agrees to sever the connection between its wires and those of the Citizens' Company. No rule of law or policy requires one public service corporation to submit its property to the use of another. It may make or end such traffic arrangements at its option. If the contract is objectionable, it is because of the clause limiting the right of the Northwestern Company to extend its business beyond the territory defined therein.

It should be noticed that this is not a case where by its charter a transportation corporation is to extend its lines between two points and then agrees with a rival not to construct it for the whole distance. Such a contract might well be ultra vires. Nor, under the circumstances disclosed, does the contract seem to be an unreasonable oneone that would unduly limit the power of the Northwestern Company to serve the public. A telephone corporation need not do business. throughout the state. The incorporators may specify and limit the territory to be occupied. Where, as in the case of a corporation organized under the laws of Delaware, such territory need not be specified, there seems to be no public reason against the corporation doing precisely what our statutes permit and require incorporators to do. Further, the territory assigned by this contract to the Northwestern Company, in view of its authorized capital and the cost of construction, seems practically all it ever can or will occupy. The limitation also constitutes no breach of faith with the public. Under its charter no one could insist that the lines of this company should be extended. No contract with the state is violated if it confines its operations to Carthage, or to some portion of Carthage. It is difficult to specify the "evident grounds" for anticipating public injury from this agreement. The bare question is therefore presented whether, under any circumstances, a telephone corporation may, where such a course is not expressly or impliedly prohibited by its charter, where its charter permits it to do practically any business anywhere at any time, agree to limit a part of its activities within a certain district. I think it is clear that an individual or an ordinary business corporation may do so. The law permits contracts in partial restraint of trade, if they are reasonable—if they be such as only to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. It is always to be remembered that the court should not interfere arbitrarily with freedom of contract. To justify its action, apprehension of danger to public interests should rest on clear grounds. In some tangible form the contract should threaten the public welfare. Diamond Match Company v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464.

I think it is also clear that the same rule applies to a semipublic corporation, if it does not possess the power of eminent domain, and if no rights over the highways of the state are conferred upon it. Leslie v. Lorillard, 110 N. Y. 519, 18 N. E. 363, 1 L. R. A. 456; Lough v. Outerbridge, 143 N. Y. 271, 38 N. E. 292, 25 L. R. A. 674, 42 Am. St. Rep. 712. It may be very doubtful whether the Northwestern Company has that power. No corporation, foreign or domestic, may condemn property or may occupy the public highways, unless the right is conferred upon it by the Legislature. A statute claimed to grant the

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right must be strictly construed. The Northwestern Company is a foreign corporation. Section 100 of the transportation corporations law (Laws 1890, p. 1152, c. 566) regulates the creation of domestic telegraph and telephone companies. Section 101 provides how such companies may extend their lines. Section 102 permits "such corporation" to erect its structures upon public highways or over private lands upon making compensation. If "such a corporation" means a corporation referred to in section 100, this act does not confer the right of eminent domain upon foreign corporations.

Sections 15 and 16 of the general corporation law (Laws 1892, pp. 1805, 1806, c. 687), provide for certificates authorizing foreign corporations to do business in the state. Section 17 provides that such corporations, doing business here, may acquire such real property in this state as may be necessary for their corporate purposes "in the same manner as a domestic corporation." This provision is hardly broad enough to confer the right of eminent domain. Nor am I willing to hold that it is conferred by the implied authority given by these sections to foreign corporations, when their certificates are filed, to do business in this state, although such a rule seems to be adopted in Missouri and Illinois. Southern Illinois & Missouri Bridge Company v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301.

I have been unable to discover any other statutes bearing on the subject. Nor do I find any decisions in point. In Telephone Company v. Marsh, 96 App. Div. 122, 89 N. Y. Supp. 79, Mr. Justice Chester refers to the transportation corporations law as giving such companies "organized under it" the power conferred by section 102. In New York, N. H. & H. R. R. Co. v. Welsh, 143 N. Y. 411, 38 N. E. 378, 42 Am. St. Rep. 734, it was held that foreign railroad corporations might condemn real estate, but solely because the various railroad laws gave that right to "all existing railroad corporations" and to "every railroad corporation." Possibly the Legislature may have withheld this power of set purpose. It may have been deemed unwise to encourage the formation of such corporations under laws perhaps less stringent than those prevailing here.

