Palmer, supervisor, &c. and others, against The Fort Plain and Cooperstown Plank Road Co.

Palmer, supervisor, &c. and others, against The Fort Plain and Cooperstown Plank Road Co. Section 1 of chapter 398, of the laws of 1847, does not repeal or modify section 26 of the general plank road act, (Chapter 210 of Laws of 1847.) The two sections are to he construed together in determining the power of the supervisor and commissioners of highways to contract with a plank road company, as to its taking and using a highway of the town for the construction of its road. They have authority to agree with the company, upon the compensation and damages to be paid for taking and using the highway, and to grant the right to do so. But they have not power to grant the company this right on condition that it shall erect and maintain its toll gates in specified localities. Nor are they authorized to make a contract with the company granting it this right and, as a consideration therefor, obligating it not to locate and maintain a toll gate within a specified limit. A naked condition inserted in a grant does not create any agreement on the part of the grantee accepting the thing granted, to perform the condition. In such a case, specific performance cannot he enforced by action. The remedy for a breach of the condition is by a proceeding to recover the thing granted. Accordingly, where the right to take and use a highway for the construction of a plank road, was granted to a company upon condition that it should not maintain a toll gate within certain limits; and the company, by virtue of the grant, took possession of the highway but afterwards violated the condition, and an / action was brought to compel the company to observe it; Held, that the action could not he sustained. The supervisor and commissioners of highways of a town cannot maintain a suit in their joint names as such officers, on a contract made by them on behalf of the town, which contains no express agreement with them, as such officers. In November, 1848, the defendant, a planlc road company, organized under the general plank road act, applied to the board of supervisors of the county of Otsego, for leave to lay out and construct its road, and to take the real estate necessary for the purpose; which leave was granted, and commissioners were appointed to lay out the road. In 1849, the directors of the plank road company entered into an agreement with the supervisor and commissioners of highways of the town of Otsego, of which the following is a copy, viz: “ The subscribers, the supervisor and commissioners of highways of the town of Otsego, in the county of Otsego, hereby agree to and with the Fort Plain and Cooperstown Plank Road Company, in consideration of the public benefit to result therefrom, and in pursuance of an act in relation to plank road companies, passed November 24,1847, to grant and allow to said company the right to take and use any part of any public highway in said town, necessary for the construction of them road, according to the provisions of the law in such case made and provided. But this release is executed on the express condition, that no gate shall be erected on said road, demanding tolls, within three miles of the court house in the village of Cooperstown; and in case any such gate or gates shall at any time hereafter be erected on said road by said company, then and in such case, and from thereafter, this lease to be void and of no effect. The plank road company in April, 1850, commenced the construction of its road within the village of Cooperstown, in the town of Otsego, and constructed the same northerly upon and along a highway of said town about 'five and one-half miles ; such road was completed about the first of August, 1850, and on the 5th of that month the company erected a toll gate on the road about half a mile from the court house and exacted toll from persons traveling upon it. In July, 1850, the defendant, pursuant to sections 12 and 26 of the act of May 7,1847, presented a petition to the county judge of Otsego, stating that the line of its road, as established by the commissioners, would pass upon and along said highway in the town of Otsego, and that it had been unable to agree with the supervisor and commissioners of highways of such town, upon the compensation to be paid therefor ; and praying that such compensation and damages might be ascertained by a jury. The county judge directe'd a jury to be drawn pursuant to the prayer of the petition. Upon the drawing of the jury, counsel appeared in behalf of the town of Otsego, and presented and urged the agreement aforesaid as an objection to the proceedings. The objection was overruled by the county judge, and the jury drawn. The same objection was made and overruled at the meeting of the jury to assess the damages. The counsel for the town, notwithstanding their objection, took part'in the proceeding, and argued the matter before the jury. The damages were, on the 22d of August, 1850, assessed at $20. After this assessment the town, by its counsel, made a motion in the supreme, court to set aside the verdict of the jury and for a new trial, which motion was denied. The defendant paid the twenty dollars to one of the three commissioners of highways, who, however, had no authority from his associates to receive it. Thereupon the plaintiff Palmer being supervisor, and the other three plaintiffs being commissioners of highways of ,the said town of Otsego, describing themselves as such, officers, brought this suit to compel the defendant to remove its gate, and to observe