Horton v. Howe

20 N.Y. Sup. Ct. 57

• Court: New York Supreme Court
• Decided: January 15, 1878
• Status: Published

Opinion

Learned, P. J.:

It is insisted by the defendant that all the subscribers should have joined and should have brought an action in equity. But we see no reason for this. The claim of each was distinct against the defendant and there were no joint rights. By the receipt which the defendant gave, he agreed that the plaintiff should have a right to use the track. This language referred to the track then about to be constructed. When its situation was once fixed and it had been constructed, the defendant could not destroy it and prevent its use, even though he constructed another track somewhere else, without incurring a liability to the plaintiff.

It may be said that his liability was to be measured, not by the money paid by the plaintiff, but by the actual damages sustained by him through the disuse of the track. But we must notice that, in the subscription paper, there is an agreement that the money paid by the plaintiff shall be refunded to him, whenever the net receipts of the track are sufficient for that purpose. The defendant, by destroying the track, has prevented himself from receiving any thing for its use. He has therefore, by his own act, taken away the possibility for which the plaintiff contracted ; that of obtaining a return of his money from the net receipts. It cannot now be ascertained whether those receipts might not hereafter be sufficient to repay the plaintiff. It does not then rest with the defendant to say that his acts have not injured the plaintiff to the extent of the money paid. And we may notice also that the defendant reserved a privilege of repaying this money and therefore cutting off the plaintiff’s rights to the track.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and Osborn, J J.

Judgment affirmed, with costs.