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Opinion of the Court, per EARL, J.

three years from the date of said sale, according to the plan and along the route hereinafter specified. The security to be given by the purchaser upon such sale as aforesaid shall be a bond or undertaking in writing, and under seal, in such form, condition, amount and securities as shall be required and approved by said comptroller. The purchaser at such sale of such grant, right or privilege shall take the same only upon and subject to the following further conditions, viz. :

"First. That the rails to be laid in the construction of said railroad shall be of the kind known as the Richard's Patent Girder Rail; the said rails to be so laid that their edges shall be flush with the pavement, and the purchaser at said sale at all times to keep and maintain the pavement between its rails in good condition and repair.

"Second. That the purchaser, as hereinbefore specified, shall charge no greater than a five cent fare for one continuous. passage from Seneca street along Main street and over the route specified in this grant to Forest avenue.

"Third. The right, privilege and franchise as aforesaid to be sold, is the right, privilege and franchise of using the following streets, avenues and public places in the city of Buffalo, for the purpose of constructing, operating and maintaining a street railroad, as follows: (As stated in the resolution of the common council.)

"WILLIAM E. DELANEY,
"City Clerk."

The relator bid at the sale thirty-six per cent of its gross receipts per annum, which was the highest bid as determined. by the comptroller, and the franchise was awarded to it, subject to its giving security as required by chapter 642 of the Laws of 1886. Thereafter, and within a reasonable time, the comptroller caused to be prepared and presented to the relator for its execution, and then and there demanded and required it to execute, a bond, in the penalty of $20,000, containing the conditions prescribed in the statute, and many other conditions. The relator deeming the bond illegal and unauthorized by the law of 1886, made objections to certain conditions contained

Opinion of the Court, per EARL, J.

therein and refused to execute the same. Thereupon it caused to be prepared and executed a bond, which it presented to the comptroller, in the penalty of $20,000, in the same general form as the bond demanded by the comptroller, containing the conditions prescribed in the law of 1886, as well as some further conditions which were also, with others, contained in the bond prepared by the comptroller; and it demanded that he should accept and approve the bond as the security required by the act of 1886. This he refused to do, giving as a reason for such refusal that it did not contain all the conditions specified in the bond presented by him to the relator, expressly admitting, however, that the sureties and the amount of the penalty were satisfactory. No objection was made to the general form of the bond, or that it did not contain all of the conditions required by the statute of 1886, or by the resolution of the common council or by the notice of sale as published.

We are of opinion that the comptroller was bound to accept. and approve the bond. It contains all that the statute requires, and he had no right to exact any other conditions. He did not object, and could not object, to the other conditions contained in the bond. His sole objection was that some conditions were omitted from the bond, which he determined ought to be contained therein. The conditions, aside from those required by the statute for the payment of a percentage of gross receipts and for the commencement and completion of the road within the prescribed times, were harmless, not illegal or against public policy, but were mainly, if not exclusively, conditions for the performance of such things as the law, without any agreement whatever, required the relator to observe and perform. There is no ground for claiming that the bond would be illegal and void as given colore officii because it was voluntarily executed and tendered to obtain a franchise and privileges from the city; and certainly, after by mandamus compelling the comptroller to accept and approve the bond, it could not be maintained by any of the obligors that it was illegally exacted from the principals. The bond

Opinion of the Court, per EARL, J.

being sufficient and unobjectionable in form, and the comptroller having approved the amount of the penalty and the sufficiency of the sureties, he had no further discretion to exercise and was bound to accept and approve it, and these further acts were administrative merely. The bounds of discretion and judicial action having been passed, this is a proper case to compel the performance of his further duties by mandamus

It has been said that the action of the common council was illegal and void because it required the purchaser of the franchise to carry passengers from Seneca street through the route specified in the grant for a single fare of five cents for one continuous passage. The resolution undoubtedly required the railway company taking the grant to carry passengers to and from points beyond one of its termini. This was a condition which it could impose. It might be difficult for the company taking the grant to perform it; but it was not impossible to perform it because, under the statutes, there was a way by which the relator could obtain the right to run upon the tracks of the East Side Street Railway Company, which owned the road between Seneca street and one terminus of the route granted. If it should turn out that it could not comply with the terms of the grant, in the respect mentioned, the result would simply be that it would be exposed to the forfeiture of its franchises and rights.

