ne aise bier era erent earn See eens : ae Sy ae fecamnyt ee eee een See See ee en ra Banh aes: Rees ae me Fae, Dial ee ft cot tse paianatieets a Hes tities - | i eat BB eue a a eliguacage: aes are ia athe A _ Bait) KFN 5345 R43 Age 69 = 2 Cornell Lam School Hibrary CORNELL UslVEaoiTY SEP 20 1910 | russe LAW ‘LIBRARY. . uMsey on ations RUMSEY ON CORPORATIONS CONTAINING GENERAL CORPORATION LAW, STOCK CORPORATION LAW, BUSI- NESS CORPORATIONS LAW, MEMBERSHIP CORPORATIONS LAW, JOINT STOCK ASSOCIATIONS LAW, TRANSPORTATION COR- PORATIONS LAW, RAILROAD LAW, RAPID TRANSIT ACT, TAX LAW AS RELATING TO CORPORATIONS, CONDEMNATION LAW, GENERAL CONSTRUCTION LAW, RELIGIOUS CORPORATIONS LAW, AND SECTIONS OF THE CODE OF CIVIL PRO- CEDURE AND PENAL LAW RELATING TO CORPORATIONS, COMPRISING A PORTION OF THE CONSOL- IDATED LAWS, INCLUDING AMENDMENTS AND ANNOTATION TO DATE JUDSON : S EEusey OF THE BUFFALO BAR ; LECTURER IN THE BUFFALO LAW SCHOOL BANKS & COMPANY ALBANY 1909 BANKS & COMPANY. GENERAL CORPORATION LAW. CHAPTER 23 OF THE CONSOLIDATED LAWS. ARTICLE 1. 2 3. 4 5 6. oO 10. 11. 12. 13. 14. Short title; classification; definitions (§§ 1-3). . General provisions (§§ 4—44). Change of name (§§ 60-65). . Sale of corporate real property (§§ 70-76). . Judicial supervision of corporation and of the officers and members thereof (§§ 90-92). Action for sequestration, action for dissolution and action to enforce individual liability of officers and members of corporation (§§ 100-115). : . Action to annul corporation (§§ 130-136). . Action to dissolve moneyed corporation (§§ 150-161). . Proceedings , for voluntary dissolution of corporation (§§ 170-195), A Dissolution of stock corporatién without judicial pro- ceedings (§§ 220, 221). Powers, duties and liabilities of receivers of corpora- tion (§§ 230-278). Provisions applicable to two or more of the foregoing proceedings or actions (§§ 300-316). Alteration and repeal of charter of corporation (§§ 320, 321). Laws repealed; construction; when to take effect (§§ 330-332). ARTICLE 1. SHORT TITLE; CLASSIFICATION ; DEFINITIONS. Szcrion 1. Short title. 2. Classification of corporations. 3. Definitions. Corporation Law. $ 1. Short title. This chapter shall be known as the “General Corporation Law.” Amended by L. 1892, ch. 687. 1 GENERAL CoRPpoRATION Law. IN GuNBRAL.—In the revision of the corporation laws, it appears to have been the purpose to include in the General Corporation Law provisions which apply to corporations generally; in the Stock Corporation Law provisions relating to Stock Corporations; and in the Business Corporation Law, the particular provis- jons affecting that class of corporations. Adams y. Wallace, 82 App. Div. 117, 81 N. Y. Supp. 848. The General Corporation Law, the Stock Corporation Law and the Banking Law, constitute a connected scheme of legislation on the subject of corporations. Hirshfeld v. Bopp, 145 N. Y. 84; Gause v. Boldt, 49 Misc. 340, 99 N. Y. Supp. 442. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Existence, Directors, Filing of Certificate, Organization Tax, and Fees, see Annotatiin under Business Corporation Law, sect. 2, post. § 2. Classification of corporations. A corporation shall be either, 1. A municipal corporation, 2. A stock corporation, or 3. A non-stock corporation. A stock corporation shall be either 1. A moneyed corporation, 2. A railroad or other transportation corporation, or 3. A business corporation. A non-stock corporation shall be either, 1. A religious corporation, 2. A membership corporation, or 3. Any corporation other than a stock corporation. A reference in a general law to a class of corporations described in accordance with this classification shall include all corporations theretofore formed belonging to such class. Added by L. 1892, ch. 687. Matter under mixed and transportation corpo- rations was omitted in the consolidation. § 3. Definitions. A “municipal corporation ” includes a county, town, school district, village and city and any other territorial division of the state estab- lished by law with powers of local government. 2. A “stock corporation” is a corporation having a capital stock divided into shares, and which is authorized by law to distribute to the holders thereof dividends or shares of the surplus profits of the cor- poration. A corporation is not a stock corporation because of having issued certificates called certificates of stock, but which are in fact merely certificates of membership, and which is not authorized by law to distribute to its members any dividends or share of profits arising from the operations of the corporation. 2 GENERAL Corporation Law. CoRPORATION Law. 3. The term “non-stock corporation” includes every corporation other than a stock corporation. 4. A “moneyed corporation” is a corporation formed under or subject to the banking or the insurance law. 5. A “domestic corporation” is a corporation incorporated by or under the laws of the state or colony of New York. Every cor- peration which is not a domestic corporation is a foreign corporation, except as provided by the code of civil procedure for the purpose of construing such code. 6. The term “ directors,’ when used in relation to corporations, shall include trustees or other persons, by whatever name known, duly appointed or designated to manage the affairs of the corporation. ?. The term “certificate of incorporation” shall include articles of association or any other written instruments required by law to be filed, to effect the incorporation of a corporation, including a certified copy of an original certificate of incorporation filed for such purpose in pursuance of law. 8. The term “member of a corporation ” shall include every person having a right to vote at a meeting of the corporation for the elec- tion of directors, other than a person having a right to vote only upon a proxy. 9. The term “ office of a corporation” means its principal office within the state, or principal place of business within the state if it has no principal office therein. 10. The term “business of a corporation,” when used with ref- erence to a non-stock corporation, includes the operations for the conduct of which it is incorporated. 11. The term “corporate law” or “Jaws,” when used in any law forming a part of the consolidation of the general laws of the state of which this chapter is a part, means the general statutes of this state relating to corporations included in such consolidation. As amended by L. 1892, ch. 687, and L. 1895, ch. 672, sect. 1. CORPORATION aS CITIZEN.—A corporation is not a “citizen” within the mean- ing of ch. 1, sec. 2, art. 4 of the Federal constitution, which declares that “ citizens of each state shall be entitled to all privileges and immunities of citizens, in the several states’. Paul v. Virginia, 8 Wall. (U. S.) 168; Pembrina Min. Co. v. Pennsylvania, 125 U. S. 181. SEoTION 13. 14. 15. 16. 1%. 18. 19. 20. 21. 22. 23. 24. 25. 26. a7. 28. 29. 30. 31. 32. 33. 34. GENERAL Corporation Law. ARTICLE 2. GENERAL PROVISIONS. . Qualifications of incorporators. Filing and recording certificates of incorporation. . Corporate names. . Amended and supplemental certificates. . Lost or destroyed certificates. . Certificate and other papers as evidence; evidence of consolidation. . Limitation of powers; provisions of certificate. . Grant of general powers. . Enlargement of limitations upon the amount of the property of non-stock corporations. Acquisition of additional real property. Acquisition of:property without the state. Certificate of authority of a foreign corporation. Proof to be filed before granting certificate. Reincorporation of foreign moneyed corporations. Papers to be filed upon reincorporation. When reincorporation effective and effect thereof. Acquisition of real property in this state by certain foreign corporations. Acquisition by foreign corporations of real property in this state. Prohibition of banking powers. Qualification of members as voters. Cumulative voting. Voting trust agreements. Proxies. Challenges. Effect of failure to elect directors. Mode of calling special election of directors. Mode of conducting special election of directors. Qualification of voters and canvass of votes at special election. Powers of supreme court respecting elections. Stay of proceedings in: actions collusively brought. Quorum of directors and powers of majority. 4 GenERaL Corporation Law. 35. Directors as trustees in case of dissolution. 36. Forfeiture for non-user. 37. Extension of corporate existence. 38. Revival of corporate existence. 39. Approval of certificates of extension or revival; when required. 40. Extension when stock is owned by another corporation. 41. Effect of extension. 42. When notice of lapse of time unnecessary. 43. As to acts of directors. 44. Political contributions prohibited ; penalty. § 4. Qualifications of incorporators. A certificate of incorporation must be executed by natural persons, who must be of full age, and at least two-thirds of them must be citizens of the United States and one of them a resident of this state. This section shall not apply to a corporation formed by the reincor- poration or consolidation of existing corporations, or to the reorgan- ization of a corporation upon the sale of the property and franchises of a previously existing corporation or otherwise. Added by ch. 687, L. 1892, as amended by sect. 1, ch. 672, L. 1895. IN GENDR4‘L.—The qualifications imposed by this section exclude corporations, partnerships, minors and persons acting in a representative capacity from becoming incorporators. Since May, 1895, one incorporator, instead of a majority, must be a resident of the state. SIGNATURE BY AGHNT.—Incorporators may sign the articles of incorporation by duly authorized agents. Matter of New York, L. & W. R. Co., 99 N. Y. 12. § 5. Filing and recording certificates of incorporation. 1. Every certificate of incorporation including the corporate name or title and every amended or supplemental certificate and every certificate which alters the provisions of any certificate of incorpora- tion or any amended or supplemental certificate hereafter executed, shall be in the English language, and except as otherwise provided . by law, shall be filed in the office of the secretary of state, and shall be by him duly recorded and indexed in books specially provided therefor, and a certified copy of such certificate or amended or supplemental certificate with a certificate of the secretary of state of such filing and record, or a duplicate original of such certificate or amended or supplemental certificate shall be filed and similarly re- corded and indexed in the office of the clerk of the county in which the office of the corporation is to be located, or, if it be a non-stock corporation, and such county be not determined upon at the time of executing the certificate of incorporation, in such county clerk’s office as the judge approving the certificate shall direct. All taxes required by law to be paid before or upon incorporation and the fees 5 GeneraL Corporation Law. ~ for filing and recording such certificate must be paid before filing. No corporation shall exercise any corporate powers or privileges until such taxes and fees have been paid. 2. Whenever under any law now or heretofore in force the certifi- cate of incorporation of any corporation other than a stock corpora- tion was or is required to be filed in more than one public office, a certified copy of such certificate so filed in any one of such public offices may be filed in such other office with the like effect as if the original had been duly filed therein, provided, however, that no rights accrued prior to the filing of such copy shall be impaired or affected thereby, provided also, that such filing of a copy shall not cause a duplication or similarity of corporate names in violation of the next succeeding section. (Subd. 1) As amended by L. 1892, ch. 687; L. 1895, ch. 672, sec. 1, and L. 1902, ch. 289, sec. 1. (Subd. 2) L. 1906, ch. 581, sec. 1. The words “of a re- ligious, cemetery, moneyed, municipal or fire department corporation,” have been omitted, and the words “as otherwise provided by law’”’, inserted. ACKNOWLEDGMENT.—The certificate of incorporation should not be acknowl- edged before one of the incorporators signing the same. People ex rel. Erie R. Co. v. Board of Ry. Comm’rs, 105 App. Div. 273, 98 N. Y. Supp. 584. NECESSITY OF FILING CERTIFICATD.—Merely signing articles is insufficient to effect incorporation ; filing is essential. Burt v. Farrar, 24 Barb. 518. A de jure corporation does net exist until the certificate of incorporation is filed as required by the statute. Childs v. Smith, 46 N. Y. 34, 38 How. Pr. 328; Matter of New York Cable R. Co., 109 N. Y. 832; Emery v. De Peyster, 77 App. Div. 65, 78 N. Y. Supp. 1056; Lamming v. Galusha, 81 Hun 247, 30 N. Y. Supp. 767, affirmed 151 N. Y. 648 mem. The filing is necessary to create a de jure corporation which can successfully maintain itself against an inquiry on the part of the state. Childs vy. Smith, 46 N. Y. 34. The failure to file in the office of the County Clerk of the county in which the office of the corporation is to be located, a certified copy of the certificate or a duplicate original thereof, makes the act of incorporation incomplete. Wmery v. DePeyster, 77 App. Div. 65, 78 N. Y. Supp. 1056. In Card v. Moore, 68 App. Div. 327, 74 N. Y. Supp. 18, affirmed 173 N. Y. 598 mem., the court held that under sec. 1944 Conn. Gen. L., the filing of a cer- tificate in the office of the Secretary of State is a condition precedent to the ex- istence of a corporation, and that the filing of such certificate in the office of the Town Clerk is not sufficient. User and a colorable creation may establish a corporation de facto. Card vy. Moore, 68 App. Div. 327, 74 N. ¥. Supp. 18, aff'd 173 N. Y. 598 mem. Railroad Co. vy. Cary, 26 N. Y. 75. But user alone is insufficient. Welch v. Old Dominion Min. & R. Co., 10 N. Y. Supp. 174. Filing of a certificate In the office of the County Clerk and user will raise a presumption of incorporation, without proof of filing in the office of the Secretary of State. Georgeson v. Caffrey, 71 Hun 472, 24 N. Y. Supp. 971. A trustee can take no advantage of the failure to file a duplicate in the office of the County Clerk where the original has been filed with the Secretary of State and corporate rights have been exercised thereunder. DeWitt v. Hastings, 40 N. Y. Super. Ct. (8 J. & 8.) 463. To prove the existence of a defacto corporation, it is necessary to show that there is a law under which the corporation might be organized, an attempt to organize it, and that corporate powerg have been exercised. Emery v. De Peyster, 77 App. Div. 65, 78 N. Y. Supp. 1056. 6 GenreraL Corporation Law. The question of due organization is one of law co be determined at the suit of the state only, and one over which a court of equity has no jurisdiction. Doyle v. Peerless Petroleum Co., 44 Barb. 239. EFFECT OF FAILURD TO FILO CERTIFICATH.—It would seem that the failure to file a copy of the certificate in the office of the County Clerk does not make the incorporators liable as partners. Raisbeck v. Oesterricher, 4 Abb. N. C. 444; Georgeson v. Caffrey, 71 Hun 472, 24 N. Y. Supp. 971; Merchants’ Natl. Bk. v. Pendleton, 55 Hun 579, 9 N. Y. Supp. 46, aff'd 129 N. Y. 662 mem. Fay vy. Noble, 7 Cush. (Mass.) 188. Duty oF PuBLIC OFFICER TO FIL CpRTIFICATH.—The Secretary of State is required to file a certificate for the organization of a corporation, only when the incorporators bring themselves within the purview of the statute. People ex rel. Blossom v. Nelson, 46 N. Y. 477; People ex rel. Barrey v. Whalen, 119 App. Div. 749, 104 N. Y. Supp. 555, aff'd 189 N. Y. 560 mem. : And he has a right to pass upon the question of the form of the certificate, and as to whether the incorporators are entitled to have the same filed under the statute under which they attempted to organize. People ex rel. Davenport vy. Rice, 68 Hun 24, 22 N. Y. Supp. 631. Thus, a corporation organized “to establish and create a helpful opportunity for thrift among cash purchasers upon their individual and family expenditures, by providing for commissions from tradesmen on cash sales, which are to benefit, through the company, the purchasers,” cannot compel the Sec- retary of State to file its certificate under a statute relating to clubs and societies, since its purposes are really of a business nature. People ex rel. Davenport vy. Rice, 68 Hun 24, 22 N. Y. Supp. 631. COMPELLING FILING.—/Mandamus is the proper remedy for the unwarranted refusal of the Secretary of State to file a certificate. People ex rel. Hickemeyer Field Co. vy. Rice, 138 N. Y. 614; People ex rel. New York Phone Co. v. Rice, 57 Hun 486, 11 N. Y. Supp. 249, aff'd 128 N. ¥. 591 mem. People ex rel. Fairchild v. Preston, 140 N. Y. 549. / But he will not be compelled by mandamus to file a certificate until it is shown that the law has been complied with in the selection of a name. State v. McGrath, 5 8. W. 29. Court orders to be served upon the Secretary of State can be granted only at a term of the Supreme Court held in the Third Judicial Department. Sec. 605 of the Code of Civil Procedure. bs FnEs AND ORGANIZATION Tax.—With reference to these subjects, see annotation under Business Corporation Law, sec. 2, post 1. § 6. Corporate names. 1. No certificate of incorporation of a proposed corporation having the same name as a corporation authorized to do business under the laws of this state, or a name so nearly resembling it as to be calcu- lated to deceive, shall be filed or recorded in any office for the pur- pose of effecting its incorporation, or of authorizing it to do business in this state. A corporation formed by the reincorporation, reorgan- ization or consolidation of other corporations or upon the sale of the property or franchises of a corporation, may have the same name as the corporation or one of the corporations to whose franchises it has succeeded. No corporation shall be hereafter organized under the laws of this state, with the word “ trust,” “bank,” “banking,” “ in- surance,” “assurance,” “indemnity,” “guarantee,” “ guaranty,” “title,” “savings,” “investment,” “loan” or “benefit” as part of its name, except a corporation formed under the banking law or the insurance law. q Generat Corporation Law. 2. No corporation, society or association, whether now existing or hereafter organized under or by virtue of the laws of this state, shall ever employ the words “Lucretia Mott” to designate, describe or name any hospital, infirmary or dispensary, or any part thereof, or any similar institution. (Subd. 1) As amended by L. 1892, ch. 687; L. 1895, ch. 672, sec. 1; L. 1900, ch. 704, sec. 1; L. 1902, ch. 9, sec. 1, and L. 1907, ch. 115, sec. 1. (Subd. 2). L. 1892, ch. 19, sec. 4. In GrNERAL—An amendment to this section passed in 1902 prohibits a foreign corporation from doing business in the state under the same corporate name as that adopted by a domestic corporation, and prohibits a domestic corporation from using the same title as that under which a foreign corporation obtained a certificate to do business in the state. The consolidation of two corporations into one, does not warrant the use of the name of either as a substitute for the corporate name. Scarsdale Pub. Co. v. Carter, 63 Misc. 271, 116 N. Y. Supp. 731. A corporation with the name “Scarsdale Publishing Company—The Colonial Press’ has no right to use the name “The Colonial Press” in signing contracts, and contracts so signed are not binding on the corporation. Scarsdale Pub. Co. v. Carter, supra. On the right of «a corporation to reincorporate under its present name, see People ex rel. U. S. Grand Lodge v. Payn, 161 N. Y. 229. INFRINGEMENT OF CORPORATE NAMpS.—A corporate title is entitled to the same protection as u trade-mark. Amoskeag Mfg. Co. v. Garner, 54 How. Pr. 297; Scars- dale Pub. Co. v. Carter, 63 Misc. 271, 116 N. Y. Supp. 731; State vy. McGrath, 92 Mo. 355. The right which a man has to use his own name in his own business will not justify him in permitting a corporation to use his name in carrying on a business under a title similar to that adopted by another corporation doing a similar business. De Long vy. De Long Hook & Eye Co., 89 Hun 399, 35 N. Y. Supp. 509. NaMgES SIMILAR.—In the following cases the names of the corporations subse- quently organized have been held so nearly to resemble the names of corporations previously organized as calculated to deceive the public :— “Columbia Chemical Company ”’ is an infringement of ‘“‘ The Columbian Chemical Company.” People ex rel. Columbia Co. v. O’Brien, 101 App. Div. 296, 91 N. Y. Supp. 649, “Best & Co.,—Lilliputian Bazaar’? with street and store numbers and name “ New York” added, is infringed by ‘“‘ Broadway Bazaar—Brooklyn’s Best Lilliputian Store, 1185 Broadway, Brooklyn.” Ball v. Broadway Bazaar, 194 N. Y¥. 429. The name “‘ Roy Watch Case Co.” is an infringement on the title ‘‘Camm-Roy Watch Case Co.” Roy Watch Case Co. v. Camm-Roy Watch Case Co., 28 Misc. 45, 58 N. Y. Supp. 979. “United States Mortgage & Trust Co.” resembles the name of the “ United States Trust Co. of New York.’’ Matter of United States Mort. Co., 83 Hun 572. “The Tuerk Water Meter Company” is similar to ‘‘The Tuerk Water Motor Company.” Tuerk Hydraulic P. Co. v. Tuerk, 92 Hun 65, 36 N. Y¥. Supp. 384. “The Little Antique Shop” is an infringement of “ The Little Shop.” Crawford v. Laus, 29 Mise. 248, 60 N, Y. Supp. 387. “The International Society of Literature and Bookbinders’ League,” is an in- fringement of ‘International Society,’’ where the former corporate name was adopted to attract trade from the latter corporation. International Soc. v. Inter- national Soc., 59 N. Y. Supp. 785. “The Dodge Stationery Company” may enjoin a corporation conducting a similar business from using the title “J. S. Dodge Company.’ Dodge Stationery Co. v. Dodge, 145 Cal. 380. “United States Mercantile Reporting Company * may enjoin the use of the name “ Uniced States Mercantile Reporting and Collecting Association.” UU. 8. Mer, Rep. Co. v. U. S. Mer. Rep. & Col. Assoc., 21 Abb. N. C. 115. “S. Howes Co.’’ is entitled to enjoin another corporation manufacturing the 8 GenrraL Corporation Law. same class of machinery from using the name ‘‘ Howes Grain Cleaner Co.” Howes Co. v. Howes Grain-Cleaner Co., 19 App. Div. 625, 46 N. Y. Supp. 165. “‘Phe Legal Aid Society’ may enjoin the use of the title ‘The Co-operative Legal Aid Society.” Legal Ald Soc. v. Co-operative Legal Aid Soc., 41 Misc. 127, 83 N. Y. Supp. 926. “American Watchman’s Clock Company,” doing business as a partnership, permitted under sec. 363 of the Penal Code, is entitled to enjoin the use of the , Same name by a corporation organized in the same month the partnership was organized into a corporation. Pettes vy. American Watchman’s Clock Co., 89 App. Div. 345, 85 N. Y. Supp. 900. “ Farmers’ Loan & Trust Company” is entitled to enjoin the Farmers’ Loan & Trust Company of Kansas,” from omitting the words “of Kansas’ from its title. Farmers’ Loan & T. Co. v. Farmers’ Loan & T. Co., 21 Abb. N. C. 104, 1 N. Y. Supp. 44. “The Society of the War of 1812” may enjoin the use of the name “The Society of the War of 1812 in the State of New York,” by a society organized for the same purpose. Society of 1812 v. Society of 1812, 46 App. Div. 568, 62 N. Y. Supp. 355. NaMgs not Simiuar.—But in the following cases the names were held not to be similar :— “The Salvation Army in the United States” and ‘“‘The American Salvation Army” are not alike. Salvation Army in U. 8S. v. American Salvation Army, 62 Misc. 360, 114 N. Y. Supp. 1039. “New York Frame & Picture Co.” is not an infringement of United States Frame and Picture Company.” U.S. Frame & P. Co. v. Horwitz, 51 Misc. 101, 100 N. Y. Supp. 705. “ Employers’ Liability Assurance Corporation, Limited, of Great Britain,” is not an infringement of the “ Employers’ Liability Insurance Company of the United States.” Employers’ Liability Assur. Corp. v. Employers’ Liability Ins. Co., 61 Hun 552, 16 N. Y. Supp. 397. The term “ Employers’ Liability’? was held to be descriptive of a well known branch of insurance business. See, also, 61 Hun 552; 78 Hun 446. “Buffalo Commercial Bank” is not like “Bank of Commerce of Buffalo.” Matter of Bank of Attica, 12 N. Y. Supp. 648. The “ Hygeia Water Ice Company” cannot enjoin the use of the name “ New York Hygeia Ice Company, Limited,” adopted by a corporation without knowledge of the use of the term ‘‘Hygeia’”’ by another corporation. Hygeia Water Ice Co. v. New York H. Ice Co., 140 N. Y. 94. There was no proof that the ey interests had been or would be affected. “Car Advertising Company” cannot enjoin the use of the name “ New York City Car Advertising Company.” Car Adv. Co. v. New York Car Adv. Co., 57 Misc. 105, 107 N. ¥. Supp. 547. The “Scott Stamp & Coin Co.” cannot enjoin ‘the use of the title “J. W. Scott Company, Limited.” Scott Stamp & C. Co. v. J. W. Scott Co., 58 Super. Ct., (26 J. & S.) 379, 15 N. Y. Supp. 325. “Richardson & Boynton Co.” is not entitled to enjoin the use of the name “Richardson & Morgan Co.,” in absence of proof that the public has been deceived. Richardson & B. Co. v. Richardson & M. Co., 8 N. Y. Supp. 52. INJUNCTION AGAINST Usp OF SIMILAR NAME.—An injunction will be granted to prevent one corporation from adopting and using a corporate name which so closely resembles the name of a prior corporation as to tend to create confusion and enable the latter corporation to obtain the business of the former. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, The right to injunctive relief is not limited to cases where the business is of « commercial or trading character. Society of 1812 v. Society of 1812, 46 App. Div. 568, 62 N. ¥. Supp. 355; Col. Dames vy. Col. Dames, 29 Misc. 10, 60 N. Y. Supp. 302. But the rule as to trade-names is not applied so strictly to infringement of names of corporations organized for patriotic or unselfish ends. Col. Dames v. Col. Dames, 29 Misc. 10, 60 N. Y. Supp. 302, aff'd 173 N. Y. 586 mem. A foreign corporation may be restrained from using a trade-name similar to that adopted by a domestic corporation. Richardson & B. Co. vy. Richardson & M. Co., 8 N. ¥. Supp. 52. 9 GENERAL CoRPORATION Law. A domestic corporation using the same name adopted by a foreign corporation doing business in the state without complying with the requirements of law, after being informed by the Secretary of State that such name was not in use, will not be enjoinkd from continuing to use such title. American Tartar Co. v. American Tartar Co., 57 App. Div. 411, 68 N. Y. Supp. 236. ENJOINING RECEIPT OF MarIL.—One who sells the good will of a business with the right to use the names ‘“‘Dr. David Kennedy, Roundout, N. Y.” and ‘Dr. D. Kennedy, Roundout, N. Y.” may be enjoined from receiving and opening mail addressed in either of those names, although some of the letters do not relate to the corporation. Dr. David Kennedy Corp. v. Kennedy, 36 App. Div. 599, 55 N. Y. Supp. 917. CERTIORARI.—On the right to certiorari to review the action of the Secretary of State in permitting the filing of a certificate of a corporation whose name is an infringement of a prior corporation, see People ex rel. Columbia Chemical Co. v. O’Brien, 101 App. Div. 296, 91 N. Y. Supp. 649. § VY. Amended and supplemental certificates. If in the original or amended certificate of incorporation of any corporation, or if in a supplemental certificate of any corporation any informality exist, or if any such certificate contain any matter not authorized by law to be stated therein, or if the proof or acknowl- edgment thereof shall be defective, the corporators or directors of the corporation may make and file an amended certificate correcting such informality or defect or striking out such unauthorized matter ; and the certificate amended shall be deemed to be amended accord- ingly as of the date such amended certificate was filed, and upon the filing of such an amended certificate of incorporation, the corporation shall then for all purposes be deemed to be a corporation from the time of filing the original certificate. The supreme court may, upon due cause shown, and proof made, and upon notice to the attorney-general, and to such other persons as the court may direct, and upon such terms and conditions as it may impose, amend any certificate of incorporation which fails to express the true object and purpose of the corporation, so as to truly set forth such object and purpose. When an amended or supplemental certificate is filed, an entry shall be made upon the margin of the index and record of the original certificate of the date and place of record of every such amended certificate. The amendment of a certificate under this section shall be without prejudice to any pending action or proceeding, or to any rights previously accrued. As amended by ch. 687, L. 1892. IN GPNERAL.—The object of this section, as stated in Matter of Riverhead, Q. & S. R. Co., 36 App. Div. 514, 55 N. Y. Supp. 935, is to correct mistakes, in- formalities and defects which may exist in the articles of incorporation, Formerly a certificate could be amended only to remedy patent defects. Matter of New York, L. BE. & W. R. Co., 25 Hun 556. But under the section as it now reads it seems that any defect may be cured by a supplemental certificate. But this section is inapplicable to an amendment to the certificate of a railroad 10 GeneraL CorporaTion Law. corporation which seeks to change the route selected. Matter of Riverhead, Q. & S. R. Co., 36 App. Div. 514, 55 N. Y. Supp. 938. A colorable compliance with the requirements of statute and the exercise of corporate rights under the certificate granted, give the corporation a defacto existence. Lamming v. Galusha, 81 Hun 247, 30 N. Y. Supp. 767, aff'd 151 N. Y. 648 mem. ; : On the right to amend a certificate so as to enable a gas company to exchange its stock for that of an electric light company without resorting to the statute for the consolidation of the two corporations, see People ex rel. Municipal Gas Co. v. Rice, 138 N. Y. 151. § 8. Lost or destroyed certificates. If either of the certificates of incorporation shall be lost or de- stroyed after filing, a certified copy of the other certificate may be filed in the place of the one so lost or destroyed and as of the date of its original filing, and such certified copy shall have the same force and effect as the original certificate had when filed. As amended by ch. 687, L. 1892. Proor or Fitine.—The fact of filing may be shown by oral proof, when the certificate filed in the office of the County Clerk has been lost. New York Car Oil Co. v. Richmond, 6 Bosw. 213, 19 How. Pr. 505. 8 9. Certificate and other papers as evidence; evidence of con- solidation. 1. The certificate of incorporation of any corporation duly filed shall be presumptive evidence of its incorporation, and any amended certificate or other paper duly filed or recorded relating to the incor- poration of any corporation or its existence or management, and containing facts required or authorized by law to be stated therein, shall be presumptive evidence of the existence of such facts. 2. Whenever, by the laws of any other state or territory, or the dominion of Canada, a copy of the certificate of organization or in- corporation or any other certificate, certified or exemplified by any officer or officers in such state or territory or dominion, is or shall be prima facie evidence of the due formation, creation, existence, organ- ization or capacity of any corporation or joint-stock company, created, organized or located in such state, territory or dominion, or claiming so to be, such certificate or certificates, duly exemplified, or a duly exemplified copy thereof, shall be received in all actions and proceed- ings in this state, in or before all courts and officers, with the same force and effect in all respects as prima facie evidence as aforesaid, as in such other state, territory or dominion. 3. Where two or more corporations have been or shall hereafter be consolidated and merged into a new corporation, a certificate of the secretary of state under his official seal concisely stating the names of the respective corporations consolidated, the dates of the filing of the certificates respectively of the incorporation of such corporations 11 GeneRAL Corporation Law. in his office, the object for which they were formed, including the nature and locality of their business as set forth in their respective incorporation papers on file in his office, the date of the filing of the consolidation agreement and other proceedings in his office, the name of the new corporation formed by such consolidation and merger, the term of its corporate existence, the place where its principal office is situated and the amount of its capital stock, shall be presumptive and prima facie evidence in all actions and special proceedings for all purposes of the incorporation of the corporations so consolidated, the incorporation of the new corporation by such consolidation and merger from the date of filing of said consolidation agreement and proceed- ings, and of the other facts so certified by him. (Subd. 1) As amended by ch. 687, and sec. 1, L. 1892; ch. 672, L. 1895. (Subd. 2) sec. 1, ch. 311, L. 1877. (Subd. 3) sec. 1, ch. 201, L. 1899. In GpnpRAL.—As supplementing this section, sec. 933 of the Code of Civil Procedure provides: ‘A copy of a paper filed, kept, entered, or recorded, pursuant to law, in a public office of the state, the officer having charge of which has, pur- suant to law, an official seal; or with the clerk of a court of the state, or with the clerk or secretary of either house of the legislature, or of any other public body or public board created by authority of a law of the state, and having pursuant to law, a seal; or a transcript from a record kept pursuant to law in such a public office or by such a clerk or secretary, is evidence, as if the original was produced But to entitle it to be used in evidence, it must be certified by the clerk of the court, under his hand and the seal of the court; or by the officer having the custody of the original, or his deputy or clerk, appointed pursuant to law, under his officiat seal, and the hand of the person certifying; or by the presiding officer, secretary or clerk of the public or board, appointed pursuant to law, under his hand, and except where it {is certified by the clerk or secretary of either house of the legis- lature, under the official seal of the body or board.” PROOF oF INCORPORATION.—The fact of incorporation cannot be shown by oral evidence. Nicoll v. Clark, 13 Misc. 128, 34 N. Y. Supp. 159; Maddock v. Root, 72 Hun 98, 25 N. Y. Supp. 396, aff'd 150 N. Y. 561 mem. A corporation may be proved by an exemplification of the act of incorporation, and acts of user under it. Utica Insurance Co. vy. Cadwell, 3 Wend: 296; U. 8S. Ins. Co. v. Tillman, 1 Wend. 555. A copy of the certificate filed with the county clerk is presumptive evidence of incorporation. Squires v. Brown, 22 How. Pr. 35. A certified copy, was held in Matter of New York, L. & W. R. Co., 35 Hun 220, aff'd 99 N. Y. 12, to be prima facie proof of the genuiness of the signatures thereto attached. In an action against a corporation it is sufficient to show a charter, In form, , authorizing it to act as a body corporate and the exercise of powers under it. Jones v. Dana, 24 Barb. 395. A copy of the charter of an Illinois corporation certified under the great seal of the state is sufficient to show incorporation under the laws of that state, without an exemplified copy, under sec. 906 of the U. S. Rev. stat. United States Vinegar Co. vy. Foehrenbach, 74 Hun 435, 26 N. Y. Supp. 632, aff’d 148 N. Y. 58; United States Vinegar Co. v. Schlegal, 67 Hun 356, 22 N. Y. Supp. 407, aff’d 143 N. Y. 537. § 10. Limitation of powers; provisions of certificate. 1. No corporation shall possess or exercise any corporate powers not given by law, or not necessary to the exercise of the powers so given. 2. The certificate of incorporation of any corporation may contain 12 General Corroration Law, any provision for the regulation of the business and the conduct of the affairs of the corporation, and any limitation upon its powers, or upon the powers of its directors and stockholders, which does not exempt them from the performance of any obligation or the per- formance of any duty imposed by law. As amended by L. 1892, ch. 687, and L. 1895, ch. 672, sec. 1. POWERS OF CORPORATION—IN GENERAL.—A corporation has no other powers than such as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted. People ex rel. Tiffany & Co. v. Campbell, 144 N. Y. 166; People ex rel. Attorney General v. Utica Ins. Co., 15 Johns. 358; Hartford & N. H. R. Co. v. Croswell, 5 Hill 383; Curtis v. Leavitt, 15 N. ¥. 9; Hodges v. Buffalo, 2 Denio 110. In Powell v. Murray, 3 App. Div. 273, 38 N. ¥. Supp. 233, the court sald that the enumeration of the powers of a corporation in its charter implies the exclusion of all others. : A corporation is an artificial entity created by law; its powers, rights, obli- gations, duties, and limitations are those, and only those, granted, permitted, allowed and prescribed by law; its right to do business, to acquire, to hold and dispose of property, is that, and only that, conferred upon it by law. Black vy. Ellis, 129 App. Div. 140, 113 N. Y¥. Supp. 558. What a corporation may or may not do within its grant of powers is to be de- termined by the reasonable intendments of its charter as well as its clear expres- sions of authority. Brooklyn Heights R. Co. v. Brooklyn, 152 N. Y. 244 (in which a railroad company was permitted to use a street not named in the articles of incorporation). Whenever privileges granted by the legislature to a corporation come under review in the courts, they are to be strictly construed against the corporation; nothing passes but what is granted in clear and explicit terms. People ex rel. Third Ave. R. Co. v. Newton, 112 N. Y. 396. A certificate stating that ‘‘the objects for which the company is formed are to manufacture soaps and oils and to sell the same,’ will authorize the sale of soaps other than those of its own manufacture. Petrolia Mfg. Co. v. Jenkins, 29 App. Div. 403, 51 N. Y. Supp. 1028. A company formed to manufacture brass work may deal in iron pipe instead. McNab v. McNab & H. Mfg. Co., 62 Hun 18, 16 N. Y. Supp. 448, aff’d 133 N. Y. 687 mem. : The right of a park association to deal in provisions and other commodities for supplying lessees and visitors does not authorize it to exclude all other dealers. Thousand Island Pk. Assoc. vy. Tucker, 173 N. Y. 203. A corporation empowered to build a bridge may purchase one already erected. Thompson v. New York & H. R. Co., 3 Sand. Ch. 625. A railroad company may make a lease for a term of years. Beveridge v. New York, HB. R. Co., 112 N. Y¥. 1. There is a dictum in Denike v. New York & R. L. C. Co., 80 N. Y. 599, that a manufacturing corporation may temporarily lease its property to some one who will carry on the business. On the subject of the change in the number of the directors of a stock cor- poration, see sec. 26 of the Stock Corp. Law. INCIDPNTAL PoWwrERS.—The range of incidental corporate powers has been steadily enlarged under the growing exigencies of our complicated modern com- mercial relations. Virgil v. Virgil P. Co., 33 Misc. 200, 68 N. Y. Supp. 335. Conse- quently the doctrine of many of the early cases is no longer applicable. In Stein- way v. Steinway & Sons, 17 Misc. 43, 40 N. Y. Supp. 718, the court said that if an act lawful in itself, and not otherwise prohibited, is done for the purpose of serving eorporate ends and is reasonably tributory to the promotion of those ends in a substantial, and not remote or fanciful sense, it may fairly be considered within the corporate powers. Unless restrained by law, every corporation has the incidental power to make any contracts necessary to advance the objects for which it was created. Legrand ‘v. Manhattan M. Assoc., 80 N. Y. 638. 13 GeneRaL CorporaTION Law. But these contracts become ultra vires when they involve adventures outside out of and not within the scope or powers conferred by the charter. National Park Bk. v. German-American Warehousing & S. Co., 116 N. Y. 281. A pooling contract is not within the powers of a telegraph company. Benedict v. Western Union Telegraph Co., 9 Abb. N. C. 214. A corporation organized to manufacture and sell instruments designed for practice and instruction in the art of piano playing, may maintain u piano school. Virgil v. Virgil Practice C. Co., 8383 Mise. 200, 68 N. Y. Supp. 335. It is not an ultra vires act for a piano manufacturing corporation to give away pianos to secure the good will and testimonials of musical artists. Steinway v. Steinway & Sons, 17 Misc. 43, 40 N. Y. Supp. 718. A manufacturing corporation may purchase a large tract of land on which to build factories and homes for its employees. Steinway v. Steinway & Sons, supra. A corporation manufacturing and selling beer may guaranty the performance of the covenants of a lease by one who has agreed to buy liquors of the former for sale on the leased premises. Koehler & Co. v. Reinheimer, 26 App. Div. 1, 49 N. Y. Supp. 755; Holm v. Claus Lipsius Brew. Co., 21 App. Div. 214, 47 N. Y. Supp. 518. Contra, Filon v. Miller Brew. Co., 15 N. Y. Supp. 57. A piano manufacturing corporation may contribute toward the establishment of a church, school, free library and free bath for its employees. Steinway v. Steinway Sons, 17 Misc. 43, 40 N. Y. Supp. 718. No corporation organized under the laws of this state are authorized to bind the property of their shareholders by accommodation indorsements, except, guaranty and indemnity companies. Fox y. Rural Home Co., 90 Hun 365, 35 N. Y. Supp. 896. Manufacturing corporations have no power to make accommodation indorse- ments. Nat'l Park Bk. v. German Am. N. W. & S. Co., 116 N. Y. 281; Central Bank v. Empire Stone D. Co., 26 Barb, 23; Bridgeport City bk. v. Empire Stove Co., 30 Barb. 421; Fox v. Rural Home Co., 90 Hun 365, 35 N. Y. Supp. 896; Wahlig v. Standard Pump Mfg. Co., 5 N. Y. Supp. 420; Nat'l Bank v. Snyder Mfg. Co., 117 App. Div. 370, 102 N. Y. Supp. 478; Farmer & Son T. F. Co. v. Humboldt Pub. Co., 27 Misc. 314, 57 N. Y. Supp. 821; Monument Natl. Bk. v. Globe Works, 101 Mass. 57. And this power is not conferred by sec. 41 of the New York Negotiable Instru- ments Law. Oppenheim v. Simon Reigel Cigar Co., 90 N. Y. Supp. 355. All All All \ All All All All All All All All All All All All | All All All All All All All All All All _ All 10} Generat Corporation Law. Laws of Chapter Section 1852........ BTR. cc ceeee All 1858. ....... BS ciw wees All 1853........ LWT? iciees All 1853........ 124........ All 1853......... 135........ All 1853......... 245... cee All 1853........ 333. All 1853 ATT view 'e atas 1, 2, 4 1853........ 481........ All 1853........ BOR... ee eee All 1853........ 626........ All 1854........ Dein lle ares All 1854......06 OT sxaeieiare All 1854 140........ All 1854......06 201........ All 1854...... 232 All 1854. .4...... 269........ All 1854......06 282 All WShncwen een Se ceccavx All 1855........ 301........ All 1855........ BOR... ce eee All 1855........ 390.......- All 1855..... AUB. wc cee All 1855...... 485....000. All 105i ciowsck ~ AWSsxccceve All 1855....1...6 546... All 1855........ 559........ All 1856........ 65... All 1857. Ds sieieieievens All 1857........ 83 All 1857.......6 1856 900% All 1857........ 2OR..eweeee All 1857. ....... REQ... ceeee All 1857........ 444........ All 1857........ 546........ All 1857. .....4. 558........ All 1857........ 643.......8 All 1857...... ein GD arose) wrote All 1858........ Were sewes All 1858 125. All 1858........ 3848........ All GeneraL Corporation Law. Laws of Chapter Section 1859........ BOD .e ec ciececene All 1859........ BLL se aa aaa All 1859........ ABD sce sees All 1860........ L1G ie: sig8 508s All 1860........ 269. ..0..6. All 1860........ B28... eee All 1861........ LAD nsw All 1861........ 170........ All 1861...... we RIB ea va All 1861........ BBB. ese ees All 1862...... we ROD ccesavas All 1862........ 248........ All 1862........ 425........ All 1862........ 438........ All 1862. ccc 4dD ie aens All US62 ic vsecss AMR eccias a All 1863........: 63........ All 1863........ 184........ All 1863......... 346........ All 1864........ BB ows aue sos All 1864........ BBT oc ceca All 1864........ 517........ All 1864........ 582.......- All 1865......6.. 284.....006 All 1865.......+ 246........ All 1865.....0.. 3B07......05 All 1865...... peat ODD vin wise ses All 1865.....666 %80.....00. All 1866........ WB. ce weeee All 1866.....000 B59.....06% All 1866......... B22. cece eee All 1866......... B71... 2.08. All 1866... 6060. 697. ce eee All 1866......... 780........ All 1866........, 199 vssueeees All 1866...... we BBBsmsceeee All 1867......4. Wee cds All 1867........ AD seis deers All 1867....:.66. B48.....0.. All 1867...... ae REAL... te All 1867........ ALD ocd ls vee All Generar Corporation Law. Laws of Chapter Section TSE? . 6 wees. 480........ All 1867........ 509........ All 1867......... MDs ecese see All 1867........ 906........ All 1867......... OB own sears All 1867........ 96 Oise ck ws All 1867........ OTL ewases All 1867........ QTE oie aan ian All 1868........ 2538... eee All 1868........ 290....-.2- All 1868........ 578... econ All 1868........ TBI ascii ae All 1869........ 234. ...600. All 1869.. QBT. ccc eees All 1869........ 605........ All 1869........ Y06.....06- All 1869... 844........ All 1869........ ices es All 1870........ WRB scsi All 1870....4.... 1385........ All 1870........ B22... eee All 1870........ 443........ All 18705 sie cwen 568........ All 1870........ WAS wpie ncaa All 1871........ Ss All 1871........ 481. ..0..6. All 1871........ 535........ All 1871........ 560........ All VET cso & oe 652........ All 1871.......4 657. .....2. All STL ieee: 669........ All 1871........ 697........ All ABT Le sce sis.8 010 883........ All 1872........ Bloc vee es All ABQ snwreeass 128........ All 1872.....04. 146........ All 1872........ 248........ All 187%. ....... 283........ All 1872... . 200 850. ws cess All 1872......6. B74... cee ee All 1872........ 426........ All Gzenegat Cogroration Law. Laws of Chapter Section 1872......+. 609........ All 1872. ....604 611........ All 1872........ LD scaiie ocelere All 1872......6. 780....-. fas All 1872. cwecve S20. ue cine All except 20 1872...... ee BRD... weer All Lee avapea's Bo eincese Bll 1STS acess ADL sexs aves All 1873....0.2. BER... see All 1873........ 4382......6. All 1873......4. 1 440...... lee All 1873........ 6 AGO ceeds All 1873... ..06., 616........ All 1873. .....0- 1 634......6. All . IBIS esces ee UD ea ciissw apna All 1873... 6006 TET... eee All 1873... 2.00 814........ All 1874......0. WO. cereees All 1874........ , 148........ All 1874... .ccee 4D sa caiewinss All 1874... 2200 240... eee All 1874...... we BBB... eee All 1874....2006 430.....06. All 1875... cee. Bice opais All 1875.....005 5B. w eee All A878 oes a ies ee All TS cassuu LOB wanes All 1875.....00. 118........ All 1875... 2006. 119........ All 1875. .....0. py BRO is scornaies All ee 159 x nines s All 1875...... oor = 198... 200 All NBT sce ceo TOs ghee: witli All 1875... 0006 319........ All 1875........ GB ceiinn 2 4,8 TSIS sa va ees , 865....0... All 1875. ....006 2 — All 1875... eee 510........ All 1875. ...006. 586......06: All 1875... 600 598........ All 1875... 006. 606........ All Generat Corporation Law. Jaws of Chapter Section 1875......065 611........ All 1876........ Misia a aan All 1876........ 135........ All 1876........ 190........ All 1876......6.. 198........ All 1876........ 280.....26. All 1876........ B58... 000 All 1876........ B78. cece eee All 1876........ 415......6. All 1876........ 435......4. All 1876........ 446........ All 1877... eee 103........ All 1877... 2008. 158........ All 1877. .....4- 164........ All 1877... 2.064. Wilescessas All UBTT. cece es ARbL ee eee All 1877... 0.00 266... 0000s All 1877... 6660s 311........ All 1877.... 374 All 1878..... wars BB caseece All 1878..... Gl ics aie Asie All 1878........ 85....046 All 1878........ 121........ All ABTS woe reaie LOS ae snus All 1878.. 208... 2000s All 1878......... RUD oc sew ais All 1878........ 261........ All 1878...... 264..... see All 1878..... --- 9816........ All 1878...... -. 834 eae 8 All 1878..... B94... ce eee All 1879........ 214........ All 1879........ 258.2... ees All 1879........ 290........ All 1879......4. 293....000. All 1879....... 850. ....... All 1879... 000. BTV. cece All 1879. ...0065 393........ All 1879...... . 895........ All ISS casenee AlSeiscs caw «= 1879........ 415....... ‘ All 106 Genrrat Corporation Law. Laws of Chapter Section 1879........ BAD este rai All 1879. ....00 503........ All TSO a cis see 505........ All LB UO soe sie'e's 512....6... All 1879........ 541........ All 1880.2... 664: Dieisioe severe,’ All 1880........ 85.....66. All 1880........: 90........ All 1880........, 94 secre ies All 1880........ VIB. os occa All 1880........ 183......0 All 1880.. 1 155 All 1880....... ee 182........ All 1880.......6 IBY oases All 1880......05, 228 — All 1880........ R25. cceeee All 1880........ 241........ All 1880.....606 RAB. aceon 1, J 3, subd. 5, part relating to receivers appointed as prescribed in Code Civil Procedure, § 2429. 1880...... ee 2 ee All 1880........ 263....000. All 1880........ ROT... cc eeee All 1880......... B49... eee All 1880......... GIB 5.6 wre sie All 1880 po ALD ea wrateare All 1880 474, All 1880. ....00. 484... cece All 1880........ 510. All 1880 1 BBY. cceee All 1880......... BYB. cece ee All 1880........ 582...66- fers All 1880........: 583........ All 1880........ 585... we eee All 1881........ a2. All 1881......64 58......06 All 1881........ WU cae cairns All 1881. ....00 1 116...... is All 1881......66 LAT evejecsieeee All 1881......+. 148........ All 1881........ 213. All GeneRaL CorporaTIon Law. Laws of Chapter Section 1881...... oe = BBR. a ee All 1B8h ic ceeie cc: 295. vewescs All 1881..... eee ROC. ciews lee All TRE awtien: Old vcaeies ss All 1881..... giao BIB. one otcat 1881........ B21... 2.0 1881...... wee ODT ve secon TBS Es, sis: oie wie 338......6. 1881........ | 851...... lee 1881....... ~ 899........ 1881........ 422... aeeee 1881........ 464. ....06.6 1881........ 468........ 1881........ 470...... . 1881.......6 472...04. lee 1881..... eee 485... 0.0 188]........ 589........ 1881..,..... 639.....,.. 1881......0. G4D.., eee 1881....... + 650...... iss 1881......... B74... . 00. 1884,........ B97... eee 1884......... 421........ 1884........ 422.......6. 1884.. 1 489........ 1884........ AAI eweeses 1884........ 444........ 1885)........ 40 1885........ 84........ 1885........ 127. 6 sa ste ise 1885........ WD icex as ves 1885.......6: 153........ 1885...... . UY] eevee 1885........ 305...... ‘ 1885........ 869........ 1885...... . 4D iia sw aie as 1885....... » 423...... (es 1885.... 489...... es Laws of Generar Corporation Law. Chapter he ee Section All All All All All All All All All All. All All All All All All General Corporation Law. Laws of Chapter Section 1889........ Ties awawes All 1889 66 ss ee xs GBs wine All 1889.......4 236. ....006 All TBBD sain inet) PAR a dees All 1889........ 281...... a All 1889........ B82. 020s wie All 1889). ceca ss 869.....64.% All 1889......-. 426. ..000 : All 1889.......4 519....... ee All 1889........ S524.....00. All 1889........ 5381.......- All 1889..... coee BBR. cece eee All 1889........ 564.......6. All 1890 ses sacsince.s 23. ..06% ae All 1890.......4. D8 ewes aw Be All 1890....-0.. 119........ All 1890........ 193........ All 1890........ 292. .cccaee All 1890......... 4G cee aeies All 1890.4.00008 AOL. ceeeawe All 1890........ ABS wien sis’ All 1890........ 497........ All 1890........ 505........ All 1890........ 508... 2.0 All 1890.......6: 543........ All 1890........ 563........ All 1897 6 sic cwas B4 siaisicwinn Part relating to appraisal of prop- erty of insolvent corporations. 1891........ B8......6. All 1891...... rete ON sieve waren All 1804 coevinrs «BY sesso All 1892........ Rs See als 32s All 1892....6006 1D eae 4 1892. ca ener 687........ All except 37 1894........ 136........ All 1894........ 400........ All 1895........ OTs e's wat All 1896........ TBD eee All 1896........ R82... 0.00 All 196 cccaces, DAD 26 tases 1, part adding § 5Y to L. 1892, Ch. 688. 110 GenEeRaL Cogporation Law. Laws of Chapter Section 1898........ 522.....0.. Part relating to receivers of cor- porations. 1898..... -». 584..... di All TB99 science Qlisvaevess All 1900........ TM ieee All 1900........ YO4...cceee All 1900.....60. VBBL ee ee All 1900........ "6020 ee sews All 1901......-. 96 cise All 1901........ 214. ...664. All 1901........ 3855........ All 1901........ 506...4.... All 1901........ S5BB....0005 All 1902. .....06 Dice aacsceveis All 1902........ 60....... 7 All 1902........ 285.....06. All 1908 scarce DB es csv ce All 1904........ 236......6- All 1904........ 296........ All 1904........ BOO cies canes All 1904........ TOD 6 sree eae All 1904........ MOT wee waeiwta All 1904........ TBA... cane All 1905........ P23) All 1906........ 228... cece All 1906 ees: (28D eo. ceienes All 1906.2 jesse BAD ares a's All 1906........ 8581........ All 1907........ 115........ All 1908........ ABU ccc eee All Code Civil Procedure.......... 432, subd. 2, from words “by a writing” to “an authentica- tion ;” 716, pt. relating to cor- porations; 1781-1808; 1809, pt. relating to corporations; 1810, 1811; 1812, 1813, pt. relating to corporations; 2411; 2412- 2414, pt. relating to corpora- tions; 2415, 2416, 2419-2431 b; 3390-3396, pt. relating to cor- porations. 111 STOCK CORPORATION LAW. CHAPTER 59 OF THE CONSOLIDATED LAWS. AgticiE 1. Short title (§ 1). 2. General Provisions (§§ 5-18). 3. Directors and officers (§§ 25-35). 4. Stock and stockholders (§§ 50-70). 5. Laws repealed; when to take effect (§§ 80, 81). ARTICLE 1. SHORT TITLE. Section 1. Short title. 8 1. Short title. This chapter shall be known as the “ Stock Corporation Law.” Si ARTICLE 2. GENERAL PROVISIONS. Srotion 5. Application of article. 6. Power to borrow money and mortgage property. %. Validating corporate mortgages. 8. Power to guarantee bonds of other corporations. 9. * Reorganization upon sale of corporate property. 0. Contents of plan or agreement. 1. Sale of property; possession of receiver and suits against him. 12. Municipalities may assent to plan of readjustment. 13. Change of place of business. 14. Combinations prohibited. 15. Merger. 16. Voluntary sale of franchise and property. 17. Rights of non-consenting stockholders on voluntary sale of franchise and property. 18. Alterations or extension of business. *So in original. 113 Stock Corporation Law. § 5. Application of article. This article except sections eight, fifteen, sixteen, seventeen and eighteen thereof, shall not apply to moneyed corporations. § 6. Power to borrow money and mortgage property. In addition to the powers conferred by the general corporation law, every stock corporation shall have the power to borrow money and contract debts, when necessary for the transaction of its business, or for the exercise of its corporate rights, privileges or franchises, or for any other lawful purpose of its incorporation; and it may issue and dispose of its obligations for any amount so borrowed, and may mortgage its property and franchises to secure the payment of such obligations, or of any debt contracted for said purposes. Every such mortgage, except purchase-money mortgages and mortgages author- ized by contracts made prior to May first, eighteen hundred and ninety-one, shall be consented to by the holders of not less than two- thirds of the capital stock of the corporation, which consent shall be given either in writing or by vote at a special meeting of the stock- holders called for that purpose, upon the same notice as that required for the annual meetings of the corporation; and a certificate under the seal of the corporation that such consent was given by the stock- holders in writing, or that it was given by vote at a meeting as afore- said, shall be subscribed and acknowledged by the president or a vice-president and by the secretary or an assistant secretary, of the corporation, and shall be filed and recorded in the office of the clerk or register of the county wherein the corporation has its principal place of business. When authorized by like consent, the directers under such regulations as they may adopt, may cenfer en the helder of any debt or obligation, whether secured or unsecured, evidenced by bonds of the corporation, the right to convert the principal thereof, after two and not more than twelve years from the date of such bonds, into stock of the corporation; and if the capital stock shall not be sufficient to meet the conversion when made, the directors shall from time to time, authorize an increase of capital stock sufficient for that purpose by causing to be filed in the office of the secretary of state, and a duplicate thereof in the office of the clerk of the county where the principal place of business of the corporation shall be located, a certificate under the seal of the corporation, subscribed and acknowledged by the president and secretary of the corporation setting forth, 1. A copy of such mortgage; or resolution of directors authorizing the issue of such bonds; 114 Srocx Corporation Law. 2. That the holders of not less than two-thirds of the capital stock of the corporation duly consented to the execution of such mortgage or resolution of directors authorizing the issue of such bonds by such corporation ; 3. A copy of the resolution of the directors of the corporation au- thorizing the increase of the capital stock of the corporation necessary for the purpose of such conversion ; 4. The amount of capital theretofore authorized, the proportion thereof actually issued and the amount of the increased capital stock. If the corporation be a railroad corporation the certificate shall have indorsed thereon the approval of the public service commission having jurisdiction thereof. When the certificate herein provided for has been filed, the capital stock of such corporation shall be increased to the amount specified in such certificate. Powpr TO Mortaaey.—The owners of corporate stock, by force of their owner- Bhip, may place a mortgage upon the corporate property when the statute per- mits. People v. North River Sugar R. Co., 121 N. Y. 582. In absence of any legislative restriction, a corporation has full power to exe- cute a mortgage of its real property upon special trust or otherwise. Central Gold Min. Co., 3 Daly 263; Hope Mut. Life Ins. Co. v. Perkins, 38 N. Y. 404, 4 Rob. 182. A consent to mortgage the real and personal estate of a corporation, does not authorize a mortgage of the corporate franchises. Lord v. Yonkers Fuel G. Co., 99 N. Y. 547. The title to the property of a company ts in the fictitious entity called the cor- poration, and its officers and agents only have authority to act for it. Buffalo Loan T. & S. D. Co. v. Medina Gas Co., 162 N. Y. 67. Pownr To Securp Loan.—A corporation with power to borrow money for its ordinary business may assign its assets as collateral security for a loan. Clark vy. Titcomb, 42 Barb. 122, Powrr TO Borrow on Nores.—A corporation may give a promissory note for a debt contracted in the course of its business. Moss v. Oakley, 2 Hill 265; Mead vy. Kieler, 24 Barb. 20. It may borrow notes and cause them to be discounted in order to meet its obligations. Holbrook v. Basset, 5 Bosw. 147. On the power to make accommodation endorsements, see annotation under General Corp. Law, sec. 10. CoNsTRUCTION OF MorreaGu.—Whenever doubt arises about the proper con- struction of a trust mortgage given to secure an issue of bonds, that construc- tion must be adopted which is most favorable to the bondholders and which will not impair their security in any way. Lisman vy. Michigan Pen. Car Co., 50 App. Diy. 311, 63 N. Y. Supp. 999. Whatever rights, as against the mortgagor, are vested in the trustee of a mortgage given to secure the payments of bonds, inure to the benefit of the bond- holder and are enforcible by him in case of refusal or neglect on the part of his ‘trustee to act for him upon request. O’Beirne v. Alleghany & K. R. Co., 151 N. Y. 872. VaLIDITY or Morreacn.—A mortgage given in good faith and for value, 1s presumed to be valid. Denike v. New York & R. L. & C. Co., 80 N. Y¥. 599. It is not essential to the validity of a corporate mortgage that it should be given to secure an antecedent debt; it may be given to secure a debt simultaneously contracted. Lord v. Yonkers Fuel Gas Co., 99 N. Y. 547. A mortgage by a business corporation covering all of its property to secure its creditors, is not void as in violation of a statute prohibiting such a corpora. tion from mortgaging its property for any other than the legitimate purposes of 115 Srocx Corporation Law. {ts business. New Britain Nat’l Bk. v. A. B. Cleveland Co., 91 Hun 447, 36 N. x: Supp. 387, aff'd 158 N. Y. 722 mem. A mortgage is not void because the resolution authorizing the same was adopted by votes of those owning the indebtedness to be secured, where it appears that such indebtedness is binding. Rittenhouse v. Winch, 11 N. Y. Supp. 122, aff’d 133 N. Y. 678 mem. A valid agreement in writing, made by one business corporation to give a first mortgage upon its assets for a certain amount and for a specified consid- eration, to another business corporation, when attended by full performance by the latter and a legal obligation to perform by the former and an effort to per- form by giving the mortgage in question, even where there is a failure to observe certain statutory requirements, constitutes a valid mortgage in equity, as against junior judgment creditors. Hamilton T. Co. v. Clemes, 163 N. Y. 423. A mortgage given by an insolvent corporation in excess of the value of the property covered to secure an issue of bonds to be given consenting creditors in exchange for notes held against the corporation, the non-consenting creditors to receive the proceeds of the remaining bonds, is void as an attempt to hinder and delay creditors. Jenkins v. John Good Cordage & Mach. Co., 56 App. Div. 573, 68 N. Y. Supp. 239, aff'd 168 N. Y. 679 mem. MorrTeacn to Securp Dest or OFricpr.—There is nothing malum in se or malum prohibitum in the act of a corporation in loaning its credit to one of its officers, or in mortgaging its property to secure his individual debt; the stock- holders are the equitable owners of the corporate property, and if they do not object and no rights of creditors intervene, there is no legal objection to the mortgage. Osborn v. Montelac Park, 89 Hun 167, 35 N. Y. Supp. 610, aff’d 153 N. Y. 672 mem. See, also, Martin v. Niagara Falls P. Mfg. Co., 122 N. Y. 165. MorrcaGp For Futurp Destrs.—It is not necessary that the debts to be se- cured should be in existence at the time of the execution of the mortgage; a trust mortgage may be given to secure the payment of negotiable bonds thereafter to be issued. Lord v. Yonkers Fuel Gas Co., 99 N. Y. 547. MorrTGcacp or FuTure EARNINGS OR AFTER ACQUIRDPD INTERDST.—A mortgage covering the future earnings of a lighting corporation, but permitting the mort- gagor to remain in possession and use such earnings in the conduct of its bus- iness, does not give the mortgagee or the receiver appointed in a foreclosure action any equitable lien on such earnings until an actual entry and possession under it. New York Security Co. v. Saratoga G. & El. L. Co., 159 N. Y. 137. See, also, Metropolitan T. Co. v. Dolgeville El. L. & P. Co., 35 Misc. 467, 71 N. Y. Supp. 1055. And in United States M. & T. Co. v. Eastern Iron Co., 120 App. Div. 679, 105 N. Y. Supp. 291, it appeared that a mining company, to secure the payment of bonds issued, executed a mortgage on its property, including any subsequently to be acquired; at the time the mortgage was given the mortgagor owned the mineral rights in a certain piece of land but did not own the fee; subsequent to the giving of the mortgage the parcel not owned in fee was sold under a judgment against the mortgagor to satisfy certain mechanic’s liens for the erection of a building thereon, and was purchased by one who was notified of the conditions in the mortgage. The court sustained the mortgage as to such after acquired property and held that the purchaser took subject to the lien. A chattel mortgage cannot, as matter of law, be given future effect as a lien on personal property not in existence, actually or potentially, when the right of rage the mortgagor have intervened. Rochester Distilling Co. v. Rasey, 142 N. Y. 570. Disposal oF Bonps.—-A corporation may dispose of its bonds by pledge or sale. Duncomb v. New York H. & N. R. Co., 84 N. Y. 190. PROHIBITED TRANSFERS.—On the subject of prohibited transfers to officers and stockholders, see sec. 66, post. ASSENT TO MorTGacn,—PurRPosp.—The provision of the statute requiring written assent to a mortgage of corporate property, is intended simply to protect the stockholders from improvident or corrupt acts of the officers of the corpora- tion, and was not enacted because the mortgaging of corporate property was re- garded as improper per se. Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328. Wart CONSTITUTES ASSpNT.—That a resolution, passed at a stockholders’ 116 Stock Corporation Law. meeting by a vote of stockholders owning more than two-thirds of the stock, and entered on the minutes, and attested by the secretary, did not amount to the written assent required by the statute, see Beebe v. Richmond Light, H. & P. Co., 3 App. Div. 334, 38 N. Y. Supp. 395. WHat Stock To Be CoNSIppRED.—In determining whether the requisite num- per of stockholders have consented to the giving of a mortgage, only stock actually issued and owned will be considered; not the nominal amount specified in the articles of incorporation. Greenpoint Sugar Co. v. Whitin, 64 N. Y. 328; Swan v. Stiles, 94 App. Div. 117, 87 N. Y. Supp. 1089. Thus, stock absorbed by the corporation at the time of the granting of the con- sent, is not to be included in making the calculation. Swan v. Stiles, 94 App. Div. 117, 87 N. Y. Supp. 1089. And it is immaterial whether or not the actual stockholders had paid for the stock at the time the assent was given. Atlantic Trust Co. v. Crystal Water Co., 72 App. Div. 539, 76 N. Y. Supp. 647; The Lyceum v. Ellis, 57 N. Y. Super. Ct. 532, 8 N. Y. Supp. 867. The required assent must he given by those representing a definite amount of stock. The Lyceum v. Hillis, supra. Where the corporation itself is the owner of a portion of its stock, it cannot give assent for the shares so owned by it to make up the requisite two-thirds ; nor can the assenting stockholders be deemed to represent a proportionate amount of the stock owned by the corporation. Vail v. Hamilton, 85 N. Y. 453. Shares of stock owned by the corporation and transferred by it by assignment, absolute on its face, as collateral security for a debt, cannot be deducted in ascertaining if the assent of the required number has been given. Vail v. Hamilton, 85 N. Y. 453. The court said that such assignee was a stockholder within the meaning of the provision and is entitled to sign the assent. As to assent when there are only two stockholders, see Castle v. Lewis, 78 N. ¥, 121, Surricimsncy.—Where an assent was filed on a certain day, and the mortgage was recorded after 3 P. M. of that day, there is a fair inference that the assent was filed at the same time that the mortgage was recorded and that such filing was sufficient. Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328. It seems, said the court, that a mortgage, although recorded prior to the filing of the assent, is valid from the time of such filing. See, also, Everson v. Eddy, 12 N. Y. Supp. 872, Rochester Sav. Bk. v. Averill, 96 N. Y. 467, and Welch v. Importers & Traders’ Natl. Bk., 122 N. Y. 177 (190). In absence of fraud or any objection on the part of the stockholders, a defect, in an assent, to invalidate a mortgage given under it, must be of so substantial and radical a character that an intention to consent cannot be inferred from the instrument. Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328. It is doubtful whether any one but a stockholder may complain because the condition has not been complied with. Paulding v. Chrome Steel Co., 94 N. Y. 384. But, see, Matter of Wendler Mach. Co., 2 App. Div. 16, 37 N. Y. Supp. 444, in which creditors raised the objection. ESTOPPEL TO Deny INSUFFICIDNCY.—Estoppel to deny the invalidity of a cor- porate mortgage on the ground that the required assent was not given in writing, see Beebe v. Richmond L. H. & P. Co., 3 App. Div. 334, 38 N. Y. Supp. 395. After a corporation has received property acquired under bonds secured by mortgage, it is estopped from objecting to the validity of the instrument on the ground that the assent of the stockholders required by statute was not given. Atlantic Trust Co. v. Crystal Water Co., 72 App. Div. 539, 76 N. Y¥. Supp. 647. After a lapse of 12 years a stockholder will not be permitted to attack the validity of a mortgage on the ground that the required assent was not given. War- ren v. Bigelow Blue Stone Co., 74 Hun 304, 26 N. Y. Supp. 649. In Black y. Ellis, 129 App. Div. 140, 118 N. ¥. Supp. 558, the court held that where a corporation became the transferee of a lease requiring the execution of a chattel mortgage by the lessee as security for liquidated damages in the event of a breach, a mortgage so given by the corporation will not be set aside by a receiver of the corporation because the required consent had not been filed with the County Clerk, the mortgage having been given with the knowledge and consent of two-thirds of the stockholders. 117 Stock Corporation Law. As stated by Finch, J., in Seymour v. Spring Forest C. Assoc., 144 N. ¥. 341, “there were some alleged technical irregularities in the issue of the bonds. These represented the purchase price of the land which the corporation bought and kept and were its promise to pay which it could not justly repudiate. That kind of plunder which holds on to the property but pleads the doctrine of ultra vires against the obligation to pay for it has no recognition or support in the law of the state.” WHat Constitutes MorTcaGe Requiring AsspnrT.—A deposit of the books of & company as collateral security for its notes is not a mortgage within the statute requiring assent of stockholders. Matter of Felt, 5 Month. L. Bul. 18. PurcHasp Monry Mortcacse.—Consent of the stockholders is not necessary to give a purchase money mortgage. Farmers’ Loan & T. Co. v. Equity Gaslight Co., 84 Hun 373, 32 N. Y. Supp. 385. See, also, the provisions of the above statute. ConcLUSIvENDss.—On the subject of the recitals in corporate mortgages as to the required consent as conclusive of the truth thereof, see sec. 7, post. 8 7%. Validating corporate mortgages. Whenever any mortgage affecting property or franchises within this state heretofore or hereafter executed by authority of the board of directors in behalf of any stock corporation, domestic or foreign, of any description, recites or represents in substance or effect that the execution of such mortgage has been duly consented to, or authorized by stockholders, such recital or representation in any such mortgage, after public record thereof within this state, shall be presumptive evidence that the execution of such mortgage has been duly and suffi- ciently consented to, and authorized by stockholders as required by any provision of law. After any such mortgage heretofore or here- after shall have been publicly recorded for more than one year in one or more of the counties of this state containing the mortgaged premises or any part thereof, and the corporation shall have received value for bonds actually issued under and secured by such mort- gage, and interest shall have been paid on any of such bonds accord- ing to the terms thereof, such recital or representation of such mortgage so recorded shall be conclusive evidence that the execution of such mortgage has been duly and sufficiently consented to, and authorized by stockholders as required by any provision of law, and its validity shall not be impaired by reason of any defect or insuffi- ciency of consent or authority of stockholders or in filing or record- ing such consent or authority, and such mortgage shall be valid and binding upon the corporation, and those claiming under it, as security for all valid bonds issued or to be issued thereunder, unless such mort- gage shall be adjudged invalid in an action begun as hereinafter, in this section, provided. Notwithstanding the foregoing provisions of this section, the invalidity of any such mortgage heretofore recorded because of insufficiency of consent by stockholders may be adjudged in any action for such purpose begun before the first day of April, 118 Stock Corporation Law. nineteen hundred and two, and the invalidity of any such mortgage hereafter recorded, because of insufficiency of consent by stockholders, may be adjudged in any action for such purpose begun, within one year after the earliest record of such mortgage in any county in this state, provided in either case that such action shall have been so begun by or in behalf of the corporation by direction of the board of direc- tors acting in their own discretion, or upon the written request of the holders of not less than one-third of the capital stock of the corpo- ration; and in any such action so begun by or in behalf of the cor- poration, the recitals or representations of the mortgage shall be presumptive evidence only as first above provided. Whenever here- after, in compliance with any law of this state, the officers of any corporation shall have made and filed and recorded a certificate that the execution of a mortgage hereafter made by the corporation has been duly consented to by stockholders, such certificate shall be con- clusive evidence as to the truth thereof, in favor of any and all persons who in good faith shall receive or purchase, for value, any bond or obligation purporting to be secured by such mortgage, at any time when said certificate shall remain of record and uncanceled. Nothing in this section contained shall affect any right or any remedy in re- spect of any such right of any creditor accrued before this enactment nor shall it dispense with the necessity of obtaining the consent of the public service commission having jurisdiction thereof to any mort- gage by a railroad corporation. This was sec. 8 of the former law, as added by L. 1901, ch. 354, sec. 2. § 8. Power to guarantee bonds of other corporations. Any stock corporation may, in pursuance of a unanimous vote of its stockholders voting at a special meeting called for that purpose by notice in writing signed by a majority of the directors of such cor- poration stating the time and place and object of the meeting and served upon each stockholder appearing as such upon the books of the corporation, personally or by mail at his last-known post-office address at least sixty days prior to such meeting, guarantee the bonds of any other domestic corporation engaged in the same general line of business; and any stock corporation owning the entire capital stock of any other domestic stock corporation engaged in the same general line of business may in pursuance of a two-thirds vote of its stock- holders voting at a special: meeting called for that purpose by notice in writing signed by a majority of the directors of such corporation, stating the time and place and object of the meeting and served upon each stockholder appearing as such upon the books of the corpora- 119 Srocx Corporation Law. tion personally, or by mail, at its last-known post-office address, at least sixty days prior to such meeting, guarantee the bonds of such other corporation. Part former L. 1890, ch 564, sec. 40, as amended by L. 1892, ch. 688, sec. 40; L. 1902, ch. 601, sec. 1. Sec. 8 of the former law is sec. 7 of the present law. Contracts of GuaRANry.—There is nothing malum in se or malum prohibitum in the acts of a corporation in loaning its credit. Martin v. Niagara Falls P. Mfg. Co., 122 N. Y. 165; Osborn v. Montelac Park, 89 Hun 167, 35 N. Y. Supp. 610, aff'd 153 N. ¥. 672 mem. A corporation may, upon the sale of a portion of its lands to another similar corporation, agree to advance money to the latter to be used in erecting buildings on the premises conveyed. Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328. A manufacturing corporation which has sold a large quantity of furniture on credit to a hotel-keeper, whose only means of paying therefor is derived from the profits of the business, has implied power to pledge its credit to assist the purchaser to borrow money to enable him to carry on che business and thereby pay for the goods. Hess v. W. & J. Sloane, 66 App. Div. 522, 73 N. Y. Supp. 313, aff'd 173 N. Y. 616 mem. § 9. Reorganization upon sale of corporate property and franchises, When the property and franchises of any domestic stock corpora- tion shall be sold by virtue of a mortgage or deed of trust, duly executed by it, or pursuant to the judgment or decree of a court of competent jurisdiction, or by virtue of any execution issued thereon, and the purchaser, his assignee or grantee shall have acquired title to the same in the manner prescribed by law, he may associate with him any number of persons, not less than the number required by law for an incorporation for similar purposes at least two-thirds of whom shall be citizens of the United States and one shall be a resi- dent of this state, and they may become a corporation and take and possess the property and franchises thus sold, and which were at the time of the sale possessed by the corporation whose property shall have been so sold, upon making and acknowledging and filing in the offices where certificates of incorporation are required by law to be filed, a certificate in which they shall describe by name and reference to the law under which it was organized, the corporation whose property and franchises they have acquired, and the court by whose authority the sale had been made, with the date of the judgment or decree authorizing or directing the same, and a brief description of the property sold, and also the following particulars: 1, The name of the new corporation intended to be formed by the filing of such certificate; and the place where its principal office is to be located. 2. The maximum amount of its capital stock and the number of shares into which it is to be divided, specifying the classes thereof, whether common or preferred, and the amount of and rights pertain- ing to each class. 120 Srocx Corporation Law. ~ 3. The number of directors, not less nor more than the number required by law for the old corporation, who shall manage the affairs of the new corporation, and the names and post-office addresses of the directors for the first year. They may insert in such certificate any provisions relating to the new corporation, or its management, contained in any plan or agreement which may have been entered into as provided in section ten of this chapter. Such eorporation shall be vested with, and be entitled to exercise and enjoy, all the rights, privileges and franchises, which at the time of such sale be- longed to, or were vested in the corporation last owning the property sold, or its receiver, and shall be subject to all the provisions, duties and liabilities imposed by law on that corporation. Any proceedings heretofore taken in substantial compliance with this section as hereby amended, and any and all incorporations based thereon are hereby ratified and confirmed. , Former L. 1890, ch. 564, sec. 3, as amended by L. 1892, ch. 688, sec. 3; L. 1901, ch. 354, sec. 1; L. 1902, ch. 80, sec. 1; L. 1904, ch. 706, sec. 1. This was see. 3 of the former law. In GHNDRAL.—Under this section any number of persons may, at a foreclosure sale, purchase the corporate property for themselves and organize a new company which will possess all of the powers, rights, privileges and franchises of the prior corporation. Vatable v. New York, L. EB. & W. R. Co., 96 N. Y. 49. A corporation organized under a reorganization act, is a new and entirely different one from that whose property and franchises were purchased under a fore- closure sale; the right to be a corporation was not mortgaged or purchased. People ex rel. Schurz v. Cook, 110 N. Y. 443. In the case of mere business corporations, in which no considerations of pub- lic policy are involved, the stockholders may authorize a transfer of the property to a new company, receiving the stock of such company in payment of the purchase price. Wilson vy. Aeolian Co., 64 App. Div. 337, 72 N. Y. Supp. 150. In absence of any statute to the contrary the foreclosure of a railroad mort- gage cuts off all of the rights and interests of the mortgagor, and nothing is left for the general creditors and stockholders save their interests in the surplus after satisfying the mortgage. Vatable v. New York, L. HB. & W. R. Co., 96 N. Y. 49. Upon the foreclosure of a eorporate mortgage, a minority stockholder cannot maintain an action to recover damages therefor on the ground that the foreclosure was improperly forced upon the corporate property. Niles v. New York C. & H. R. R. Co., 35 Misc. 69, 71 N. Y. Supp. 271, aff'd 176 N. Y. 119. As to the corporate name, see sec. 6 of the General Corp. Law; as to changing the corporate name, see secs. 60 et seq., of the Gen. Corp. L. And as to incorpora- tion, see sec. 5 of the Gen. Corp. L., and secs. 2 and 4 of the Business Corp. Law. 8 10. Contents of plan or agreement. At or previous to the sale the purchasers thereat, or the persons for whom the purchase is to be made, may enter into a plan or agree- ment, for or in anticipation of the readjustment of the respective interests therein of any creditors, mortgagees and stockholders, or any of them, of the corporation owning such property and franchises at the time of sale, and for the representation of such interests in the bonds or stoek of the new corporation to be formed, and may therein regulate voting by the holders of the preferred and common 12t Srocx Corporation Law. stock at any meeting of the stockholders, and may provide for, and regulate voting by the holders, and owners of any or all of the bonds of the corporation, foreclosed, or of the bonds issued or to be issued by the new corporation; and such right of voting by bondholders shall be exercised in such manner, for such period, and upon such conditions, as shall be therein described. Such plan or agreement must not be inconsistent with the laws of the state and shall be binding upon the corporation, until changed as therein provided, or as otherwise provided by law. The new corporation when duly organized, pursuant to such plan or agreement and to the provisions of law, may issue its bonds and stock in conformity with the pro- visions of such plan or agreement, and may at any time within six months after its organization, compromise, settle or assume the pay- ment of any debt, claim or liability of the former corporation upon such terms as may be lawfully approved by a majority of the agents or trustees intrusted with the carrying out of the plan or agreement of reorganization, and may establish preferences in favor of any portion of its capital stock and may divide its stock into classes; but the capital stock of the new corporation shall not exceed in the aggregate the maximum amount of stock mentioned in the certificate of incorporation. Former L. 1890, ch. 564, sec. 4, as re-enacted by L. 1892, ch. 688, sec. 4, and amended by L. 1901, ch. 354, sec. 1. This was sec. 4 of the former law. In GpNERAL.—A reorganization committee whose rights and powers are defined by the reorganization agreement, have no authority to modify the same. Cox v. Stokes, 156 N. Y. 491. A plan for the reorganization of a corporation, prepared and tendered by a voluntary committee of the bondholders, who accept it and deposit their bonds thereunder, should be strictly construed as against the committee and in favor of the cestui que trust. United States Water Works Co. v. Omaha Water Co., 164 N. Y. 41; Industrial & G. T. vy. Todd, 180 N. Y. 215. As to the liability of a reorganization committee for a failure to adopt and notify bondholders of the plan before foreclosure sale, see Industrial & Gen. Trust v. Tod, 180 N. Y. 215. § 11. Sale of property; possession of receiver and suits against him, The supreme court may direct a sale of the whole of the property, rights and franchises covered by the mortgage or mortgages, or deeds of trust foreclosed at any one time and place to be named in the judgment or order, either in case of the non-payment of interest only, or of both the principal and interest due and unpaid and secured by any such mortgage or mortgages or deeds of trust. Neither the sale nor the formation of the new corporation shall interfere with the authority or possession of any receiver of such property and franchises, but he shall remain liable to be removed or discharged at such time as the court may deem proper. No suit or proceeding 122 Srock Corporation Law. shall be commenced against such receiver unless founded on wilful misconduct or fraud in his trust after the expiration of sixty days from the time of his discharge; but after the expiration of sixty days the new corporation shall be liable in any action that may be commenced against it, and founded on any act or omission of such receiver for which he may not be sued, and to the same extent as the receiver, but for this section would be or remain liable, or to the -same extent that the new corporation would be had it done or omitted the acts complained of. Former L. 1890, ch. 564, sec. 5, as re-enacted by L. 1892, ch. 688, sec. 5. This was sec. 5 of the former law. In GenERAL.—This section makes the new corporation subject to the same liabilicies as existed against the recelver. Abbott v. Jewett, 25 Hun 603. In an action brought against the receiver more than sixty days after his dis- charge, an amendment may be made substituting the new corporation as defendant in place of such receiver. Tighe v. Pope, 16 Hun 180. § 12. Municipalities may assent to plan of readjustment. The commissioners, corporate authorities or proper officers of any city, town or village, who may hold stock in any corporation, the property and franchises whereof shall be liable to be sold, may assent to any plan or agreement of reorganization which lawfully provides for the formation of a new corporation, and the issue of stock therein to the proper authorities or officers of such cities, towns or villages in exchange for the stock of the old or former corporation by them respectively held. And such commissioners, corporate authorities or other proper officers may assign, transfer or surrender the stock so held by them in the manner required by such plan, and accept in lieu thereof the stock issued by such new corporation in conformity therewith. Former L. 1890, ch. 564, sec. 6, as amended by L. 1892, ch. 688, sec. 6; L. 1901, ch. 354, sec. 1. This was sec. 6 of the former law. § 13. Change of place of business. Any stock corporation now existing or hereafter organized under the laws of this state, except moneyed corporations, may at any time change its principal office and place of business from the city, town or county named in its certificate of incorporation, or to which it may have been changed under the provisions of this section, to any other city, town or county in this state, in which it may desire to actually transact and carry on its regular business from day to day, provided that such change has been authorized, either by unanimous consent of the stockholders expressed in writing and duly acknowl- edged and filed in the office of the secretary of state, or by a vote of the stockholders of said corporation at a special meeting of 123 Stock Corporation Law. stockholders called for that purpose. When such change shall be authorized by the stockholders as herein provided, the president and secretary and a majority of the directors of such corporation shall sign a certificate stating the name of said corporation, the city, town and county where its principal office and place of business was originally located, and to which it may have been subsequently changed, and the city, town and county to which it is desired to change its said principal office and place of business, and that it is the purpose of said corporation to actually transact and carry on its regular business from day to day at such place, and that such change has been authorized as herein provided, and the names of the directors of said corporation and their respective places of residence, which certificate shall be verified by the oaths of all the persons signing the same, and when so signed and verified, shall be filed in the office of the secretary of state and a duplicate thereof in the office of the clerk of the county from which said principal office and place of business is about to be removed or changed, and another in the office of the clerk of the county to which said removal or change is to be made, and thereupon the principal office and place of business of such corporation shall be changed as stated in said certificate. Added by L. 1896, ch. 929, sec. 1, and amended by L. 1905, ch. 489, sec. 1. This was sec. 59 of the former law. In GpNERAL.—There is no prohibition as to an actual change of the locality in which a corporation may transact the principal part of its business. Uptegrove v. Schwarzwaelder, 46 App. Div. 20, 61 N. Y. Supp. 623, aff'd 167 N. Y. 587 mem. § 14. Combinations prohibited. No domestic stock corporation and no foreign corporation doing business in this state shall combine with any other corporation or person for the creation of a monopoly or the unlawful restraint of trade or for the prevention of competition in any necessary of life. Former L. 1890, ch. 564, sec. 7, as amended by L. 1892, ch. 688, sec. 7; L. 1897, ch. 384, sec. 1. This was sec. 7 of the former law. In GpNPRAL.—This act is little more than a codification of the common law on the subject. Matter of Davies, 168 N. Y. 89 (101). This section prohibits corporations from combining to accomplish three things: (1) Creation of a monopoly; (2) the unlawful restraint of trade; (3) the preven- tion of competition in any necessary of life. National Harrow Co. v. Bement & Sons, 21 App. Div. 290, 47 N. Y. Supp. 462, rev’d on other points in 163 N. Y. 505. If the business of a private individual or corporation is threatened with com- petition it is not illegal or immoral if one can persuade his competitor not to apply for a franchise or to abandon an enterprise in which both cannot succeed, and take employment with the one remaining in the business at a stated compensa- tion. Oakes v. Cattaraugus Water Co., 143 N. Y. 430. A contract for the sale of a business on condition that the vendor will not engage in the same business in that vicinity for a specified time is not in restraint of trade. Booth v. Siebold, 37 Misc. 101, 74 N. Y. Supp. 776. A contract by which one gas company agrees to issue its stock in exchange for 124 Srock Corporation Law. all of the stock of another gas company, entered into for the sole purpose of pre- venting ruinous competition, does not violate this section and is not in restraint of trade. Rafferty v. Buffalo City Gas Co., 37 App. Div. 618, 56 N. Y. Supp. 288. See, also, Matter of Consolidated Gas Co., 56 Misc. 49, 106 N. Y. Supp. 407. In Cohen y. Berlin & Jones E. Co., 166 N. Y. 292, the court declared void, as in restraint of trade, an agreement between manufacturers of 85 per cent of the envelopes of the country and an outside manufacturer, providing that the selling price for a term of years shall be fixed by a corporate agent. See, also, United States Vinegar Co. v. Foehrenbach, 148 N. Y. 58. A contract between a producing and a selling corporation giving the latter the exclusive right to sell tobacco products in a certain city, but not regulating the price or conferring upon the selling corporation any power which it did not already possess, is not void as in restraint of trade. Locker v. American Tobacco Co., 121 App. Div. 443, 106 N. Y. Supp. 115. The consolidation of two water companies covering the same territory is not prohibited by the section. Cameron v. New York & M. V. W. Co., 62 Hun 269, 16 N. Y. Supp. 757, aff'd 133 N. Y. 336. This section is inapplicable to the merger of street railways. Matter of Attorney-General, 125 App. Div. 804, 110 N. Y. Supp. 186. On the subject of the purchase of stock of other corporations, see sec. 52, post. Frepprat SraTurps.