Misc.] County Court, Westchester County, August, 1896. the sheriff, the County Court of Kings county could make the necessary change in the judgment. But the relator has already served the maximum term of absolute imprisonment. I have no power to modify the sentence so that it shall conform to the provisions of section 484, Code of Criminal Procedure, and I am not certain that the court would have imposed the fine had it been understood that the relator could not be kept in state prison for nonpayment. For these reasons I think it proper that his absolute discharge should be ordered. I am confirmed in foregoing views as to the lack of power to impose imprisonment in state prison, and as to the propriety of directing the relator's absolute discharge, by the cases of Ex parte Kelly, 65 Cal. 154, and Ex parte Arras, 78 id. 304. Kelly was convicted and sentenced under section 243 of the California Penal Code, which makes battery a misdemeanor and punishable by fine not exceeding $1,000, or by imprisonment in the county jail not exceeding six months, or by both. Section 1446 of the Penal Code of that state is almost identical with the last sentence of section 484 of our Code of Criminal Procedure. It reads as follows: "A judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied in the proportion of one day's imprisonment for every dollar of the fine." As to the force of this section the court say: "This section of the statute certainly allowed a substituted mode of paying the fine, and it may well be styled a substituted punishment in case of nonpayment, qualified as to payment and discharge of the defendant as in the judgment entered in this case. "But this statute nowhere allows any addition to this substituted mode of payment. We look in vain to find any authority in any tribunal, in the Penal Code, or any other Codes, to annex to this substitution of incarceration for coin any other punishment. We find no power in the justice to add, as is done by the judgment, that defendant, while so imprisoned, perform labor on the streets or other public works of the city of Los Angeles. This portion of the judgment is clearly beyond and outside the jurisdiction of the tribunal which rendered it.” In the Arras case the question was as to the power of the court to impose imprisonment in state prison for nonpayment of a fine under the section of the Penal Code which imposed imprisonment Supreme Court, August, 1896. [Vol. 17. in state prison or in a county jail not exceeding two years, or a fine not exceeding $5,000, or both, for assault with a deadly weapon. It was held that " if a fine be imposed in addition to the sentence of imprisonment it is beyond the power of the court to adjudge that it be enforced by further imprisonment in the state prison," and that "a prisoner confined in the state prison after he has served the full term of imprisonment adjudged as a punishment, and who is being held and imprisoned at hard labor solely for the purpose of collecting a fine imposed as part of the punishment, will be discharged on habeas corpus." An order may be entered directing the relator's discharge. THE CENTRAL CROSSTOWN RAILROAD Co., Plaintiff, v. THE METROPOLITAN STREET RAILWAY Co., Defendant. Railroads (Supreme Court, New York Special Term, August, 1896.) Injunction against construction - Nuisance. Defendant, which operates a street railroad on West street in the city of New York, claims the right to lay a spur therefrom to the Christopher street ferry, which will run for 250 feet parallel to plaintiff's track, which has been in operation for many years. Held, that such action by defendant would constitute a public nuisance, causing special and peculiar injury to plaintiff; that It would be in violation of section 102 of the Railroad Law, and that plaintiff was entitled to an injunction to restrain it. ACTION for injunction. George Hoadly and Merrill & Rogers, for plaintiff. Elihu Root and S. B. Clarke for defendant. PRYOR, J. The adjudication in Forty-second, etc., R. R. Co. v. Thirty-fourth, etc., R. R. Co., 52 N. Y. Super. (20 Jones & S.) 252, sustains the right of the plaintiff to maintain this action on the ground that the diversion of traffic by a competing line is a special and peculiar injury from the public nuisance of an unauthorized railroad in a highway. Fanning v. Osborne, 102 N. Y. 441; Hussner v. R. R. Co., 114 id. 433; Flynn v. Taylor, 127 id. 596. Indeed, the exclusive occupancy of the highway Misc.] Supreme Court, August, 1896. between West street and the Hoboken ferry house, accorded to plaintiff by section 102, article IV, of the Railroad Law (White on Corporations, 315), involves, by necessary implication, a remedy to vindicate the right. A public nuisance is an infringement of a public right, but here is an invasion as well of plaintiff's private right; and ubi jus ibi remedium. Like v. McKinstry, 41 Barb. 186, 188. * * * The conclusion, however, proceeds on the assumption that the plaintiff's railroad is rightfully upon the space between West street and the ferry house. Of the validity of the proposition there can be no question. The franchise of plaintiff's predecessor in title authorized the construction of a surface railroad "to the Christopher Street Ferry." In Christopher Street, etc., R. R. Co. v. Central, etc., R. R. Co., Mr. Justice Van Brunt held expressly that this plaintiff " has a right to continue its line on tracks upon and across the said West street, and the space between the old and the new bulkhead lines at the foot of Christopher street to its terminus at the ferry house." And in People v. Central, etc., R. R. Co., the same learned judge again declared that the legislature did in terms and in fact authorize the building and operating of plaintiff's railroad "to the bulkhead line at the North