North River Bank v. Rogers.

read tending to shew that David Rogers must have been informed of the judgment and the warrant of attorney under which it was entered, as early as August, 1837, or at least as early as January, 1839; and that he had ratified the same..

L. H. Sanford, for the motion.

J. Edwards, contra.

By the Court, Cowen, J. Without deciding the question whether this court had power to grant the commission, there seems to be a sufficient answer to this application on the merits. The language of the power from David to Samuel D. Rogers is very broad; and although a bond and warrant of attorney to confess judgment are not inserted in so many words at full length, they are, it appears to me, clearly comprehended within words nearly as specific. The authority. is, among other things, to execute any bond, warrant or other writing, in the name of David Rogers. Even if these words were doubtful, they should be taken most strongly against the party who speaks by the power. But they are not so. They are arranged among various securities which Samuel D. Rogers was authorized to execute with a view to secure debts; and it is difficult to conceive what was intended by the word warrant used in such a connection, unless it was a warrant of attorney to confess judgment. Such a warrant is a very common security, and the only difference between that and the other instruments enumerated, was, that it might be a better, because a broader security than the bond and mortgage confessedly authorized by the power.

This motion seems to have been made mainly on the doctrine of Rossiter v. Rossiter, 8 Wendell, 494, that a general clause in a power of attorney shall not be regarded as enlarging the authority specifically delegated. That doctrine. does not apply. Had the word warrant been omitted, or had it been clearly used in such connection as to confine its meaning to a custom-house instrument of that name, or to an instrument authorizing a distress for rent, as was supposed

Pearson v. Cole.

by the defendant's counsel, there would have been great plausibility in saying that the words other writings, or the still more general words used in the power might come short of a warrant of attorney. But that is not so.

I think the judgment is sustainable on the words of the power; and, therefore, it is not necessary to decide whether the silence and the conduct of D. Rogers may be taken as full evidence of a ratification. There is perhaps enought in the case to warrant a jury in saying that there was a ratification; and I certainly would not so far disregard the evidence going to establish that, as to set aside this judgment without the verdict of a jury finding against the evidence. But the question raised on that evidence becomes immaterial in the view I take of the written power.

Motion denied, with costs.

PEARSON US. COLE.

Under the act concerning costs, passed May 14, 1840, unless the plaintiff recover a sum exceeding two hundred and fifty dollars, in an action for the recovery of a debt, he is entitled to two-thirds only of the amount prescribed by the act.

Prospective charges for transcripts of the judgment, and postage of the same, cannot be taxed.

TAXATION of costs. In assumpsit, the plaintiff recovered a verdict for $135. The commissioner taxed the costs at the full rate allowed by the act of 1840, p. 327, § 1, refusing to deduct one third under § 11, sub. 2. He also taxed for prospective transcripts and postage of same, $10.

J. Koon, for the defendant, moved for a re-taxation.

E. Pearson, contra.

By the Court, COWEN, J. The second subdivision of $11, allows only two-thirds of the full rate of fees of attorney and counsel in cases where the plaintiff recovers a sum

Ex parte Manhattan Co.

The

which carries costs at less than the supreme court rate. facts before me present one of those cases, and the deduction should have been made accordingly.

It does not become necessary to settle the number of transcripts and dockets to which a party is entitled of course. No charges for disbursements can be allowed prospectively; for none are allowed by statute, without an affidavit that they have been actually incurred. 2 R. S. 527, § 20. The taxation for prospective transcripts and postage must accordingly be stricken out of the bill.

Motion granted.

Ex parte THE MANHATTAN COMPANY.

The Manhattan Company in the city of New-York have not the power to take a public street or any part thereof, for the purpose of a reservoir to supply the city with water.

It seems they may occupy streets temporarily, whilst laying aqueducts,&c. It seems, further, that the discretion of the company in appropriating private property subject to valuation and payment of damages, will not be controlled by the supreme court on a motion for the appointment of commissioners of estimate; if there be an abuse of power, the party aggrieved must seek his remedy otherwise.