It may be that the common council did not sufficiently protect the rights of the city and the interests of the public in the resolution granting consent to the use of the streets for the railway. But there is no help for that now. Its action is final and everybody must abide by that. Its neglect, if there was any, cannot be remedied by exacting of the purchaser a bond which it is not bound to give. If, however it should abuse its privileges or violate any law or condition applicable to it, or so operate its road as to annoy, oppress or seriously discommode the public, the attorney general, in behalf of the People, or the local authorities, in behalf of the city, or the legislature in the exercise of the sovereign power, will, doubt

Statement of case.

less, find or devise some adequate remedy for every serious
grievance. Our conclusion, therefore, is that the orders of the
General and Special Terms should be reversed and the writ
of péremptory mandamus issued without costs.

All concur, except DANFORTH, J., not voting.
Ordered accordingly.

110 558 128 177 110 558 153 432

MICHAEL E. DUNSTER et al., Appellants, v. PATRICK KELLY,

Respondent.

Plaintiffs' complaint alleged, in substance, that they and defendant were the owners of adjoining premises and buildings; that defendant had trespassed upon their premises by inserting stove pipes into their chimneys and thereby causing damage. The answer admitted the averments as to ownership, but denied the trespass and injury, and alleged that the wall between the two buildings is a party-wall, standing partly on each lot, and that the chimney into which the stove pipe holes open is the common property of both parties. Held, that a claim of title to real property did not arise upon the pleadings, within the meaning of section 3228 of the Code of Civil Procedure; and, that a recovery of nominal damages did not entitle plaintiffs to costs.

It seems the section requires the existence in the pleading of a claim of title to realty which, if proved, will defeat or maintain the action as the case may be.

(Argued October 2, 1888; decided October 16, 1888.)

APPEAL from order of the General Term of the Superior Court of the city of New York, made March 6, 1888, which affirmed an order of Special Term denying a motion to set aside a taxation of costs in favor of defendant and to require the clerk to tax costs in favor of plaintiffs. (Reported below, 23 J. & S. 370.)

The nature of the action and the material facts are stated in the opinion.

Herbert F. Andrews for appellants. Plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor, in an action triable by a jury in which a claim of

Statement of case.

title to real property arises upon the pleadings. (Code Civ. Pro. § 3228; Kelly v. N. Y. & M. B. R. R. Co., 81 N. Y. 233; Green v. Village of Canandaigua, 30 Hun, 306; Crowell v. Smith, 35 id. 182; Baylies' Trial Practice, 356, 359.) Plaintiff is entitled to costs, where the verdict is in his favor, if it be but six cents, if a claim of title is raised by the pleadings, for the reason that by subdivision 2 of section 2863 of the Code of Civil Procedure, a justice of the peace has no jurisdiction of such an action, and plaintiff must bring his action in the higher courts. (Code of Pro. § 304; 2 R. S. [3d ed.] 703; Heaton v. Ferris, 1 Johns. 146; Eustace v. Tuthill, 2 id. 185; Powell v. Rust, 8 Barb. 597; Hall v. Hodskins, 30 How. 15.) Anything built or erected upon the land is real property. (1 Wash. Real Prop. [5th ed.] 6; 3 Kent's Com. 401; Daly v. Grimly, 49 How. Pr. 520.) The claim in defendant's answer of a right by prescription raises the question of title. (Heaton v. Ferris, 1 Johns. 146; Eustace v. Tuthill, 2 id. 185; Randall v. Crandall, 6 Hill, 342; Rathbone v. McConnell, 21 N. Y. 466; Dinehart v. Wells, 2 Barb. 432.) If the question of title arises upon the pleadings, no certificate that it arose upon the trial is necessary to entitle plaintiffs to costs. (Kelly v. N. Y. & M. B. R. R. Co., 81 N. Y. 233.)

William II. Sage for respondent. In an action where the boundary line between two adjoining lots is admitted, and the plaintiff claims that the defendant's buildings, or any appurtenant thereof, trespass on plaintiff's property, the issue thus formed is one of location depending upon the accuracy of measurement, and does not involve any question of title. (Heintz v. Dellinger, 28 How. Pr. 39; Squires v. Seward, 16 id. 478; Burnet v. Kelly, 10 id. 406; Rathbone v. McConMuller v. Bayard,

nell, 20 Barb. 311; S. C., 21 N. Y. 466; 15 Abb. Pr. 449; Smith v. Riggs, 2 Duer, 622; Ehle v. Quackenbush, 6 Hill, 537.) An action of trespass or nuisance (except where the injury is to the inheritance or freehold) must be brought by the party who is in possession, and a mere

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