and 140 New York State Reporter

were, for apparent and sufficient reasons, held illegal and void as being in restraint of trade; but the reasons forming the basis of such decisions do not exist in the case at bar. The contract challenged in this action contains no element rendering it void, either as being in restraint of trade or as creating a monopoly; and, being free from the vices condemned by the cases referred to, it is not affected or controlled by their decisions. United States v. E. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed. 325, and similar cases, were actions brought by the Attorney General under the provisions of the federal statutes, the provisions of which controlled their disposition. Montague v. Lowry, 115 Fed. 27, 52 C. C. A. 621, and kindred cases, were brought under the provisions of section 7 of the federal statutes (Act July 2, 1890, c. 647, 26 Stat. 210 [U. S. Comp. St. 1901, p. 3202]) by persons injured in business through acts declared unlawful by such statutes, to recover the threefold damages by such section authorized. Curran v. Galen, 152 N. Y. 53, 46 N. E. 297, 37 L. R. A. 802, 57 Am. St. Rep. 496, and similar cases, cited from the Massachusetts and New Jersey Reports, were questions involving the rights of company members of labor organizations to agree with others not to employ or to retain in their employ persons refusing to connect themselves with organized labor, which agreement is in this state made a misdemeanor by section 17la of the Penal Code, and was consequently held unlawful. The principles involved in such cases have no application in the case at bar. People v. North River Sugar Refining Co., 121 N. Y. 582, 24 N. E. 834, 9 L. R. A. 33, 18 Am. St. Rep. 843, and People v. Milk Exchange, 145 N. Y. 267, 39 N. E. 1062, 27 L. R. A. 437, 45 Am. St. Rep. 609, were actions to dissolve corporations for acts committed in violation of law. Matter of Davies, 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855, was a proceeding by the Attorney General, under section 3 of the Donnelly act, to procure the information therein provided for. People v. Sheldon, 139 N. Y. 251, 34 N. E. 785, 23 L. R. A. 221, 36 Am. St. Rep. 690, and People v. Duke, 44 N. Y. Supp. 336, 19 Misc. Rep. 292, were criminal cases involving the question of the indictability of the acts on which their prosecution was based.

In neither the Park nor Straus Cases is there any suggestion that a manufacturer or producer does not possess the absolute right of dominion and control over his own products, or that he may not unite with other manufacturers or producers to exercise their legal rights in such manner as may be beneficial to their common interests, and not for an unlawful purpose. In his opinion in the Park Case Judge Martin said. that the action was not brought to compel the manufacturer against his will or disposition to sell his goods to the plaintiffs; and Judge Bartlett, in the Straus Case, says:

"The refusal to maintain trade relations with a given individual is an inherent right which every person in business may exercise, for reasons he deems sufficient or for no reason whatever."

And, although this extract is contained in a dissenting opinion, its correctness is not challenged or questioned by the other members of the court. The Park Case upheld a trade arrangement between manufacturers and dealers in proprietary medicines, throughout the United

States, because of the fact that it involved only the exercise of this inherent right. In the Straus Case the combination was between independent proprietors, representing 90 per cent. of the book trade business in the United States on the one hand, and many independent booksellers and jobbers on the other, and provided for excluding from the business of selling books all persons refusing to be bound by the rules of the association. In the case at bar there is no allegation of any combination of competitors, but that the sole parties to the arrangement were a manufacturing corporation and producer and a sales or distributing agent; and while it is alleged that the manufacturing corporation controls the business of other manufacturers and producers, in the absence of averment to the contrary it must be presumed that such control was lawful and for lawful purposes. No agreement is alleged which could result in anything that either might not lawfully do singly, and the only interference with the business of others arising from the carrying out of such agreement was such as would have been the result of the exercise of the unquestionable right of either to refuse to sell its goods to any dealer. It is not alleged in the case at bar, as was established in the Straus Case, that sales prices were fixed by the American Tobacco Company, or that either defendant undertakes to interfere in any manner with or control the prices or terms upon which the products of other producers controlled by them are sold. Further, the element of threats, intimidation, and blacklisting, present in the Straus Case, were all withdrawn from the case at bar, and are not before us for consideration. These facts materially distinguish the Straus Case, and divest it of any controlling effect as to the disposition of the case under consideration.

