Utica, July, 1840.-Pearson v. Williams' Adm'rs.

W. Betts, for defendants in error.

By the Court, BRONSON, J. The defendant, in consideration that the intestate sold him fourteen lots of land for the sum of twenty-one thousand dollars only, covenanted to do two things-first, to remove from the lots the surplus earth and stone above the corporation level, within a reasonable time; and second, to erect two brick houses upon the lots by a specified day; or, in default of erecting such houses, to pay the intestate four thousand dollars, when afterwards demanded. So far as this action is concerned, we may lay the first branch of the covenant, which relates to the surplus earth and stone, entirely out of view. It is a distinct stipulation, which cannot affect the remaining branch of the covenant.

The case then comes to this: The defendant, for a specified consideration, agreed that he would erect two brick houses on the lots by a certain day, or in default of doing so, would afterwards pay the intestate four thousand dol lars on demand. This was an optional agreement. The defendant had the choice of erecting the houses by the day; or of omitting to do so, and then paying the specified sum of money. He made his election by omitting to build within the time. The obligation to pay the four thousand dollars, thereupon became absolute; and the plaintiffs were, I think, entitled to recover that sum, with interest from the time of the demand.

This does not belong to the class of cases in which the question of liquidated damages has usually arisen. It will be found in most, if not all, of those cases, that there was an absolute agreement to do, or not to do, a particular act, followed by a stipulation in relation to the amount of damages in case of a breach; and in declaring upon the contract, the breach has been well assigned by alleging that the party did, or omitted to do, the particular act. But here, there is no absolute engagement to build the houses. It was optional with the defendant whether he would build them or

not; and there would have been no sufficient breach, if the plaintiffs [ *247 ] had stopped with alleging that the houses were not built. This is not a covenant to build, with a liquidation of the damages in case of nonperformance; but it is a covenant to build within a specified time, or afterwards to pay a sum of money. The money is not to be paid by way of damages for not building the houses; but is to be paid, if the houses are not built, as part of the contract price for the lots conveyed by the intes

tate.

Again: this is not simply an alternative covenant, to build, or pay a sum of money, within a specified period. If it were so, the question of damages would, perhaps, be open. But it is an agreement to build by a certain day, or afterwards pay a sum of money. When the day for building had gone VOL. XXIV.

24

Utica, July, 1840.-Pearson v. Williams' Adm'rs.

by, it was then merely a covenant to pay money. It was necessary, in declaring, to allege that the houses were not built-not, however, because that part of the contract was any longer in force-but by way of showing that the event had happened which the defendant agreed to pay the money. It had now become a simple covenant to pay money; and like other cases where there is an agreement to pay a gross sum of money, that sum, with interest from the time it became payable, forms the measure of damages.

Let us reverse the order of these stipulations, and suppose that the defendant had agreed to pay the intestate four thousand dollars by a particular day, or in default of so doing that he would afterwards build the houses. The defendant might then have discharged himself by the payment of the money by the day; or he might, at his election, suffer the day to pass, and then build the houses. If he did neither, the intestate would have an action; but the question of damages would turn wholly on the agreement to build. The enquiry would be, either how much was it worth to build, or how much has the intestate lost by the neglect. The day for paying the four thousand dollars having gone by, that clause of the covenant could have no possible influence upon the question of damages. The recovery might be either more or less than that sum. In short, the intestate would [248] recover damages for not building, whatever those damages might appear to be. So here taking the stipulations in the order in which they stand in the contract, the question of damages turns wholly on the agree ment to pay the four thousand dollars in a certain event. The event having happened, the plaintiffs are entitled to that sum, without any reference to the fact that the defendant might at one time have discharged himself by building the houses.

