name, nor does the object of the act purport to be to add to the privileges or franchises of that company. In case the company should, under the authority of the act, procure the condemnation of the property in question, it would not aequire the property as its own, but would hold it merely temporarily and could use it only under its lease from the city of New York of the ferry franchise. The newly acquired property would become simply an addition to the ferry described in the act, which ferry is under the control of the city, and by it leased to the ferry company. On the expiration of its present lease this property would have to be surrendered to the city or to any subsequent lessee of the ferry. The company would have no power of disposition over it, but only the right to be paid for it by the subsequent lessee of the city, as other property appertaining to the ferry has to be paid for on a change of lessees of the ferry.

All this appears from the act itself, and the general system upon which the ferries of the city of New York are established and conducted.

By the Montgomeri Charter, section 37, Valentine's Laws, 243, the ferries on both sides of the East river, and all other ferries then or thereafter to be erected and established all around Manhattan island, and the management and the rule of the same, were granted to the mayor, aldermen and commonalty of the city of New York.

In Costar v. Brush, 25 Wend. 628, it was held that under this provision of the charter, the corporation of the city possessed the same power in respect to the establishment of ferries across the East river, that before belonged to the crown or the Legislature, and that the grant by the city to the lessees of the Fulton ferry of an exclusive privilege by covenanting that the city would not, during the existence of the lease, permit any other ferry between New York and Brooklyn to the southward of the then ferry at Catharine slip, was fully within the municipal authority and binding upon the city and the public.

The charter of 1857 provided (§ 41) that all ferries should be leased by the city, that all leases should be made to the highest bidder who would give adequate security; that no lease should be for a longer period than ten years; that all ferry leases should be revocable by the common council for mismanagement or neglect to provide adequate accommodations, and that all persons acquiring any ferry lease or franchise should be required to purchase at a fair appraised valuation, the boats, buildings and other property of the former lessees or grantees actually necessary for the purpose of such ferry grant or franchise.

The charter of 1857 was repealed by the charter of 1873, and we are not informed by the briefs of counsel whether the provisions of section 41 have been reenacted in any form, but this is perhaps not very material to the present discussion, for by the provisions of the act of 1882 the property sought to be acquired is devoted, after its acquisition, exclusively to the purposes of additional ferry slip accommodations for the ferry in question. It cannot be used for any other purpose and is inseparably united to that ferry, and must pass with it to any subsequent lessee after the expiration or termination of the lease to the Union Ferry Company. All the rights of that company, except its right to compensation, terminate with their lease, and if the property should ever cease to be used for the accommodation of the ferry, it would on general principles revert to the original owners. long as it continues to be used for the purposes for which it is condemned, it remains under the control of the corporation of the city of New York.

But so

The title of the act of 1882 is, "An act to provide additional ferry-slips and facilities in New York city for

the ferries running between Whitehall street in the city of New York and the city of Brooklyn." The power to acquire title to the additional slip is granted, not to the Union Ferry Company, but to "the lessees" of the designated ferry, whoever they may be. The name of the Union Ferry Company does not appear in the act, except as identifying the ferry as the one which was at the time being operated by the company named, and in a declaration that that company is not authorized to acquire the fee of any property owned by the city of New York. If the Union Ferry Company should not acquire the title during the term of its lease, any subsequent lessee of the ferry, whether a corporation or an individual, would become entitled to proceed under the act. Whoever might become lessee after the acquisition of the title would, under section 3 of the act, be entitled and required to take the property and bound to pay his predecessor for it. And section 3 further provides that after the title to the property is acquired according to the provisions of the act, it shall be devoted to and used exclusively for the ferry-slip accommodations mentioned.

The whole frame and context of the act are consist. ent with the view that its object was not to grant any privilege or franchise to the Union Ferry Company as a corporation, but as stated in the title of the act, to add to the ferry slips and facilities of the particular ferry which the company named was at the time operating. Such additional facilities would increase the capacity not only of that company, but of all future lessees of the ferry, to meet the wants of the public, but those increased facilities would be enjoyed by the Union Ferry Company only under its lease from the city. They would terminate with that lease and pass to the succeeding lessee. The property could not be used for any purpose except the exercise of the ferry franchise granted by the city in whosesoever hands that franchise might, from time to time, be placed.

