Edmonds v. Abeel , 27 N.Y. Sup. Ct. 441 ( 1880 )

Learned, P. J.:

The payments were not voluntary. The plaintiff did not intend to pay more than six cents. When he handed a ten cent piece or a twenty-five cent piece to the defendant, it was in order that he might receive the change back ; and his intention was so expressed. That the defendant had informed him that ho should keep all but ten cents did not make the payment voluntary. If, for the purpose of paying six cents, the plaintiff had handed the defendant a dollar bill, and the defendant had informed him that if he did so he should keep the whole, that would not make a voluntary payment of the dollar. The plaintiff was bound to pay the ferriage. If, for the purpose of so doing, he handed to the defendant more than the proper amount, asking for the return of the change, there could be no voluntary payment except to the extent that ho expressed his desire to pay. (Hearsey v. Pruyn, 7 Johns., 179.) For, as is said by the plaintiff’s counsel, the taking of more than the legal rate of ferriage is in the nature of extortion, or like the taking of illegal fees by public officers, because the defendant was conducting a public franchise. The plaintiff had a right to cross, on paying the legal toll. To take more than that, against the plaintiff’s will, must make the party who takes the money liable to refund. The plaintiff did not. intend to pay more than six cents. If more was retained, the retention was against his will. He did not pay the ten, or the twenty-five cents ; he only handed such a piece of coin to the defendant, in order to pay six cents therefrom.

The defendant was liable, even though he was only the collector and the agent of Powers. (Griffin v. House, 18 Johns., 897; Ripley v. Gilston, 9 id., 201). Hearsey v. Pruyn (7 id., 179), was an action against a toll-gatherer of a bridge for taking excessive toll. The plaintiff, when he paid, called on a witness, in the presence of the defendant, to take notice that he was overcharged. The court held that this was enough to put the defendant on his guard, and they sustained the action against the toll-gatherer. In the present case the plaintiff did not pay voluntarily, and the defendant retained the money against the plaintiff’s will. The defendant cannot, therefore, escape liability, even though he has paid over the money to Powers which he unlawfully retained from the plaintiff.

The defendant, however, insists that ten cents is the legal rate of ferriage. It was proved that from 1818 down to 1873 the customary rate of ferriage had been six cents. By chapter 519, Laws of 1873, authority was given to increase the ferriage to not more than ten cents. From that time the ferriage was raised to ten cents. By chapter 92 of the Laws of 1875, the Law of 1873 was repealed. Thereupon the lawful ferriage would again be six cents, unless some authority should be shown to increase it. It would seem that, by sundry charters, to which it is not necessary to refer, the city of Hudson has had the power to establish and regulate ferries at this point. Whether such power is exclusive is a question which it is not necessary here to decide. The city has also the power to lease the ferry, under such charters, as it appears. In 1872 the city leased the ferry to Powers on an agreement, among other things contained in the lease, that he would not charge or receive any greater rate of ferriage “ than those now established by the city of Hudson and village of Athens, charged upon said ferry and contained in the schedule hereto annexed.” In that schedule the rate for a foot passenger is six cents ; and under that lease the defendant, as collector for Powers, took this ferriage.

.The defendant insists that the city of Hudson could not establish rates of toll by a contract. Whether it can or not, it is enough to say that the contract recognizes these rates as established, which must mean, as to Powers, lawfully established. It does not lie with Powers to deny that they had- been established, when bis lease acknowledges the fact. And the defendant claimed to act for Powers. Both, therefore, by the proof of the customary rate of ferriage for fifty years, and by the lease of Powers, it appears that the defendant had no right to collect more than six cents.

The judgment should be affirmed, with costs.

Present — LearNed, P. J., BoardmaN and Bocees, JJ.

Judgment affirmed, with costs.