Imágenes de páginas
PDF
EPUB

is productive of much idleness, pauperism, disorder, and crime. In order to prevent and to minimize these evils as far as possible, it has been deemed necessary for the welfare of society that the business of liquor selling should be hedged about by conditions and restraints from which other callings may be safely exempted. Under the law of our state one of these conditions is that no one shall be permitted to carry on that business without a liquor tax certificate duly issued by the proper authorities; and another is that "no person, either as owner or agent, shall permit any place where the traffic in liquors is carried on to become disorderly." Liquor Tax Law, Laws 1897, p. 224, c. 312, § 23, subd. 9. To effectuate this command of the law, "all officers authorized to make arrests in any city may, in the performance

of their duties, enter upon any premises where the traffic in liquors is carried on or liquors are exposed for sale at any time when such premises are open." The defendant was concededly an officer having authority to make arrests in the city of New York, and as a member of the police force in that municipality it was his duty "at all times of day and night * * to especially preserve the public peace, prevent crime, detect and arrest offenders, careful

ly observe and inspect all places of public amusement, all places of business having excise or other licenses to carry on any business; all houses of ill-fame or prostitution, and houses where common prostitutes resort or reside, and to repress and restrain all unlawful and disorderly conduct or practices therein; enforce and prevent the violation of all laws and ordinances in force in said city." New York Charter, Laws 1901, p. 136, c. 466, § 315.

The substance of the allegations of the complaint and the affidavits upon which the injunction herein was granted is that the plaintiff is conducting a lawful business in a proper manner, and that the defendant has maliciously, oppressively, and unlawfully interdicted his business in the particulars set forth and restrained by the injunction. Opposed to these allegations are the numerous affidavits presented by the defendant, containing specific and detailed statements which tend very strongly to show that there was abundant basis for the suspicion that the plaintiff's "hotel" was a place in which disorderly practices prevailed. But we are not now concerned with the truth or falsity of these conflicting assertions. They are referred to merely for the purpose of showing that, upon the point which is determinative of the question whether the defendant acted lawfully or otherwise, there is a sharp controversy of fact. If the plaintiff did in fact maintain a disorderly place, it was the defendant's right, if it was not his duty, to warn persons about to enter against becoming participators in plaintiff's violation of the law. The whole question

|

whether the acts of the defendant and his inferior officers were legal or not depends entirely upon the character of this so-called hotel. This basic question should not be determined in a court of equity upon affidavits, but in a court of law and by evidence that is tested and scrutinized according to the settled rules. In a case quite similar in principle, although different in its facts (Davis v. Am. Society for the Prevention of Cruelty to Animals, 75 N. Y. 362), this court has held that a court of equity is not the place for the trial of such a question. There the plaintiff was engaged in the business of slaughtering hogs in the city of New York. The president of the defendant society was an officer authorized to make arrests and he went upon the premises of Davis, threatening him and his employés with arrest unless they would discontinue their method of killing hogs, which was claimed to be unnecessarily cruel. The action was in equity to restrain the defendant, its officers and agents, from making such arrests. At the trial the plaintiff adduced evidence which strongly tended to show that his method of slaughter was not unnecessarily cruel. Notwithstanding this evidence the complaint was dismissed, and upon appeal to this court it was held that the case made by the pleadings and proofs was not one of equitable cognizance. In speaking for this court upon that question the late Judge Earl said: "A person threatened with arrest for keeping a bawdyhouse, or for violating the excise law, or even for the crime of murder, upon the allegation of his innocence of the crime charged, and of irreparable mischief which would follow his arrest, could always draw the question of his guilt or innocence from trial in the proper forum. An innocent person, upon an accusation of crime, may be arrested and ruined in his character and property, and the damage he thus sustains is damnum abseque injuria, unless the case is such that he can maintain an action for malicious prosecution or false imprisonment. He is exposed to the risks of such damage by being a member of an organized society, and his compensation for such risks may be found in the general welfare which society is organized to promote. This action is absolutely without sanction in the precedents or principles of equity."