—The federal statutes need not be considered in an action in a state court to restrain an unlawful combination in restraint of the tobacco trade in a certain city. Locker vy. American Tobacco Co., 121 App. Div. 443, 106 N. Y. Supp. 115. ANNULMENT OF CHARTER.—The remedy to restrain and punish corporations for illegal conduct in the exercise of privileges or franchises not conferred by law, is an action by the attorney-general to suspend or annul the charter. Thomas v. Musical Mut. Pro. Union, 121 N. Y. 45. On the subject of an action by the attorney-general to annul the charter of a corporation for illegal acts, see sec. 131 of the Gen. Corp. L. § 15. Merger. Any domestic stock corporation and any foreign stock corporation authorized to do business in this state lawfully owning all the stock of any other stock corporation organized for, or engaged in business similar or incidental to that of the possessor corporation may file in the office of the secretary of state, under its common seal, a certificate of such ownership, and of the resolution of its board of directors to merge such other corporation, and thereupon it shall acquire and become, and be possessed of all the estate, property, rights, privileges and franchises of such other corporation, and they shall vest in and be held and enjoyed by it as fully and entirely and without change or diminution as the same were before held and en- joyed by such other corporation, and be managed and controlled by the board of directors of such possessor corporation, and in its name, but without prejudice to any liabilities of such other corporation or the rights of any creditors thereof. Any bridge corporation may be merged under this section with any railroad corporation which shall have acquired the right by contract to run its cars over the bridge of such bridge corporation. Added by L. 1896, ch. 932, sec. 1, and amended by L. 1900, ch. 476, sec. 1; L. 1902, ch. 98, sec. 1. This was sec. 58 of the former law. CoNnsOLIDATION.—As to the consolidation of corporations, see sec. 7 of the Business Corp. L. 125 Srock Corporation Law. § 16. Voluntary sale of franchise and property. A stock corporation, except a railroad corporation and except as otherwise provided by law, with the consent of two-thirds of its stock, may sell and convey its property, rights, privileges and franchises, or any interest therein or any part thereof to a domestic corporation, engaged in a business of the same general character, or which might be included in the certificate of incorporation of a corporation organizing under any general law of this state for a business of the same general character, and a domestic corporation the principal business of which is carried on in, and the principal tangible property of which is located within a state adjoining the state of New York, may with the consent of the holders of ninety-five per centum of its capital stock, sell and convey its property situate without the state of New York, not including its franchises, to a corporation organized under the laws of such adjoining state, and such sale and conveyance shall, in case of a sale to a domestic cor- poration, vest the rights, property and franchises thereby transferred, and in ease of a sale to a foreign corporation the property sold, in the corporation to which they are conveyed for the term of its cor- porate existence, subject to the provisions and restrictions applicable to the corporation conveying them. Before such sale or conveyance shall be made such consent shall be obtained at a meeting of the. stockholders called upon like notice as that required for an annual meeting. Added by L. 1893, ch. 638, sec. 1, as amended by L. 1901, ch. 130, sec. 1. This was a part of sec. 383 of the former law; for the remainder, see sec. 17, post. RIGHTS OF CREDITORS.—The rights of creditors cannot be impaired by the sale of the corporate plant and retirement from business. Hurd v. New York & C. 8. L. Co., 167 N. Y. 89. § 17. Rights of non-consenting stockholders on voluntary sale of franchise and property. If any stockholder not voting in favor of such proposed sale or conveyance shall at such meeting, or within twenty days thereafter, object to such sale, and demand payment for his stock, he may, within sixty days after such meeting, apply to the supreme court at any special term thereof held in the district in which the principal place of business of such corporation is situated, upon eight days’ notice to the corporation, for the appointment of three persons to appraise the value of such stock, and the court shall appoint three such appraisers, and designate the time and place of their proceedings as shall be deemed proper, and also direct the manner in which payment for such stock shall be made to such stockholders. The court may fill any vacancy in the board of appraisers occurring by refusal 126 Stock Corporation Law. or neglect to serve or otherwise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dissent, and deliver one copy to such corporation, and another to such stockholder, if demanded; the charges and expenses of the appraisers shall be paid by the corporation. When the corporation shall have paid the amount of such appraisal, as directed by the court, such stockholders shall cease to have any interest in such stock and in the corporate property of such corporation and such stock may be held or disposed of by such corporation. Added by L. 1893, ch. 638, sec. 1, as amended by L. 1901, ch. 180, sec. 1. This was a part of sec. 83 of the former law; for remainder, see sec. 16, supra. § 18. Alterations or extension of business. Any stock corporation heretofore or hereafter organized under any general or special law of this state may alter its certificate of incor- poration so as to include therein any purposes, powers or provisions which at the time of such alteration may apply to corporations engaged in a business of the same general character, or which might be included in the certificate of incorporation of a corporation organ- ized under any general law of this state for a business of the same general character, by filing in the manner provided for the original certificate of incorporation an amended certificate, executed by the president and secretary, stating the alteration proposed, and that the same has been duly authorized by a vote of a majority of the directors and also by vote of stockholders representing at least three-fifths of the capital stock, at a meeting of the stockholders called for the purpose in the manner provided in section sixty- three of this chapter, and a copy of the proceedings of such meeting, verified by the affidavit of one of the directors present thereat, shall be filed with such amended certificate. Added by L. 1892, ch. 688, sec. 32, as amended by L. 1901, ch. 354, sec. te L. 1905, ch. 751, sec. 1. This was sec. 32 of the former law. AMENDMENT OF CBRTIFICATE.—Under this section a gas company may amend its certificate so as to enable it to manufacture and use electricity for producing light, heat and power. People ex rel. Municipal Gas Co. v. Rice, 188 N. Y. 151. HxToNSION oF Existency.—As to the extension of corporate existence, see sec. 87 et seq., of the General Corp. Law. 127 Stock Corporation Law. ARTICLE 3. DIRECTORS AND OFFICERS. SEcTIon 25. Directors. 26. Change of number of directors. 27%. When acts of directors void. 28. Liability of directors for making unauthorized divi- dends. 29. Liability of directors for loans to stockholders. 30. Officers. ; 31. Inspectors and their oath. 32. Books to be kept. 33. Stock books of foreign corporations. 34. Annual report to secretary of state. 35. Liability of officers for false certificates, reports or public notices. § 25. Directors. The directors of every stock corporation shall be chosen at the time and place fixed by the by-laws of the corporation by a plurality of the votes at such election. Each director shall be a stockholder unless otherwise provided in the certificate, or in a by-law adopted by a stockholders’ meeting. Vacancies in the board of directors shall be filled in the manner prescribed in the by-laws. Notice of the time and place of holding any election of directors shall be given by pub- lication thereof, at least once in each week for two successive weeks immediately preceding such election, in a newspaper published in the county where such election is to be held, and in such other manner as may be prescribed in the by-laws. Policyholders of an insurance corporation shall be eligible to election as directors, whether or not they be stockholders. At least one-fourth in number of the directors of every stock corporation shall be elected annually. Former L. 1890, ch. 564, sec. 20, as amended by L. 1892, ch. 688, sec. 20; L. 1901, ch. 354, sec. 1; L. 1906, ch. 238, sec. 1. This was section 20 of the former law. WHo 1s A DinecTon—As defined in subd. 6, sec. 3, of the Gen. Corp. Law, the terms ‘“ Directors”’ shall include trustees, or other persons, by whatever name known, duly appointed to manage the affairs of the corporation. Mere election by stockholders without acceptance does not constitute one a director. United Growers Co. v. Eisner, 22 App. Div. 1, 47 N. Y. Supp. 906. Sec. 34 of the General Corp. Law requires that at least one member of the board of directors shall be a resident of New York state, ELECTION OF DirecToRS.—A meeting of stockholders for the election of direc- tors is not necessarily a ‘‘ meeting of stockholders,” within the meaning of a by-law 128 1 Srock CorporaTIon Law. requiring the presence of a majority of all the stock to make a quorum, since it is provided in sec. 25 of the Stock Corp. L. that a plurality of the votes cast is necessary. Matter of Rapid-Transit Ferry Co. 15 App. Div. 530, 44 N. Y. Supp. 539. The election of a director of a corporation by a majority of the legal votes cast, is not defeated by the receipt of illegal votes. Matter of Argus Co., 138 N. Y¥. 557. On the subject of proxies, see sec. 26 of the Gen. Corp. Law. On the effect of a failure to elect directors, see sec. 28 of the same law. And as to the refusal of directors to adopt by-laws enabling the stockholders to hold elections, see sec. 27, post. As to special elections and qualification of voters at such elections, see secs. 29, 30, 31, of the Gen. Corp. Law. As to a quorum of directors and powers of majority, see sec. 34 of such law. As to the powers of the Supreme Court re- specting elections, see sec. 32 of the same law. Noricn.—A failure to give the notice of elections as required by the by-laws will warrant the court in vacating an election on the application of a stockholder not served with the proper notice, although the result of a new election would pe the same. Matter of Keller, 116 App. Div. 58, 101 N. Y. Supp. 133. Notice of a special meeting need not be given a director who has not accepted the position, either expressly or by implication. United Growers Co. v. Hisner, 22 App. Div. 1, 47 N. Y. Supp. 906. Waiver.—A stockholder may lawfully waive service of the required notice. Matter of Keller, 116 App. Div. 58, 101 N. Y. Supp. 1383. VALIDITY oF BaLLoT.—It is settled law that where there is a printed name upon a ballot and a name written under it without the erasure of the printed name, it will be presumed that the voter failed to erase the printed name by mistake; and in absence of any requirement that such vote be rejected, it will be counted as a vote for the written name. People ex rel. Thorn v. Paughburn, 14 Misc. 195, 35 N. Y. Supp. 655. § 26. Change of number of directors. The number of directors of any stock corporation may bé increased or reduced, but not below the minimum number prescribed by law, when the stockholders owning a majority of the stock of the cor- poration shall so determine, at a meeting to be held on two weeks’ notice in writing to each stockholder of record. Such notice shall be served personally or by mail, directed to each stockholder at his last known post-office address. Proof of the service of such notice shall be filed in the office of the corporation at or before the time of such meeting. The proceedings of such meeting shall be entered in the minutes of the corporation and a transcript thereof verified by the president and secretary of the meeting shall be filed in the offices where the original certificates of incorporation were filed. Such increase or reduction may also be effected by unanimous consent without a meeting, in which case there shall be filed in the offices herein specified the unanimous consent of the stockholders in writing, signed by them, or their duly authorized proxies, but no such con- sent shall be valid unless there is annexed thereto an affidavit of the custodian of the stock book of such corporation stating that the per- sons who have signed such consent, either in person or by proxy, are the holders of record of the entire capital stock of said corporation issued and outstanding. If a corporation formed under or subject to 129 Stock Corporation Law. the banking law, the consent of the superintendent of banks, and if an insurance corporation, the consent of the superintendent of insur- ance, shall be first obtained to such increase or reduction of the number of directors. This section shall apply to any stock corporation whether organized under a general or special law, and the number of directors may be increased as hereby provided notwithstanding the maximum number of directors now prescribed by law. If the number of directors be increased, the additional directors authorized by such’ increase shall be elected by the votes of a majority of the directors in office at the time of the increase. If the original or an amended certificate of incorporation of the corporation shall provide that the directors shall be divided into two or more classes, whose terms of office shall respectively expire at different times, the addi- tional directors shall be divided among such classes as nearly as prac- ticable in proportion to the respective numbers of directors con- stituting each class prior to such increase. Former L. 1890, ch. 564, sec. 21, as amended by L. 1892, ch. 688, sec. 21; L. 19038, ch. 320, sec. 1; L. 1904, ch. 807, sec. 1; L. 1905, ch. 750, sec. 1. This was sec. 21 of the former law. Nucwessiry or FILING TRANSCRIPT.—The simple adoption of a resolution in- creasing or reducing the number of directors does not produce that result. Matter of Westchester T. Co., 186 N. Y. 215. A resolution reducing the number of directors does not become effective until the date of the filing in the proper offices of the transcript of the proceedings of the meeting at which the resolution was adopted. Matter of Dolgeville El. L. & P. Co., 160 N. Y. 500; Matter of Westchester T. Co., 186 N. Y. 215. But as to the effect of not filing on proceedings concurred in by all having an interest in the corporation, see Wallace v. Walsh, 125 N. Y. 26. RETROACTIVE EFFECT OF FILING.—A subsequent filing does not relate back so as to give effect to a resolution not operative of itself. Matter of Westchester T. Co., supra. METHOD OF EFFECTING CHANGH.—A vote to reduce the number of directors is powerless to accomplish that purpose, where there is no provision as to how the reduction shall be actually effected, and unless the number can be reduced by voluntary resignations, the resolution does not become effective until the next election. Matter of Manoca Temple Assoc., 128 App. Div. 796, 113 N. Y. Supp. 172. By-Law ForBIDDING CHANGE.—A by-law prohibiting a change in the number of directors, except by a vote of 90 per cent of the stockholders, is void, as in violation of the above section and subd. 5, sec. 11 of the Gen. Corp. Law. Kats v. H. & H. Mfg. Co., 109 App. Div. 49, 95 N. Y. Supp. 663, aff'd 183 N. Y. 578 mem, § 27. When acts of directors void. When the directors of any corporation for the first year of its corporate existence shall hold over and continue to be directors after the first year, because of their neglect or refusal to adopt the by-laws required to enable the stockholders to hold the annual election for directors, all their acts and proceedings while so holding over, done for and in the name of the corporation, designed to charge upon it any liability or obligation for the services of any such director, 130 Stock Corporation Law. or any officer, or attorney or counsel appointed by them, and every such liability or obligation shall be held to be fraudulent and void. Former L. 1890, ch. 564, sec. 22, re-enacted without change by L. 1892, ch. 688, sec. 22. This was sec. 22 of the former law. FaiLuRp TO Huact Drrecrors.—On the effect of a failure to elect directors, see sec. 28 of the Gen. Corp. Law. § 28. Liability of directors for making unautherized dividends. The directers ef a steck cerperatien shall net make dividends, except frem the surplus prefits arfsing frem the business of such cerperatien, ner divide, withdraw or in any way pay to the stock- holders or any of them, any part of the capital of such corporation, or reduce its capital stock, except as authorized by law. In case of any violation of the provisions of this section, the directors under whose administration the same may have happened, except those who may have caused their dissent therefrom to be entered at large upon the minutes of such directors at the time, or were not present when the same happened, shall jointly and severally be liable to such corporation and to the creditors thereof to the full amount of any loss sustained by such corporation or its creditors respectively by reason of such withdrawal, division or reduction. But this section shall not prevent a division and distribution of the assets of any such corporation remaining after the payment of all its debts and liabilities upon the dissolution of such corporation or the expiration of its char- ter; nor shall it prevent a corporation from accepting shares of its capital stock in complete or partial settlement of a debt owing to the corporation, which by the board of directors shall be deemed to be bad or doubtful. Former L. 1890, ch. 564, sec. 23, as amended by L. 1892, ch. 688, sec. 23; L. 1901, ch. 354, sec. 1. This was sec. 23 of the former law. In GBNERAL.—The object of this provision, as stated in Williams v. Western Union Teleg. Co., 93 N. Y. 162, is to prevent a withdrawal of the property which would reduce the value of the corporate assets below the sum limited for Its capital. See, also, Rorke v. Thomas, 56 N. Y. 559. The liability imposed by this section is to be treated as a provision for in- demnity for loss which the corporation or its creditors may sustain. Dykman vy. Keeney, 16 App. Div. 131, 45 N. Y. Supp. 137, aff'd 160 N. Y. 677 mem. Subd. 1, sec. 70, post, makes this section applicable to foreign corporations. Drrector’s LiaBinity.—A director whose Hability is established under this section, is not entitled to have his liability reduced by profits subsequently made under different management. Hutchinson v. Curtiss, 45 Misc. 484, 92 N. Y¥. Supp. 70. This section does not make directors Ilable for loss of commissions, discounts, etc., on a bond issue made necessary by making an unauthorized dividend from the capital. Hutchinson v. Curtiss, supra. STOCKHOLDER’S LIABILITY.—The stockholders will not be held liable to creditors for the issue of a stock dividend in excess of the accumulated earnings, where the directors acted in good faith in their overvaluation of the corporate property. Berwind-White Coal M. Co. v. Ewart, 11 Misc. 490, 832 N. ¥. Supp. 716. Wart Constirores “Capita, Stocx.’’—The term “ capital stock” as used in this section means the property of the corporation contributed by the stockholders, 131 Stock Corporation Law. or otherwise obtained, to the extent required by the charter. Williams v. Western Union Teleg. Co., 93 N. Y. 162. Waar Constitutes “Ner Incomp.”—Estimated profits are not net profits within the meaning of this section. Hutchinson v. Curtis, 45 Mise. 484, 92 N. Y. Supp. 70. The net income for dividend purposes cannot be determined until all taxes, depreciation, maintenance, and up-keep expenditures have been deducted. People ex rel, Jamaica Water Supply Co. v. State Bd. Tax Commrs., 128 App. Div. 13, 112 N. Y. Supp. 392. AS, to the inventory of raw material in determining whether the corporate books show a net profit, see Hutchinson v. Curtis, 45° Mise. 484, 92°N. Y. Supp. 70. DIVIDEND FROM+SURPLUS.«-This sectian does not prohibit a: dividend from an accumulation of surplus. Williams: vy. Western Union Teleg.. Co. 93 N. Y. 162; Burden v. Burden, 159 N. Y. 287. 8 29. Liability of directors for loans to stockholders. No loan of moneys shall be made by any stock corporation, except a moneyed corporation, or by any officer thereof out of its funds to any stockholder therein, nor shall any such corporation or officer discount any note or other evidence of debt, or receive the same in payment of any instalment or any part thereof due or to become due on any stock in such corporation, or receive or discount any note, or other evidence of debt, to enable any stockholder to with- draw any part of the money paid in by him on his stock. In case of the violation of any provision of this section, the officers or direc- tors making such loan, or assenting thereto, or receiving or dis- counting such notes or other evidences of debt, shall, jointly and severally, be personally liable to the extent of such loan and interest, for all the debts of the corporation contracted before the repayment of the sum loaned, and to the full amount of the notes or other evidences of debt so received or discounted, with interest from the time such liability accrued. Former L. 1890, ch. 564, sec. 25, as amended by L. 1892, ch. 688, sec. 25. This was sec. 25 of the former law. In GeNERAL.—The purpose of this section, like that of the preceding one, is to prevent a reduction of the capital under cover of loans to stockholders; it is intended as a protection to creditors. A. C. Nellis Co. v. Nellis, 62 Hun 63, 16 N. Y. Supp. 545. The loan must be of such a character as to create an indebtedness. Billings vy. Trask, 30 Hun 314. RaTiryInc Loan.—The crustees of a corporation have no power to ratify an unauthorized loan to a stockholder. A. C. Nellis Co. v. Nellis, supra. § 30. Officers. The directors of a stock corporation may appoint from their number a president, and may appoint a secretary, treasurer, and other officers, agents and employees, who shall respectively have such powers and perform such duties in the management of the property and affairs of the corporation, subject to the control of the directors, as may be prescribed by them or in the by-laws. The directors may 132 Srocx Corporation Law. require any such officer, agent or employee to give security for the faithful performance of his duties, and may remove him at pleasure. The policy-holders of an insurance corporation shall be eligible to election or appointment as its officers. Former L. 1890, ch. 564, sec. 27, as amended by L. 1892, ch. 688, sec. 27. This was sec. 27 of the former law. In GPNERAL.—One person may fill the offices of vice-president and treasurer. Novelty Mfg. Co. v. Connell, 88 Hun 254, 34 N. Y¥. Supp. 717. On the subject of the fiduciary relation of directors and officers to the cor- poration, personal liability of officers and directors, and right to compensation, see annotation under sec. 90 of the Gen. Corp. L. Bonp.—A bond given by an officer of a corporation upon his election to office for the term of one year, for his honesty and faithfulness “during his continu- ance in office,’ is not a continuing security and becomes inoperative upon re- election. Ulster Co. Sav. T. Co. v. Ostrander, 163 N. Y. 480; Order der Herrmann’s Sohns v. Freifeld, 20 Misc. 276, 45 N. Y. Supp. 420. § 31. Inspectors and their oath. The inspectors of election of every stock corporation shall be ap- pointed in the manner prescribed in the by-laws, but the inspectors of the first election of directors and of all previous meetings of the stockholders shall be appointed by the board of directors named in the certificate of incorporation. No director or officer of a moneyed corporation shall be eligible to election or appointment as inspector. Each inspector shall be entitled to a reasonable compensation for his services, to be paid by the corporation, and if any inspector shall refuse to serve, or neglect to attend at the election, or his office become vacant, the meeting may appoint an inspector in his place unless the by-laws otherwise provide. The inspectors appointed to act at any meeting of the stockholders shall, before entering upon the discharge of their duties, be sworn to faithfully execute the duties of inspector at such meeting with strict impartiality, and according to the best of their ability, and the oath so taken shall be subscribed by them, and immediately filed in the office of the clerk of the county in which such election or meeting shall be held, with a certificate of the result of the vote taken thereat. Former L. 1890, ch. 564, sec. 28, as amended by L. 1892, ch. 688, sec. 28. This was sec. 28 of the former law. In GpnpraL.—An election under the authority of only one inspector, is void. Matter of Lighthall Mfg. Co., 47 Hun 258. On the subject of elections generally, see sec. 26 et seq., of the General Corp. Law. FaILurp To Fitp OatTH.—An election will not be invalidated by a failure to file the inspectors’ oath, since this section is directory only. Union Nat’l Bk. v. Scott, 53 App. Div. 65, 66 N. Y. Supp. 145; Matter of Mohawk & H. R. Co., 19 Wend. 135. INSPECTORS AS CANDIDATDS.—In Hx parte Willcocks, 7 Cow. 402, it was held that an inspector may be a candidate. § 32. Books to be kept. Every stock corporation shall keep at its office correct books of ac- 133 Stock Corporation Law. count of all its business and transactions, and a book to be known as the stock book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners there- of, and the amount paid thereon, the stock book of every corporation shall be open daily, during at least three business hours, for the in- spection of its stockholders and judgment creditors, who may make extracts therefrom. No transfer of stock shall be valid as against the corporation, its stockholders and creditors for any purpose except to render the transferee liable for the debts of the corporation to the extent provided for in this chapter, until it shall have been en- tered in such book as required by this section, by an entry showing from and to whom transferred. The stock book of every such corpora- tion and the books of account of every bank shall be presumptive evidence of the facts therein so stated in favor of the plaintiff, in any action or proceeding against such corporation or any of its officers, directors or stockholders. Every corporation that shall neglect or tefuse to keep or cause to be kept such books, or to keep any book open for inspection as herein required, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect or refuse. If any officer or agent of any such corporation shall wilfully neglect or refuse to make any proper entry in such book or books, or shall neglect or refuse to exhibit the same, or to allow them to be inspected and extracts taken therefrom as provided in this section, the corpo- ration and such officer or agent shall each forfeit and pay to the party injured a penalty of fifty dollars for every such neglect or refusal, and all damages resulting to him therefrom. Former L. 1890, ch. 564, sec. 29, as amended by L. 1892, ch. 688, sec. 29; L. 1900, ch. 128, sec. 1; L. 1901, ch. 354, sec. 1. This was sec. 29 of the former law. STOCKHOLDnR’s RicHT TO INsPEcT Books—-AT Common Law.—A stockholder in a corporation has a common law right to examine the corporate books and rec- ords at all reasonable and proper times for the purpose of ascertaining information relating to his relation to the corporation. People vy. Onderdonk, 1 How. Pr. 247; Ranger v. Champion Cott Co., 51 Fed. 611; Rex v. Newcastle, 2 Strange (Hng.) 1223; Matter of Rappleye, 43 App. Div. 84, 59 N. Y. Supp. 338; Matter of Steinway, 159 N. Y. 250; People ex rel. Venner v. New York L. Ins. Co., 111 App. Div. 183, 97 N. Y. Supp. 465. And above section of the corporation law does not affect this common law right of a stockholder; it strengthens that right. Matter of Steinway, supra; People ex rel. Venner vy. New York L. Ins. Co., supra. Wuart Books OprEn.—A corporation cannot defeat the right of stockholders to inspect the corporate books by omitting to keep the book prescribed, but it is the duty of the corporation to permit the inspection of such books as it does keep. People ex rel. Richmond v. Pacific Mail 8. S. Co., 50 Barb. 280; Buker vy. Steele, 43 N. Y. Supp. 346. A corporation is not obliged to keep a stock-book in the precise form mentioned 134 Stocx Corporation Law. in the statute, so long as the one kept contains the necessary information. Matter of Utica Fire Alarm Teleg. Co., 115 App. Div. 821, 101 N. Y. Supp. 109. DEMAND FoR INSPECTION.—A demand for all of the books of a corporation does not constitute such a demand for the stock-book as will subject the officer to the penalty imposed. Bunker vy. Steele, 43 N. Y. Supp. 346. An allegation that a stockholder has no knowledge of the condition of the corporation, is insufficient to compel an inspection of the books, etc., of a cor- poration. Matter of Latimer, 75 App. Div. 522, 78 N. Y. Supp. 314. WHO May MAaxkpb DEMsnp.—The right to examine the books and records of a corporation is purely a personal right, depending on the ownership of corporate stock. Matter of Hastings, 120 App. Div. 756, 105 N. Y. Supp. 834. Therefore, a mere custodian of stock, holding it merely for the purpose of preserving it pending a litigation as to ownership, is not a member of the cor- poration entitled to an inspection of the books and records. Matter of Hastings, supra; see subsequent appeal in 128 App. Div. 516, 112 N. Y. Supp. 800. An attorney in fact applying for a peremptory writ of mandamus requiring a corporation to permit the examination of its books by one of its stockholders, must produce his authority. Latimer v. Herzog Teleseme Co., 75 App. Div. 522, 78 N. Y. Supp. 314. : It was held, in People ex rel. McDonald v. United States Mer. Rep. Co., 20 Abb. N. C. 194, that a demand by the attorney for relator, and not by the relator himself, was insufficient. See, also, Matter of Martin, 62 Hun 557, 17 N. Y. Supp. 133. The officers of a corporation are not justified in refusing to permit a stock- ‘holder to examine the books because his attorney is present with him. People ex rel. Clason v. Nassau Ferry Co., 86 Hun 128, 33 N. Y. Supp. 244. A policy holder in a non-stock insurance company is not entitled to a card index list of the policy holders for the purpose of enabling him to solicit such holders to act in unison in the election of trustees. People ex rel. Venner v. New York L. Ins. Co., 11 App. Div. 183, 97 N. Y. Supp. 465. An executor and sole legatee of a deceased stockholder is entitled to examine and make extracts from the books and records of a corporation. Matter of Hastings, 128 App. Div. 516, 112 N. Y. Supp. 800; 56 Misc. 45, 106 N. Y. 938. The fact that a stockholder who owns 43 per cent of the stock, manufactures musical instruments similar to those made by the corporation does not deprive him of the right to inspect the general books, made under a claim of mismanage- ment. People ex rel. Ludwig v. Ludwig & Co., 126 App. Div. 696, 111 N. Y. Supp. 94. An administrator 1s not entitled to inspect the books to determine whether there was any agreement between his interests and another as to equal control of the corporation; he should first examine the officers to ascertain what books would throw light upon his inquiry. Brewster v. Hartog, 127 App. Div. 729, 111 N. Y. Supp. 1026. RBFUSAL TO GRANT REQUEST.—It is a question for the jury to decide whether it is reasonable to request a stockholder to wait from Saturday till Monday to see the stock-book. Kelsey v. Pfauder Process F. Co., 3 N. Y. Supp. 723 (in this case the stock-book was in the safe and the one upon whom the demand was made did not know the combination). See, also, Kirkman y. Carlstadt Chemical Co., 36 Misc. 822, 74 N. Y. Supp. 865. The fact that a certificate of stock has never been issued to the one demanding to see the stock-book, does not justify an officer in refusing to exhibit the book, since the certificate is only evidence of the citle. Bunker y. Steele, 43 N. Y. Supp. 346. The statement by the secretary, in response to a request for the stock-book of a corporation that the book was not at che main office but at the office of the presi- dent only a short distance away, where it could be seen, does not constitute a re- fusal or neglect to exhibit the book within’ the meaning of the statute. Lozier y. Saratoga Gas, El. & P. Co., 59 App. Div. 390, 69 N. Y. Supp. 247. Purrosh oF INSPECTION.—The application of a stockholder to examine the general business books of a corporation must be made in good faith; the court will not order an inspection unless the stockholder seeks to learn something that he has a right to know for his own protection. People ex rel. Callanan vy. Keeseville, 135 Stock Corporation Law. ete, R. Co, 106 App. Div. 349, 94 N. Y. Supp. 555; People ex rel. McElwee v. Produce Ex. T. Co., 53 App. Div. 93, 65 N. Y. Supp. 926; Matter of Latimer, 75 App. Div. 522, 78 N. Y. Supp. 314. If an exhibition of the corporate books is demanded for the purpose of in- juring the corporation, a writ of mandamus will be denied. Matter of Kennedy, 75 App. Div. 188, 77 N. ¥. Supp. 714; People ex rel. Hunter y. Nat'l Bk., 122 App. Div. 635, 107 N. Y. Supp. 369. The right of a stockholder to inspect corporate books to enable him to frame his complaint in an action against an officer of the corporation for official mis- conduct, is governed by the law applicable to proceedings for discovery in pending actions, and not by the law governing a stockholder’s rights to obtain an inspec- tion. Walsh v. Press Co., 48 App. Div. 333, 62 N. Y. Supp. 833. An application for a writ of mandamus to allow the inspection of corporate books and papers for the purpose of ascertaining facts concerning a loan made by the corporation, to place the matter before the district attorney and attorney- general and to cause the parties to make good any deficit, was denied in People ex rel. McElwee v. Produce Ex. T. Co., 58 App. Div. 93, 65 N. Y. Supp. 926, on the ground that a stockholder has no right to examine the books for that purpose. A stockholder is bound to disclose his motive in asking to inspect the cor- porate books and make extracts therefrom. Henry v. Babcock & Wilcox Co., 125 App. Div. 538, 109 N. Y. Supp. 853. But the motive in asking for an inspection of the stock-book is immaterial. People ex rel. Gunst v. Goldstein, 87 App. Div. 550, 56 N. Y. Supp. 306; People ex rel. Callanan y. Keeseville, A. C. & L. C. R. Co., 106 App. Div. 349, 94 N. Y. Supp. 555; People ex rel. Harriman v. Paton, 20 Abb. N. C. 195. MANDAMUS.—Mandamus is the proper remedy of a stockholder who is denied the right to inspect the corporate books in general. Matter of Steinway, 159 N. ¥. 250 (leading) ; People ex rel. Muir v. Throop, 12 Wend. 183; People ex rel. Callanan v. Keeseville, etc., R. Co., 106 App. Div. 349, 94 N. Y. Supp. 555; Matter of Colwell, 76 App. Div. 615, 78 N. Y. Supp. 607; Walsh v. Press Co., 48 App. Div. 333, 62 N. Y. Supp. 833. But the right to mandamus is not an absolute one; the granting of the writ rests in the sound discretion of the court. Matter of Steinway, supra; People ex rel. Hunter v. Nat’l Bk., 122 App. Div. 635, 107 N. Y. Supp. 369. Stockholders owning five per cent of the capital stock, who desire an inspcc- tion of the records, books of account, etc., should exhaust their remedy under sec. 69, post, before asking for a writ of mandamus. People ex rel. Clason v. Nassau Ferry Co., 86 Hun 128, 33 N. Y. Supp. 244. See Matter of Colwell, 76 App. Div. 615, 78 N. Y. Supp. 607. RicHTt TO Makp Mpmoranps.—It is the stockholder’s right to copy matter from the corporate books and records. Matter of Martin, 62 Hun 557, 17 N. Y. Supp. 133, aff'd 133 N. Y. 692 mem. Cotheal v. Brouwer, 5 N. Y. 562. The statute expressly provides that stockholders and judgment creditors may make extracts. An officer who permits an inspection of the corporate books, but denies the stockholder the right to make extracts therefrom, is liable to the penalty imposed by the statute. Cotheal v. Brouwer, 5 N. Y. 562. PENALTIES.—The right of action for the penalty imposed by this section for failure to keep a stock-book, musc be brought by the state and not by a stock- holder. Billingham v. E. P. Gleason Mfg. Co., 43 Misc. 681, 88 N. Y. Supp. 398; Lozier v. Saratoga Gas, El. L. & P. Co., 59 App. Div. 390, 69 N. Y. Supp. 247. An officer of a corporation cannot be held liable for the penalty provided in this section for his failure to exhibit a stock-book not in his possession. Gould v. Olympic Min. Co., 49 Misc. 612, 96 N. Y. Supp. 455. As said by the court, in Lozier v. Saratoga Gas, El. L. & P. Co., 59 App. Div. 390, 69 N. Y. Supp. 247, a servant of a corporation should not be made liable for the penalty for failing to do what was not within his power to do. See, also, Kennedy v. Chicago, ete., R. Co., 14 Abb. N. C. 326. The secretary of a corporation is not subject to the penalty for his refusal to exhibit the stock-book, where the corporation keeps no such book as required by this section. Billingham v. E. P. Gleason Mfg. Co., 43 Misc. 681, 88 N. Y. Supp. 398. After one refusal to examine the stock-book, a stockholder has no right to continue to make demands for inspection merely for the sake of accumulating 136 Stock Corporation Law. penalties. Walcott v. Little, 46 Misc. 96, 91 N. Y. Supp. 411; Cox v. Paul, 175 N. Y. 328. A stockholder need not make proof of injury to enable him to recover the penalty imposed for a refusal to exhibit the stock-book; the denial of the right to inspect the book is the injury contemplated. Kelsey v. Pfaudler Process F. Co., 3 N. Y. Supp. 723; Buker v. Steele, 43 N. Y. Supp. 346. RicHt Tro INsprecr By-Laws.—Apparently the right of a stockholder to inspect the by-laws of a corporation is an absolute right, since they constitute a part of the contract between the stockholder and the corporation. Matter of Coats, 75 App. Div. 567, 78 N. Y. 429. § 33. Stock books of foreign corporations. Every foreign stock corporation having an office for the transaction of business in this state, except moneyed and railroad corporations, shall keep therein a book to be known as a stock book, containing the names, alphabetically arranged, of all persons who are stockholders of the corporation, showing their places of residence, the number of shares of stock held by them respectively, the time when they respectively became the owners thereof, and the amount paid thereon. Such stock book shall be open daily, during business hours, for the inspection of its stockholders and judgment creditors, and any officer of the state authorized by law to investigate the affairs of any such corporation. If any such foreign stock corporation has in this state a transfer agent, whether such agent shall be a corporation or a natural person, such stock book may be deposited in the office of such agent and shall be open to inspection at all times during the usual hours of transacting business, to any stockholder, judgment creditor or officer of the state authorized by law to investigate the affairs of such corporation. For any refusal to allow such book to be inspected, such corporation and the officer or agent so refusing shall each forfeit the sum of two hundred and fifty dollars to be recovered by the person to whom such refusal was made. Former L. 1890, ch. 564, sec. 56, as amended by L. 1892, ch. 688, sec. 53, and amended by L. 1897, ch. 384, sec. 3. This was sec. 53 of the former law. INSPECTION AS COMMON Law RiIGHT.—The common law right of a stockholder to inspect the books of a domestic corporation, does not apply to a foreign cor- poration. People ex rel. Singer vy. Knickerbocker T. Co., 88 Misc. 446, 77 N. Y. Supp. 1000, and cases cited. Booxs Sussecr To INSPECTION.—If the transfer agent of the corporation does not keep the book prescribed by this section, a stockholder has the right to examine such books as are kept containing some or most of the information which would be shown by a stock-book. People ex rel. Singer v. Knickerbocker T. Co., supra. And the statute is not satisfied by the keeping of a book which fails to show the residence by street and number of the city stockholders, and where in more than half of the cases the word ‘‘ unknown” is inserted in the column provided for the amount paid on stock. Fay v. Coughlin-Sanford Co., 47 Misc. 687, 94 N. Y. Supp. 628. Wuers Boox To Bp Kept.—The stock-book must be kept in the office in this state, and a stockholder has a right to inspect it here. Ricknagel v. Empire Self- Lighting O-L Co., 24 Misc. 193, 52 N. Y. Supp. 635. A corporation, whether it has a transfer agent or not, is required to exhibit its stock-book where it has an office in the state for the transaction of business. 137 Stock Corporation Law. People ex rel. Miles vy. Montreal & B. Copper Co., 40 Misc. 282, 81 N. Y. Supp. 974. The fact that the stock-book is in another city in the hands of an accountant to be written up, or that the officer upon whom the demand is made offers to have it at the main office of the corporation in another state on a subsequent day, will not relieve the corporation from the statutory liability. Recknagel v. Empire Self- Lighting O-L Co., supra. RicHT TO Makp Extracrs.—The statute does not in express terms confer the right to make extracts. But, in People ex rel. Althause vy. Giroux Consol. Min. Co., 122 App. Div. 617, 107 N. Y. Supp. 188, the court intimated that such right may be given when the application is made for a proper purpose. See, also, Henry v. Babcock & Wilcox Co., 125 App. Div. 538, 109 N. Y. Supp. 853. Houghton, J., dissenting, held that the right to inspect conferred the right to make extracts as a necessary incident. In this case the stockholder refused to state his reason for desiring an inspection. And in Fay vy. Coughlin-Sanford S. Co., 47 Misc. 687, 94 N. Y. Supp. 628, the court said that ‘the right of inspection * * * carries with it the right to make such extracts from the books as will enable the shareholder to retain the information disclosed by the inspection.” MANDAMUS TO COMPEL INSPECTION.—The courts of this state have no power to grant a writ of mandamus upon an application by a stockholder of a foreign corporation to compel an inspection of its books and records; the right is en- forceable only by the courts of the state in which the corporation has its legal existence. Mitchell vy. Northern Security O. & T. Co., 44 Mise. 514, 90 N. Y. Supp. 60, aff'd 99 App. Div. 624 mem. There is no express provision of law authorizing the issuance of a writ of mandamus to compel the officer to permit the making of extracts. People ex rel. Althause v. Giroux Consol. Min. Co., 122 App. Div. 617, 107 N. Y. Supp. 188. An application for a writ of mandamus to inspect the stock-book of a foreign corporation, not made in good faith, but for the purpose of obtaining a mailing list of the stockholders for use as a broker, will be denied. People ex rel. Althause v. Giroux Consol. Min. Co., supra. Mandamus will be denied against a foreign corporation to compel an inspec- tion of its books and records by one of its stockholders residing in the state, not made in an action at law or in equity, but who merely desires to examine the books as a member of the corporation. Matter of Rappleye, 483 App. Div. 84, 59 N. Y. Supp. 338; Matter of Crosby, 43 App. Div. 618, 59 N. Y. Supp. 340. CONSTRUCTION or StatuTy.—This statute, being penal in its nature, must be strictly construed. Greene v. Shain, 22 Misc. 720, 49 N. Y. Supp. 1061. The provisions of this section are mandatory upon every forelgn corporation having an office for the transaction of business in the state. Fay y. Coughlin- Sanford S. Co., 47 Misc. 687, 94 N. Y. Supp. 628; People ex rel. Miles v. Montreal & B. Copper Co., 40 Mise. 282, 81 N. Y. Supp. 974. This statute is inapplicable to a corporation which has ceased to do business and given up its office, although its franchise has not lapsed or its officers abdicated. Fuller v. O’Connor, 61 Misc. 279, 113 N. Y. Supp. 684. PROOF FOR PHNALTY.—Before a recovery of the statutory penalty will be allowed, the plaintiff must show that the corporation is a stock corporation and not a monied or railroad corporation and that it has an office for the transaction of business or a transfer agent in the state. Hollister v. DeForest Wireless Teleg. Co., 47 Misc. 674, 94 N. Y. Supp. 504; Seydel v. Corporation L. Co., 46 Misc. 576, 92 N. Y. Supp. 225. In an action to recover the statutory penalty, it is not necessary to show in addition to a demand on the person apparently in charge of the office, that such person bore any particular relation to the corporation. Pelletreau vy. Greene Consol. Gold Min. Co., 49 Misc. 233, 97 N. Y. Supp. 391. CONSTITUTIONALITY.—This statute is not unconstitutional as imposing a heavier penalty upon a foreign corporation for a refusal to permit an examination of its stock-book than is imposed by sec. 32, supra, upon a domestic corporation. Pelletreau v. Greene Consol. Gold Min. Co., supra. § 34. Annual report to secretary of state. Every domestic stock corporation and every foreign stock cor- 138 Stock Corporation Law. poration doing business within this state, except moneyed and rail- road corporations, shall annually, during the month of January, or, if doing business without the United States, before the first day of May, may make a report as of the first day of January, which will state: 1. The amount of its capital stock, and the proportion actually issued. 2. The amount of its debts or an amount which they do not exceed. 