#### William H. Masterson, *et al.*plaintiffs, *vs.*Arthur Short, *et al.*defendants.

1. An action by an individual to restrain the defendants from keeping hackney coaches at a public stand, in front of stables occupied by them, can only be sustained on the ground that it creates a nuisance; and nothing but the exercise of unlawful, or abuse of lawful, authority can create a nuisance.

2. The common council of the city of New York possess the right to establish hackney coach stands, in that city, either under the Montgomery charter, or the act of 1813, which authorizes them to regulate hackney coaches and the owners and drivers thereof.

3. The common council of that city having, by ordinance, established a particular locality as a hackney coach stand, which is occupied by the defendants as such under a license from them, in the absence of any thing to show that they are misusing the right they have acquired under the ordinance and license, they cannot be restrained by an injunction order, on the ground of unfair competition thereby with the plaintiffs in business.

4. Only a strong and clear violation of some law or duty owed by the defendants to the public, whereby an individual is prejudiced, or to such person, will induce a court of equity to interfere, so as to restrain competition in trade, *Per*Jones, J.

(Before Jones, J. at special term,

July, 1867;

decided August 26, 1867.)

Motion for an injunction.

This action was brought by William H. Masterson and others against Arthur Short and others.

The plaintiffs were proprietors of a livery stable opposite the Central Park, in the city of Yew York; and the object of the action was to restrain the defendants from keeping hackney coaches at a public stand in front of their stables, in competition with their business. The defendants claimed the right to maintain their stand under a permission or license from the common council of the city, the validity of which constituted the principal question.

*A. H. Reavey,*for the motion.

*Coleman & Shafer,*opposed.

*242Jones, J.

This .action can only be sustained on the ground that the act of the defendants in standing their carriages where they do, is a nuisance.

They stand their carriages in that place under the authority of an ordinance of the common council, establishing that portion of the street as a hackney coach stand.

If the common council had authority to make such ordinance, and the defendants have hot stepped beyond the limits of the authority conferred by the ordihanee, then their acts cannot be a nuisance.

A nuisance cannot he predicated of the lawful exercise of authority. This is the proposition laid down by Judge Denio, in *Davis*v. *The Mayor, &c. of New York.*(14 *N Y. Rep.*506.) Its correctness is too palpable to need enforcement by argument.

This leads to a consideration of the power of the common council to establish hackney stands in the city.

The 14th section of the Montgomery charter provides, that the common council shall have full power to frame, constitute, ordain and establish such laws, statutes and ordinances as to them shall seem good, useful or necessary, for the good rule and government of all officers, ministers, artificers, citizens, inhabitants and residents of said city within the limits thereof, and for the further public good, common profit, trade and better government and rule of the said city.

Chancellor Kent, in his commentaries on the Dongan and Montgomery charter, says, in reference to this section: “ These broad and latitudinary powers were given to be exercised with sound discretion, and with a liberal spirit, commensurate with the growing wants and prosperity of a great commercial metropolis. Though the charter would seem to contain a grant of ample powers, sufficient for all the purposes of a well ordered police, and for the good government of the city in its complicated concerns, yet *243the legislature has been in the practice of granting more specific and detailed powers, sometimes on the application of the common council, and more frequently without it. These statutes, are, in general, made in aid and confirmation of the general corporate powers on the subject, and sometimes with the avowed wish and consent of the corporation, such as the laws relating to hackney coaches, butchers, &c.” Then, after referring to a number of statutory regulations, he proceeds: “Amidst such a multitude of statute regulations, it becomes difficult to know how far an ordinance of the council rests upon the authority of the charter, and how far on the authority of some special statute. When the latter exists, the exercise of the power is, of course, to be referred to the statute as the more certain and paramount authority. The city ordinances sometimes act concurrently with and in aid of the statute power, though much more frequently the statute law comes in and carries out to a definite and precise extent the authority which lies dormant in the comprehensive powers of the charter. If we take up and run through the ordinances of 1833, now in force, we shall find many of them to be the exercise of charter powers simply; others are the exercise of charter and statute powers combined; and others, again, rest solely on the statute grant of authority. There is no doubt that when any of the ordinances alluded to cannot be referred to the grant of power, by any express statute provisions, the general and unlimited grant of ordinance power in this section of the charter, is sufficient to uphold and warrant it. The efficient checks against any abuse of such em larged discretion are public opinion, the elective franchise, and the established principles of the constitution and of recognized common law. In addition to these checks, all corporations are liable to legal process in behalf of the state for non-user or mis-user of their rights and powers.”

*244These views have not, it is true, the force of a decision of a court directly on the various points; but they are the expression of the opinion of a learned and able jurist, given in the performance of a public duty, and, as such, entitled to great weight and consideration. The views thus expressed seem to me to be correct, and as they are expressed with a legal acumen and pureness of diction not possessed by me, I have preferred to adopt his language instead of using my own.

Among the ordinances of 1833, referred to by Chancellor Kent, is one establishing hackney coach stands. It was certainly his opinion that such establishment was by sufficient power.

