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name, nor does the object of the act purport to be to the ferries running between Whitehall street in the add to the privileges or franchises of that company. In city of New York and the city of Brooklyn.” The case the company should, under the authority of the power to acquire title to the additional slip is granted, act, procure the condemnation of the property in not to the Union Ferry Company, but to "the lessees" question, it would not aoquire the property as its own, of the designated ferry, whoever they may be. The but would hold it merely temporarily and could use it name of the Union Ferry Company does not appearin only under its lease from the city of New York of the the act, except as identifying the ferry as the one ferry franchise. The newly acquired property would which was at the time being operated by the company become simply an addition to the ferry described in named, and in a declaration that that company is not the act, which ferry is under the control of the city, | authorized to acquire the fee of any property owned and by it leased to the ferry company. On the expir- by the city of New York. If the Union Ferry Com. ation of its present lease this property would have to pany should not acquire the title during the term of be surrendered to the city or to any subsequent lessee its lease, any subsequent lessee of the ferry, whether a of the ferry. The company would have no power of corporation or an individual, would become entitled disposition over it, but only the right to be paid for it to proceed under the act. Whoever might become by the subsequent lessee of the city, as other property lessee after the acquisition of the title would, under appertaining to the ferry has to be paid for on a change section 3 of the act, be entitled and required to take of lessees of the ferry.

the property and bound to pay his predecessor for it. All this appears from the act itself, and the general | And section 3 further provides that after the title to system upon which the ferries of the city of New York the property is acquired according to the provisions of are established and conducted.

the act, it shall be devoted to and used exclusively for By the Montgomeri Charter, section 37, Valentine's the ferry-slip accommodations mentioned. Laws, 243, the ferries on both sides of the East river, The whole frame and context of the act are consist. and all other ferries then or thereafter to be erected ent with the view that its object was not to grant any and established all around Manhattan island, and the privilege or franchise to the Union Ferry Company as management and the rule of the same, were granted to a corporation, but as stated in the title of the act, to the mayor, aldermen and commonalty of the city of add to the ferry slips and facilities of the particular New York.

ferry which the company named was at the time oper. In Costar v. Brush, 25 Wend. 628, it was held that ating. Such additional facilities would increase the under this provision of the charter, the corporation of capacity not only of that company, but of all future the city possessed the same power in respect to the esa lessees of the ferry, to meet the wants of the public, tablishment of ferries across the East river, that be- but those increased facilities would be enjoyed by the fore belonged to the crown or the Legislature, and that Union Ferry Company only under its lease from the the grant by the city to the lessees of the Fulton ferry city. They would terminate with that lease and pass of an exclusive privilege by covenanting that the city to the succeeding lessee. The property oould not be would not, during the existence of the lease, permit used for any purpose except the exercise of the ferry any other ferry between New York and Brooklyn to franchise granted by the city in whosesoever hands the southward of the then ferry at Catharine slip, was that franchise might, from time to time, be placed. fully within the municipal authority and binding upon The authority to institute the proceedings might the city and the publio.

well have been conferred directly upon the corporaThe charter of 1857 provided ($ 41) that all ferries | tion of the city of New York, but that would have inshould be leased by the city, that all leases should be volved the necessity of an advance by the city of the made to the highest bidder who would give adequate cost of obtaining the increased facilities. This necessecurity; that do lease should be for a longer period sity was obviated by selecting the lessees of the ferry, than ten years; that all ferry leases should be revoc. for the time being, as the agents through whom the able by the common council for mismanagement or power of eminent domain should be exercised, and neglect to provide adequate accommodations, and that they were not only empowered but required to perall persons acquiring any ferry lease or franchise form that duty and incur the necessary outlay, being should be required to purchase at a fair appraised val- | indemnified by the incidental advantage they would uation, the boats, buildings and other property of the obtain in the increase of their facilities while their ocformer lessees or grantees actually necessary for the cupation should continue, and the reimbursement of purpose of such ferry grant or franchise.

