
    Frederick W. Wurster and Others, Appellants, v. The City of New York and Others, Respondents.
    Second Department,
    January 26, 1910.
    Municipal corporations — lease of ferry rights, city of Mew York — purchaser from insolvent lessee not required to run ferries — mandamus —- compelling corporate action.
    Although the city of New York is under the duty of operating directly, or through lessees, the ferries established under the powers granted by the Montgomerie charter of 1730, one who has purchased on foreclosure the property of an insolvent lessee oí such ferry, including the rights, if any, under the expired. leases, cannot he compelled to continue to operate the ferries against his will, where the right to do so has not been conferred by the city;
    A corporation should be compelled to perform a duty imposed upon it by charter by writ of mandamus, not by a suit in equity or by a taxpayer’s action.
    Woodward, J., dissented, with opinion.
    Reargument of an appeal by the plaintiffs, Frederick W. Wurster and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of thé clerk of the county of Kings on the 12th day of December, 1908, "denying the plaintiffs’ motion to continue pendente lite a temporary injunction.
    . Reargument of this appeal was ordered in Wurster v. City of New York (134 App. Div. 947).
    Order affirmed on reargument, with ten dollars costs and' disbursements, on the opinion of Mr. Justice Blackmar at Special Term. \. •
    
      Nathaniel A. Flsberg [Chase Méllen and Francis Woodbridge with him on the brief], for the appellants.
    
      Terence Farley [Theodore Connoly,. Louis II. Hahlo and Francis K. Pendleton with him on the brief], for the respondents.
    Hirsohberg, P. J., Jerks, Thomas and Rich, JJ., concurred; Woodward, J., read for reversal.
   The following is the opinion of the court below':

Blackmar, J.:

This is a motion for an injunction to restrain the city of New York, the .New York Terminal Company and William 0. Maden from discontinuing or suffering to be discontinued five ferries running between the boroughs of Manhattan and Brooklyn. These ferries were established by the city of New York under powers conferred upon it by ancient charters, and have for "many years been operated by the city through its lessee, the Brooklyn Ferry Company of New York. Since the opening of the Brooklyn and Williamsburg bridges the returns from the ferries have fallen off materially, so that they have been operated at a loss and default has been made in the payment of rentals by the operating company to the.’city. On account of these losses, default was made in the payment of' the interest -on the bonded indebtedness of the operating company ; an action was brought to foreclose the mortgage securing such indebtedness;' a •■decree of foreclosure and sale was obtained, and on July 24, 1908, the property covered by the rnort-. gage, to wit, the Brooklyn termini of said ferries, and the boats and the equipment were sold. at public auction to the defendant the New York Terminal Company.. The property so sold included the rights of the lessee, if any, under the leases which had then expired, but did not include the lease of the Forty-second Street ferry which' was then in force. The New York Terminal Company immediately leased the property to the defendant William 0. Maden, who continued the operation of the ferries, and who on July twenty-fifth posted a notice of intention to permanently discontinue them on July thirty-first. Before that date this action was brought and a preliminary injunction granted restraining the said defendants from discontinuing the ferries, and ordering and directing them to maintain and operate the same.

. A motion for a peremptory mandamus to compel the city of New York to operate the ferries-was also made at the same time, and both motions were argued together. ■

In deciding the motion for a mandamus, I reached tlie conclusion that the five- ferries in question were established by the city of New York under powers granted by the Montgomerie charter of 1730; that by the terms of such charter a special, perpetual and exclusive franchise was conveyed to the city of each of these five ferries as separately established and that the city holds such franchises on the same terms as if each ferry had been the subject of a specific grant; that the grant and acceptance of the franchise .imposed upon the city a corresponding duty of operation for the public benefit, but that such duty is limited by the extent of the powers granted to the city in respect to the method of operation, whether directly or through lessees; that the power to operate the same directly and to acquire land and property therefor by eminent domain or purchase, rests in the discretion, of the city acting through certain of its commissioners; that the duty of offering a lease of the ferries.at public auction so that they may be operated through lessees is an absolute duty resting upon the city, providing the ferries are not operated through some of the other prescribed methods; and that such duty can be enforced by mandamus. The decision directed a writ of mandamus to issue commanding the proper officers of the city to offer a lease of the ferries at public auction in the manner prescribed by the charter, unless some other method of operation should be adopted.