The authority to institute the proceedings might well have been conferred directly upon the corporation of the city of New York, but that would have involved the necessity of an advance by the city of the cost of obtaining the increased facilities. This necessity was obviated by selecting the lessees of the ferry, for the time being, as the agents through whom the power of eminent domain should be exercised, and they were not only empowered but required to perform that duty and incur the necessary outlay, being indemnified by the incidental advantage they would obtain in the increase of their facilities while their occupation should continue, and the reimbursement of their expenditure by being compensated for the property by the lessees who should succeed them.

It cannot be that the constitutional prohibition should be so construed as to deprive the city of New York of the power of increasing its ferry accommodations by the means provided in this act. Its ferries are under the control of the corporation of the city, in whom is vested the power of granting ferry franchises, and are operated under leases from the city. To hold that the accommodations of a particular ferry cannot be enlarged except by the acquisition by the city in a direct proceeding by it of the required addition, and that this duty cannot be devolved upon the lessee, or what would be still worse, that such an authority could not be conferred upon the lessee of one ferry without conferring like authority upon every ferry company in the State, would be giving to the constitutional provision an effect which never could have been intended. The General Ferry Act, under which the Union Ferry Company is stated to be incorporated, has for good reasons, withheld from ferry companies formed under the act the power of eminent domain. Special legislation was therefore indispensable to ac

complish the end sought to be obtained by the act of 1882 of enlarging the accommodations of the ferry in question. The constitutional provision could not have been intended to prohibit an act of this character.

For the reasons stated we do not regard the act as a grant to a private corporation, but even if it should be so considered, is it a grant of an "exclusive privilege, immunity or franchise?" It is not a grant of an immunity, and if it comes under either head, it must be that of a "privilege or a "franchise." It is disputed by the appellants that the authority conferred by the act is even a “privilege," and it is claimed that it is merely an appointment of an agency to exercise the right of eminent domain for the benefit of the public. But assuming that it is a privilege or a franchise granted to the Union Ferry Company as a private corporation, is it an exclusive" privilege or franchise within the meaning of the Constitution? The constitutional prohibition was evidently aimed at monopolies. At granting to corporations or individals not merely privileges and franchises not possessed by others, but the right to exclude others from the exercise or enjoyment of like privileges or franchises.

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A special privilege or franchise is not necessarily "exclusive." The right of the patentee of an invention is "exclusive." So would be an act of the Legislature which should attempt to confer upon a private corporation or individual the exclusive right to manufacture or vend any article of trade, and prohibit all other persons from competing in such business, or the exclusive franchise of operating a ferry or of maintaining a toll-bridge across a particular river, or of running stages on a highway, and prohibiting all others from competing, and the like.

But the grant of a particular power to a private corporation is not "exclusive" simply because the same power is not possessed by other corporations, so long as there is nothing to prevent the granting of such power to any other corporation. The Constitution itself makes this distinction manifest. Article 8, section 1, provides for the formation of corporations under general laws, but prohibits their being created by special act, except for municipal purposes, "and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws." The Legislature is thus left at liberty to determine in what cases special charters shall be granted, and the object of such a special charter must necessarily be to confer upon the corporation powers or franchises not possessed by other corporations, otherwise there would be no need of creating them. But such special powers are not necessarily "exclusive." Special charters are still subject to the prohibition against granting "exclusive" franchises, and neither under a special character nor a general law could a corporation or class of corporations be vested with any privilege, immunity or franchise which is exclusive" in the proper sense of the term.

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The word "exclusive" is derived from "ex," out, and "claudere," to shut. An act does not grant an exclusive privilege or franchise unless it shuts out or excludes others from enjoying a similar privilege or franchise.

