Hall v. Stryker.

he must await the trial of the issue between the plaintiff. attaching the property, and the defendant, his vendor.

I think Candee v. Lord (2 Comst., 269), in principle, quite. instructive in this case. The principle established is, that a judgment obtained without fraud or collusion, is conclusive evidence in suits between creditors in relation to the property of the debtor, of the indebtedness of the latter, and of the amount of such indebtedness. Though such creditors were not parties to the record, Judge GARDINER says that the judg ment rendered upon default, confession, or after contestation, without fraud or collusion, is, upon all questions affecting the title to his property, conclusive evidence against his creditors to establish, first, the relation of creditor and debtor between the parties to the record, and, second, the amount of the indebtedness. Other cases show that such judgment is conclusive evidence of the relation of creditor and debtor, in cases arising between the creditor and the vendee of such debtor. Now it seems to me that whenever one purchases property, with intent to defraud the creditors of the vendor, he takes it subject to, the statute authorizing the property of his vendor to be seized, upon an attachment issued in an action against his vendor, and if the property he purchased shall be taken upon such attachment, he cannot, in an action against the sheriff, dispute the facts proved by the affidavits upon which the attachment was issued, but that such facts are as conclusive against him in the action brought by him as they would be in an action brought by the defendant (his vendor) against the sheriff: that such facts are as conclusive, in the action against the sheriff, to establish the relations between the plaintiff and defendant in the action in which the attachment is issued, as a judgment is in establishing the relation of creditor and debtor between the parties to the record. One who purchases property, with intent to defraud the creditors of his vendor, cannot complain. that it is taken on attachment, under a special statute requiring certain facts to be proved, and held until his vendor, if he sees fit, makes defence against the claim and defeats the action.. The vendee has no right to appear in such action and make. SMITH.-VOL. XIII.

77

Hall v. Stryker.

defence, nor can he compel his vendor to do so; and in the absence of collusion or fraud, he will, as to the question of creditor and debtor, be bound by their acts and the judgment rendered between them. If he is an honest purchaser, then he will recover, whatever may have been the relations between his vendor and the party suing him, and the question of bona fides in the purchase may be tried in his action against the sheriff.

All the cases cited by the learned judge delivering the opinion of the court below, were cases of the taking of the property on execution, except Frisbey v. Thayer (25 Wend., 396), which has no application to the present case. The ques tion in that case arose under the statute authorizing a landlord to pursue and distrain goods removed from the demised premises, except where the goods had been sold before seizure, in good faith, &c. The tenant had mortgaged the goods, and the mortgagee had removed them before they were seized by the distress warrant. It was held that the goods could not be distrained that the mortgage was valid between the parties as to the landlord, unless fraudulent in fact: that the property was not the property of the tenant, and that the statute making mortgages void as to creditors and subsequent purchasers, was not applicable; the learned judge adding, quite unnecessarily, "as the question there can only arise between judgment creditors and the mortgagee." Belknap v. Hastings (1 Den., 190,) was a case of distress for rent. Numerous questions were involved and litigated, some of them touching the validity of an assignment; and it was held that persons justifying under a distress warrant are not in a condition to impeach a conveyance made by the tenant on the ground of fraud against creditors. To enable a landlord to take such objection, he must, like any other creditor, obtain judgment and issue execution. The landlord in these cases had proceeded under the statute relating to a distress warrant for rent, and the cases were not embraced by the statute. He could no more distrain as a creditor than any other creditor could issue execution without a judgment. His special remedy, by dis

Milhau v. Sharp.

tress, was as landlord. If he sought to recover the rent by action, he must, of course, resort to the same remedies given to other creditors, and it was not necessary to specify and limit such remedies. It is undoubtedly true that a simple creditor pursuing the ordinary remedy by action, without an attachment, cannot attack a sale made by his debtor as fraudulent, until he has obtained judgment. But no such question as we are now considering was present to the minds of the learned judges delivering opinions in the cases just cited.

For the reasons already stated, I think the judgment should be reversed, and there should be a new trial, costs to abide

event.