In so far as the plaintiff in this case seeks an injunction directed against the city of New York, the question is the same as that presented upon the motion for a mandamus. The injunction sought against the city is mandatory in its nature and the practical result of granting it would be to enforce the performance of an affirmative act. The proper method to compel a corporation to perform a duty imposed upon it by its charter is mandamus and not a suit in equity. (People v. Albany & Vermont R. R. Co., 24 N. Y. 261.)

Neither is a taxpayer’s action an appropriate remedy. Such an action is available to prevent any illegal official act on the part of the officers of a municipality or to prevent waste or injury to its property, but it cannot be resorted to for the purpose of compelling the city to exercise its corporate functions. (Balch v. City of Utica, No. 2, 42 App. Div. 567.)

This motion differs from the motion for a mandamus in that it seeks to prevent the other defendants, the New York Terminal Company and William O. Maden, from discontinuing the operation of the ferries. As to these defendants, although the prayer for relief is phrased in the negative, this is in effect ah action to secure a mandatory injunction compelling them to operate and maintain certain ferries. Whatever may be said of the power of the .courts to compel the grantee of a ferry franchise to operate and maintain a ferry, a judgment or ordér to that effect must be based upon some duty of operation which rests upon the defendant. The plaintiff must, therefore, establish that the defendants the New York Terminal Company and William O. Maden are under a duty to the public to maintain and operate these ferries. This duty must grow out of some interest which they have in the ferry franchise or out of some contractual relation with some person through whom the plaintiff claims,' It is true that á lessee operating the ferries under contract with the city is, as to the public at large, performing a function of the city in carrying out a purpose imposed upon it by its charter. Such lessee may be said to receive under the lease an interest in the franchise and such interest creates a corresponding duty of operation; The duty of operation imposed upon the lessee by- the lease from the city is not merely a contractual duty which can be enforced only by the city, but.is a duty to the public of the same nature as. that owed by the city, limited in its extent and duration "by the terms of the lease. (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475.)

But neither of the defendants the New York Terminal Company or William O. Maden is a. lessee of the city. They have no right to operate these ferries against the will of the city. The sovereign has conferred on the city the exclusive right to establish and keep ferries all round the island of Manhattan to the opposite shores. No person can operate such ferry without the consent of the city, and it does not appear that the city has given such consent to either of the defendants. (Mayor, etc., v. Starin, 106 N. Y. 1.)

■ Both these defendants are merely volunteers. They appeared at the foreclosure sale and. purchased the land; boats and equipment of the insolvent lessee and its rights, if any, under, the expired leases. I do not find that they acquired at such sale any' right to operate these ferries. They acquired no interest in the franchise owned by the city, and I am unable to see how they assumed any duty to the public with respect to the use of the property so purchased by them. It is not shown that they came into possession of any land, or other property which was devoted to a public use. There is nothing in the record showing how or under what ■ circumstances the lessee acquired the Brooklyn termini nor by what title it held it. The title of the New York Terminal Company is the same as that of the mortgagor lessee, and there is nothing in the record to show that the public as such has any right in this property or that it is devoted tb a public use.

I am unable to find any principle upon which the court can constrain these defendants to continue in the business of operating a ferry against their will. •

The motion- for an injunction is denied, and the preliminary injunction vacated with costs.

Woodward, J. (dissenting) :

The plaintiffs as resident taxpayers bring this action to restrain the city of New York from discontinuing five East Kiver ferries. A temporary injunction was granted, and on a motion to continue the injunction pendente Hie the court denied the motion and dissolved the temporary injunction. From this order the plaintiffs appeal to this court, and the broad question to be determined upon this appeal is the right of these plaintiffs to maintain the action, for if the action is maintainable, it is not to be doubted that it is their right to have the ferries kept in operation pending the trial.