We have no right to call this sum of four thousand dollars a penalty, or say that it was inserted in the contract for the purpose of ensuring the erection of the houses. There is nothing in the covenant which will warrant such an inference. We are to read the covenant as the parties have made it; and then it appears that this sum of four thousand dollars was not inserted for the benefit of the intestate, but as a privilege to the defendant. The intestate had no option, but the defendant had. He was at liberty to discharge himself from the covenant by building the houses, if he deemed that course most for his interest or convenience; or he might elect, as he has done, to omit building and pay the money. So far as we can judge from his acts, he deems that course most beneficial to himself.

Whether the plaintiffs, or the persons whom they represent, will be better off if they get the money, than they would have been had the houses been put up, must, from the nature of the case, be a difficult question to decide; and that is one reason why the parties should be left to settle the matter for themselves, as they have done by the contract. But if we could see clearly,

Utica, July, 1840 Pearson v. Williams' Adm'rs.

that the building of the houses would have been of little importance to the plaintiffs, that could not alter the case. Astley v. Weldon, 2 Bos. & Pul. 346. Daikin v. Williams, 12 Wendell, 447.

Although I have said something on that subject, we are not, I think, at liberty to speculate upon the probable consequences of holding parties to their agreements. So long as they keep within the boundaries of the law, and practice no fraud, our business is to see that their contracts are enforced. We have no dispensing power.

Judgment affirmed.

*THE PEOPLE VS. THREE OF THE JUDGES OF SUFFOLK [*249]

COUNTY.

An order of commissioners of highways of a town in one of the counties of Long-Island, to clos a road on condition that proper swing-gates were made and supported, made on a petition for the discontinuance of the road, supported by the oaths of 12 freeholders that the road had become useless and unnecessary, is a void order: the commissioners not being authorized to make the order upon such application.

So, an order of commissioners subsequently made directing the gates and fence to be removed, and that the road should be of the width it had previous to being enclosed, is equally void: the first order being a nullity, required no act on the part of the commissioners to vacate it. So, an order of three judges, to whom an appeal was made from the second order, reversing so much thereof as directed the road to be restored to its original width, instead of ordering it to be opened only three rods wide, (the original width being from seven to nine rods,) was also held to be void; the judges in such case having no jurisdiction. The remedy of parties aggrieved under the second order of the commissioners, was not by appeal to the judges, but by impeaching it collaterally, or by certiorari directed to the commissioners.

The papers in this case were entitled, The Commissioners of Highways of the town of Southamp ton, v. The Judges of Suffolk County; it seems, they should have been entitled The People v. Three of the Judges of Suffolk County.

CERTIORARI. The commissioners of the town of Southampton, in the year 1833, on the petition of three individuals to have a certain road discontinued and closed up: which petition was supported by the oaths of twelve freeholders that the road had become useless and unnecessary as a public highway, made an order allowing the petitioners to close the road, provided good and easy swing gates were made and supported at the cost and charge of the petitioners the commissioners declaring the highway to be for the use of the public as a passing road. The road was of the width of from seven to nine rods. On the first day of May, 1838, the commissioners of highways of Southampton, for the time being, made an order whereby (after reciting the order of 1833 in respect to the road above referred to,) and that application had been made to them by sundry freeholders of the town, that

Utica, July, 1840.-The People v. The Judges of Suffolk.

the road might be made an open road, and that as such, it was [ *250] necessary for the public convenience, "directed the gates and fence to be removed, so that the highway be opened and unobstructed, and that the breadth of the road should be as it was before it was enclosed. On the 17th July, 1838, two of the petitioners for the order of 1833, appealed to three of the judges of Suffolk, from the order of 1st May, 1838, praying a reversal of the latter order, or at least of so much thereof, as di-. rected the road to be opened to the width it had, previous to its being clos ed, instead of limiting its width to three rods. In pursuance of this appeal, the judges met and viewed the premises, and after hearing the proofs and allegations of the parties, made an order, that so much of the order of 1st. May, as directed the road to be opened to the breadth it was of, before it was enclosed, instead of ordering it to be opened three rods wide, only, be reversed. A certiorari was issued to the judges, commanding them to send up the proceedings and on the coming in of the return, a motion was made to quash the order of the judges, on the ground that they had not jurisdiction under the highway laws relative to the counties on Long-Island, viz: the counties of Suffolk, Kings and Queens.

