#### *Costar and other *vs.*Brush and others.

A *corporation*vested with the power of establishing/emes may, in its discretion,'in establishing a ferry grant *exclusive privileges ;*and the exercise of such power is binding upon the corporation and the public.

A covenant by the occupants of such exclusive grant, in parting with a portion of theirj privileges, to *use their influence*with the corporation to prove the establishment of a third ferry, is not illegal, so as to avoid a covenant for the payment of the purchase .money, although the occupants be numerous and influential.

Where a *douhtfuT right*is purchased, in an action for the price the purchaser is estopped from alleging a want of consideration.

This was an action of *covenant,*tried at the Kings’ circuit in December, 1888, before the Hon. Ogden Edwards, one of the circuit judges.

The plaintiffs being the holders of a lease granted by the corporation of the city of New-York, on the 24th January, 1814, to Robert Fulton and William Cutting, for the establishment of a ferry between Beekman slip, in the city of *Beto-York*and the old ferry at *Brooklyn,*(now called the Fulton Ferry) for the term of 25 years from the first day of May, ensuing.the date of the lease; in which lease the corporation *covenanted*that they would not, during the existence of the lease grant, establish, or permit any other ferry between the city of New-York and Brooklyn to the *southward*
      *479of the then ferry at Catharine slip; and the defendants being desirous that a ferry should be established between Brooklyn and E. York, south of the Fulton ferry, proposed to the plaintiffs that if they would sign a consent in writing to the establishment by the corporation of the city of Eew-York, or by the legislature of the state of *another ferry*from Eew-York to Brooklyn, to be located on the Brooklyn side, not nearer to the Fulton ferry than south of the foot of Jeroloman street, and on the Eew-York side not nearer to the Fulton ferry than old slip, they would pay to the plaintiffs the annual sum of $4000, in equal quarterly payments, during the residue of the lease of the Fulton ferry, commencing from the time the contemplated ferry should go into operation, and the boats should commence running. The *plaintiffs accepted the proposition of the defend- [ *629 ] ants, and *articles of agreement*were accordingly entered into under seal on the 12th March, 1834, whereby the plaintiffs gave the desired consent, and by the said articles declared that they would *use their influence*to prevent the establishment of any ferry from Eew-York to Brooklyn, south of Catharine slip, other than and except the ferry by the articles consented to ; and the defendants covenanted to pay to the plaintiffs $4000 annually, according to the terms offered by them. The first quarterly payment became due on the 14th August, 1836, and was paid, and the three next payments remaining unpaid, this action was brought for the recovery of the same. On the above facta being proved, the plaintiffs rested.

The defendants offered to prove that they applied to the corporation of the city of Eew-York for leave to establish a ferry between Eew-York and Brooklyn south of the Fulton ferry, and that it was refused until the consent of the plaintiffs was obtained. They also offered in evidence the *charter*of the city of Eew-York, granted the 15th January, 1730, with the purpose of shewing that the corporation of Eew York held the franchise of establishing ferries between Eew-York and Long-Island as a public municipal franchise to be by them used and exercised for the public good; that the *restrictive covenant*in the lease to Fulton and Cutting was illegal, and that the requirement of the corporation that the defendants should procure the *consent*of the plaintiffs before they would consent to the establishment of the ferry of the defendants was also illegal, and so the covenants of the defendants were void. The defendants also offered to prove that at the date of their covenant the *public good,*and the *convenience of passengers*required the establishment of a ferry south of the Fulton ferry; that *Brooklyn,*at the date of the lease to Fulton and Cutting, did not extend so far south as the landing place on Long Island of the ferry of the defendants ; and that at the date of the covenant the plaintiffs were citizens of this state, residing in the counties of Eew-York and Kings, were voters, and men of reputed property and *480[ *630 ] influence ; all which testimony being objected *to by the plain'tiffs was rejected by the judge, and the defendants excepted.

The counsel for the defendants offered to show that the ferry actually established by them, was from a point *south of Brooklyn, as known in.*1814, and contemplated in the lease of the corporation of New-York to Fulton and Cutting ; and accordingly called a witness, who testified that a street called *Atlantic street,*in Brooklyn, was first opened in 1834, that the defendants’ ferry was established, and always has been continued from *that point,*and never to the *north-east*of it; that Atlantic street is within the limits of the *town*of Brooklyn, but that the limits of the *village*of Brooklyn in March, 1830, and prior to the incorporation of that city, *did not extend as far south as Atlantic street.*The *plaintiffs*proved that *Jeroloman street,*in the city of Brooklyn, runs down to the *east river,*and nearly at right angles thereto ; ¡ that its termination on the east river is distant about 3420 feet *southerly*from the Fulton ferry, and about 800 feet *northerly*from the landing place of the defendants’ ferry, at the foot of Atlantic street; that there is no street running down to the river between *Jeroloman*and *Atlantic*streets ; that the *village*of Brooklyn, previously to the incorporation of the *city*of Brooklyn, was bounded on the southerly side by a road called *District street;*a part of which is now included within the lines of *Atlantic street.*A portion of Atlantic street is on the *northerly*side of district, street, but at its termination on the east river the greater part of it is on the *southerly*side of District street. District street has been discontinued, and Atlantic street has taken its place.

