People ex rel. Walker v. Babcock , 23 N.Y. Sup. Ct. 313 ( 1878 )

Potter, J.:

We think this order, from which this appeal is taken, was properly made. The remedy which the relator sought to avail himself of is exceptional and extraordinary and, as applicable to the facts in this case, without precedent. He asks this court, by its mandate, to compel the respondents to receive, carry and deliver glass for him, under the rigorous responsibility imposed upon common-carriers by the common law. The objections interposed by tlie respondent, to this extraordinary proceeding, are both technical and substantial. We do not deem it necessary to refer to but one or two of them, and not to discuss them at any length. The court will not issue the writ of mandamus to compel the performance of an act unless the relator has a clear and unquestioned right to have the specific act performed. (The People ex rel. Mott v. The Board of Supervisors of Greene Co., 64 N. Y., 600.)

We do not think the facts stated in the affidavits such as these— that the respondent, who has been engaged in the express business since 1854, carrying glass and other fragile articles, uniformly upon the terms expressed in the printed receipt offered to the relator and for the relator himself, for the last four years, and which is substantially the same as the terms on which six of the principal express companies have for a long time and still carry this class of wares, and have never publicly professed to carry otherwise— make a case of clear unquestioned right in the relator to have his glass carried and delivered under the strict and unqualified liability of the common-carrier.

But another requisite to the writ of mandamus is the incapacity of the common-law to afford an appropriate remedy for the enforcement of this clear right. (People ex rel. Tenth National Bank v. The Board of Apportionment, etc., 64 N. Y., 627; In re Shipley, 10 John., 484; The People ex rel. Isaac v. Allen Campbell, Com’r, decided by the Court of Appeals; not yet reported.)

We got an early impression from numerous cases running back a great many years, and still have it, that the common law afforded a party aggrieved by the unwarranted refusal of a common-carrier to receive, carry, and deliver his goods, a remedy, ample and appropriate, in an action to recover damages for such refusal.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

INGALLS, P, J., concurred in the result; DaNiels, J., taking no part.

Order affirmed, with ten dollars costs and disbursements.