Almy v. Harris

5 Johns. 175 | N.Y. Sup. Ct. | 1809

Per Curiam.

There is one error which we consider fatal, and for that we think there must be a judgment of reversal. The act to regulates ferries within this state, (20 sess. ch. 64. sec. 1.) prohibits any person, except Within the southern district, the counties of Orange and Clinton, from keeping or using a ferry, for transporting across any river, stream or lake, any person ór persons, or any goods or merchandise, for profit or hire, unless licensed in the manner directed by that act, under a penalty of five dollars.

If Harris had possessed a right, at the common law, to the exclusive enjoyment of this ferry, then, the statute-giving a remedy in the affirmative, without a negative expressed or implied, for a matter authorised by the common law, he might notwithstanding the statute, have his remedy by action at the common law. (l Com. Dig. Action on Statute, (C.) But Harris had no exclusive right at the common law, nor any right but what he derived from the statute. Consequently,* he can have no right, since the statute, but those it gives; and his remedy, therefore, must be under the statute, and thfe penalty only can be recovered.

Judgment reversed.