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(No. 74.)

By Attorney-General against a company assuming to exer

cise corporate powers."

SUPREME COURT - CITY AND COUNTY OF NEW-YORK.

The People of tbe State of New York, by their Attorney-General,

agt.
James Bowen, James F. Freeborn, William

H. Edwardø, Rufus F. Andrews, John
Callaghan, Charles Spear, Isaac M. Marsh,
Joba 8. Platt, Charles W. Baker, Hugh
Smith, William McDermott and Isaac H.
Cady.

The People of the State of New-York, by Ogden Hoffman, their Attorney-General, complain of the abovenamed defendants, and show to this court:

First. That the abovenamed defendants have associated themselves together under the designation and name of "The Metropolitan Gas Light Company of the City of New-York,” unlawfully claiming to be a corporation, and by the name aforesaid are unlawfully acting as such pretended corporation, and have, without right or authority, usurped the franchise or privilege of a corporation within the city and county aforesaid.

Second. That the said defendants give out and pretend that they bave become and are duly incorporated, under and in pursuance of an act of the Legislature of the State of New-York, entitled, “ An act to incorporate the Metropolitan Gas Light Company of the City of New-York," passed April 17th, 1855 ; whereas these plaintiffs aver, as they are advised and believe, that the said act of legislature is unconstitutional and void, and that the said defendants

See sections 430, 432, code.

have taken, and could take, no right, privilege or franchise in virtue of the provisions thereof."

Third. These plaintiffs aver and charge, as they are advised and believe, that the said act was passed with the view and for the purpose of enabling the said defendants, and such persons as might become associated with them, under the name and pretended right of a corporation, to acquire a monopoly or exclusive right to manufacture and sell gas for lighting within the city and county aforesaid.

Fourth. That, for upwards of twenty years past, divers persons and corporations have been engaged in the business of manufacturing and selling gas for lighting streets, squares, buildings and other premises in said city, and elsewhere within this state. That said business has become greatly extended, and large investments of capital have been made, and are still making in the same, owing to the large and increasing demand for illuminating gas for the purposes aforesaid. That said business is one of great profit and advantage, not only to those engaged therein, but to the citizens and inhabitants of the said city, and of other cities and villages within this state, requiring and using the said illuminating gas for the purposes aforesaid. That said business of manufacturing and selling gas is, and ought of common right to be, free to all who may choose to engage therein, for the common benefit and profit of the citizens of this state, and that the same cannot, under the constitution of this state, be conferred as an exclusive privilege on any persons or incorporations whatsoever.

Fifth. That said business is most advantageously prosecuted in densely populated cities and large villages, where great numbers of persons may be supplied within a contiguous district. That such supplies of illuminating gas

The parts of the complaint in italic, it will be observed, are averments of mere legal conclusions, and are therefore superfluous.

are and have been usually conducted by pipes or mains laid under ground through and along the streets and highways intersecting such cities or villages, and without being 80 conducted along said streets and highways said business cannot be profitably or advantageously carried on. That divers persons and corporations have, within the city and county aforesaid, and in divers other cities and villages in this state, applied for, and from time to time obtained from the corporate authorities thereof, the right and privilege of laying their said pipes or mains for conducting their said illuminating gas in and along such streets and highways. That three incorporated companies have obtained such privilege within the city of New-York aforesaid, and two of such companies, under such authority, have for many years exercised and used the said right and privilege, and have been for many years, and still are, conducting the said business of manufacturing and distributing gas for lighting.

Sixth. That the only power or privilege sought to be conferred on the said defendants by the act last aforesaid, not capable of being enjoyed under the provisions of the general act entitled “An act to authorize the formation of gas light companies,” passed February 6th, 1848, is that of the right to obtain from the two boards of the common council of said city of New-York an exclusive use of the streets, highways and squares within said city, for the purpose of laying their pipes or mains for conducting their said gas in said city, whereby the said companies now using the said streets, highways and squares, for the purpose of conducting their gas as aforesaid, will be deprived of and excluded from the right they now enjoy in the same, and all persons and corporations whatsoever would be excluded from carrying on the said business in competition with said defendants.

Seventh. That said power or privilege so attempted to be conferred on said defendants is an unlawful monopoly, injurious to the people of this state, and cannot, under the constitution of this state, be granted or created.

Eighth. That the granting and creating of said monopoly is the only object sought to be attained by the said special act of incorporation, and for the sake whereof the said special act was enacted; wherefore the same is in violation of the constitution, and null and void.

Ninth. That the said defendants, as such pretended corporation, have assumed to make the said defendant James Bowen the pretended president, and by their said president have made application to the said two boards of the common council of said city for the right or privilege which by the said act the said two boards are sought to be authorized to confer upon said defendants. And the said defendants, as such pretended corporation, are prosecuting their said application before the said two boards with intent to obtain and exercise said power or privilege.

Wherefore these plaintiffs pray judgment against the said defendants, and that the said act, entitled “An act to incorporate the Metropolitian Gas Light Company of the City of New-York,” may be adjudged to be in violation of the constitution of this state, and null and void; and that the said defendants may be adjudged to have unlawfully assumed and usurped the franchise of being a corporation, and to have acted as a corporation, without legal authority or right, and that they may be adjudged to pay the costs of this action.

0. HOFFMAN,

Attorney-General. Leave to bring the foregoing action is hereby granted. December 7th, 1855.

T. W. CLERKE,

Justice of Supreme Court.

(No. 75.)

Against a person unlawfully exercising the duties of a public

office which another is entitled to fill. (See Code, 9 432.)

SUPREME COURT-CITY AND COUNTY OF NEW-YORK.

The People of the State of New York, upon the relation of Henry E. Davies,

agt. Edward P. Cowles.

The People of the State of New-York, on the relation of Henry E. Davies, plaintiffs, by Ogden Hoffman, their Attorney-General, complain of Edward P. Cowles, defendant, and say:

That the office of justice of the Supreme Court of the State of New-York has heretofore been, and still is, a public office of great trust and preëminence within the said state; and that Edward P. Cowles, of the city and county of New-York, without any legal warrant, authority or right whatsoever, has for the space of one day or more last past, and since the 3d day of December, 1855, held, used and exercised the said office of justice of the Supreme Court of the State of New-York, and still does hold, use and exercise the same within the State of NewYork, and since that day aforesaid, and without legal warrant or authority has claimed and received and enjoyed all the rights, franchises, fees and emoluments belonging or appertaining to the said office; which rights and franchises the said Edward P. Cowles has usurped and unlawfully held and exercised, and still does unlawfully hold and exercise, within the State of New-York, to the great damage of the people thereof.

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