— -The plaintiffs are a railroad company, incorporated by an act of the legislature, passed April 25th, 1831 (Laws 1831, p. 323), with power to construct a railroad, or way, from Twenty-third street to the Harlem river, and “to transport, take, md carry property and persons upon the same, by the power and force of steam, of animals, or any mechanical or other power, or of any combination of them, which the said company may choose to employ.” The act contains eighteen sections, most of which are devoted to the manner in which the capital stock shall be subscribed, and the right of way acquired upon the route, to be fixedjjjjíion by the company, subject to the approval of the com mon council of the city of New York. After provision is made respecting these subjects, section sixteen further provides, that “nothing in this act shall be deemed to authorize the said corporation to construct or use their railroad, or way, across or along any of the streo's or avenues, as designated on the map of the city of New York, whether such streets or avenues shall have been opened or not, without the consent of the mayor, aldermen, and commonalty of said city, who are hereby authorized to grant permission to the said corporation to construct their said railroad, or way, across or along said streets or avenues, or prohibit them from constructing the same; and, after the same shall be constructed, to regulate the time and manner of using the same, and the speed with which carriages shall be permitted to move on the same, or any part thereof,” &c.
On December 22d, 1831, the mayor, aldermen, and commonalty of the city of New York, upon the application of the plaintiffs, adopted an ordinance permitting a railway, or track, to be laid down pursuant to this act, and in conformity with a map on file in the. register’s office. Section two of the ordinance is to the effect, that if, at any time after the construction of the railway, it shall appear to the mayor, aldermen, and commonalty of the city of New York, that the railways, or any part *581thereof, constitute an obstruction or impediment to the future regulation of tbe city, or the ordinary uses of any street or avenue (of wbicb the mayor, aldernien, and commonalty should be the sole judges), the plaintiffs, or the directors thereof, shall, on the requisition of the said mayor, aldermen, and commonalty, forthwith provide a remedy for the same, satisfactory to the mayor, aldermen, and commonalty ; or if they fail to find such remedy, they shall, within one month after such requisition, proceed to remove such railway, or other obstruction or impediment, and to replace the street or avenue in as good condition as it was before the railwa3 was laid down, &c. By section three, the right of regulating the description of power to be used in propelling carriages on and along the railways, and the speed of the same, as well as all other power, reserved to tal said mayor, aldermen, and commonalty,-by the act of incorporation of the plaintiffs, was expressly retained and reserved. By section eight it was declared, that the ordinance should not be considered as binding on the common council, nor should it go into effect until the plaintiffs first duly execute, under their corporate seal, an instrument in writing, promising, covenanting, and engaging, on their part and behalf, to stand to, abide by, and* perform all the conditions and requirements of the ordinance, such as the mayor and‘counsel to the board should approve; and, when so signed and approved, to be filed with the comptroller.
On January 9th; 1832, the plaintiffs accordingly executed, under their corporate seal, and filed with the comptroller, an agreement reciting the ordinance, and in consideration thereof, and pursuant to its requirements, covenanted, engaged, and promised, on their part, to stand to, abide by, and perform all the conditions and requirements contained in it. After having thus obtained the consent of the corporation of the city, the plaintiffs proceeded to, and did acquire, under their act of incorporation, the title to a strip of land twenty-four feet in width in the Fourth avenue, extending from Twenty-third street to the Harlem river, and upon which their track is now laid.
Subsequently, and in 1848, the avenue was opened as a public *582street, in the manner prescribed by law, and by which it appears the plaintiffs’ title, thus acquired, was 'extinguished.
In December, 1844, and while the engine-house and steam-depot of the plaintiffs was located on the avenue at Twenty-sixth street, the mayor, aldermen, and commonalty adopted a resolution or ordinance requiring the discontinuance-of steam power below Thirty-second street, prior to August 1, 1845. This direction was not complied with until the fall of 1846, when the plaintiffs removed their engine-house, machine-shop, &c., to Thirty-second street, upon the alleged suggestion and assurance of the corporation of the city that the location at Thirty second street would be permanent, and not subject to further interference. Under these suggestions and assurances, it is .alleg|pi that the plaintiffs have constructed improvements at the location named, at an expenditure of upwards of $94,000.
