sult ought to have been apprehended. The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence will not excuse the first wrong-doer, if such act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences, which were to be anticipated, not in the number of consequent events and agencies which might arise." In that case it was held immaterial whether the act of the boy in moving the truck, and thus causing the iron to fall upon the plaintiff, was mere negligence or voluntary wrong-doing. And see Nagel v. Missouri Pac. R. Co., 75 Mo. 653; S. C., 42 Am. Rep. 418; Binford v. Johnston, 82 Ind. 426; S. C., 42 Am. Rep. 508; Whart. Neg. 85.

In this case the plaintiff, when injured, was free from fault, and where he might lawfully be. He was not instrumental in any way in bringing about the disaster, nor chargeable with Brown's conduct or agency therein. The defendant, by its negligent act and omission, in placing and leaving the torpedo where it was found and picked up by Brown, rendered the plaintiff's injury possible and probable; and the danger of injuries resulting from some one picking up and handling an instrument of the kind described in plaintiff's amended petition, left upon the defendant's track at the place and under the circumstances therein stated, would have been reasonably anticipated by a person of ordinary care and prudence. The act of Brown therefore was but a contributing condition which defendant's servants ought to have anticipated as a probable consequence of their negligent act or omission, while their negligence remained the culpable and direct cause of the injury suffered by plaintiff.

3. It remains to be considered whether, from the statements of the amended petition, the acts and conduct of the defendant's agents and servants, constituting the negligence therein charged, were so within the scope of their employment as to make the defendant liable for the injuries thereby done to the plaintiff. It is claimed they were not, because it is alleged that the torpedoes were wantonly placed upon the defendant's track by its servants when and where there was no necessity for occasion for their use. It appears from the pleading "that the defendant, in using and operating its roads and trains,' carried these torpedoes on its trains to be used by its servants in the management and operation of its trains; that the defendant's servauts, then engaged in the management of one of defendant's trains having torpedoes upon it, took these torpedoes from the train, and while so in the control and management of the train, wantonly placed them on the track; "that defendant so carelessly and negligently conducted itself in the management of its said train of cars that it carelessly failed to explode and destroy all of the torpedoes, but negligently left one exposed and unexploded on its track," etc.

The railroad company, having intrusted to its servants the control and management of its train of cars, and the custody of these dangerous explosive articles to be used by them on its road, in the operation and management of the train, necessarily confided to some extent in the judgment and discretion of the servants in their use. The authority to the servants was to use the torpedoes on the road in the management of the train. The real ground for claiming that the defendant is not liable is that they were used at a time and in a manner not within their instructions or authority. But the defendant must be held to have taken upon itself the risk of errors of judgment ou the part of the servants, and in the exercise of the discretion confided to them; and to be liable for their misjudgment and

abuse of discretiou in the use of them. Nor does the fact that the conduct of the servants, constituting the negligence complained of, was a violation of their duty to the defendant, or was needless, reckless or wanton, exonerate the defendant. A master does not ordinarily authorize or expect negligence in the servant. Reasonable care and fidelity in his employment is a part of the servant's engagement; and every act of negligence on his part is in some sense a violatiou of his duty to the master, and a deviation from his authority.

The case of Hoffman v. New York Cent. & H. R. R. Co., 87 N. Y. 25; S. C., 41 Am. Rep. 397, so accords with our views on this subject that we forbear any extended review of the numerous other cases sustaining them. In that case the plaintiff, a boy eight years of age, jumped on the steps of a car in a passenger train upon the defendant's road, and sat down upon the platform of the car. He was kicked from the car by the conductor or brakeman while the car was running at a speed of about ten miles an hour, and was injured. By the regulations of the defendant, in force at the time, the conductor had charge of the train, and was responsible for its safe and proper management; and brakemen and other servants thereon were subject to his orders. He was authorized to remove from the cars persons who should refuse to pay their fare, or were drunk, riotous or unruly; but must be governed by the provisions of the law in so doing. The law then in force provided that "if any passenger shall refuse to pay his fare it shall be lawful for the conductor to put him and his baggage out of the car, using no unnecessary force, at any usual stopping-place, or near any dwellings, on stopping the train." It was held that the defendant was liable, and, in the opinion of the court, Andrews, C. J., says: Assuming the case made by the plaintiff, the act [of kicking him from the car] was flagrant, reckless and illegal; but the point is, was it within the scope of the employment? The removal of trespassers from the cars was, as we hold, within the implied authority of the defendant's servants on its train. The fact that they acted illegally in removing the plaintiff while the train was in motion does not exonerate the defendaut. * No doubt