3. The amount of its assets or an amount which its assets at least equal. 4, The names and addresses of all the directors and officers of the company, and in the case of a foreign corporation, the name also of the person designated in the manner prescribed by the code of civil procedure, as a person upon whom process against the corporation may be served within this state. Such report shall be made by the president or a vice-president or the treasurer or a secretary of the corporation and shall be filed in the office of the secretary of state. If such report be not so made and filed, any such officer who shall thereafter neglect or refuse to make and to file such report, within ten days after written request so to do shall have been made by a creditor or by a stockholder of the corpora- tion, shall forfeit to the people the sum of fifty dollars for every day he shall so neglect or refuse. Former L. 1890, ch. 564, sec. 30, as amended by L. 1892, ch. 2, sec. 1, and ch. 688, sec. 280; L. 1897, ch. 384, sec. 2; L. 1901, ch. 354, sec. 1; L. 1905, ch. 415, sec. This was sec. 30 of the former law. In GENERAL.—The amendment of 1901 modified this section in many particu- lars and has made the requirements more fair. In the citation of authorities under this section, care should be exercised not to use those which the above amendment has rendered inapplicable. Sec. 34 of the former law on the subject of Ifability of directors for failure to file an annual report has been omitted. A report made “ professedly in compliance with the statute’ will be accepted. American Grocery Co. v. Pratt, 36 App. Div. 152, 55 N. Y. Supp. 467, aff’d 161 N. Y. 649 mem. As to the report of stock or bonds issued for property, see sec. 55, post. Susp. 3.—The requirements of this subdivision are not satisfied by a statement that the corporate assets do not exceed a certain amount. Lilienthal y. Betz, 61 App. Div. 601, 70 N. Y. Supp. 920, aff'd 172 N. Y. 643 mem. § 35. Liability of officers for false certificates, reports or public notices. If any certificate or report made or public notice given by the officers or directors of a stock corporation shall be false in any ' material representation, the officers and directors signing the same shall jointly and severally be personally liable to any person who has become a creditor or stockholder of the corporation upon the faith of any such certificate, report, notice or any material representation 139 Srock Corporation Law. therein to the amount of the debt contracted upon the faith thereof if not paid when due, or the damage sustained by any purchaser of or subscriber to its stock upon the faith thereof. The liability imposed by this section shall exist in all cases where the contents of any such certificate, report or notice or of any material representation therein shall have been communicated either directly or indirectly to the person so becoming a creditor or stockholder and he became such credi- tor or stockholder upon the faith thereof. No action can be main- tained for a cause of action created by this section unless brought within two years from the time the certificate, report or public notice shall have been made or given by the officers or directors of such coporation. Former L. 1890, ch. 564, sec. 31, as amended by L. 1892, ch. 688, sec. 31. This was sec. 31 of the former law. Stature as PenAL.—The liability imposed by this section is not penal. MHut- chinson vy. Young, 80 App. Div. 246, 80 N. Y. Supp. 259. ARTICLE 4. STOCK AND STOCKHOLDERS. Srction 50. Issue and transfer of stock. 51. Transfers of stock by stockholder indebted to corpora- tion. 52. Purchase of stock of other corporations. 53. Subscriptions to stock. 54. Time of payment of subscriptions to stock. 55. Consideration for issue of stock and bonds. 56. Liabilities of stockholders. 5%. Liabilities of stockholders to laborers, ane or em- ployees. 58. Non-liability in certain cases. 59. Limitation of stockholder’s liability. 60. Partly paid stock. 61. Preferred and common stock. 62. Increase or reduction of capital stock. 63. Notice of meeting to increase or reduce capital stock. 64. Conduct of such meeting; certificate of increase or reduction 65. Change in par value of shares. 66. Prohibited transfers to officers or stockholders. 67. Application to court to order issue of new in place of lost certificate of stock. 140 Stock Corporation Law. Section 68. Order of court upon such application. 69. Financial statement to stockholders. 70. Liabilities of officers, directors and stockholders of foreign corporations. § 50. Issue and transfers of stock. The stock of every stock corporation shall be represented by cer- tificates prepared by the directors and signed by the president or vice- president and secretary or treasurer and sealed with the seal of the corporation, and shall be transferable in the manner prescribed in this chapter and in the by-laws. No shares shall be transferable until all previous calls thereon shall have been fully paid in. Part of former L. 1890, ch. 564, sec. 40, as amended by L. 1892, ch. 688, sec. 40; L. 1902, ch. 601, sec. 1. This was the first paragraph of sec. 40 of the former law; for a portion of the second paragraph, see sec. 52, post. PowmbrR To Issup STock.—The rights to issue certificates of stock is not one of the implied or incidental powers of a corporation; such right, if it exists at all, is by virtue of the charter of the corporation or the statute under which it is incorporated. Reno Oil Co. v. Culver, 60 App. Div. 129, 69 N. Y. Supp. 969. DBLIVERY OF CBRTIFICATH.—A certificate is not necessary to make a subscriber to the stock of a corporation a stockholder, whether he becomes such before or after its organization; it is merely evidence of that relation. Kohlmetz v. Calkins, 16 App. Div. 518, 44 N. Y. Supp. 1031. The relation of a stockholder in a corporation is created by the subscription agreement, and it is not essential to such relation that a certificate of stock be actually issued. Beals v. Buffalo Const. Co., 49 App. Div. 589, 63 N. Y. Supp. 635. The unqualified owner of a certificate has a prima facie right to have the stock transferred to him on the books of the corporation. Williamson vy. Anderson, (App. Div.), 56 N. Y. Supp. 833. On the right to compel the issuance of a certificate, see Bedford v. American Aluminum Co., 51 App. Div. 537, 64 N. Y. Supp. 856. And on the application to the court to order the issuance of a new certificate of stock in place of one that has been lost, see secs. 67, 68, post. LIABILITY FOR CaLLs.—A stockholder whose stock has not been fully paid in, is not liable for calls made after a bona fide transfer to another. Billings v. Robinson, 94 N. Y. 415; Van Cott v. Van Brunt, 82 N. Y. 535. § 51. Transfers of stock by stockholder indebted to corporation. If a stockholder shall be indebted to the corporation, the directors may refuse to consent to a transfer of his stock until such indebted- ness is paid, provided a copy of this section is written or printed upon the certificate of stock. : Former L. 1890, ch. 564, sec. 26, as re-enacted by L. 1892, ch. 688, sec. 26. This was section 26 of the former law. ABSENCH oF INDORSEMENT.—In absence of an indorsement of this provision upon the stock certificate, and in absence of any by-law making stock non-trans- ferable until full payment, a subscriber is not liable to pay in full for the stock subscribed by him, after he has ceased to be a stockholder by a bona fide transfer of his shares. Rochester & K. F. Land Co. v. Raymond, 158 N. Y. 576. RATIFICATION OF TRANSFPR.—A corporation which ratified a transfer of unpaid stock by cancelling the old certificate and issuing a new one therefor, cannot, twenty months thereafter, disaffirm the transfer, assuming that it was fraudulent. Ro- chester & K. F. Land Co. v. Raymond, supra. See, also, Billings v. Robinson, 94 N. Y. 415 (420). NSGOTIABILITY OF CPRTIFICATHS.—Stock certificates are not negotiable instru- 141 Stock Corporation Law. ments, although in the hands of holders for value and without notice, they are invested with some of the characteristics of negotiablity. Weil v. Gallum, 75 App. Diy. 439, 78 N. Y. Supp. 300. But, see Treadwell v. Clark, 73 App. Div. 473, 77 N. Y. Supp. 350, in which it was held that the rule respecting commercial paper in the hands of third parties not charged with notice of existing equities between the original parties, does not apply to certificates of stock, even if indorsed in blank. See, also, Knox v, Eden Musee Co., 148 N. Y. 441. § 52. Purchase of stock of other corporations. Any stock corporation, domestic or foreign, now existing or here- after organized, except moneyed corporations, may purchase, acquire, hold and dispose of the stocks, bonds and other evidences of in- debtedness of any corporation, domestic or foreign, and issue in ex- change therefor its stock, bonds or pther obligations if authorized so to do by a provision in the certificate of incorporation of such stock corporation, or in any certificate amendatory thereof or supplemen- tary thereto, filed in pursuance of law, or if the corporation whose stock is so purchased, acquired, held or disposed of, is engaged in a business similar to that of such stock corporation, or engaged in the manufacture, use or sale of the property, or in the construction or operation of works necessary or useful in the business of such stock corporation, or in which or in connection with which the manu- factured articles, product or property of such stock corporation are or may be used, or is a corporation with which such stock corporation is or may be authorized to consolidate. When any such corporation shall be a stockholder in any other corporation, as herein provided, its president or other officers shall be eligible to the office of director of such corporation, the same as if they were individually stock- holders therein, and the corporation holding such stock shall possess and exercise in respect thereof, all the rights, powers and privileges of individual owners or holders of such stock. Part of former L. 1890, ch. 564, sec. 40, as amended by L. 1892, ch. 688, sec. 40; L. 1902, ch. 601, sec. 1. This was a portion of the second paragraph of sec. 40 of the former law; for the first paragraph, see sec. 50, supra. Powrr TO PURCHASE OR TAkp STocK.—A corporation cannot purchase or deal in stocks of other corporations unless expressly authorized by law to do so. Holmes & Griggs Mfg. Co. v. Holmes & Wessell M. Co., 127 N. Y. 252, and cases cited on page 257. But it may take stock in payment of debts or the purchase price of property sold. Holmes & Griggs Mfg. Co. v. Holmes & Wessell M. Co., supra; Talmage v. Pell, 7 N. ¥. 328; Hyde v. Equitable L. Assur. Soc., 61 Misc. 518, 116 N. Y. Supp. 219; National Bk. v. Case, 99 U. S. 628. And it will not be assumed that such stock was acquired ultra vires or un- lawfully. Evans vy. Bailey, 66 Cal. 112. A corporation may sell its plant to another corporation, with the consent of its stockholders, and retire from business, taking payment in the stock of the other corporation. Holmes & Griggs Mfg. Co. v. Holmes & Wessell M. Co., 127 N. Y. 252, But it cannot, even with the consent of stockholders, after the rights of creditors have intervened, sell its plant to another corporation and retire from business, taking in payment the stock of the purchasing corporation, which is issued not to it or to its officers as trustees, but to an individual stockholder who does 142 Stock Corporation Law. not become responsible for the corporate debts. Hurd v. New York C. 8. Laundry Co., 167 N. Y. 89; Cole v. Millerton Iron Co., 183 N. Y. 164. This decision is pased on the doctrine that the assets of a corporation constitute a trust fund for the payment of the corporate debts, and upon which the creditors have an equit- able lien. This section does not permit one corporation to create another, endow it with capital stock from its own assets and take all of its shares of stock in exchange. ' Schwab v. BD. G. Potter Co. 194 N. Y. 409. Errect ON CORPORATE Existence.—A corporation does not lose its identity or its right to have officers by the purchase by another corporation of all of its stock. Einstein v. Rochester G. & B. Co., 146 N. Y. 46. On the subject of the extension of the life of the corporation when the stock is owned by another corporation, see sec. 40 of the Gen. Corp. L. AmouNT.—This section places no limitation upon the amount of stock which may be acquired by a kindred company; it may acquire every share, when a merger will follow. Matter of Consolidated Gas Co., 56 Misc. 49, 106 N. Y. Supp. 407. And there is nothing in the anti-monopoly act which limits the right of one corporation to acquire stock in another. Matter of Consolidated Gas Co., supra. To InsguRm Rivau.—One corporation has no right to obtain control of the affairs of a competing corporktion, impair its financial standing and then institute an action in equity to enforce its obligations for the sole purpose of injuring the minority stockholders. Farmers’ Loan & T. Co. v. New York & N. R. Co., 150 N. Y. 410 (431). On the other hand, one gas company may purchase the stock and bonds of a rival gas company for the purpose of preventing ruinous competition. Rafferty v. Buffalo City Gas Co., 37 App. Div. 618, 56 N. Y. Supp. 288. With reference to the provisions against unlawful combinations, see secs. 14, 15, supra. § 53. Subscriptions to stock. If the whole capital stock shall not have been subscribed at the time of filing the certificate of incorporation, the directors named in the certificate may open books of subscription to fill up the capital stock in such places and after giving such notices as they may deem expedient, and may continue to receive ‘subscriptions until the whole capital stock is subscribed. At the time of subscribing, every sub- seriber, whose subscription is payable in money, shall pay to the directors ten per centum upon the amount subscribed by him in cash, and no such subscription shall be received or taken without such payment. Former L. 1890, ch. 564, sec. 41, as re-enacted by L. 1892, ch. 688, sec. 41. This was sec. 41 of the former Stock Corp. Law. In GpnERAL.—In this state the statutes and not common law principles regu- late contracts for shareholding in corporations. Hapgoods v. Lusch, 123 App. Div. 23, 107 N. Y. Supp. 331. PAYMENT OF REQUIRED Pur CENntT.—Attention is called to the provision that only those subscribers whose subscription is payable in money are required to pay ten per cent of the amount subscribed; see sec. 55, post. It is not essential in the case of original subscription for stock, made for the purpose of organization, that ten per cent required by this section should be paid in at the time. United Growers Co. v. Eisner, 22 App. Div. 1, 47 N. Y. Supp. 906. But payment is imposed only upon those who subscribe after the organization of the corporation. Yonkers Gazette Co. v. Taylor, 30 App. Div. 834, 51 N. Y. Supp. 969; United Growers Co. v. Bisner, 22 App. Div. 1, 47 N. Y. Supp. 906; Van Schaick v. Mackin, 129 App. Div. 335, 113 N. Y. Supp. 408. Where the required per centum has not been paid, an action cannot be main- 143 Stock Corporation Law. tained to recover the amount of stock subscribed. Wxcelsior Grain B. Co. v. Strayner, 25 Hun 91; Perry v. Hoadley, 19 Abb. N. C. 76. An original subscriber who, after the organization of the corporation, sub- scribed for more stock is required to pay the ten per centum on the latter. United Growers Co. vy. Eisner, 22 App. Div. 1, 47 N. Y. Supp. 906. And a failure to pay the required ten per centum renders void a subscription made after incorporation. South Buffalo Nat. G. Co. v. Bain, 9 Misc. 425, 30 N. Y. Supp. 264, and cases cited. Giving a note for the required ten per centum of the stock purchased does not constitute a payment within the meaning of this section, but merely a promise to pay. Hapsgoods v. Lusch, 123 App. Div. 23, 107 N. Y. Supp. 331; First Nat’l Bk. vy. Connell, 8 App. Div. 427, 40 N. Y. Supp. 850 (in which it was also held that such note is valid in the hands of a bona fide transferee). But, see 1 Keyes 118. ‘ Nor does the giving of a check constitute cash, as required by the section. Van Schaick v. Mackin, 129 App. Div. 335, 113 N. Y. Supp. 408; Durant v. Aben- droth, 69 N. Y. 148 (involving the certificate of a limited partnership). Dictum in Hapgoods v. Lusch, 123 App. Div. 23, 107 N. Y¥. Supp. 331. Nor is payment in patent rights of unascertained value sufficient. Tasker v. Wallace, 6 Daly 364. CONDITIONAL SUBSCRIPTION.—A conditional subscription for stock is against public policy and void. General Electric Co. v. Wightman, 3 App. Div. 118, 39 N. Y. Supp. 420, citing 1 Hill 518 and 15 N. Y. 583. Thus, a contract to subscribe for shares of stock in an electric railway cor- poration which have not yet been issued, violates this section and is void. General Electric Co. v. Wightman, supra. A mere agreement to subscribe is not enforceable as a subscription. Van Shaick v. Mackin, 129 App. Div. 335, 1138 N. Y. Supp. 408. DELIVERY OF CBRTIFICATH.—No offer or delivery of a certificate is essential to the liability of a person who subscribes for shares to pay the amount due thereon. Kohlmetz v. Calkins, 16 App. Div. 518, 44 N. Y. Supp. 1031. RELEASP OF SUBSCRIBPR.—Taking out a certificate of incorporation materially different from that stated in the subscription agreement will relieve a subscriber from payment. Stern v. McKee, 70 App. Div. 142, 75 N. Y. Supp. 157; Dorris v. Sweeney, 60 N. Y. 463; Woods Motor V. Co. v. Brady, 181 N. Y. 145. Upon a failure to raise a working capital for a corporation which has no out- side obligations, those interested may release a subscriber to the capital stock from his subscription without a formal resolution, and such release will constitute a perfect answer to a suit to recover the balance of the subscription. Non-Electric Fiber Mfg. Co. v. Peabody, 21 App. Div. 247, 47 N. Y. Supp. 677. A subscriber’s liability to pay for his stock is not affected by the fact that it becomes necessary to organize the corporation under a name different from that proposed in the agreement for organization. Yonkers Gazette v. Taylor, 30 App. Div. 334, 51 N. Y. Supp. 969. § 54. Time of payment of subscriptions to stock. Subscriptions to the capital stock of a corporation shall be paid at such times and in such instalments as the board of directors may by resolution require. If default shall be made in the payment of any instalment as required by such resolution, the board may declare the stock and all previous payments thereon forfeited for the use of the corporation, after the expiration of sixty days from the service on the defaulting stockholder, personally, or by mail directed to him at his last-known post-office address, of a written notice requiring him to make payment within sixty days from the service of the notice at a place specified therein, and stating that, in case of failure to do go, 144 Srecx Cerroratien LawA his stock and all previous payments thereon will be ferfeited fer the use of the corperatien. Such steck, if ferfeited, may be reissued er subscriptions therefor may be received as in the case of stock not issued or subscribed for. If not sold for its par value or subscribed for within six months after such forfeiture, it shall be cancelled and deducted from the amount of the capital stock. If by such cancellation, the amount of the capi- tal stock is reduced below the minimum required by law, the capital stock shall be increased to the required ameunt within three months thereafter or an action may be breught or proceedings instituted to close up the business of the cerporatien as in the case of an insolvent corporation. If a receiver ef the assets of the corporation has been appointed, all unpaid subscriptiens te the steck shall be paid at such times and in such instalments as the receiver or the court may direct. Former L. 1890, ch. 564, sec. 43, as amended by L. 1892, ch. 688, sec. 43. This was sec. 43 of the former Stock Corp. L. In GpnpRAL.—A subscriber who agrees to pay for his stock as the directors may require by resolution, is not entitled to notice of the resolution as a condition precedent to his absolute liability to pay. United Growers Co. v. Hisner, 22 App. Div. 1, 47 N. Y. Supp. 906. § 55. Consideration for issue of stock and bonds. No corporation shall issue either stock or bonds except for money, labor done or property actually received for the use and lawful pur- poses of such corporation. Any corporation may purchase any prop- erty authorized by its certificate of incorporation, or necessary for the use and lawful purposes of such corporation, and may issue stock to the amount of the value thereof in payment therefor, and the stock so issued shall be full paid stock and not liable to any further call, neither shall the holder thereof be liable for any further payment under any of the provisions of this chapter; and in the absence of fraud in the transaction the judgment of the directors as to the value of the property purchased shall be conclusive; and in all statements and reports of the corporation, by law required to be published or filed, this stock shall not be stated or reported as being issued for cash paid to the corporation, but shall be reported as issued for prop. erty purchased. Former L. 1890, ch. 564, sec. 42, as amended by L. 1892, ch. 688, sec. 42; L. 1901, ch. 354, sec. 1. This was sec. 42 of the former Stock Corp. L. In GENDPRAL.—By the amendment of 1901 the provision against the issuance of stock for less than its par value was repealed. Caution should be exercised in applying decisions rendered prior to such amendment, since many radical changes were made in the section. The purpose of this section is to prevent reckless and unscrupulous speculators from fraudulently issuing and putting upon the market bonds or stocks that do not and are not intended to represent money or property of any kind, either in possession or in expectancy. Matter of Snyder, 29 Misc. 1, 59 N. Y. Supp. 993; Railroad Co. v. Dow, 120 U. S. 287. 145 Srocx Corporation Law. APPLICATIONS‘ OF SECTION.—This section forbids a corporation from issuing stock for which a note is given in payment. First Nat’l Bk. y. Connell, 8 App- Div. 427, 40 N. Y. Supp. 850. But, see Boyer v. Fenn, 19 Misc. 128, 43 N. Y. Supp. 533, . Stock cannot be issued by a corporation organized solely for the manufacture of electric supplies in payment of a contract to become an agent to sell electric supplies made by other corporations. Powell v. Murray, 3 App. Div. 273, 38 N. ¥. Supp. 233. Stock cannot be issued and deposited with a trust company for the purpose of delivery by such company when sales thereof are made. Brooklyn Heights R. Co. v. Kurtz, 115 App. Div. 74, 100 N. Y. Supp. 723. But the statute does not forbid an issue of stock in exchange for the stock of & company doing a similar business. Rafferty v. Buffalo Gas Co., 37 App. Div. 618, 56 N. Y. Supp. 288. Stock issue in exchange for property the value of which was insignificant as compared with the par value of the stock, carfnot be recovered where such issue was assented to by all of the stockholders. Miller y. University Mag. Co., 10 Misc. 811, 80 N. Y. Supp. 969, citing Parsons v. Hayes, 14 Abb. N. C. 419. Stock may be issued by ‘a corporation financially embarassed in discharge of indebtedness contracted for money or property actually received. Matter of Sny- der, 29 Misc. 1, 59 N. Y. Supp. 993. A corporation may deliver stock and bonds to « contractor as advanced pay- ments on a contract for the construction of a railroad. Hudson River & W. C. M. R. Co. v. Hanfield, 36 App. Div. 605, 55 N. Y. Supp. 877. On an issue of stock to a promotor, see Herbert v. Duryea, 34 App. Div. 478, 54 N. Y. Supp. 311, aff'd 164 N. Y. 596 mem. In Washburn v. Wall Paper Co., 81 Fed. 17, it was held that stock may be issued for good will. RicgHtT oF CORPORATION TO PuRCHASE Own Stock.—A statute permitting a corporation to hold, purchase and convey such real and personal estate as the pur- poses of the corporation shall require, does not empower it to purchase its own stock. Barton v. Port Jackson & U. F. Pl. R. Co., 17 Barb. 397. The right of the corporation was not involved in City Bk. v. Bruce, 17 N. Y. 507. On the subject of stock issued to one who died while owning the same and its purehase by the corporation from his estate, as unissued stocky see Hartley v. Pioneer Iron Works, 181 N. Y. 73. In Johnson Co, v. Thayer, 94 U. S. 631, the court said that unless prohibited by law a corporation may become a holder of a portion of its own shares of stock. In this case no part of the capital stock was used in the purchase of shares. And in First Nat’l Bk. v. Salem Capital F-M. Co., 39 Fed. 89, the court held that the purchase by a corporation of shares of stock held by dissatisfied members was not ultra vires, unless prohibited by statute, where it was made in good faith and did not injure the interests of creditors. Also, in Hamor v. Taylor-Rice E. Co., 84 Fed. 392, it was held that stock may be purchased with surplus or profits. TaxInG OWN SHARES IN PAYMENT OF Deprs.—In Barton vy. Port Jackson & U. F: Pl. R. Co., 17 Barb. 397, it was intimated that a corporation had authority to accept shares of {ts own stock in payment of the debts due the corporation. A similar decision was rendered in Ex parte Holmes, 5 Cow. 426; in this case, how- ever, it was held that neither the corporation nor its directors could vote such stock. And in City Bk. v. Bruce, 17 N. Y. 507, it was held that payments of stock notes by subscribers’ surrendering their stock, did not violate the common law or the law of Ohio by which the transaction involved was governed. VaLipDITy oF Srock.—Stock issued contrary to the provisions of this section is not void. Ersfeld v. Exner, 128 App. Div. 185, 112 N. Y. Supp. 561. ACTION FOR FRauD.—A vendee of one to whom stock was issued in violation of the provisions of this section, has only a common law remedy against the seller for fraud and deceit. Ernsfeld v. Exner, 128 App. Div. 185, 112 N. Y. Supp. 561. § 56. Liabilities of stockholders. Every holder of capital stock not fully paid, in any stock corpora- 146 . Srock Corporation Law. tion, shall be personally liable to its creditors, to an amount equal to the amount unpaid on the stock held by him for debts of the corpo- ration contracted while such stock was held by him. As to existing corporations the liability imposed by this section shall be in lieu of the liability imposed upon stockholders of any existing corporation, under any general or special law, excepting laws relating to moneyed corporations, and corporations and associations for banking purposes, on account of any indebtedness hereafter contracted er any stock here- after issued; but nothing in this section contained shall create er in- crease any liability ef steckhelders of any existing cerporatien under any general or special law. Part of former L. 1890, ch. 564, sec. 57, as amended by L. 1892, ch. 688, sec. 54; L. 1901, ch. 354, sec. 1. This section constituted the first portion of sec. 54 of the former Stock Corp. Law; for the remainder of the section, see secs. 57, 58, post. Erract or AMENDMENTS.—The amendment of 1901 made some radical changes in this section with reference to the liability of stockholders. It repealed the por- tion of the section which provided that ‘‘the stockholders of every stock corpora- tion shall, jointly and severally, be personally liable to its creditors to an amount equal to the amount of the stock held by them respectively, for every debt of the corporation, until the whole amount of its capital stock issued and outstanding at the time such debt was incurred shall have been fully paid in.” In consequence of this amendment the doctrine of many of the cases decided prior thereto is no longer applicable. ENFORCEMENT OF LIABILITY.—Subscribers to the stock of a corporation incur a debt which can be enforced by any common law or equity remedy; the capital stock of a corporation is a fund set apart for the payments of its debts; it isa substitute for the personal liability which subsists in private co-partnerships. Stoddard v. Lum, 159 N. Y. 265 (273). The stock of a corporation subscribed and issued is a fund to meet the obliga- tions of the corporation, and in equity is subject to the lien of creditors whether paid or not. Ford v. Chase, 118 App. Div. 605, 103 N. Y. Supp. 30, aff’d 189 N. Y. 504 mem. Stoddard vy. Lum, supra. The statutory liability of a stockholder for the debts of his corporation, is contractual and is determined by the lex loci, while the remedy is governed by the lex fori. Howarth vy. Angle, 162 N. Y. 179. But, see Knickerbocker T. Co. v. Iselin, 53 Misc. 80, 103 N. Y¥. Supp. 1108, aff’d (App. Div.) mem. Paxrtigs.—In an action in equity under this section by a creditor brought in behalf of himself and others to recover unpaid stock subscriptions, all of the stock- holders should be made parties; the judgment in such an action inures to the benefit of all creditors who prove their claims and contribute their proportionate Bhare of the expenses of the litigation. Ford v. Chase, 118 App. Div. 605, 103 N. Y. Supp. 30, aff'd 189 N. Y. 504 mem. Matter of Zeigler, 98 App. Div. 117, 90 N. Y. Supp. 681. § 5%. Liabilities of stockholders to laborers, servants or employees. The stockholders of every stock corporation shall jointly and sever- ally be personally liable for all debts due and owing to any of its laborers, servants or employees other than contractors, for services performed by them for such corporation. Before such laborer, sery- ant or employee shall charge such stockholder for such services, he shall give him notice in writing, within thirty days after the ter- mination of such services, that he intends to hold him liable, and shall 147 Stock Corporation Law. commence an action therefor within thirty days after the return of an execution unsatisfied against the corporation upon a judgment re- covered against it for services. Part of former L. 1890, ch. 564, sec. 57, as amended by L. 1892, ch. 688, sec. 54; L. 1901, ch. 354, sec. 1. This section was « part of sec. 54 of the former Stock Corp. Law; for the remainder of the section, see secs. 56, supra, and 58, post. Purreose.—This statute was intended to limit the preferences to the particular class who earn their living by manual labor and whose claims would be properly expressed by the word “‘ wages,’ as commonly applied to the payment for manual labor, or other labor of menial or mechanical kind, as distinguished from salary or fee, which denote compensation paid to professional men. Matter of Stryker, 158 N. Y. 526; Bristor v. Smith, 158 N. Y. 157. Wao EnritLep To Bengrit.—An attorney regulatly employed at a fixed salary is not an employee within the meaning of this section. Bristor v. Smith, 158 N. Y. 157; Bristor v. Kretz, 22 Misc. 55, 49 N. Y. Supp. 404, aff'd (App. Div.) mem. Nor is a general manager who performs no manual labor. Matter of Directors of American Lace & F. P. W., 30 App. Div. 321, 51 N. Y. Supp. 818; People v. Remington, 45 Hun 329, aff'd 109 N. Y. 631 mem. A clerk and bookkeeper of a manufacturing corporation, the superintendent, shop foreman and draftsman who are employed at salaries ranging from $100 to $225 a month are not entitled to a preference. Matter of Stryker, 158 N. Y. 526. But one employed by « mowing machine company to a compensation of $100 per month to sell machines, was held in Palmer v. Van Santvoord, 153 N. Y. 612, to be an ‘‘employee” entitled to a preference. And one employed to sell pianos at a weekly salary is entitled to a preference. Matter of Luxton & Black Co., 35 App. Div. 243, 54 N. Y. Supp. 778. On the construction of the terms ‘laborers,’’ ‘‘servants,” and ‘‘ employees,” see Bristor v. Kretz, 22 Misc. 55, 49 N. Y. Supp. 404 and Palmer vy. Van Santvoord, 153 N. Y. 612. § 58. Non-liability in certain cases. No person holding stock in any corporation as collateral security, or as executor, administrator, guardian or trustee, unless he shall have voluntarily invested the trust funds in such stock, shall be personally subject to liability as a stockholder; but the person pledging such stock shall be considered the holder thereof and shall be liable as stockholder, and the estates and funds in the hands of such executor, administrator, guardian or trustee shall be liable in the like manner and to the same extent as the testator or intestate, or the ward or per- son interested in such trust fund would have been, if he had been living and competent to act and held the same stock in his own name, unless it appears that such executor, administrator, guardian or ‘trustee voluntarily invested the trust funds in such stocks, in which ase he shall be personally liable as a stockholder. Part of former L. 1890, ch. 564, sec. 57, as amended by L. 1892, ch. 688, sec. 54; L. 1901, ch. 354, sec. 1. This section constituted a part of sec. 54 of the former Stock Corp. Law; for the remainder, see secs. 56, 57, supra. § 59. Limitation of stockholder’s liability. No action shall be brought against a stockholder for any debt of the corporation until judgment therefor has been recovered against the corporation, and an execution thereon has been returned unsatis- 148 Stock Corporation Law. fied in whole or in part, and the amount due on such execution shall be the amount recoverable, with costs against the stockholder. No stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years ofter the debt becomes due; and no action shall be brought against a stockholder after he shall have ceased to be a stock- holder, for any debt of the corporation, unless brought within two years from the time he shall have ceased to be a stockholder. Former L. 1890, ch. 564, sec. 58, as re-enacted by L. 1892, ch. 688, sec. 55. This was sec. 55 of the former Stock Corp. L. PuRPOSE.—The purpose of this section is to prevent the extension of a credit to a corporation for a longer period than two years. Ford v. Chase, 118 App. Div. 605, 103 N. Y. Supp. 30, aff’d 189 N. Y. 504 mem. WHEN LIMITATIONS OPHRATIVD.—The liability of a corporation on the debt of another assumed some time after the same was contracted, is not barred until two years after assumption of the same. Ford v. Chase, supra. ALLEGATIONS OF COMPLAINT.—In an action under this section, the complaint must show that the defendant held unpaid stock at the time of the recovery of the judgment and the issuance of the execution against the corporation, and not at the time the debt was incurred. Dyer v. Drucker, 108 App. Div. 238, 95 N. Y. Supp. 749. And it must show not only that the stock has not been paid for in cash, but also that it has not been paid for in services; an allegation that a specified sum remains due, is insufficient as a mere conclusion. Dyer v. Drucker, supra. Also, it must show that the corporation was a stock corporation; a mere state- ment of its name is insufficient for the purpose. Dyer v. Drucker, supra. RECOVERY IN ABSENCE OF JUDGMENT AND EXECUTION.—When the recovery of a judgment and the return of an execution unsatisfied are rendered impossible by the law of the United States and the action of its courts thereunder, compliance with its requirements does not come within the meaning of the statute. Firestone Tire & R. Co. v. Agnew, 194 N. Y. 165. In United Glass Co. v. Vary, 152 N. Y. 121 (127), Andrews, J., after a review of the authorities, declared that “the decisions thus far have dispensed with the condition precedent (1) where the corporation has been dissolved by judicial de- cree; (2) where, by final judgment in an action for sequestration, a perpetual in- junction has been issued restraining suits by creditors; and (3) where, by statute, such suits are prohibited. In these cases there intervenes an impossibility within the meaning of the law, which excuses the performance of the condition precedent.” See, also, Hardman v. Sage, 124 N. Y. 25. Stockholders’ liability will be enforced under this section although no judg- ment has been obtained against the corporation, where the corporation, within the time limited by the section; has become a bankrupt upon the petition of other creditors and a part of plaintiff’s claim has been discharged. Firestone Tire & R. Co. v. Agnew, supra. But non-compliance with this section is not excused on the ground that the corporation is insolvent, and that because of numerous demurrers and the crowded condition of the calendars no judgment was obtained. Gause y. Boldt, 49 Misc. 340, 99 N. Y. Supp. 442. CONSTITUTIONALITY.—The constitutionality of this section was upheld by the court in Gause v. Boldt, 49 Misc. 340, 99 N. Y. Supp. 442. 8 60. Partly paid stock. The original or the amended certificate of incorporation of any stock corporation may contain. a provision expressly authorizing the issue ot the whole or of any part of the capital stock as partly paid stock, 149 Stock Corporation Law. subject to calls thereon until the whole thereof shall have been paid in. In such case, if in or upon the certificate issued to represent such stock, the amount paid thereon shall be specified, the holder thereof shall not be subject to any‘liability except for the payment to the cor- poration of the amount remaining unpaid upon such stock, and for the payment of indebtedness to employees pursuant to sections fifty- seven, fifty-eight and fifty-nine of this chapter; and in any such case, the corporation may declare and may pay dividends upon the basis of the amount actually paid upon the respective shares of stock in- stead of upon the par value thereof. This was sec. 62 of the former Stock Corp. Law. 8 61. Preferred and common stock. ‘ Every domestic stock corporation may issue preferred stock and common stock and different classes of preferred stock, if the certificate of incorporation so provides, or by the consent of the holders of record of two-thirds of the capital stock, given at a meeting called for that purpose upon notice such as is required for the annual meeting of the corporation. A certificate of the proceedings of such meeting, signed and sworn to by the president or a vice-president, and by the secretary or assistant secretary, of the corporation, shall be filed and recorded in the offices where the original certificate of incorporation of such corporation was filed and recorded; and the corporation may, upon the written request of the holders of any preferred stock, by a two-thirds vote of its directors, exchange the same for common stock, and issue certificates for common stock therefor, upon such valuation as may have been agreed upon in the certificate of organization of such corporation, or the issue of such preferred stock, or share for share, but the total amount of such capital stock shall not be increased thereby. Former L. 1890, ch. 564, sec. 47, as amended by L. 1892, ch. 688, sec. 47; L. 1901, ch. 354, sec. 1. This was sec. 47 of the former Stock Corp. Law. In GHNDRAL.—Care should be used in applying the decisions on the subject of common and preferred stock, rendered prior to the enactment of the amendment of 1901. § 62. Increase or reduction of capital stock. Any domestic corporation may increase or reduce its capital stock in the manner herein provided, but not above the maximum or below the minimum, if any, prescribed by general law governing corpora- tions formed for similar purposes. If increased, the holders of the additional stock issued shall be subject to the same liabilities with re- spect thereto as are provided by law in relation to the original capital ; if reduced, the amount of its debts and liabilities shall not exceed the 150 Sreck Porveration Law. amount of its reduced capital, unless an insurance cerporatien, in which case the amount of its debts and liabilities shall net exceed the amount of its reduced capital and other assets. The ewner ef any stock shall not be relieved from any liability existing prier te the reduction of the capital stock of any stock cerperation. If a banking corporation, whether the capital be increased er reduced, its assets shall at least be equal to its debts and liabilities and the capital stock, as increased or reducedf\ A demestic railroad cerperatien may in- crease or reduce its capital steck in the manner herein provided, not- withstanding any provision contained herein, or in any general or special law fixing or limiting the amount of capital stock which may be issued by it. Former L. 1890, ch. 564, sec. 44, as amended by L. 1892, ch. 688, sec. 44; L. 1894, ch. 346, sec. 1; L. 1899, ch. 696, sec. 1; L. 1901, ch. 354, sec. 1. This was sec. 44 of the former Stock Corp. L. In GENERAL.—A corporation has no implied power to increase or diminish its eapital stock. Einstein vy. Rochester Gas & El. Co., 146 N. Y. 46; Sutherland y. Olcott, 95 N. Y. 100. The rights of preferred stockholders to dividends in arrears are not affected by a subsequent reduction of capital stock. Roberts v. Roberts-Wicks Co., 184 N. Y. 257. : Preferred stockholders have no right to any surplus created by a reduction of the capital stock, and its distribution, when made, can only be legally effected by dividing it ratably and without preference. Roberts v. Roberts-Wicks Co., supra. PROPORTIONATE ReEDUCTION.—In the reduction of capital stock which is divided into preferred and common, there must be a reduction of both in the proportion that the issue of each bears to the other; thus, capital stock cannot be reduced against the will of the holders of common stock leaving the preferred stock as before, thereby increasing the relative voting power of the latter. Page v. American & B. Mfg. Co., 129 App. Div. 346, 113 N. Y. Supp. 734. The court intimated that it is within the power of the legislature to change the relative voting power of stock. § 63. Notice of meeting to increase or reduce capital stock. Every such increase or reduction must be authorized either by the unanimous consent of the stockholders, expressed in writing and filed in the office of the secretary of state and in the office of the clerk of the county in which the principal business office of the corporation is located, or by a vote of the stockholders owning at least a majority of the stock of the corporation, taken at a meeting of the stockholders specially called for that purpose in the manner provided by law or by the by-laws. Notice of the meeting, stating the time, place and object, and the amount of the increase or reduction proposed, signed by the president or a vice-president and the secretary, shall be pub- lished once a week, for at least two successive weeks, in a newspaper in the county where its principal business office is located, if any is published therein, and a copy of such notice shall be duly mailed to each stockholder or member at his last-known post-office address at least two weeks before the meeting or shall be personally served on him at least five days before the meeting. 151 Stock Corporation LA&w.. Former L. 1890, ch. 564, sec. 45, as amended by L. 1892, ch. 688, sec. 45; L. 1893, ch. 700, sec. 1; L. 1901, ch. 354, sec. 1. This was sec. 45 of the former Stock Corp. L. PrRoor or Novicu oF Muprinc.—In absence of evidence that due and sufficient notice of the meeting was not given to stockholders, the books of minutes of the company and the certificate showing that more than two-thirds of the stockholders appeared in person or by proxy, and voted for the increase of the stock, establishes, in action to enforce an assessment upon stock, that the stock was increased at a regular assembled meeting of the stockholders. Coykendall v. Douglass, 19 Hun 577. § 64. Conduct of such meeting; certificate of increase or reduction, If, at the time and place specified in the notice, the stockholders shall appear in person or by proxy in numbers representing at least a majority of all the shares of stock, they shall organize by choosing from their number a chairman and secretary, and take a vote of those present in person or by proxy, and if a sufficient number of votes shall be given in favor of such increase or reduction, or if the same shall have been authorized by the unanimous consent of stockholders expressed in writing signed by them or their duly authorized proxies, a certificate of the proceeding showing a compliance with the pro- visions of this chapter, the amount of capital theretofore authorized, and the proportion thereof actually issued, and the amount of the increased or reduced capital stock, and in case of the reduction of capital stock the whole amount of the ascertained debts and liabilities of the corporation, shall be made, signed, verified and acknowledged by the chairman and secretary of the meeting, and filed in the office of the clerk of the county where its principal place of business shall be located, and a duplicate thereof in the office of the secretary of state. In case of a reduction of the capital stock, except of a railroad corporation or a moneyed corporation, such certificate or consent hereinafter provided for shall have indorsed thereon the approval of the comptroller, to the effect that the reduced capital is sufficient for the proper purposes of the corporation, and is in excess of its ascer- tained debts and liabilities; and in case of the increase or reduction of the capital stock of a railroad corporation or a moneyed corpora- tion, the certificate or the unanimous consent of stockholders, as the case may be, shall have indorsed thereon the approval of the public service commission having jurisdiction thereof, if a railroad corpora- tion; of the superintendent of banks, if a corporation formed under or subject to the banking law, and of the superintendent of insurance, if an insurance corporation. When the certificate herein provided for, or the unanimous consent of stockholders in writing, signed by them or their duly authorized proxies, approved as aforesaid, has been filed, the capital stock of such corporation shall be increased or re- duced, as the case may be, to the amount specified in such certificate 152 Stock Corporation Law. or consent. The proceedings of the meeting at which increase or reduction is voted, or, if such increase or reduction shall have been authorized by unanimous consent without a meeting, then a copy of such consent shall be entered upon the minutes of the corporation. If the capital stock is reduced, the amount of capital over and above the amount of the reduced capital shall, if the meeting or consents so determine or provide, be returned to the stockholders pro rata, at such times and in such manner as the directors shall determine, except in the case of the reduction of the capital stock of an insurance corpo- ration, as an alternative to make good an existing impairment. Former L. 1890, ch. 554, sec. 46, as amended by L. 1892, ch. 688, sec. 46; L. 1893, ch. 700, sec. 2; L. 1901, ch. 354, sec. 1; L. 1902, ch. 286, sec. 1; L. 1904, ch. 128, sec. 1. This was sec. 46 of the former Stock Corp. L. FiIuine CERTiFicars.