While the plaintiffs allege an injury resulting from the acts of the defendants in refusing longer to sell them their products with which they had theretofore been furnished, such injury and attendant damages flow directly from the breach of the alleged contract with the American Tobacco Company to furnish such products at all times, and adequate and complete damages are recoverable therefor in an action. at law, which excludes equitable cognizance of such facts as a sole cause of action. We concur with the learned trial justice that whatever vice may exist in the conditions and results presented by the complaint. does not arise from the averred facts, and that the pleading does not state facts sufficient to constitute a cause of action, and was for that reason properly dismissed.

The judgment must be affirmed, with costs.

All concur.

GAYNOR, J. (concurring). While there are allegations in the complaint of many corporations, the only defendants are the corporations the American Tobacco Company and the Metropolitan Tobacco Company, and three officers thereof. Out of the masses of confused and useless verbiage of the complaint, it is possible with painful diligence to pick out allegations that the defendant the American Tobacco Company is accociated with and controls a large number of corporations which, like it, are engaged in the manufacture and sale of the products of leaf tobacco; that these associated corporations control and market more than 90 per cent. of such products in this country and in the city

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of New York; that no dealer or jobber in the tobacco business can successfully do business without obtaining and handling the products of the said associated corporations; that the defendant the Metropolitan Tobacco Company is not a manufacturer of tobacco, but is appointed by the said associated corporations their sole agent to sell their products in the city of New York, and is acting as such, and that such products can be purchased of it alone by dealers in tobacco products in the said city, the said corporations refusing to sell to them except through their said agent; and that the said agent, "with the knowledge and consent of the other defendants," refuses to sell any of the said products to the plaintiffs, who are jobbers and dealers in tobacco products in the said city. There is no allegation that any of the associated corporations is a party to such refusal, except the defendant the American Tobacco Company. Now, the American Tobacco Company, like any corporation or person, may lawfully refuse to sell its goods to the plaintiffs or to any one, for any reason or no reason— at all events unless it has such a monopoly that sufficient tobacco goods can be got of no one else, which is not alleged. If, however, it should combine with other corporations or persons to do so, that would be a combination in restraint of trade and unlawful. Straus v. Am. Pub. Ass'n, 177 N. Y. 473, 69 N. E. 1107, 64 L. R. A. 701, 101 Am. St. Rep. 819. The trouble with this complaint is that there is no allegation of such a combination. There is a mass of allegations of evidence (which a pleading should never contain) and other matter, which the diligent pleader may have meant in their sum total or effect for such an allegation, but they do not eke it out, try how you will. The allegation that the American Tobacco Company controls all of the other associated corporations does not dispense with the necessity of such an allegation. Though it may control them, that which is alleged as its act is not their act. Each of them is a legal entity and must in law act for itself. If the American Tobacco Company holds a majority of the stock of each of the other associated companies, and in that way, i. e., by the voting power of a majority of stock, controls each corporation, they are still separate legal entities which must act for themselves. That one corporation or person owns all or a majority of the stock of several corporations does not legally combine them. Each is still a separate entity and subject to the law against combination in restraint of trade, or any illegal combination. There can be no combination of such corporations except by the act or acquiescence of each, the very same as in the case of corporations without such a dominant stockholder common to all. The notion that several corporations with such a common dominant stockholder are thereby legally united, and free to act together in restraint of trade, is a false one. This complaint is lacking in any allegation of a combination of the corporations alleged, to refuse to sell goods to the plaintiffs. There must be such an allegation; and then it could be made out by evidence of the separate act of each, or the authorized act of the defendant the American Tobacco Company, or of the defendant the Metropolitan Tobacco Company, as the representative of all. The trouble is the lack of an allegation under which such evidence would be admissible.

The judgment must be affirmed.

(121 App. Div. 296.)

NEWTON v. CITY OF DUNKIRK et al.

(Supreme Court, Appellate Division, Fourth Department. September 25, 1907.)

1. DEDICATION-INTENT-ACCEPTANCE.

To constitute an effective and irrevocable dedication of private property for a public highway, there must be an intention on the part of the owner to so dedicate and an unequivocal acceptance of the same by or on behalf of the public, and whether a dedication has been consummated in a particular case is to be determined from the acts and declarations of the parties and all the attending circumstances.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 4, 8, 10, 11.]

2. SAME-SUFFICIENCY OF EVIDENCE.

In an action to restrain a city from building a sidewalk, etc., evidence considered, and held sufficient to sustain a finding that a certain street had been dedicated as a public highway by plaintiff's predecessor in interest, notwithstanding he had put up signs declaring the street private property, and that the street had been accepted as such by the public.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Dedication, §§ 8587.]

