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is productive of much idleness, pauperism, | whether the acts of the defendant and his disorder, and crime. In order to prevent and inferior officers were legal or not depends ento minimize these evils as far as possible, it tirely upon the character of this so-called has been deemed necessary for the welfare hotel. This basic question should not be deof society that the business of liquor selling termined in a court of equity upon affidavits, should be hedged about by conditions and rebut in a court of law and by evidence that straints from which other callings may be is tested and scrutinized according to the safely exempted. Under the law of our state settled rules. In a case quite similar in one of these conditions is that no one shall principle, although different in its facts be permitted to carry on that business with (Davis v. Am, Society for the Prevention of out a liquor tax certificate duly issued by the Cruelty to Animals, 75 N. Y. 362), this court proper authorities; and another is that "no has held that a court of equity is not the person, either as owner or agent, shall per place for the trial of such a question. There mit any place where the traffic in liquors the plaintiff was engaged in the business of is carried on to become disorderly.” Liquor slaughtering hogs in the city of New York. Tax Law, Laws 1897, p. 224, c. 312, & 23, subd. The president of the defendant society was 9. To effectuate this command of the law, an officer authorized to make arrests and he "all officers authorized to make arrests in went upon the premises of Davis, threatenany city *

may, in the performance ing him and his employés with arrest unless of their duties, enter upon any premises they would discontinue their method of killwhere the traffic in liquors is carried on or ing hogs, which was claimed to be unnecesliquors are exposed for sale at any time sarily cruel. The action was in equity to when such premises are open." The defend restrain the defendant, its officers and ant was concededly an officer having authori agents, from making such arrests. At the ty to make arrests in the city of New York, trial the plaintiff adduced evidence which and as a member of the police force in that strongly tended to show that his method of municipality it was his duty "at all times of slaughter was not unnecessarily cruel. Notday and night * to especially pre withstanding this evidence the complaint serve the public peace, prevent crime, de was dismissed, and upon appeal to this tect and arrest offenders, . . . careful. court it was held that the case made by the ly observe and inspect all places of public pleadings and proofs was not one of equitaamusement, all places of business having ex ble cognizance. In speaking for this court cise or other licenses to carry on any busi upon that question the late Judge Earl said: ness; all houses of ill-fame or prostitution, "A person threatened with arrest for keeping and houses where common prostitutes resort a bawdyhouse, or for violating the excise or reside,

and to repress and re | law, or even for the crime of murder, upon strain all unlawful and disorderly conduct the allegation of his innocence of the crime or practices therein; enforce and prevent the charged, and of irreparable mischief which violation of all laws and ordinances in force would follow his arrest, could always draw in said city.” New York Charter, Laws 1901, the question of his guilt or innocence from p. 136, c. 466, § 315.