the condition contained in the agreement above set forth. The cause was tried before Mr. Justice Shankland, without a jury, at the Otsego county circuit. Upon the trial the foregoing facts appeared; and the said justice found, as matter of fact, that the defendant executed the contract above set forth, and entered upon and took possession of the highway therein mentioned, for the use of the plank road company by virtue of that contract, and by no other authority; that the town or its officers had not received the damages assessed by the jury for the taking and use of the road, or done any act to waive their right under the contract; that the defendant had violated the contract, by erecting and keeping up a toll gate on its road within one-half of a mile from the court house in Cooperstowñ, and exacting toll thereat contrary to the contract. He also found that the defendant instituted the proceedings, and had the damages assessed for the taking of the road as above mentioned; and he ruled and decided that the defendant had no right to erect and maintain a gate on its road and exact toll thereat, within three miles of the said court house, and ordered judgment for the plaintiffs, requiring the defendant to remove its gate three miles from the court house, and perpetually restraining the defendant from erecting any gate on its road within that distance. To this ruling, decision and judgment, the counsel for the defendant in due form excepted. The judgment was affirmed by the supreme court at a general term held in the sixth district, and the defendant appealed to this court, A. C. Paige, for the appellant, submitted the following, among other points: I, The supervisor and commissioners of highways have no authority at common law, or under any statute, to, maintain this action. (Cornell, &c. v. The B. & O. T. Co., 25 Wend. 365; Cornell, &c. v. Town of Guilford, 1 Denio, 510. This latter case was affirmed in the court of errors.) They have no authority to maintain this action under any statute. The cases of Cornell, &c. v. The B. & O. Turn. Co. and Cornell, &c. v. Town of Guilford, decide that no statute in force at the date of those decisions conferred any such authority, The only remedy given by statute for an obstruction of a highway was an action for the penalty of treble damages, to be sued for by the commissioners of highways. (1 R. S. 526, §§ 130, 131.) Since the decision of the eases above cited, no statutes have been passed authorizing the plaintiff to bring this action. No such authority is conferred by any provision in the plank road acts. (See Act of May 7,1847, p. 223, § 26 ; p. 226, § 37 ; Act of Nov. 24, 1847, p. 496, § 1.) In the absence of a common law remedy, a party is confined to that given by the statute. (25 Wend. 367, 368.) The only remedy given by the statute in this case, is the implied prohibition of the company to enter and take possession until the damages are paid. (§§ 26, 28, 29, and 30, of Act of May 7, 1847.) Section 92 (2 R. S. 473, 1st ed.) does not authorize the plaintiffs to maintain this action. That section authorizes supervisors, commissioners of highways, &c. separately, not jointly, to bring actions on contracts lawfully made with them, &c. in their official character, and to enforce any liability to such officers, or the body they represent, &c. The instrument in writing set forth in the complaint was not lawfully made ; it was not authorized by the 26th section of the act of May 7, 1847; it was not an agreement fixing the compensation and damages to be paid, &c., the only agreement authorized to be made by that section; it did not create any liability on the part of the defendant to the plaintiffs as town officers, or to the town. It is not a contract, but a release or grant by the supervisor and commissioners of a right to take and use the highway upon condition, &c. The defendant did not undertake or agree to do any thing. (25 Wend. 367, 368 ; 1 Denio, 513, 514.) If a contract and a right of action can be maintained upon it, such action must be brought in the name of the town; no express authority having been conferred upon the plaintiffs to bring the action in their names of office. (1 R. S. 356, 357, §§ 1, 2, 3, lst ed.; 1 Denio, 512 to 516.) II. The instrument in writing set forth in the complaint is void, and not binding upon either the town of Otsego or its supervisor and commissioners of highways, or the defendant; and no specific performance of it can be adjudged. Such agreement was not authorized to be made by the plank road acts. Section 26 of the act of May 7,1847, (page 223,) only authorizes the supervisor and commissioners of highways to agree with the company upon the compensation and damages to be paid for taking and using a public highway for the purposes of its plank road. It does not authorize these officers to release and grant to the plank road company the public right to the highway without a pecuniary consideration, nor to convey such public right upon condition. The consideration must be compensation and damages, to be paid to the commissioners, to be expended in improve ing the highways of the town. The act of November 24, 1847, (§ 1, p. 496,) does not modify the 26th section of the act of May, 1847; it merely, on the company’s obtaining lands, &c. by purchase or gift, and making an agreement fixing the compensation for the use of highways authorized by said 26th section, dispenses with the application to the board of supervisors for authority to lay out and construct the plank road required by the 4th section of the act of May 7, 1847. The act of November 24, 1847, has no, application to this case, as it is limited in its application to cases where the plank road company had not previously made an application to the board of supervisors, &c. The defendant made such application to the board of supervisors on the 15th of November, 1848; and the agreement in question was not executed until ten days before the town meeting in 1849. Statutes conferring powers on local officers must be strictly construed, and a strict compliance with the statute by such officers is required. (20 Wend. 207; Webb v. Albertson, 4 Barb. 51.) III. The instrument in writing, in question, created no contract between the parties. 