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duct as to render it unsafe and improper for her to cohabit with him, and upon the further ground that the defendant had neglected to provide for her. The action was referred to Judge Jaines C. Smith, who, after an extended trial of the issues, made his report, dismissing the plaintiff's complaint. A judgment was directed for the defendant upon the report of the referee, and from the judg. ment entered plaintiff brought this appeal.
The parties were married in the city of Rochester on the 22d day of February, 1887, and lived together as husband and wife in that city until the 9th day of May, 1889, when the plaintiff left the defendant's home, and thereupon brought this action for separation. The cause was tried at great length. The evidence contained in the record covers more than 350 pages of printed matter. The story of the bickerings and altercations of the parties during the two years and over that they lived together, as related by them and their witnesses, tends pretty conclusively to show that their home life was anything but a pleasant one. Their contentions and quarrels seem to have resulted in many instances from very trivial causes, and were exaggerated by the irascible and ungovernable temper of both of the parties. It is difficult to arrive at a satisfactory conclusion, after a careful perusal of the evidence, as to which one conduced most to bring about the final separation. It is very apparent that they failed to appreciate the obligations they assumed to each other when they entered into their marriage vows. The maturer years and larger experience of Dr. Burke should have enabled him to have better controlled his temper and language, and to have induced him to treat his young wife with greater tenderness and respect.
The evidence tends to show that his treatment of her was on many occasions severe and unjust. The serious and irritating physical malady from which the doctor was suffering during the time should have admonished the plaintiff that it was her duty to be kind and attentive to his wants and wishes.
He was for a long time very seriously ill, so much so that his life was de spaired of. He was exceedingly nervous and irritable. He had been subjected to a severe surgical operation, and had resorted to the use of anaesthetics tc allay his pains and nervousness. All this tends to account in a measure for his language and conduct. There was much evidence tending to show that, while the defendant was in this condition, the plaintiff was irritable, and guilty of conduct and the use of language to her husband which tended to annoy and provoke him.
Much of the time the parties lived peaceably with each other, but their altercations and quarrels were quite frequent and very bitter. It is the policy of the law not to grant separations or divorces for slight and trivial causes. When parties have deliberately entered into such relations, it is incumbent upon them to do everything in their power to make the unicn a happy one; and, while it is not uncommon that at first misunderstandings and bickerings arise, as a rule the parties finally adapt themselves to their new relations, and live comparatively happily with each other. The testimony does not sustain the charge that the defendant failed to provide for the plaintiff. The learned referee, a man of large experience and great legal learning, after hearing the testimony and seeing the witnesses, concluded that the plaintiff had failed to establish the allegations of her complaint, and made a report dismissing her action. His report was confirmed at the special term, and, after a careful review of all the evidence, we think the referee arrived at the correct conclusion, and we find no reason for disturbing the judgment. The judgment should be affirmed, without costs of the appeal to either party. . All concur.
(75 Hun, 355.)
BROWN V. NEW YORK CENT. & H. R. R. CO. (Supreme Court, General Term, Fifth Department. January 18, 1894.) L CARRIERS-DISCRIMINATION-HACK STAND IN DEPOT.
Laws 1892, c. 676, provides that no preference in the transaction of the business of a common carrier on its cars, or in its depots or buildings, or on its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations, or corporations competing in the same business, or in the business of transporting property for themselves or others. Held, that the purpose of the statute is to prevent discrimination between rival shippers or rival connecting roads, and does not forbid a railroad company to grant to a hackman the exclusive
privilege of coming into defendant's depot yards with his hacks. 2. CONTRACTS-CONSIDERATION-PUBLIC Policy.
A contract between a railroad company and a hackman by which the company grants an exclusive privilege to the hackman to come into its depot yards with his hacks for the purpose of soliciting business from persons arriving at the depot is not against public policy. Appeal from circuit court, Erie county.
Action by Charles W. Brown against the New York Central & Hudson River Railroad Company. From an order granting an in. junction, defendant appeals. Reversed.
Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ.