trial in the proper forum. An innocent perThe substance of the allegations of the son, upon an accusation of crime, may be arcomplaint and the affidavits upon which rested and ruined in his character and propthe injunction herein was granted is that the erty, and the damage he thus sustains is plaintiff is conducting a lawful business in damnum abseque injuria, unless the case is a proper manner, and that the defendant such that he can maintain an action for mahas maliciously, oppressively, and unlaw- licious prosecution or false imprisonment. fully interdicted his business in the particu He is exposed to the risks of such damage lars set forth and restrained by the injunc- by being a member of an organized s tion. Opposed to these allegations are the and his compensation for such risks may be numerous affidavits presented by the defend found in the general welfare which society ant, containing specific and detailed state- is organized to promote. This action is abments which tend very strongly to show solutely without sanction in the precedents that there was abundant basis for the or principles of equity.” suspicion that the plaintiff's "hotel" was a If equity will not intervene in behalf of a place in which disorderly practices prevailed. concededly lawful business of a fixed and But we are not now concerned with the truth unchanging character, to prevent the crimior falsity of these conflicting assertions. | nal prosecution of some alleged unlawful They are referred to merely for the purpose act in its conduct, how can such intervention of showing that, upon the point which is be justified in a case where the business itdeterminative of the question whether the self, even when lawfully conducted, exists defendant acted lawfully or otherwise, there by mere sufferance of law, or where it is of is a sharp controversy of fact. If the plain- | such a character that it may be lawful or tigt did in fact maintain a disorderly place, unlawful at the will of him who conducts it? it was the defendant's right, if it was not Such a situation as is presented in the case his duty, to warn persons about to enter at bar is one which, in its very nature, canagainst becoming participators in plaintiff's not be adequately dealt with by a court of violation of the law. The whole question equity. What might be a trespass at one instant of time may be a perfectly justifia- 1 BARTLETT, J. The Appellate Division, ble and necessary act at another. Here lies in allowing this appeal, certified two questhe fundamental distinction between the case tions, as follows: (1) Does the complaint in at bar and that class of cases in which this action state a cause of action? and (2) is equity assumes jurisdiction to restrain tres the affirmative matter set up in the answer passes that are continuous or permanent in sufficient in law upon the face thereof to contheir nature, and where such relief is neces stitute a defense in this action? Neither the sary to obviate multiplicity of actions at Special Term nor the Appellate Division law and to prevent continuity of wrong. handed down an opinion, and we are remitted This case is also intrinsically unlike the cases to the record, as is frequently the case in of which People ex rel. Stearns v. Marr, 181 appeals from all the departments, without V. Y. 463, 74 N. E. 431, is a type, in wbich the views of the Supreme Court. “strikers" have been enjoined against in The plaintiff, a resident of the village of terference with a lawful business by unlaw- | Pelbam Manor, Westchester county, and a ful “picketing.” The whole subject may be customer of the defendant water company briefly summed up in the statement that we furnishing the village with its supply of see nothing in the case at bar to take it out water, seeks in this action a permanent inof the ordinary rule that equity will not in junction restraining the company from enterfere to prevent the enforcement of the forcing collection of a water rate in excess criminal law. If the plaintiff has been op of the amount fixed by the existing contract pressed and injured by any unlawful act of with the village. In October, 1892, the New the defendant, he may invoke the Penal York & Westchester Water Company supplied Code (section 556), or he may have an ac private consumers under a written contract, tion at law for his damages.

wherein it agreed with present and prospecThe orders of the Special Term and Ap tive private consumers to supply water to them pellate Division should be reversed, and in at a rate per annum not to exceed $22.50 for junction vacated. The third question certi each private house and $5 for each private fied is answered in the negative. The first barn. This contract extended to November and second are not answered. Costs to the 1, 1897. On or about October 22, 1894, a appellant in all the courts.

franchise was granted to the New York City

District Water Supply Company by the vil. CULLEN, C. J., and GRAY, BARTLETT, lage, authorizing the company to lay its HAIGHT, and VANN, JJ., concur. O'BRIEN, mains for the purpose of supplying water; J., not voting.

that at the same time a contract under seal

was entered into between the village and the Orders reversed, etc.

company, which contained, among other provisions, a covenant that for and during the

term of 10 years, from October 22, 1894, and (183 N. Y. 330)

an extension for 20 years thereafter, if votel POND . NEW ROCHELLE WATER CO. by the village pursuant to law, it would sup. (Court of Appeals of New York. Jan. 9, 1906.)

ply private consumers and corporations in the WATERS-WATER COMPANIES–CONTRACT WITH

village with pure and wholesome water at not CITY-ENFORCEMENT BY RESIDENT.

exceeding the rates then charged by the New A water company contracted with a village York & Westchester Water Company. It furthat, in consideration of the right to lay mains ther appears that on May 31, 1904, the vilin the streets for a period of years, it would

lage voted to extend this contract for 30 supply private consumers and corporations with pure water at a rate not to exceed a specified

years from its original date, October 22, 1894, amount. Held, that the contract was valid and to October 22, 1924, as permitted by Transbinding on the water company, and where its portation Corporations Law, $ 81 (Birdseye's successor sent a notice to a resident of the vil

Rev. St. vol. 3 [3d Ed.] p. 3763), and the conlage that no water would be supplied after certain date, except through meters and at in

tract with the New York City District Water creased rates, the resident may maintain an ac Supply Company was thereby extended for the tion for a permanent injunction restraining the

| same period. Some time prior to February collection of a rate in excess of that fixed by

11, 1904, the defendant, New Rochelle Water contract.