If equity will not intervene in behalf of a concededly lawful business of a fixed and unchanging character, to prevent the criminal prosecution of some alleged unlawful act in its conduct, how can such intervention be justified in a case where the business itself, even when lawfully conducted, exists by mere sufferance of law, or where it is of such a character that it may be lawful or unlawful at the will of him who conducts it? Such a situation as is presented in the case at bar is one which, in its very nature, cannot be adequately dealt with by a court of equity. What might be a trespass at one

instant of time may be a perfectly justifiable and necessary act at another. Here lies the fundamental distinction between the case at bar and that class of cases in which equity assumes jurisdiction to restrain trespasses that are continuous or permanent in their nature, and where such relief is necessary to obviate multiplicity of actions at law and to prevent continuity of wrong. This case is also intrinsically unlike the cases of which People ex rel. Stearns v. Marr, 181 N. Y. 463, 74 N. E. 431, is a type, in which "strikers" have been enjoined against interference with a lawful business by unlawful "picketing." The whole subject may be briefly summed up in the statement that we see nothing in the case at bar to take it out of the ordinary rule that equity will not interfere to prevent the enforcement of the criminal law. If the plaintiff has been oppressed and injured by any unlawful act of the defendant, he may invoke the Penal Code (section 556), or he may have an action at law for his damages.

The orders of the Special Term and Appellate Division should be reversed, and injunction vacated. The third question certified is answered in the negative. The first and second are not answered. Costs to the appellant in all the courts.

CULLEN, C. J., and GRAY, BARTLETT, HAIGHT, and VANN, JJ., concur. O'BRIEN, J., not voting.

Orders reversed, etc.

(183 N. Y. 330)

POND v. NEW ROCHELLE WATER CO. (Court of Appeals of New York. Jan. 9, 1906.) WATERS-WATER COMPANIES-CONTRACT WITH CITY-ENFORCEMENT BY RESIDENT.

A water company contracted with a village that, in consideration of the right to lay mains in the streets for a period of years, it would supply private consumers and corporations with pure water at a rate not to exceed a specified amount. Held, that the contract was valid and binding on the water company, and where its successor sent a notice to a resident of the village that no water would be supplied after certain date, except through meters and at increased rates, the resident may maintain an action for a permanent injunction restraining the collection of a rate in excess of that fixed by contract.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Charles H. Pond against New Rochelle Water Company. From an order of the Appellate Division (95 N. Y. Supp. 1155), affirming an interlocutory judgment of the Special Term sustaining a demurrer to the answer, defendant appeals by permission. Affirmed.

Henry W. Smith and Herbert D. Lent, for appellant. Henry G. K. Heath, for respondent.

BARTLETT, J. The Appellate Division, in allowing this appeal, certified twɔ questions, as follows: (1) Does the complaint in this action state a cause of action? and (2) is the affirmative matter set up in the answer sufficient in law upon the face thereof to constitute a defense in this action? Neither the Special Term nor the Appellate Division handed down an opinion, and we are remitted to the record, as is frequently the case in appeals from all the departments, without the views of the Supreme Court.

The plaintiff, a resident of the village of Pelham Manor, Westchester county, and a customer of the defendant water company furnishing the village with its supply of water, seeks in this action a permanent injunction restraining the company from enforcing collection of a water rate in excess of the amount fixed by the existing contract with the village. In October, 1892, the New York & Westchester Water Company supplied private consumers under a written contract, wherein it agreed with present and prospective private consumers to supply water to them at a rate per annum not to exceed $22.50 for each private house and $5 for each private barn. This contract extended to November 1, 1897. On or about October 22, 1894, a franchise was granted to the New York City District Water Supply Company by the village, authorizing the company to lay its mains for the purpose of supplying water; that at the same time a contract under seal was entered into between the village and the company, which contained, among other provisions, a covenant that for and during the term of 10 years, from October 22, 1894, and an extension for 20 years thereafter, if voted by the village pursuant to law, it would sup-/ ply private consumers and corporations in the village with pure and wholesome water at not exceeding the rates then charged by the New York & Westchester Water Company. It further appears that on May 31, 1904, the village voted to extend this contract for 30 years from its original date, October 22, 1894, to October 22, 1924, as permitted by Transportation Corporations Law, § 81 (Birdseye's Rev. St. vol. 3 [3d Ed.] p. 3763), and the contract with the New York City District Water Supply Company was thereby extended for the same period. Some time prior to February 11, 1904, the defendant, New Rochelle Water Company, became the assignee and successor of the rights of the New York City District Water Supply Company, and subject to all its obligations. On February 11, 1904, the defendant notified this plaintiff in writing that it would furnish water to him after April 1st next only upon written application for water to be taken through a meter. This notice was subsequently withdrawn, but later, on or about April 11, 1904, the defendant again sent to this plaintiff a printed notice to the effect that no water would be supplied by the company except through meters on and after

[ocr errors]

October 22, 1904, and at rates largely in excess of those fixed by the contract, to which reference has already been made. On August 1, 1904, the defendant again sent to the plaintiff a printed notice repeating substantially the last above notice. The foregoing statement of facts contains the substance of the complaint.