*

*

the kicking of the boy off the car was not only a wrong to the plaintiff, but was a violation of the duty which the train servants owed to the defendant to exercise proper care in executing the authority confided to them; but in most cases where the master has been held liable for the acts of the servant, the tortious act was a breach of the servant's duty. In this case authority to remove the plaintiff from the cars was vested in the defendant's servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible, unless the brakeman used his authority as a mere cover for accomplishing an independent and wrongful purpose of his own."

So it may be said in this case that at most it appears that the defendant's servants, while acting in its business and within the scope of their employment, deviated from the line of their duty to the defendant, and disobeyed its instructions. In so deviating, while they may have disregarded their instructions, they were still doing their employer's work, though not according to their instructions. And see Quinn v. Power, 87 N. Y. 535; S. C., 41 Am. Rep. 392.

We are therefore of opinion that the plaintiff's amended petition states a cause of action, and that the demurrer should have been overruled. The judgments of the District and Common Pleas Courts are reversed, and the cause remanded to the Common Pleas Court, with instructions to overrule the demurrer, and for further proceedings. [See 34 Alb. L. Jour. 199; 35 id. 115, 138. ED.]

FERRY-RIGHTS IN NEW YORK HARBOR.

NEW YORK COURT OF APPEALS, JUNE 7, 1887.

MAYOR, ETC., OF NEW YORK V. STARIN.

If the proprietor of a ferry also carries on the business of transporting merchandise, without the presence of the owner, he is bound by the obligations of a common carrier as to such property, including the obligation to carry all merchandise delivered to him.

The right to run a public ferry for tolls is dependent upon a license from the sovereign, and an invasion of such right gives the rightful owner thereof a right of action for damages, and is also restrainable by injunction. The Montgomerie charter of 1730, § 15, conferred upon the city of New York not only the political right to establish and regulate ferries to and from all parts of Manhattan Island, but the property in all such ferry franchises; and the phrase "the opposite shore all around the same island," in said section, includes the shores of Staten Island, as well as those of Long island or New Jersey. Subsequent legislation has not deprived the city of its exclusive right of property in the ferry franchises between it and Staten Island, or its right to establish, control, and receive the revenue of all ferries between the two places. The rule of the common law that all gratuitous grants by the sovereign of exclusive privileges and franchises are to be strictly construed against the grantee, and in favor of the government or the public, is not fully applicable to the grant of a ferry franchise, which is never without consideration, for it imposes upon the grantee the obligation of maintaining a ferry suitable for the public convenience. Where the language of a grant is ambiguous, resort may be had to the practical interpretation given to the grant by the subsequent acts and conduct of the parties in reference thereto; but this rule does not apply to the construction of grants of franchises to run ferries between New York city and Staten Island, made from time to time, since the date of the Montgomerie charter, there being nothing in the contemporaneous or subsequent treatment of these ferries by the city, or in the practical construction of the grant contained in said charter, as evidenced by the acts of the city, or of the sovereign, which in any way can limit the fair import of the language contained in the grant.

Usurpers of a ferry franchise held under lease from the city

cannot assail the validity of the lease. As against such persons, it is enough that ferries are in fact established and operated; the duty of the city, as owner of the franchise, being thus discharged.

