Misc.] Supreme Court, July, 1900. and occupants." With respect to the abutting owners and the craft engaged in trade with them, this canal became under this agreement a common highway navigable by them in a reasonable manner and for reasonable purposes. Of course, the right of way in, through, and from any and every part of the canal, thus guaranteed to the abutting owners and to all craft transacting business with them, carried with it the reasonable right to have such craft stop at the dock of the abutting owners with whom they were then engaged in commerce. Is this right to be denied because, in lying up at that dock, the craft may overlap in whole or in part the dock of the adjoining owner? Is the right to stop and have their cargoes discharged at the defendants' elevator to be denied to all vessels whose length exceeds the dock frontage of the elevator? Because of such overlapping, is there an abuse of the reasonable right to stop and transact business? It would seem not. The testimony indicates that vessels come to the Ontario elevator, during the season of navigation, at irregular intervals; that for days no vessel is there; that the process of elevating a cargo occ ies but a few hours, and there is no contention of any unreasonable delay in elevating cargoes. There is no claim that the vessels, stopping at defendants' dock to be unloaded, in any wise interfered with, impeded or prevented the plaintiffs' use of their dock, as the evidence is undisputed that the plaintiffs have transacted no business at their dock since the defendants' elevator has been erected. Indeed, it would be impossible for the plaintiffs' elevator to engage in the business of elevating grain at all if the principle they contend for in this case is to be applied, because the plaintiffs' dock frontage is inadequate to accommodate the smallest vessels now engaged in the grain trade. If both elevators were actively engaged in elevating grain, it is not unreasonable to assume, from the methods of conducting the grain business at this port as disclosed by the evidence in this case, that only upon rare occasions would these elevators be engaged in elevating cargoes at the same time; and, with a reasonable spirit of accommodation toward each other, the loss and inconvenience to either upon such occasions would be largely minimized. I cannot find that the precise question in this case has ever been passed on by the courts of this State. It is a question, however, of prime importance in the harbor of Buffalo, where many situations exist similar to that disclosed in this case. In the case of Supreme Court, July, 1900. [Vol. 32. Ranstead v. The Wm. H. Brinsfield, which was decided in the United States District Court for the district of Maryland (39 Fed. Rep. 215), it was held that the owner of a wharf, overlapped by a vessel stopping at an adjoining wharf, was entitled to compensation for such use. See, also, Ranstead v. Fahey, 44 Fed. Rep. 805. In the case of The Hercules, 28 Fed. Rep. 475, decided in the District Court for the Eastern District of Michigan, it was held that, under the statutes of that State, the owner of a wharf overlapped in this manner had a claim for wharfage against the vessel so overlapping, although it was stated in the opinion that, under the general maritime law and irrespective of the statute, no such claim existed. However, it has been held in the Chancery Division of the High Court of Justice of England, in the case of the Original Hartlepool Collieries Company v. Gibb, reported in L. R., 5 Chan. Div. 713, that such overlapping gives no right of compensation to the owner of the wharf overlapped, unless the overlapping interfered with reasonable access to his property, in which event he might recover damages as for a nuisance. It is unnecessary to decide, however, in this action whether the plaintiffs can claim compensation for such overlapping of their dock. It may be that the plaintiffs would be entitled to a reasonable wharfage for such beneficial use of their dock, but that question can be determined in an action at law to recover such compensation. I am quite clear that this action, to enjoin the defendants from placing or mooring vessels, discharging cargoes at their elevator, so that any part of such vessels shall be alongside of or overlap the plaintiffs' dock, should not be maintained. No reported case has been called to my attention granting injunctive relief of such a character under circumstances similar to those existing in this case. On the contrary, in the Original Hartlepool Collieries case, supra, such injunctive relief was expressly derried to the defendant upon the counterclaim, interposed by him, asking such relief. The complaint is dismissed, with costs. Complaint dismissed, with costs. Misc.] Supreme Court, July, 1900. GEORGE W. CROOKS et al., Plaintiffs, v. BETSEY R. PROPP, (Supreme Court, Franklin Special Term, July, 1900.) 1. Guaranty - When insufficient. A letter, written to prospective vendors, relative to parties named Singer and Romanoff, who subsequently formed a partnership and bought goods of the vendors, accompanying an order by Singer for the first bill of goods stating: "He (Singer) wishes to purchase a full line of groceries and I recommend him to you. They (Singer and Romanoff) are perfectly reliable and will pay as soon as bills mature. Any favor conferred upon Mr. D. H. Singer will be appreciated by me", is not a guaranty, upon the part of the writer of the letter, of the debts, present or future, of Singer or of those of Singer and Romanoff. 