Chenango Bridge Co. v. Paige

LeaeNed, P. J.:

This cause'has already been once before this court, and the decision is reported 63 Barbour, 111. A majority of the court seem to have then held that the plaintiff might maintain both causes of action, set forth in the complaint. We are bound by that decision, which was f olid wed by the learned justice who last tried the cause. If we were not, I should adopt the views of Mr. Justice ParKer in his dissenting opinion. The right of riparian owners to construct such a bridge is not disputed. It was the permitting of the same to be used by the public, free or for toll, which was held to violate the plaintiff’s rights. (The Binghamton Bridge, 3 Wall., 51.) But the construction, which was lawful, not the use, which was unlawful, contributed to the destruction of plaintiff’s bridge.

I understand that the majority of the court also held that Lewis (and therefore his estate), was liable for what the corporation did, or for what he did, as its agent, in constructing the bridge, and was also liable for the loss of tolls which the plaintiff suffered through the illegal use of the bridge by the Corporation which owned it. That decision concludes us, although I cannot assent to the doctrine.

One point is made by the defendants which was not presented to the court on the former argument. That is, “ that the construction of their statutes by our own courts having sustained the position and conduct of the Binghamton Bridge Company, defendants’ testator is protected, although the decision of our courts has since been reversed.” To support this' the defendants cite 2 Revised Statutes (§ 1 [66], part 3, title 3, art. 1 [m. p.], 602). But the building of the bridge was not after any decision of the Supreme Court giving construction to the act. And the recovery for damage by reason of the loss of the tolls cannot be called a penalty or forfeiture.

The defendants further urge that the principle decided in Harris v. Jex (55 N. Y., 421), applies. In that case it was held that where the highest tribunal in the land has decided a question, a person had a right to repose on such decision; that he was not bound to foresee that the same tribunal would reverse its decision the next year. But, in the present case, the highest judicial tribunal in the land has never decided that the Binghamton Bridge Company had a right to maintain a public bridge, or to take toll. That question was in dispute, at all times, from the commencement of the former suit in May, 1856, to the decision of the United States Supreme Court, in. December, 1865. On the point involved the Court of Appeals was not the highest tribunal.

Again, in the present case the plain tiff seeks to -recover for the tolls which it ought to have received, and which were in fact received by the Binghamton Bridge Company. The latter ought not to retain the benefit of its own unlawful act. But in Harris v. Jex the defendant endeavored to defeat the foreclosure of a mortgage by proof of a mere tender of the amount in national currency, made at a time when, by the decision of the United States Supreme Court, only gold was a legal tender, under the circumstances of that case. So that if a retroactive effect had been given to the subsequent reversal by that court of its own decision, the plaintiff would have lost the lien of his mortgage without receiving payment of his debt, under the harsh rule of Kortright v. Cady (21 N. Y., 343).

Following, as we are bound to do, the former decision of this court, we are compelled to deny the motion for a new trial and to order judgment on the verdict, with costs.

Present — Leahnbd, P. J., and Bookes, J. BoaRDMAN, J., not acting.

Motion for new trial denied and judgment ordered for plaintiff on verdict, with costs.