Where the usurper of a ferry franchise conducts, in connection with the ferry business, a carrying trade under a coasting license, a judgment restraining it from transporting property merely as freight, not accompanied by the owner, as well as restraining the further operation of the ferry, is too broad.

from General Term, Department.

This action was commenced to restrain the defendants from maintaining and operating a ferry between the city of New York and Staten Island. The plaintiffs allege in their complaint, that under what is called the "Montgomerie Charter," the city of New York has the exclusive ownership of the ferry franchises between it and Staten Island, and the exclusive right to establish and regulate the ferries, with power to let, sell, or otherwise dispose of them; that in violation of its rights, the defendants were operating a ferry between New York and Staten Island, and that they thus intercepted and unlawfully appropriated profits, rents, and ferriage fees which belonged to it; that before the commencement of the action, it had duly established a ferry between it and Staten Island, which it had leased to the Staten Island Rapid Transit Rail

road Company for a term of years expiring on the first day of May, 1893, and that under and in consideration of such lease it received from the railroad company an annual rent of $10,000 for wharf privileges, together with 14 per centum of the gross receipts of the ferry franchise; that by reason of the unlawful operation of the ferry by the defendants, the revenues and profits of the ferry established and leased by it were seriously diminished; and that unless the defendants were restrained from their unlawful operation of the ferry, it would suffer great damage and injury; and the plaintiffs prayed judgment that the defendants, and each and every of them, and their agents and servants, be restrained by the order and injunction of the court from operating a ferry between the city and Staten Island, and that an account might be taken of the damages suffered by the city by reason of the unlawful operation of the ferry by the defendants. Besides other matters and defenses alleged, in their several answers the defendants put in issue the claim of the city of the exclusive ownership of the ferry franchise between it and Staten Island, and its exclusive right to lease the ferries, and denied that they were operating any ferry, and alleged that they were engaged in the transportation of goods, merchandise, and passengers upon the public waters between Staten Island and New York, with steam-boats duly enrolled and licensed under the laws of the United States for carrying on a coasting trade.

The issues thus framed were brought to trial at a Special Term of the Supreme Court, which decided the case in favor of the plaintiffs as against the Independent Steam-Boat Company, and dismissed the complaint as to the other defendants. A judgment was entered against the Independent Steam-Boat Company perpetually restraining it from operating any ferry between the city and Staten Island, and adjudging that it should pay to the city, for the damages caused to it for its unlawful acts, the sum of $338.73, besides the costs of the action. From the judgment entered upon the decision of the Special Term against it, the Independent Steam-Boat Company appealed to the General Term, and the plaintiffs appealed from so much of the judgment as was adverse to them, and the General Term affirmed the judgment. Then the plaintiffs and the Independent Steam-Boat Company both appealed to this court.

Noah Davis, James McNamee and Adolph L. Pincoffs, for appellants.

James C. Carter and W. W. MacFarland, for respondents.

EARL, J. In the consideration of this case it is important first to determine what a ferry is. In a general sense, it is a highway over narrow waters. In 2 Washb. On Real Prop. (3d ed.) 269, it is said: "Ferries-that is, rights of carrying passengers across streams or bodies of water or arms of the sea, from one point to another, for a compensation paid by way of a toll, are by common law deemed to be franchises, and cannot in England be set up without the king's license, and in this country without a grant of the Legislature as representing the sovereign power, aud do not belong to the riparian proprietor of the soil." A ferry franchise is property, an incorporeal hereditament, and as sacred as other property, Conway v. Taylor's Ex'r, 1 Black, 603; and the right to a ferry does not depend upon the right to or the property in the waters over which it passes, or in the soil under the water, or upon the shore at either end of the ferry. In re Fay, 15 Pick. 243, 253. A ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers or of travellers, with their teams and vehicles, and such other property as they may carry