—aA failure to file the certificate showing an increase of stock, is not a ground for the appointment of a receiver pending an action for an accounting for such overissue, where no bad faith is shown. Thalmann v. Hoffman House, 27 Misc. 140, 58 N. Y. Supp. 227. § 65. Change in par value of shares. The number of shares into which the capital stock of any stock corporation is divided may be increased or reduced by a two-thirds vote of all stock duly represented at a meeting held and conducted in like manner, and upon filing a like certificate, as required for the in- crease or reduction of its capital stock. If such increase or reduction of the number of shares be so authorized, the corporation shall issue to each stockholder certificates for as many shares of the new stock as equal in par value the shares of the old stock held by him, upon sur- render and cancellation of such old stock. This section does not au- thorize the increase or reduction of the capital stock of such corpo- ration. Former sec. 56, as added by L. 1893, ch. 196, sec. 1, as amended by L. 1901, ch. 354, sec. 1. § 66. Prohibited transfers to officers or stockholders. No corporation which shall have refused to pay any of its notes or other obligations, when due, in lawful money of the United States, nor any of its officers or directors, shall transfer any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. No conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suf- fered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation, shall be valid, except 153 Stock Corporation Law. that laborers’ wages for services shall be preferred claims and be en- titled to payment before any other creditors out of the corporation assets in excess of valid prior liens or incumbrances. No corporation formed under or subject to the banking, insurance or railroad law shall make any asignment in contemplation of insolvency. Every person receiving by means of any such prohibited act or deed any property of the corporation shall be bound to account therefor to its creditors or stockholders or other trustees. No stockholder of any such corporation shall make any transfer or assignment of his stock therein to any person in contemplation of its insolvency. Every trans- fer or assignment or other act done in violation of the foregoing pro- visions of this section shall be void. No conveyance, assignment or transfer of any property of a corporation formed under or sub- ject to the banking law, exceeding in value one thousand dollars, shall be made by such corporation, or by any officer or director thereof, unless authorized by previous resolution of its board of direc- tors, except promissory notes or other evidences of debt issued or received by the officers of the corporation in the transaction of its ordinary business, and except payments in specie or other current money or in bank bills made by such officers. No such conveyance, assignment or transfer shall be void in the hands of a purchaser for a valuable consideration without notice. Every director or officer of a corporation who shall violate or be concerned in violating any pro- visions of this section, shall be personally liable to the creditors and stockholders of the corporation of which he shall be director or an officer to the full extent of any loss they may respectively sustain by such violation. Former L. 1890, ch. 564, sec. 48, as amended by L. 1892, ch. 688, sec. 48; L. 1901, ch. 354, sec. 1. This was sec. 48 of the former Stock Corp. L. In GENERAL.—The purpose of this section 1s to prevent an unfair and partial distribution of the corporate assets. Lopez v. Campbell, 163 N. Y¥. 340. The term “ obligations” used In this section does not include open running accounts for services rendered the corporation. Munzinger v. United Press, 52 App. Div. 338, 65 N. Y. Supp. 194. A general receiver of a corporation is entitled under this section to maintain an action at law for the conversion of property received under a vold bill of sale. McQueen v. New, 45 App. Div. 579, 61 N. Y. Supp. 464. WHO Arm CREDITORS.—The term “ creditors” includes all of those owning any enforceable obligation against the corporation, as well as those to whom it is in- debted. Munson vy. Genesee Iron & B. W., 37 App. Div. 203, 56 N. ¥. Supp. 139. Thus, mortgages executed by the officers of a corporation in contemplation of insolvency, may be attacked by one subsequently recovering a judgment founded upon an action for negligent injuries sustained prior to such transfers. Munson v. Genesee Iron & B. W., supra, relying upon Marstaller y. Mills, 143 N. Y. 398. In Fuller v. Brown, 76 Hun 557, 28 N. Y. Supp. 189, the court said that a con- veyance by one after the commission of u tort, thereby leaving the grantor in- solvent, creates a presumption that he intended to hinder or delay the person in- jured in the collection of any amount he might thereafter recover. A plaintiff in an action for libel pending when a fraudulent assignment was 154 Stock Corporation Law. f made and in which a judgment against the corporation was subsequently recovered, is regarded as a creditor. Munzinger v. United Press, 52 App. Div. 338, 65 N. Y. Supp. 194. NECESSITY OF FRAUDULENT INTENT.—The intention of giving a preference to a particular creditor is essential to invalidate a mortgage given by a corporation to pay all creditors who were in a@ position to file mechanics’ liens against land owned by the corporation, American Mortg. Co. v. Merrick Const. Co., 50 Misc. 464, 100 N. Y. Supp. 561. PREFERENTIAL TRANSFDRS,—IN GBNERAL.—The acts prohibited by this section, as stated in O’Brien v. East River B. Co., 161 N. Y. 539 (548), are as follows :— (1) It prohibits officers and directors of an insolvent corporation or one about to become insolvent, from using their knowledge of its condition and their dominant position for their individual benefit in collecting their own claims, either through a voluntary payment or through collusive and preferential liens to the prejudice of the other creditors not so favorably situated. (2) It prohibits a preferential general assignment by a corporation, though it does not forbid assignments with- out preferences. (3) It prohibits a transfer of any of the corporate assets to an officer, director or stockholder upon any other consideration than the payment of the full value of the property in cash. Transfers made in contemplation of insolvency cannot be upheld on the ground that they were made by the corporation and not by its officers or stock- holders. Munson v. Genesee Iron & B. Works, 37 App. Div. 203, 56 N. Y. Supp. 139. An assignment of book accounts for the purpose of giving a preference, is void. Dudensing y. Joenes, 27 Misc. 69, 58 N. Y. Supp. 178. See, also, Hilton v. Ernst, 38 App. Div. 94, 57 N. ¥. Supp. 908, aff'd 161 N. Y. 226. After the rights of creditors have intervened, a corporation hag no power, even with the consent of stockholders, to sell its plant to another corporation and retire from business, taking payment in the stock of the purchasing corporation, issued not to it or its officers as trustees, but to an individual stockholder who does not undertake to pay the corporate debts. Hurd v. New York Com. §. L. Co., 167 N. Y. 89. A mortgage on property for more than its value given by a corporation hav- ing no cash to pay its debts, with the power of giving the bonds secured thereby to such of its creditors as would accept them, leaving the others to enforce their claims against the equity of redemption, is void as compelling the creditors to extend the time of payment of their debts. Jenkins v. John Good Cordage & Mach. Co., 56 App. Div. 573, 68 N. Y. Supp. 239, aff’d 168 N. Y. 779 mem. A transfer of a claim by an insolvent corporation to secure a prior indebted- ness, does not violate this section, where the transfer was made in pursuance of an oral agreement entered into at a time when the corporation wag solvent. Matter of Rogers Const. Co., 79 App. Div. 419, 79 N. Y. Supp. 444, aff'd 175 N. ¥. 509 mem. See, also, Miller v. Miller Knitting Co., 23 Misc. 404, 52 N. Y. Supp. 184. On the withdrawal of a deposit in a failing bank by a corporation whose president is a director of the bank, as a preference, see O’Brien v. East River Bridge Co., 161 N. Y¥. 539. To OFFICERS OR STOCKHOLDERS.—Payment of demand notes which were fully protected by collateral of the president of the corporation and his wife, made the day before a petition in bankruptcy was filed against the corporation, is an un- lawful preference. Wright v. Gansevoort Bk., 118 App. Div. 281, 103 N. Y. Supp. 548, Payment of salary for past services to an officer and stockholder after the corporation has become insolvent, for the purpose of giving a preference, is un- lawful. Dwight v. Williams, 25 Misc. 667, 55 N. Y. Supp. 201. A director cannot obtain a preference by levy under an attachment; a motion may be made to:dissolve the attachment. Welling v. Ivoroyd Mfg. Co., 15 App. Div. 116, 44 N. Y. Supp. 374, aff’d 162 N. Y. 599 mem. A general assignment without preference executed by a corporation will not be set aside in a suit in equity instituted by a judgment creditor for his sole benefit, because the officers of the corporation, prior to the assignment, made pay- ments to themselves and others in discharge of existing obligations, in violation of the statute, in absence of proof that the corporation itself authorized such pay- ments; in such case, the fraud of any, would be upon the assignment. Cretean - vy. Foote & T. Glass Co., 54 App. Div. 168, 66 N. Y. Supp. 370. 155 Srocx Corporation Law. TRANSFDR TO RaIsp FuNDS.—n Gordon vy. Southgate Bldg. Co., 109 App. Div- 838, 96 N. Y. Supp. 717, the court upheld a conveyance made in good faith by a building corporation which was in a bad financial condition, but which had con- siderable property which might become profitable by the expenditure of money to be raised by such conveyance. TRANSFDRS IN PAYMENT OF Dpsts.—A payment by an insolvent corporation of mortgages held by a creditor as security, is not preferential. Wright v. Ganse- voort Bk., 118 App. Div. 281, 103 N. Y. Supp. 548. This statute does not go to the extent of forbidding directors from paying or securing bona fide debts. Gordon v. Southgate Bldg. Co., 109 App. Div. 838, 96 N. Y. Supp. 717. SUFFERING JUDGMENT.—A creditor may acquire a valid preference by availing himself of the regular course of legal proceedings for the collection of his debt, notwithstanding the insolvency of the corporation. Varnum v. Hart, 119 N. Y. 101; Lopez v. Campbell, 163 N. Y. 340 (346); French yv. Andrews, 145 N. Y. 441. Permitting a default judgment on a claim against which the corporation has no valid defense, does not violate this section. Lopez v. Campbell, 163 N. Y¥. 340; Wil- son v. City Bk., 17 Wall. (U. S.) 473; National Bk. v. Warren, 96 U. S. 539; Matter of Muehlfeld & H. Piano Co., 12 App. Div. 492, 42 N. Y. Supp. 802; Ridg- way v. Symonds, 4 App. Div. 98, 88 N. Y. Supp. 895. And where a corporation merely fails to put in a defense to a just debt, it is not to be inferred from that fact alone that the judgment was suffered with intent to give a preference. Matter of Muehlfeld & Haynes Piano Co., 12 App. Div. 492, 42 N. Y. Supp. 802. But an unlawful preference is created by permitting a judgment against the corporation on a claim for goods before the purchase price thereof is due. Spell- man y. Looschen, 162 N. Y. 268. See, also, Lodi Chemical Co. y. Charles H. Pleasants Co., 25 Mise. 97, 54 N. Y. Supp. 668 and Baker vy. Emerson, 4 App. Div. 348, 38 N. Y. Supp. 576. And splitting up large notes into smaller ones so that the creditor may re- cover judgments in a city court on short notice, creates an unlawful preference. Rossman y. Seaver, 41 App. Div. 603, 58 N. Y. Supp. 677. In this case the presi- dent of the corporation assisted the creditor in obtaining judgments. But a different decision was rendered in French vy. Andrews, 145 N. Y. 441, in which it appeared that a corporation indebted for $10,000, surrendered un- matured notes representing the debt, and in their places gave demand notes for $1000 each, to enable the payee to bring immediate action thereon in the municipal court of Rochester, the jurisdiction of which was limited to one thousand dollars and in which judgment by default could be obtained in six days; at the time the demand notes were given, both the creditor and treasurer of the corporation who gave them knew that the corporation was insolvent. In an action brought by the receiver, subsequently appointed, to set aside the judgments recovered, the court held that the transaction did not violate this section. Barriorr, J., dissented. The French case was cited with approval in O’Brien v. East River Bridge Co., 161 N. Y. 539 (549). RIGHTS OF Bona Fipe PurcHAsERS.—One who takes mortgages on corporate property as collateral security for antecedent debts, knowing that the corporation is insolvent, is not a holder in good faith for value. Munson y. Genesce Iron & B. Works, 37 App. Div. 203, 56 N. Y. Supp. 139. A transfer of property by a corporation subsequently adjudged a bankrupt, to a trust company having no knowledge of the insolvency of the corporation in consideration of the surrender by the latter of secured notes, thereby losing the benefit of the security, will not be set aside even though the transfer caused the in- solvency of the corporation. Perry v. Van Norden T. Co., 192 N. Y. 189. § 67. Application to court to order issue of new in place of lost certificate of stock. The owner of a lost or destroyed certificate of stock, if the corpo- ration shall refuse to issue a new certificate in place thereof, may apply - to the supreme court, at any special term held in the district where 156 Stock Corporation Law. he resides, or in which the principal business office of the corporation is located, for an order requiring the corporation to show cause why it should not be required to issue a new certificate in place of the one lost or destroyed. The application shall be by petition, duly verified by the owner, stating the name of the corporation, the number and date of the certificate, if known, or if it can be ascertained by the petitioner ; the number of shares named therein, to whom issued, and as particular a statement of the circumstances attending such loss or destruction as the petitioner can give. Upon the presentation of the petition the court shall make an order requiring the corporation to show cause, at a time and place therein mentioned, why it should not issue a new certificate of stock in place of the one described in the petition. A copy of the petition and order shall be served on the president or other head of the corporation, or on the secretary or treasurer thereof, personally, at least ten days before the time for showing cause. Former L. 1890, ch. 564, sec. 50, as amended by L. 1892, ch. 688, sec. 50. This was sec. 50 of the former Stock Corp. L. NECESSITY OF REFUSAL.—A mere request for the issuance of a new certificate is insufficient to entitle a petitioner to relief under this section; a refusal by the corporation must be shown. Matter of Coats, 75 App. Div. 469, 78 N. Y. Supp. 425. NEGOTIABILITY.—The true owner of a lost or stolen certificate may assert his title against any one subsequently obtaining possession, although the holder may be a bona fide purchaser. Certificates of stock are only of limited negotiabil- ity. Knox v. Eden Musee Co., 148 N. Y. 441. CBRTIFICATE OF NATIONAL BanK.—A stockholder of a national bank who has lost a certificate of stock, may apply to the Supreme Court of the state under this section for an order to show cause. Matter of Hoyt, 39 Misc. 356, 79 N. Y. Supp. 845. § 68. Order of court upon such application. Upon the return of the order, with proof of due service thereof, the court shall, in a summary manner, and in such mode as it may deem advisable, inquire into the truth of the facts stated in the petition, and hear the proofs and allegations of the parties in regard thereto, and if satisfied that the petitioner is the lawful owner of the number of shares, or any part thereof, described in the petition, and that the certificate therefor has been lost or destroyed, and can not after due diligence be found, and that no sufficient cause has been shown why a new certificate shold not be issued, it shall make an order requiring the corporation, within such time as shall be therein designated, to issue and deliver to the petitioner a new certificate for the number of shares specified in the order, upon depositing such security, or filing a bond in such form and with such sureties as to the court shall appear sufficient to indemnify any person other than the petitioner who shall thereafter be found to be the lawful owner of the certificate lost or 157 Stock Corporation Law. destroyed; but such provision requiring security to be deposited or bond filed is to be construed as excluding an application made by a domestic municipal corporation or by a public officer in behalf of such corporation ; and the court may direct the publication of such notice, either before or after making such order as it shall deem proper. Any person claiming any rights under the certificates alleged to have been lost or destroyed shall have recourse to such indemnity, but in any application under the provisions of this chapter, in which a domestic municipal corporation or a public officer in behalf of such corporation, shall be by the foregoing provisions of this section excused from de. positing security or filing a bond, such municipal corporation shall be liable for all damages that may be sustained by any person, in the same case and to the same extent as sureties to a bond or undertaking would have been, if such a bond or undertaking had been filed; and the corpo- ration issuing such certificate shall be discharged from all liability to such person upon compliance with such order; and obedience to the order may be enforced by attachment against the officer or officers of the corporation on proof of his or their refusal to comply with it. This was sec. 51 of the former Stock Corp. Law. Noticp.—In a proceeding under this section and the preceding section, notice must be given to the record owner of the stock either personally or by publication. Matter of Coats, 75 App. Div. 469, 78 N. Y. Supp. 425; Matter of Speir, 69 App. Div. 149, 74 N. Y. Supp. 555. Proor or Facts.—Proof of the facts alleged in the petition must be taken before granting an order for a new certificate. Matter of Speir, 69 App. Div. 149, 74 N. Y. Supp. 555. And this shall be done in the mode deemed advisable by the court. Matter of Coats, 75 App. Div. 469, 78 N. Y. Supp. 425. CHARACTHR OF RELIEF.—The relief granted under this section is equitable in character. Kinnan y. Forty-Second St. M. & St. N. A. R. Co.,, 140 N. Y. 183. Bonp.—A bond for at least $25,000 should be required where the lost or de- stroyed certificate represented stock of the market value of $20,800. Matter of Speir, 69 App. Div. 149, 74 N. Y. Supp. 555. § 69. Financial statement to stockholders. Stockholders owning five per centum of the capital stock of any cor- poration other than a moneyed corporation, not exceeding one hundred thousand dollars, or three per centum where it exceeds one hundred thousand dollars, may make a written request to the treasurer or chief fiscal officer thereof, for a statement of its affairs, under oath, em- bracing a particular account of all its assets and liabilities, and the treasurer shall make such statement and deliver it to the person pre- senting the request within thirty days thereafter, and keep on file for twelve months thereafter a copy of such statement, which shall at all times during business hours be exhibited to any stockholder demanding an examination thereof; but the treasurer or such chief fiscal officer shall not be required to deliver more than one such statement in any one year. The supreme court, or any justice thereof, may upon appli- 158 Stock Corporation Law. é cation, for good cause shown, extend the time for making and deliver- ing such certificate. For every neglect or refusal of the treasurer or other chief fiscal officer thereof to comply with the provisions of this section he shall forfeit and pay to the person making such request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement shall be furnished. This was sec. 52 of the former Stock Corp. Law. In GpNDPRAL.—The purpose of this section is to enable the stockholder to ap- preciate the value of the shares of stock held by him, from the financial standing of the corporation. French vy. McMillan, 43 Hun 188; McCrea vy. Bedell, 9 Misc. 372, 29 N. Y. Supp. 705. As to the necessity of exercising the remedy afforded by this section before applying for mandamus to compel an inspection of the corporate books, see People ex rel. Clason v. Nassau Ferry Co., 86 Hun 128, 33 N. Y. Supp. 244. On the statutory requirement of the keeping of corporate books and the right of stockholders to inspect the same, see sec. 32, supra. WHo May Dpmanp StatamMpnt.—Only those who are stockholders of record at the time of the demand are entitled to maintain an action for the penalty. Pray v. Todd, 71 App. Div. 391, 75 N. Y. Supp. 947. Sworn STaTHMENT.—The requirements of the statute as to a statement are not met by furnishing one not made under oath. St. John v. Eberlin, 23 Misc. 585, 51 N. Y. Supp. 998. A stockholder may, however, waive the requirement that the report be made under oath. McCrea v. Bedell, 9 Misc. 872, 29 N. Y. Supp. 705; St. John v. BHberlin, 23 Misc. 585, 51 N. Y. Supp. 998. LiaBILITY FOR PHNALTY.—A treasurer cannot escape liability for. the penalty by resigning within thirty days after the demand, since the duty to furnish the report attached the moment the demand was made by the stockholder; the 30-day limit is solely for his convenience. Osborn vy. Gilliams, 33 Misc. 812, 68 N. Y. Supp. 470, aff'd 65 App. Div. 614 mem. The failure of the treasurer to furnish the required report authorizes the stock- holder to collect, under this section, $10 per day from the end of the thirty days up to the time of the commencement of an action for the penalty. St. John v. Hberlin, 23 Misc. 585, 51 N. Y. Supp. 998. A treasurer of a corporation which has been dissolved de facto is not liable to the statutory penalty for failing to furnish a report. Osborn y. Gilliams, 65 App. Div. 614, 74 N. Y. Supp. 623. § 70. Liabilities of officers, directors and stockholders of foreign corporations. Except as otherwise provided in this chapter the officers, directors and stockholders of a foreign stock corporation transacting business in this state, except moneyed and railroad corporations, shall be liable under the provisions of this chapter, in the same manner and to the same extent as the officers, directors and stockholders of a domestic corporation, for: 1. The making of unauthorized dividends; 2. Unlawful loans to stockholders ; 3. Making false certificates, reports or public notices ; 4. An illegal transfer of the stock and property of such corporation, when it is insolvent or its insolvency is threatened ‘ 5. The failure to file an annual report. 159 Stock Corporation Law. Such liabilities may be enforced in the courts of this state, in the same manner as similar liabilities imposed by law upon the officers, directors and stockholders of domestic corporations. Added by L. 1897, ch. 384, sec. 4. This was sec. 60 of the former Stock Corp. L. ARTICLE 5. Section 80. Laws repealed. 81. When to take effect. § 80. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 81. When to take effect. This chapter shall take effect immediately. SCHEDULE oF Laws REPEALED. Laws of Chapter Section 1814........ Dido All (38th Sess.) TSB ces was BPickeswty 1-3, 12 $098. bc weu se ae 15, J§ 17, 18, (2d Meet.) TOS: whereas Ol cawewane 1, | 180 (2d Meet.) VSB0 i cece oe lat oes All TBAB. os ace TAB 6 cea All TBS B sss ceiyaete DCG escenario All 1853........ co ee All L808. se ew ss 460........ All 1869 6 scseace TAD ies acne 7 LBD idee ders OUR sco sede 8 1884........ OF 6 ccs waves All BBQ ee ase wars Di aistase. aati All L890 sie i ag 564........ All 1892). sew aes BOs aco seceie lave All LB OR iaieeces es BEB oc ce vie axe All 1893........ N96 5404 wits All B98 isi cc 06 ves G88 4 ase eaiss All 1898). ew cas (00s exa All 1894........ 846........ All WOO G32 lspeiceece G29 ie wesc ee All 1896........ 982 ocsgsies 1, pt. adding § 58 to L. 1892, ch. 688 18983 ee ees B84. wees wax All 160 Stock Corporation Law. Laws of Chapter Section 1899........ BO4. sce eas All 1899........ 696........ All 1900........ WEB 5 c3 Sapte All 1900........ 164........ All 1900........ AUB... eee All 1901........ 130........ All 1901........ B54... eee All 1902 wet wens BO ve seinaese All 1902 cae cars Ss All 1902........ POO seca All 1902........ 601........ All 1903........ 820........ All 1904.....0.. 123........ All 1904. cece B07.....006. All 1904........ 706........ All 1905........ BD. etiewyiens All 1905........ 415........ All 1905.,...... et All 1905........ 3 All Es NBD sob acs All 1905........ DOs oie oat All W906 \5 050 se 238. ..0000. All BUSINESS CORPORATIONS LAW. CHAPTER 4 OF THE CONSOLIDATED LAWS. ‘ARTICLE 1. Short title (§ 1). 2. General provisions (§§ 2-16). 3. Laws repealed ; when to take effect (§§ 25, 26). ARTICLE 1. SHORT TITLE. Section 1. Short title. § 1. Short title. This chapter shall be known as the “ Business Corporations Law.” L. 1890, ch. 567, as amended by L. 1892, ch. 691, and L. 1895, ch. 671, sec. 1. The so-called ‘“ Business Corporations Law” took effect in May, 1891; the following year it was amended and entirely re-enacted. In GunwkaL.—A “business corporation” is one of the classes into which Stock Corporations are divided; see sec. 2, Gen. Corp. Law. In the organization of a business corporation, attention is directed to the General Corporation Law and the Stock Corporation Law, for provisions applicable to the formation of such w corporation. ARTICLE 2. GENERAL PROVISIONS. Szction 2. Incorporation. 3. Restrictions upon commencement of business. 4, Reorganization of existing corporations. 5. Payment of capital stock. 6. Full liability corporations. 7. Consolidation of corporations. 8. Submission of consolidation agreement to stockholders. 9. Powers of consolidated corporations, 10. Transfer of property of old corporations to consolidated corporations. 163 Bustness Corporations Law. SEcTIon 11. Rights of creditors of old corporations. 12. District steam corporations. 13. Examination of meters by agent of district steam corpora- tions. 14, Entry by agent of district steam corporation to cut off steam. 15. Water companies. 16. Improvement corporations; right of condemnation. § 2. Incorporation. Except as provided in section two-a of this chapter, three or more persons may become a stock corporation for any lawful business pur- pose or purposes other than a moneyed corporation, or a corporation provided for by the banking, the insurance, the railroad and the trans- portation corporations laws, or an educational institution or corpora- tion which may be incorporated as provided in the education law, by making, signing, acknowledging and filing a certificate which shall contain : 1. The name of the proposed corporation. 2. The purpose or purposes for which it is to be formed. 3. The amount of the capital stock, and if any portion be preferred stock, the preferences thereof. 4. The number of shares of which the capital stock shal) consist, each of which shall not be less than five nor more than one hundred dollars, and the amount of capital not less than five hundred dollars, with which said corporation will begin business. 5. The city, village or town in which its principal business office is to be located. If it is to be located in the city of New York, the borough therein in which it is to be located. 6. Its duration. ”. The number of its directors, not less than three. 8. The names and post-office addresses of the directors for the first year. 9. The names and post-office addresses of the subscribers to the certificate, and a statement of the number of shares of stock which each agrees to take in the corporation. Any certificate of incorporation filed, prior to April twenty-second, eighteen hundred and ninety-six, under the provisions of the business corporations Jaw theretofore in force which shall contain the names and post-office addresses, either of the subscribers to the stock or of tne subscribers to the certificate, and a statement of the number of shares of stock which each agrees to take in the corporation, shall be deemed 164 Business Corporations Law. to have complied with the requirements of section two, subdividision nine of said law. If meetings of the board are to be held only within the state the certificate or by-laws must so provide. L. 1890, ch. 567, sec. 2, as amended by L. 1892, ch. 691; L. 1895, ch. 671; L. 1896, ch. 396, sec. 2; L. 1901, ch. 520; L. 1903, ch. 525; L. 1904, ch. 446, sec. 1; L. 1907, ch. 646, sec. 1. The portion of the last paragraph of the former law, providing that the certificate may contain regulations for the conduct of the bus- iness of the corporation, has been omitted. The same matter is contained in Gen. Corp. Law, sec. 10, subd. 2. INCORPORATIONS.—For the qualification of incorporators, see Gen. Corp. Law, sec. 4, and annotation. The amendment of 1901 repealed the provision limiting the number of di- rectors to 13. The certificate must be in the English language. (Gen. Corp. Law, sec. 5, subd. 1). And may contain any provision with reference to the conduct of the corporate business. (Gen. Corp. Law, sec. 10.) Namp (Susp. 1).—-A corporation must possess some corporate title. Thomas v. Dakin, 22 Wend. 9; Scarsdale Pub. Co. v. Carter, 63 Misc. 271, 116 N. Y. Supp. 731. On the subject of corporate name, see Gen. Corp. Law, sec. 6, and annotation ; and on the change of corporate name, see Gen. Corp. Law, Art. 3, and ‘annotation. The use of the term “limited ” or ‘“ Ltd.’’ is no longer necessary. Chap. 611 of the Laws of 1875 required it to be added to the corporate name, to all notices, advertisements, notes, checks, etc., and imposed a penalty for violation. Purposes (Susp. 2).—The object or purpose for which a stock corporation may be formed is stated in the first paragraph of this section. Corporations which cannot be organized under this law are those for which other laws are provided; see Transportation Corporations Law, etc. With reference to the alteration or extension of the business of a stock cor- poration, see sec. 18 of the Stock Corp. Law. A gas company may amend its certificate so as to enable it to manufacture and use electricity for producing light, heat and powet. People ex rel Municipal Gas Co. v. Rice, 138 N. Y. 151. As to corporations organized to practice law, see sec. 2-a, post. Amount or Strock (Susp. 3).—If any portion of the stock is preferred, the certificate must state the amount and nature thereof; but if no stock is pre- ferred only the amount of stock need be given. With reference to the issue of common or preferred stock see sec. 61 of the Stock Corp. Law. NumsBpr or SHarps (Susp. 4).—The section places no limitation on the num- ber of shares which may be issued, except that it shall not be less than 5. With reference to the issue and transfer of stock, payment of subscriptions, see Stock Corp. Law, sec. 50, et seq. PRINCIPAL OFFicp (Susp. 5).—The term “ office of a corporation.” is defined in subd. 9, sec. 3, Gen. Corp. Law, as its principal office within the state, or principal place of business within the state if it has no principal office therein. The terms “principal place of business ’’ are synonymous when used in respect to corporations doing business within the state. People ex rel. Knickerbocker Press vy. Barker, 87 Hun 341, 34 N. Y. Supp. 269, aff’d 147 N. Y. mem. A corporation can have no legal existence out of the bounds of the sovereignty by which it is created. Stevens v. Phoenix Ins. Co., 41 N. Y. 149, and cases cited. The corporation is deemed a resident of that county where its principal place of business is located, for the purpose of bringing an action, although a large part of the business is carried on in an adjoining county where it has an office. Rossie Iron-Works v. Westbrook, 13 N. Y. Supp. 141. The mere fact that a corporation does a large part of its business in a place other than that designated by its certificates as its principal office does not amount to a change of its principal office, since that can be changed only in accordance with statute. Rossie Iron-Works v. Westbrook, 13 N. Y. Supp. 141. 165 Business Corporations Law. As to change of the place of business named in the certificate, see Stock Corp Law, sec. 13, and annotation. The second sentence in subd. 5 was added by Law 1903. Duration (Supp. 6).—Sec 11 of the Gen. Corp. Law states that every cor- poration as such has power, though not specified in che law under which it ts incorporated, to have succession for the period specified in its certificate of in- corporation or by law, and perpetually when no period is specified. But in the case of consolidated corporations, sec. 7, post, provides that the term shall not exceed fifty years. On the subject of extension of corporate existence, see Gen. Corp. Law, sec. 37. On the revival of corporate existence after the term specified in the certificate has expired, see Gen. Corp. Law, secs. 38, 39, 40, 41, 42. And as to forfeiture for non-user, see Gen. Corp. Law, sec. 36, and annotation. Diructors (Susp. 7).—Sec. 34 of the Gen. Corp. Law provides that the affairs of every corporation shall be managed by its board of directors, at least one of whom shall be a resident of this state; and sec. 25 of the Stock Corp. Law pro- vides that each director shall be a stockholder unless otherwise provided in the certificate or by-laws. With reference to the election, duties and liabilities of directors, see Art. 3 of the Stock Corp. Law, and annotation; also Gen. Corp. Law, sec. 28, et seq. On the subject of a quorum of directors and powers of majority, see Gen. Corp. Law, sec. 34. And as to a change in the number of directors, see sec. 26 of the Stock Corp. Law. SUBSCRIPTION AGREPMDNT (SuBD. 9).—A subscriber is not required to sign the certificate of Incorporation in order to be bound by a subscription agreement. Yonkers Gazette Co. vy. Taylor, 30 App. Div. 334, 51 N. Y. Supp. 969. On the general subject of subscriptions to stock, see Stock Corp. Law, sec. 563 et seq. Since the amendment of 1901 the addresses of, and number of shares taken by the subscribers must be stated in the certificate. AMENDED CBPRTIFICATE.—Gen. Corp. Law, sec. 7 permits the filing of an amended certificate in case of defects or informalities in the original. Finine.— With reference to the filing and recording of certificates of incor- poration, and amended or supplemental certificates, see Gen. Corp. Law, secs. 5, 7, 8, 9. It is not necessary that u county clerk’s certificate be attached to the certi- ficate filed with the Secretary of State, if the certificate was acknowledged within the state. ORGANIZATION Tax.—Sec. 180 of the Tax Law, post, requires every corporation incorporated under the laws of this state to pay to the state treasurer a tax of one-twentieth of one per centum upon the capital stock which the corporation is authorized to have (in other words, 50 cents on every $1000 of certificate stock). This tax, however, shall in no case be less than one dollar. The tax, if over $25, as required by a rule of the State Treasurer’s office, must be sent in cash, by certified check, draft, post-office or express money order; and the tax whatever its amount, must be sent directly to the Treasurer, as pre- scribed by sec. 180 of the Tax Law, and not to the Secretary of State with the certificate ; upon receipt of the tax, the Treasurer will notify the Secretary of State. Fans or SECRETARY oF Statp.—For searching the records of his office for any one year and for every other year in which such search is made, six cents; for a copy of any paper or record not required to be certified or otherwise authenticated by him, ten cents per folio; for a certified or exemplified copy of any law, record or paper, fifteen cents per folio, and one dollar additional for the certificate under the seal of his office attached thereto; for a certificate under the great seal of the state, one dollar; for recording a certificate, notice or other paper, except as otherwise provided, fifteen cents per folio; for filing and recording the original certificate of incorporation of a railroad corporation for the construction of a railroad in a foreign country, fifty dollars; for filing the original certificates of every other railroad corporation, twenty-five dollars; for filing the original certificate of any other stock corporation, ten dollars; for filing any original certificate of incorporation drawn under article three of the membership corpora- 166 Business Corporations Law. tions law, ten dollars; for filing the certificate of a foreign corporation desiring to do business in the state, ten dollars; for filing a certificate under subdivision three of section nine of the general corporation law, ten dollars; no fee shall be collected for copies of records furnished to public officers for use in their official capacity. See, further, sec. 26 of the Executive Law. Fans or County CLark.—VFiling, 6 cents; recording, 10 cents per follo; for a copy of any order or record, 8 cents per folio. CORPORATION TO Borw FoR Gas.—A corporation organized to bore, drill and dig for natural gas, distributing the same in pipes and selling it to customers, is properly organized under the Business Law rather than under the Transportation Corporations Law. Wilson v. Tennant, 61 App. Div. 100, 70 N. Y. Supp. 2, aff’d 179 N. Y. 546 mem. § 2-a. Incorporating for the purpose of conducting law business, et cetera, prohibited. No corporation shall be organized or created under the provisions of this chapter for the purpose or purposes of conducting any branch of the practice of law or of retaining or employing an attorney or attor- neys to furnish legal advice, draw legal papers or perform legal services of any kind or description, either directly for the person, persons or corporation for whose use such services are rendered, or for the corporation retaining such attoney in compliance with any con- tract of employment of the corporation or of the attorney made by the corporation with any other person, persons or corpration. The state- ment of the purpose or purposes of a corporation, in any certificate filed under the prvisions of this chapter, in whatsoever language the same may be set forth, shall not be held or construed to confer on the corporation the power to transact any business specified in this section as a purpose for which the creation of a corporation under this chapter is prohibited; and particularly when the stated objects of a corporation include the collection of debts or accounts, in words or substance, they shall not be construed to include the employment or furnishing of attorneys to prosecute any action or pursue any legal or equitable remedy in aid of such collections. 8 3. Restrictions upon commencement of business. No such corporation shall incur any debts until the amount of capital specified in its certificate of incorporation, as the amount of capital with which it will begin ‘business, shall have been paid in in money or property. As amended by L. 1892, ch. 691, sec. 3; L. 1895, ch. 671, sec. 1. In GmnpRsu.—It is no longer necessary to file a copy of the by-laws. § 4. Reorganization of existing corporations. Any stock corporation heretofore organized, except a moneyed or transportation corporation, or a corporation the business of which partakes of the nature of banking or insurance, may reincorpoate 167 Bustness Corporations Law. under this chapter in the following manner: The directors of the corporation shall call a meeting of the stockholders thereof by publish- ing a notice, stating the time, place and object of the meeting, signed by at least a majority of them, in a newspaper of the county in which its principal business office is situated, once a week, for at least three successive weeks, and by serving upon each stockholder, at least three weeks before the meeting, a copy of such notice either personally or by depositing it in the post-office, postage prepaid, addressed to him at his last known post-office address. The stockholders shall meet at the time and place specified in the notice and organize by choosing one of the directors chairman, and a suitable secretary, and shall then take a vote of those present in person or by proxy upon the proposition to reincorporate under this chapter, and if votes representing a majority of all the stock of the corporation shall be cast in favor of the proposition, the officers of the meeting shall execute and acknowl- edge a certificate of the proceedings, which certificate shall also con- tain the statements required by section two of this chapter, and shall be filed in the offices where certificates of incorporation under this chapter are required to be filed. From the time of such filing such corporation shall be deemed to be a corporation organized under this chapter, and if originally organized or incorporated under a general law of this state, it shall have and exercise all such rights and franchises as it has heretofore had and exercised under the laws pursuant to which it was originally incorporated, and such reorganiza- tion shall not in any way affect, change or diminish the existing liabilities of the corporation. As amended by L. 1895, ch. 671, sec. 1. In GpNERAL.—Reincorporation does not operate to create a new and distinct corporation, but is simply the continuation of the old one under a new law. People ex rel. Consolidated K. C. S. & R. Co. v. Secretary of State, 13 App. 50, 43 N. Y. Supp. 51; Matter of Empire State Supreme Lodge, 53 Misc. 344, 103 N. Y. Supp. 465, aff'd 118 App. Div. 616 mem. But, see, Matter of New York & S. Inv. Co., 16 N. Y. Supp. 213. A corporation cannot extend its existence by reincorporation under this sec- tion. People ex rel. Haberman v. James, 5 App. Div. 412, 39 N. Y. Supp. 313. On the reincorporation of foreign moneyed corporations, see Gen. Corp. Law, secs. 17, 18, and 19. ORGANIZATION Tax.—Since reincorporation does not create a new corpora- tion, the organization tax need not be paid. Matter of Consolidated K. C. 8S. & R. Co., 13 App. Div. 50, 43 N. Y. Supp. 51. But contra, in Matter of New York & S. Iny. Co., 16 N. ¥. Supp. 213; this case is overruled in effect by the former case. But in case of an increase in capital stock, see Tax Law, sec. 180, post. § 5. Payment of capital stock. One-half of the capital stock of every such corporation shall be paid in within one year from its incorporation, or the corporation shall be dissolved, and the directors within thirty days after such payment shall make a certificate of the fact of such payment, which 168 Business Corporations Law. shall be signed and acknowledged by a majority of the directors, and verified by the president or vice-president and secretary or treasurer, and filed in the offices where the certificates of incorporation are filed. The dissolution of any such corporation for any cause shall not take away or impair any remedy against it, its stockholders or officers, .for any liabilities incurred previous to its dissolution. L. 1890, ch. 567, sec. 6, as amended by L. 1892, ch. 691, sec. 5. § 6. Full liability corporations. Every corporation formed under this chapter may be or become a full liability corporation by inserting a statement in the certificate of incorporation, that the corporation thereby formed is intended to be a full liability corporation; and in case of an existing corporation, which is not a full liability corporation, it may become such by filing in the offices where certificates of incorporation are required to be filed, a supplemental certificate stating that thereafter the corporation in- tends to be a fuil liability corporation, which certificate shall be exe- cuted and acknowledged by the president and treasurer of the corpora- tion or by the board of directors, and shall have annexed thereto a copy of a resolution, adopted by a two-thirds vote of the board of directors, and the written consent of all the stockholders of the corporation, au- thorizing and consenting to the change of the corporation to a full lia- bility corporation. If the corporation is formed as or becomes a full liability corporation all the stockholders of the corporation shall be severally individually liable to its creditors for all its debts and liabili- ties, and may be joined as defendants in any action against it. No exe- cution shall issue against any stockholder individually until execution has been issued against the corporation and returned unsatisfied, and all the stockholders shall contribute a proportionate share, according to the number of shares of stock owned by each, of the amount paid by any stockholder on a judgment recovered against him individually for a debt of the corporation, and he may recover from the other stock- holders in the corporation in a joint or several action the proper portion due by them and each of them, of the amount paid by him on any such judgment. § 7. Consolidation of corporations. Any two or more corporations organized under the laws of this state for the purpose of carrying on any kind of business of the same or of a similar nature, which a corporation organized under this chapter might carry on, may consolidate such corporations into a single cor- poration, as follows: The respective corporations may enter into and make an agreement signed by a majority of their respective boards of 169 Business Corporations Law. directors and under their respective corporate seals, for the con- solidation of such corporations, prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corporation, the number of directors who shall manage its affairs, not less than three, the names and post-office addresses of the directors for the first year, the term of its existence, not exceeding fifty years, the name of the town or towns, county or counties, in which its operations are to be carried on, the name of the town or ety and county in this state in which its principal place of business is to be situated, the amount of its capital stock, which shall not be larger in amount than the fair aggregate value of the property, franchises and rights of such corporations, and the number of shares into which the same is to be divided, the manner of distributing such capital stock among the holders thereof, and if such corporations, or either of them, shall have been organized for the purpose of carrying on any part of its business in any place out of this state, the agreement shall so state, with such other particulars as they may deem necessary. As amended by L. 1901, ch. 520, sec. 2. This was section 8 of the former law. Sec. 7 formerly related to the extension of corporate business but was omitted because the same matter was contained in sec. 18 (formerly 82) of the Stock Corporation Law. In GENDRAL.