The most familiar instances of grants of exclusive privileges or franchises are to be found in acts authorizing the establishment of ferries, toll bridges, turnpikes, telegraph companies, and the like, as in case of the charter of the Cayuga Bridge Company, which provided that it should not be lawful to erect any bridge or establish any ferry within three miles of the place where the bridge of the company should be erected, or to cross the river within three miles of the bridge without paying toll. Sprague v. Birdsall, 2

Cow. 419; 2 Paige, 116; 5 Wend. 85. The charter of the Mohawk Bridge Company, which prohibited ferries across the river one mile above and one mile below the bridge. 6 Paige, 554. The lease by the corporation of the city of New York in 1814 of the Fulton ferry, in which the corporation covenanted that it would not grant or permit any other ferry to the southward of the ferry at Catharine slip. Costar v. Brush, 25 Wend. 628. The charter of the Delaware Bridge Company, which prohibited the erection of any other bridge, or the establishment of any ferry, within two miles above or below. Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87, and S. C., 3 Wall. 51. The charter of the West River Bridge Bridge Company, which granted the exclusive privilege of maintaining a bridge across West river. 16 Vt. 446. The charter of the Boston and Lowell Railroad Company, which provided that no other railroad should within thirty years be authorized between Boston and Lowell, and was held to be a contract protected by the Constitution, as in the Binghamton Bridge case, 3 Wall. 51. The grant of an exclusive right to a line of telegraph between Sacramento and San Francisco, all other persons being prohibited from running a line one-half a mile or doing business between those cities. California State Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398.

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These references illustrate the character of the privilege or franchises at which the constitutional prohibition was aimed. The delegation to a corporation of the power to acquire title to land for public purposes is not a grant of an exclusive" privilege, for the same delegated power may be conferred upon any corporation to whom the Legislature may see .fit to intrust it, and where a corporation is organized under a general law which does not delegate that power, there is nothing in the Constitution which prevents the Legislature from conferring it in that particular case if the needs of the public require it; and if the use is public, the Legislature is the competent authority to determine whether the property is needed for such use. The Legislature, as has been seen, has the power to grant special charters where, in its judgment, the objects cannot be accomplished under general laws. It might therefore grant a special charter to a ferry company where it was necessary to delegate to such company the right of eminent domain, which it was not deemed expedient to delegate to all ferry companies. Having this power it cannot be said that it contravenes the Constitution, in accomplishing the same end, by delegating the right of eminent domain to an existing corporation organized under the general law.

It is urged, as a further objection to the constitutionality of the act of 1882, that it does not require the ferry company to establish the fact that the property proposed to be taken is necessary for the purposes of the ferry.

That objection is clearly untenable. Where the taking of private property, for a use claimed to be public, is authorized by the Legislature, its determination of the public character of the use is not conclusive.

The existence of the public use in any class of cases is a question reviewable by the courts. If however the use is certainly a public one, the Legislature is the proper body to determine the necessity of the exercise of the right of eminent domain and the extent to which it shall be carried, and there is no restraint on the power save that of requiring that compensation be made. Mills Em. Dom., ch. 2, § 11; Brooklyn Park v. Armstrong, 45 N. Y. 234; Lecombe v. Milwaukee Railroad, 23 Wall. 108. The particular property needed may be pointed out by the Legislature, and the courts cannot review their determination in this respect. Mills Em. Dom., § 11; Gresey v. Cincinnati Railroad,

company, even if it had acquired title to the premises in question by voluntary conveyance, to use the slip in question for ferry purposes, or to exclude canal boats and barges, nor could it, without express authority of the Legislature, have excluded the general public from the use of the slip, even after the privileges of the canal boats and barges had been taken away. Hence the necessity of providing that the slip might be devoted to ferry purposes, so that as soon as the ferry company acquired the title it might use the property. But as has before been shown, the slip was devoted to no exclusive use, and the owners were not deprived of any of their rights until after the acquisition of the title. Nothing was intended to be taken from the owners, nor were they restricted in the use of their property until they received their just compensation, and if before the institution of the proceedings, they made any use of the property by which third parties acquired any interest therein, that interest would also have to be extinguished on making compensation.