Company, became the assignee and successor Appeal from Supreme Court, Appellate Di

of the rights of the New York City District vision, Second Department.

Water Supply Company, and subject to all its Action by Charles H. Pond against New

obligations. On February 11, 1904, the de Rochelle Water Company. From an order of

fendant notified this plaintiff in writing that the Appellate Division (95 N. Y. Supp. 1155),

it would furnish water to bim after April 1st affirming an interlocutory judgment of the

next only upon written application for water Special Term sustaining a demurrer to the

to be taken through a meter. This notice was answer, defendant appeals by permission.

subsequently withdrawn, but later, on or Affirmed.

about April 11, 1904, the defendant again Henry W. Smith and Herbert D. Lent, for sent to this plaintiff a printed notice to the appellant Henry G. K. Heath, for respond effect that no water would be supplied by the ent

company except through meters on and after


October 22, 1904, and at rates largely in ex- | terest that the covenant be performed, any cess of those fixed by the contract, to which person coming within such class may bring reference has already been made. On Au- an action in his own name in equity to comgust 1, 1904, the defendant again sent to pel performance of the covenant against the the plaintiff a printed notice repeating sub promisor." In support of this contention stantially the last above notice. The fore the familiar case of Lawrence v. Fox, 20 N. going statement of facts contains the sub Y. 268, and other authorities are.cited, stance of the complaint.

In Lawrence v. Fox, supra, there was a The defendant served an answer, which money indebtedness due on a day certain was practically a general denial, and pleaded from Holly to Lawrence, and in consideration three affirmative defenses. The first defense of the loan from Holly to Fox the latter was, in substance, that compliance with the agreed to pay his debt to Lawrence. It is alleged contract, as claimed by the plaintiff, obvious that the case cited and other actions would amount to a confiscation of the defend at law following it do not present the preant's property and the rights of certain cise question raised in the case at bar, which municipalities it was supplying with water, is a suit in equity, although a kindred prinand would work a forfeiture of its franchise; ciple is involved. The question may be thus the fixed rate being too low. The second stated: The village of Pelham Manor, in defense alleged that the contract which the granting privileges to a water company explaintiff seeks to enforce is ultra vires. The tending over a long period of time, made the third defense alleged that the defendant is same subject to a written contract under ready and willing to furnish the inbabitants seal, having for its object the protection of of the village of Pelham Manor with pure the present and future private consumers of and wholesome water at reasonable rates

water. The defendant company, which has and cost; that, should the defendant at

been subrogated to all rights and liabilities tempt to enforce the alleged contract against of the original contracting company, threatthe small consumers, it would lead to a

ened to violate that contract by a printed nomultiplicity of suits which it could not tice served on a private consumer, the plainsuccessfully defend ; that it would be ruin tiff, that after a certain day it would no long. ous for the defendant to furnish the large er abide by the contract rates, but charge a consumers an unlimited supply of water at

larger amount. The question is, can the. the rates fixed by the alleged contract, and

plaintiff, under these circumstances, ask, a would amount to a confiscation of its prop

court of equity to permanently enjoin the deerty; that, if the alleged contract is valid

fendant from violating the contract and com. and enforceable, it amounts to an exclusive

pel it to perform the same? That this acfranchise, which the village had no power to

tion can be maintained is no longer an open grant; that, if the contract was valid, it

question in this state. This court held in

Coster v. Mayor, 43 N. Y. 399, that if one pergave the plaintiff no cause of action.

