Travis and others agt. Tobias and others.

scrutiny of the claim against him. If the form of the summons is not conclusive on the clerk as to the amount of costs, as I think it is not, the defendants can not be in truth prejudiced by the substitution of the latter clause for the former, in the sumNevertheless it is desirable that the forms given in the Code should be followed, whether a departure from them be injurious or not.

mons.

There was color in this case for supposing that an application to the court for judgment would be necessary, in case the defendants failed to answer. The contract actually made between the parties had not expired when the suit was commenced, and had two years more to run. It was only by annulling that contract for fraud, that the plaintiff could be entitled to an immediate judgment for the value of the sloop. I incline to think they might have disregarded the contract and declared for the value of the sloop under a count for goods sold, or declared specially as they have, on the special agreement, stating the breach to be the fraudulent non-fulfillment of the contract with respect to procuring the security. In such case the damages are not limited to the contract price of the vessel and interest, but may exceed it. The amended complaint is so drawn, and I think the case will warrant that mode of declaring; and if so, the summons is right. But if the summons was wrong it might be amended, according to Walker agt. Hubbard, 4 How. Pr. Rep. 154; (Code, § 173, 176).

4. It has been urged on the argument that the warrant of attachment should be set aside. The attachment was issued against three defendants and the complaint is against one only.

The action was commenced by the service of the summons on Tobias (Code, § 127). Whether the warrant of attachment be sustained or set aside, can not affect the regularity of the action. It has not been levied on any property. I think it may, in this case, be treated as abandoned by the plaintiffs as to all the defendants but Tobias. They have proceeded upon the personal service of the summons upon Tobias, and against him alone. The notice of motion does not ask to set aside the warrant of attachment. The court may, however, set it aside under the prayer for other relief. But in each case it should be set aside without costs.

Commissioners agt. Plank Road Company.

On the whole, I think the warrant of attachment should be set aside, except as to Tobias, and the remainder of the motion on the part of the defendant be denied.

The warrant is to remain in force as against Tobias.

SUPREME COURT.

THE COMMISSIONERS OF HIGHWAYS OF THE TOWN OF SCHROEPPELL agt. THE OSWEGO AND SYRACUSE PLANK ROAD COMPANY.

By the terms of the Plank Road act, as amended in 1851, in relation to the location of toll gates, it requires, of this court, judgment of affirmance or reversal of an order appealed from the County Court. But it is within the province of the court to review the report and to order a rehearing before the referees, when there may have been any irregularity in their proceedings or in the admission of evidence.

The evidence to be adduced before the referees must be pertinent and adapted to the nature of the proceeding. The statements of officers of the company when not acting as agents, are inadmissible (2 R. S. 40, § 80 and 81). In order to remove a toll gate, the principal point to be established is, that the public interest is prejudiced in its present location.

Oswego Circuit and Special Term, June 1852. This was an appeal from an order of the county judge of the county of Oswego, directing the removal of toll gate No. 4, on the Oswego and Syracuse Plank Road, under the provisions of § 37 of chapter 210, Laws of 1847. The appeal was referred to three referees pursuant to § 1 of chapter 487, Laws of 1851. The referees reported that the location of the toll gate was unjust to the people residing upon a road known as the Telegraph road, and roads diverging from it. On the trial before the referees, evidence was admitted of the statements of some of the officers of the Plank Road Company, when not acting as the agents of the company, that the location of the gate was not a proper one. These statements were objected to by the counsel for the defendant. Application was made at this time for judgment on the report of the referees, and at the same time a motion was made on behalf of the defendants for a rehearing.

Commissioners agt. Plank Road Company.

M. B. CHURCH, for the Commissioners.

R. H. TYLER, for the Company.

HUBBARD, Justice.-The act of 1851, amending the general plank road law, passed May 7, 1847, does not in terms authorize a recommitment of the report of the referees; in terms it requires judgment of affirmance or reversal of the order appealed from. But I think it within the province of the court to review the report and to order a rehearing before the referees, when there may have been any irregularity in their proceedings or in the admission of evidence; otherwise great injustice might result. This case would furnish an illustration. Here, evidence clearly inadmissible was given, and without it the proof is insufficient to sustain the report, and if, for that reason, the order appealed from should be reversed, great injustice might follow. I shall, therefore, send the case back to the referees upon the ground that the evidence of the statements of the officers of the plank road company was inadmissible.