LEWIS, J. Defendant is a railroad corporation engaged in the business of a common carrier. It has at the city of Niagara Falls a passenger station, at which it receives and discharges its passengers with their baggage. It has a yard adjoining the depot, around which it has erected a fence in such a manner as to prevent access thereto except through gates provided for that purpose. There is a platform along one side of the yard, which leads from the stopping place of the cars to the passenger depot. The defendant has entered into a written agreement with the Miller & Brundage Coach Company, Limited, by the terms of which, for a valuable consideration paid by the coach company, it is given the exclusive right to have its agents upon the defendant's trains of cars running to and from the city of Niagara Falls, for the purpose of soliciting business for the coach company. The contract also gives said coach company the exclusive right to enter said yard with its coaches and carriages, and solicit and receive any passengers stopping at said sta
tion who may desire to go to points in the city of Niagara Falls. Passengers, after alighting from defendant's cars, pass along the platform mentioned adjacent to the yard, where they may, if they so desire, enter the Miller & Brundage carriages and coaches, and be driven out through the gates onto the street. The plaintiff is the owner of two carriages with teams of horses, and is engaged with them in the transportation of passengers about the city of Niagara Falls. He and others engaged in like business are not allowed to enter the yard. They stand with their carriages upon the street near the depot, and there solicit such passengers as have not al. ready been secured by the Miller & Brundage Company. Manifestly, the situation gives to the coach company great advantages over the other carriages in securing business. The defendant, although requested so to do, has refused to allow the plaintiff to go upon its trains to solicit patronage for his carriages, or to enter the yard mentioned for a like purpose. It does not appear that the plaintiff has offered to pay the defendant anything for the privileges which he desires. He claims that the preference thus given the Miller & Brundage Company is a violation of section 34, c. 565, of the Laws of 1890, as amended by chapter 676 of the Laws of 1892; and he commenced this action to restrain the defendant from giving to the said coach company the exclusive privileges mentioned, and he obtained at the Erie special term a temporary injunction"Restraining the defendant, its employes, etc., from granting or allowing to the Miller & Brundage Coach Company, at Niagara Falls, in competition with the plaintiff herein in the business of a common carrier, a preference or exclusive right or privilege to transact its business as a common carrier upon or in the depot buildings, or upon or in its yards or grounds, and from hindering, prohibiting, or excluding the plaintiff from entering the defendant's depot and buildings, going upon its grounds at Niagara Falls, transacting his business as a common carrier thereon, while and so long as the Miller & Brundage Coach Company shall be permitted and allowed by the defendant herein to enter its depot buildings, to go upon its grounds at Niagara Falls, to transact the business of a common carrier thereon.”
That part of the motion relating to soliciting upon defendant's cars was not granted. No complaint is made of any preference being given to the Miller & Brundage Company in delivering the people at the defendant's depot who desire to take passage upon defendant's trains. They both enjoy equal privileges in that respect as all passengers are required to pass through the depot, and there procure their tickets, before entering the yard to take the cars. They all, therefore, alight from carriages at the sidewalk in the public street. Plaintiff bases his right to the order upon the statute referred to. The original section, as passed in 1850, provided that every railroad corporation"Shall furnish sufficient accommodations for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting and the junction of other railroads and at usual stopping places established for receiving and discharging way-passengers and freight for that train and shall take, transport and discharge such passengers and property at from and to such places on the due payment of the freight or fare legally authorized therefor, and shall be liable to the party aggrieved in an action for damages for any neg. lect or refusal in the premises."
This section was amended by chapter 49 of the Laws of 1867, by adding thereto the following:
"No preference for the transaction of business shall be granted by such railroad corporation to any one of two or more companies or associations competing in the business of transporting property for themselves or for others upon the railroad owned or operated by such corporation, either upon the cars or in the depots or buildings or upon the grounds of such corporation."
And then follow provisions in reference to fair and impartial dealings with connecting railroads. This section was again amended by chapter 565 of the Laws of 1890, but that amendment is not material to the questions under consideration. It was again amended by chapter 676 of the Laws of 1892. So much of the section as is material to the questions under consideration was, by this last amendment, made to read as follows:
"No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations or corporations competing in the same business, or in the business of transporting property for themselves or others."