their expenditure by being compensated for the propThe charter of 1857 was repealed by the charter of erty by the lessees who should succeed them. 1873, and we are not informed by the briefs of coun- It cannot be that the constitutional prohibition sel whether the provisions of section 41 have been re- should be so construed as to deprive the city of New enacted in any form, but this is perhaps not very ma- York of the power of increasing its ferry accommodaterial to the present discussion, for by the provisions tions by the means provided in this act. Its ferries of the aot of 1882 the property sought to be acquired are under the control of the corporation of the city, is devoted, after its acquisition, exclusively to the in whom is vested the power of granting ferry franpurposes of additional ferry slip accommodations for chises, and are operated under leases from the city. the ferry in question. It oannot be used for any other To hold that the accommodations of a particular ferry purpose and is inseparably united to that ferry, and cannot be enlarged except by the acquisition by the city must pass with it to any subsequent lessee after the in a direct proceeding by it of the required addition, expiration or termination of the lease to the Union and that this duty cannot be devolved upon the lessee, Ferry Company. All the rights of that company, ex- or what would be still worse, that such an authority cept its right to compensation, terminate with their could not be conferred upon the lessee of one ferry lease, and if the property should ever cease to be used without conferring like authority upon every ferry for the accommodation of the ferry, it would on gen- company in the State, would be giving to the constitueral principles revert to the original owners. But so tional provision an effeot which never could have been long as it continues to be used for the purposes for intended. The General Ferry Act, under which the which it is condemned, it remains under the control | Union Ferry Company is stated to be incorporated, of the corporation of the city of New York.

has for good reasons, withheld from ferry companies The title of the act of 1882 is, "An act to provide ad formed under the act the power of eminent domain, ditional ferry-slips and facilities in New York city for Special legislation was therefore indispensable to ac

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complish the end sought to be obtained by the act of Cow. 419; 2 Paige, 116; 5 Wend. 85. The charter of 1882 of enlarging the accommodations of the ferry the Mohawk Bridge Company, which prohibited ferin question. The constitutional provision could ries across the river one mile above and one mile benot have been intended to prohibit an act of this low the bridge. 6 Paige, 554. The lease by the corcharacter.

poration of the city of New York in 1814 of the FulFor the reasons stated we do not regard the act as a ton ferry, in which the corporation covenanted that it grant to a private corporation, but even if it should would not grant or permit any other ferry to the be so considered, is it a grant of an exclusive privil- southward of the ferry at Catharine slip. Costar v. ege, immunity or franchise?" It is not a grant of an Brush, 25 Wend. 628. The charter of the Delaware immunity, and if it comes under either head, it must Bridge Company, which prohibited the erection of any be that of a “privilege" or a “franchise." It is dis- other bridge, or the establishment of any ferry, within puted by the appellants that the authority conferred two miles above or below. Chenango Bridge Co. v. by the act is even a "privilege,” and it is claimed that Binghamton Bridge Co., 27 N. Y. 87, and S. C., 3 Wall. it is merely an appointment of an agency to exercise 51. The charter of the West River Bridge Bridge the right of eminent domain for the benefit of the Company, which granted the exclusive privilege of publio. But assuming that it is a privilege or a fran- maintaining a bridge across West river. 16 Vt. 446. chise granted to the Union Ferry Company as a pri- The charter of the Boston and Lowell Railroad Comrate corporation, is it an “exclusive" privilege or pany, which provided that no other railroad should franchise within the meaning of the Coustitution ? within thirty years be authorized between Boston and The constitutional prohibition was evidently aimed at Lowell, and was held to be a contract protected by the monopolies. At granting to corporations or individ- Constitution, as in the Binghamton Bridge case, 3 als not merely privileges and franchises not pos- Wall. 51. The grant of an exclusive right to a line of sessed by others, but the right to exclude others from telegraph between Sacramento and San Francisco, all the exercise or enjoyment of like privileges or fran- other persons being prohibited from running a lino chises.

one-half a mile or doing business between those cities. A special privilege or franchise is not necessarily California State Telegraph Co. V. Alta Telegraph Co., “exclusive." The right of the patentee of an inven- 22 Cal. 398. tion is "exolusive." So would be an act of the Legis- These references illustrate the character of the privlature which should attempt to confer upon a private ilege or franchises at which the constitutional prohibicorporation or individual the exclusive right to manu- tion was aimed. The delegation to a corporation of facture or vend any article of trade, and prohibit all the power to acquire title to land for public purposes other persons from competing in such business, or the is not a grant of an “exclusive" privilege, for the exclusive franchise of operating a ferry or of main- samo delegated power may be conferred upon any taining a toll-bridge across a particular river, or of corporation to whom the Legislature may seo.fit to running stages on a highway, and prohibitiug all others intrust it, and where a corporation is organized under from competing, and the like.