—On the subject of merger and prohibited combinations, see Stock Corp. Law, secs. 14, 15, and annotation. As to the consolidation of Transportation Corporations, see Trans. Corp. Law, post. ORGANIZATION Tax.—As provided in sec. 180 of the Tax Law, post. the new corporation shall be required to pay the tax only upon the amount of its capital in excess of the aggregate amount of capital stock of the consolidating corporations. See People ex rel. New York Phonograph Co., 57 Hun 486, 11 N. Y. Supp. 249, aff’d 128 N. Y. 591 mem. Fnes or Secretary or Srarp.—tThe fees of the Secretary of State and County Clerk in the case of consolidation of corporations are the same as when an original certificate is filed; see annotation under sec. 2, supra. INJUNCTION.—A stockholder must abide by the decision of the directors or other stockholders upon all matters which the law commits to their control, and he is not entitled to enjoin the execution of a proposed merger which is not ultra vires and which has the approval of a majority of the stockholders. Colby v. Equitable Trust Co., 124 App. Div. 262, 108 N. Y. Supp. 978, aff'd 192 N. Y. 535 mem. § 8. Submission of consolidation agreement to stockholders. Such agreement shall be submitted to the stockholders of each of such corporations, at a meeting thereof to be called upon notice of at least two weeks, specifying the time, place and object thereof, and addressed to each at his last known post-office address, and deposited in the post-office, postage prepaid, and published for at least two successive weeks in one of the newspaperes in each of the counties of this state in which either of such corporations shall have its place of business, and if such agreement shall be approved at each of such meetings of the respective stockholders separately, by the vote by ballot of the stockholders owning at least two-thirds of the stock, the same shall 170 Business Corporations Law. be the agreement of such corporations, and a sworn copy of the proceedings of such meetings, made by the secretaries thereof, respectively, and attached thereto, shall be presumptive evidence of the holding and action of such meetings. Such agreement and verified copy of proceedings of such meetings shall be made in duplicate, one of which shall be filed in the office of the secretary of state, and the other in the office of the clerk of the county where the principal business office of the new corporation is to be situated in this state, and thereupon such corporation shall be merged into the new corporation specified in such agreement, to be known by the corporate name therein mentioned, and the provisions of such agree- ment shall be carried into effect as therein provided. If any stock- holder, not voting in favor of such agreement to consolidate, shall at such meeting, or within twenty days thereafter, object to such consolidation and demand payment for his stock, such stockholder or such new corporation, if the consolidation takes effect at any time thereafter, may at any time within sixty days after such meeting apply to the supreme court at any special term thereof held in the dis- trict in which any county is situated in which such new corpora- tion may have its place of business, upon at least eight days’ notice to the new corporation, for the appointment of three persons to ap- praise the value of such stock, and the court shall appoint three such appraisers and designate the time and place of their first meeting, with such directions in regard to their proceedings as shall be deemed , proper, and also direct the manner in which payment for such stock shall be made to such stockholder. The court may fill any vacancy in the board of appraisers occurring by refusal or neglect to serve or otherwise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock at the time of such dissent, and deliver one copy to such new corporation, and another to such stockholder if demanded; the charges and expenses of the appraisers shall be paid by the new corporation. When the new corporation shall have paid the amount of such appraisal, as directed by the court, such stockholder shall cease to have any interest in such stock and in the corporate property of such corporation, and such stock may be held or disposed of by such new corporation. Where any consolidation has been heretofore or shall be hereafter effected pursuant to the laws of this state, and the holders of ninety per centum of the capital stock of each of such corporations have voted in favor of such agreement to consolidate, if any stockholder not voting in favor of such consolidation shall fail to exchange his stock for stock of such new corporation within sixty 171 Bustyess Corporations Law. days after this act shall go into effect, or, in case of a consolidation hereafter effected, within sixty days after he shall have become entitled to make such exchange, such new corporation may, at any time there- after, upon at least eight days’ notice to such stockholder, to be given personally, within the state, if possible, and if not, then in such manner as the court shall direct, apply to the court, as hereinbefore provided, for the appointment of three persons to appraise the value of such stock at the time of the expiration of such sixty days. Upon the completion of the appraisal in the manner hereinbefore provided for, and the payment by such new corporation of the amount of such appraisal, as directed by the court, such stockholder shall cease to have any interest in such stock, and in the corporate property of such cor- poration, and such stock may be held or disposed of by such new corporation. ' As amended by L. 1902, ch. 438, sec. 1. This was sec. 9 of the former Bus- iness Corp. L. ‘ In Geyprau.—The portion beginning “ Where any consolidation,” was added in 1902. § 9. Powers of consolidated corporations. Such new corporation in addition to the general powers of corpora- tions shall enjoy the rights, franchises and privileges possessed by each of the corporations so consolidated, subject to the restrictions, liabilities, duties and provisions contained in this chapter so far as the same may be applicable to the purposes for which it shall have been organized and expressed in the agreement for consolidation, and may prosecute or carry on any kind of business which each of the consolidating corporations was authorized by law to conduct. As amended by L. 1892, ch. 691, sec. 10. This was sec. 10 of the former Business Corp. L. § 10. Transfer of property of old corporations to consolidated cor- porations. Upon the consummation of such act of consolidation, all the rights, privileges, franchises and interests of each of the corporations, parties to the same, and all the property, real, personal and mixed, and all the debts due on whatever account to either of them, as well as all stock subscriptions and other things in action belonging to either of them, shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed; and all claims, demands, property and every other interest shall be as effectually the property of the new corporation as they were of the former corpora- tions, parties to such agreement and act; and the title to all real estate, taken by deed or otherwise, under the laws of this state, vested in either of such corporations, parties to such agreement and act, 172 Business Corporations Law. shall not be deemed to revert or be in any way impaired by reason of this chapter, or anything done by virtue thereof, but shall be vested in the new corporation by virtue of such act of consolidation ; and all rights, privileges, franchises and property of the corporations, parties to any consolidation heretofore made under this chapter, shall vest as fully in the new corporation thereby created as they were vested in the corporations, parties to such consolidations. Former section 16, ch. 567, L. 1890, as amended by L. 1892, ch. 691; L. 1902, ch. 457, sec. 1. This was sec. 11 of the former Business Corp. L. 8 11. Rights of creditors of old corporations. The rights of creditors of any corporation that shall be so consoli- dated shall not in any manner be impaired, nor any liability or obliga- tion for the payment of any money due or to become due to any person or persons, or any claim or demand for any cause existing against any such corporation or against any stockholder thereof be released or impaired by any such consolidation; but such new corpora- tion shall succeed to and be held liable to pay and discharge all such debts and liabilities of each of the corporations consolidated in the same manner as if such new corporation had itself incurred the obligation or liability to pay such debt or damages and the stock- holders of the respective corporations consolidated shall continue, subject to all the liabilities, claims and demands existing against them as such, at or before the consolidation; and no action or proceeding then pending before any court or tribunal in which any corporation that may be so consolidated is a party, or in which any such stock- holder is a party, shall abate or be discontinued by reason of such con- solidation, but may be prosecuted to final judgment, as though no con- solidation had been entered into; or such new corporation may be substituted as a party in place of any corporation so consolidated, by order of the court in which such action or proceeding may be pending. Former L. 1890, ch. 567, sec. 17, as amended by L. 1902, ch. 691, sec. 12. This was sec. 12 of the former Business Corp. L. EFFECT OF CONSOLIDATION.—Asgs a general rule consolidation extinguishes the precedent companies, so that thereafter no action can be commenced against chem ; since after consolidation each of the constituent companies loses its identity, and there is no one upon whom process can be served. Corp. v. Colorado Coal & Iron Co., 29 Misc. 109, 60 N. Y¥. Supp. 293; Klein vy. Bast River El. L. Co., 37 Mise. 490, 75 N. Y¥. Supp. 1000. The statutory liability of a consolidated corporation for the debts and llabil- ities of the constituent companies, cannot be impaired by any agreement between the corporations, as to creditors who have not joined in or asserted to the agree- ment. Matter of Utica Natl. Brew. Co., 154 N. Y. 268. § 12. District steam corporations. Any corporation now or hereafter incorporated for the purpose of supplying steam to consumers from a central station or stations 173 « Business Corporations Law. through pipes laid in the public streets, shall be known as a district steam corporation and upon the application in writing of the owner or occupant of any building or premises, within one hundred feet of any street main laid down by any such corporation, and payment by him of all money due from him to it, such corporation shall supply steam as may be required for heating such building or premises, notwith- standing there may be rent or compensation in arrears for steam supplied, or for meter, pipe or fittings furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of such arrears, and shall refuse or neglect to pay the same; and if, for the space of twenty days after such application, and the deposit, if required, of a reasonable sum to cover the cost of con- nection and two months’ steam supply, the corporation shall refuse or neglect to supply steam as required, it shall forfeit to such applicant the sum of ten dollars and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue; but no such corporation shall be required to lay a service pipe for the purpose of supplying steam to any applicant where the ground in which such pipe is required to be laid shall be frozen, or otherwise present serious obstacles to laying the same, nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay for two months’ steam supply and the cost of the necessary connections and of the erection of a meter and such other special apparatus as are required for use in connection with such steam supply, nor unless the applicant shall provide the space and right of way necessary for the erection, maintenance and use of such connections and apparatus, and signify his assent in writing to the reasonable regulations of the corporation with reference to the supply of steam to consumers. Former L. 1890, ch. 567, sec. 18, as amended by L. 1892, ch. 691, sec. 13. This was sec. 13 of the former Business Corp. L. § 13. Examination of meters by agent of district steam corpora- tions. Any such corporation may make an agreement with any of its cus- tomers, by which any of its officers or agents shall be authorized at all reasonable times to enter any dwelling, store, building, room or place, supplied with steam by such corporation and occupied by such customer, for the purpose of inspecting and examining the meters, devices, pipes, fittings and appliances for supplying or regulating the supply of steam, and for ascertaining the quantity of steam con- sumed, or the quantity of water resulting from the condensation of 174 Bustness Corporations Law. steam consumed. Every such agreement shall further provide that such officer or agent shall exhibit his written authority if requested by the occupant of such dwelling, store, building, room or place. Any person who shall directly or indirectly prevent or hinder such officer or agent from entering such dwelling, store, building, room or place, or from making such inspection or examination, in violation of such agreement, shall forfeit to the corporation the sum of twenty- five dollars for each offense. § 14, Entry by agent of district steam corporation to cut off steam. If any person or persons, corporation or association supplied with steam by any such corporation, shall neglect or refuse to pay the rent or remuneration for such steam, or for the meter, device, pipes, fit- tings or appliances, let by such corporation for supplying steam, or for ascertaining the quantity of steam consumed, or the quantity of water resulting from the condensation of the steam consumed, agreed upon or due for the same, as required by his, their or its con- tract with such corporation, the latter may thereupon stop and pre- vent the steam from entering the premises of such person, persons, corporation or association, so neglecting or refusing to pay such rent or remuneration, and may also in any case, in which a person is liable to pay a forfeiture, or to a fine or imprisonment, by reason of any act to or towards such corporation or its property for which such forfeiture, fine or penalty is imposed by law, stop and prevent the steam from entering the premises of the person so liable, or if such person be an officer or agent of any corporation or association, stop and prevent the steam from entering the premises of such corpo- ration or association. In all cases in which such corporation is au- thorized to stop and prevent the steam from entering any premises, it may, by its officers, agents or workmen, enter into or on such prem- ises between the hours of eight o’clock in the forenoon and six o’clock in the afternoon and cut off, disconnect, separate and carry away any meter, device, pipe, fitting or other property of the corporation; and may cut off, disconnect and separate any meter, device, pipe or fit- ting, whether the property of the corporation or not, from the mains or pipes of such corporatoin. Former L. 1890, ch. 567, sec. 20, a8 amended by L. 1892, ch 691, sec 15. This was sec. 15 of the former Business Corp. L. § 15. Water companies. No corporation shall be formed under this chapter for the purpose of accumulating, storing, conducting, furnishing or supplying water 175 Bustness Corporations Law. for domestic manufacturing or municipal purposes in the city of New York. Any corporation formed for the purpose of supplying any other city of the state with water, if unable to agree with the owners of any real property required for the purpose of the corporation for the purchase thereof may acquire title thereto by condemnation. Added by L. 1892, ch. 691, sec. 16. This was sec. 16 of the former Business sigs ha ee provisions with reference to the incorporation of watef- works corporations, see Art. 8 of the Transportation Corp. Law. From these provisions it would seem that water companies formed for other purposes should be organized under this section. An opinion by the Attorney General, filed April 17th, 1893, states that as the Transportation Corporations Law makes no provision for furnishing water for manufacturing or hydraulic purposes, corporations may be organized for that purpose under this section of the Business Corp. Law. § 16. Improvement corporations; right of condemnation. Any corporation formed for the purpose of developing or improv- ing real property, which lays out for public use roads, streets, ave- nues or highways, upon or through its lands, if unable to agree with the owners of any real property required for the purpose of extend- ing, continuing or connecting such roads, streets, avenues or high- ways, for the purchase thereof, may acquire title thereto by condemnation in the manner prescribed by law; provided such cor- poration has the consents of the owners of not less than one-half of all of the land which adjoins or abuts upon, or which will adjoin or abut upon, such roads, streets, avenues or highways, or their ex- tensions, continuations or connections, when completed; and such corporation may lay out and establish such roads, streets, avenues or highways, and the extensions, continuations or connections thereof, and may construct drains or sewers, and such bridges or culverts as may be necessary to maintain the grades of, or for the extension, con- tinuation or connection of, the roads, streets, avenues or highways, so land out; and may connect such roads, streets, avenues or highways, with or across roads, streets, avenues or highways, belonging to any other corporation or person, but may not disturb the established grades thereof. All lands so taken by condemnation shall be deemed to be acquired for a public use. Added by L. 1900, ch. 518, sec. 1. This was sec. 17 of the former Business Corp. L. 176 Bustness Corporations Law. ARTICLE 3. LAWS REPEALED; WHEN TO TAKE EFFECT. Section 25. Laws repealed. 26. When to take effect. § 25. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that por- tion specified in the last column is hereby repealed. § 26. When to take effect. This chapter shall take effect immediately. ScHEDULE oF Laws REPEALED. Laws of Chapter Section 1868........ 16hewccwes GAL IST Lisi sears 820........ All 1876. oe eeae x 363...... .. All 188% esc dane BO Le ssecnins'es All 1890........ BOT oye All 1892........ 691...... ». All 1895........ GC csisarses eos All 1896. acces B69 ssc wee All 1896 460. sicseie ois All 1900........ 518...... .. All LOOT ree ratsness DRO se irereiesyene All 1902 438........ All 1902. incus BOM ac dea'ek All L908 wesc cecuee 525...... .. All 19045 5 cide, Ce All 1907 sscxeacws 646 sca aeaevs All 17? MEMBERSHIP CORPORATIONS LAW. v CHAPTER 35 OF THE CONSOLIDATED LAWS. ARTICLE 1. 2. 3. SOO MBH aH 1 11. 13. 14, 15. 16. 17. 18. 19. 20. al. Szorion 1. 2. Short title and definitions (§§ 1, 2). General provisions relating to membership corporations (§§ 8-24). Corporations for purposes not elsewhere authorized (§§ 40-47). Cemetery corporations (§§ 60-84). . Fire corporations (§§ 100-105). . Corporations for the prevention of cruelty (§§ 120-123). . Hospital corporations (§ 130). . Christian associations (§§ 140-143). . Bar associations (§§ 150, 151). . Veteran soldiers’ and sailors’ associations (§§ 160-162). Soldiers’ monument corporations (§§ 170-173). . Boards of trade (§§ 180-182). Agricultural and horticultural corporations (§§ 190- 197). Medical societies (§§ 210-215). Alumni corporations (§§ 220-227). Historical societies (§§ 230, 231). Veterinary associations (§§ 240-244). Consolidation of library corporations in New York city (§§ 260-265). Agricultural, fair and other corporations authorized to construct tunnels and bridges (§§ 270-273). Corporations for raising and breeding and improving the breed of horses (§§ 280-298). — Laws repealed; when to take effect (§§ 310, 311). ARTICLE 1. SHORT TITLE AND DEFINITIONS. Short title. Definitions. 179 MempBersHip Corporations Law. § 1. Short title. This chapter shall be known as the “ Membership Corporations Law.” § 2. Definitions. Neither the term “ membership corporations,” nor the term “ mem- bership corporation created by special law,” includes a stock corpo- ration, or a corporation organized for pecuniary profit, or a corporation subject to any of the provisions of the insurance law. Subject to such exceptions, the term “membership corporation ” means a corporation hereafter incorporated under this chapter, or heretofore corporated under any law repealed by this chapter, but does not include a “ membership corporation created by special law”; and the term “membership corporation created by special law” means a corporation created by special law for purposes for all of which a corporation might be created under this chapter. ARTICLE 2. GENERAL PROVISIONS RELATING TO MEMBERSHIP CORPORATIONS. Section 3. Relation of article two to the other articles of this chapter. 4, Extension of corporate purposes by supplemental cer- tificates. 5. Incorporation of unincorporated associations. 6. Re-incorporation of membership corporations. %. Consolidation. 8. By-laws. 9. Members. 10. Directors and trustees. 11. Powers, duties and liabilities of directors. 12. Prohibitions on officers. 13. Purchase, sale, mortgage and lease of real property. 14, Changing number of directors. 15. Changing time of annual meetings. 16. Visitation of supreme court. 1%. Report to comptroller by corporations receiving state moneys. 18, Societies and clubs taking property by will. 19. Societies taking property by will. 20. Appointment of special policemen. 180 MEMBERSHIP QCorPorations Law. SEcTion21. Trespass punished. 22. Oath of policemen. 23. Shield. 24, Compensation. § 3. Relation of article two to the other articles of this chapter. If in any other article of this chapter, there be a provision in con- flict with any provisions of this article, such provisions of such other article shall prevail. If in any other article of this chapter, there be @ provision relating to a matter embraced in this article, but not in conflict therewith, such provision in such other article shall be deemed to be additional to the provision in this article relating to the same subject matter, and both provisions shall, in such case, be applicable. § 4. Extension of corporate purposes by supplemental certificates. A membership corporation, created under or by a general or special law for purposes for which a corporation may be created under any article of this chapter may, from time to time extend its corporate purposes so as to include any other purpose for which a corporation may be created under such article by filing in the offices in which its original certificates of incorporation, if any, are filed, or otherwise in the offices in which original certificates of incorpo- ration for such purposes are required to be filed, a copy of a resolution in favor of such extension, certified by the president and secretary of the corporation to have been duly adopted by the concurring vote of a majority of the members of the corporation present at an annual meeting, or a special meeting duly called for that purpose; and a certificate signed and acknowledged by a majority of the directors of the corporation, in pursuance of such resolution, with the approval, indorsed. thereupon or annexed thereto, of a justice of the supreme court, and if the care of an orphan, pauper or destitute children be included among such corporate purposes, with the additional ap- proval indorsed thereupon or annexed thereto, of the state board of charities. As amended by L. 1902, ch. 341, sec. 1. In GuneRraL.—On the alteration or extension of the business of a stock cor- poration, see Stock Corp. Law, sec. 18. § 5. Incorporation of unincorporated associations. An unincorporated club, society or association organized for pur- poses for which a corporation may be created under any article of this chapter, may, by the unanimous vote of all its members present and voting at a regular or regularly called meeting thereof, authorize its directors to incorporate for the same purposes, under such article, 181 Memsersuie Corporations Law. with a corporate name adopted by such meeting, if notice of the in- tention so to incorporate be given at least thirty days before such meeting, personally or by mail, to each member of such association whose residence or post-office address is known. On such incorporation, the members of such previously unincorporated club, association or society shall become members of such corporation, and all of the property of such unincorporated club, society or association, or held by any person for its use or benefit, shall vest in and become the prop- erty of such corporation, subject to be taken in payment of all claims against such unincorporated club, society or association, or against any of the members thereof as such members, or by reason of their membership therein, the same as if such incorporation had not taken place. § 6. Re-incorporation of membership corporations. A membership corporation created by special law for purposes for which a corporation may be created under any article of this chapter, may, by the unanimous vote of all its members present and voting at a regular or regularly called meeting thereof, authorize its direc- tors to re-incorporate with the same corporate name, for the same purposes under such article. Such re-incorporation shall not affect a dissolution of the corporation, but shall be deemed a continuation of its corporate existence, without affecting its property rights, or its liabilities, or the liabilities of its members or officers as such, but thereafter it shall have only such other rights, powers and privileges, and be subject only to such other duties and liabilities as a corporation created for the same purpose under such article. § 7. Consolidation. Any two or more membership corporations, incorporated under or by general or special laws, for kindred purposes, being purposes for which a corporation may be formed under any article of this chapter, may enter into an agreement for the consolidation of such corporations setting forth the terms and conditions of consolidation, the name of the proposed corporation, the number of its directors, the time of the annual election and the names of the persons to be directors until the first annual meeting. Each corporation may pe- tition the supreme court for an order consolidating the corporation, setting forth in such petition the agreement for consolidation, a statement of all its property and liabilities and the amount and sources of its annual income. Before the presentation of the petition to the court, the agreement and petition must be approved by three- fourths of the votes lawfully cast at a meeting of each corporation, 182 MemsBersuip Corporations Law. separately and specially called for that purpose, which approval, duly verified by the chairman and clerk of such meeting, shall be annexed to the petition. On presentation of the petition, the certificate of approval and the agreement for consolidation, and on such notice to interested parties as the court may prescribe, and after hearing suth interested parties as desire to be heard, the court may make an order for the consolidation of the corporations on such terms and conditions as it may prescribe. When such order is made and duly entered, such corporation shall become one corpo- ration by the name designated in the order, and be subject only to such duties and obligations as a membership corporation formed under this chapter for the same purposes; and all the property belonging to the corporations so. consolidating, shall be vested in and transferred to the new corporation, which shall be subject to all the liabilities of the former corporations, to the same extent as if they had been contracted or incurred by it. But a corporation for the pre- vention of cruelty to children or animals shall not consolidate with any other corporation, except with a corporation which itself has been formed by the consolidation of a corporation for the prevention of cruelty to children with a corporation for the prevention of cru- elty to animals, or by the consolidation of either or both of said last mentioned corporations with a corporation for the prevention of eruelty to children and to animals. This exception shall not apply to the counties of New York, Kings, Queens, Nassau, Suffolk, Rich- mond, Westchester or Oneida. As amended by L. 1906, ch. 493, sec. 1. IN GBENPRAL.—As to the consolidation of business corporations, see Business Corp. Law, sec. 7. § 8. By-laws. The by-laws of a membership corporation, created by or under a general or special law, may be divided into different classes and designated as constitution, by-laws, rules, regulations, or otherwise, and may provide different methods for amending and repealing such classes, respectively. The by-laws of any such corporation may make provisions, not inconsistent with law or with its certificate of incorporation, regu- lating the admission, voluntary withdrawal, censure, suspension and expulsion of members; the fees and dues of members and the termi- nation of membership on non-payment thereof or otherwise; the number, times and manner of choosing, qualifications, terms of office, official designations, powers, duties and compensation of its officers; what shall constitute a vacancy in the office of any such 183 Memsersuie Corporations Law. officer and the manner of filling it; the number of members, not less than one-third, or if one-third be nine or more, not less than nine, whose presence shall be necessary to constitute a quorum at its meetings; the qualifications of voters at its meetings; the eligi- bility of members to be directors; and the classification of its direc- tors into not more than five classes, so that the term of office of all the directors of one class only shall expire each year, and that the term of office of their successors shall be as many years as there are classes, but not so as to change the term of office of any director then in office. Such by-laws may authorize holders of the bonds of the corporation secured by mortgage upon its property, to vote for the directors there- of, and may apportion the number of votes each such bondholder may cast to the amount of such bonds held by him. The by-laws of a membership corporation, incorporated for yacht- ing purposes, may provide that the owners of each yacht shall, to- gether, cast but one vote at the meetings of the corporation. RPASONABLENDSS.—The by-laws and rules of a corporation must be reasonable and adapted to the purposes of the corporation; and they must be consistent with the laws of the state. Stein v. Marks, 44 Misc. 140, 89 N. Y. Supp. 921. A by-law of a membership corporation which requires members to give up the right of suffrage, under penalty of expulsion, is void, as in violation of sec. 1, art. 1 of the Constitution. Stein v. Marks, 44 Misc. 140, 89 N. Y. Supp. 921. § 9. Members. Each person signing the certificate of incorporation of a member- ship corporation, and each person admitted to membership therein, in pursuance of law or its by-laws, shall be a member of the cor- poration until his membership shall terminate by death, voluntary withdrawal, or otherwise, in pursuance of the by-laws. The right of a member to vote, and all the right, title and interest of a mem- ber in or to the corporation, or its property, shall cease on the ter- mination of his membership, unless otherwise provided by law, or by the by-laws of the corporation. BXPULSION.—The suspension or expulsion of a member of a membership cor- poration is not valid when not in compliance with the by-laws and statutes govern- ing its procedure, as when the required number was not present. Stein y. Marks, 44 Mise. 140, 89 N. Y. Supp. 921. A member cannot be suspended for exercising legal rights against another member without first seeking to arbitrate as required by the rules. Miller v. Builders’ League, 29 App. Div. 630, 53 N. Y. Supp. 1016. A member of a voluntary association or corporation who is entitled to priv- fleges or rights of property therein, cannot be expelled without notice of the charges against him and an opportunity to be heard in his own defense. Stein v. Marks, 44 Misc. 140, 89 N. Y. Supp. 921; Fay v. Supreme Tent, 38 Misc. 427, 77 N. Y¥. Supp. 994. Notice by registered letter which is not delivered is insufficient. Weinberg y. Independent Order A. I., 36 Misc. 205, 73 N. Y. Supp. 150. ManpaMvus.—Mandamus is the appropriate remedy to obtain the reinstate- 184 MempBerrsuip Corporations Law. ment of a member who has been improperly expelled from a membership corpora- tion, Stein v. Marks, 44 Misc. 140, 89 N. Y. Supp. 921 (literary society) ; People ex rel. Bartlett v. Medical Soc., 32 N. Y. 187 (medical society). Votine Stock.—A boat club has no power to issue stock and permit votes to be based upon the amounc of stock held, as in stock corporations. Anderson v. Reid, 19 Misc. 95, 45 N. Y. Supp. 742, $ 10. Directors and trustees. The directors of a membership corporation other than those named in its certificate of incorporation, shall be elected from among the members, by the members and such other persons as are authorized, by or in pursuance of law, to vote therefor. If a vacancy in the office of director of a membership corporation created under or by a general or special law, shall not be filled within six months after it occurs, either for want of a by-law or other provision for filling the same; or if, by reason of the absence, illness or other inability of one or more of the remaining directors, a quorum of the board of directors cannot be obtained, the remaining directors of such corporation, or a majority of them, may appoint a member of such corporation to fill such vacancy, and such ap- pointment filed in the office of the clerk of the county in which such corporation is located, shall constitute such person a director of such corporation, until the next annual election of the directors. A membership corporation, except a Young men’s Christian asso- ciation, may file in the offices in which its certificate of incorporation is filed, a supplemental certificate designating not less than five nor more than fifteen of its directors to be the trustees of its property until the next annual meeting, and may by by-laws confer on such trustees any of the powers, duties or obligations of the directors of such corporation in relation to the care, custody or management of such property. At each annual meeting of the corporation thereafter the members thereof shall designate successors to the trustees in office. § 11. Powers, duties and liabilities of directors. The directors of every membership corporation, except a corpora- tion for the prevention of cruelty to children or animals, and a corporation for promoting or maintaining the principles of a polit- ical party, created under or by a general or special law, shall present at its annual meeting a report, verified by the president and treas- urer, or by a majority of the directors, showing the whole amount of real and personal property owned by it, where located, and where and how invested, the amount and nature of the property acquired during the year immediately preceding the date of the report and the manner of the acquisition; the amount applied, appropriated or 185 Memserrsuir Corporations Law. BM | a) Fae Mee | expended uring the year immediately preceding such date, and the purposes, objects or persons to or for which such applications, ap- propriations or expenditures have been made; and the names and places of residence of the persons who have been admitted to member- ship in the corporation during such year, which report shall be filed with the records of the corporation and an abstract thereof entered in the minutes of the proceedings of the annual meeting. The di- rectors of every membership corporation, except a society for the pre- vention of cruelty to children or animals, a corporation for the promotion of agriculture and which holds annual agricultural fairs, and a corporation formed for promoting or maintaining the prin- ciples of a political party, shall be jointly and severally liable for any debt of the corporation contracted while they are directors, pay- able within one year or less from the date it was contracted, if an action for the collection thereof be brought against the corporation within one year after the debt becomes due, and an execution issued therein to the county where its office is, or where a certificate of its incorporation is filed, be returned wholly or partly unsatisfied, and if the action against the directors to recover the amount unsatisfied be commenced within one year after the return of such execution; provided, however, that no director of a corporation formed for pro- moting or maintaining the principles of a political party shall be liable for any such debt unless the contracting of the same shall have been specifically authorized by the board of directors at a meet- ing thereof, and assented to thereat by the directors sought to be charged therewith. As amended by L. 1899, ch. 292, sec. 1. LIABILITY FOR NEGLIGENCE.—An incorporated athletic assocfation conducting a clubhouse sustained by membership dues, is liable for injuries sustained by one through the negligence of a driver of one of its wagons. Beecroft v. New York Athletic Club, 111 App. Div. 392, 97 N. Y. Supp. 831. § 12. Prohibitions on officers. No director or other officer of a membership corporation hereafter created shall receive, directly or indirectly, any salary, compensation or emolument from such corporation, either as such officer or director or in any other capacity, unless authorized by the by-laws of the corporation, or by the concurring vote of two-thirds of the directors. No director or other officer of a membership corporation hereafter created shall be interested, directly or indirectly, in any contract relating to the operations conducted by the corporation, nor in any contract for furnishing supplies thereto, unless expressly authorized by the by-laws of the corporation, and by the concurring vote of all the directors. 186 Memsersuie Corporations Law. The foregoing provisions of this section shall also apply after January first, eighteen hundred and ninety-six, to every membership corporation existing on August thirty-first, eighteen hundred and ninety-five, and theretofore created under any law repealed by this chapter. § 13. Purchase, sale, mortgage and lease of real property. No purchase, sale, mortgage or lease of real property shall be made by a membership corporation, unless ordered by the concurring vote of at: least two-thirds of the whole number of its directors, pro- vided, however, that when the whole number of directors is not less than twenty-one, the vote of a majority of the whole number shall be sufficient. No real property of a membership corporation located within this state shall, without leave of the court, be leased for a longer period than five years, or sold or mortgaged. A mortgage may be executed to secure the payment of bonds issued or to be issued to different persons. The court may grant leave to a membership corporation to convey real property, without consideration, to another member- ship corporation created for the same or kindred purposes. If a conveyance or mortgage of the real property of any such corporation located within this state has been or shall be executed and delivered without leave of the court, obtained as required by law, the court may, thereafter, upon the application of the corporation or of the grantee or mortgagee in any such conveyance or mortgage, or any person claiming under such grantee or mortgagee, upon notice to such corporation, confirm such previously executed conveyance or mortgage, and thereupon such conveyance or mortgage shall be as valid and of the same force and effect as if it had been executed and delivered with leave of the court, except as to purchasers or mort- gagees of record of such real property, subsequent to the execution and delivery of such conveyance or mortgage. A membership corporation may, if its by-laws so provide, and pursuant to the provisions thereof, and without leave of the court, convey to a member of the corporation a portion of its real property for the erection thereupon of a cottage or other dwelling-house with suitable outbuildings, on the terms and conditions that such portion, together with the buildings thereupon, shall belong to such member and on his death pass as part of his estate to his heirs or devisees, but that the land whereupon such buildings shall be erected shall be inalienable by him or them, except to the corporation or to a member thereof, and that such member in his lifetime, or after his death, 18” Memserrsuie Corporations Law. his heirs or devisees, may convey such interest in such property to the corporation, or to a member thereof for such sum as may be mutually agreed upon, but not to any other person. Such convey- ance may provide that the grantees of the interest in each lot so conveyed shall be entitled to one vote, either in person or by proxy, at all meetings of the corporation, if the by-laws authorize such a provision. Except as otherwise provided in this chapter, no portion of a cemetery of a cemetery corporation which any person other than the corporation is entitled to use for burial purposes, or in which burials have been made and not lawfully removed, shall be sold, mortgaged or leased by the corporation. § 14. Changing number of directors. A membership corporation, created under or by a general or special law, may by vote of the majority of its members present at an annual meeting, or at any special meeting duly called for that purpose and so specified in the notice of the said meeting, determine to change the number of its directors to any number which a corporation cre- ated under this chapter for the same purposes is authorized to have. Notice of such special meeting shall be given as provided by section twenty-six of the stock corporation law, or by publication thereof once in each week, for three successive weeks next preceding the time when such special meeting is to be held, in at least two newspapers within the county where such special meeting is to be held. On such deter- mination, the majority of the directors shall sign, acknowledge and file an amended certificate specifying such reduction or increase; and thereupon the number of directors shall be the number stated in such certificate. Each director then in office shall serve until his term expires, and there shall be no election of directors, until the number of directors is less than the number specified in the certificate. As amended by L. 1904, ch. 271, sec. 1. In GpnpraL.—As to changing the numbers of directors, see Stock Corp. Law, sec. 26, and annotation. § 15. Changing time of annual meetings. The time of holding the annual meeting of a membership corpora- tion, created under or by 4 general or special law, may be changed, from time to time, by vote of an annual meeting, or of a special meeting duly called for that purpose, and by filing a supplemental certificate of incorporation containing a transcript of the minutes of the meeting, relating to such change, duly certified and verified by the president and secretary of the meeting. 188 MemsBersurPe Corporations Law. § 16. Visitation of supreme court. All membership corporations with their books and vouchers, shall be subject to the visitation and inspection of a justice of the supreme court, or of any person appointed by the court for that purpose. If it appears to such court by the verified petition of a member or creditor of any such cerporation, that it, or its directors, officers or agents, have misappropriated any of the funds or property of the corporation, or diverted them from the purpose of its incorporation, or that it has acquired property in excess of the amount which it is authorized by law to hold, or engaged in any business other than that stated in its certificate of incorporation, it may order that a notice of at least eight days be served on the directors of the cor- poration, with a copy of such petition, requiring them to show cause at a time and ‘place to be therein specified, why they should not be required to make and file an inventory and account of the property, effects and liabilities of such corporation with a detailed statement of its transactions during the twelve months next preceding the granting of such order; and if, on the hearing of such application, no good cause is shown to the contrary, the court may make an order requiring such inventory, account and statement to be filed, and pro- ceed to take and state an account of the property and liabilities of the corporation, or appoint a referee for that purpose; and when such account is taken and stated, it may, after hearing all the parties to the application, enter a final order determining the amount of property so held by the corporation, its annual income, whether any of the property or funds of the corporation have been misappropriated or diverted to any other purpose than that for which such corporation was incorporated, and whether such corporation has been engaged in any other business than that speeified in its certificate of imeorpora- tion, from which final order an appeal may be taken by any party aggrieved to the appellate division of the supreme court, and to the court of appeals; but no corporation shall be required to make and file more than one inventory and account in any one year, nor to make a second account and inventory, while proceedings are pending for the statement of an account under this section. As amended by L. 1899, eh. 360, see, 1. In GenpRaL.