But I think the same result would be reached, even if we assume that the Northwestern Company possessed the power of eminent domain. It is claimed that a corporation vested with these powers owes certain duties to the public, greater or different from those of a line of steamers, for instance, which may be a common carrier, but which may not condemn land; that the state has a greater right to supervise its contracts; that certain contracts, perfectly legal between two steamship companies, or between one and its patrons, would be void as in restraint of trade or tending to monopoly if made between two railroad companies, or between one and its patrons. All this may be true. It may also be true that such a corporation, or any corporation, may not disable itself from the performance of those functions which were the consideration of the grant to it of its charter. But, when the further claim is made that the rule "that contracts in partial restraint of trade are not invalid does not apply to corporations in public business in which the public are interested" (Pingrey), or that, whenever the Legislature has authorized any corporation to condemn

the lands of others in order to carry on its business, the courts will regard this as a legislative declaration that it is against public policy to permit any restriction whatever of such business by private contract (West Virginia Transportation Company v. Ohio P. Lines Company, 22 W. Va. 617, 46 Am. Rep. 527), I dissent. This question has been discussed more fully in Central New York Telephone & Telegraph Company v. Averill, 105 N. Y. Supp. 378, a decision handed down by this court.

Briefly, contracts in restraint of trade are void if they are so unreasonable as unduly to interfere with the rights of the public. The test is not whether the corporation has the right of eminent domain, or whether its property is impressed with a semipublic use, but whether or not such rights are unduly affected. It may well be that a semipublic corporation might be unable to make contracts that would be perfectly. valid if made by an individual or by a private corporation. But the reason is not because certain powers are conferred upon the former, but because, by the very nature of its operations, public interests are more likely to be affected. So long as the charter is not violated-so long as the public are not injured-any fair and reasonable contract of such a character is perfectly valid. Each case that arises must be decided upon its own merits and upon the particular circumstances developed.

As has been said, the contract in question here seems a reasonable one. The further question whether, assuming this particular clause to be illegal, the whole contract must be held void, need not, therefore, be discussed. W. U. Tel. Co. v. B. & S. Ry. Co. (C. C.) 11 Fed. 1.

An order may be entered granting the motion herein so far as the issue of the 67 shares of stock is concerned. As to all of the other matters the motion is denied.

Ordered accordingly.

(121 App. Div. 708.)

WEINSTEIN v. SINGER MFG. CO.

(Supreme Court, Appellate Division, First Department. November 8, 1907.) 1. Master and Servant-Torts of ServanT-LIABILITY Of Master-Scope of EMPLOYMENT.

Where employés are acting under written contracts with their employer, in which their duties are distinctly specified, the authority of one being limited to selling and collecting for sewing machines, and the repossessing and delivering to the employer of such machines as it might direct, and the employment of the other being that of a managing salesman at the employer's store, with such other services as should be required of him, but not authorized to contract debts for the employer, as to bring suit without express authority, the employer is not liable for a trespass committed by them in retaking a machine which they had not been directed to retake.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1217-1225, 1229.]

2. WITNESSES-CROSS-EXAMINATION-QUESTIONS.

Where a witness had testified as to a conversation he had had with defendant's salesman during which a person was introduced to him as a superintendent, it was competent on cross-examination to ask him if the salesman had introduced him to some one else without characterizing the person as a superintendent.

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Appeal from Trial Term. Action by Sofi Weinstein against the Singer Manufacturing Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed, and new trial ordered.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, SCOTT, and LAMBERT, JJ.

Henry A. Prince, for appellant.
Alfred S. Katzenstein, for respondent.

INGRAHAM, J. The defendant made a contract with the plaintiff's husband, whereby the defendant rented to plaintiff's husband a sewing machine valued at $60, for which he agreed to pay $5 on the delivery of the machine, which was accepted as payment for the first week's rent, and then at the rate of $1 per week, payable in advance on each Monday thereafter for 43 weeks. It was further provided that if default should be made in any of the payments, or if plaintiff's husband should sell or offer to sell, or to remove or attempt to remove, the machine from his residence without the consent of the defendant, he would return the machine to the defendant, and authorized the defendant or its agents to enter his premises wherever said machine might be and take and carry the same away, and waived notice of sale. This contract was made by one P. Burg, as salesman, for the defendant, and he subsequently collected $1 for a number of weeks.