a general law which does not delegate that power, But the grant of a particular power to a private cor- there is nothing in the Constitution which prevents poration is not "exolusive" simply because the same the Legislature from conferring it in that particular power is not possessed by other corporations, so long case if the needs of the public require it; and if the as there is nothing to prevent the granting of such use is public, the Legislature is the competent authorpower to any other corporation. The Constitution ity to determine whether the property is needed for itself makes this distinction manifest. Artiole 8, sec

such use. The Legislature, as has been seen, has the tion 1, provides for the formation of corporations power to grant special charters where, in its judgunder general laws, but prohibits their being created ment, the objects cannot be accomplished under genby special act, except for municipal purposes, “and in eral laws. It might therefore grant a special charter cases where, in the judgment of the Legislature, the to a ferry company where it was necessary to delegate objeots of the corporation cannot be attained under to such company the right of eminent domain, which general laws." The Legislature is thus left at liberty it was not deemed expedient to delegate to all ferry to determine in what cases special charters shall be companies. Having this power it cannot be said that granted, and the object of such a special charter must it oontravenes the Constitution, in accomplishing necessarily be to confer upon the corporation powers the same end, by delegating the right of eminent door franchises not possessed by other corporations, main to an existing corporation organized under the otherwise there would be no need of creating them. general law. But such special powers are not necessarily “exclu- It is urged, as a further objection to the constitusive.” Special charters are still subject to the pro- tionality of the act of 1882, that it does not require the hibition against granting "exclusive" franchises, and ferry company to establish the fact that the property neither under a special character nor a general law proposed to be taken is necessary for the purposes of could a corporation or class of corporations be vested the ferry. with any privilege, immunity or franchise which is That objection is clearly untenable. Where the tak"exclusive" in the proper sense of the term.

ing of private property, for a use claimed to be public, The word “exclusive" is derived from "ex," out, is authorized by the Legislature, its determination of and claudere," to shut. An act does not grant an the public character of the use is not conclusive. exclusive privilege or franchise unless it shuts out or The existence of the public use in any class of cases excludes others from enjoying a similar privilege or is a question reviewable by the courts. If however franchise.

the use is certainly a public one, the Legislature is the The most familiar instances of grants of exclusive proper body to determine the necessity of the exercise privileges or franchises are to be found in acts author- of the right of eminent domain and the extent to izing the establishment of ferries, toll bridges, turn

which it shall be carried, and there is no restraint on pikes, telegraph companies, and the like, as in case of the power save that of requiring that compensation be the charter of the Cayuga Bridge Company, which made. Mills Em. Dom., ch. 2, § 11; Brooklyn Park provided that it should not be lawful to erect any V. Armstrong, 45 N. Y. 234; Lecombe v. Milwaukee bridge or establish any ferry within three miles of the Railroad, 23 Wall. 108. The particular property needed place where the bridge of the company should be may be pointed out by the Legislature, and the courts erected, or to cross the river within three miles of the cannot review their determination in this respect. bridge without paying toll. Sprague v. Birdsall, 2 Mills Em. Dom., $ 11; Gresey v. Cincinnati Railroad,

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4 Ohio St. 308. The public character of the use in the The meaning of the act is, as we understand it, that case before us is indisputable, and the determination after the 15th of June, 1882, it shall be lawful to use of the Legislature as to the necessity of the particular the pier for ferry purposes, but before the lessees can property is conclusive.

80 use it they must acquire title by purchase or otherBut it is contended that this designation of the par- wise. Until they do acquire title the owners are not ticular piece of property to be condemned for the pur- to be disturbed in their enjoyment or use of the propposes of the ferry renders the graut of the privilege or erty, but after the title is acquired it is to be excluauthority exclusive, inasmuch as po one but the sively devoted to and used for the purposes of the grantee of the property can take the same property. ferry. Before that time there is nothing in the first That however is not in our judgment the nature of section, when read in connection with the others, the exclusiveness contemplated by the Constitution. which precludes the owners from using the pier for The exclusiveness prohibited is one which is created purposes other than the ferry. The pier is prospectby the terms of the grant, not that which results from ively devoted and set apart for ferry purposes from the the nature of the property or right granted.

