52 How. Pr. 348 | N.Y. Sup. Ct. | 1877
— The twenty-second section of the act entitled “ An act for the incorporation of companies formed to navigate the lakes and rivers,” passed April 15, 1854, provides that “ no such company shall combine with any other company formed under this act for any purpose, or shall purchase, own or hold, or be interested in any stock or property of any other such company, unless the same shall have been
It is alleged by the plaintiff, who is a stockholder in the Harlem and New York Navigation Company, that the provisions of this section will be violated, if that company and the other defendant, The Morrisania Steamboat Company, are permitted to put into execution the contract or agreement-made between the two companies, and bearing date the 6th day of October, 1876. That agreement provides in the first place, that the contracting parties mutually agree and covenant to operate their respective steamboat lines for their joint benefit.
For the accomplishment of this purpose, it is agreed that there shall be run and operated upon time tables, to be agreed upon during certain specified periods, a certain number of steamboats, unless otherwise mutually agreed upon; that there shall be a freight tariff adopted, which shall be 'strictly adhered to by both companies; that there shall be placed at each wharf or landing used by the parties, gates and gate keepers, who shall receive the fares of passengers traveling by the companies’ boats, the expense of which shall be equally borne; that the receipts of the boats shall be paid by the collector of each boat to the secretary of his company at the end of each round trip, and that the gate-keepers at the end of each day shall send their receipts to the agent of the two companies, &c.; that the secretaries of each company shall pay over to the agent the receipts of their respective collectors on the following morning; that the agent shall make an equal division of the receipts between the two companies daily ; an agent is named in the agreement, aud provision is made for the appointment of his successor -in case of his resignation or removal. The agreement further specified the places at which the landings of the boats shall be made.
; These landings are to be jointly used and the expenses
A committee of three directors from each company is to be appointed, who shall constitute a “ joint committee ” and to whom shall be referred all matters of difference, pertaining to the general management of the two companies under this agreement. There is then a general provision that neither company is to have any management or control over the boats of the other company other than the direction, as therein agreed, of the time of running, of the places of landing, the rates of fare and freight and the disposition of the moneys received for freight and fare and that neither company shall be liable for debts contracted by the other, nor for wages, repairs, fuel, &c., that may be supplied, nor for damages incurred by the other by any collision or other accident, &c.
There is a further provision, to the effect, that if either of the parties shall fail to carry out the terms of the agreement, the other may at its option cancel the agreement, but the
I have recited the provisions of the agreement with so much particularity, in order that it might he clearly understood just what the arrangement was into which the two companies have entered and which the plaintiff seeks to enjoin, on the ground that the same is in conflict with the section of the act of 1854, quoted in full at the commencement of this opinion. It must be quite apparent to any one, after perusing the agreement, that whether there would be a combination of the two companies or not within the meaning of the statute, if the agreement should he carried into effect, there would be at the very least a complete union of the interests of the two companies. Neither could be interested in excelling the other, either in regard to accommodating the public with boats calculated to promote the comfort of their passengers or in the regularity or speed of their trips. If the agreement does not constitute a partnership between the two companies (which is a question not now necessary to be decided), it creates something which bears a strong resemblance to a partnership. At all events the agreement provides for a joining of the companies for the protection of certain supposed mutual' interests and the disposition of this motion depends entirely upon the interpretation which is to he given to the word “ combine ” as employed in the statute.
The learned counsel for the defendants contend that the word “ combine, as thus used, is only to be understood in what they designate as its bad sense, i. e., to prevent that which is contrary to public policy, or injurious to the public, and that what is sought to be prevented by the act is a consolidation of the companies, or a combination, confederation or conspiracy. The word “ combine ” is not to be found in either of the dictionaries of Burrill or Bouvier, and I do not find it defined in the edition of Jacobs to which I have had access. Bouvier defines combination as a union of men for-the purpose of violating the law, and as á union of different
Keeping this principle in view, I think that there can be no difficulty in determining precisely what the legislature intended in using the word “ combine ” in the twenty-second section of the act now under consideration. They did not intend to use, and did not use, that word in the strict technical legal sense which is maintained by the counsel for the
This very case presents an illustration of this point. Here are two companies which have been competing for the transportation of passengers and for public traffic; the rivalry and competition between them has been, according to the affidavits, most severe and keen.
The tendency of this competition, naturally, would be for the benefit of the traveling public, in reducing the rates for fares and freights. Suddenly these competitors come together and make the agreement, which is the subject of consideration, for their “joint benefit,” not for the benefit of the public.
Assuming, however, that the word “ combine ” is to receive the limited construction which is contended for by the defendant’s counsel, and that it is to be taken in its bad sense, as intended to prevent something which is contrary to public policy or injurious to the public, it seems to me that the defendants must fail. If the legislature designed by the pro
The remaining question is as to the right of the plaintiff to maintain this action. As the plaintiff sues on behalf of himself and of such other of the stockholders as shall elect to join in the action, and as both of the corporations are before the court, it would appear that the action is properly brought (Greaves agt. Gouge, 49 How. Pr., 79; Gray agt. N. Y. and N. J. S. Co., 3 Hun, 383).
The motion to continue the injunction is granted, with costs of motion.