J. Slosson, moved that the court appoint commissioners of estimate to value a certain part of Cross-street, in the city of New-York, which the Manhattan Company deemed necessary for the purpose of locating a reservoir, in order to supply the city with water, pursuant to their charter of April 2d, 1799.

The motion was opposed by P. A. Cowdrey, counsel for the corporation of the city, and by W. S. Johnson, in behalf of various persons claiming to own the fee of that part of Cross-street sought to be taken.

By the Court, COWEN, J. The counsel for the city corporation insists that the charter of the Manhattan Company does not authorize the taking of streets for the purpose con.

Ex parte Manhattan Co.

templated, and I think the motion must be denied on that ground. The company are authorized by their charter to enter into and upon, and freely to make use of any land which they shall deem necessary for the purpose of conducting a plentiful suply of pure and wholesome water to the city. They are to agree with the owner or owners of any mills, lands, tenements or hereditaments that may be damaged or affected by their operations, for and about a reasonable compensation, &c. for such mills, &c. or for any damage sustained in employing, diverting or obstructing any stream, or using any lands; or the cutting, laying, raising or making any reservoirs, aqueducts, canals, trenches, pipes, conduits, &c. and in case of disagreement, this court or a judge thereof is to appoint commissioners of estimate. It is entirely obvious that land may be obtained, and probably sufficient to answer all the purposes of the company, without permanently obstructing the streets of the city, or any part of them. The power of opening streets, and taking lands for that purpose, it is conceded, has existed in the city corporation, from a time long anterior to the passage of the act creating the Manhattan charter. It still exists. If the Manhattan Company have the power to take streets for reservoirs, the city have power to turn round and take the reservoirs for streets. Thus the two powers would destroy each other. But there is no need of placing them in conflict. They were both granted by different statutes or charters emanating from the same authority; and both should be so construed as not to interfere at least not

And

seriously. Both may stand together. There is room enough both for the streets of the city, and the reservoirs, wells and aqueducts of the Manhattan Company. when one corporation has lawfully taken land for its own purposes, the other ought not to interfere with the easement thus acquired. It is not necessary to say, in the case at bar, that the Manhattan Company may not temporarily occupy the streets, as for the purpose of opening fountains or laying subterranean aqueducts, in such a way that the space in question may be kept open above for strect purposes. But they seek to do more; to take the fee of the

Ex parte Manhattan Co.

land discharged of the street. It is not denied that, literally, their charter would authorize them to do so. On the other hand, the city charter, on a like literal construction, would authorize the city corporation to turn round and take back the land for a street. It results in an absurdity, which the legislature never could have intended. True, they have power to take corporate, as well as other property for public use, on making just compensation; and if there were no other means of carrying the power of the Manhattan Company into effect, that circumstance would furnish anargument that the legislature intended they should take streets. The want of such means independently of the streets is, however, not pretended. Nay, more, the company appear to have an ample resource in private property; even land of their own, contiguous to the premises in question, will furnish them with a place equal if not superior to the place claimed, for the improvement now contemplated.

It is not necessary to inquire whether the company are confined by their charter to the bringing of water from sources without the city. If such be the true construction of their charter, it certainly furnishes another objection to the granting of this application; for their purpose appears to be the supply of water from sources opened or to be opened within the city. The question may not be clear of doubt; but it is of too grave a character to be decided without necessity.

Another objection is the alleged fact that, in no view, is there any necessity for the company taking this land, to obtain a supply of water, or attain any other purpose contemplated by their charter. It is therefore, surmised, that they want the premises for the purposes of private speculation. The legislature seem to have invested them with a discrétion, nearly, if not quite absolute, as to the necessity of taking lands; at any rate, to have made them so far the judges in the matter that we cannot arrest them on this preliminary application; perhaps in no form, except by a direct proceeding for the abuse of their powers. But here also is a question which need not now be decided.