As, however, his attention may not have been particularly called to that subject, and his opinion may have been founded on the general view of the scope and effect of the charter powers, without a close scrutiny of their effect on this particular subject, I will proceed to give that scrutiny:

The Seventh avenue was opened under the act óf 1813. By the terms of this act, it is held by the mayor, aider-men and commonalty, *“in trust,*that the same be appropriated and kept open for, or as part of, a public street * * * in like manner as the other public streets * * * are, and of right ought to be.”

Under the general and broad charter powers above referred to, the common council would have authority to establish such rules and ordinances relative.to the regulation and use of the streets by citizens, as are compatible with the trust upon which they hold it. It is to be used as a public street. Such use, then, as is recognized and declared by law, or long established custom, to be a proper and legitimate use of a public street, or which the sovereign power has vested in the common council the right and power to grant, may be authorized.

The system of hackney coaches standing at designated *245places in the streets of a city, grew out of the necessity of meeting the public demands. A demand arose in cities for means of transit, from point to point, other than by walking. As the city increased in extent of territory, and became more populous, the demand increased. This gave rise to a class of men, who procured one or more vehicles, according to their means, and plied the streets for hire. It was soon found necessary to place these men under special police regulations, and, as one of those regulations, to assign certain places in the streets where they might stand waiting for customers. Such regulation was necessary for the control of the haekmen, and for the convenience of the public. Its object was to prevent the haekmen from traveling, with their empty vehicles, in search of custom in the streets otherwise sufficiently crowded, and also to prevent their stopping and remaining, for any considerable time, at inconvenient places; but the great object was to have hacks standing at various points where the public would be most likely to want them, and where they would cause the least inconvenience to other vehicles, or injury to the surrounding property.

The earliest record of hackney coaches that I have been able to find in the English law, is in 1654, when nn act was passed limiting the number of hackney coaches, and giving to the court of London the government and ordering thereof.

Subsequently, in the ninth year of the reign of Queen Anne, an act was passed, giving to commissioners of pavements power to make by-laws, which should be binding on hackney coachmen.

Under this power, the commissioners made regulations as to stands. Afterwards, in the twelfth year of the reign of George HE, in 1772, an act was passed, reciting that the hackney coaches frequently took their stands with coaches *246and chairs in crowded places, &c. and giving to certain commissioners power to direct and regulate at what places they should stand. Under this act the commissioners made an order, directing a coachman not to stand in a certain place in which he had .been accustomed to stand. This led to a litigation. The counsel for the coachman contended that he was standing according to the regulations made under the act of Anne, and that the power given by the act of George III did not authorize the commissioners named in that act to interfere with the stands previously established, but only to establish others. The counsel on the other side argued, that the words of the statute of - George III were sufficiently comprehensive to authorize as well a discontinuance of stands already established as the establishment of new ones, and so the court held. The authority of the commissioners mentioned in the act of Anne, to establish stands, under the general power conferred on them to make by-laws which should be binding on hackney coachmen, was not questioned or doubted by the respective counsel or by the court, but tacitly conceded.

Thus the law of England stood in 1774. By it the right of hackney coachmen to use the public streets in their vocation, as wel-1 to solicit passengers as to carry them, and the authority to control such use by the establishment of stands by a body on whom parliament had conferred a general power to make by-laws binding on the hackney coachmen, were fully recognized. When then, in 1730, the crown of England granted to the city of Hew York the charter known as the Montgomery charter, by which, among other things, power was given to the common council to ordain and make such ordinances as to them should seem good or necessary for the good rule and government of the body corporate, and of all the officers, ministers, artificers, citizens, inhabitants and residents of *247said city, it then passed to the common council, under its general grant of power, the same authority to regulate hackney coaches and establish coach stands in the city of Yew York, which the crown was accustomed to delegate to certain bodies, to be exercised in the city of London and other cities of Great Britain. This power has never been taken away by the legislature. On the contrary, it has been confirmed. By the act of 1813, the common council is authorized to regulate hackney coaches and the owners and drivers thereof. As the general authority given by the act of Anne carried with it the powei’ to establish stands, so the general authority given by the act of 1813 carries with it the like power.

Again, hackney coaches standing in the streets have existed so universally in England, and for so long a period, (certainly since 1700, and perhaps further back,) that the term hackney coach conveys to the mind the idea of a coach standing in the street for hire. Thus, an eminent lexicographer (Webster) defines a hackney coach to be “ a coach let for hire, commonly at stands in the streets.” When, therefore, the legislature uses the term hackney coach, it must be deemed to use it in such sense as to cover coaches for hire standing in the streets, as well as those kept in the stables for hire; and as the legislature did not see fit to legislate against the custom of coaches standing in the street, but left their regulation to the common council, these passed to the common council, as an incident to such regulation, the power to prescribe places at which the coaches should stand.

I have, therefore, come to the conclusion that the common council have the power to establish hackney stands, either under the Montgomery charter or the act of 1813.