15th of June, but not exclusively for those purposes Where from the nature of the case it is impossible until after the title shall have been acquired, and then that the right or power should be possessed or em- the owners are to be compensated for the property as ployed by more than one party, and it is important to it stands at the time of instituting the proceeding to the public interest that it should exist and be exer- acquire it. cised by some one, the State must necessarily have au- This prospective devotion of the property to ferry thority to select the grantee. In such a case the ex. purposes by the first section would seem to be meanclusiveness is not produced by the grant, but results ingless were it not for the character of the property, from the nature of the thing granted, and to this ex- The wharves and piers in the city of New York are in tent every grant to a corporation or an individual of many respects public, and even when owned by indithe right to acquire real estate is exclusive. Where viduals are subject to regulations as to their use by lega toll bridge is authorized to be erected at a particular islative enactments. These regulations are very frequent locality the right to that particular bridge is neces- and are changed from time to time as the interests of sarily exclusive. So of all lands acquired by a rail. commerce require. For instance, in respect to tbe road company for depots, car-yards, eto., their right very pier iu question, by chapter 367 of the Laws of to enjoy those lands is exclusive. The right of the 1857, all the waters adjacent to the wharves, from the owner of upland to fill out into waters of the State in east side of pier No. 2, East river, to and including front of his land is exclusive in respect to the particu- the east side of peir No. 9, were from the 20th of March lar property involved, though a similar right may be to the 20th of December in each year set apart and reconferred upon every person owning lands similarly served for the use of canal boats and barges, and the situated. There may be cases where a railroad could harbor-masters were empowered to prevent other vegnot be extended without passing through lands situa- sels from entering the slips or lying at the wharves ted at its terminus, which were already devoted to a designated, when required for the boats and barges public use, and could not therefore be acquired for specified. By chapter 261 of the Laws of 1858, whenrailroad purposes under the general law, or without ever the owners of wharves or slips on the East river express authority from the Legislature. Can it be or North river lease them to the proprietors of certain contended that however great the necessity for the regular steamboat lines, such wharves and slips are diextension, the Legislature would have no power to rected to be kept for the exclusive accommodation of grant such authority? And yet the grant of power in the steamboats of the lessees, as far as necessary for such a case would be exclusive in the same sense as is their business. But that act is declared not to give the power to extend the facilities of the ferry in the any owners of the wharves or slips mentioned in the case before us. We think that in all these cases the act of 1857, above cited, power to lease their wharves exclusion of others from the enjoyment of rights or to steamboat lines. By the law of 1867, chapter 945, privileges similar to those bestowed upon the particu- the act of 1857 is substantially re-enacted as to the lar grantee must, in order to come within the consti- waters from the east side of pier No. 2 to the west tutional prohibition, result from the provisions of the side of pier No. 10, East river, and further power is grant, and not from the inherent nature of the right given to the proprietors of the lines of canal boats and granted.

barges to erect derricks on the piers. The act of June 1, 1882, is further assailed on the The right of the Legislature thus to control the ground that its first section declares that the pier in management and occupation of wharves in navigable question shall after the 15th of June, 1882, bo devoted rivers even in the hands of private owners, is fully and set apart for the purpose of additional ferry ao- recognized in the case of Vanderbilt v. Adams, 7 Cow. commodations for the ferry in question. And it is 349, and is held not to be an unconstitutional intercontended that although the title may not have been ference with private property. In that case Vanderacquired by that time from the owners, yet they would bilt was subjected to a fine for stationing his own by the terms of the act be precluded from the enjoy- steamboats at a wharf owned by him in violation of ment of their property, and its use for ordinary pur- the orders of one of the barbor masters of New York. poses without having been in any manner compen- It was considered that by the old charters of the city sated.

the royal prerogative of government over the subjectIf this section stood alone there would be some matter was granted to the mayor, aldermen and comfoundation for this argument, but we think that tak- monalty, and that when they conveyed a water-lot ing the whole act together, it will not bear the con- their sovereignty, as to the subject matter, was not struction claimed. The second section provides that gone. before using the pier the lessees shall purchase the By an act of 1882, chapter 176, passed June 3, 1882, right to its use if they can agree with the owners. If ) two days after the act in controversy, the area of the unable to agree within sixty days from the passage of waters devoted to the use of canal boats was reduced the act the lessee may acquire title by proceedings in so as to extend only from the west side of pier No. 3 to invitum. And the third section declares that when the east side of pier No. 8, thus liberating the premises the title is thus acquired, the property shall thereafter now in question from its devotion to the use of canal be devoted exclusively to the purpose of ferry-slip ac- boats. But at the time the act in controversy was commodations for said ferry.