ernor. Thereafter, in the same year, the letters-patent called the "Montgomerie Charter" was executed under the great seal of the province of New York, and delivered to the city of New York. That charter, among other things, contained in section 15 the following provision: "And we do further, for us, our heirs and successors, give, grant, aud confirm unto the mayor, aldermen and commonalty of the said city of New York, their successors forever, that the common council of the said city for the time being, or the major part of them (but for no other person or persons whomsoever without the consent, grant, or license 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 settling, appointing, establishing, ordering and directing, and shall and may settle, appoint, establish, order, and direct, such and so many ferries around Mauhattan's Island, alias New York Island, for the carrying and transporting people, horses, cattle, goods, and chattels from the said island of Manhattan's to Nassau Island, and from thence back to Manhattan's; and also from the said island Manhattan's to any of the opposite shores all around the same island, in such and so many places as the said common council, or the major part of them, shall think fit, who have hereby likewise full power to let, set, or otherwise dispose of, all or any of such ferries to any person or persons whomsoever; and the rents, issues, profits, ferriages, fees, and other advantages arising and accruing from all and every such ferries, we do hereby fully and freely, for us, our heirs and successors, give and grant unto the mayor, aldermen and commonalty of the city of New York, aforesaid and their successors forever, 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."

The sovereign was competent to grant, and the city to receive, the ferry franchise. Such a franchise is property, and the sovereign power is just as able to make an irrevocable grant of it as of any other property. If it can grant a ferry franchise for a term of years, it can do so forever. By so doing it does not part with any political or governmental function. It still may regulate the conduct of the ferry for the public good, and control the tolls to be charged; and it can resume the proprietary right in the franchise only by exercising the right of eminent domain, or by forfeiture enforced through regular judicial proceedings. By this grant the city did not merely receive the political right to establish and regulate ferries, but it received the property in the ferry franchise as it received the other property granted to it by its various charters; and we do not find any evidence in the record that what it so received it has ever lost or been deprived of.

The principal point to be determined in this case is the meaning of the words contained in the fifteenth section, "the opposite shore all around the same island," the contention of the defendants being that the shores of Staten Island are not opposite shores within the meaning of the grant. At the date of the Montgomerie charter, Staten Island contained about 1,300 inhabitants, and the city of New York about 8,000. New York was then a growing and enterprising city, with a brilliant future before it, and there was no other organized community of any considerable importance in its vicinity. It was an island to be reached only by crossing the waters which surrounded it. The ferry which it already owned to Long Island yielded a large share of the revenue needed for the expenses of the city government. There had been other applications by individuals for ferry franchises which might and probably would interfere with the revenues

which the city was then receiving, and which might divert revenues which were needed by the city, or might come to it, for its municipal expenses, if it owned and could control all the ferry franchises around the city. There was just as much reason for bestowing upon the city all the ferry franchises around it as the ferry franchises to Long Island. There was no reason whatever, while conferring upon it all the other ferry franchises, for excepting those between it and Staten Island. A ferry was already in existence between it and that island, and hence the ferry franchises between it and that island could not have escaped the attention of those who asked for and who made the graut. In its petition the corporation prayed for the exclusive ferry franchises "around the island." The minutes of the governor's council show that the language of the petition was carefully scrutinized, and they recommended that the exclusive ferry franchises "around the island," without any limitation or qualification, should be granted. The governor approved of the action of the council, and ordered the attorney-general to prepare a grant in pursuance thereof. There is no indication whatever that he intended to make any change in what the council had thus agreed to and recommended; and the inference is that the attorney-general, having no independent authority of his own to vary or limit the terms of the proposed grant, meant to embody in the grant or charter what the governor and council had agreed to. He was ordered to prepare a charter giving to the city the exclusive ferry franchises all " around the island, and we must suppose he intended to obey that order, and that the language which he used was intended to embrace the ferry franchises all around the city. The language used indicates a plain intention to grant such ferry franchises, and because under the Dongan charter, the city had the right "to establish ferries and bridges in and throughont the said city of New York and Manhattan's Island, the words " opposite shores" may have been inserted to distinguish the ferries granted under the Montgomerie charter from those previously granted under the Dongan charter. The language as to the ferries in the Dongan charter was not without meaning, as there was at that time upon Manhattan Island a body of water two miles in circumference, and fifty feet deep, having its outlet in the Hudson river, covering land where the commerce of a continent now ebbs and flows. But ferries, in a broad and general sense, always run across narrow waters between opposite shores. A highway comes to the water on one side, and crosses by a ferry to the other side, which according to the common and ordinary use of language, may be called the opposite side. Thus from whatever point a ferry could be operated to or from the city, it would be from one side of the water to the opposite shore on the other side. The persons who were concerned with this grant of ferry franchises did not intend to limit the right of the city to ferries from some point in the city to a point diametrically opposite. They were concerned with a grant for all time, and the plain purpose was to secure to the city all the ferry franchises to and from it.

