68 N.Y.S. 5 | N.Y. App. Div. | 1901
' This action was brought to collect tolls for passage through the plaintiff’s toll gate situated at the easterly end of its present turnpike and near the Albany city limits.- -The defendant admits having passed in 1895 with teams hauling ice from the so-called Buell -farm occupied by him, and that-he paid no tolls. The Buell farm is near the toll gate, the dwelling house thereon being within 100 feet of the' gate,, and the gate stands between it and the city. The ice was gathered from a pond on this farm and was stored in a house thereon, and within 400 feet of the gate. The defendant claims that in 1853 an oral agreement was made between William P. Buell, owner of a life interest in the farm, and the plaintiff, whereby Buell. was to close up a private road, which gave convenient access to him and others to the city of Albany without passing along the-toll road, and as a consideration he and the tenants of the Buell farm should, for all time, be exempt from the burden of toll; that he closed the road and, has always since kept it closed, and has up to a short time before the bringing this action in 1895—forty years and more — passed the toll gate without payment of any toll, and up to that date the plaintiff' has strictly observed the terms of its agreement,- and thereby ratified and confirmed it, and should now be held to it.
The defendant also invokes the provision of the Transportation Corporations Law (General Laws, chap. 40 [Laws of 1890, chap. 566, as amd., by Laws of 1893, chap. 538], §, 130), which enacts that no toLs shall be charged of collected at any gate from any person living within one-half mile of the gate. This last defense is not available, to the'defendant here, for the reason that this'law does not apply to any corporation other than those incorporated under
the general act. It was so held in Aurora & Buffalo Plank Road Co. v. Schrot (90 Hun, 56).
The first defense, therefore, must be defendant’s sole reliance. It appears from the evidence that some one in the employ of plaintiff in .about 1853, professing to be authorized so to do, did agree with Buell, the occupant of the Buell farm and having therein a life interest, that if he would close up a road which diminished the travel over plaintiff’s turnpike, the Buell farm and its occupants should be forever relieved of tolls at the gate near the Buell farm. It also appears that Buell, acting upon that promise, did close the road and it never was thereafter used. It also appears that at no time since ■— over forty years — has the plaintiff demanded tolls at this gate of Buell or from any tenant or occupant of the Buell farm. It is well-recognized law that if a person assumes to act as the agent of a corporation and the corporation afterwards adopts his acts, that is sufficient proof of authority. ■ It .is wholly inconsistent that after forty years’ recognition of this agreement the plaintiff should now raise any question as to the authority of the person making the agreement.
We may safely conclude that the agreement was made and was well supported by ample consideration, and'by its terms the defendant had the right to haul the ice in 1895 free of tolls. The only remaining question is as to the legal force of the agreement. In
What Buell actually did was to pay his toll for all time in advance. He extinguished a burden thereby, and plaintiff had no right after-wards to impose it. The tolls had been paid; that is the sole reason that tolls were not collectible. The amount paid, it was agreed, should be and was sufficient to cover all future tolls which otherwise might have been exacted from Buell and the occupants of his farm. I do not- think plaintiff can repudiate the agreement now, because there is .no writing to prove it. As to the other claim, that it was an agreement not to be performed within a year, and, therefore, void, there seems to me to be very little to sustain it, and what argument there may be is specious. It was not an agreement to-do anything. If plaintiff had agreed to carry Buell for a number of years, or had agreed to do any continuous labor for years, or to maintain its turnpike for years, a ground for argument would be apparent. No time here is fixed. The plaintiff might abolish its gate within a year, but time was not involved. The agreement at once and forever eliminated a burden. It made an end of it then. There was no future for it, no year or succession of years. The plaintiff sold its
I do not find that there are any exceptions taken on the trial which require a reversal, nor was there serious error committed in the admission or exclusion of testimony. I think the judgment should he affirmed, with costs.
All concurred, except Parker, P. J., and Smith, J., dissenting.
Judgment affirmed, with costs.