The defendant served an answer, which was practically a general denial, and pleaded three affirmative defenses. The first defense was, in substance, that compliance with the alleged contract, as claimed by the plaintiff, would amount to a confiscation of the defendant's property and the rights of certain municipalities it was supplying with water, and would work a forfeiture of its franchise; the fixed rate being too low. The second defense alleged that the contract which the plaintiff seeks to enforce is ultra vires. The third defense alleged that the defendant is ready and willing to furnish the inhabitants of the village of Pelham Manor with pure and wholesome water at reasonable rates and cost; that, should the defendant attempt to enforce the alleged contract against the small consumers, it would lead to a multiplicity of suits which it could not successfully defend; that it would be ruinous for the defendant to furnish the large consumers an unlimited supply of water at the rates fixed by the alleged contract, and would amount to a confiscation of its property; that, if the alleged contract is valid and enforceable, it amounts to an exclusive franchise, which the village had no power to grant; that, if the contract was valid, it gave the plaintiff no cause of action.

The plaintiff interposed separate demurrers to each of these affirmative defenses, on the ground that each was insufficient in law upon the face thereof. The Appellate Division affirmed the interlocutory judgment sustaining the plaintiff's demurrers to the affirmative matter set up in the answer, and sustaining the complaint as stating a cause of action. We agree with the decision of the learned Appellate Division as above stated, and deem it necessary to discuss only one question of law presented by the pleadings. It is clear that the defendant company rests under a contract obligation extending to October 22, 1924, to furnish the consumers of water in the village of Pelham Manor at a 'fixed rate per annum. The defendant not only attacks the validity of this contract, but insists that, even if it is an existing and binding obligation, it cannot be enforced at the suit of an individual private consumer. The plaintiff argues that, "where a contract for a valuable consideration contains covenants intended to benefit a certain class not parties to the agreement, but within the contemplation of the parties at the time, who are expressed as a class, and the promissee has some duty or liability to such class, and in

terest that the covenant be performed, any person coming within such class may bring an action in his own name in equity to compel performance of the covenant against the promisor." In support of this contention the familiar case of Lawrence v. Fox, 20 N. Y. 268, and other authorities are cited.

In Lawrence v. Fox, supra, there was a money indebtedness due on a day certain from Holly to Lawrence, and in consideration of the loan from Holly to Fox the latter agreed to pay his debt to Lawrence. It is obvious that the case cited and other actions at law following it do not present the precise question raised in the case at bar, which is a suit in equity, although a kindred principle is involved. The question may be thus stated: The village of Pelham Manor, in granting privileges to a water company extending over a long period of time, made the same subject to a written contract under seal, having for its object the protection of the present and future private consumers of water. The defendant company, which has been subrogated to all rights and liabilities of the original contracting company, threatened to violate that contract by a printed notice served on a private consumer, the plaintiff, that after a certain day it would no longer abide by the contract rates, but charge a larger amount. The question is, can the. plaintiff, under these circumstances, ask a court of equity to permanently enjoin the defendant from violating the contract and compel it to perform the same? That this action can be maintained is no longer an open question in this state. This court held in Coster v. Mayor, 43 N. Y. 399, that if one person contract, whether with or without seal, with another for the benefit of a third person, such third person may maintain an action on the agreement. At page 411, Folger, J., says: "It is settled in this state, that an agreement made on a valid consideration by one with another, to pay money to a third, can be enforced by a third in his own name. Lawrence v. Fox, 20 N. Y. 268; Secor v. Lord, *42 N. Y. 525. And though a distinction has sometimes been made in favor of a simple contract (Hall v. Marston, 17 Mass. 575; D. & H. Canal Co. v. W. Co. Bank, 4 Denio, 97), it is now held that when the agreement is in writing and under seal the same rule prevails (Van Schaick v. Third Ave. R. R. Co., 38 N. Y. 346; Ricard v. Sanderson, 41 N. Y. 179). Nor need the third person be privy to the consideration. Secor v. Lord, supra. Nor need he be named especially as the person to whom the money is to be paid. In that class of cases which holds that a grantee of mortgaged premises, who takes them subject to the lien of the mortgage, which by words in the deed of conveyance to him he assumes to pay, is personally liable to the holder of the mortgage for the amount of the mortgage debt, no question seems to be made but that the action may be maintained

