed 
 quiet and repose, and whatever actual noise or disorder hin- 
 ders seriously, or destroys altogether, this inalienable right, is, 
 and always has been a breach of the peace Id. 
 
 6. The defendant, a driver of a horse car was arrested for 
 
 committing a breach of the peace, in driving the car on Sun- 
 day. It was proved that some passengers in the car had made 
 considerable noise and that a number of people gathered, when 
 the car was stopped by the officer making the arrest. The car 
 had only proceeded two squares when the arrest was made. 
 Eeld, that the defendant was not guilty of a breach of the 
 ' peace. That he was not responsible for the acts of the passen- 
 gers or of the people who were in the crowd Id. 
 
 SUPERINTENDENT— 
 
 Power of, to contract. 
 
 See AsENCY, 1. 
 
 TAXPAYER— 
 
 Action by, to prevent construction of railway. 
 
 See Streets, 32. 
 
 TERMINUS— 
 
 See RoTJTE, 1. 
 
 TIME -1. It is provided by the 4th section of the act of April 2d, 
 1849, of New York, that "neither bd&rd shall adjourn for a 
 longer period than three days, except by a resolution to be con- 
 curred in by the other body." One of the boards adjourned 
 without the concurrence of the other from the 4th to the 8th 
 of November. The 7th of November was Sunday. 
 
 Held, not an adjournment for more than three days. 
 
 Milhau m. Shabp 58 
 
■ INDEX. 553 
 
 PAGE. 
 
 TRACE — 1. The justice, when requested, refused to charge that 
 the defendants had a right to travel on the left hand track of 
 the road. 
 Held, error. 
 
 AliTBBUTER vs. HUDSON RiVEK R. R. OO 100 
 
 2. A railroad company duly authorized to lay its track in one 
 
 of the streets of the city, is not liable, for accidents which may 
 occur by reason thereof, unless there was negligence or want of 
 skill in the manner of laying the rails or in maintaining the 
 same. 
 Mazetti vs. New York & Harlbm R. R. Co 163 
 
 3. And in order to maintain an action by one who was exer- 
 cising the common right of passing over the street, for injuries 
 received, proof of such negligence or want of care or skill in 
 the manner of constructing or maintaining the track, is neces- 
 sary i Id. 
 
 4. A cart or carriage about to meet a railroad car must yield 
 
 the whole track ; bt)t there is no greater obligation to turn to 
 the right side than to the left. 
 He&an vs. Eighth Avenue R. R. Co 373 
 
 5. A city railroad company, haying obtained the proper legal 
 
 authority to do so, constructed a railroad, and ran its cars there- 
 on through the streets of the city of New York. 
 
 HeM, that the public nevertheless had the right to drive 
 upon and across their track, but not so as to interfere with the 
 business of the company. 
 
 Wllbband vs. EiaHTH Avenue R. R. Co 307 
 
 6. A street railway company is entitled to the unrestricted 
 
 use of its rails, for the progress of its cars, within that limit of 
 speed which the law allows them ; and that as between them 
 and the driver of any other vehicle who may be upon their 
 track, in front of one of their cars, the latter, being unneces- 
 sarily there, must exercise more care than he would if he were 
 upon the common pavement, to see that an approaching car 
 is not impeded, and if through negligence or wilfulness on his 
 part in this respect, a collision ensues, he should not have 
 damages againjt the company, even if the latter are also in 
 fault Id. 
 
 7. An unauthorized occupancy of a street by railroad tracks 
 
 upon it, is a nuisance pm- se, and may be enjoined, and the 
 removal of the tracks may be compelled by aily citizen. 
 MusBGK vs. Faibmount & Abch Street Rt. Co 866 
 
 8. The defendant, with a heavily loaded team was driving 
 
 on one of the public streets, with one of the wheels of the 
 wagon in the track of a railroad, when a car belonging to the 
 
 37 
 
554 INDEX. 
 
 TRACK— Oontinued. page. 
 
 railroad company came up behind him. The defendant's team 
 was moving at the usual rate for teams of that class, but at a 
 less rate of speed than the cars were in the habit of moving. 
 There was room outside the track for either vehicle to pass the 
 other. When the car came up, the conductor asked the defend- 
 ant to remove from the track, but he refused, and continued at 
 the same rate of speed for several hundred feet, and then turned 
 off. It was shown that it was usual and much easier to drive 
 such wagons with one wheel upon the railroad track. It was 
 also shown that defendant had no intention of obstructing the 
 cars of the railroad company and continued on the track, with- 
 out intending to obstruct them, but merely for his own con- 
 venience. 
 