Appeal from Judgment on Report of Referee.

Action by George M. Newton, individually and as administrator, etc., against the city of Dunkirk and others. From an adverse judgment, plaintiff appeals. Affirmed.

The action was commenced on the 27th day of July, 1903, to restrain the city of Dunkirk from consummating its plan to build a sidewalk upon Newton street, in said city, and assess a portion of the cost of such construction upon the plaintiff, who is the owner of a considerable portion of the property abutting thereon, and particularly to have it adjudged that Newton street, so-called, is not a public street, that it has never been dedicated to the public by the plaintiff or his predecessors in interest or accepted by the defendant city, and therefore that the city has no jurisdiction over the same. The referee found adversely to the plaintiff upon each of the issues, all of which fully appears by his findings of fact and conclusions of law. Practically the only question presented by this appeal is whether or not the findings are supported by evidence, or are contrary to or against the weight of the evidence.

Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.

Murray & Hurlbert (W. S. Thrasher, of counsel), for appellant. Thomas P. Heffernan (George E. Towne, of counsel), for respond

ents.

MCLENNAN, P. J. It is well settled by the law of this state that, in order to constitute an effective and irrevocable dedication of private property for a public highway, there must be an intention on the part of the owner to so dedicate and an unequivocal acceptance of the same by or on behalf of the public. Whether or not a dedication has been consummated in a particular case is to be determined from the acts and declarations of the parties and all the attending circumstances. Where conflicting, the force and effect of each should be considered. and a conclusion reached in accordance with the weight of the evidence. In the case of Cook v. Harris et al., 61 N. Y. 448, the rule

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is stated in the opinion of the court, per Earl, J., as follows (pages 453, 454):

"Land may be dedicated to the use of the public for a highway without any writing; and a dedication once made and accepted cannot be revoked. It rests upon the doctrine of estoppel in pais. The dedication and acceptance may be proved by the acts of the parties and the circumstances of the case. The owner's acts and declarations should be such as to manifest an intention to abandon or devote his property to the specific public use. In the case of a highway, the public must accept the highway, and before such acceptance the dedication may be revoked. Such acceptance may be proved by long public use, or by the positive acts of the public authorities in recognizing and adopting the highway. No particular length of time is essential to make a dedication valid and irrevocable. The dedication and acceptance may both occur on a single day. All that is needed in any case is room for the estoppel to operate."

In the case of Flack v. Village of Green Island, 122 N. Y. 107, 25 N. E. 267, a large number of cases are cited in which many of the facts and circumstances which may be considered in determining whether a dedication and acceptance has occurred are referred to. In Pomfrey v. Saratoga Springs, 104 N. Y. 459, 11 N. E. 43, it was said:

"The intention of the owner to dedicate is the essential thing; and this is to be found in facts and circumstances of each particular case."

Dillon, in his work on Municipal Corporations (section 636), says: "Where a plot is made and recorded, the requisite intention is generally indisputable."

At section 640, the same author also says:

"A sale of lots with reference to such plat or describing lots as bounded by streets will amount to an immediate and irrevocable dedication of the latter, binding upon both the vendor and vendee."

In the case of Hunter v. Trustees of Sandy Hill, 6 Hill, 407, it was held that lapse of time is not an essential ingredient, but the dedication may be established by acts on the part of the owner and the public unequivocal in their character, though occurring on a single day. "Long continued and uninterrupted use of land by the public, however, furnishes strong evidence of dedication." In Holdane v. Trustees of Cold Spring, 21 N. Y. 474, 479, it is said:

"To complete the dedication of a highway, if there has been no formal act of acceptance by public authority, the acceptance may be made by common user as a highway of the land dedicated."

Dillon, in his work on Municipal Corporations (section 642), says: "Acceptance may be express and appear of record, or it may be implied from repairs made and ordered or knowingly paid for by the authority which has the legal power to adopt the street or highway, or from long user by the public."

In the case at bar, the learned referee, after considering all the facts and circumstances disclosed by the evidence, concluded that the land in question, which is occupied by Newton street, had been dedicated as a public highway by the plaintiff and his predecessors in interest, and that it had been accepted as such by the public. We think that such findings of fact on the part of the referee cannot be said to be against the weight of the evidence.