2. Same-When not continuing. Assuming the letter to constitute a guaranty, it is not a continuing one and applies only to the first bill of goods. ACTION upon a guaranty. Badger & Cantwell, for plaintiffs. W. J. Mears, for defendant. HOUGHTON, J. The defendant wrote the plaintiffs a letter which is claimed to be a guaranty for goods sold by plaintiffs to one Singer, and Singer & Romanoff. Singer & Romanoff were about to, and did subsequently, form a copartnership. Singer presented the letter and gave the order for the first bill of goods; subsequently other orders were given. Partial payments were made, exceeding the first purchase. The language of the letter relied on is, "He (Singer) wishes to purchase a full line of groceries and I recommend him to you. They (Singer & Romanoff) are perfectly reliable and will pay as soon as bills mature. Any favors conferred upon Mr. D. H. Singer will be appreciated by me ". Supreme Court, July, 1900. [Vol. 32. This does not amount to a guaranty. A guaranty is to be construed in conformity with the rules governing the construction of contracts generally, and must accord with the apparent intention of the parties; and when the meaning of the language used is plain, or is ascertained, the guarantor is entitled to the application of the strict rule governing the contracts of sureties and cannot be held beyond the plain terms of the contract. Evansville National Bank v. Kaufmann, 93 N. Y. 273. In the case of Russell v. Clark, 7 Cranch, 69, the correspondence was somewhat similar to that in the present case. The letters in that case which were claimed to constitute a guaranty stated, "We do ourselves the pleasure of introducing Murray & Co. to your correspondence as a house on whose integrity and punctuality the utmost dependence may be placed; they will write you the nature of their intentions, and you may be assured of their complying fully with any contract or engagements they may enter into with you"; and in another letter, "we have now to request that you will render them every assistance in your power ". The Supreme Court concluded that although the language was strong, yet it could not fairly be construed as an engagement on the part of the defendant to become answerable for such debts as might be contracted. It certainly cannot be said that the language in the present case is stronger than it was in that. But even if the letter was a guaranty, it was not a continuing one, and should apply only to the first bill purchased. Rogers v. Warren, 8 Johns. 119; Schwartz v. Hyman, 107 N. Y. 562. Payments were made more than enough to cover the first order for goods, and the guarantor is entitled to have such payment apply on such first order. Whitney v. Groot, 24 Wend. 82. It makes no difference that the plaintiffs relied upon the letter as a guaranty, if it was not such in fact. The complaint must be dismissed, with costs. Complaint dismissed, with costs. Misc.] Supreme Court, July, 1900. FRANK T. WATSON, Plaintiff, v. THE DELAWARE, L. & W. R. R. Co., Defendant. (Supreme Court, Oneida Trial Term, July, 1900.) Mileage-books-L. 1895, ch. 1027, unconstitutional. Chapter 1027 of the Laws of 1895, requiring certain railroad corporations to issue mileage-books at two cents a mile, is unconstitutional as to a corporation which, at the time of the passage of the said statute, was authorized by its charter to make a maximum charge of three cents a mile, as the effect of the statute is to deprive such railroad of its right, to exact full compensation for its services, "without due process of law" in violation of the fifth amendment of the Constitution of the United States. ACTION to recover a penalty because the defendant refused to issue to the plaintiff a mileage book, at two cents a mile, as required by chap. 1027, of the Laws of 1895, and acts amendatory thereof. D. F. Searle, for plaintiff. Wm. Kernan, for defendant. * * * * * WRIGHT, J. The defendant corporation was in existence prior to the enactment of the statute in question. Its charter authorized a maximum charge of three cents a mile. It, therefore, had a vested right to charge that sum from all passengers for every mile traveled. The statute in question deprives the defendant of that right to the extent of one cent per mile, whenever any person may demand a mileage book. The Constitution of the United States, Amendments, article 5, provides that "no person shall be * deprived of property, without due process of law". This statute arbitrarily, without due process of law, deprives the defendant of the right to full compensation for services, according to its charter. It is, therefore, in violation of the article of the Constitution above mentioned. This question has been recently settled by the Court of Appeals, in the case of Beardsley v. N. Y., L. E. & W. R. R. Co., 162 N. Y. 230. The decision of that case is based upon the decision of the United States Supreme Court, in the case of Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684. |