 Held, that defendant was liable to indictment under a a statute 
 prohibiting the wilful and malicious obstruction of the railroad. 
 
 Commonwealth vs. Tbmple 456 
 
 9. A railroad company have the right, and, in reference to 
 
 passengers, are bound, to move at the ra*e of speed usual for 
 vehicles for the carriage of passengers, drawn by horses, pro- 
 vided it can be done without preventing other vehicles on the 
 highway from moving at their usual rate of speed Id. 
 
 Power of common council of New York City to restrict manner 
 
 in which rail-tracks shall be used. 
 See Okdinance, 6, 10. 
 Injunction will not be granted restraining laying of, on 
 
 See Injunction, 14. 
 
 Extension and connection of tracks of two street railways in 
 
 city of Chicago. 
 
 See Chaktbr, 14, 15. 
 Laying and use of, on streets not a new servitude. 
 
 See Streets, 43. 
 
 TREASURER— 1. The plaintiffs brought this action against the 
 defendant who was their treasurer, for moneys in his posses- 
 sion, belonging to thetn. There was no allegation in the com- 
 plaint that a demand had been made. 
 
 Held, that the duty of a treasurer is to keep the moneys of 
 his principal distinct from his own, unless otherwise agreed, 
 and to pay, on demand, any balance due. 
 
 Second Avenue R. R. Co. vs. Coleman 370 
 
 TRESPASS — 1. According to the ancient rule of the common law 
 which has always been adopted in the state of New York, the 
 public have no other right in a highway in the country than 
 that of passage and repassage, and any interference with the 
 soil, other than such as may be regarded as necessary to the 
 
INDEX. 555 
 
 TRESPASS— C<mfo>M«ri!. page. 
 enjpyment of t^is right, -will be considered a trespass, and an 
 action will lie in favor of the owner of the fee. But there is a 
 wide difference between a highway in the country, and a street 
 in a populous commercial city. 
 MiLHAu i!f. Shabp 58 
 
 TRUST — 1. It is an elementary principle of tlie law that where a 
 power, right or thing is granted, either to a natural or an artificial 
 person, all the incidents are granted which are necessary to the 
 en joymjent of the power, right or thing. Whether the corpora- 
 tion of the city of New York be the owner of the fee of the 
 . streets in trust for the public, or whether it be merely the 
 trustee of the streets and highways as such, irrespective of any 
 title to the soil, it has the power to authorize their appropria- 
 tipn to all such uses as are conducive to the public good and 
 ^o not interfere with their complete and unrestricted use as 
 highways ; and in doing so, it is not confined to such uses as 
 have already been permitted. As civilization advances, new 
 uses may be found expedient. 
 MiLHATj vs. Sharp 58 
 
 2. The common council of the city of New York while act- 
 ing in the exercise of its public political powers, and within 
 the limits of its charter, is vested with the largest discretion. 
 And whether its laws are wise or unwise ; whether they are 
 passed from good or bad motives, it is not the province of the 
 Supreme Court to inquire. But, as regards the acts of the 
 corporation in reference to its private property, it stands upon 
 a very different footing. Such property is held for the com- 
 mon benefit of all the corporators. In respect to that, the cor- 
 poration is charged with high duties. It is the depositary of a 
 trust which it is bound to administer faithfully, honestly and 
 justly. And if it disposes of its property of great value, with- 
 out any or for a nominal consideration, it is guilty of a gross 
 breach of trust and will stand upon the same footing as the 
 representative of a private individual, or of a private corpora- 
 tion Id. 
 
