Note. lusion between these defendants and said Solinger, and without the consent or procurement of said Solinger, judgment was rendered, en-tered, and docketed therein, in due course of judicial proceedings, and in accordance with the statutes of said State, in such case made and provided, and not otherwise, in favor of these defendants, and against said Solinger, for the sum of $1,508.38, being the amount then and there due to these defendants as aforesaid, with interest and costs. That on Jan. 4, 1876, in accordance with the statutes of said State, execution was duly issued out of and under the authority of said court, upon said judgment, and without the knowledge or consent of the said Solinger, directed, &c., and him commanding, &c., and that by virtue of said execution, and in obedience thereto, and not otherwise, and in accordance with law, and without the consent of said Solinger, said sheriff, on the said January 4, 1876, duly levied upon certain personal property of said Solinger in said county, and then in his exclusive possession and control, and in the control or possession of no other person; but as to whether the property so levied upon constituted all the stock in trade of said Solinger, or as to what was the value thereof, these defendants cannot state. These defendants deny that at the time of the issuing of said execution, they had reasonable cause to believe that the said Solinger was insolvent, and knew that a fraud upon the bankrupt law was thereby intended, and they deny the same, and aver that said Solinger was not bankrupt or insolvent. And said defendants aver that the said complainant is in no wise entitled to the possession of said property, but that the said sheriff is entitled thereto, and should be allowed to sell the same, and pay and satisfy said judgment in full. That said sheriff and these defendants have been enjoined and restrained from selling or disposing of, or removing said goods, to the great damage and injury of these defendants, and to their damage to the amount of $500, and which sum these defendants claim and insist shall be allowed herein. That all said judicial proceedings, in said marine court, were instituted, and said judgment obtained, and execution issued, and levy made, in the utmost good faith on the part of these defendants, and without any collusion with said Solinger, and that each of said acte and things were done and performed in due course of law, and according to the statutes of the State of New York. And these defendants deny that said goods and property were vested in said complainant by virtue of said bankruptcy proceedings, or otherwise. All of which, &c. Prime . Twenty-third Street R. R. Co. PRIME v. THE TWENTY-THIRD STREET R. New York Superior Court, Special Term; January, 1876. STREET RAILROADS.-LEAVING SNOW IN HIGHWAY.-CONSTRUCTION OF CORPORATE FRANCHISES.-INCIDENTAL POWERS.-INDIVIDUAL ACTION TO ENJOIN PUBLIC INJURY. INJUNCTION. An injunction lies at the suit of an abutting house-owner, to enjoin street railroad company from leaving the snow which it removes from its tracks, heaped up between them and plaintiff's premises for a longer period than reasonably requisite for taking it away. William C. Prime sued the defendants to enjoin them from throwing snow from their track, and leaving it in heaps on the side of the street in front of his house. The facts appear in the opinion. The cause came before the court for trial upon the pleadings. Ralph E. Prime, attorney for plaintiff, Henry H. Anderson, counsel. Cited 22 Edw. IV. 8, pl. 24; 16 Mass. 35; Commonwealth v. Temple, 14 Gray, 69, 75; People v. Cunningham, 1 Den. 524; Spencer v. London & Birmingham Rw. Co., 8 Sim. 193; Sampson v. Smith, 8 Id. 272; Thorpe v. Brumfitt, L. R. 8 Chan. App. 650; Goldsmid v. Tunbridge Wells, &c. Com., 1 Id. 349; Lane v. Newdigate, 10 Ves. 192; Ball v. Ray, L. R. 8 Ch. App. 467; Holmes v. Upton, 9 Id. 214; Goodson v. Richardson, Id. 221; Corning v. Troy, &c. Fact., 40 N. Y. 191; Corning v. Lowerre, 6 Johns. Ch. 439; Davis v. Mayor, &c. of N. Y., 14 N. Y. 524; Doolittle v. Supervisors of Broome, 18 Id. 166; Milhau v. Sharp, 27 Id. 611; Clarke v. Blackmar, 47 Id. 150. Prime . Twenty-third Street R. R. Co. Flanagan & Bright, defendants' attorneys. Osborn E. Bright, of counsel. SEDGWICK, J.