
    The President, Directors and First Company of the Great Western Turnpike Company, Appellant, v. Martin A. Shafer, Respondent.
    
      Transportation Oorpomtions Law, exempting from, toll persons lining within one-half mile of the gate — it applies only to corporations created under the general act— an oral agreement not to charge any toll for all time is valid.
    
    The provision of section 130 of the Transportation Corporations Law (Laws of 1890, chap. 566, as amd. by Laws of 1893, chap. 538), that no tolls shall be collected at any gate from any person living within one-half mile of the gate, only applies to corporations incorporated under the general act and does not apply to a turnpike company incorporated in 1799 under a special charter.
    Where a person, assuming to act on behalf of a turnpike company, makes an oral agreement with the life tenant of a farm within half a mile of the toll gate, that if such life tenant will close up a private road which diminishes the travel over the turnpike, the occupants of the farm shall be forever relieved from liability to pay tolls, the turnpike company cannot, after recognizing the agreement for forty years, question the authority of the person who made the agreement on its behalf.
    :Such an agreement operates as an advanced payment of the tolls for all time, and is not void under the Statute of Frauds as being an agreement not to be performed within one year, or a grant of an interest in lands.
    Parker, P. J., and Smith, J., dissented.
    Appeal by the plaintiff, The President, Directors and First Company of the Great Western Turnpike Company, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 4th day of August, 1899, affirming a judgment rendered by the City Court of Albany dismissing the complaint.
    
      Albert Rathbone and Frederick Townsend, for the appellant.
    
      P. E. Du Bois, for the respondent.
   Kellogg, J.:

' This action was brought to collect tolls for passage through the plaintiff’s toll gate situated at the easterly end of its present turnpike and near the Albany city limits.- -The defendant admits having passed in 1895 with teams hauling ice from the so-called Buell -farm occupied by him, and that-he paid no tolls. The Buell farm is near the toll gate, the dwelling house thereon being within 100 feet of the' gate,, and the gate stands between it and the city. The ice was gathered from a pond on this farm and was stored in a house thereon, and within 400 feet of the gate. The defendant claims that in 1853 an oral agreement was made between William P. Buell, owner of a life interest in the farm, and the plaintiff, whereby Buell. was to close up a private road, which gave convenient access to him and others to the city of Albany without passing along the-toll road, and as a consideration he and the tenants of the Buell farm should, for all time, be exempt from the burden of toll; that he closed the road and, has always since kept it closed, and has up to a short time before the bringing this action in 1895—forty years and more — passed the toll gate without payment of any toll, and up to that date the plaintiff' has strictly observed the terms of its agreement,- and thereby ratified and confirmed it, and should now be held to it.

The defendant also invokes the provision of the Transportation Corporations Law (General Laws, chap. 40 [Laws of 1890, chap. 566, as amd., by Laws of 1893, chap. 538], §, 130), which enacts that no toLs shall be charged of collected at any gate from any person living within one-half mile of the gate. This last defense is not available, to the'defendant here, for the reason that this'law does not apply to any corporation other than those incorporated under

the general act. It was so held in Aurora & Buffalo Plank Road Co. v. Schrot (90 Hun, 56).

The plaintiff was incorporated in 1799 by special charter, and the rights by that charter conferred cannot be taken away by any subsequent act of the Legislature though the intent to do so were manifest. Nor could its property rights, such as the right to collect toll • from all persons, wherever residing, and who traveled by the toll gate upon its road, and which right was conferred by the charter of 1799, be taken away by the State through any constitutional enactment. The State could take away such right only upon full compensation. The charter of 1799 does not appear to have given to plaintiff the right to establish a toll gate where the one in question now is, nor did it give plaintiff the right to exact the tolls in the amount now taken, nor did it give the right to establish a plank road. All these rights were conferred after the Constitution of 1846, and as to all rights acquired since the Constitution of 1846, which reserved in the Legislature the right to alter, take away or annul rights subsequently conferred, without doubt, the Legislature has power over, but so far it does not appear to have exercised it.

The first defense, therefore, must be defendant’s sole reliance. It appears from the evidence that some one in the employ of plaintiff in .about 1853, professing to be authorized so to do, did agree with Buell, the occupant of the Buell farm and having therein a life interest, that if he would close up a road which diminished the travel over plaintiff’s turnpike, the Buell farm and its occupants should be forever relieved of tolls at the gate near the Buell farm. It also appears that Buell, acting upon that promise, did close the road and it never was thereafter used. It also appears that at no time since ■— over forty years — has the plaintiff demanded tolls at this gate of Buell or from any tenant or occupant of the Buell farm. It is well-recognized law that if a person assumes to act as the agent of a corporation and the corporation afterwards adopts his acts, that is sufficient proof of authority. ■ It .is wholly inconsistent that after forty years’ recognition of this agreement the plaintiff should now raise any question as to the authority of the person making the agreement.

We may safely conclude that the agreement was made and was well supported by ample consideration, and'by its terms the defendant had the right to haul the ice in 1895 free of tolls. The only remaining question is as to the legal force of the agreement. In other words, was it valid at law ? Except for the Statute of Frauds-I think there would he no room for argument. It is an oral agreement. Is it an agreement not to be performed within one' year ?: Is it a grant of an interest in lands—-an easement? The pleadings-seem to have also been oral; whether the Statute of Frauds was-pleaded so as to be available to plaintiff does not appear. The subject-matter does not seem to me to be of the nature of an easement; or any interest in land. Buell was not negotiating for any right of way. The right to pass and repass.was already secured to him by the law. A burden was attached to that right, not in itself in any Way a limitation on the right, nor was the burden in the nature of realty. The franchise of the plaintiff empowered it to exact money,, to fix a tax upon the enjoyment of the right of way — the right to' impose an obstruction to the freedom of the use which the law conferred. I cannot understand that this was in its nature such an interest as the Statute of Frauds contemplates when it requires that dealings in respect to it must, to be valid, be evidenced by a writing. If one were to pay a return toll, could he not return without payment of another toll unless he had the agreement to return, free of toll, in writing ?

What Buell actually did was to pay his toll for all time in advance. He extinguished a burden thereby, and plaintiff had no right after-wards to impose it. The tolls had been paid; that is the sole reason that tolls were not collectible. The amount paid, it was agreed, should be and was sufficient to cover all future tolls which otherwise might have been exacted from Buell and the occupants of his farm. I do not- think plaintiff can repudiate the agreement now, because there is .no writing to prove it. As to the other claim, that it was an agreement not to be performed within a year, and, therefore, void, there seems to me to be very little to sustain it, and what argument there may be is specious. It was not an agreement to-do anything. If plaintiff had agreed to carry Buell for a number of years, or had agreed to do any continuous labor for years, or to maintain its turnpike for years, a ground for argument would be apparent. No time here is fixed. The plaintiff might abolish its gate within a year, but time was not involved. The agreement at once and forever eliminated a burden. It made an end of it then. There was no future for it, no year or succession of years. The plaintiff sold its power to vex the occupants of the farm, and that was all there was of it.

I do not find that there are any exceptions taken on the trial which require a reversal, nor was there serious error committed in the admission or exclusion of testimony. I think the judgment should he affirmed, with costs.

All concurred, except Parker, P. J., and Smith, J., dissenting.

Judgment affirmed, with costs.  