—IJt is well settled that no judicial tribunal will interfere with the internal government of membership corporations, so long as they act in con- formity with the reasonable by-laws and regulations adopted for the orderly ad- ministration of their affairs. Stein y. Marks, 44 Misc. 140, 89 N. Y. Supp. 921. § 17. Reports te ecomptreller by corporations receiving state moneys. No moneys appropriated by the legislature from the treasury of 189 _ Mempersuip Corporations Law. the state to a membership corporation, created under or by a general or special law, except a corporation subject to the visitation of the regents of the university of the state of New York, shall be paid to it or to any institution under its care, control or management, until its president and secretary, or a majority of its directors, make a sworn report to the comptroller of its purposes, operations, financial condi- tion, expenditures and management, and particularly, of the disposi- tion of moneys appropriated by the legislature for the maintenance of such institution, for the year ending with the last preceding thirtieth day of September. The comptroller shall transmit such report to the legislature with his annual report. § 18. Societies and clubs taking property by will. Any corporation formed under chapter three hundred and sixty-eight of the laws of eighteen hundred and sixty-five, chapter two hundred and sixty-seven of the laws of eighteen hundred and seventy-five, chapter three hundred and forty-three of the laws of eighteen hundred and seventy-five, or chapter two hundred and thirty-six of the laws of eighteen hundred and eighty-six, shall be capable of taking, holding or Teceiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatso- ever, the clear annual income of which devise or bequest shall not exceed the sum of ten thousand dollars; subject to the limitations pro- vided in section eighteen of the decedent estate law. § 19. Societies taking property by will. Any benevolent, charitable, scientific or missionary corporation formed under chapter three hundred and nineteen of the laws of eighteen hundred and forty-eight, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequest contained in any last will and testament of any person whatso- ever; subject to the limitations provided in section nineteen of the decedent estate law. § 20. Appointment of special policemen. Any corporation duly incorporated under the laws of the state of New York for the erection of buildings, and also duly authorized by law to procure the people to assemble in its buildings or on its grounds for camp or grove meetings, Sunday-school parliaments, tem- perance, missionary, educational, scientific, musical and other meet- ings, shall have power through its board of trustees, or other board of managers of the affairs of such corporation, for the purpose of pro- tecting and preserving such buildings, grounds and other property, 190 Memserrsuir Corporations Law. and preventing injuries thereto, and preserving order, and preventing disturbances, and preserving the peace in such buildings and upon such grounds, by resolution of its board of trustees, or other board of managers, or otherwise, to appoint from time to time one or more special policemen, and the same to remove at pleasure, who when appointed shall be police officers, with the same powers within and about, or adjacent to, such grounds, as are vested in constables of’ the town where such grounds are located, whose duty, when ap- pointed, it shall be to preserve order, and to prevent disturbances and breaches of the peace in and about the buildings and property and on and about the grounds of such corporation or approaches thereto or on grounds or in buildings pertaining thereto, and to pro- tect and preserve the same from injury, and to arrest any and all persons making any loud or unusual noise, causing any disturbance or committing any breach of the peace, or committing any misdemeanor, or wilfully violating the established rules and regulations of said corporation, or committing any wilful trespass upon such grounds or property or approaches thereto or in or upon such buildings or any part thereof, and to convey such person or persons, so arrested, with a statement of the cause of such arrest, before a magistrate having jurisdiction of the offense, to be dealt with according to law. § 21. Trespass punished. Any wilful trespass in or upon any of the buildings or grounds pro- vided or used for the purpose of said meetings, or upon the approaches thereto, and any wilful injury to any of the said buildings or to said grounds, or to any trees, fences, fixtures or other property thereon and pertaining thereto, and any wilful disturbance of the peace and quiet- ness of said grounds by intentional breach of the rules and regulations thereof, shall be misdemeanors punishable by fine and imprisonment, or either, and concurrently with the courts of record of this state, justices of the peace, police justices and courts of special sessions in the town where such grounds are situated, shall have the same juris- diction of said offenses as they have of other cases of misdemeanors committed within their jurisdiction, and shall have jurisdiction over the persons of those brought before them in the form and manner pre- seribed in section twenty of this article, and said policemen are hereby empowered to carry and convey the persons so arrested before such justices of the peace, police justices and courts of special sessions, and to hold them until discharged according to law. § 22. Oath of policemen. Every policeman so appointed shall within fifteen days after such 191 MemBersuip Corporations Law. appointment and before entering upon the duties of his office, take and subscribe the oath of office prescribed in the thirteenth article of the constitution of the state of New York, which said oath shall be filed in the office of the county clerk of the county where such grounds are situated. § 23. Shield. Each policeman shall, when on duty, wear a metallic shield with the word “ policeman,” and the name of the corporation which appointed him inscribed thereon, and said shield shall always be worn in plain view. 8 24. Compensation. The compensation of such policemen shall be paid by the corpora- tion by which they are respectively appointed in the form and manner agreed upon between them. ARTICLE 3. CORPORATIONS FOR PURPOSES NOT ELSEWHERE AUTHORIZED. Section 40. Purposes for which corporations may be formed under this article. 41. Certificates of incorporation. 42. Incorporation of associations of more than five thousand members. 43. Effect of incorporation. 44, Annual assembly or convention. 45. Board of directors. 46. Special powers. 4%. Special police. § 40. Purposes for which corporations may be formed under this article. A membership corporation may be created under this article for any lawful purpose, except a purpose for which a corporation may be created under any other article of this chapter, or any other general law than this chapter. 8 41. Certificates of incorporation. Five or more persons may become a membership corporation for any one of the purposes for which a corporation may be formed under this article or for any two or more of such purposes of a kindred nature, 192 MempBersuip Corporations Law. by making, acknowledging and filing a certificate, stating the particu- lar objects for which the corporation is to be formed, each of which must be such as is authorized by this article; the name of the pro- posed corporation ; the territory in which its operations are to be prin- cipally conducted ; the town, village or city in which its principal office is to be located, if it be then practicable to fix such location; the num- ber of its directors, not less than three nor more than thirty; and the names and places of residence of the persons to be its directors until its first annual meeting. Such certificate shall not be filed without the written approval, indorsed thereupon or annexed thereto, of a justice of the supreme court. If such certificate specify among such purposes the care of orphan, pauper or destitute children, the estab- lishment or maintenance of a maternity hospital or lying-in asylum where women may be received, cared for or treated during pregnancy or during or after delivery, or for boarding or keeping nursing chil- dren, the written approval of the state board of charities shall also be indorsed thereupon or annexed thereto, before the filing thereof. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors, shall be a corporation in accordance with the provisions of such certificate. Any corporation heretofore or here- after organized under this article for the purpose of gathering, ob- taining and procuring infodmation and intelligence, telegraphic or otherwise, for the use and benefit of its members, and to furnish and supply the same to its members for publication in newspapers owned or represented by them may admit as members thereof, other corpo- rations, limited liability companies, joint-stock and other associations, partnerships and individuals engaged in the same business or in the publication of newspapers, periodicals or other publications, upon such terms and conditions, not inconsistent with law or with its certificate of incorporation, as may be prescribed in its by-laws. As amended by L. 1901, ch. 436, sec. 1. This was sec. 31 of the former law. IN GDNPRAL.—With reference to the preparation, filing, and recording of cert- ificates of incorporation, see Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 42. Incorporation of associations of more than five thousand members. Any association, society or league, having no capital stock and not organized for pecuniary profit, composed of more than five thousand members and governed by a representative body may incorporate under the provisions of this article for the purposes for which it was organ- ized, if such purpose is one for which a corporation may be formed 193 MemBersuie Corporations Law. under this article. The certificate of incorporation shall be made by a committee of not less than five members who must be authorized to procure the incorporation and make the particular certificate, by the same affirmative vote, taken in the same manner, as the constitution or fundamental law of the association, society or league requires for an amendment or change in the constitution or fundamental law thereof. Added by L. 1900, ch. 681, sec. 1. This was sec. 32 of the former law. § 43. Effect of incorporation. The members of such association, society or league shall become the members of the corporation created under the provisions of the pre- ceding section ; all the property owned by, held for or in any wise be- longing to such association, society or league shall belong to the cor- poration ; the constitution and by-laws, together with the official terms and duties of all officers and committees, are continued, except so far as contrary to the provisions of this chapter; and the business or purposes of the corporation may be carried on beyond the limits of the state. Added by L. 1900, ch. 681, sec. 1. This was sec. 38 of the former law. § 44. Annual assembly or convention. In place of holding an annual meeting of all the members, such corporation may provide in its constitution and by-laws for an annual election by its members, of representatives or delegates either at large or from special districts; and in such case, no annual meeting of the members shall be held. Such delegates or representatives, when assembled under the name and in the manner directed by the con- stitution and by-laws of the corporation, shall have and may exercise all the powers, rights and privileges of an annual meeting of the cor- poration. The time and place of holding such annual assembly or convention may be prescribed in the constitution or by-laws of the corporation and changed from time to time. The annual assembly or convention may be held without the state. Added by L. 1900, ch. 681, sec. 1. This was sec. 34 of the former law. § 45. Board of directors. Whenever otherwise provided by law and as exceptions thereto, the constitution and by-laws of each such corporation may prescribe the quorum of the board of directors; the method of filling vacancies in the board of directors; the continuance of the directors in office until their successors have been severally elected and have accepted their offices; the officers of the corporation who are to execute any agree- ment or contract authorized by the board of directors; and the char- 194 Memeprrsure Corporations Law. acter, contents and methods of execution of the annual report of the board of directors. Added by L. 1900, ch. 681, sec. 1. This was sec. 35 of the former law. § 46. Special powers. Any such corporation formed for defending the rights of cyclists, facilitating touring and securing the construction and maintenance of good roads and cycle paths by public authority, may prefer a complaint before any court, tribunal or magistrate having jurisdiction for the violation of any law, ordinance or regulation made by public authority and relating to the purposes of the corporation, and may aid in pre- senting the law and facts to such court, tribunal or magistrate. Added by L. 1900, ch. 681, sec. 1. This was sec. 36 of the former law. § 47. Special police. Corporations formed for the purpose of providing parks and play- grounds for children in cities, towns or villages may at their own expense appoint and employ police officers, who shall for the purpose of enforcing order and compliance with their rules, have all the powers and authority of the public police officers or patrolmen of the city, town or village wherein such parks or playgrounds may be situated within the limits of their parks or playgrounds and within one thou- sand feet of the limits thereof, subject however to all laws, ordinances or police regulations of the cities, towns or villages in which such parks and playgrounds may bé situated and subject to the authority of the commissioners, superintendents, captains, sergeants or other superior police officers or authority of the particular district or locality in which the same may be. ARTICLE 4. CEMETERY CORPORATIONS. Szction 60. Definitions. 61. Certificates of incorporation, 62. Cemeteries in Kings, Queens, Rockland, Westchester, Nassau and Erie counties. 63. Corporate meetings. 64. Directors. 65. Acquisition of property. 66. Surveys and maps of cemetery. 67. Rules and regulations. 68. Record of burials. 195 MemMBERSHIP Corporations Law. Srction 69. Title and rights of lot owners. 70. Application of proceeds of sales of lots. 71. Burials and removals. 72. Taxation of lot owners by corporations. 73. Expenses of improving vacated lot. 74. Certificates of indebtedness. 75. Certificates of stock heretofore issued. 76. Private cemetery corporations, %7. Removal of remains to other cemeteries. 78. Family cemetery corporations. 79. Lot owners in unincorporated cemeteries may determine upon incorporating under this article. 80. Meeting to determine such question. 81. Incorporation pursuant to meeting ; conveyance of prop- erty to incorporation. 82. Sale of land of rural cemetery corporations. 83. Acquisition of land by rural cemetery corporations. 84. Streets or highways not to be laid out through certain cemetery lands. § 60. Definitions. In this article, the term “burial ” includes the act of placing a dead human body in a mausoleum, vault or other proper receptacle for the dead, as well as in the earth; the term “lot owner” or “owner of a lot ” means any person having a lawful title to the use of a lot, plat or part of either in a cemetery; and the term “ cemetery corporation ” means any corporation heretofore created for cemetery purposes under a law repealed by this chapter, or hereafter created under this article; but the general term cemetery corporation does not include a family cemetery corporation or a private cemetery corporation. This article does not apply to cemeteries belonging to religious or municipal cor- porations. This was sec. 40 of the former law. § 61. Certificates of incorporation. Seven or more persons may become a cemetery corporation, by making, acknowledging and filing in the office of the secretary of state and of the clerk of the county where the cemetery of such cor- poration, or a part thereof, is to be situated, a certificate specifying each county, town, city and village in which such cemetery or any part thereof is to be situated; the name of the proposed corporation; the time of holding its annual meetings; the number of its directors, either six, nine, twelve or fifteen; and the names of the persons to be 196 Memepzrsure Corporations Law. directors until others are selected in their places, divided into three equal classes, each class to hold office until the first, second and third annual meetings thereafter, respectively. ; Such certificate may also specify a percentage of the surplus pro- ceeds of sales of lots, after payment of the purchased-price of the real property of the corporation, to be invested as a permanent fund, the income of which shall be used for the improvement, preservation and embellishment of the cemetery grounds, and for no other. purpose. Such certificate shall not be filed without the approval, indorsed thereupon or annexed thereto, of a justice of the supreme court. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors shall be a corporation, in accordance with the provisions of such certificate. This was sec. 41 of the former law. In GpnpRAL.—iWith reference to the preparation, filing, and recording of certifi- eates of incorporation; see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 62. Cemeteries in Kings, Queens, Rockland, Westchester, Nassau and Erie counties. A. cemetery corporation shall not take by deed, devise or otherwise any land in either of the counties of Kings, Queens, Rockland, West- chester, Nassau or Erie for cemetery purposes, or set apart any ground for cemetery purposes in either such county, unless the consent of the board of supervisors thereof be first obtained, which board may grant such consent upon such conditions, regulations and restrictions as, in its judgment, the public health or the public good may require. Notice of application to any such board for such consent shall be published once a week for six weeks, in two newspapers of the county having the largest circulation therein, stating the time when the ap- plication will be made, a brief description of the lands proposed to be acquired, their location and the quantity thereof. All persons in- terested therein may be heard on the presentation of such application; and if such consent is granted, the corporation may take and hold the lands designated in such consent, which shall not authorize any one corporation to take or hold more than two hundred and fifty acres. Nothing contained in this section shall prevent any ecclesiastical in- corporation in existence on April fifteenth, eighteen hundred and fifty-four, in either of said counties, from using any burial ground then belonging to it within such county as it has been heretofore ac- customed. The board of supervisors of each such county may, from time to time, make such regulations as to the mode of burials in any 197 MemBersHip Corporations Law. cemetery in the county as, in its judgment, the public health may require. This was sec. 42 of the former law. PUBLICATION OF NoTiIcy.—Publication of notice of application for consent for 38 days, instead of six weeks as required by the statute, in a newspaper other than one having the largest circulation in the county, is insufficient to confer jurisdiction on the board of supervisors to grant consent. Palmer y. Hickory Grove C. Assoc., 84 App. Div. 600, 82 N. ¥. Supp. 973. § 63. Corporate meetings. Public notice of each annual meeting of a cemetery corporation shall be given in a manner to be prescribed by its by-laws. Each person of full age owning the use of a lot or plat, or part of either, containing at least ninety-six square feet of land in the cemetery of the corpora- tion, or if there be two or more owners of* such lot, then one of them designated by a majority of such joint owners to represent such lot or plat, or part of either, may cast one vote for each such lot or plat, or part of either, so owned, at the meetings of the corporation. Each owner of a certificate of stock heretofore lawfully issued, and each owner of a certificate of indebtedness of a cemetery corporation, may vote at the meetings of the corporation. Hach owner of stock heretofore lawfully issued shall be entitled to one vote for each share of stock owned by him at the meetings of the corporation. Hach owner of a certificate of indebtedness of a cemetery corporation shall be entitled to one vote at such meetings for each one hundred dollars of such indebtedness. This was sec. 43 of the former law. § 64. Directors. The directors of a cemetery corporation shall be elected at its an- nual meetings, by ballot, by the persons entitled to vote thereat. If at any such meeting one-fifth of the owners of lots or plats shall not in person or by proxy, vote thereat, the directors shall be chosen by the existing directors, or a majority of them, unless such directors shall, at such meeting, be chosen by a majority of the votes of the owners of certificates of stock indebtedness. The term of office of a director shall be three years. A vacancy in the office of a director shall be filled by appointment, by the remaining directors, until the next annual meeting, when it shall be filled by election for the unexpired term. After the first annual meeting, no one but a lot owner shall be eligible to the office of director. The directors may change their number to either six, nine, twelve or fifteen, by signing, acknowledging and filing a supplemental cer- tificate stating the number of directors the corporation shall there- 198 Memserrsuie Corporations Law. after have; and thereafter there shall be elected at each annual meet- ing, one-third of the number of directors fixed by such certificate; but the directors then in office shall continue in office until the expira- tion of their terms. In case any annual meeting of a cemetery cor- poration shall not be held on the day designated by the certificate of incorporation, the directors shall forthwith call a meeting of the members of the corporation for the purpose of electing directors, of which meeting notice shall be given in the same manner as of the annual meeting for the election of directors. If such meeting shall not be called within one month, or, if held, shall result in a failure to elect directors, any member of the corporation may call a meeting for the purpose of electing directors by publishing a notice of the time and place of holding such meeting at least once in each week for two successive weeks immediately preceding the election, in a newspaper published in the county where the election is to be held, and in such other manner as may be prescribed in the by-laws for the publishing of notice of the annual meeting, and by posting at least six printed or written, or partly printed and partly written, notices in six con- spicuous places in the town or city in which such corporation has its principal place of business, at least two weeks before such meeting. The directors so elected at such special meeting to fill a vacancy caused by the expiration of a term of office shall be chosen for the full term of three years, except where the aggregate number of the direc- tors so chosen shall exceed one-third of the whole number of directors, and in that event such directors shall be chosen in such manner that the term of office of one-third of the whole number of directors of such corporation shall expire at the time of holding each annual meeting thereafter. That part of this section having reference to the calling of a special meeting by any member of the corporation for the purpose of electing directors, shall be construed to apply to the calling of all such special meetings for the purpose aforesaid hereafter arising on account of a failure to hold any annual meeting of such corporation on the day designated by the certificate of incorporation. As amended by L. 1901, ch. 415, secs. 1, 2. This was sec. 44 of the former law. LIABILITY OF ASSOCIATION FOR NEGLIGENCE.—A cemetery association whose foreman was employed to keep gravestones in order, is liable to one injured by a stone falling on her. Dutton v. Greenwood C. Co., 80 App. Div. 352, 80 N. Y. Supp. 780. In this case the association was the absolute owner of the land and in full possession. As to the liabilities of an association for injury to one from poison ivy being allowed to grow on the grave of plaintiff's husband located in what was called “public ground,” see George v. Cypress Hills C., 32 App. 281, 52 N. Y¥. Supp. 1097; see also, dissenting opinion by Woodward, J. 199 MempBersuip Corporations Law. § ‘65. Acquisition of property. If the certificate of incorporation or by-laws of a cemetery corpora- tion do not exclude any person from the privilege, on equal terms with other persons, of purchasing a lot or of burial in its cemetery, such corporation may, from time to time, acquire by condemnation, exclusively for the purposes of a cemetery, not more than two hun- dred acres of land in the aggregate, forming one continuous tract, wholly or partly within the county in which its certificate of incorpo- ration is recorded, except as in this article otherwise provided, as to the acquisition of land in the counties of Erie, Nassau, Kings, Queens, Rockland and Westchester. A cemetery corporation. may acquire by condemnation, exclusively for the purposes of a cemetery, any real estate or any interest therein necessary to supply water for the uses of such cemetery, and the right to lay, relay, repair and maintain conduits and water pipes with connections and fixtures, in, through or over the lands of others; the right to intercept and divert the flow of waters from the lands of riparian owners, and from persons owning or interested in any waters. But no such cemetery corporation shall have power to take or use water from any of the canals of this state, or any canal reservoirs as feeders, or any streams which have been taken by the state for the purpose of supplying the canals with water. A cemetery corporation may acquire, otherwise than by condemna- tion, real property as aforesaid and additional real property, not ex- ceeding in value two hundred thousand dollars, for the purposes of the convenient transaction of its general business, no portion of which shall be used for the purposes of a cemetery. A cemetery corporation may acquire, otherwise than by condemnation, additional real or per- sonal property, absolutely'or in trust, in perpetuity or otherwise; and use the same or the income therefrom in pursuance of the terms on which the same is acquired, for the following purposes, only: 1. The improvement or embellishment, but not the enlargement, of its cemetery ; 2. The construction or preservation of a building, structure, fence or walk therein ; 3. The renewal, erection or preservation of a tomb, monument, stone, fence, railing or other erection or structure on or around any lot therein ; or, 4. The planting or cultivation of trees, shrubs, flowers or plants in or about a lot therein. A cemetery corporation may accept a conveyance of real property held by a religious corporation for burial purposes, or by trustees for such purposes, if all such trustees, living and residing in this state, 200 MemBersHip Corporations Law. unite in the conveyance, subject to all burdens, trusts and conditions to which the title of such grantors was subject. Lots previously sold in any such lands, and grants for burial purposes therein previously made, shall not be affected by any such conveyance; nor shall any grave, monument or other erection thereupon, or any remains therein, be disturbed or removed without the consent of the heirs of the per- sons whose remains are buried in such grave. No cemetery shall here- after be located in any city or incorporated village, without the consent of the common council of such city, or the board of trustees of such village, as the case may be. As amended by L. 1896, ch. 825, sec. 1. This was sec. 45 of the former law. Prrition.—A petition to condemn lands under this section, is defective if it falls to show that the certificate of incorporation or by-laws “‘do not exclude any person from the privileges, on equal terms with:other persons, of purchasing a lot or of burial in its cemetery.” Stannards Corners Rural C. Assoc. v. Brandes, 14 Misc. 270, 35 N. Y. Supp. 1015. Such defect is jurisdictional and the necessary allegation cannot be inserted by amendment. Stewards’ Corners Rural C. Assoc. v. Brandes, 14 Misc. 270, 385 N. Y. Supp. 1015. SpPaRATH PaRCELS.—The fact that a highway runs between the land already owned by the association and that to be acquired, does not prevent its acquisition. Matter of Lyons Cemetery Assoc., 98 App. Div. 19, 86 N. Y. Supp. 960. CoNSTITUTIONALITY.—Cemetery associations are incorporated for a public pur- pose and this statute is constitutional. Matter of Lyons Cemetery Assoc., 93 App. Div. 19, 86 N. ¥. Supp. 960. But prior to the insertion of first portion of this section, the court, in Matter of Deansville C. Assoc., 66 N. Y. 569, declared the statute void, as authorizing the taking of private property for other than public use. FORECLOSURE OF Mortaacp.—A bond and mortgage given by a rural cemetery association as security for the payment of the purchase price of land, are valid . and enforceable by foreclosure. Ross v. Glenwood Cemetery Assoc., 81 App. Div. 857, 81 N. Y. Supp. 779. No interments had been made in the land sold. 8 66. Surveys and maps of cemetery. Every cemetery corporation shall, from time to time, as land in its cemetery may be required for burial purposes, survey and subdivide such land into lots or plats, with avenues, paths, alleys, walks and ornamental plats; and make and file a map thereof in the office of the corporation, open to the inspection of all persons. Any unsold lots, plats or parts of lots or parts, in which there have not been any burials may, by order of the directors, be resurveyed and altered in shape or size, and properly designated on such maps. This was sec. 46 of the former law. § 67. Rules and regulations. ‘The directors of a cemetery corporation may make reasonable rules and regulations for the use, care, management and protection of the property of the corporation and of all lots, plats and parts thereof in its cemetery; for regulating the dividing marks between the various lots, plats and parts thereof, their size, shape, location, and the size 201 Mempersuie Corporations Law. of erection thereupon; for prohibiting or regulating the erection of structures upon such lots, plats or parts thereof; for preventing un- sightly monuments, effigies and structures within the cemetery grounds, and for the removal thereof; for regulating the introduction and care of plants, trees and shrubs within such grounds; for the prevention of the burial in a lot, plat or part thereof, of a person not entitled to burial therein; for regulating or preventing disinterments ; for the conduct of persons while within the cemetery grounds; and for the exclusion of improper persons therefrom and improper assem- blages therein. Such rules and regulations shall be plainly printed and publicly posted in the principal office of the corporation, and in such places upon the cemetery grounds as the directors by resolution prescribe. The directors may prescribe penalties to be paid by a person violating any such rule or regulation, not exceeding twenty-five dollars for each violation, which shall be recoverable by the corporation in a civil action. This was sec. 47 of the former law. REGULATIONS.—Rules adopted by a cemetery association pursuant to this sec- tion are binding upon those who voluntarily become members of the association. Johnstown C. Assoc. v. Parker, 45 App. Div. 55, 60 N. Y. Supp. 1015. But such rules have not, as to third persons, the force of statutes. While the association may exclude all persons not lot owners, yet it has no power to im- pose a penalty upon one who goes upon the cemetery grounds in violation of the rules. Johnstown C. Assoc., v. Parker, supra. A regulation prohibiting lot owners from cutting grass and weeds on their lots, is unreasonable. Johnstown C. Assoc. v. Parker, 28 Misc. 280, 59 N. Y. Supp. 821. The court said that a rule that a superintendent shall do all work upon the lots is unreasonable. In this case title to the lot was in the lot owner. And it is not reasonable to deprive a lot owner of the right to cultivate flowers, plants, grass and shrubbery upon his lot, so long as he does not violate any right of the cemetery association. Johnstown C. Assoc. v. Parker, 28 Misc. 280, 59 N. Y. Supp. 821. In this case the owner had absolute title to the lot. § 68. Record of burials. A record shall be kept of every burial in the cemetery of a cemetery corporation, showing the date of the burial, the name, age and place of birth of the person buried, when these particulars can be conveniently obtained, and the lot, plat, or part thereof, in which such burial was made. A copy of such record, duly certified by the secretary of such corporation, shall be furnished on demand and payment of such fees therefor as are allowed the county clerk for certified copies of records. This was sec. 48 of the former law. § 69. Title and rights of lot owners. The directors must fix and determine the prices of the burial lots or plats, and keep a plainly printed copy of the schedule of such 202 Memepersuie Corporations Law. prices publicly posted in the principal office of the corporation, open at all reasonable times to the inspection of all persons. The corporation, unless its certificate of incorporation or by-laws otherwise provide, shall, subject to its rules and regulations, sell and convey to any person, the use of the lots or plats designated on the map filed in the office of the corporation, on payment of the prices so fixed and determined, but need not sell and convey more than one lot or plat to one person., The conveyances of lots and plats shall be signed by the president or vice-president and treasurer of the corpora- tion. All lots, plats or parts thereof, the use of which has been so conveyed as a separate lot, shall be indivisible, except with the consent of the lot owner and the corporation, or as in this article provided; and the use of the same for burial purposes, after a burial therein, shall be inalienable and be held in perpetuity by the grantee and his heirs, except as otherwise provided; and upon the decease of a pro- prietor of such lot the title thereto shall descend to his heirs-at-law or devisees, subject, however, to the following limitations and condi- tions: If he leaves a widow and children, they shall have in common the possession, care and control of such lot during her life. If he leaves a widow and no children, she shall have the possession, care and control of such lot during her life. If he leaves children and no widow, they, or the survivor of them, shall in common have the pos- session, care and control of such lot during the life of the survivor of them. The parties having such possession, care and control of such lot during the term thereof, may erect a monument and make other per- manent improvement thereon. The widow shall have the right of in- terment for her body in such lot, or in a tomb in such lot, and a right to have her body remain permanently interred or entombed therein, except that her body may be removed therefrom to some other family lot or tomb with the consent of her heirs. At any time when more than one person is entitled to the possession, care or control of such lot, the persons so entitled thereto shall designate in writing to the clerk of the corporation which of their number'shall represent the lot, and on their failure to designate, the board of trustees or directors or commissioners of the corporation or commission shall enter of record which of said parties shall represent the lot while such failure con- tinues. An heir may release to the other heirs, and a joint owner may release to the other joint owners, his interest therein, on condi- tions specified in the release, which shall be filed in the office of the corporation. The widow may at any time release her right in such lot, but no conveyance or devise by any other person shall deprive her of such right. ‘The title of a grantee, or his heirs, shall not be affected 203 MempBersuip Corporations Law. by the dissolution of the corporation or its non-user of its corporate rights and franchises, or any act of forfeiture on its part, or any alienation of its property or incumbrance thereon made or suffered by it. If no burial.be made in any such lot, or if all the dead bodies buried therein be lawfully removed therefrom, the owners thereof may, with the consent of the corporation, sell the use of such lot. The secretary of the cemetery corporation shall file and record in its books all deeds of transfer. A lot owner may reconvey or devise to the corporation his right and title in and to any lot theretofore con- veyed to him by such corporation. As amended by L. 1907, ch. 486, sec. 1; L. 1898, ch. 543, sec. 1, incorporated. This was sec. 49 of the former law. NECESSITY OF WriTING.—This section provides for the sale of an easement, and not a mere license, and therefore a contract to purchase such lot must be in writing under the statute of frauds. Matter of O’Rourke, 12 Misc. 248, 34 N. Y. Supp 45. But, see Conger v. Treadway, 50 Hun 451, 3 N. Y. Supp. 152, 1382 N. Y. 259, in which it appeared that the owner had been in possession for more than 20 years. No formal deed is necessary to convey an exclusive right of burial in a ceme- tery lot. Conger v. Treadway, 50 Hun 451, 3 N. Y. Supp. 152. RIGHTS GRANTED.—A deed from u cemetery association of a lot in a cemetery, though absolute in fgrm, conveys no title to the soil, but only to the right of burial, Went v. Methodist P. Church, 80 Hun 266, 30 N. Y. Supp. 157, aff'd 150 N. Y. 577 mem. Conger v. Treadway, 50 Hun 451, 3 N. Y. Supp. 152. The term “lot owner” or “owner of a lot,” is defined in sec. 60, supra, as any person haying a lawful title to the use of a lot, plot or part of elther in a cemetery. As to the rights of a lot owner to cut the grass on his lot, cultivate flowers, etc., see annotation under sec. 67, supra. ‘§ 70. Application of proceeds of sales of lots. At least one-half of the proceeds of the sales of the use of all lots and plats shall be applied to the payment of the purchase-money of the real property acquired by the corporation until such purchase- money is paid, and the residue thereof shall be applied to preserving, improving and embellishing the cemetery grounds and the avenues and roads leading thereto, and to defraying the incidental expenses and liabilities of the corporation. After the payment of such purchase- money, and the expense of surveying and laying out the cemetery, the proceeds of all sales of the use of lots and plats thereafter shall be applied only to the improvement, preservation and embellishment of such cemetery and the incidental expenses of the corporation. Such corporation may agree with a person from whom any lands are pur- chased for a cemetery, to pay therefor a specified share not exceeding one-half of the proceeds of all sales of the use of lots and plats made from such lands, and such share shall be first applied to the payment of such purchase-money, and the residue thereof shall be applied to the preservation, improvement and embellishment of the cemetery, and 204 MemsersHip Corporations Law. the incidental expenses of the corporation. Where lands have been so purchased, and are to be paid for as provided by this section, the prices of the use of lots and plats fixed by the directors and in force when such purchase was made, shall not be changed, while the purchase- money remains unpaid, without the written consent of a majority in interest of the persons from whom the lands were purchased, their heirs, representatives or assigns. This was sec. 60 of the former law. 8 71. Burials and removals. The remains of a widow may be buried in a burial lot of which her husband died possessed and in which his heirs continue to have an estate or right of burial, without the consent of any person whomso- ever claiming any interest in such lot. The remains of the wife, hus- band, parent or child of a person who has a burial lot or estate therein or right of burial therein, may be interred in such lot without the consent of any person whomsoever claiming any interest in such lot, subject however, in all cases to the following rules and exceptions: 1. The place of interment in such lot shall be subject to the reason- able determination of the cemetery corporation or association or their officers or agent having immediate charge of interments. This sec- tion shall not permit the remains of a person not otherwise entitled to burial, to be interred in any ground or place contrary to or in viola- tion of the precepts, regulations or rules or usage of any church or other religious society, association or corporation. 2. Any husband or wife living separate from the other and having a burial lot in which the other, but for this section, would have no right of burial, and not desiring the remains of the other to be in- terred therein, may file a written objection to such interment with the cemetery corporation or association and if so filed at least thirty days before the death of the other, no right of interment shall be claimed or had under the foregoing provisions of this section. 3. A parent or child having a burial lot in which the other would have no right of burial but for this section, and not desiring the remains of the other to be interred therein, may file a written objec- tion to such interment with the cemetery corporation or association, and if so filed at least thirty days before the death of the other, no right of interment shall be claimed or had by such other under this section ; provided, that in such case, if the parent or child so excluded from burial in such lot should die without having any place of inter- ment provided, then the parent or child filing such objection shall at once furnish for the other a place of burial in some convenient 205 MempBrrsuip Corporations Law. cemetery; for the reasonable cost of which the estate of the deceased, if any, shall be responsible to the person furnishing such grave. 4. This section does not limit any existing rights of burial under other provisions of law. Nothing in this section contained, shall limit or curtail the right of alienation by the owner of a burial lot, under the rules of the cemetery corporation or association wherein such lot is situated, before the death of the person for whose remains the right of burial is provided herein, and no right of burial shall accrue to any person by reason of this section in any burial lot sold by its owner, before the death of the person for whose remains the right of burial is provided herein. If there be more than one lot owner of a lot in a cemetery of a cemetery corporation, no body of a dead person shall be buried therein without the consent of all the owners of such lot, unless such person, at the time of his death, was an owner of the lot, or a relative, wife or husband of an owner, or a relative of such wife or husband. A dead body lawfully buried in a lot in such a cemetery may be removed therefrom, with the con- sent of the corporation, and a written consent of the owners of such lot, and of the surviving wife, husband, children, if of full age, and parents of the deceased. If the consent of any such person cannot be obtained, or if the corporation refuses its consent, the consent of the county court of the county or the supreme court, at a special term, held in the district, where the cemetery is situated, shall be sufficient. Notice of the application for the consent of the court must be given, at least eight days prior thereto, personally, or, at least sixteen days prior thereto, by mail, to the corporation or to the person not con- senting, and to every other person on whom service of notice may be required by the court. As amended by L. 1900, ch. 715, sec. 1. This was sec. 61 of che former law. ORDER PPRMITTING REMOVAL.—In a proper case a court of equity has power to render a decree permitting the relative of a deceased person to disinter and re- move the remains. Cohen v. Congregation 8S. I., 114 App. Div. 117, 99 N. Y. Supp. 732, aff'd 189 N. Y. 528 mem. But an action of replevin will not lie in behalf of a widow to recover the body of her husband after a decent burial, as matters in regard to the disposal of a corpse which arise after burial must be redressed, if at all, in equity. Bucharan v. Bucharan, 28 Misc. 261, 59 N. Y. Supp. 810. The court will not be influenced by sentimentality in granting a petition for the removal of bodies. Matter of Ackermann, 124 App. Div. 684, 109 N. Y. Supp. 228; Matter of Donn, 14 N. Y. Supp. 189. Nor will the court lend its aid to a family quarrel in disturbing the repose of the dead. Matter of Ackermann, 124 App. Div. 684, 109 N. Y. Supp. 228. The erection of a headstone will not estop a son from applying to the court under this section for permission to remove the remains of a parent. Matter of Bauer, 68 App. Div. 212, 74 N. Y. Supp. 155. EXERCISH OF POLICE PowmR.