-The track of the defendants' railway is in part upon Twenty-third street, from the North to the East river. The plaintiff is owner of the fee of a house and lot upon that street, and he resides there. He has no estate or interest in the soil of the street. In the winter season of 1874-5, the defendant was in the habit (soon after the beginning of each snow storm) of sending over its track snow plows, as they are called. The effect was that the snow upon the track was pushed therefrom to the side, upon the street. A thin layer of snow would be left over the top of the track. A part of the snow at the side would, from time to time, be pushed back by passing vehicles, or fall back upon the track. Frequently, in the daytime, water from the melting of the snow would run and remain upon the track. This water, if not removed, would freeze at night, and prevent the running of cars. To keep the track fit for the running of cars, after the plow had passed, laborers would, in some instances, throw upon the pile at the side what snow was still upon the track, that they could shovel up, and a sweeper, so called, would be constantly sent upon the road, with revolving brushes, which would throw upon the pile at the side the thin layer of snow left upon the track, and the water from the melted snow. These acts would be continued as long as they were necessary to the keeping of the track in good order. The result was that the pile would freeze, throughout the most of its mass, to the hardness of ice. The size of this pile was greater or less according to the severity of the snow storms and the temperature of the air between the storms, and varied from eighteen inches to three feet in height. Its width at the base was at least as great as its height. It was prolonged Prime v. Twenty-third Street R. R. Co. through the length of Twenty-third street by the side of the track. This ridge, hardened by settling and freezing, so occupied that part of the street on which it rested, that such part could not be used for any of the purposes for which a street is generally used. In substance, the strip of highway occupied by the ridge of snow ceased to be capable of public use-unless this occupation was, by reason of the defendant's franchise, a public use. These acts and this condition of things continued for several weeks in the winter of 1874-5, and indeed until the high sun of the spring had melted the snow greatly, and then city officers caused it to be broken up by pickaxes. Although the winter of 1874-5 was unusually cold, it is probable that every winter there will be occurrences of the same character, and with the same effect; and the defendants claim to do hereafter what they have done heretofore. This exclusion of the public from the use of the strip of the public street, as described, is a public nuisance, unless the defendant has a right to do what has resulted in the exclusion. If the acts of the defendant are lawful, the inconvenience and damage suffered from them by the public or the plaintiff do not make the acts wrongful. If the acts of the defendant are unlawful, damage from them gives a cause of action (Kellinger v. Forty-second Street R. R., 50 N. Y. 206, 210). The defendants' rights depend upon the terms of its charter or grant of privileges in chapter 823, Laws of 1869, May 10. It has the "right, privilege aud franchise, to construct, operate and use a railroad with a double track," and the necessary turnouts and switches. It is "authorized and empowered to lay, construct and operate a railroad" with a double track, through and along Twenty-third street, and in all cases "the use of said street, for the purpose of said railroad, as herein authorized, shall be considered a public VOL. I.-5 Prime v. Twenty-third Street R. R. Co. use, consistent with the uses" for which the Mayor, Aldermen and Commonalty of the city hold said street. It is specially provided that such railroad shall run as often as the convenience of passengers shall require, and shall be subject to such reasonable regulations, in respect thereto, as the common council shall ordain. The rules of construction in such a case are settled by 1 R. S. 600, § 3 (vol. 1 of Edmond's Ed. p. 557): "In addition to the powers enumerated in the first section of this title,* and to those expressly given in its charter, or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given.' The rule would have been the same at common law. "No rule of law comes with a more reasonable application, considering how lavishly charter privileges have been granted. As corporations are the mere creatures of law it is perfectly just and proper that they should be obliged strictly to show their authority for the business they assume, and be confined in their operations to the mode, and manner, and subject-matter prescribed" (2 Kent Comm. 299. Page 238 to same effect, is cited in Halstead v. Mayor, &c. of New York, 3 N. Y. 433). In Auburn and Cato Plank Road Co. v. Douglass (9 N. Y. 444), the learned court (in speaking of the extent or quantum of a franchise, which may be in a sense distinguished from a power), said, p. 453: "A corporation is strictly confined to the privileges conferred by its charter, and can take no implied rights as against the law-making power, a fortiori should it not be permitted to encroach by implication upon *Title 3 of chap. 18, entitled "Of the Powers, Privileges, and Liabilities of Corporations." |