river at the foot of Christopher street, wherever the said bulkhead line might be." Indeed, plaintiff's railroad, being a line of transportation from the East to the North river, possesses, from the very object and use of the enterprise, a right to convey passengers to the ferry house at each terminus. Being, therefore, lawfully in occupancy of the space in question, the controversy is whether the defendant be privileged to encroach with its railroad upon the same locality. By the section of the Railroad Law above cited, it is provided that "no street surface railroad corporation shall construct, extend or operate its road or tracks in that portion of any street, avenue, road or highway in which a street surface railroad is or shall be lawfully constructed without first obtaining * * * the consent of the corporation owning and maintaining the same." Forty-second, etc., R. R. Co. v. Thirty-fourth, etc., R. R. Co., 52 N. Y. Super Ct. 252; Matter of Thirty-fourth Street R. R. Co., 102 N. Y. 343. That the space in question is a street and public highway is conclusively settled by authority. Taylor v. Atlantic, etc., Ins. Co., 37 N. Y. 275, 283; Oceanic S. N. Co. v. Comp. Trans. Esp., 134 id. 461, 465. Hence, without plaintiff's consent, the defendant may not construct or maintain its railroad upon Supreme Court, August, 1896. [Vol. 17. the debatable ground. Forty-second, etc., R. R. Co. v. Thirtyfourth, etc., R. R. Co., supra; Matter of Thirty-fourth, etc., R. R. Co., supra. Other provisions of the Railroad Law (art. IV, §§ 90-110) likewise forbid the proposed extension of defendant's road. Authority for the projected extension defendant professes to find in the franchise of its predecessor, the Central Park, East & North River Company. But that franchise was to maintain and operate a railroad in certain streets, including West, "with the privilege of laying all necessary sidings, turnouts, connections and switches for the proper working and accommodation of the railroad in the specified streets, and to run over any tracks which might lie along the specified streets." Supposing the restrictions of the Railroad Law inapplicable to the extension, here, certainly, is no authority for a divergence and prolongation of defendant's road beyond West street, across the intervening space to the ferry. To call so incongruous and substantial an addition to defendant's railroad a mere adjunct and accessory of its authorized line involves a confusion of ideas and an abuse of language. McAboy v. Pittsburg, etc., R. R. Co., 107 Penn. St. 548. As the defendant does not pretend to found the right it claims to exercise upon the license of the dock department, I have no occasion to show what, indeed, is already apparent, that the defendant can derive from the dock department no authority to construct and operate this railroad across this bulkhead. Judgment for plaintiff, with costs. Matter of the Application of WILLIAM ELIAS et al. (Supreme Court, New York Special Term, August, 1896.) 1. Corporations - Elections — Eligibility. One who holds the legal title to stock, but has no beneficial interest therein, is ineligible, under section 20 of the General Corporation Law, to election as a director. A trustee who, in spite of the protests of his co-trustee, votes upon the estate stock in favor of himself as director, thereby disfranchising such stock, is guilty of a breach of trust, and will not be permitted to derive personal profit therefrom. Misc.] Supreme Court, August, 1896. APPLICATION to vacate the election of the respondent director of the Henry Elias Brewing Co. Henry Elias died in 1888. The petitioner, Catherine Elias, his widow, and the respondent, Edward Schweyer, are the surviving trustees under his will. The petitioner, William Elias, is his son. The testator owned at the time of his death a majority of the stock of the Henry Elias Brewing Company. His trustees were authorized to continue to hold this stock and were given unusual powers as to its disposition, with the discretion either to give to the petitioner, William Elias, his share of the estate when he reached the age of 25 or to withhold it from him so long as they saw fit, meantime paying him the income. The trustees still hold a majority of the stock of the par value of about $250,000 and of the estimated market value of about $750,000. The petitioners objected to the respondent voting for himself upon the estate stock at the last election. The stock was disfranchised because of the ballot of the respondent containing his name whilst that of his co-trustee contained another name. In that way the minority controlled the election. Samuel Untermeyer, for petitioners. Robert E. Deyo, opposed. PRYOR, J. In a summary proceeding, pursuant to section 27 of the General Corporation Law, I am to determine whether the respondent Schweyer was duly elected a director of the Henry Elias Brewing Company. If the respondent was disqualified for the office his election is a nullity (Matter of Newcomb, 42 N. Y. St. Repr. 442); and whether he was eligible depends upon the construction of section 20 of the Stock Corporation Law, providing that " the directors of every stock corporation shall be chosen from the stockholders * * * and if a director shall cease to be a stockholder his office shall become vacant." Thus the qualification attaches to the election of the officer as well as to the incumbency of the office. State v. Van Beek, 19 L. R. A. 622, 625. In the present proceeding the court is not concluded by the respondent's apparent title to the stock, but may institute an inquiry as to his real right and relation to the company. Strong v. Smith, 15 Hun, 222. At the time of his election the respondent held a registered certificate for five shares of stock, but the undisputed fact is that he |