Criticisms are made upon the form in which the authority to exercise the power of eminent domain is conferred. The language of the act of 1882 is that the lessees shall acquire title to the property "in the manner and by the proceedings provided by law for acquiring title to lands for railroad use by railroad corporations, so far as the same are applicable thereto," excepting that certain allegations which the general railroad law requires to be contained in the petition respecting stock subscriptions, surveys, maps, etc., may be omitted.

The objection that this reference is indefinite does not strike us with any force. The act is in a stereotyped form adopted in almost innumerable statutes, where the power of eminent domain is intended to be delegated to a corporation, and by long use it must have acquired a definite meaning. It can refer to nothing else than the general railroad law. The criticism is that it might have been intended to refer to the law of 1875 for the construction and operation of steam railways in the counties of this State. This construction is quite inadmissible. The reference to the law for acquiring title to lands for railroad use must be deemed to have in view the general law, and not a law applicable only to a specific class of railroads. If any special indication of intention were required it would be found in the fact that the allegations which, by the act of 1882, the applicants are authorized to omit from their petition, are required by the general railroad law and are not required by the act of 1875. The objection that this reference to the general railroad law to regulate the mode of procedure for acquiring title contravenes section 17 of article 3 of the Constitution is met by the decision of this court in the case of People v. Banks, 67 N. Y. 575.

The orders of the General and Special Terms should be reversed, and the proceedings remitted to the Special Term to appoint commissioners.

All concur.

Ordered accordingly.

[A Legislature may empower a city to grant an exclusive license to ferry across a navigable river, and the conferring of the power to grant or refuse such license authorizes the granting of an exclusive privilege. Burlington, etc., Ferry Co. v. Davis, 30 Am. Rep. 390. See also Montgomery v. Multnomah, 29 Alb. L. J. 333. -ED.]

NEW YORK COURT OF APPEALS ABSTRACT.

DAMAGES-FRAUD BY AGENT-PURCHASE PRICEFALSE REPRESENTATIONS AS TO.-The complaint in this action seems to have been framed upon the theory

that the rule of damages in an action by a principal against an agent, who had defrauded him in purchasing property, by representing that he paid a larger price than it was actually obtained for, upon an offer to surrender the property to the agent and recover of him, is its whole purchase-price. We think this theory is erroneous. The contract of purchase made with the vendor was precisely the contract which the plaintiff authorized his agent to make, and the principal could not therefore rescind that contract by reason of any fraud perpetrated upon him by his own agent, to which the vendor was not a party. Upon the execution of that contract the title vested in the plaintiff, and there is no principle of law upon which he could compel the agent to assume the ownership and stand the hazard of the speculation. In an action by the purchaser against the agent for such fraud the rules of damages would be those only which he actually suffered from the fraud. This would not necessarily or probably be the price paid. Not only therefore was the theory of the complaint erroneous, but the evidence and the findings of the court below show that the defendant was not the agent of the plaintiff, but even if he should be so considered, that no fraud was committed by him, except in abusing the confidence of his employer by paying a larger price for the stock bought than it apparently could have been purchased for. If upon the facts found by the referee such a construction could be put upon them as would make the defendant the agent of the plaintiff, a recovery could have been sustained only for the enhanced price paid by the agent over what the stock could have been purchased for by him, or at least for the amount allowed by the vendor to the agent for his services in effecting the sale; but this ground of recovery was not only contrary to the theory of the action stated in the complaint, but was expressly disclaimed by the appellant on the trial of the case as well as on the argument before us. The only possible theory in the case upon which the plaintiff could recover having been disclaimed by him, no alternative is left us but to affirm the judgment. McMillan v. Arthur, Opinion by Ruger, C. J.

Decided Jan. 27, 1885.]