passed it would not have been lawful for the ferry

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compauy, even if it had acquired title to the premises that the rule of damages in an action by a principal in question by voluntary conveyance, to use the slip in against an agent, who had defrauded bim in purchasquestion for ferry purposes, or to exclude canal boats | ing property, by representing that he paid a larger and barges, nor could it, without express authority of price than it was actually obtained for, upon an the Legislature, have excluded the general public from offer to surrender the property to the agent and rethe use of the slip, even after the privileges of the cover of him, is its whole purchase-price. We think this canal boats and barges had been taken away. Hence theory is erroneous. The contract of purchase made the necessity of providing that the slip might be de- with the vendor was precisely the contract which the voted to ferry purposes, so that as soon as the ferry plaintiff authorized bis agent to make, and the princicompany acquired the title it might use the property. pal could not therefore rescind that contract by reaBut as has before been shown, the slip was devoted to son of any fraud perpetrated upon him by his own no exclusive use, and the owners were not deprived of agent, to which the vendor was not a party. Upon any of their rights until after the acquisition of the the execution of that contract the title vested in the titlo. Nothing was intended to be taken from the plaintiff, and there is no principle of law upon which owners, nor were they restricted in the use of their he could compel the agent to assume the ownership property until they received their just compensation, and stand the bazard of the speculation. In an action and if before the institution of the proceedings, they by the purchaser against the agent for such fraud the made any use of the property by which third parties rules of damages would be those only which he actuacquired any interest therein, that interest would also ally suffered from the fraud. This would not neceshave to be extinguished on making compensation. sarily or probably be the price paid. Not only there

Criticisms are made upon the form in which the fore was the theory of the complaint erroneous, but authority to exercise the power of eminent domain is the evidence and the findings of the court below show conferred. The language of the act of 1882 is that the that the defendant was not the agent of the plaintiff, lessees shall acquire title to the property in the man- but even if he should be so considered, that no fraud ner and by the proceedings provided by law for ac- was committed by him, except in abusing the confiquiring title to lands for railroad use by railroad cor- dence of his employer by paying a larger price for the porations, so far as the same are applicable thereto," stock bought than it apparently could have been purexcepting that certain allegations which the general chased for. If upon the facts found by the referee railroad law requires to be contained in the petition such a construction could be put upon them as would respecting stock subscriptions, surveys, maps, etc., make the defendant the agent of the plaintiff, a remay be omitted.

covery could have been sustained only for the enThe objection that this reference is indefinite does hanced price paid by the agent over what the stock not strike us with any force. The act is in a stereo- could have been purchased for by him, or at least for typed form adopted in almost innumerable statutes, the amount allowed by the vendor to the agent for his where the power of eminent domain is intended to be services in effecting the sale; but this ground of redelegated to a corporation, and by long use it must covery was not only contrary to the theory of the achave acquired a definite meaning. It can refer to tion stated in the complaint, but was expressly disnothing else than the general railroad law. The criti- claimed by the appellant on the trial of the case as cism is that it might have been intended to refer to well as on the argument before us. The only possible the law of 1875 for the construction and operation of theory in the case upon which the plaintiff could resteam railways in the counties of this state. This con- cover having been disclaimed by him, no alternative is struction is quite inadmissible. The reference to the left us but to affirm the judgment. McMillan V. Arthur. law for acquiring title to lands for railroad use must | Opinion by Ruger, C. J. be deemed to have in view the general law, and not a ¡Decided Jan. 27, 1885. ] law applicable only to a specific class of railroads. If

PARTITION-LITIGATING VALIDITY OF MORTGAGEany special indication of intention were required it

ESTOPPEL - MORTGAGE FORECLOSURE would be found in the fact that the allegatious which,