S. S. Gardiner, for plaintiffs in error.

A. T. Rose, for the defendants in error.

By the Court, COWEN, J. The order of 1833 was not made under the 93d section of the act regulating highways, &c. in the counties of Suffolk, Queens and Kings. 3 R. S. 243, 255, 2d ed. Sess. Laws of 1830, ch. 56, p. 42. That section authorizes the commissioners, where a highway leads to any public landing, mill or meadow, through any person's land, to consent in writing that such person may hang good easy swinging gates on such highway, and keep the same in repair at his or her cost and charge. The application was not for a written consent; it was by three persons, not calling themselves owners of the land through which the road ran, and with

them were joined twelve sworn freeholders, all soliciting a discon[*251] tinuance of the road. Nor does it any where appear in the proceedings that the road led to any public landing, mill or meadow. On the contrary, the application was under and in the language of the 64th section for a discontinuance of the old road, on the ground that it had become useless and unnecessary. All that the commissioners had power to do was to consider and decide upon that application. They stated in their order that they had, on the application as being one to close or shut up the road, viewed the premises, and ordered and allowed it to be closed, provided good, easy swing gates be made and supported, &c. The order does not fol.

Utica, July, 1840.-The People v. The Judges of Suffolk.

low the statute. It is loose in describing the object sought by the applica tion, and neither ordered the road to be continued or discontinued. Instead of that, it ordered the petitioners to close the road in a qualified manner, by erecting gates the road still to be used by the public.

In considering this proceeding, we can look to the order only and the application to which it refers; and the best consideration I have been enabled to bestow upon it, has led me to think it was merely void. Under the 64th section, the commissioners had no power except to consider and decide upon the application, i. e. simply to adjudge that the road should be discontinued, or that it should not. Had they stopped with saying it should be closed, we might possibly have holden the order equivalent to an adjudication that the road should be discontinued. We might have regarded the order as a substantial mode of granting the application to which it referred. We might have gone upon the intention, though it is always better for judicial officers executing powers specifically conferred by a statute, to follow its words. Here there is no room, however, to speculate on the meaning. The order declares that they did not mean to discontinue the road, but sought to bring the case under the 93d section; and the main question debated by learned counsel is, whether it was under that or the 64th section. I think it was authorized by neither; that therefore the road still continued open, and might have been travelled as it was before. This conclusion will be seen to accord with the following authorities. Davison v. Gill, 1 East, 64. The King v. Kenyon, 9 Dowl. & Ryl. 694; 6 [252] Barn. & Cress. 640, S. C. The King v. Crewe, 3 Dowl. & Ryl. 6. The same v. The Justices of Kent, 1 Barn. & Cress. 168, being S. C. with that in 3 Dowl. & Ryl. The King v. The Justices of Somersetshire, 8 Dowl. &. Ryl. 733; 5 Barn. & Cress. 316, S. C.

Then came the order of the first of May, 1838. This expressly recited the former order of 1833, as one intended to enclose the road by hanging easy swinging gates, &c. and leaving a passage through. That was according to the true intent; and the last accordingly concludes, by ordering that the said gates and fence be removed, so that the said highway be opened and unobstructed, and of the same breadth it was before enclosed. Of course, this order too was merely void. It could have no operation; for it professed to order a thing which the law had already done; to open a road which was already open.

Then from this mere nullity, an appeal is instituted to the judges, of which I think they could have no cognizance in any view. If it were a proceeding under section 93, to remove gates which had ceased to be proper, then it is conceded that no appeal lay; that the only section giving an appeal (§ 66) does not cover the consent to erect or direction to remove gates under the 93d section. On the other hand, not being an order which the com