On August 8, 1850, the mayor, aldermen, and commonalty adopted a resolution requiring the plaintiffs to cpnstruct an arch over that part -of their road which was laid in the trench cut through the avenue at Murray hill, and extending from Thirty-second to Forty-second streets. The plaintiffs were induced, as they allege, to acquiesce in this measure, and make the expenditure requisite to construct the arch, under assurances made before the committee of the common council,,, that such improvement would obviate all objections to the permanent erection of the depot at Thirty-second street.
After the arch had been completed in accordance with the resolution, and on'December 27, 1854, the mayor, aldermen, and commonalty adopted a resolution or ordinance in the following words: “ Resolved, That no locomotive or steam engine be allowed tq ran on the tracks of the Harlem and New Haven railroad company on Fourth avenue, south of Forty-second street, eighteen months after the passage of this ordinance.” The plaintiffs neglected to conform to this requirement, and the Board of Commissioners of the Metropolitan Police district made an order directing their superintendent to enforce it. The plaintiffs rest their refusal to obey it on the ground that the ordinance was *583passed in violation of tbeir rights and franchises, as granted bj acts of the legislature; claiming that it is without any legal or equitable authority to authorize its passage; and also that it is in violation of the aforesaid agreement.
Upon a complaint embodying substantially the facts stated, and alleging that the enforcement of the ordinance of December, 1854, would be ruinous to the business of the plaintiffs, this court is asked to restrain the defendants from interfering with the running of the steam engines of the plaintiffs, or of the New York and New Haven Railroad Company, upon the Fourth avenue to Thirty-second street.
In opposition to this application, the defendants have furnished affidavits showing that Murray hill, and the lands adjacent'to the plaintiffs’ engine depot at Thirty-second street, has (Recome a thickly settled part of the city, and is used as a place of residence by citizens who have erected there valuable and expensive buildings; that the plaintiffs have placed their rails on the sidewalk and carriage-way of the avenue at Thirty-second-street, and use them with their cars and engines in such a manner as to render that part of the avenue highly dangerous to travellers on foot, or in their own vehicles, and that the smoke, gas, and noise resulting from the running of locomotive engines on the avenue below Forty-second street, creates a nuisance noxious and offensive to the neighboring inhabitants, and materially interfering with the proper enjoyment by them of their property.
Upon the argument, the counsel for the police commissioners presented two preliminary objections, which seem entitled to attention.
First. That this court has no j urisdiction of an action of this nature against the corporation of the city.
The jurisdiction of this court is partially defined by section thirty-three of the Code of Procedure. It extends to actions which relate to the determination in any form of a right or interest in, and for injuries to, real property; 'to actions of partition and foreclosure; to certain actions lor the recovery of a penalty or forfeiture imposed by statute; and to actions against public *584officers in certain cases; also to all other actions where the defendants reside, or are personally served with summons, in the city; or where one or more of several defendants, jointly liable on contract, reside or are personally served with summons within the city; and also to actions against corporations, created by or under the laws of this state, and transacting their general business, or keeping an office for the transaction of business, within the city, or established by law therein; or created by the laws of any other government, for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed, or delivered within this state, or upon any cause of action arising therein. Code, §§ 33, 123, 124 ; Laws of 1847, p. 279, § 7 ; ibid. 1854, p. 464. The constitution (Art. 8, § 3) sSjjb provides, that “ all corporations shall have the right to sue, and shall be subject to be sued, in all courts in like cases as natural persons.”
These provisions of law would seem decisive upon the question ; and the decision of the Court of Appeals, in The People ex rel. Davis & Palmer v. Sturtevant (5 Seld. 263), so fully sustains the jurisdiction, that the point here taken can scarcely be considered open for discussion. And it is proper to add, that the counsel for the corporation not only declined to present it, but expressly disclaimed it.
Second. It is objected that this court has no jurisdiction to re strain the police commissioners; that they are state officers, and comprise a board of state officers, and, against such, an injunction can only be granted by the Supreme Court at a general term.
In support of this view I am referred to chap. 488, Laws of 1851, p. 920. But upon reference to section two of that act, it will be seen that the words “state officers,” in the sense there used, were only intended to include such as had been theretofore so denominated; and to designate those who were immediately connected with the government of the state, and in actions against whom it was the duty of the attorney-general to appear for and defend. Const. 1846, Art. 5, see marginal note to § 1 ; Christman v. Floyd, 9 Wend. 342. The police commissioners are mere local, *585district officers, and are not state officers, within the proper meaning of the term, as used in the act of 1851; consequently, in a proper case, they can be restrained by this "court in the exercise of its equity powers, in the same manner, and to the like extent, as other local or county officers.