DEBT-LIMITATION-PRESUMPTION OF PAYMENT.-In by the act of 1882, the applicants are authorized to omit from their petition, are required by the general defendant; the lien of his mortgage being questioned,

an action for partition, O., a mortgagee, was made a railroad law and are not required by the act of 1875. The objection that this reference to the general rail lien, and asked that the premises be declared subject

he answered alleging it to be a valid and subsequent road law to regulate the mode of procedure for ac

thereto, or that it be paid out of the proceeds of sale quiring title contravenes section 17 of article 3 of the Constitution is met by the decision of this court in the

if a sale is decreed. O. appeared and took part in the

trial. An interlocutory judgment was rendered, adcase of People v. Banks, 67 N. Y. 575. The orders of the General and Special Terms judging that the mortgage was not a valid lien. Held,

that as (). had, without objection, then submitted his should be reversed, and the proceedings remitted to

rights to the court, and sought to have them re-enthe Special Term to appoint commissioners.

forced, conceding he could not have been compelled All concur.

thus to litigate them, he could rot raise the objection Ordered accordingly.

on appeal, and this, although he asked the trial court [A Legislature may empower a city to grant an ex- to find as a conclusion of law that no affirmative relief clusive license to ferry across a navigable river, and could be giveu against him in that form of action. the conferring of the power to grant or refuse such li- Jordan v. Van Epps, 85 N. Y. 427. Until the bond or cense authorizes the granting of an exclusive privilege. debt, to secure which a mortgage is given, is fully paid Burlington, etc., Ferry Co. v. Davis, 30 Am. Rep. 390. by the execution of the decree, or otherwise, the mortSee also Montgomery v. Multnomah, 29 Alb. L. J. 333. gagor cannot require the bond and mortgage to be re-ED.]

turned to him, or canceled. In re Costar, 2 Jobus. Ch. 503. The debt upon the bond is then secured by the mortgage and also by the decree.


double security it is not placed on any different foot

ing from a debt due upon bond and mortgage. The DAMAGES-FRAUD BY AGENT-PURCHASE PRICE — entering of a decree of foreclosure is not necessary to FALSE REPRESENTATIONS AS TO.- The complaint in give security to the debt, for the lien subsists. Lansing this action seems to have been framed upon the theory v. Capron, 1 Johns. Ch. 617. The decree is a means

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only of enforcing the lien of the mortgage and so ren- Y. 203; Whitney Arms Co. v. Same, 63 id. 62; 68 id. 34, dering it available. Bucklin v. Bucklin, 1 Abb. Ct. of It is therefore as affecting both appeals, material to App. Dec. 242. That lien remains until the debt is ascertain the true construction of the terms of the paid or discharged. Neither the foreclosure suit nor covenant. So far as it requires the company (the lesthe decreo affects that, nor does either impair the see) to pay and discharge water-rates and taxes, it is mortgagor's right to redeem. That right remains the precisely like the covenant which lay at the foundasame after decree and until an actual sale of the port- tiou of the case of Rector, etc., v. Higgius, 48 N. Y. gaged premises under it. Browu v. Frost, 10 Paige, 532, and if it went no further, the decision then made 243. So notwithstanding the decree, the lien is liable would require us to hold, that a right of action against to be defeated by the same presumption founded upon the company accrued on its failure to pay the rates lapse of time. If the mortgage stands alone, without and taxes when imposed, that is, in May and Septempayment or proceedings to enforce it for twenty years, ber of each year. That action however was for damthe presumption of payment accrues. If by virtue of ages, and when presented to the Appellate Court, the foreclosure a new "security” has been taken, the same right of the plaintiffs to maintain it at some time was policy will, under the same circumstances, raise the not disputed, aud the only question raised related to same presumption. Upon this principle it has been their doing so before actual payment of the assessheld that where there had been a foreclosure sale, not ments then in question. But in the case before us, followed by a conveyance to the purchaser, or any the covenant goes further, and provides tbat if not so recognition of the mortgage by the mortgage debtor, paid before the first of day of February uext after they it will be presumed after the lapse of twenty years are so imposed, the company on that day will pay the that the land had been redeemed from such sale. amount of them as additional rent to the lessor. Here Reynolds v. Dishon, 3 Bradw. (Ill.) 173. The mort- are two things to be done, and the obligation to pergage here, of which Q.was the assignee, matured so as to form one depends upon the non-performance of the be the cause of action in foreclosure, and judgment other as a condition precedent, aud as that depends was obtained on the 29th of April, 1848. Conceding upon the will of the promisor, it is in substance an althat by stipulations in the mortgage of 1850, enforce- ternative contract, and in such a case the party ment by sale was stayed for ten years, he was at lib- charged may elect which of the two alternatives he erty to proceed upon the decree and also on that mort- will perform. Iu effect the company said, we will gage in 1860. This action was commenced in July, either pay the taxes when they become due to the city 1881, and thereafter, and not before, set up his judg- aathorities, and so relieve the demised premises, or as ment and mortgage. This was more than twenty in case we do not, you will be required to do so to proyears after the cause of action under any construc- tect your property, we will on the first of February pay tion accrued, and a recovery upon either is barred to you the sum of them, with interest and such penalwhether the question is considered under the limita- ties as are incurred. The cause of action did not action prescribed by the Revised Statutes (title 2, part crue against the company until its failure to comply III, ch. 3, 2 R. S. 295, $ 90), or the Code of Procedure with the second alternative, That occurred on the (Laws of 1848, ch. 438, $ 90), or the Code of Civil Pro- first day of February, 1874, and as the plaintiffs could cedure, $ 381. No proof was given to take either claim then have sued the company, so also they could have out of the operation of the statute. The policy of the sued the defendant. At that moment therefore the law and substantial justice required that judgment short statute of limitations prescribed to this class of should be given against them. Barnard v. Onder- actions commenced running in his favor, Shaler, etc., donk. Opinion by Danforth, J. [As to Merger see 38 Co. v. Bliss, supra; Merchants' Bank v. Bliss, 35 N. Am. Rep. 129.-Ed.) /