Our construction of the fifteenth section of the charter as to ferries is made still clearer by a refenence to the language of section 37. That is the section in which property rights are expressly granted to the city. It grants the city hall and jail, market-houses, the great dock, crane-wharf, sewer, powder-house, “and the ferry and ferries on both sides of the East river, and all the ferries now and hereafter to be established all around the island of Manhattan's, and the management and rule of and all fees, ferriages, and perquisites to the same, or any part thereof, belonging or to belong; and also the ferry-house on Nassau Island, with the barns, stables, pens, or pounds and lot of

ground thereto belonging, and also all the grounds, soil, and land between high-water and low-water mark on the said island of Nassau, from the east side of the place called Wallaboute to the west side of Red Hook; and also to make laws and rules for the governing and well ordering of all the ferries now erected or established, or hereafter to be erected or established, around the said island of Manhattan's." Whatever doubt there might be as to the meaning of section 15 read alone, it is removed when its language is considered in connection with the language of section 37, in which there is no limitation of ferry franchises to opposite shores, but in which such franchises are granted all around the island. We are therefore of opinion that it is reasonably certain, taking into consideration the topographical situation of the city, all the circumstances attending the grant, the language used in the various documents, the two sections of the charter, and the purpose apparently sought to be accomplished, that the intention was that the city should have the exclusive ferry franchises all around the city, including the ferry franchises between it and Staten Island. We do not fail to recognize the rule of the common law which requires that all gratuitous grants by the sovereign of exclusive.privileges and franchises should be strictly construed, and that any ambiguity in such grants must operate against the grantee, and in favor of the sovereign or the public. Langdon v. Mayor, 93 N. Y. 129; Mayor v. Broadway, etc., R. Co., 97 id. 275. But this common-law rule in its strictness is not fully applicable to the grant of a ferry franchise, because that is never without consideration; for it imposes upon the grantee the obligation to maintain a ferry with suitable accommodations for the convenience of the public, Hussey v. Field, Gale, 175; Letton v. Goodden, 14 L. T. Rep. (N. S.) 298, and for the further reason that the charter itself enjoins that it shall in all things "be construed, taken and expounded most benignly and in favor of, and for the most and greatest advantage, profit, and benefit of, the said mayor, commonalty, and the city of New York." The question is, what did the sovereign which owned these franchises, and had the right to grant them, mean by the language used? And so far as there is any ambiguity in that language, the injunction of the sovereign is that it shall be construed most benignly and favorably to the city.