in the holder's name, though the agreement be not made immediately for the benefit of the plaintiff, nor he be named in the deed. Thus, in Burr v. Beers, 24 N. Y. 178, 80 Am. Dec. 327, the clause in the deed described the mortgages as held by John Cramer, which mortgages the grantee thereby assumed to pay. And the case last cited was not an action in equity for the foreclosure of the mortgage in which the mortgagor and his grantee were both parties. See page 179 of 24 N. Y., 80 Am. Dec. 327. It was an action to recover a personal judgment against the grantee. The question was distinctly raised that there was no privity of contract between the plaintiff and defendant. And the decision against the defendant was put, in the language of Denio, J., 'upon the broad principle that if one person makes a promise to another for the benefit of a third person, the third person may maintain an action on the promise.'" Judge Denio further said, continuing the above quotation (page 180 of 24 N. Y., 80 Am. Dec. 327): "Upon that question there has been a good deal of conflict of judicial opinion. As long ago as 1817, Chancellor Kent laid it down as a point decided, and referred to not less than eight | English and American cases as sustaining the principle (Cumberland v. Codrington, 3 Johns. Ch. 255), and since then it has been frequently affirmed by judges, after an attentive examination of cases, as in Barker v. Bucklin, 2 Denio, 45, 43 Am. Dec. 726, and in the cases therein referred to."

The case of Vrooman v. Turner, 69 N. Y. 280, 25 Am. Rep. 195, illustrates the general principle here involved. This was an action to foreclose a mortgage and to hold liable a grantee who had received a conveyance subject to the mortgage, and which she assumed and agreed to pay. The mortgage was executed in August, 1873, by one Evans, who then owned the mortgaged premises. He conveyed the same to one Mitchell, and through various mesne conveyances the title came to one Sanborn. In none of these conveyances did the grantee assume to pay the mortgage. Sanborn conveyed the premises to defendant, Harriet B. Turner, by deed, which contained a clause stating that the conveyance was subject to the mortgage, "which mortgage the party hereto of the second part hereby covenants and agrees to pay off and discharge; the same forming part of the consideration thereof." The referee found that Mrs. Turner, by so assuming payment of the mortgage, became personally liable therefor, and directed judgment against her for any deficiency. The General Term affirmed this judgment. This court, in reversing the judgment, held that, as Mrs. Turner's grantor was not personally liable to pay the mortgage, her covenant was made with a stranger and could not be enforced. This court said (page 283 of 69 N. Y., 25 Am. Dec. 195): "To give a third party who may derive a benefit from the

performance of the promise an action, there must be, first, an intent by the promisee to secure some benefit to the third party, and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally. It is true there need be no privity between the promisor and the party claiming the benefit of the undertaking, neither is it necessary that the latter should be privy to the consideration of the promise; but it does not follow that a mere volunteer can avail himself of it. A legal obligation or duty of the promisee to him will so connect him with the transaction as to be a substitute for any privity with the promisor, or the consideration of the promise; the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a privity by substitution with the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties. There must be either a new consideration or some prior right or claim against one of the contracting parties by which he has a legal interest in the performance of the agreement." The judgment was reversed in this case because defendant's grantor was not liable to pay the mortgage. If in all the mesne conveyances the grantees had assumed and agreed to pay the mortgage executed by Evans, the mortgagee or his assignee could have enforced the covenant made by the defendant, Mrs. Turner, as it would have been a promise to pay the debt due him made to one also liable to discharge it.

The general principle that, if one person contracts for the benefit of a third person, such third person may maintain an action on the agreement, has been applied since early in the seventeenth century in a large number of cases; the facts in each differing to some extent. The leading case in England is Dutton v. Poole, 1 Ventris, 318, 332, decided in the reign of Charles II. The plaintiff declared in assumpsit that, his wife's father being seised of certain lands now descended to the defendant and being about to cut a £1,000 worth of timber to raise a portion for his daughter, the defendant promised to the father, in consideration that he would forbear to fell the timber, that he would pay the daughter £1,000. After verdict for the plaintiff on nonassumpsit, it was moved in arrest of judgment that the father ought to have brought the action and not the husband and wife. The court said: "It might have been another case if the money had been to have been paid to a stranger; but there is such a nearness of relation between the father and the child, 'tis a kind of debt to the child to be provided for, that the plaintiff is plainly concerned." The judgment was affirmed in the

Exchequer. 2 Lev. 212, Raym. 302. Some criticism having been expressed as to the soundness of this decision, Lord Mansfield said of it, 100 years later, that it would be difficult to conceive how a doubt could have been entertained about the case. Martyn v. Hind, Cowp. 443, Doug. 142. The case has been repeatedly followed in this state.

