Two questions are made in this case:
1. Was the plaintiff a passenger with the defendant.
2. Was the contract for carrying by stage a lawful one.
I. As to the first question, the proof was sufficient to go to the jury, and it was submitted to them with instructions that the plaintiff held the affirmative.
1. The stage was run in connection with the rail road, and so far as appears, for no other purpose.-
2. It was not customary to pay the fare until reaching the depot. The omission to tender it was not therefore any evidence that the plaintiff was not a passenger.
3. The presumption is, that the plaintiff entered the stage intending to take passage by rail.
4. The proof (received without objection) is express that such was his intent.
5. These facts made a legitimate case for the jury, and the question being fairly submitted to them, their verdict on this point should not be disturbed.
II. Was the business of the defendant, in running the stage in connection with its rail road, unlawful, and the' contract to convey the plaintiff by stage ultra vires ?
1. It must be conceded that the right to run a stage was not one of the express powers granted by the charter; nor *424perhaps an implied power indispensably necessary to carry into effect the express powers.
2.. But it .was nevertheless a power convenient and proper for the successful transaction of the business of the defendant, promotive■ of the objects of the corporation, and conducive—at least not injurious—to the interests of the public.
3. It appears to have been exercised in strict subordination to the principal objects of the incorporation, to wit, the transportation of passengers and freight by rail, with safety, convenience and dispatch. It was not made an independent business, carried on for purposes of speculation, nor with a view to compete with rival conveyances from the village, by stage, but strictly incidental to rail road operations, and confined to the immediate neighborhood of the depot.
4. In itself the business was not an unlawful nor a prohibited- one; nor was it, to the limited extent it was carried on, ;against' public policy,
5. Under these circumstances, can it be said to be unlawful, or beyond the just powers of the corporation, fairly and reasonably construed P
-6. If-so, then any conveyance of passengers by stage between the termini of different rail roads in a city, or between disconnected portions of the same rail road, disconnected by accident or design, permanently or temporarily, is illegal if carried on by the rail road company. And any conveyance of passengers by the rail road, if it happens to traverse in any portion of its route, land not expressly dedicated to the rail road company, or the title to which has not been legally acquired, is also illegal.
7. I am inclined to think that as the business, irrespective of the charter, was lawful in itself, plainly promotive of the objects of the incorporation, not pushed beyond a needed accommodation to the immediate neighborhood, and not violative of any principle of public policy, the business was lawful.
8. It seems also to be settled by judicial decision, at least *425so far as this court is concerned, that such a contract is lawful, and that the defendant is estopped to deny its validity.
In Weed v. The Saratoga and Schenectady Rail Road Co., (19 Wend. 534,) the action was to recover the value of a trunk and its contents, lost on the rail road somewhere between Saratoga and Albany. And the court held that the defendants, though their rail road terminated at Schenectady, were liable for the loss, even though it occurred at a point beyond the limits of their road, if they had contracted to carry the whole distance; and that having held themselves out to the public as common earners for the entire route, and having received compensation for the whole distance, they were bound by their contract and estopped from denying its binding force.
In Hart v. The Rensselaer and Saratoga Rail Road Co., (4 Seld. 37,) the defendants were held liable for baggage put on board at Whitehall, and lost somewhere between Whitehall and Troy, although the distance between those termini was traveled by three distinct rail roads, and the defendants’ road embraced only the latter end of the route; the proof being that the contract was made with the Saratoga and Washington Rail Road Company at Whitehall for the entire distance, and that the three different rail road companies acted under a mutual contract, by which they agreed to carry the entire distance and divide the profits between them.
In Cary v. Cleveland and Toledo Rail Road Co., (29 Barb. 35,) this court enforced a similar rule, under similar circumstances; the only difference being, that the action was brought against the first of the three companies interested in the contract, and who made the contract and received the baggage; and that the loss occurred beyond the bounds of the state where the rail road was chartered, and of course beyond the limits to which its powers as conferred by such charter extended.
In Bissell v. The Michigan Southern and Northern Indiana Rail Road Co., (22 N. Y. Rep. 258,) the defendants *426were held hable for an injury to a passenger, occurring by the negligence of their agents in Illinois, while the defendants were operating a rail road route from Chicago to Lake Brie, the injury occurring at a point beyond either of the states of Michigan or Indiana, by which states alone the defendants" companies were respectively chartered, and under which charters alone they had the power to act. The general question of the liability of rail road companies for their contracts and their torts was largely and learnedly discussed; and although the views of members of the court did not entirely harmonize as to the grounds upon which the judgment should proceed, they nevertheless held that the defendants were either liable for the breach of a contract which they had lawfully made or were estopped to deny, or for a breach of duty to an individual received into their cars with their knowledge and consent, and whom, thus receiving, they were bound to transport with reasonable prudence and care.