But while there is scarcely a doubt as to the meaning of the language used, yet that meaning is not so absolutely certain that there is not room for construction. The defendants therefore claim that to ascertain the meaning of the language, and the extent and operation of the grant, resort may be had to the practical interpretation given to the grant by the subsequent acts and conduct of the parties in reference thereto. People v. Mauran, 5 Denio, 389; Goodyear v. Cary, 4 Blatchf. 271; Smith v. People, 47 N. Y. 339; Easton v. Pickersgill, 55 id. 315; Knapp v. Warner, 57 id. 668; Power v. Village of Athens, 99 id. 601; Duke of Beaufort v. Mayor, etc., of Swansea, 3 Exch. 413; Hastings v. Ivall, L. R. 19 Eq. 578; Canazos v. Trevino, 6 Wall. 785; Drummond v. Attorney General, 2 H. L. Cas. 837; Mayor v. Hart, 95 N. Y. 451. If the practical construction of the charter by the parties interested, as evidenced by their acts, as to the ferry franchises granted thereby, bad been uniform, it would have been entitled to great, if not controlling, weight; but if that construction has not been uniform, and if the acts of the parties interested indicate conflicting views, and speak an uncertain language, and thus simply raise doubts, then they furnish no aid whatever, and throw no light upon our researches into the meaning of the provisions of the charter.

It is to be noticed, in the first place, that no one ever expressly disputed the exclusive right of the city to

these ferry franchises prior to 1878, when the defendant Starin first disputed it. The fact that the city at any time asserted its exclusive right to these ferry franchises is of far greater significance than the fact that on one or many occasions it failed to assert or enforce its right. The city might on many occasions, from favoritism, corruption, or inattention on the part of its officers. or because the ferry franchises were not sufficiently valuable to receive attention, omit to assert and enforce its rights. But omission to assert its rights, or passive submission to the invasion thereof, can have but little bearing in the construction of this grant. When however the city from time to time asserted and exercised its right, claiming the exclusive franchise, such acts show beyond question how the city understood its rights under the charter. One or more ferries between New York and Staten Island were in operation at the date of the Montgomerie charter. On the twenty-fourth of November, 1747, one De Hart. of Staten Island, presented a petition, not to the city, but to the governor of the colony of New York, under the crown, stating that he had been actually engaged in conducting a ferry from Staten Island to New York, and that other residents of Staten Island had threatened to set up other ferries, to the injury of his ferry, and praying his majesty's letters-patent to erect his ferry into a public ferry, and also a grant of certain vacant and unpatented land between high and lowwater mark. At that time Chief Justice De Lancey, who is supposed to have been chiefly instrumental in procuring for the city the Montgomerie charter, and Edward Holland, the mayor of the city, were members of the governor's council. A petition and caveat in opposition to the petition of De Hart by owners of property on Staten Island, and by persons who had been used to carry travellers from that island to the city, was presented to the governor. On the seventh of December, 1748, one Solomon Comes, who had purchased De Hart's farm and water front, and who had kept up the transportation business between that point and the city, renewed De Hart's petition to the governor, asking however not only the ferry franchise, but also the land between high and low-water mark for one mile on each side of his water front. The petitioner and the parties opposed were heard by counsel on several different days before the governor's council; and after a full hearing, the council advised the governor to grant the petition, and on the fourteenth of August, 1749, his majesty's letters-patent for the ferry thus recommended were granted to Comes. They granted to him the soil between high and low-water mark, as prayed for, and the exclusive franchise of a ferry between his land and the land for one mile westward thereof, and the city, for "twenty-one years, and from the expiration of said term until letters-patent should be obtained for the establishing or keeping of a ferry or ferries within the mile or limits aforesaid."

It is undoubtedly a very significant fact, of which no satisfactory explanation can be given, that this petition should have been presented to the governor, and not to the city, and that these letters-patent should have been granted by the governor, representing the crown, and that the rights of the city to these frauchises under the Montgomerie charter should thus bave been entirely ignored. As the mayor of the city was a member of the governor's council, this petition, and the action thereon, must have been fully known to the city, and yet no protest seems to have been made by the city against it. But the city, up to that time, had not yet established any ferry between New York and Staten Island, and it may have been supposed that until the city chose to exercise its franchise the concurrent power in reference thereto remained in the crown. At that time the franchise could probably not be made a source of profit to the city, and it may have