The statute has regulated the admission of the statements of the officers of aggregate corporations, and limited them to the occasion of transacting the business of the company to which the statements relate (2 R. S. 40, §80 and 81). The second section of the act of 1851 (Sess. Laws of 1851, p. 919), provides that the proceedings before the referees shall be conducted the same as trials before referees in civil actions, so that the proofs adduced must be such as would be admissible before a judicial tribunal. The evidence must be pertinent and adapted to the nature of the proceeding. What amount or strength of proof shall be sufficient to establish the fact that the gate in its location is detrimental to the public interest, can not well be defined. But the pertinency of the proof is not a source of much difficulty. The precise point to be established, and which alone justifies the removal of a toll gate is, that the public interest is prejudiced; and this must depend upon the question of the payment of toll. The company is authorized to erect gates and charge certain toll. Now if no more toll is required or exacted, than the law authorizes for the distance actually traveled, clearly no complaint can be made. It is not important whether trade or travel has beer

Commissioners agt. Plank Road Company.

diverted from its wonted channel; such an objection strikes at the root of the principle of plank roads. Where, however, a gate is located arbitrarily for the purpose of exacting exorbitant toll from persons living upon a diverging road, who travel but a short distance upon the road of the company, that forms a good ground of complaint.

In this case it seems that the referees have found the location of the gate in dispute to be unjust in respect to the people living on the Telegraph road, and the roads diverging from it, but it is to be observed that this may be true for aught now appears, and still the public interest, in its largest sense, not prejudiced. It may be that the removal of the location would be equally or more prejudicial to persons residing on other roads. What I venture to say is, that the referees should not confine their inquiries to the people living on any particular road, but should look to the general interest of the public, and see whether on the whole, that interest would be promoted by the change-keeping in view all the time that the plank road company are authorized to select their own location, provided no more than legal toll is exacted.

It will be impossible from the nature of things, for the company to locate their gate, so that every person shall be required to pay only in proportion to the distance actually traveled, but they should endeavor to approximate to it, and if the company unreasonably or unnecessarily depart from this principle of general equality of toll, as to neighboring residents, proceedings of removal may be instituted. I think the referees in all these cases should find specifically upon the question, whether the public interest demands the removal of the gate, and that with reference to the payment or exaction of toll generally.

The report must be recommitted to the referees and they will proceed de novo to the hearing of the appeal; all questions of costs are reserved until the final hearing for judgment.

Ordered accordingly.

Gould and others agt. Carpenter and others,

SUPREME COURT.

GOULD AND OTHERS agt. CARPENTER and others.

The application for judgment on account of the frivolousness of the answer, is not a trial; it is more analagous to the application for the relief demanded in the complaint for want of an answer.

The plaintiff, in the former case, is only entitled, under the 307th section of the Code, to the twelve dollars costs mentioned in the first subdivision of that section.

Whether in a case where it would not have been necessary to apply to the court, had there been no answer, the costs of the application on a frivolous answer should be $7 or $12, quere?

The plaintiff may also be allowed the costs of a motion, whether the application is made to a judge out of court or in court.

It seems that if the application fails, the party whose pleading is sustained, will be entitled to the costs of defending it.

At Chambers, May 1851. This was a motion under the 247th section of the Code, for judgment, on the ground that the defendants' answer was frivolous.

O. ALLEN, for Plaintiffs.

H. C. VAN VORST, for Defendants.

HARRIS, Justice -Upon the hearing of this case I was satisfied that the allegations in the answer did not constitute a defence to the action, and that, therefore, the plaintiffs were entitled to judgment. I was also inclined to think that this was a proper case to allow the defendants to amend, upon terms. What those terms should be, was the only question for the consideration of which the decision was reserved.

The plaintiffs' counsel insists that the hearing of the case, upon his application for judgment, is to be regarded as a trial, and that, therefore, if the defendants are now allowed to amend, it should only be upon the payment of such costs as the Code allows to the prevailing party after trial. On the other hand, the defendants' counsel insists that the hearing is to be regarded rather as the argument of a motion, and that the only costs to be VOL. VII

13