The principle established by this case has been applied to contracts entered into by a father for the benefit of his daughter and by a husband for the benefit of his wife. As to the latter instance, see Buchanan v. Tilden, 158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170, 70 Am. St. Rep. 454. In the case before us we have a municipality entering into a contract for the benefit of its inhabitants, the object being to supply them with pure and wholesome water at reasonable rates. While there is not presented a domestic relation like that of father and child or husband and wife, yet it cannot be said that this contract was made for the benefit of a stranger. In the case before us the municipality sought to protect its inhabitants, who were at the time of the execution of the contract consumers of water, and those who might thereafter become so, from extortion by a corporation having granted to it a valuable franchise extending over a long period of time. We are of opinion that the complaint states a good cause of action.

The order and interlocutory judgment appealed from should be affirmed, with costs, and the first question answered in the affirmative and the second in the negative.

CULLEN, C. J., and GRAY, O'BRIEN, HAIGHT, VANN, and WERNER, JJ., concur.

Order and judgment affirmed.

(183 N. Y. 338)

BEYER v. CITY OF NORTH TONAWANDA.

(Court of Appeals of New York. Jan. 9, 1906.) MUNICIPAL CORPORATIONS-DEFECTIVE STREET -NOTICE OF INJURY.

Where a city charter provides that the city shall not be liable for injuries sustained by defects in the streets, unless a notice in writing shall have been served within a certain time after the accident, stating the defect and the location thereof, a written notice describing the street, the side of the street, and the particular defect as being about halfway between two cross-streets, is a sufficient notice, though the accident occurred from 80 to 100 feet nearer one street than the other.

[Ed. Note.-For cases in point, see vol. 36, Cent. Dig. Municipal Corporations, § 1702.] Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Charlotte Beyer against the city of North Tonawanda. From a judgment of the Appellate Division (88 N. Y. Supp. 1092, 94 App. Div. 614), affirming a judgment for defendant on dismissal of the complaint, and

from an order denying a new trial, plaintiff appeals. Reversed.

A. F. Premus, for appellant. Ray M. Stanley and John K. White, for respondent.

O'BRIEN, J. The plaintiff sought to recover damages for a personal injury claimed to have been received by her in consequence of a defective sidewalk. On the trial her complaint was dismissed, and the questions of negligence presented by the pleadings were not passed upon; but it was held that as matter of law she was not entitled to recover. The judgment was affirmed on appeal upon the sole ground, as stated in the order, "that the notice required to be served by the plaintiff after the happening of the alleged accident did not particularly and accurately state the location of the defect complained of as required by defendant's charter." The provision of the charter referred to is as follows: "And the city of North Tonawanda shall not be liable for any damage or injury sustained in consequence of defects in, want of repair, or obstruction of any of the highways, streets, alleys, sidewalks, cross-walks, or public places of the city unless notice in writing shall have been served upon the mayor or city clerk within ten days after the happening of the casualty from which such damage or injury may have resulted, and such notice shall particularly state such defect, want of repair or obstruction and the location thereof." The learned court below held that the plaintiff failed to comply with this provision of the charter, and hence the nonsuit at the trial was sustained.

The statements in the notice which the plaintiff caused to be served upon the defendant are in the following language: "The undersigned Charlotte Beyer, residing on Niagara street, in said city of North Tonawanda, while carefully walking along and over the sidewalk on the easterly side of Paynes avenue, between Schenck street and Robinson street, in said city, at about 10 o'clock in the forenoon on the 20th day of April, 1902, was severely injured by reason of a decayed and defective portion of said sidewalk, about halfway between Schenck street and Robinson street; that the particular defect in said sidewalk consisted of one or more loose and decayed planks in said sidewalk; that said plank or planks at the point aforesaid were rotten and decayed at the ends and loose at one or both ends; and that when I attempted to cross such portion of said defective sidewalk I was tripped and thrown, and caused to fall violently to the ground and thereby sustain severe injuries, and was thereby caused great pain and suffering." On April 29, 1902-that is, nine days after the accident-this notice was delivered to the deputy city clerk of the city, and on the same day came to the actual pos

« AnteriorContinuar »