The plaintiff's husband testified that he called at the store of the defendant on Eighth avenue in the city of New York on the Monday before the machine was taken away, and saw Burg, who referred him to the superintendent; that the latter said to him, "You owe some money," to which the witness answered that he could not pay because he was out of work, whereupon the superintendent said, "If you don't pay that money, the balance of your due, to-day, to-morrow you will your machine have taken away;" that he would send Mr. Burg to take away the machine the next day. The plaintiff then testified that on the day after this interview Burg came to her house and demanded the money that was due; that she told him she had no money, and asked him to call in the evening, when she would get him some; that Burg went into the front room, and the witness stood in the doorway and tried to stop him; that Burg then took hold of her by her right arm and gave her a push back; that Burg then told another man who was with him to hurry up and take the machine, and as they were taking it out she stood in the doorway, when they gave her a "bunk with the corner of the machine into the stomach"; that the two men, Burg and his assistant, were then carrying the machine out, and Burg got hold of her by the sleeve and threw her; that she was pregnant, and there resulted a miscarriage. Upon cross-examination plaintiff described the occurrence as follows:

"And then I stood firm, so that they could not take the machine out, and I went and got hold of it, on the corner, so they wouldn't take the machine out. When I held the machine at the corner, he pulled me away-Mr. Burg. That was not the right arm that went before. At that time he pulled me

away, and the machine struck me in the belly. Now I told you that is when he was trying to take out the machine."

Burg was then called as a witness for plaintiff, and testified that he was in the employ of the defendant and leased this machine to the plaintiff's husband; that he was at that time collecting and leasing machines; that he went to the plaintiff's place on the 12th of April, 1904, with one Combs, and took the machine away; that he took the machine away without anybody telling him to, and subsequently delivered it to the managing salesman of the defendant. Burg then produced his contract of employment with the defendant, which provided that Burg was to act as salesman and collector for the defendant and in consideration of these services was to receive a commission; that Burg should locate any machines to the satisfaction of the company's agent or manager without expense to the company, and also "to repossess and deliver to the company any machine they may direct, without additional compensation." On cross-examination Burg testified that plaintiff's husband moved several times after renting the machine and he was unable to find him; that he finally located him in Fifth street; that during this time plaintiff's husband had paid nothing for the machine-had broken his agreement with the company by moving and failing to pay the installments.

On behalf of the defendant Burg testified that he went to this house with Combs, who was the defendant's managing salesman; that he took the machine out into the hall, when the plaintiff hollered "Fire!" which caused a number of persons to gather; that he never touched the plaintiff at all; that the machine, which was about 2 feet 6 inches high, was dragged out and not raised from the floor; that the machine never struck the plaintiff, and that neither he nor Combs touched her; that he never saw plaintiff lying on the floor; that after the machine was partly out of the room she took hold of it, but that he pulled it away from her; that Combs did not touch the plaintiff, and she was not in any way assaulted. Combs corroborated this testimony.

The court then submitted the case to the jury, leaving it to them to say whether there was an assault perpetrated. If they found an assault had been committed, they were then to determine by whom it was committed, and whether it was committed by Burg in the course of his employment, leaving it to the jury to say whether he was a mere collector, and charging that they could not fix the responsibility on the defendant for these acts unless the proof warranted the jury in concluding that he was clothed with authority to take the machine; but if an assault was perpetrated by Burg, and the jury found that he was nothing more than a mere collector, that there was then no responsibility upon this defendant. The defendant excepted to the charge to the effect that, if the acts of Burg or Combs were in the course of their employment, the defendant was responsible, to which the court said:

"I reiterate that charge, gentlemen. I charge you that the wrongful act, if any, on the part of either of these employés, of itself is not sufficient to mulct the defendant; but you must go further, and find that such wrongful act, if any, was perpetrated while in the course of their employment."