PARTITION-LITIGATING VALIDITY OF MORTGAGEESTOPPEL MORTGAGE FORECLOSURE MERGER OF DEBT-LIMITATION-PRESUMPTION OF PAYMENT.-In an action for partition, O., a mortgagee, was made a defendant; the lien of his mortgage being questioned, he answered alleging it to be a valid and subsequent lien, and asked that the premises be declared subject thereto, or that it be paid out of the proceeds of sale if a sale is decreed. O. appeared and took part in the trial. An interlocutory judgment was rendered, adjudging that the mortgage was not a valid lien. Held, that as O. had, without objection, then submitted his rights to the court, and sought to have them re-enforced, conceding he could not have been compelled thus to litigate them, he could not raise the objection on appeal, and this, although he asked the trial court to find as a conclusion of law that no affirmative relief could be given against him in that form of action. Jordan v. Van Epps, 85 N. Y. 427. Until the bond or debt, to secure which a mortgage is given, is fully paid by the execution of the decree, or otherwise, the mortgagor cannot require the bond and mortgage to be returned to him, or canceled. In re Costar, 2 Johns. Ch. 503. The debt upon the bond is then secured by the mortgage and also by the decree. Yet by this double security it is not placed on any different footing from a debt due upon bond and mortgage. The entering of a decree of foreclosure is not necessary to give security to the debt, for the lien subsists. Lansing v. Capron, 1 Johns. Ch. 617. The decree is a means

only of enforcing the lien of the mortgage and so rendering it available. Bucklin v. Bucklin, 1 Abb. Ct. of App. Dec. 242. That lien remains until the debt is paid or discharged. Neither the foreclosure suit nor the decree affects that, nor does either impair the mortgagor's right to redeem. That right remains the same after decree and until an actual sale of the mortgaged premises under it. Brown v. Frost, 10 Paige, 243. So notwithstanding the decree, the lien is liable to be defeated by the same presumption founded upon lapse of time. If the mortgage stands alone, without payment or proceedings to enforce it for twenty years, the presumption of payment accrues. If by virtue of foreclosure a new "security" has been taken, the same policy will, under the same circumstances, raise the same presumption. Upon this principle it has been held that where there had been a foreclosure sale, not followed by a conveyance to the purchaser, or any recognition of the mortgage by the mortgage debtor, it will be presumed after the lapse of twenty years that the land had been redeemed from such sale. Reynolds v. Dishon, 3 Bradw. (Ill.) 173. The mortgage here, of which Q.was the assignee, matured so as to be the cause of action in foreclosure, and judgment was obtained on the 29th of April, 1848. Conceding that by stipulations in the mortgage of 1850, enforcement by sale was stayed for ten years, he was at liberty to proceed upon the decree and also on that mortgage in 1860. This action was commenced in July, 1881, and thereafter, and not before, set up his judgment and mortgage. This was more than twenty years after the cause of action under any construction accrued, and a recovery upon either is barred whether the question is considered under the limitation prescribed by the Revised Statutes (title 2, part III, ch. 3, 2 R. S. 295, § 90), or the Code of Procedure (Laws of 1848, ch. 438, § 90), or the Code of Civil Procedure, § 381. No proof was given to take either claim out of the operation of the statute. The policy of the law and substantial justice required that judgment should be given against them. Barnard v. Onderdonk. Opinion by Danforth, J. [As to Merger see 38 Am. Rep. 129.—ED.] }

[Decided Feb. 10, 1885.]

