Second Department, July, 1911. [Vol. 146. engaged in the conduct of the banking business under the laws of this State. The institution was taken possession of by the Superintendent of Banks of this State and was in his possession at the time of the commencement of this action, for the purpose of liquidation, by virtue of chapter 143 of the Laws of 1908. As a depositor the plaintiff had been credited on his pass book with the proceeds of two promissory notes, payable to his order and indorsed by him in the sum of $885.45. The notes were not paid at maturity, but no notice of protest was ever given to the plaintiff, if the notes were protested at all. The plaintiff first learned of the fact that the notes were charged off his account at the bank when he delivered his pass book up to the institution to be written up after its seizure by the Superintendent. Then the amount of the notes was deducted from the balance due him and the book returned to him, showing a balance only of $154.15. He thereupon presented two claims to the Superintendent, one for the conceded balance and one for the amount of the notes. The claims were presented in that form under the direction of the Superintendent, or some one belonging to his office. The claim for the conceded balance was admitted and the other one rejected, whereupon the present action was brought. I find no defense to the plaintiff's' cause of action. The only point made by the appellants is that the delivery of the pass book in the circumstances amounts to the taking and stating of an account between the parties. The fallacy of the claim is so obvious that it needs no discussion. It is true the plaintiff has received a dividend based upon the amount of his conceded claim, $154.15, but such receipt is no acquiescence in law to the correctness of the balance. It was the acceptance of a sum to which both parties knew he was entitled and which was paid and received with full knowledge of the fact that a disputed claim, which was in litigation at the time, existed. The equities are clearly in the respondent's favor and the judgment and order should be affirmed. JENKS, P. J., BURR, THOMAS and RICH, JJ., concurred. Judgment and order affirmed, with costs. Public nuisance-suit by private person to abate nuisance - failure to show damage — distinction between crime and nuisance. A licensed hackman in the city of New York cannot maintain a suit in equity to abate an alleged public nuisance on the charge that the defendant, his competitor, is doing business without a license, or in excess of his license, where the complaint does not show injury or damage peculiar to the plaintiff. While every public nuisance is a crime, not every crime is a public nuisance. THOMAS, J., dissented. APPEAL by the defendant, the New York Taxicab Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of June, 1910, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the defendant's demurrer to the complaint. William F. Goldbeck, for the appellant. George B. Holbert [Walter L. Rathborne with him on the brief], for the respondent. CARR, J.: This is an appeal from an interlocutory judgment overruling a demurrer to a complaint. The action is brought to abate an alleged public nuisance. The plaintiff pleads that he is a resident and taxpayer of the borough of Manhattan in the city of New York and "a public hackman, duly licensed as such by the Bureau of Licenses of the City of New York, and engaged, generally, in the transaction of such business throughout the several boroughs of the City of New York." He complains that the defendant maintains a number of hack stands at various places in the boroughs of Manhattan and Brooklyn for the use of its hacks or cabs which it offers to public hire generally. Second Department, July, 1911. [Vol. 146. He alleges that the maintenance of said hack stands by the defendant is conducted under special licenses issued pursuant to general ordinances of the city of New York, and that a condition of the issuance of said special licenses, as provided in said general ordinances, is that the defendant shall not accept as passengers persons other than the guests of the various hotels and the occupants of the various buildings abutting on the parts of the public streets on which its hack stands are maintained. He further alleges that the maintenance of the defendant's hack stands causes annoyance to the public generally and interferes with and obstructs general public traffic. He asserts that the defendant in the operation of its cabs violates the condition of its special licenses in that it carries on a general hacking business by receiving passengers generally on the streets, and that furthermore it uses in its business many cabs for which it has no licenses whatever. He pleads special damage to himself from the acts of the defendant in language as follows: "Fifteenth. That plaintiff was damaged and injured in this: That said defendant is continuously entering into competition with plaintiff and is continuously receiving, soliciting and accepting public passengers for hire and transporting them to the exclusion of this