The same question was further discussed in the subsequent case of Parish v. Wheeler, (22 N. Y. Rep. 494,) and it was there held that, though a rail road corporation exceeded its legal powers in the purchase of certain canal boats and a steamboat, intended to promote and facilitate the business of their road, the corporation nevertheless by the purchase acquired a title to the property, and could not, nor could any one claiming under them, set up such violation of duty to defeat the title of a mortgagee thereof; and further, that the corporation could not defend itself against a claim for money paid at its request to one who advanced the money for the price of the steamboat purchased for it, on the ground that the purchase was ultra vires; although the plaintiff, when he paid the money, knew all the facts; nor on the other hand would the plaintiff, having sold the steamboat under his mortgage, refuse to credit the proceeds, on the ground that the transaction which furnished the consideration of the mortgage was ultra vires on the part of the corporation.
A distinction is attempted to he raised between these cases *427and the one at bar, upon the ground that in those cases the business was strictly a rail road business, while here it was a stage business; but I am inclined to regard it a “ distinction without a difference.” The contracts, in all of these cases, seem to me to be as much ultra vires (if so at all) as in the case at bar. They had strictly no power to contract for rail road operations, or rail road liability, beyond the bounds of their respective routes and states. It is true their business was in its nature a legitimate rail road business. But I have endeavored to show, in a previous part of this opinion, that the business pursued by the defendant on this occasion was a legitimate rail road business—not done exclusively on its rail road, to be sure—but connected with it and appurtenant to it—incidental entirely to fail road transportation—done to advance that interest by concentrating travel and freight at the rail road station by other means and appliances, within a narrow circle of territory in the immediate neighborhood, and not designed to set up an independent and substantive business, competing with other interests, disconnected with and dissimilar to the legitimate rail road operations for which it was chartered.
III. But suppose the contract and business in question to be unlawful, in the sense that it exceeded the powers granted by its charter, is the defendant released from liability? On this subject several considerations seem to me to be worthy of notice, and to possess considerable force.
1. The defendant had been long engaged in this stage business—indeed, ever since it had existed as a corporation. This appears from the evidence. It must be presumed to have been known to the stockholders, who never in any way arrested it.
2. It must also be presumed, from the absence of evidence to the contrary, that the stockholders participated in the benefits of this arrangement, and thus approved and adopted the unauthorized acts of their directors and managers. In this particular instance they did the same thing as taking the *428money of the plaintiff and agreeing to transport him safely to Troy.
[Albany General Term, March 3, 1862.Gould, Sogeboom, and Peckham, Justices.]
3. I incline to think—under the authorities before quoted, and the general principles of law—that it is estopped from denying its liability for the acts of its agents, as much as a party would he who, knowing that a note was infected with usury, and therefore void, nevertheless represents it as valid business paper, on the faith of which representation it is taken. (Watson v. McLaren, 19 Wend. 357. Holmes v. Williams, 10 Paige, 326. Clark v. Sisson, 4 Duer, 408. Truscott v. Davis, 4 Barb. 495. Chamberlain v. Townsend, 26 id. 611.)
4. At all events, receiving the plaintiff into its stage with its consent, it was under a duty to transport him with ordinary care, and are responsible for a neglect of that duty. (Bissell v. M. S. and N. I. R. R. Co., 22 N. Y. Rep. 258.)
This latter point was not presented at the trial, nor ruled by the court, and there is some doubt, perhaps, whether it ought to be employed here to prevent a new trial, although I do not see why, if well taken, it will not be fatal to the defendant’s case, if the weight of evidence on the question of negligence be conceded to he ■ with the plaintiff. The essence of the charge was, that the defendant was liable for negligence in the conveyance of the plaintiff.
I am prepared,'however, if necessary, to rest the affirmance of the judgment upon the grounds taken by the judge at the trial.
The judgment should he affirmed.
Peckham, J. concurred in the result of the foregoing opinion.
Gould, J. expressed no opinion.
Judgment affirmed
V
MSUT