1. There is no covenant or agreement on the part of the defendant not to erect a toll gate within three miles of the court house, &c. The instrument is merely an assignment or grant of the public right to the highway, upon condition subsequent, without covenants by either party. (Cruise, Deed, ch. 4, §§ 34, 37; ch. 7, 5 21; Id. tit. 24, Ways, §§ 1, 7.) 2. Where there is a conveyance or grant of an estate or interest in, or arising out of or annexed to land, upon condition, without any covenant by the grantee to observe and perform the condition, the condition, although the conveyance or grant is executed by the grantee, cannot be regarded as a covenant; and the only remedy of the grantor in case of a breach of the condition is to enforce a forfeiture of the estate or interest in the premises. (Livingston v. Stickles, 8 Paige, 398, 402; Stuyvesant v. Mayor, &c. of N. Y., 11 id. 414, 422, 425, 426.) 3. There being no covenant or agreement on the part of the defendant not to erect a toll gate within three miles of the court house, &c., there is no contract in this case for a court to decree to be specifically performed. This objection is fatal to the action of the plaintiffs. (8 Paige, 398, 402; 11 id. 425, 426; 2 Story’s Eq. Juris. § 712 et seq.; 6 Paige, 288; 5 Hill, 256.) J. K. Porter, for the respondent, among others, insisted on the following points: I. The supervisor and commissioners of highways may agree with a plank road company, in writing, to be filed and recorded in the town clerk’s office, upon the compensation for taking and using any highway, &c. (Blatchford’s Gen. Statutes, 584, § 26, Laws of May 7, 1847.) Any plank road company may “ procure by agreement,” from the officers named in said 26th section, “ the right to take and use any part of any public highway necessary,” &c. (Blatchf. Gen. Stat. 591; § 1, Laws of Nov. 24, 1847.) This statute is general, empowering the supervisor and commissioners to make any agreement by which the company may procure the right to take any part of any highway. It refers to the act of May 7, 1847, to designate the officers empowered to make the agreement. The agreement was executed in the manner prescribed by statute, giving those officers power to make it—was in writing, and filed and recorded in the town clerk’s office. This was all the statute required, and was a full compliance with all the law on the subject, and renders the contract binding on all parties. The grant of power to the supervisor and commissioners to make such an agreement, necessarily implies and confers the power to enforce it upon those officers, or ZZie laio itself must be a nullity. (See Supervisor of Galway v. Stimson, 4 Hill, 136.) Again, 2 R. S. 473, § 92, expressly authorizes commissioners of highways to bring actions “ upon any contract lawfully made with them or their predecessors in office, in their official character, to enforce any duty enjoined by law to such officers, or the body which they represent-.” This action was correctly brought in the names of the supervisor and commissioners of the town officially. But the defendants have waived all objections, “ that plaintiffs have not legal capacity to sue,” or, “ that there is a defect of parties, plaintiffs,” by not demurring. (Code, § 144, subds. 2, 4; Id. § 148.) II. Plank road companies are prohibited by express statute from entering upon, taking and holding a public highway for their use, till they have acquired the right to do so, by the assessment of damages by jury, and their payment or tender and deposit ; (Blatchf. Gen. Stat. 581, § 11; Id. 584, § 26; Id. 585, §§ 28 and 30;) or till they have obtained the agreement, or license of the town officers, as provided by section 26 of law of May 7, 1847, and of section 1, law of November 24, 1847w (Blatchf. Stat. 591.) The company obtained such agreement or license from the town officers of Otsego; entered upon the public highways of Otsego, as provided by it ; used and occupied them from April till August, 1850, and till after they had constructed and finished the road and erected their gate, and received tolls for its use by the public; took and were in actual enjoyment of all the rights they could take by such agreement, without having obtained any such right under any other provisions of the statute. The order of the board of supervisors gave them no such right. Therefore they must have taken possession under -that agreement, and acted upon it. The court have so found as a question of fact, and that is conclusive. (Bloodgood v. M. & H. Railroad, 14 Wend. 56; Estes v. Kelsey, 8 id. 555, 558.) III. By entering into that contract with the town officers, acting upon it, and entering upon and taking possession of tha public highways of the town under it, the company is estopped from alleging title or right from any other source as against the town, their first grantor. (Jackson and others v. Hinman, 10 John. 292; Brant and