The city of New York under its ancient charters, ratified and confirmed by constitutional provisions, was granted certain rights in the ferries which were or might be established in and around Manhattan island, and it is not seriously questioned that whatever these rights were, they, still exist. The plaintiffs as taxpayers, under the provisions, of chapter 301 of the Laws of 1892, urge upon this appeal that they are entitled to maintain this action to “ prevent any illegal official act on the part of any .such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation ” (Laws of 1892, chap. 301, § 1), and if these ferries are the property of the city of New York we see no reason for disagreeing with this contention. The language of the statute is broad; it is a remedial statute, entitled to liberal construction for the purposes of its enactment, and if the defendant has parted with, or attempted to part with any right or interest in such ferries by abandonment or otherwise, it is the province of the act to permit an action to “ prevent any illegal official act * ? * or to prevent waste or injury to, or to restore and make good, any property, funds or estate,” etc. Clearly there is an injury to' these ferries if they are discontinued; there is a waste of property, in contemplation of law, if it is abandoned and permitted to deteriorate, and the provision of the statute that the taxpayer is entitled to compel the defendant to “ restore and make good, any property,” etc., indicates that it was the purpose of the Legislature to enable a taxpayer to maintain an action to preserve the rights of the municipality in any of its property, even though the preservation of such rights should involve the municipality in expense. No one would seriously• urge.that the city ’of New York could abandon its, munici-, pal buildings, though it costs hundreds of thousands of dollars annually to maintain them, and if it should be suggested that the. city of New York could abandon its subways simply because its lessee refused to renew its leases, aiid because, it might, not be profitable to. the municipality to operate them, wé fancy- there would be no trouble in permitting a taxpayer- to maintain an action to preserve the subways and to compel their operation, even at a loss in the operating account. We are -equally persuaded that if the city of New York shoiild attempt to discontinue any of its streets or highways, the title of which is in the municipality, this court would, not hesitate to sanction an action, by a taxpayer to prevent such waste, of the property of the municipality, and the mere fact that the temporary injunction operated to compel the municipality to act would not be considered as a fatal objection to such relief.

While the ancient charters of the city of New York all refer to ferries, it does not appear to be necessary to go back farther than the Montgomerie charter of 1730, which recites, ratifies and confirms the previous charters, fór a complete view of the relations of the city of New York to;-the ferries in question, and it' is interesting and instructive to know that the same clause of the charter which provides broadly for the ferry franchise in a like manner provides for the' streets, highways, alleys, etc., which oiir courts . have long maintained are held in trust for the public. (People v. Kerr, 27 N. Y. 188; Matter of N. Y. C. & H. R. R. R. Co., 77 id. 248, 257.) We quote from the Montgomerie charter (2 Colonial Laws of New York [Comp. Stat. Rev. Comm.], 613) as follows:

“And we do further for us our Heirs and Successors give grant and confirm Unto the Mayor Aldermen and Commonalty of the Said City of New York and their Siiccessors forever that the Common Cotincill of the Said City for the time being or the Major, part of them -.(but no other person or persons whomsoever without the Consent grant or Lycense of the Said Common Council! of the Said City for the time being or the major part of. them) .from time to time and at.all times hereafter shall and may have the Sole full and whole power and Authority' of Setting appointing Establishing ■ Ordering and directing and Shall and may 'Settle appoint Establish Order and direct Such and So many fferrys round Mahhattans Island alias New York Island for the carrying and transporting people Horses Cattle Goods and Chattells from the Said Island of Manhattans to Nassau Island and from thence back to Manhattans and also from the Said Island Manhattans to any of the opposite Shores all round the Same Island in Such and So many places as the Said Common Councill or the major part of them Shall think ffit who have hereby likewise full power to Lett Sett or otherwise dispose of all or any of such fierrys to any person or persons whomsoever and the rents Issues proffits fierriages ffees and other advantages arising and accrewing from all and every Such fierrys we do hereby fiully and fireely for us our Heirs and Successors give and grant unto the Mayor Aldermen and Commonalty of the City of New York aforesaid and to their Successors fiorever to have take hold and enjoy the Same to their own Use without being accountable to us our Heirs or Successors for the Same or any part thereof And we do fiurther for us our Heirs and Successors give grant ratify and Confirm unto the Said Mayor Aldermen and Commonalty of the City of New York and their Successors forever that the Common Councill of the Said City for the time being or the major part of them have and from time to. time and at all times hereafter forever Shall have full power Lycense and Authority not Only to Establish appoint Order and direct the making and laying out of all other Streets Lanes Alleys high ways watercourses and-bridges not already made or laid out but also the altering amending and repairing all Such Streets Lanes Alleys highways water courses and bridges heretofore made or laid out or hereafter to be made or laid out in and throughout the Said City of New York and the Island of Manhattans in such manner as the Said Common Councill for the time being or the major part of them Shall think or Judge to be necessary- and Convenient for all Inhabitants and Travellers there.”

