The foregoing considerations have led me to the conclusion that the resolution of the common council, granting to the defendant Sharp and others the right to lay down a railroad in Broadway, was without the scope of the powers of the corporation, and was wholly unauthorized and illegal.

But I think it was illegal for another reason. It is not pretended that more than one railway can be laid down in that street without destroying it as a road for the passage of other carriages and vehicles. The resolution did not contemplate any participation on the part of the public or the citizens generally in the ownership or in the profits of the contemplated railway. Indeed, it is not susceptible, as has been shown, of any such participation. The public might, indeed, as passengers, be benefited by the use of it; but as a business enterprise it was to be carried on by and for the emolument of the associates alone. The manifest design of the resolution was to confer on the associates the exclusive right of carrying passengers by railroad on this public street for profit, and it was this circumstance alone which rendered it of any value to those who sought to obtain it. I will suppose, then, that it would be wholly unobjectionable as an obstruction in, or an interference with, the street, and that it would not impair in the slightest degree the adaptation of that thoroughfare for all other purposes for which it could ever have been used. The right granted to these associates would be the very definition of a franchise. The privilege of making a road or bridge, or of establishing a ferry, and of taking tolls from the citizens for the use of the same, are among the most common examples of a franchise: 3 Kent's Com. 458; 2 Bla. Com. 37; Charles River Bridge v. Warren Bridge, 11 Pet. 639, per Story, J.; Chancellor Walworth, in Beekman v. Saratoga & Schenectady Railroad Company, 3 Paige, 75 [22 Am. Dec. 679], said: "The privilege of making a road and taking tolls thereon is a franchise, as much as the establishment of a ferry or a public wharf, and taking tolls for the use of the same." The corporation of New York may, without doubt, make grants of this character respecting the public waters which surround the city, but independently of that power, which is in terms conferred by the charters, they have no more authority to make such a grant than any other administrative board in the state. If they could make this grant, they could charter upon the city streets a turnpike or plankroad company. They could grant to individuals the right to pave or otherwise improve the streets, and to impose tolls thereon, to be exacted from all who should travel upon them.

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I do not now speak of the attempt to give a power to establish a succession in the nature of a corporate succession, for the grant would be equally objectionable in this aspect of it, if it was made to an individual and his assigns. The answer given to this view of the case, upon the argument, was that the board could, in the exercise of what is called its legislative power, rescind its resolution at its pleasure. Without examining the authorities upon which that argument is founded, the applicability of which to this case I am not, however, prepared to admit, I do not see that the grant would be any the less objectionable had it contained upon its face the reservation of a right to rescind it at pleasure. The board had no power to grant to any person a franchise for transporting passengers on the public streets for profit for a single day, and the attempt to do so was absolutely void.

If the foregoing conclusions are sound, the defendants, at the time the amended complaint was filed, were, of their own authority as private individuals, and without any lawful right, about to convert the central part of Broadway into a railroad, by taking up portions of the pavement, and laying iron tracks thereon, and putting upon those tracks cars for the transportation of passengers for their own profit; and the only remaining question is whether the proper form of remedy has been adopted by the parties who have instituted this suit. I have already said that if authority to establish the railroad had been granted by the legislature, mediately or immediately, the road could not have been a nuisance; and this is all that the cases upon the subject in this state establish. But the defendants were about to proceed without any such authority; and before speaking of the remedy, it is necessary to determine the other question which I have stated, What would have been the legal character of the act if the defendants had been suffered to perform it? In my opinion, it would, upon the facts admitted in the answer, have been a public nuisance. Any permanent or habitual obstruction in a public street or highway is an indictable nuisance, although there be room enough left for carriages to pass, and it is not less so though the thing which constitutes the obstruction is not fixed to the ground, but is capable of being, and actually is, removed from place to place in the street. If the railway proposed to be constructed by the defendants were in operation, it could not fail to happen that Broadway would at all times during the day be incumbered by a great number of those large receptacles for railway passengers which are an essential part of the apparatus

of a railway. If authorized by law to run upon the street, the inconvenience would have to be submitted to; but if placed there without right, the authors of the act could not defend themselves from the charge of nuisance. The authorities for this position are constant and uniform, and leave no doubt upon the question: Fowler v. Saunders, Cro. Jac. 446; Rex v. Russell, 6 East, 427; Rex v. Carlile, 6 Car. & P. 636; Rex v. Cross, 3 Camp. 226; Rex v. Jones, Id. 230; Rex v. Moore, 3 Barn. & Adol. 184; Commonwealth v. Passmore, 1 Serg. & R. 219; Rex v. Ward, 4 Ad. & El. 384; People v. Cunningham, 1 Denio, 524; Hart v. Mayor of Albany, 9 Wend. 571 [34 Am. Dec. 105].