others v. Livermore, Id. 358; Jackson and others v. Ayres, 14 Id. 224.) IV. The company had no right to violate the condition of this agreement, and then avail themselves of the void clause to avoid the contract or excuse its breach. “ The condition does not defeat the estate although it be broken, until entry by the grantor or his heirs, and when the grantor enters he is in as of his former estate.” (4 Kent’s Com. 2d ed. 126, 7, 8.) The right to abandon a contract, rests only in the party who has been guilty, of no fault, and by him it must be exercised in a reasonable time. (Chitty on Contracts, 742, and note 3; 1 U. S. Digest, 540, § 60, and cases cited.) On agreements to convey land on payment by vendee, and if vendee fail to pay, the contract to be absolutely void, and on failure to pay by vendee, held that an action lay to enforce the contract and compel payment. Such contracts being void only at the election of the grantor. So also, if the contract contain a general provision that if vendee fail to perform it shall be void. It is void only at the election of the vendor. (Canfield and others v. Wescott, 5 Cowen, 270, and cases cited in note A, Mancius v. Sergant, and Church v. Ayers.) V. “ Where an estate is granted upon condition, the taking possession of the land to which the condition is annexed, binds to the performance of the condition, even though such performance should be attended with loss.” (2 Cruise’s Digest, 26, §§ 15, 16, 17, and cases cited.) VI. The contract in this case was mutual. The town officers agree “ to and with” the plank road company, to grant and allow said company to take and use the public highways, &c.; and declares that it is executed on the express condition that no gate shall be erected, &>c. by the company. The company executed it with the town officers’. It was a contract fully executed by the parties, as they understood it, before any attempt to avoid it by the company. Its execution is full evidence of intention to be bound by it. (7 Cowen, 484.) As to mutuality, see Chitty on Con. 14 to 17 ; Carpenter v. Nixon, (5 Hill, 260, and case cited.) [MAJORITY — Selden, J.] Selden, J. The most important, among the numerous questions- this case presents, is, whether the supervisor and commissioners of highways of the town of Otsego had power to enter into the agreement which lies at the foundation of the suit. By section 26 of the act to provide for the incorporation of plank road companies, passed May 7,1847, these officers are authorized to agree with such companies “ upon the compensation and damages to be paid by said company, for taking and using any of the highways of the town ;" and by section 1 of the act in relation to plank road companies, passed November 24, 1847, such companies are authorized to “ procure by agreement,” from the same officers, “ the right to take and use any part of any public highway necessary for the construction,” &c. At first view, it might seem, that the power to procure by agreement” the right to use the necessary lands, must include the power to agree upon the terms upon which such right should be acquired. But there are many things to be considered before this conclusion is adopted as applicable to the present case. By a careful scrutiny, it will be seen, that section 1 of the act of November, 1847, was not designed either to repeal or "modify section 26 of the previous act. Under the first act, a plank road company, notwithstanding it might have agreed with the officers of a town upon the compensation to be paid for the use of any of the highways of such town, and might also have obtained by agreement the rght to all private lands along the line of its road, was ‘still required to apply to the board of supervisors for leave to lay out and construct its road, and thus to subject itself to all the delay and expense attending the appointment and action of commissioners to lay out the road. The officers of towns, although authorized to agree upon the amount of compensation for the use of- highways, were not authorized to grant the right to such use. Section T of the act of November, 1847, was plainly intended to remedy this inconvenience, and to relieve plank road companies from the unnecessary burden. The two sections, therefore, are to be taken together, in determining the extent of the powers conferred upon the supervisor and commissioners. Section 1 of the last act gives the power to grant the right to use the highways of the town, and section 26 of the former, to agree upon the amount of compensation. The two sections, when united, specifically confer these powers and no other. It is a general rule that public officers, acting under a statutory authority, must confine themselves strictly within the powers conferred by the act. This rule has been recognized and applied by the supreme court at general term, in the second district, in a case in principle not unlike the present. (See Webb v. Albertson, 4 Barb. S. C. R. 51.) It seems that the village of Greenport upon Long Island lies within the limits, and is a part of one of the towns' in the county of Suffolk. Some of the inhabitants of the village, being desirous to have one of the streets therein extended and opened, applied to the commissioners of highways of the town, who alone had power to make the improvement. The commissioners consented to do it, but took a bond from the applicants, to indemnify the town against the expenses ; and the action was upon this bond. Upon demurrer it was held, that the action would not lie; that the commissioners were authorized to lay out and open the