These objections haying been disposed of, I proceed to the examination of the principal question: — Whéther the ordinance intended to be enforced was passed in violation _ of previous agreements between the corporation of the city and the plaintiffs, or of the rights or franchises granted to the plaintiffs by the legislature; or without any legal authority.
The legislative power and control of the corporation of the citj, over the streets and avenues within its limits, are very extensive, and the only limitation upon them is, that they sk*i be appropriated to no use or purpose which is not alike free and common to all citizens and travellers. Everything which tends to render the streets useful or convenient, for the purposes of travelling upon them as common public highways, is within the power of, and may be exercised by the corporation. But as converting them to railroad purposes, and permitting rail tracks to be laid upon them, to be used by an individual or an association, in the transportation of merchandise and passengers for hire, is a devotion of them to a use exclusive in its nature, and which, from its very character, cannot be alike common to all travellers; hence the legislature, in the act incorporating the plaintiffs, gave to the corporation of the city express authority to grant permission to the plaintiffs to construct their road across or upon the streets over which their route might be laid. Davis v. The Mayor of N. Y., 4 Kernan, 506, 515, 517, 522, 524 ; Milhau v. Sharp, 17 Barb. 437 ; Williams v. Central R. R., 16 N. Y. Rep. 97 ; Attorney-General v. The Mayor of N. Y., 3 Duer, 119-153. Although the power to give this permission must be derived from the legislature, yet its exercise does not in-any way deprive the corporation of its legislative control over the streets in all other respects, and it is entirely competent to impose, upon the parties asking permission, such restrictions as the corporation may think proper *586iu regard to the manner in which the rail track shall be used, and also such conditions as upon, which the right to continue in the future use of the same may depend.
But apart from the restrictions imposed by the sixteenth section of the act incorporating the plaintiffs, 'and the rights expressly reserved to the corporation by the contract entered into by the plaintiffs on December 22d, 1851, upon obtaining permission to lay their track, the corporation might at any time regulate the manner of using, and the motive power to be used upon the track, whenever in its opinion the public interests required such interference or regulation.
This regulating or legislative power of the corporation over the streets partakes of the character of legislative sovereignty, origjjlally conferred by the charter of Governor Dongan in 1686, confirmed in 1780 by the Montgomerie charter, and subsequently by legislative grants; it may well be doubted whether the city can be wholly deprived of it even by an act of the legislature itself. Certain it is, however, that the corporation cannot surrender any part of it into the hands of private individuals, or of a private corporation, without previous legislative sanction, and any attempt by it to do so, without such authority, would be utterly void. See eases cited supra.
In the present case, not only did the legislature abstain from authorizing the corporation to grant the plaintiffs any permission except to construct their railroad across or along certain streets and avenues of the city, but, in addition, recognized this regulating and legislative power of the corporation over its streets, by providing that, after the road should be constructed under such permission, the time and manner of using the same, and the speed with which carriages should be permitted to move on the same or any part thereof, should be subject to it. The plaintiffs accepted their charter with this restriction; upon obtaining permission to lay théir rails they recognized it as such; and by their agreement of January 9th, 1832, bound themselves to conform ' to it, and all the other conditions required by them, by the ordinance of December 22d, 1881.
*587But it is contended that this agreement is not binding upon the plaintiffs, because it attempted to transfer to the corporation the discretion vested in the plaintiffs, by their act of incorporation, and by which it is said that they alone possess the right to determine the motive power to be used on their road.
The answer to this is twofold: — 1st. A party, applying to a court for the application of its equitable powers, should be held to the rule, “ that he who seeks equity must do equity.” lie should not be permitted to found his claim for relief upon a permission contained in a contract, while he repudiates the conditions and covenants entered into by him, and which formed the consideration upon which the permission was granted. Linden v. Hepburn, 3 Sand. S. C. R. 371 ; Willard Eq. Juris. 346.
2d. The agreement, for the reasons I have stated, was^ot a transfer of the corporate power of the plaintiffs. The corporation might grant or withhold its permission, and, if granted, it had the right to impose upon it such restrictions and conditions as would enable the mayor, aldermen, and commonalty to so regulate the use of the plaintiffs’ road as to prevent it being an inconvenience to citizens and travellers. Besides, as before stated, the plaintiffs accepted their charter with this restriction upon their corporate power, and cannot now be permitted to complain that it turns out to be more burdensome or inconvenient than was at first anticipated.
