Hyperlawhypertext legal database Smith v. Gold & Stock Telegraph Co. 6 N.Y. St. Rep. 110

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Smith v. Gold & Stock Telegraph Co.

6 N.Y. St. Rep. 110 Court N.Y. Gen. Term Decision date 1886-12-14 English

Delivered by Pratt, J.

Contents

Majority

p. 110
Lewis H. Smith, Resp’t, v. The Gold and Stock Telegraph Company and the Western Union Telegraph Company, App’lts.
(Supreme Court, General Term, Second Department,
Filed December 14, 1886.)

Headnote

1. Corporation — When subject to same obligations as natural PERSONS.
In an action brought by plaintiff, who was a stock broker, to restrain the defendants from removing one of their “ stock tickers ” from his office which had been placed there under a contract on plaintiff’s part to pay a certain monthly rental: Held, that when a corporation engages in a business concerning the performance of which its charter is silent, it is not freed from the obligations which ordinarily attach to a natural person, engaging in such occupation.
2. Same—Duty when engaged in public business to serve all alike.
When one is engaged in a business, public in its nature, he must, if public policy requires, serve the public impartially, without discrimination between parties applying who comply with reasonable regulations.
3. Same—Regulations—When void as unreasonable.
A clause in the company’s contract permitting them to discontinue the service when in their judgment a breach of conditions has been lind, is not a reasonable regulation, and affords no defense to an action to ’•estrain them from removing the “ticker.”
4. Same—Injunction—Defense.
It is no defense to an action for an injunction restaining defendant from removing said “ ticker,” that an action at law for damages^would lie in plaintiff’s favor. The fact that defendant is able and v illing to pay for the liberty of infringing upon the contract, is not a ground for refusing an injunction pending a suit.
Appeal from an .order of the Kings county special term continuing a temporary injunction during the pendency of this action.
This action was brought to restrain the defendants from removing from the office of the plaintiff a “ stock ticker,” belonging to and operated by the Gold and Stock Telegraph Company, and from in any manner interfering with plaintiff’s receipt of the quotations of the New York Stock Exchange.
Dülon & Swayne, for app’lts; J. W. Hawes, for resp’t.

It has been settled for hundreds of years that an inn-keeper is bound to receive the guest who applies for accommodations. So is it well settled that a common carrier must receive and transport goods offered him for that purpose, impartially and without discrimination between parties applying.

These obligations do not rest on contract, but on the

p. 111
ground that when one is engaged in a business, public in its nature, he must, if public policy requires, serve the public impartially.

The occasions for the application of this familiar principle are by no means diminished by the formation of corporations which carry on a great part of the business of the country.

And in applying these rules to a corporation, the charter of the corporation is not solely to be consulted in arriving at the measure of its obligations to the public. When the charter provides that a corporation shall engage in some specified public occupation, no doubt a reference thereto will be an easy way to establish its obligation to perform such service. But we do not accede to the doctrine that, when engaged in a business concerning the performance of which its charter is silent, a corporation is freed from the obligations which ordinarily attach to a natural person engaging in such occupation.

Had defendants in the present action answered that collecting and distributing commercial intelligence being foreign to the objects for which they are incorporated, they had in consequence abandoned that branch of their business and withdrawn their “ tickers ” from all offices except the plaintiff’s, we should not hold that they could be compelled to carry on the business for his benefit; but so long as collecting and supplying quotations is carried on by them, as it is conceded to be at present, they should render equal and impartial service to those who comply with reasonable regulations.

What regulations are reasonable may not in all cases be easy to determine. But there need be no hesitation in saying that the clause in their contract permitting them to discontinue the service, when in their judgment, a breach of conditions has been had, is not a reasonable regulation and affords no defense to this action. No man can be judge in his own case, and to justify defendants in refusing to perform service, there must be a reason that the court can pronounce sufficient.

Nor is it a defense to the action that an action at law for damages would lie in plaintiff’s favor.

It is easy to see that accurate proof of the amount of damage sustained would be impracticable; and where a right is clear, the fact that a defendant is able and willing to pay for the liberty of infringing upon it is not a very satisfactory ground for refusing an injunction.

The order continuing the injunction must be affirmed with costs and disbursements.

Present—Barnard, P. J., Dykman and Pratt, JJ.