road, if in their judgment the public convenience required it; but not, as the learned judge who delivered the opinion expresses it, “to be tampering with parties, and making conditions.” Much of the reasoning in that case is applicable to this. There are other objections to the .existence of the power exercised by the supervisor and commissioners of highways in this case, growing out of the provisions of the plank road acts themselves. The power to agree, that no gate shall be located within a given distance of a certain point, involves the power to agree where the gate shall be located. I can see no ground for distinguishing between these different exercises of power. But section 37 of the first plank road act provides, that the commissioners of highways of any town, whenever they, or a majority of them shall be of the opinion that the location of such gate is unjust to the public interest,” &c. may apply to the county court for an order to change the location. This is a power which may be exercised from time to time. Changes may occur in the highways of the town, rendering such an application necessary. If, however, the location of the gate is fixed by contract between the company and the town, this remedy is cut off. Because, if the plank road company is bound by such a contract, the town must be bound also. But there is a still stronger objection to the condition, annexed by the supervisor and commissioners in this case to their grant. It interferes with and changes the tenure by which the plank road company hold the right to the use of the highway as prescribed by statute. Sections 28 and 30 of the original act provide, that whenever the proceedings by the company, to acquire the right to use any lands or highways for the purpose of their road, shall be perfected, the company may enter upon and take and hold such lands, “ so long as the same shall be used for the purposes of such a roadand section 3 of the act of November, 1847, provides, that whenever any such company shall have procured by agreement, under the provisions of that act, the right to take and use the parts of any public highway, “ it shall possess the same rights and privileges,” &c. &c. as if the right had been acquired by the proceedings prescribed by the previous act. There is, therefore, a direct conflict between the condition annexed to the grant in this case, and the provisions of the plank road acts. The latter say, that whenever the company shall have acquired the right to use a highway, they may continue such use so long as its road shall continue. This condition says, that the right shall cease, if the condition is disregarded. I can see no answer to this objection. But conceding the agreement to be valid, the case presents the question, whether a bare naked condition, contained in a deed, unaccompanied by any words importing an undertaking to abide by or perform it, can be enforced as a covenant. If this action can be sustained, the validity of the agreement being admitted, then every condition inserted by the grantor in a deed creates a covenant on the part of the grantee, as •well as a condition because it is'impossible for an instrument to be more bald of any language importing an agreement to perform a condition, than the present. It is a little surprising that the cases on this subject, are not more numerous. The question seems to have rarely arisen, especially in modern times. It seems, however, to be settled by the older authorities. Littleton, in his work upon tenures, in treating of estates upon condition, says : “ Also, if the words were such; provided always that the aforesaid B. do pay, or cause to be paid, to the aforesaid A. such a rent, &c.; or these :• so that the said B. do pay, or cause to be paid, to the said A. such a rent, &c.; in these cases, without more saying, the feoffee hath but an estate upon condition; so as, if he doth not perform the condition, the feoffor and his heirs may enter.” Coke, in his commentary upon this passage, says : “ Our author putteth his case, when a proviso cometh alone. And so it is, if a man by indenture letteth lands for years, provided always, and it is covenanted and agreed, between the said parties, that the lessee should not alieneand it was adjudged, that this was a condition, by force of the proviso, and a covenant by force of the other words. (Coke Litt. 203 b.) There is a distinction, therefore, between the case of a naked condition, without covenant, and that of a condition connected with a covenant. Comyn says: “ But where words do not amount to an agreement, covenant does not lie; as if they are merely conditioned to defeat the estate.” (Com. Dig. tit. Covenant, A. 3.) Bacon asserts the same doctrine, and refers to the case of Geery v. Reason, (Cro. Car. 128 ; see Bac. Ab. tit. Covenant, A.) The case in Croke was this Greery, the plaintiff, had demised to Reason certain rooms in Bear alley, until midsummer, upon a rent of £6.13s. 4d. The lease contained the following clause: “Provided and upon condition that the said Reason shall gather the rents of other the plaintiff’s tenements, in Bear alley, reserved quarterly, and mentioned in a schedule, and pay the same within twenty days after every quarter dayand it is agreed, that the said Reason shall retain the rest of the benefit to be made -of the said rooms, over and above the said six pounds thirteen shillings and four pence per annum, for his pains in gathering up the said rents.” The plaintiff brought an action of covenant, for not collecting and paying over the rents mentioned in the schedule. The defendant