Opinion
June 9, 1916.
Bertram G. Eadie [ Guy O. Walser with him on the brief], for the appellant.
William E.C. Mayer [ Terence Farley, Harold N. Whitehouse and Lamar Hardy with him on the brief], for the respondent.
The judgment should be affirmed upon the opinion of Mr. Justice KAPPER at Special Term ( 92 Misc. 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.