 3. The mere fact that the forms of legislation are used will 
 
 make no difference in the character of the act. It wUl be in 
 no sense the exercise of a political power delegated for public 
 purposes. When a public corporation acts in reference to its 
 private property, its acts are equally of a private character, and 
 subject, like those of a private corporation, to judicial control. Id, 
 
 4. The streets in the city of New York are a species of prop- 
 erty, held by the city and subject to the same trusts and duties 
 as its other property. The defendants obtained a grant from 
 the common council of the city of New York by which author- 
 
556 INDEX. 
 
 TRVBT—Gontiniied. page. 
 
 ity was given to lay railroad tracks in Broadway. The terms 
 were not as advantageous to the city as others offered. 
 
 HM, that the corporation, in making the grant in question, 
 was guilty of a clear breach of trust ; and that the court was 
 bound to prevent the grant thus illegally made from being car- 
 ried into effect Id. 
 
 TRUST— BREACH OF. 
 
 See Injunction, 3. 
 
 TRUSTEE — 1. One who proposes to subscribe for stock in a rail- 
 road company as "Trustee," must disclose the cestui que trust, 
 or the commissioners may properly refuse the subscription. 
 Thomas vs. Citizens' Pabb. Rt. Co 399 
 
 TURNPIKE COMPANY— 1. An act of assembly authorized the 
 construction of a horse railroad upon the roadway of a turnpike 
 company incorporated by a previous act of assembly. The sub- 
 sequent act provided for the compensation for the taking of the 
 roadway. 
 
 Seld, that the subsequent act was not unconstitutional. 
 
 In ke Citizens' Pass. Rt. Co 376 
 
 VEHICIiE — 1. The degree of care required from persons driving 
 vehicles upon a thoroughfare, as well as from those walking 
 thereon, varies according to the circumstances of the case. 
 Johnson w. Hudson River R. R. Co 393 
 
 Oolliding with ra/ilway ea/r, etc. 
 
 See Collision, 1-17 ; Negligence, 1-3. 
 Obstructing railway track by. 
 
 See Tback, 8, 9. 
 
 VERDICT- 1. The court will not set aside a verdict, (after two 
 trials, in both of which the verdict was substantially the same,) 
 merely because it deems the evidence greatly preponderating 
 in defendants' favor upon a question of negligence ; but where 
 the jury also found on a question of damages contrary to the • 
 views of the court upon the testimony, the coincidence 
 strengthens the apprehension, that bias, partiality or undue 
 influence operated on the minds of the jury, and would seem 
 to require the interference of the court. 
 GiLLiGAS m. New York & Harlem R. R. Co 48 
 
 3. The verdict of the jury for $1,300, in this action brought 
 
 by an administrator for the benefit of the mother of the child, 
 held to be not excessive. 
 Oldfirld vs. New York & Harlem R. R. Co 1(58 
 
 Oontra/ry to evidence, should he set aside. 
 
 See Negligence, 38. 
 
INDEX. 557 
 
 FAOE. 
 
 WITNZiSS — 1. Action brought to recover damages caused by the 
 driver of an omnibus, alleged to be the property of the defend- 
 ants, for negligently running it against the plaintiff's carriage. 
 
 Held, that in order to recover, it was not necessary for the 
 plaintiff to prove a legal title to the omnibus in the defendants ; 
 ihai. .prima fade evidence of title such as public reputation was 
 suflScient ; and the court having refused to allow a witness to 
 answer whether IJie defendants were not generally reputed to be 
 the owners of the omnibus, it was held error. 
 
 Hakt vs. New Obleanb & Cabbollton R. R. Co 4 
 
 8. A corporation cannot offer its stockholders as witnesses ; 
 
 but those opposing may, and when once admitted they may be 
 , cross-examined, and give evidence in favor of, as well as against 
 their interests, on points as to which they are called to testify. . . Id. 
 
 3. In a suit against a corporation all the individuals owning 
 
 the stock are not cited, but only those agents and officers whom 
 the law designates to manage its affairs. 
 
 Held, therefore, that the exclusion of the evidence of a wit- 
 ness on the ground of his being a stockholder in the company, 
 and that he could not be interrogated except on facts and 
 articles, was error Id 
 
/