LIMITATION--STATUTE-TRUSTEE OF MANUFACTURING COMPANY-COVENANT TO PAY TAXES.- A company, of which defendant was trustee, hired of the plaintiff certain premises for the term of six years and six months from Nov., 1872, and agreed to pay all such taxes and water-rates as might be imposed upon the demised premises during each year, and if they "should not be so paid before the first day of February next after the same should have been imposed, then to pay to the plaintiffs on that day, as additional rent, whatever sum might be necessary to pay said taxes and Croton water-rates for such year, or either of the same remaining unpaid, with all the penalties and interest accrued thereon. The corporation failed to make its annual reports in 1873, 1874 and 1875, as required by the twelfth section of the act of 1848, and this act was brought on Jan. 14, 1878, to charge him with certain debts of the company existing, as is alleged, at the time of such defaults. Held, that the liability of the company was upon the covenant to pay the water-rates and taxes. The liability of the defendant depended upon the combination of three circumstances, viz., the existence of the debt, the existence of the default in making the report, and the trusteeship. Shaler, etc., Quarry Company v. Bliss, 27 N. Y. 297; Duckworth v. Roach, 81 id. 49. It is well settled that if there be no obligation giving a present right of action against the company, there is no debt which can be demanded as a penalty against the trustee. Jones v. Barlow, 62 N.

Y. 203; Whitney Arms Co. v. Same, 63 id. 62; 68 id. 34, It is therefore as affecting both appeals, material to ascertain the true construction of the terms of the covenant. So far as it requires the company (the lessee) to pay and discharge water-rates and taxes, it is precisely like the covenant which lay at the foundation of the case of Rector, etc., v. Higgins, 48 N. Y. 532, and if it went no further, the decision then made would require us to hold, that a right of action against the company accrued on its failure to pay the rates and taxes when imposed, that is, in May and September of each year. That action however was for damages, and when presented to the Appellate Court, the right of the plaintiffs to maintain it at some time was not disputed, and the only question raised related to their doing so before actual payment of the assessments then in question. But in the case before us, the covenant goes further, and provides that if not so paid before the first of day of February next after they are so imposed, the company on that day will pay the amount of them as additional rent to the lessor. Here are two things to be done, and the obligation to perform one depends upon the non-performance of the other as a condition precedent, and as that depends upon the will of the promisor, it is in substance an alternative contract, and in such a case the party charged may elect which of the two alternatives he will perform. In effect the company said, we will either pay the taxes when they become due to the city authorities, and so relieve the demised premises, or as in case we do not, you will be required to do so to protect your property, we will on the first of February pay to you the sum of them, with interest and such penalties as are incurred. The cause of action did not accrue against the company until its failure to comply with the second alternative. That occurred on the first day of February, 1874, and as the plaintiffs could then have sued the company, so also they could have sued the defendant. At that moment therefore the short statute of limitations prescribed to this class of actions commenced running in his favor, Shaler, etc., Co. v. Bliss, supra; Merchants' Bank v. Bliss, 35 N. Y 412; Miller v. White, 50 id. 137; Jones v. Barlow, supra; Losee v. Bullard, 79 N. Y. 404, and before the commencement of this action the bar fell. The statute operates upon the remedy, and the omission of the creditor to pursue it cannot stop its running. The liability of the trustee was imposed by statute and the benefit and suit therefor are limited to the creditor as the one aggrieved. In such a case when the statute of limitations begins to run nothing subsequent will stop it. But the question now before us is directly within the principle of the decision of this court in Losee v. Bullard, supra, and permits no further discussion. It can make no difference that the company in this case continued to transact business. The plaintiffs were not required to sue the trustee, but could not, by omitting to do so, prevent the application of the statute. Rector, etc., v. Vanderbilt. Opinion by Danforth, J.

[Decided Feb. 10, 1885.]

CONTRACT-PUBLIC OFFICER-PERSONAL LIABILITY -PUBLISHING NOTICES TAX SALE-ACT 1878, CH. 65. -This action was brought against defendant as treas. urer of the county of Ulster, to recover the alleged contract-price agreed to be paid by him, as such officer, for publishing notices of tax sales in a newspaper of which plaintiff was the proprietor. The compensation to which the plaintiff is entitled for publishing the advertisement of the tax sale in Ulster county is gov erned by chapter 831 of the Laws of 1869. The provis ion in the sixth section of chapter 65 of the Laws of 1878, that "the publishing of the said notice is not to exceed the sum of $2 for each newspaper so publishing