DAVIES and WRIGHT, Js., concurred; SELDEN, ROSEKRANS and BALCOM, Js., thought that the question whether the plaintiff in the attachment was a creditor in point of fact is open to inquiry until he has obtained a judgment; and ROSEKRANS, J., thought that the party defending under the attachment was bound to give evidence of the debt on which it professed to be founded. EMOTт, J., expressed no opinion on that question. All the judges were for reversal on the principal question.

Judgment reversed, and new trial ordered.

MILHAU et al. v. SHARP et al.

The corporate authorities of the city of New York have no power to confer upon individuals, by contract for an indefinite period, the franchise of constructing and operating a railroad in the public streets, for their private advantage.

The powers of the corporation, in respect to the control and regulation of the streets, are held in trust for the public benefit, and cannot be abrogated nor delegated to private parties.

A resolution of the common council, authorizing private persons to construct and operate a railroad upon certain conditions, without limitation as to time, or reserving a power of revocation, is not a license nor an act of municipal legislation merely, but a contract, which, if valid, it could not abrogate.

Milhau v Sharp.

Such a contract, if valid, conveyed, it seems, an immediate freehold interest in the streets, and a right to the exclusive use of the rails to be laid upon them, in perpetuity; and is void because it would deprive the corporation of its power to control and regulate such use.

It is no answer to the application for an injunction, that the wrong complained of is a public nuisance, if it subjects the plaintiff to a special injury, not common to the public.

The finding of fact, that a proposed railroad "will be specially injurious to the property of the plaintiffs, and other property similarly situated," construed as showing a special and direct injury to each of the plaintiffs in severalty, not a remote one, and not merely a common or public nuisance.

THIS action was brought by four persons, inhabitants of the city of New York, severally owning lots with valuable buildings thereon, situated upon Broadway in that city, and claiming to own the fee of the land in front of their several buildings to the centre of the street, subject only to the public easement, or right of way over it; the object of the action being to prevent by perpetual injunction, the defendants from laying a railway track in Broadway and running cars thereon for the carrying of passengers in pursuance of a resolution of the common council of that city.

The plaintiffs stated that their lots and buildings were very valuable, and that they had been accustomed to pay large taxes thereon; that Broadway is an ancient street, opened about 150 years ago by the then owners of the lands over and through which it passes, for their own convenience, and was by them allowed to be used by other citizens and travelers as a common public street or thoroughfare, and has ever since continued and still is, such public street or thoroughfare; that a large portion of the trading and commercial business of said city (greater than that of any other street) is transacted in said street; and that the street is constantly thronged with all kinds and descriptions of vehicles and passengers.

The resolution of the common council, passed on the 29th of December, 1852, declared that the defendants and those who might from time to time be associated with them, all of whom were therein designated as associates of the Broadway

Milhau v. Sharp.

railway, had the authority and consent of the common council to lay a double track of railway in Broadway and White hall or State street, from the South Ferry to Fifty-ninth street, and to continue the same from time to time along the Bloom, ingdale road to Manhattanville, which continuation they were required to make as directed by the common council. Such tracks were required to be laid under the direction of the street commissioner, in or near the middle of the street, the outer rails not exceeding twelve feet six inches apart, and the rails laid even with the pavement, the inner portion of the rail being of equal height with the outer, with grooves not exceeding one inch in width, or such other rails as should be approved by the street commissioner or common council, on such grades as then were or might thereafter be established by the common council; and the said associates were required to keep in good repair the space between the rails and one foot on each side; and to use no motive power except horses below Fifty-ninth street.

The associates were required to place new cars on the road with all the modern improvements for the convenience and comfort of passengers; and to run cars thereon every day, both ways, as often as the public convenience might require, under such direction as the common council might from time to time prescribe. They were also required, in all respects, to comply with the directions of the common council, in the building of such railway, and in the running of the cars

thereon.

It was provided that no higher rate of fare should be charged for the conveyance of passengers from any one point to any other point along said route, and such combined system of routes as might thereafter be adopted, by means of cars and transverse omnibusses, than five cents for each passenger.

The twelfth and thirteenth articles of the resolution were as follows:

"Twelfth. In consideration of the good and faithful performance of all these conditions, stipulations and requirements