Plaintiff's business probably comes within the general definition of that of a common carrier, as stated in the text books and decisions. When speaking of common carriers, however, we wculd not understand the hackman's business to be included in that term. He transports passengers here and there abcut the streets of a village or city, having no established route over which his conveyance runs, nor any specified times for making his trips. He assumes the right to let his rig for a day, or any other specified time, to suit the convenience or wishes of his patrons. He gives the exclusive use of his carriage to a less number of persons than it can conveniently accommodate. He pursues his business if he finds it profitable to do so; if not, he remains idle. The obligations and duties of a common carrier are very different. "A common carrier is bound to accept and carry all such things as he publicly proposes to carry, for all persons who are ready and willing to pay him his customary price, provided he has the room in his bcats, cars, coaches, carts, or carriages for their conveyance, and he intends to set out on his accustomed journey.” Johnson v. Railroad Co., 4 Exch. 367; Add. Cont. (6th Ed.) p. 468. "Carriers are called 'common' or 'private, the latter being persons who undertake for the transportation in a particular instance only, not making it their vocation, nor holding themselves out to the public ready to act for all who desire their services." Abb. Law Dict., under head of “Carrier.” who holds himself out to carry goods of all persons indiscriminately is a common carrier." Allen v. Sackrider, 37 N. Y. 342; Hollister v. Nowlen, 19 Wend. 236. If it be conceded that the business of a common hackman comes under the general definition of a common carrier, it dces not follow that it comes within the protection of this statute. It is apparent, from a reading of the several acts referred to, that the legislature had in mind a very different class of common carriers. It is a matter of common knowledge that railroad compa
nies had come to unjustly discriminate between rival shippers over their roads, and between other connecting railroads. This practice had grown to be very detrimental to the business of the country, and especially to that of rival shippers of goods. These several acts were manifestly passed with a view to remedy this evil. They said to the railroads of the state, "You shall not give any preference to any one of two or more persons, associations, or corporations competing in the same business, who may wish to ship over your road.” Then, again, the statute was intended to apply to such persons, associations, and corporations, and those only, who have, or wish to have, business relations with the railroad company. It would have been quite absurd for the legislature to have attempted to regulate the conduct of railroads towards those who neither have, nor wish to have, any business relations with them. It does not appear that the plaintiff ever did, or desired to do, any business with the defendant. When passengers alight from the cars at the Falls, defendant's contract relations with them are ended. The business the passengers employed it to do has been performed; the defendant owes them no further duty. It is after the relations of the passenger and the company are ended that the plaintiff's opportunity to deal with them commences. His business is to take the passenger in his carriage at that time, and drive him about the city for a consideration. The statute does not assume to reach such
It says no preference for the business of a common carrier upon its cars shall be granted, etc. What right has the plaintiff to demand that the defendant shall appropriate to him, for the purpose of carrying on his private business, its yard and cars, and that without paying anything for them? If the statute gives him what he claims, then each and every one of the 50 or more hackmen at the Falls are entitled to put their agents upon the defendant's cars to solicit business for their carriages, so long as the Miller & Brundage Company enjoys that right, and for which right it pays a consideraticn to defendant. If the plaintiff be right in his contention, it logically follows that any one wishing to engage in the business of selling papers, pamphlets, stationery, etc., has the right, if he can find an unoccupied corner in a railroad depot, to insist upon occupying it for his business, if any other person shall be occupying a place in said depot for a like business by permission of the company. The questions here presented have been the subject of discussion in the courts of this country, as well as in those of England. There is some conflict in the authorities, especially in the courts of this country. The English railway and canal traffic act is, in substance, like the statute of this state. Beadell v. Railway Co., 2 C. B. (N. S.) 509, was a complaint, under the statute, that the railway company refused to allow the complainant to apply for passengers at its station, it having granted the exclusive right of taking up passengers within the station to one Clark, for the consideration of £600 per annum. The respondent allowed the complainant's cabs to enter the station for the purpose of putting down passengers, and then required him to leave the yard, and refused to allow the plaintiff the same privileges as were accorded to Clark. An injunc