The City of New York, Respondent, v. New Jersey and Staten Island Ferry Company, Appellant

The City of New York, Respondent, v. New Jersey and Staten Island Ferry Company, Appellant. Second Department, June 9, 1916. Municipal corporations —city of Hew York — suit to enjoin unauthorized operating of ferry —interstate ferry. The city of Hew York may maintain a suit in equity to enjoin a ferry company from using boats to transport persons and property without authority, although such act is made a misdemeanor by section 870 of the Penal Law. The city may maintain such suit although one of the terminals of the ferry is in the State of Hew Jersey. Appeal by the defendant, New Jersey and Staten Island Ferry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of November, 1915, upon a decision of the court after a trial at the Kings County Special Term. The judgment enjoined the defendant, its agents and officers from using or employing boats of any kind for the transportation of persons, vehicles, animals and goods from or to Hollands Hook, in Richmond county, and awarded damages to the plaintiff. Bertram G. Eadie [Guy 0. Walser with him on the brief], for the appellant. William E. C. Mayer [Terence Earley, Harold N. White-house and Lamar Hardy with him on the brief], for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: The judgment should be affirmed upon the opinion of Mr. Justice Kapper at Special Term (92 Mise. Rep. 40). It would be superfluous to add to or to amplify his discussion of the principal question. The plaintiff is not barred from equitable relief because the unauthorized maintenance of a ferry is. made a misdemeanor by section 870 of the Penal Law. We are cited to Woollcott v. Shubert (169 App. Div. 194), wherein is discussed and approved the rule of Almy v. Harris (5 Johns. 175). Almy v. Harris (supra) is limited in Jordan & Skaneateles Plankroad Co. v. Morley (23 N. Y. 554), so that the case is not applicable to the case at bar. It is there said': “ It is only where a new right is given, which the party would not be entitled to but for the statute, that the remedy afforded by the statute is exclusive.” Of course, the defendant was afforded no right, actual or apparent, by section 870 of the Penal Law. The circumstance that a terminus of the ferry is in the State of New Jersey does not affect the right involved in the case at bar. (People v. Babcock, 11 Wend. 586; Columbia Delaware Bridge Co. v. Geisse, 38 N. J. Law, 39; Conway v. Taylor, 1 Black [U. S.], 603.) Stapleton, Mills, Rich and Putnam, JJ., concurred. Judgment affirmed, with costs.