plaintiff and to his irreparable injury by thus depriving him of the patronage of the public at large to which he is entitled under and by virtue of his public hacking license." The complaint contains no other allegation of any injury or damage peculiar to the plaintiff. The necessity of alleging some special injury or damage to enable the plaintiff to maintain an action in equity to abate a public nuisance is conceded by the plaintiff, but he contends that the allegation of his complaint, above quoted, sets forth such injury and damage sufficiently. In this view the learned court at Special Term agreed and upheld the complaint on its expressed opinion that the allegations in the complaint that the defendant was doing a general hacking business without a license therefor, in violation of the general ordinances of the city, stated a cause of action in equity for injunctive relief in favor of the plaintiff, who has a license to do a public hacking business. No precedent is cited by counsel, nor has any been found after much labor, in which a similar or fairly analogous App. Div.] Second Department, July, 1911. state of facts has been brought to the attention of the courts as a ground for the maintenance of an action in equity by a private party to abate an alleged public nuisance. If the defendant is doing a business without hacking licenses or in excess of such licenses as have been granted, its act in so doing is unlawful and punishable in proceedings based upon its violations of the general ordinances, but such acts though not lawful are not nuisances in the true sense of the word. While every public nuisance was a crime at common law and is so under our statute, yet not every crime is a public nuisance. The terms are not at all convertible. If the defendant unlawfully and unreasonably obstructs a public highway, it is guilty of a public nuisance. But there is no allegation of injury or damage peculiar to the plaintiff based upon this ground. The allegation in the complaint upon which the plaintiff must rest his right to maintain this action is that the defendant, without a license to do so, does a general hacking business in competition with the plaintiff who has a right to do so. If this circumstance is enough to give the plaintiff a standing in a court of equity to maintain an action for injunctive relief, there ought to be found some precedent which may serve as an authority on this proposition. None is to be found. If it be a matter of first impression, then the principles governing actions to abate nuisances should not be stretched to cover it. The city has ample power to enforce its ordinances, and there is no necessity of creating a right of action in favor of a private suitor for his own purposes. The learned court at Special Term was of opinion that Odell v. Bretney (62 App. Div. 595) is an authority in favor of the maintenance of this action. In that case the actual question was whether a public hackman under a general license, and against the objection of the owner of the abutting premises, could use as a public hack stand a portion of a street which, with the consent of the abutting owner, had been set apart for a special hack stand for the exclusive use of another. There is some general discussion in the opinion in that case which is not controlling except upon its own facts. What the court actually held was that the public hackman could not occupy the street against the objection of the abutting owner. (See Odell v. Bretney, 93 App. Div. 607.) Second Department, July, 1911. [Vol. 146. The interlocutory judgment should be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with thirty dollars costs, with leave to the plaintiff to serve an amended complaint in twenty days on payment of costs and disbursements. JENKS, P. J., HIRSCHBERG and RICH, JJ., concurred; THOMAS, J., dissented. Interlocutory judgment reversed, with ten dollars costs and disbursements, and demurrer sustained, with thirty dollars costs, with leave to plaintiff to serve an amended complaint in twenty days on payment of costs and disbursements. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN M. FARLEY, Respondent, v. MAX WINKLER and Others, Constituting the Board of Water Commissioners of the Town of Harrison, District No. 1, Appellants. Second Department, July 27, 1911. Town - liability of water commissioners to suit — mandamus — enforcement of claim against commissioners. While the Town Law does not make water commissioners a municipal corporation, they are collectively a quasi public corporation with incidental power to sue and be sued in relation to the duties imposed upon them by the statute. Hence, one who has rendered services to said commissioners as an engineer is not entitled to a peremptory writ of mandamus requiring them to audit or reject his claims, for his remedy at law is adequate. APPEAL by the defendants, Max Winkler and others, constituting the board of water commissioners, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 24th day of January, 1911, directing the issuance of a peremptory writ of mandamus. Henry C. Henderson, for the appellants. |