The counsel for the defendants insisted that at the time of the execution of the lease to Fulton and Cutting, Brooklyn as then contemplated by the parties did not extend *south of Atlantic street;*and so the ferry contemplated in the defendant’s covenant had not been established, and the event upon which the annual payments depended had not happened ; that the covenant was without consideration, and also that the consideration was illegal. Upon all which points the judge ruled against the defendants, and the [ *631 J *jury under his charge found a verdict for the plaintiffs for $3,-397,87. The defendants’ counsel having excepted to the several decisions and to the charge of the judge moved for a new trial.

*D. Lord,*jun. for the defendants.

*W. Rockwell,*for the plaintiffs.

*By the Court,*

Nelson, C. J.

This I apprehend, is a plain case for the plaintiffs. The principal objection to the recovery is founded upon the idea, that the restrictive or exclusive clause in the lease of the Fulton ferry by the *481corporation of the city of New-York in May, 1814, exceeded their power; that notwithstanding such restriction, they might still have granted the franchises of the south ferry to the defendants without the consent of the Fulton lessees; and that therefore the covenant to pay the $4,000 annually for such consent was without consideration, and void. It is also insisted, that the grant of the right of establishing ferries made to the corporation of the city was a franchise, to be exercised for the public good ; and that any restriction consented to or imposed upon itself in the exercise of the power was illegal; and that the refusal to establish the south ferry, which was required for public convenience, as was offered to be proved, was wrongful and oppressive, and used as a pretence to exact the covenant in question; and being obtained under such circumstances, it was illegal and void. The short answer to all which is, that the corporation of the city possessed the same power in respect to the establishment of ferries across the East river, that before belonged to the crown or the legislature ; and the exclusive privileges, therefore, extended to the lessees of the Fulton ferry were fully within its municipal authority, and binding both upon the city and the public. *See City Char*ter, § 15, *and Kent’s Notes, p.*56-7, *and*139-142 *inclusive;*6 *Wend.*85 ; 11 *Peters,*540.

It is further urged, that the stipulation in the articles of agreement between the plaintiffs and the defendants, by which the former agreed to use their influence to prevent the establishment of any other ferry south of Catharine’s slip Constituted an illegal consideration ; and [ *632 ] that the covenant founded upon it is void. The lease of the Fulton ferry had about five years to run from the date of the articles in question ; and the *consent*of the plaintiffs, and the covenant to pay an annual sum therefor, extended only through this period ; and the stipulation above 0 referred to, I think is to be regarded as thus limited. If so, it is impossible for the court to say that the exercise of all the influence fairly imputable to the plaintiffs upon the action of the corporation for this short period, to prevent the establishment of another ferry, can be regarded as even improper, much less illegal. We are not to assume that the public necessities, as a matter of course, would require a third ferry from New-York to Brooklyn within the five years. Besides, the covenant in question to pay an annual sum of $4,000, is made in express terms upon the sole consideration of consent on the part of the plaintiffs, to the establishment of the defendants’ ferry.

Another ground relied upon by the defendants’ counsel for a new trial is, that the ferry,, as-actually established by the defendants, is not within the limits of the exclusive privileges of the Fulton lessees according to the true construction of their lease ; and that, therefore, no ferry has been established and commenced its operations, within the meaning of the defendants’ cove*482n ant, as that should be construed to mean a ferry to be put in operation within those limits. The restrictive clause in the plaintiffs’ lease is, that the corporation would not “ grant, establish or permit any other ferry between the said city of New-York and Brooklyn to the southward of Catharine slip.” The village of Brooklyn, at that time, had not been incorporated, and the counsel for the defendants insist that Brooklyn here, referred to the thickly settled part of the town opposite the city of New-York; while the plaintiffs contend it referred to the town itself. The covenant of the defendants is, to pay the annual sum of $ 1,000, “ if the plaintiffs consent and agree that tho corporation of the city of New-York, or the legislature, shall establish a ferry from *New-York*to *Brooklyn ;*the landing place on the Brooklyn side not to be nearer Fulton ferry than south of the foot of Jerolo- [ *633 ] man streetand they agree to pay this sum when the *ferry shall go into operation and commence running. The ferry was established the 16th May, 1836, at the foot of Atlantic street, on the Brooklyn side, partly within the limits of the village, which was incorporated in 1816. Now, conceding there might be some doubt whether Brooklyn, as referred to in the lease of the Fulton ferry, meant the town or tho thickly settled part of it, opposite the city of New-York, and also that the covenant of the defendants ought to be regarded as referring to the limits specified in the lease of the Fulton ferry, it is a sufficient answer to the objection, that the, defendants elected to purchase the disputed right, rather than encounter the litigation that might grow out of the question. It is too late now to agitate it, as they have, by the purchase, conceded the right, and thereby deprived the plaintiffs of ever afterwards asserting any claim for the violation of it.

We are satisfied all the objections taken on the trial are unfounded ; and that the, ruling at the circuit, wageorrect,.

New trial denied.