son contract, whether with or without seal, The plaintiff interposed separate demur

with another for the benefit of a third perrers to each of these affirmative defenses,

son, such third person may maintain an acon the ground that each was insufficient in

tion on the agreement. At page 411, Folger, law upon the face thereof. The Appellate

J., says: “It is settled in this state, that an Division affirmed the interlocutory judgment

agreement made on a valid consideration by sustaining the plaintiff's demurrers to the

| one with another, to pay money to a third, affirmative matter set up in the answer, and

can be enforced by a third in his own name. sustaining the complaint as stating a cause

Lawrence v. Fox, 20 N. Y. 268; Secor y. of action, we agree with the decision of

Lord, *42 N. Y. 525. And though a distinction the learned Appellate Division as above stat

has sometimes been made in favor of a simed, and deem it necessary to discuss only one

ple contract (Hall v. Marston, 17 Mass. 575; question of law presented by the pleadings. D. & H. Canal Co. v. W. Co. Bank, 4 Denio, It is clear that the defendant company rests 97), it is now held that when the agreement under a contract obligation extending to Oc- | is in writing and under seal the same rule tober 22, 1924, to furnish the consumers of prevails (Van Schaick v. Third Ave. R. R. water in the village of Pelham Manor at a Co., 38 N. Y. 346; Ricard v. Sanderson, 41 fixed rate per annum. The defendant not N. Y. 179). Nor need the third person be only attacks the validity of this contract, privy to the consideration. Secor 7. Lord, but insists that, even if it is an existing and supra. Nor need he be named especially as binding obligation, it cannot be enforced at the person to whom the money is to be paid. the suit of an individual private consumer. In that class of cases which bolds that a The plaintiff argues that, "where a contract grantee of mortgaged preinises, who takes for a valuable consideration contains cove- them subject to the lien of the mortgage, nants intended to benefit a certain class not which by words in the deed of conveyance to parties to the agreement, but within the con him he assumes to pay, is personally liable templation of the parties at the time, who to the holder of the mortgage for the amount are expressed as a class, and the promissee of the mortgage debt, no question seems to be has some duty or liability to such class, and in- made but that the action may be maintained

in the holder's name, though the agreement be performance of the promise an action, there not made immediately for the benefit of the must be, first, an intent by the promisee to plaintiff, nor he be named in the deed. Thus, secure some benefit to the third party, and, in Burr v. Beers, 24 N. Y. 178, 80 Am. Dec. second, some privity between the two, the 327, the clause in the deed described the promisee and the party to be benefited, and mortgages as held by John Cramer, which some obligation or duty owing from the formortgages the grantee thereby sumed to mer to the latter which would give him a pay. And the case last cited was not an legal or equitable claim to the benefit of the action in equity for the foreclosure of the promise, or an equivalent from him personmortgage in which the mortgagor and his ally. It is true there need be no privity begrantee were both parties. See page 179 tween the promisor and the party claiming of 24 N. Y., SO Am. Dec. 327. It was an ac the benefit of the undertaking, neither is tion to recover a personal judgment against it necessary that the latter should be privy the grantee. The question was distinctly to the consideration of the promise; but it raised that there was no privity of contract does not follow that a mere volunteer can between the plaintiff and defendant. And avail himself of it. A legal obligation or the decision against the defendant was put, duty of the promisee to him will so connect in the language of Denio, J., 'upon the broad him with the transaction as to be a substiprinciple that if one person makes a promise tute for any privity with the promisor, or the to another for the benefit of a third person, consideration of the promise; the obligation the third person may maintain an action on of the promisee furnishing an evidence of the the promise.'" Judge Denio further said, intent of the latter to benefit him, and creat. continuing the above quotation (page 180 ing a privity by substitution with the promisor. of 24 N. Y., 80 Am. Dec. 327): "Upon that A mere stranger cannot intervene and claim question there has been a good deal of con by action the benefit of a contract between flict of judicial opinion. As long ago as 1817, other parties. There must be either a new Chancellor Kent laid it down as a point de consideration or some prior right or claim cided, and referred to not less than eight against one of the contracting parties by English and American cases as sustaining which he has a legal interest in the performthe principle (Cumberland v. Codrington, 3 ance of the agreement." The judgment was Johns. Ch. 255), and since then it has been reversed in this case because defendant's frequently affirmed by judges, after an at grantor was not liable to pay the mortgage. tentive examination of cases, as in Barker If in all the mesne conveyances the grantees v. Bucklin, 2 Denio, 45, 43 Am. Dec. 726, and | bad assumed and agreed to pay the mortgage in the cases therein referred to."

