It seems to me that it is not the correct view of this complaint to assume from it that the company defendant is only to be held responsible for non-performance of duty specified in sections 11 and 12, of chapter 265, Laws of 1848. The duties which the commissioners are required to perform to the public are therein defined it is true. The complaint, however, charges that this telegraph company was organized and is maintained for the purpose of transmitting, and its object is to transmit over its lines “ and through its stock reporting instruments and general news reporting instruments, to all persons who hold and to .all persons who desire to hold its said stock and news reporting instruments, certain quotations, news and information, which quotations, news and information are owued' and contributed by it for the purpose of being so transmitted.” Telegraph companies are public; have the right to take land under the laws providing that lands may be taken for a public use. The act requires them to transmit dispatches “ with impartiality and good. faith. ”
For the purpose of applying to a profitable use certain instruments owned by it, the defendant has applied its lines to these instruments whenever required by persons who desire to use the instruments and has entered upon the business of collecting a certain class of news and transmitting it over its wires to the individuals using the instruments. ^The defendant still remains a public corporation owing the duty impartially to grant the fight to all who comply with its rules to have the privileges furnished. That there is no objection appears from the complaint. The plaintiffs have the instruments and pay, and are willing to pay, the price agreed upon which shall be established. The defendant has no right arbitrarily to take away the instruments by force without default! The case of Breese v. The United States Telegraph Company (48 N. Y., 132) does not touch a case like this. It is there decided that a by-law requiring important messages to be returned and verified at half rates was not an unreasonable by-law. This case seems to be an entire new one in the courts of this State. Upon principles of justice a public corporation should make no distinction in respect to persons who wish to partake of the privileges which it was created to furnish.
*7The corporation can either be deemed to have assumed to forward to the plaintiffs every message transmitted over its wires, or to be a public corporation to do the acts it undertakes to do in the way provided by it by means of the line erected for public use.
The judgment should be reversed, and demurrer overruled, with leave to defendant to answer in twenty days on payment of costs.
Peatt, J., concurred. Present — BaeNAed, P. J., Dteman and Peatt, JJ.Judgment sustaining demurrer to plaintiff’s complaint reversed^ and demurrer overruled, with leave to defendant to answer in-twenty days on payment of costs.