Y 412; Miller v. White, 50 id. 137; Jones v. Barlow, [Decided Feb. 10, 1885.]

supra; Losee v. Bullard, 79 N. Y. 404, and before the

commencement of this action the bar fell. The statLIMITATION--STATUTE-TRUSTEE OF MANUFACTURING COMPANY-COVENANT TO PAY TAXES.- A company,

ute operates upon the remedy, and the omission of the of which defendant was trustee, hired of the plaintiff

creditor to pursue it cannot stop its running. The certain premises for the term of six years and six

liability of the trustee was imposed by statute and the months from Nov., 1872, and agreed to pay all

benefit and suit therefor are limited to the creditor as such taxes and water-rates as might be imposed

the one aggrieved. In such a case when the statute of upon the demised premises during each year, and if

limitations begins to run nothing subsequent will stop they “should not be so paid before the first day of

it. But the question now before us is directly within

the principle of the decision of this court in Losee v. February next after the same should have been imposed, then to pay to the plaintiffs on that day, as ad

Bullard, supra, and permits no further discussion. It ditional rent, whatever sum might be necessary to pay

can make no difference that the company in this case said taxes and Croton water-rates for such year, or

continued to transact business. The plaintiffs were either of the same remaining unpaid, with all the pen

not required to sue the trustee, but could not, by alties and interest accrued thereon. The corporation

omitting to do so, prevent the application of the stat. failed to make its annual reports in 1873, 1874 and 1875,

ute. Rector, etc., v. Vanderbilt. Opinion by Dan

forth, J. as required by the twelfth section of the act of 1848, and this act was brought on Jan. 14, 1878, to charge

[Decided Feb. 10, 1885.] him with certain debts of the company existing, as is CONTRACT-PUBLIC OFFICER-PERSONAL LIABILITY alleged, at the time of such defaults. Held, that the --PUBLISHING NOTICES -TAX SALE-ACT 1878, CH. 65. liability of the company was upon the covenant to pay -This action was brought against defendant as treas. the water-rates and taxes. The liability of the de- urer of the county of Ulster, to recover the alleged fendant depended upon the combination of three cir- contract-price agreed to be paid by him, as such officumstances, viz., the existence of the debt, the cer, for publishing notices of tax sales in a newspaper existence of the default in making the report, of which plaintiff was the proprietor. The compensaand the trusteeship. Shaler, etc., Quarry Com- tion to which the plaintiff is entitled for publishiug the pany v. Bliss, 27 N. Y. 297; Duckworth v. Roach, advertisement of the tax sale in Ulster county is gore 81 id. 49. It is well settled that if there be no erned by ebapter 831 of the Laws of 1869. The provisobligation giving a present right of action against the ion in the sixth section of chapter 65 of the Laws of company, there is no debt which can be demanded as 1878, that "the publishing of the said notice is not to a penalty against the trustee. Jones v. Barlow, 62 N. exceed the sum of $:2 for each newspaper so publishing

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