executed by Evans, the mortgagee or his as• The case of Vrooman v. Turner, 69 N. Y. signee could have enforced the covenant 280, 25 Am. Rep. 195, illustrates the general made by the defendant, Mrs. Turner, as it principle here involved. This was an action would have been a promise to pay the debt to foreclose a mortgage and to hold liable due him made to one also liable to discharge a grantee who had received a conveyance sub it. ject to the mortgage, and which she assum The general principle that, if one person ed and agreed to pay. The mortgage was ex contracts for the benefit of a third person, ecuted in August, 1873, by one Evans, who such third person may maintain an action then owned the mortgaged premises. He on the agreement, has been applied since conveyed the same to one Mitchell, and early in the seventeenth century in a large through various mesne conveyances the title number of cases; the facts in each differing came to one Sanborn. In none of these con to some extent. The leading case in England veyances did the grantee assume to pay the is Dutton v. Poole, 1 Ventris, 318, 332, decided mortgage. Sanborn conveyed the premises to in the reign of Charles II. The plaintiff dedefendant, Harriet B. Turner, by deed, which clared in assumpsit that, his wife's father becontained a clause stating that the conveyance ing seised of certain lands now descended to was subject to the mortgage, "which mort the defendant and being about to cut a £1,000 gage the party hereto of the second part here worth of timber to raise a portion for his by covenants and agrees to pay off and dis daughter, the defendant promised to the charge; the same forming part of the consider father, in consideration that he would foration thereof." The referee found that Mrs. bear to fell the timber, that he would pay the Turner, by so assuming payment of the mort daughter £1,000. After verdict for the plaingage, became personally liable therefor, and tiff on nonassumpsit, it was moved in arrest directed judgment against her for any de of judgment that the father ought to have ficiency. The General Term affirmed this brought the action and not the husband and judgment. This court, in reversing the judg. | wife. The court said: “It might have been ment, held that, as Mrs. Turner's grantor was another case if the money had been to have not personally liable to pay the mortgage, her been paid to a stranger; but there is such covenant was made with a stranger and could a nearness of relation between the father and not be enforced. This court said (page 283 the child, 'tis a kind of debt to the child to be of 69 N. Y., 25 Am. Dec. 195): "To give a provided for, that the plaintiff is plainly conthird party who may derive a benefit from the cerned.” The judgment was afirmed in the Exchequer. 2 Lev. 212, Raym. 302. Some | from an order denying a new trial, plaintif criticism having been expressed as to the appeals. Reversed. soundness of this decision, Lord Mansfield

A. F. Premus, for appellant. Ray M. Stansaid of it, 100 years later, that it would be

ley and John K. White, for respondent, dificult to conceive how a doubt could have been entertained about the case. Martyn v.