Again ; It is contended, that even admitting that the corporation originally had the power, under the act incorporating the plaintiffs, and the ordinance contained in the agreement of January 9, 1832, yet by subsequent assurances to, and agreements with the plaintiffs, and upon the faith of which the plaintiffs had incurred large expenditures, and submitted to great inconveniences, it has deprived itself of the right to interfere in any way with the plaintiffs in their present use of their road.
The answer to this is likewise twofold: — 1st. There can now exist no doubt that corporations, like individuals, may be bound by implied contracts, to be deduced by inference from corporate acts, without either a vote, writing, or deed. Ex parte Peru Iron *588Co., 7 Cowen, 540 ; American Ins. Co. v. Oakley, 9 Paige, 496 ; Peterson v. The Mayor of New York, 17 N. Y. Rep. 449. Butin ajiplying this rule we must be careful not to violate other legal principles, such as, that no act can be made valid which is without the power of the corporation, or the scope of its authority. Here, as we have seen, the corporation could not deprive itself of its legislative power over the streets, and prevent its hereafter regulating their use by all persons, including the plaintiffs; and any attempt to do so by contract, either express or implied, would not only be revocable at pleasure, but void.
2d. The papers read on this motion failed to convince me that the corporation ever entered into any such agreements as the plaintiffs claim; or that their acts were such as would lead me to ilJjfer any contract of the nature alleged. It is quite ¡orobable the plaintiffs supposed, when they arched over the trench from Thirty-third street to Forty-second street, that they had put an end to all further interference with them in the use of their steam engines above Thirty-second street; but if this act was based entirely upon such a supposition, the court cannot give any relief founded upon it, though it may have been entertained and acted upon in good faith.
Having, for the reasons stated, arrived at the conclusion that the ordinance, which the plaintiffs ask to have the enforcement of restrained, is valid, and one that the plaintiffs are bound to obey, jt does not seem necessary to inquire into the reasons which actuated the mayor, aldermen, and commonalty of the city of New York in adopting it, nor would such an inquiry be proper, because courts are bound to assume that, rvhere a discretion is vested in a municipal body, exercising functions of a legislative character, good reasons existed for the adoption of a regulation or ordinance which was the result of su jh a discretion. Oneida Com. Pleas v. People, 19 Wend. 79, 99 But, were it otherwise, it would be sufficient to say that the affidavits presented by the defendants go far to show that the” use of steam engines at the plaintiffs’ depot at Thirty-second street constitutes a nuisance to the neighborhood, and the constant running of *589engines across the sidewalks, and the condition of the avenue at this point, produced by the plaintiffs’ acts, constitute ah obstruction to its free use by our citizens to such an extent as to call for the adoption of the ordinance -in question', and its enforcement by the police commissioners. These may have been the reasons which controlled the defendants in their 'conduct; but whether they were or were not, as I before remarked, it is not my duty to consider, having determined the ordinance in question to be within the power of the corporation to adopt, and one that the police may properly enforce.
Although upon the argument it was deemed, by counsel on both sides, necessary to inquire into .the powers'and duties of the board of police commissioners, and the powers of a policeman or constable, both at common law and under the broacMj^ro-visions of the metropolitan police act (2 Laws 1857, p. 200), it seems unnecessary that I should follow them, after having arrived at the conclusion stated. It is enough to state that the duty of enforcing all the public ordinances of the city, and especially those which are applicable to police or health (§§ 5, 20), is imposed by law upon the board of police commissioners, and to add that, upon the affidavits read on this motion, the ordinance in question might very properly be classed under either head.
I have abstained from inquiring whether, under the law amendatory of the act incorporating the plaintiffs, passed March 29, 1848 (see Laws of 1848, ch. 143, p. 238), the New York and New Haven Railroad Company acquired any greater rights in respect to the use of the plaintiffs’ track than is possessed by the plaintiffs, because that company is not before the court as a party to this action. But if the views I have here stated are correct, it is difficult to perceive wherein their position, under the ordinance in question, differs materially from that of the plaintiffs.'
The motion for injunction is denied.(a)
Subsequently the New York'and New Hayen Railroad Company, upon a bill filed in the United States Circuit Court against the same defendants, applied for an injunction like the one asked for in this ease. Upon the motion, substantially the *590same facts were presented. After hearing the parties, Judge Nelson, in August, 1858, denied the applicátion.