The question is not before us whether the advantages arising from the establishment of a railroad in the street would not be an ample compensation for all the injury and inconvenience which the public would suffer from the obstruction it would occasion. It may be that upon the whole such a change in the character of the street would be a public benefit; but this is for the legislature to determine. In the case of King v. Ward, which was an indictment for a nuisance, in a navigable river and king's common highway, by erecting a certain building of stones across the stream and water-way of the river, the jury found the fact that the alleged nuisance had been erected by the defendant, but that the inconvenience was counterbalanced by the public benefit arising from the alteration thus made. The court held that this finding amounted to a verdict of guilty. Lord Denman, C. J., stated the principle with great distinctness: "In the infinite variety of active operations always going forward in this industrious community, no greater evil can be conceived than the encouragement of capitalists and adventurers to interfere with known public rights from motives of personal interest, on the speculation that the changes made may be rendered lawful by ultimately being thought to supply the public with something better than what they actually enjoy. There is no practical inconvenience in abiding by the opposite principle, for daily experience proves that great and acknowledged public improvement soon leads to a corresponding change in the law, accompanied, however, with the first condition of being compelled to compensate any portion of the public which may suffer for their advantage." See also the opinion of Lord Tenterden in Rex v. Russell, 6 Barn. & Cress. 566.

It is well settled that where such an offense occasions, or is likely to occasion, a special injury to an individual, which cannot well be compensated in damages, equity will entertain juris

diction of the case at his suit; and also that the attorney general, in all cases where a preventive remedy is called for by the circumstances, or the state in its own name, may apply for an injunction against the perpetrator of the wrong: 2 Story's Eq. Jur., secs. 921, 922; Allorney General v. Cohoes Co., 6 Paige, 133; Baines v. Baker, Ambl. 158; Sampson v. Smith, 8 Sim. 272; Spencer v. London & Birmingham R. R. Co., Id. 193; Attorney General v. Richards, 2 Anst. 603; Corning v. Lowerre, 6 Johns. Ch. 439.

But the allegation that the plaintiffs were the owners of lots in Broadway was put in issue by the answer, and the affirmative has not been found to be true; and besides, the judge who tried this cause has found, as a matter of fact, that constructing the railway would not be specially injurious to the plaintiffs. I do not see, therefore, how, consistently with these findings, the action can be sustained in their behalf, and such seems to have been the view of the superior court at special term. The attorncy general was on that account made a party plaintiff; but to the granting of this order the defendants objected, and from it they appealed to the general term. By the terms of the code that order is reviewable here, provided it involves the merits, and I am unable to deny that if the defendants were entitled to have the complaint dismissed for want of interest on the part of the plaintiffs, the order, which virtually refused such a judgment, and which admitted the substitution of a party standing in a different and better position in that respect, was one which involved the merits of the action. The names of the original plaintiffs, it is true, remain on the record; but this does not improve the plaintiffs' case, if they are not in a situation to maintain an action. The general term sustained the judgment on the ground that the order in question was authorized by certain sections of the code of procedure (sections 122, 173). By the first of these sections the court is authorized to "determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." Section 173 relates to amendments, and is in very comprehensive terms. The court may add or strike out the names of parties, or correct a mistake in any respect; and it may confine the pleading or proceeding to the facts proved, when the amendment does not change substantially the claim or defense. The section first quoted evidently

refers to cases where one or more of the original parties had such an interest as would enable him to sustain the action, but where the controversy would not be completely settled without the presence of other parties. This was a familiar rule of the court of chancery, which would have been properly stated in the precise words of this section. The other section contains language, if construed literally, broad enough to embrace this case. A possible construction of the power to strike out and to insert the names of parties would admit the striking out of all the existing ones, on the ground that they had no cause of action, and inserting an entirely new set who really had such right, but this would be too unreasonable to have been intended. So with the unlimited provision to correct a mistake. It cannot authorize the giving of judgment in favor of parties. who have no right to the subject in litigation. So also with the provision authorizing the conforming of the pleading or proceeding to the facts proved. This, I think, does not permit an entire change of parties on one side. It obviously relates to the facts given in evidence on the trial.

If the original parties had shown an interest in themselves which would have entitled them to invoke the jurisdiction of the court, and the only difficulty had been that the judgment would not have been complete without the intervention of a party who would represent all others who had a similar interest, the case would be relieved from its present embarrassment. The view of the superior court was that it presented such a case. By section 119 of the code, where the question in an action is one of common and general interest or where the parties are very numerous, one or more may sue or defend for the benefit of the whole. This is also a rule borrowed from the practice of the late court of chancery. It would be giving an undue extension to this rule to hold it to embrace such a case as the present. The relief to be granted in this action must proceed upon the ground that the act imputed to the defendants is either a public nuisance, or the usurpation of a franchise detrimental to all the people of the state. It may not affect every citizen equally, but in judgment of law, assuming that no special injury is shown, they have an equal right to complain. Now, it cannot be maintained for a moment that an action will lie by an individual citizen for such an offense. Such a rule would confound all distinctions between public and private rights and remedies, and would introduce inextricable confusion.