O'BRIEN, J. The plaintiff sought to reHind, Cowp. 443, Doug. 142. The case has

cover damages for a personal injury claimed been repeatedly followed in this state.

to have been received by her in consequence The principle established by this case has

of a defective sidewalk. On the trial her been applied to contracts entered into by a

complaint was dismissed, and the questions father for the benefit of his daughter and by

of negligence presented by the pleadings a husband for the benefit of his wife. As

were not passed upon; but it was held that to the latter instance, see Buchanan v. Tilden,

as matter of law she was not entitled to re158 N. Y. 109, 52 N. E. 724, 44 L. R. A. 170,

cover. The judgment was affirmed on ap70 Am. St. Rep. 454. In the case before us we

peal upon the sole ground, as stated in the have a municipality entering into a contract

order, “that the notice required to be served for the benefit of its inhabitants, the object

by the plaintiff after the happening of the being to supply them with pure and whole

alleged accident did not particularly and acsome water at reasonable rates. While

curately state the location of the defect there is not presented a domestic relation

complained of as required by defendant's like that of father and child or husband and wife, yet it cannot be said that this contract

charter.” The provision of the charter rewas made for the benefit of a stranger. In

ferred to is as follows: "And the city of

North Tonawanda shall not be liable for any the case before us the municipality sought to

damage or injury sustained in consequence protect its inhabitants, who were at the time of the execution of the contract consumers of

of defects in, want of repair, or obstruction water, and those who might thereafter be

of any of the highways, streets, alleys, sidecome so, from extortion by a corporation hav

walks, cross-walks, or public places of the ing granted to it a valuable franchise extend

city unless notice in writing shall have been ing over a long period of time. We are of

served upon the mayor or city clerk within opinion that the complaint states a good

ten days after the happening of the casualty cause of action.

from which such damage or injury may have The order and interlocutory judgment ap

resulted, and such notice shall particularly pealed from should be affirmed, with costs,

state such defect, want of repair or obstrucand the first question answered in the affirm

tion and the location thereof." The learned ative and the second in the negative.

court below held that the plaintiff failed to

comply with this provision of the charter, CULLEN, C. J., and GRAY, O'BRIEN,

and hence the nonsuit at the trial was susHAIGHT, VANN, and WERNER, JJ., concur.


The statements in the notice which the Order and judgment affirmed.

plaintiff caused to be served upon the defendant are in the following language: "The

undersigned Charlotte Beyer, residing on Ni(183 N. Y. 338)

agara street, in said city of North TonaBEYER V. CITY OF NORTH TONA. wanda, while carefully walking along and WANDA,

over the sidewalk on the easterly side of (Court of Appeals of New York. Jan. 9, 1906.)

| Paynes avenue, between Schenck street and MUNICIPAL CORPORATIONS-DEFECTIVE STREET

Robinson street, in said city, at about 10 -NOTICE OF INJURY.

o'clock in the forenoon on the 20th day of Where a city charter provides that the city April, 1902, was severely injured by reason shall not be liable for injuries sustained by de of a decayed and defective portion of said fects in the streets, unless a notice in writing

sidewalk, about halfway between Schenck shall have been served within a certain time after the accident, stating the defect and the lo street and Robinson street; that the particcation thereof, a written notice describing the ular defect in said sidewalk consisted of one street, the side of the street, and the particular

or more loose and decayed planks in said defect as being about halfway between two cross-streets, is a sufficient notice, though the

sidewalk; that said plank or planks at the accident occurred from 80 to 100 feet nearer one

point aforesaid were rotten and decayed at street than the other.

the ends and loose at one or both ends; and [Ed. Note.--For cases in point, see vol. 36, that when I attempted to cross such portion Cent. Dig. Municipal Corporations, § 1702.)

of said defective sidewalk I was tripped and Appeal from Supreme Court, Appellate thrown, and caused to fall violently to the Division, Fourth Department,

ground and thereby sustain severe injuries, Action by Charlotte Beyer against the city and was thereby caused great pain and sufof North Tonawanda. From a judgment of fering." On April 29, 1902-that is, nine the Appellate Division (88 N. Y. Supp. 1092, days after the accident this notice was de 94 App. Div. 614), affirming a judgment for livered to the deputy city clerk of the city, defendant on dismissal of the complaint, and and on the same day came to the actual pos

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