That is, the mayor, aldermen and commonalty of the city of New York were'not only vested with all of the rights in the ferries, but they were given “ full power Lycense and Authority not Only to Establish appoint Order and direct the making and laying out of all other Streets Lanes Alleys,” etc., but to amend, alter and repair the same, so that it is entirely clear that the city of New York was given these ferry rights in connection with its rights in respect to the highway system of Manhattan island; they constituted, a part of “all other Streets Lanes,” etc., and the court in Matter of N. Y. C. & H. R. R. R. Co. (supra, 257) says that “ The piers at the end of the streets and avenues are mere extensions of the same, the title to which is vested in the corporation for the benefit of the, public,” recognizing the relation of these adjuncts of a ferry as a part of the highway system. It was likewise said by the court in Radway v. Briggs (37 N. Y. 256, 258) that the city of New Yorb, being authorized to collect wharfage, was charged with the coi’relative duty of beeping the wharf in repair, this being a public pier or part of the highway; and in Charles River Bridge v. Warren Bridge (11 Pet. 420, 639) the court, in speaking of bridge and ferry franchises, says: “Such grants are inadé for.the public accommodation; and pontage and passage are authorized to be levied upon travellers (which can only be by public authority); and, in return, the proprietors are bound to keep up all suitable accommodations for travellers, under the jienalty of indictment for their neglect. The tolls are deemed an equivalent for the burden, and are deemed exclusive, because they might not otherwise afford any just indemnity.” This is the common law on this subject, and that the city of New York was-regarded as the proprietor, charged with the common-law duty, is manifest from the recital in chapter 593 of the Colonial Laws passed October 14,1732 (2 Colonial Laws of New York [Comp. Stat. Rev. Comm.], 807) that, “ Whereas the Rates and Prices of the Ferriage for Men, Horses, Cattle, Grain and all Other Goods Transported Over the Ferry between the City-of New York and-the Island .of Nassau were heretofore Regulated by the Mayor, Aldermen and Commonalty of the said .City to whom that Ferry Belongs,” etc.

These ferries belonging to the city of New York, and ¡the defendant being now engaged in operating a portion of them, accepting tolls for the service, and such ferries constituting a part of the system of highways of the city of New York as now ■ constituted, it would seem to be its duty to continue the operation of all of them, unless expressly, authorized to discontinue the same by the legislative power of the State. There is no more reason for discontinuing a ferry, which is but the continuation of a- highway, than there is . for discontinuing á street or alley, the fee of which is vested in the city of "New York,-and held by it in trust for the public use; and if' the public officials, charged with the duty of maintaining these ferries, attempt to discontinue them, it constitutes an illegal official act, and it ■ is within the power of this court, at the suit of a taxpayer, to restrain them from discontinuing siich ferries, even though such restraining order compels them to take some affirmative action. To enjoin a public official from violating his duty is one of the purposes of the act of 1892 above quoted. Mandamus does not appear to be the proper remedy, for the reason that, under the statute, the city of Mew York may lease or operate the ferry, and it is not the province of a writ of mandamus to determine how a duty, resting in discretion, is to be performed. Proceeding in equity, at the suit of a taxpayer, the court may properly enjoin the public officials from illegal official acts, or it may “ prevent waste or injury to,” or it may compel the restoration or the making good, any property, funds or estate ” of the city.

The order appealed from should be reversed, and the injtinction should be continued during the pendency of the action. 
      
       See Matter of Wheeler (62 Misc. Rep. 37; affd., sub nom. People ex rel. Wheeler v. City of New York, 137 App. Div. —).— [Rep.
     