demurred; and the court held, unanimously, that the clause in the lease did not constitute a covenant, but only a condition, upon the non-performance of which the estate was forfeited; and gave judgment for the defendant. It is clear from these authorities that there may be a condition without a covenant; and that where the language imports a condition merely, and there are no words importing an agreement, it cannot be enforced as a covenant, but the only remedy is through a forfeiture of the estate. This doctrine was repeatedly recognized by the late chancellor; although, in the cases before him, he held, that the clauses upon which the questions arose, contained covenants as well as conditions. In Livingston v. Stickles, (8 Paige, 402,) he says : “ The objection that the lease contains no covenant on the part of the lessee, or his assigns, to pay the tenth sale, so as to render them personally liable upon an alienation of the premises, with the consent of the lessor, does not appear to be well taken. If it were a mere condition, then it is evident the only remedy of the lessee would be by a proceeding against the purchaser to recover the premises, for a breach of the condition. But a clause of this kind may be so framed as to operate both as a covenant and as a condition.” Again, in Stuyvesant v. The Mayor &c. of N. Y., (11 Paige, 414,) the same question arose, and was treated in the same way. But upon principle', independent of all authority, it would seem impossible to come to any other conclusion. It by no means follows, because a grantee consents to take ah estate subject to a certain condition, that he also consents to obligate himself personally for the performance of the condition. Many cases might be imagined, in which one would be willing to risk, the forfeiture of the estate, while he would be altogether unwilling to incur the hazard, of a personal responsibility in addition. The doctrine which the plaintiffs in this case are driven to maintain is, that to assent to the condition is to assent to the personal liability; that the one involves the other. I can see no sufficient ground for such an assumption. The two things are essentially distinct, and involve risks different in nature as well as degree. How can it be said, then, that to assent to the one, is to assent to the other. The action must have failed upon this ground, had the agreement been valid. There is still another objection which, in my view, is equally fatal to the action in its present form. It is difficult to conceive upon what principle, independent of some express statutory authority, the supervisor and commissioners of highways of a town can unite in the prosecution of a suit in behalf of such town. There is no community of interest or of office between them. They cannot be said, in any proper sense, jointly to represent the town or its rights and interests. Their union as plaintiffs is incongruous and repugnant to the plainest principles pf law, unless authorized by some legislative enactment. Besides, neither jointly or separately can these officers, or either of them, sue in their own names, in behalf of their towns, except in those cases where they are expressly authorized by statute. A town is a political corporation, and suits in its behalf must be prosecuted in the name of the town. (Cornell and Clark v. The Town of Guilford, 1 Denio, 511.) But it is- supposed that see. 92, (2 R. S. 473,) which provides, that actions may be brought by supervisors and other officers, including commissioners of highways, “ upon any contract lawfully made with them or their predecessors, in their official character,” affords an authority for this action. It will be readily seen, however,' that the contract in this case is not such as is contemplated by the provision referred to. The statute does not say, contracts made by these officers in behalf of their towns, but with them, that is, in their names. It was intended to provide for cases where these officers, in the performance of their appropriate official duties, should take from others contracts running in terms to such officers by their names of office. Nothing of the kind exists here. There is no covenant or agreement running to these officers in terms. They, as the agents of the town, convey the right to use the highways upon a certain condition. It is virtually the act of the town through them. If any implied covenant arises upon the instrument, it is a covenant with the town, and must be enforced by and in the name of the town. It might be otherwise, if the instrument con-contained a covenant in express words, running in terms to the supervisors and commissioners. It is possible, though by no means clear, that in such a case the union as plaintiffs of these two separate, independent, quasi corporations, might, under the section referred to, taken either alone or in connection with sec. 113 of the code, be maintained. Taking this case, however, as it is, the action could not, I think, whatever view we might take of the contract, he supported in the name of the present plaintiffs. The record presents several minor points; but as either of those already considered is decisive of the case, I deem it unnecessary to notice the others. The judgment should be reversed. Denio, Johnson, Parker, Edwards and Allen, Js., were in favor of reversing the judgment on each of the grounds discussed in the foregoing opinion. Gardiner, Ch. J., delivered an opinion in favor of reversal on the first ground discussed in the opinion of Selden, J., and concurred in his conclusions on the others. Judgment reversed.