There does not seem to be any inconsistency between the use of streets by the public for passage to and fro, and *248a designation of a certain space in them where that public may obtain the means for such passage in a more convenient, rapid and ■ easy manner than by walking. The latter is an incident to the former. In all large cities of Europe such designation has been deemed a proper and legitimate use of the streets. Thus, in London, Liverpool, Dublin, Paris, Berlin, Vienna, and, I am informed, in all the large European cities, stands in the street for vehicles to be let for hire, are established. There is no reason why New York, the great commercial metropolis of the United States, should be without them. There can be no doubt that the legislature could, by express language, authorize their establishment by the common council. The question in this case is, whether the common council has not the power without such express authorization; for the reasons above given, I think they have. The common council, then, having the power to establish hackney coach stands, and having established the *locus in quo*as one, and it not appearing that the defendants are misusing the right they have under the ordinance, an injunction .cannot issue.

A few words as to the special damage the plaintiffs claim to have sustained. This, as I understand it, consists in the defendants soliciting and obtaining passengers, thus preventing the plaintiffs from obtaining that custom they would otherwise have. In other words, they sustain damage from competition. It must be a strong and clear case of some violation of law, or duty owed by the defendants to a plaintiff, to induce a court of equity to restrain competition in trade. If, in this case, the defendants leased a vacant lot alongside of the plaintiffs, separated from the place where their carnages now stand only by the width of the sidewalk, and stood their carriages thereon, it would not be pretended that the court would restrain their soliciting passengers ; yet the injury to the *249plaintiffs would be the same as it is now. The plaintiffs may urge that the defendants, by having their coaches open to view, ready harnessed in the street, have an advantage over them; but they are entitled to use the stand in the same way as the defendants, and the affidavits show they do so use it. Again, the plaintiffs say the “ defendants, not being under so much expense as we are, inasmuch as they do not hire so large a stable, can afford to carry people at less rates than we can, and thus underbid us.” But the rates at which people are to be carried are fixed. Neither the plaintiffs nor the defendants can exceed them. It is not alleged that the defendants charge less than the legal rates. Indeed, such an occurrence would be an anomaly. It is by no means certain but that the expense of each one of the defendants bears the same proportion to the number of carriages used by them, as the expense of the plaintiffs does to the number used by them. It seems, therefore, to be reduced to this, that the plaintiffs’ injury consists either in their being unable to get more than the legal fare, by reason of the competition of the defendants, or that, by reason of the defendants’ carriages being there, the supply is so much greater than the demand, that the plaintiffs’ carriages do not get the amount of employment they otherwise would. The first ground of injury is one which the courts cannot recognize. The second is one which, if it was clearly shown to exist, would be sufficient to entitle the plaintiffs to the remedy they seek, provided the act complained of was unlawful. The papers do not clearly show such cause of injury to exist. If, however, it does exist, still the defendants’ act being lawful, the only remedy of the plaintiffs is by application to the common council. That body, upon considering the plaintiffs’ cause of complaint and the public interests, can apply a remedy, either by discon*250tinning the stand or limiting the number of coaches authorized to stand there.

It may be suggested that there is at present no ordinance regulating the rates of fare, and, therefore, were it not for the defendants’ competition, a much higher rate than usual could be charged by the plaintiffs. The suggestion is one which is more likely to operate toward the withholding than the granting of the discretionary writ of injunction. If the check of extravagant demands, formerly existing in the shape of ordinances, • has been removed by the repeal of those ordinances, the greater reason why the check, by way of competition, should not be disturbed.

The plaintiffs’ counsel contends, that there is no longer in existence any ordinance establishing stands. He claims this on the ground that, on the 24th of April, 1867, the common council adopted a resolution repealing all ordinances theretofore adopted by the common council relating to hackney coaches and carriages, and their owners and drivers. But it so happens that, on the 1st of May, 1867, the common council adopted a resolution establishing the stand in question, with others. It is true this resolution was passed by the boards of aldermen and couneilmen prior to the adoption of the resolution of the 24th of April, 1867, but it was not approved by the mayor until May T, 1867. It, therefore, did not become a resolution or ordinance, adopted by the common council, until May 1, 1867, since an essential element to such adoption is the approval of the mayor, or a passage over his veto, or his retention.of the resolution for a certain period of time without approval or veto. *(Charter of*1857. *Laws of*1857; *vol.*1, 876, §§ 11, 12, 13.) Consequently, on the 24th of April, it was not an ordinance theretofore adopted by the common council, and did not fall within the repealing resolution of April 24, 1867, It is also true, that the *251resolution of May 1, 1867, purports to be an amendment of a resolution of 1866, which latter resolution falls within the terms of the repealing resolution of April 24, 1867. I am inclined to think that, under the circumstances, the resolution of May 1, 1867, must be regarded as re-enacting the resolution of 1866; but whether it does or not, the establishment of the stand in question is an entirely new provision, and is to be regarded as enacted at the time, the amended resolution took effect. *(Ely*v. *Holton,*15 *N. Y. Rep.*595, *cited from*599.)

I may notice an objection raised by the defendants. It is, that the defendants are improperly joined as parties, because the acts of each one are wholly distinct from and independent of the acts of the other, and the complaint contains no charge of combination It is not necessary on this motion to determine the point, but it would seem not to be well taken. *(Daniels’ Ch. Pr. vol.*1, *p.*306.)

The motion for an injunction is denied, with $10 costs.