—Cemeteries are within the scope of the police power of the state. Palmer v. Hickory Grove C., 84 App. Div. 600, 82 N. Y. Supp. 973; Went v. Methodist P. Church, 80 Hun 266, 30 N. Y. Supp. 157, aff’d 150 N. Y¥. 577 mem, 206 Memsersure Corporations Law. The legislature may direct the removal of dead bodies from a cemetery, as detrimental to the public health, without providing for compensation. Went v. Methodist P. Church, 80 Hun 266, 30 N. Y. Supp. 157, aff'd 150 N. ¥. 577 mem., and cases cited; People v. Hanover, 149 N. Y. 195. The power given religious societies to take and hold property for cemetery purposes, is subject to the exercise of the police power, including the powers of the town board of health. Morton vy. St. Patrick’s Roman Catholic Church Soc., 56 Mise. 71, 105 N. Y. Supp. 1100. § 72. Taxation of lot owners by corporations, If the funds of a cemetery corporation, applicable to the improve- ment and care of its cemetery wholly outside of a city of the first or second class, or applicable to the construction of a receiving vault therein for the common use of lot owners, be insufficient for such purposes, the directors of the corporation, not oftener than once in any year and for such purposes only, may levy a tax of not to exceed two dollars on the owners of each lot, or, with the written consent of two-thirds of the lot owners, or with the concurrent vote of a majority of the lot owners, at an annual meeting, or at a special meeting duly called for such purpose, may levy a tax on the lot owners at a rate not exceeding five dollars for each lot of average value proportionately to the prices at which the lots were respectively sold by the corpora- tion. Notice of such tax shall be served on the lot owners or where two or more persons are owners of the same lot, on one of them, either personally, or by leaving it at his residence, with a person of mature age and discretion, or by mail, if he resides in a city, town or village where the office of the corporation is not located, or in case the residence or whereabouts of the owner cannot be ascertained, by publication once a week for four successive weeks in a newspaper published in the town where such cemetery is located, or if no news- paper is published in such town then in some newspaper published in the county where such cemetery is located. If such.tax remain unpaid for more than thirty days after the service of such notice, the president and secretary of the corporation may issue a warrant to the treasurer of the corporation, requiring him to collect such tax in the same manner as school collectors are required to collect school taxes; and such treasurer shall have the same power and be subject to the same liabilities in executing such warrant as a collector of school taxes has or is subject to by law in executing a warrant for the collection of school taxes. If the taxes so levied remain unpaid for five years, the amount thereof with interest shall be a lien on the unused portion of the lot which is subject to such tax, and no portion of the lot so taxed shall be used by the owner thereof for burial purposes, while any such tax remains unpaid. If at the expiration of five years from the date of the service of the first notice of assessment as herein 207 MemBersuir Corporations Law. provided, any such assessment or the interest thereon shall remain unpaid, the corporation may sell the unused portion of such lot at public auction upon the cemetery grounds, in the following manner: If the person owning such lot resides within the state, a written notice, under the seal of such cemetery association, if it have a seal, and the hand of the president or secretary thereof, stating the amount of such tax or taxes unpaid and that such unused portion of such lot will be sold at a time therein to be specified, not less than twenty days from the date of the service of such notice, shall be personally served upon such owner; if such owner is not a resident of the state, or if the place of his residence cannot with due diligence be ascertained, or if, for any other reason satisfactory to the court, personal service can- not with due diligence be made upon such owner, such cemetery asso- ‘ciation, or any of its officers, may present a duly verified petition stating the facts to the county court of the county in which such cemetery lands are situated, or to the supreme court, and such court may upon satisfactory proof, by its order, direct the service of such notice in the manner provided by the code of civil procedure for the substituted service of a summons. The president or secretary of such association, or any suitable and proper person appointed by such association or by the court, may upon filing proof of publication and service of such notice as provided by section four hundred and forty- four of the code of civil procedure make such sale, and the same may be adjourned from time to time for the accommodation of the parties or for other proper reasons. Previous notice of such sale shall be posted at the main entrance of the cemetery. Prior to such sale such corporation shall cause such lot to be resurveyed and replatted show- ing the part thereof not used for burial purposes and only such un- used portion shall-be sold. The surplus remaining after paying all assessments, interest, costs and charges shall be set aside by said cor- poration, as a fund for the care and improvement of that portion of such lot that has been used for burial purposes. In case the proceeds of such sale shall amount to more than thirty dollars the person making such sale shall make his report, under oath, to the court, of proceedings had and shall state the amount for which such lot was sold and that such lot was sold to the highest responsible bidder, together with the names of the purchasers, and the court may and in a proper case shall, by order, confirm such sale; in all other cases the person making such sale shall file in the office of the county clerk of the county in which such cemetery lands are situated a like report duly verified and on the filing of such orders of confirmation or such 208 MemMBERSHIP Corporations Law. report, as the case may be, the title to the use of such unoccupied portion of such lot shall vest in the purchaser thereof. As amended by L. 1907, ch. 486, sec. 2. This was sec. 52 of the former law. § 73. Expenses of improving vacated lot. Whenever a person having a lot in the cemetery of a cemetery corporation shall vacate the same by a removal of all the dead buried therein, and leave such lot in a broken and unimproved condition for a period of one month or more from the date of such removal, the corporation may grade, cut, fill or otherwise change the surface thereof, for the improvement of the lot and the general improvement of the cemetery grounds, without reducing the area of the lot. The expense of such improvement, not exceeding ten dollars, shall be chargeable to such lot. If the owners of such lot shall not, within six months after such expense has been incurred, repay to the corpora- tion the amount chargeable to the lot, the corporation may sell the lot at public auction upon the cemetery grounds, previous notice of such sale having been posted at the main entrance of the cemetery, and mailed to the owners of such lot at their last-known post-office address, at least ten days prior to the day of sale, and shall pay the surplus, if any, of the proceeds of such sale over such amount, on demand, to the owners of such lot. This was sec. 53 of the former law. § 74. Certificates of indebtedness. If a cemetery corporation be indebted for lands purchased for cemetery purposes, or for services rendered or materials furnished in preserving or improving its cemetery, the directors thereof, by the con- curring vote of a majority of their whole number, may, with the con- sent of the creditor to whom any such indebtedness is owing, issue certificates under the corporate seal, signed by the president and secretary, for the amount of such indebtedness, or a part thereof, payable at such times and drawing such rate of interest and in such sums as may be agreed on with such creditor; but the amount of any certificate shall not be less than one hundred dollars, nor the rate of interest higher than the rate authorized by law. The certificate shall be transferable by delivery, unless otherwise provided on the face thereof; and the directors shall keep in the books of the corporation an exact and true account of the number and amount of such cer- tificates, the persons to whom issued, the time of maturity and the rate of interest. A separate account shall be kept in the books of the corporation of the certificates issued for the purchase-money of lands, 209 MemBersHiP Corporations Law. and the certificates issued for debts incurred in preserving and im- proving the cemetery. The directors shall set aside from the proceeds of sales of the use of lots and plats, such sums as they may deem necessary to pay said certificates at their maturity. Until such cer- tificates are paid each holder thereof shall be entitled at all meetings of the corporation, to one vote for each one hundred dollars of such in- debtedness held by him. The certificates issued pursuant to this sec- tion shall not be a lien upon any lot belonging to a lot owner. This was sec. 54 of the former law. 8 '75. Certificates of stock heretofore issued. If a cemetery corporation, incorporated under a law repealed by this chapter, has converted its outstanding indebtedness or certificates of indebtedness into certificates of stock, in pursuance of law, no in- terest shall accrue to the holders of such stock, but they shall receive annually or semi-annually a dividend thereon for their proportional part of the entire surplus or net receipts of the corporation over and above current expenses; or if the proportion of the net receipts or surplus which stockholders shall be entitled to receive shall have been fixed by agreement at the time of issuing such stock, such stockholders shall be entitled to receive dividends in accordance with such agree- ment. Such certificates of stock shall be transferable only on the books of the corporation on the surrender of the certificate, unless otherwise provided on the face thereof, and on every such surrender a new certificate of stock shall be issued to the person to whom the same has been transferred; and the holders of such stock shall be en- titled, in person or by proxy, to one vote for every share thereof, at each meeting of the corporation. A register of the stock issued by the corporation shall be kept by its directors showing the date of issue, the number of shares, the par value thereof, the name of each person to whom issued, the number of the certificates therefor; and all transfers of such stock shall be noted and entered in such register, and the certificates surrendered shall be deemed cancelled by the issue of a new certificate, and the surrendered certificate shall be destroyed. Any director may become the holder or transferee of such stock. for his own individual use or benefit. No such stock shall be a lien on the lot of any individual lot owner within the cemetery limits; and no other or greater liability of the corporation issuing such stock shall be created or deemed to exist than may be necessary to enforce the faithful application of the surplus or net receipts of the corporation to and among the holders of the stock in the manner hereinbefore specified. 210 MermsBerrsuir Corporations Law. A cemetery which has heretofore issued such certificates of stock is a membership corporation and not a stock corporation. This was sec. 55 of the former law. § 76. Private cemetery corporations. Seven or more persons may become a private cemetery corporation by setting off for a private cemetery inclosed real property, to the ex- tent of not more than three acres, and by electing at a meeting of the proprietors of the real property to set off, at which not less than seven shall be present, three of their number to be directors, to hold office for five years. The chairman and secretary of such meeting shall make, sign and acknowledge, and file in the office of the clerk of the county in which such real property is situated, a certificate containing the name of the corporation, a description of the lands so purchased or set apart, and the names of the directors. No such cemetery shall be located within one hundred rods of any dwelling-house without the written consent of the owner thereof. Additional lands may be acquired by a private cemetery corpora- tion to an extent not to exceed three acres; but no additional lands so purchased or otherwise acquired shall be used for the purpose of burial within three hundred feet of any dwelling without the written consent of the owner thereof. This was sec. 56 of the former law. § 77. Removal of remains to other cemeteries. The supervisor of any town containing a private cemetery may remove any dead bodies or human remains interred in such cemetery to any other cemetery within such town, if the owners of such cemetery and the persons residing within the state who are next of kin of such deceased persons consent to such removal. The owners of such cemeteries may remove the remains of deceased persons interred therein to any cemetery within such town, or to some cemetery desig- nated by the persons who are next of kin of such deceased persons. Notice of such removal shall be mailed or served personally upon the next of kin of such deceased persons, if known to such owners, within ten days of such removal. L. 1854, ch. 112, sec. 11, as added by L. 1893, ch. 59, sec. 1, and amended by L. 1897, ch. 468, sec. 1. : § 78. Family cemetery corporations. Any person may, by deed or devise, dedicate land to be used exclu- sively for a family cemetery, or the executors, administrators or trustees of a deceased person may, with the written authority of all the surviving heirs, next of kin, devisees and legatees of the deceased. 211 MempBerrsuir Corporations Law. person, executed in person or by attorney, or if infants, by general guardian, dedicate lands of such deceased person to be used exclu- sively for such purpose, or purchased with the funds of the estate under their control, suitable lands therefor, and may pay to the directors of such cemetery money or other personal property as here- after provided. The quantity of land so dedicated shall not exceed three acres, nor be located within one hundred rods of a dwelling- house, without the consent of the owner, unless the land so dedicated shall, at the time of such dedication, be already in actual use for burial or cemetery purposes within the limits of a city. The instrument dedicating such land shall describe the same, may appoint directors to manage such cemetery, may prescribe or provide for making the tules, directions or by-laws, for such management, may direct the manner of choosing successors to the directors, may fix or provide for their qualifications, and may grant to such directors and their succes- sors money or personal property to be a fund for maintaining, im- proving and embellishing such cemetery, in accordance with the deed or will of such person, or the written authority of such heirs, next of kin, devisees and legatees. The instrument dedicating land for a family cemetery, together with the authority, if any, of the heirs, next of kin, devisees and legatees of a deceased person, shall be filed in the office of the county clerk of each county in which such cemetery is to be situated. A fund created by will for the purpose of maintaining, improving and embellishing such a cemetery shall not exceed ten per centum of the clear value of the estate of the testator in excess of his debts and liabilities, other than legacies. The directors shall, before entering on their duties, file in the office of the clerk of each county, in which such cemetery is situated, a written acceptance of their ap- pointment; and thereupon such directors and their successors shall be a corporation by the name expressed in the instrument dedicating such land. Such directors and their successors, before receiving any prop- erty, money or funds for improving, maintaining and embellishing the cemetery under their charge, shall execute to the surrogate of the county in which such real property is situated a bond with sureties approved by him, in a penalty of twice the principal sum of the fund placed in their charge, conditioned for the faithful preservation and application thereof, according to the rules, directions or by-laws, prescribed in the instrument under which their appointment was made, and renew their bond or execute a new bond whenever required so to do by such surrogate. At least once in each year, and oftener if required by the surrogate, they shall file with him their account of receipts and expenditures, on account of the fund in their hands, 212 MempBrrsHie Corporations Law. together with vouchers for all disbursements. Any person or persons may bequeath or transfer to, and any such corporation may take, money or personal property by will, deed or other transfer, upon trust, to hold and apply, or dispose of, the same for the purpose of main- taining, improving and embellishing any lot, plot or portion of such cemetery, either according to the discretion of the directors, or for such time and upon such terms and conditions, if any, as to the ap- plication, investment and reinvestment of the principal and income, and otherwise, as shall be stated in the instrument creating the trust, or agreed upon, but no such trust fund created hy will shall exceed the ten per centum limit above mentioned, and the directors shall give security and account with respect to such money or personal property as hereinbefore provided. As amended by L. 1904, ch. 429, sec. 1. This was, sec. 57 of the former law. § 79. Lot owners in unincorporated cemeteries may determine upun incorporating under this article. Not less than three owners of lots in an unincorporated cemetery may cause a notice to be posted in at least six conspicuous places in the city, town or village in which such cemetery is located, and published once in each week for three successive weeks in a newspaper, if any, published in such municipality, stating that at a time and place specified in such notice, a meeting of the owners of lots in such cemetery, shall be held fo determine upon the question of in- corporating such cemetery, pursuant to this article. Added by L. 1900, ch. 480, sec. 1. This was sec. 61 of the former law. $ 80. Meeting to determine such questian. Such meeting shall be held at 2 convenient place im the city, town or village in which such cemetery is located, not less than twenty- five nor more than thirty days after the first posting and publication of the notice of the meetimg. At such meeting every owner of a let im sueh cemetery, represented thereat in persom or by proxy, shalk be: entitled to one vote for each lot owned by him. Any owner of a lot in such cemetery, may, by written proxy, duly acknowledged, designate 2 person to represent him at such meeting, and the person so designated shall wpon the presentation of such proxy to the chair- man of the meeting, have all the powers of a lot owner present thereat. The persons entitled to vote at such meeting shall select a chairman and seeretary thereof, and shall determine by ballot the question of whether or not the owners of lots in such cemetery shall organize as a corporation, pursuant to this article. The ballots in 213 Memsersuie Corporations Law. favor of such proposition shall have the word “yes” thereon, and the ballots against shall have the word “no” thereon. Added by L. 1900, ch. 480, section 1. This was sec. 62 of the former law. 8 81. Incorporation pursuant to meeting; conveyance of property to corporation. If a majority of the ballots are in favor of such proposition, the persons entitled to vote at such meeting shall select three owners of lots in such cemetery to incorporate in pursuance of this article and the provisions of this article shall be applicable to the formation and management of such corporation, except that three persons may incor- porate, and the corporation shall not be required to have more than three directors. Upon the formation of such corporation in pursuance of this article, the owners of lots in such cemetery shall be members of the corporation, and the corporation shall become vested with the title to such unincorporated cemetery and the personal property con- nected therewith, subject to all the provisions of law, in relation to cemetery corporations. If, however, the title to such cemetery has prior to such incorporation vested in the town, pursuant to section three hundred and thirty-two of the town law, or section one of title seven of chapter eleven of part one of the revised statutes, the super- visor of such town shall on request of the directors of such corporation, execute to such corporation a deed of such cemetery lands releasing all interest of the town therein, and thereafter the title of such cemetery shall be vested in the corporation. Added by L. 1900, ch. 480, sec. 1. This was sec. 63 of the former law. § 82. Sale of land of rural cemetery corporations. It shall be lawful for any cemetery association, duly incorporated under the act authorizing the incorporation of rural cemetery associ- ations, to dispose of its land from which all bodies have been removed with the consent of the former owners of the lots in which such bodies had been interred, upon proving to the satisfaction of the supreme court of the district where its land is located, that all bodies have been removed from said lots with the consent of the former owners thereof, and properly and decently interred in some other cemetery; that all said lots and parts of lots have been reconveyed to said cemetery association and are not used for burial purposes; that burials have been prohibited in said cemetery; that all parties interested in said cemetery as trustees or creditors consent thereto, and that its debts and liabilities have been paid. The supreme court may, in its discre- tion, appoint a referee to take proof of the facts above stated. Upon being satisfied that such cemetery association has complied with the 214 Memperrsuip Corporations Law. .. Tequirements above stated, the court may make an order authorizing it to sell and dispose of its said land. L. 1897, ch. 538, sec. 1. $ 83. Acquisition of land by rural cemetery corporations. It shall not be lawful for any rural cemetery corporation to here- after acquire or take by deed, devise or otherwise, any land in any county within the state of New York, having a population of between one hundred and seventy-five thousand and two hundred thousand, according to the federal census of nineteen hundred, or set apart any ground for cemetery purposes therein, where there has already been set apart in any such county, five hundred acres of land for rural cemetery purposes, and the consent of the board of supervisors of any such county shall not be granted where there has already been granted five hundred acres of land, or upwards, within such county, to rural cemetery corporations. But nothing herein contained shall affect any lawful consent or grant hitherto made by the board of supervisors of any such county. L. 1902, ch. 78, secs. 1, 2. § 84. Streets or highways not to be laid out through certain cemetery lands. So long as the lands of a rural cemetery corporation organized under the act entitled “ An act authorizing the incorporation of rural cemetery associations,” constituting chapter one hundred and thirty- three of the laws of eighteen hundred and forty-seven, and the acts amendatory thereof, shall remain dedicated to the purposes of a cemetery, no street, road, avenue or public thoroughfare shall be laid out through such cemetery, or any part of the lands held by such asso- ciation for the purposes aforesaid, without the consent of the trustees of such association, and of two-thirds of the lot owners thereof, and then only by special permission of the legislature of the state. 215 Mermeresure Corporations Law. ARTICLE 5. FIRE CORPORATIONS. Section 100. Certificate of incorporation. 101. Powers. 102. Fire, hose and hook and ladder companies may take by will. 103. Fire corporation m unincorporated villages; may take property by will. 104. Duty of trustees, directors or managers to file report. 105. General powers conferred. § 100. Certificate of incorporation. Ten or more persons may become a fire, hose, protective or hook anf ladder corporation by making, acknowledging and filing a certificate, stating the particular object for which the corporation is to be formed ; the name of the proposed corporation; the city, village or town in which it proposes to act; the number of directors; and the names and places of residence of the persons to be directors until its first annual meeting. Such certificate shall not be filed without the approval indorsed thereupon, or annexed thereto, of a justice of the supreme court, nor unless there is annexed thereto a certified copy of a resolution of the board of trustees of the village, or the approval of the mayor of the city, or, if not within a village or city, a resolution of the town board of the town in which the corporation proposes to act, consenting to its incorporation. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors, shall be a corporation in accordance with the provisions of such certificate. Such corporations, formed in unincorporated villages, by their cor- porate name, shall, in law, be capable of taking, receiving, purchasing and holding real estate for the purposes of their incorporation, and for no other purpose, to an amount not exceeding the sum of thirty thousand dollars in value, and personal estate for like purposes to an amount not exceeding the sum of fifty thousand dollars in value. L. 1887, ch. 315, sec. 2 pt., incorporated. This was sec. 65 of the former law. In GENBRAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law. No organization tax is imposed. See Tax Law, sec. 180, post. 216 MemspersHie Corporations Law. § 101. Powers. A. fire, hose, protective or a hook and ladder corporation, incorpo- rated under this article or under a law repealed by this chapter, shall only engage in such business as properly belongs to a fire, hose protec- tive or hook and ladder corporation, in the city, village or town named in its certificate. In participating in the prevention and extinguish- ment of fires, such corporation shall be under the control of the city or village authorities having by law, control over the prevention or ex- einguishment of fires therein. This was sec. 66 of the former law. § 102. Fire, hose and hook and ladder companies may take by will. Any corporation formed under chapter three hundred and ninety- seven of the laws of eighteen hundred and seventy-three may take, hold or receive any property, real or personal, by virtue of any devise or bequest contained in any last will and testament; subject to the limitations provided in section twenty of the decedent estate law. § 103. Fire corporation in unincorporated villages; may take property by will. Any corporation formed under chapter three hundred and fifteen of the laws of eighteen hundred and eighty-seven, may take, receive or hold any property, real or personal, by virtue of any devise or be- quest contained in any last will and testament, but not to increase the value of its property in excess of the amount fixed by section one hun- dred of this article; subject to the limitations provided in section twenty of the decedent estate law. $ 104. Daty of trustees, directors or managers to file report. It shall be the duty of the trustees, directors or managers of all corporations formed under this article in unincorporated villages, or 4 majority of them, on or before the fifteenth day of January in each year, to make and file in the county clerk’s office, where the certificate of incorporation is filed, a certificate under their hands, stating the names of the trustees, directors or managers and officers of such cor- poration, with an inventory of the property and effects and liabilities thereof, with an affidavit of said trustees, directors or managers, or a majority of them, of the truth of such certificate and inventory; and also a like affidavit that such corporation has not been engaged, directly or indirectly, in any other business than such as is set forth in the certificate of incorporation. § 105. General powers conferred. Every corporation formed under this article shall possess the general 217 MempBersHir Corporations Law. powers conferred by and be subject to the provisions and restrictions of the general corporation law; and every active fireman who shall be a member of any department or company organized under the provisions of this article in unincorporated villages, shall be entitled to such exemptions as were provided by chapter two hundred and ninety-one of the laws of eighteen hundred and seventy, entitled “ An act for the incorporation of villages,” and acts amendatory thereof. ARTICLE 6. CORPORATIONS FOR THE PREVENTION OF CRUELTY. SEcTION 120. Certificate of incorporation. 121. Prohibition of new corporations in certain counties. 122. Special powers. 123. Change of location of office. § 120. Certificate of incorporation. Five or more persons may become a corporation for the prevention of cruelty to children, or the prevention of cruelty to animals, by mak- ing, acknowledging and filing a certificate, stating the particula: objects for which the corporation is to be formed; the name of the proposed corporation; the county in which its operations are to be conducted; the town, village or city in which its principal office is to be located; the number of its directors not less than five nor more than thirty; the names and places of residence of the persons to be its directors until its first annual meeting; and the time for holding such annual meeting. Such certificate shall not be filed unless the written consent and approbation thereof of a justice of the supreme court of the judicial district in which the place of business or principal office of such corporation shall be located and be first indorsed thereon ; nor unless there is annexed thereto the written certificate of the New York society for the prevention of cruelty to children, if such be the object specified, and of the American society for the prevention of cruelty to animals, if such be the object so specified, approving such incorporation. If the approval of either of such societies is not given within thirty days after application therefor, the persons proposing to form such corporation may apply to such justice for his approval, upon eight days’ notice of the time and place of application to the society refusing approval, which shall be entitled to appear and be heard, and the granting or refusal of the approval by the justice shall 218 Memsersuip Corporations Law. thereupon be discretionary with him. On filing such certificate in pursuance of law, the signers thereof, their associates and successors shall be a corporation in accordance with the provisions of such cer- tificate. This was sec. 70 of the former law. _ In GmNpRAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is im- posed. See Tax Law, sec. 180, post. § 121. Prohibition of new corporations in certain counties, A corporation for the prevention of cruelty to animals shall not hereafter be incorporated for the purpose of conducting its operations in the counties of New York, Kings, Queens, Richmond, Suffolk, Westchester or Rensselaer, or in any other county if thereby there would be two or more such corporations formed for the purpose of conducting operations in such county. But any corporation for the prevention of cruelty to children or to animals or to both may exercise its powers and conduct the like operations in any adjacent county in which no such corporation for such purpose exists, and may continue to do so until the establishment of such a corporation therein. As amended by L. 1902, ch. 169, sec. 1. This was sec. 71 of the former law. § 122. Special powers. A corporation formed for the purpose of preventing cruelty to chil- dren may prefer a complaint before any court, tribunal or magistrate having jurisdiction, for the violation of any law relating to or affect- ing children, and may aid in presenting the law and facts to such court, tribunal or magistrate in any proceeding therein. A corporation formed for the purpose of preventing cruelty to ani- mals may prefer a complaint before any court, tribunal or magistrate having jurisdiction, for the violation of any law relating to or affect- ing the prevention of. cruelty to animals, and may aid in presenting the law and facts to such court, tribunal or magistrate in any proceeding therein. A corporation for the prevention of cruelty to children may be appointed guardian of the person of a minor child during its minority by a court of record, or a judge thereof, and may receive and retain any child at its own expense on commitment by a court or magis- trate. All magistrates and peace officers shall aid such a corporation, its officers, agents and members in the enforcement of laws relating to or affecting children, and for the prevention of cruelty to animals. This was sec. 72 of the former law. . Licmnsy Tax AND Finps.—A statute providing that owners of dogs in certain 219 MempBrrsure Comporstions Law. cities shall procure a: yearly license and pay a specified sum to the saciety for the prevention of cruelty to animals, is unconstitutional as making a gift of public money fm aid of a private undertaking. Fox v. Mohewk & H. R. Humane Soc., 165 N. ¥. 517. But, see American Soc. for P. C. to Animals vy. Gloversville, 78 Hun 40, 29 N. Y. Supp. 257, with reference to sec. 668 of the Penal Code, providing that all fines for cruelty to animals shall be paid to the society. On the right of a soctety for the prevemtion of cruelty to animals te keep dogs without paying a Heense tax, see Fox vy. Mohewk & H. R. Humane Soa, 165 N. ¥. 647. LIABILITY FOR KILLING ANIMALS.—Op the Hability of an officer of a society for prevention of cruelty to animals for Killing a herse, see Sahr v. Seholle, 8 Hun 42, 35 N. Y. Supp. 97. § 123. Change of lecation of office. Any membership corporation for the prevention of cruelty ta ani- mals now existing or hereafter organized under the laws of this state, may at any time change the location of its principal office from the town, village or city named in its, certificate of incorporation to any other town, village or city in the same county, provided such change has. been authorized by a vote of the members of said corporation at a. special meeting of the members thereof, called for that purpose. when. such change shall be authorized by the members, as herein pre- vided, the president. and secretary and a majority of the directors of such corporation shall sign a. certifieste stating the name of such cor- poration, the town, village, city and county where its principal office was originally located and the town, village or city in said county to which it is desired to change the location of its principal office, and that, such change has been authorized, as herein provided, and the name of the directors of said corporation and their respective places, of residence, which certificate shall be verified by the oaths of all per- sons signing the same, and when so signed and verified, it shall be filed in the office of the secretary of state and a duplicate thereof filed in the office of the clerk of the county in which said principal office is located, and thereupon the location of the principal office of such corporation shall be changed as stated in said certificate. Added by L. 1905, ch. 271, sec. 1. This was sec. 73 of the former law. 220 Mzmperrsaip Corporations Law. ARTICLE 7, HOSPITAL CORPORATIONS. SEcTIon 130. Certificate of incorporation. $ 130. Certificate of incorporation. Five or more persons may become a corporation for the purpose of erecting, establishing or maintaining a hospital, infirmary, dispensary, or home for invalids, aged or indigent persons, by making, acknowl- edging, and filing a certificate, stating the particular object for which the corporation is to be formed ; the name of the proposed corporation ; the town, village or city in which its principal office is to be located ; the number of directors, not less than three nor more than forty-eight ; the names and places of residence of the persons to be its directors until its first annual meeting, and the time for holding its annual meetings. Such certificate may also specify the qualification of mem- bers of the corporation with respect to their adherence or non-adher- ence to a particular school or theory of medical or surgical treatment ; and the systems of medical practice or treatment to be used or applied in such hospitals, infirmary, dispensary or home. Such certificate shall not be filed without the written approval indorsed thereupon, or annexed thereto, of the state board of charities and of a justice of the supreme court of the district in which the prin- cipal office or place of business of such corporation shall be located. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors, shall be a corporation, in accordance with the provisions of such certificate. As amended by L. 1900, ch. 404, sec. 1. This was sec. 80 of the former law. IN GDNERAL.—-With reference to the preparation, filing, and recording of certificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State, and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. CONTENTS OF CERTIFICATHS.—The certificate of incorporation stating the object to be ‘the maintenance “of a hospital and dispensary,’ is void, because this section does not permit the organization of a corporation for more than one of the pur- poses therein specified. Matter of Roche, 53 Misc. 187, 104 N. Y. Supp. 601. As to matter which may be inserted in a certificate im general, see People ex rel. Fairchild v. Preston, 140 N. Y. 552. Licunsp.—lIt is a misdemeanor under subd. 2 of sec. 288 of the Penal Code to maintain a lying-in hospital or asylum without a license from the board of health. People ex rel. Wagner v. Hogan, 52 App. Div. 387, 65 N. Y. Supp. 120, aff’d 165 N. Y¥. 607 mem. With reference to the indorsement of the approval of the state board of charities upon certificates of corporations organized for the purpose of the care of orphan, pauper, or destitute children, the establishment or maintenance of a maternity hospital or lying-in asylum, etc., see sec. 41, supra. 221 MempBersuiep Corporations Law. ARTICLE 8. CHRISTIAN ASSOCIATIONS. Section 140. Certificate of incorporation. 141. Directors and trustees. 142. Dissolution. 143. Additional directors; trustees. § 140. Certificate of incorporation. Twenty or more men may become a Young men’s christian associ- ation, and twenty or more women may become a Young women’s christian association, for the purposes of improving the spiritual, mental, social and physical condition of young men, or of young women, as the case may be, by making, acknowledging and filing a certificate stating the particular objects for which the corporation is to be formed and the qualifications required for active membership ; which objects and qualifications in the case of Young men’s christian associations shall conform to the general rules and regulations of and shall be approved by the state executive commitee of the Young men’s christian associations of this state by the certificate of its chairman indorsed thereon; the name of the proposed corporation; the town, village or city in which its principal office is to be located ; the number of directors, not less than three nor more than thirty; the names and places of residence of the persons to be its directors until the first annual meeting; the times for holding its annual meetings; and the names of six trustees, each of whom shall be a member of some Protes- tant evangelical denomination, and not more than two of whom shall be members of any one denomination, and shall be divided into three classes to hold office for one, two and three years respectively or until their successors are elected by the board of directors. Such certifi- cate shall not be filed without the approval of a justice of the supreme court indorsed thereupon or annexed thereto. On filing such certifi- cate, in pursuance of law, the signers thereof, their associates and suc- cessors shall be a corporation in accordance with the provisions of such certificate. Any Young men’s christian association incorporated prior to the first day of January, nineteen hundred and eight, may amend its certificate of incorporation so as to provide for the division of its trustees into three classes to hold office for one, two and three years respectively or until their successors are elected, and for their election 222 MemsBersuip Corporations Law. by the board of directors of such association. Such amendment shall be made by filing in the offices where the original certificate of incorpo- ration was filed, a certificate stating the date of the incorporation of such association; the names of the trustees thereof; that the board of directors, by a vote of a majority of their number, at a meeting held within sixty days prior to the making of such certificate, divided such trustees into three classes to hold office for one, two and three years respectively from the date of such meeting; the names of the trustees in each class; and the date of the expiration of the term of office of each class of trustees; and that the board of directors, by a like vote, resolved that the successors to such trustees should be elected by such board. The said certificate shall be executed under the seal of the corporation, and shall be acknowledged or proved, in the same manner as a deed to be recorded, by the president and secretary, or the per- sons exercising for the time being, the duties of such office, who shall also make oath to the truth of the statements therein contained, and upon the filing thereof the terms of office of such trustees shall expire as therein stated, and their successors shall thereafter be elected by the board of directors of such association. As amended by L. 1905, ch. 320, sec. 2, and L. 1908, ch. 36, sec. 1. This was sec. 90 of the former law. In GpnERAL.—\With reference to the preparation, filing, and recording of certifi- eates of the incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 141. Directors and trustees. The trustees of such a corporation, with the president of the corpo- ration, shall be a board of trustees thereof, and hold and control the real property of the corporation and all gifts and bequests of money to be held in trust. They shall pay the income of such property to the treasurer of the corporation so long as the income shall be expended by the directors thereof for the purposes for which it was formed. The real property of such corporation shall not be liable for any debt or obligation contracted without the approval of the board of trustees. In all proceedings for the purchase, sale, mortgage and lease of real property, the board of trustees of such a corporation shall act as the board of directors thereof. The directors of such corporation shall have the management and control of its property and affairs, except as such management and control is given by law to the board of trustees thereof. This was sec. 91 of the former law. 223 Memeprrsaie Corporations Law. § 142. Dissolution. Whenever any association formed under the provisions of this arti- cle shall cease to carry out the objects set forth in its certificate of incorporation, according to the general rules and regulations of the state executive committee of Young men’s christian associations of this state, or shall abandon or discontinue for one year the use of any of its property for such objects, then upon the application of a majority of the managers or directors of such association upon fourteen days’ notice to said state executive committee by service thereof upon its chairman and secretary or in the event of their failure to act, upon the application of the said state executive commitiee of Young men’s christian associations of the state of New York, by petition signed by a majority of the members of the said state executive committee and verified by its chairman, to be made upon fourteen days’ notice to be given to such association by service thereof upon its president, or any director or manager thereof, and upon one of the trustees thereof, and upon notice to the attorney-general of the state of New York, the supreme court, upon satisfactory proof by affidavit or other- wise of the fact of such failure or abandonment, must make a final order dissolving such corporation, and upon the entry thereof, the corporation shall be dissolved, and upon such dissolution the state executive committee of the Young men’s christian associations of the state may take possession of the property belonging to such association and manage the same, or may if authorized by the concurring vote of two-thirds of its members sell or lease the same and apply the pro- ceeds thereof after the payment of the debts, if any, of the as- sociation so dissolved, to any like purposes for which the association was organized; and it shall not divert such property to any other purpose. Added by L. 1900, ch. 541, sec. 2, and as amended by L. 1905, ch. 320, sec. 3. This was sec. 92 of the former law. § 143. Additional directors; trustees. It shall be lawful for any Young men’s christian association incor- porated prior to the taking effect of chapter five hundred and one of the laws of eighteen hundred and eighty-seven, entitled “ An act for the incorporation of Young men’s christian associations,” at any an- nual meeting or any special meeting called as provided by the by-laws of said association, to elect additional directors so that the total num- ber of its directors shall be not more than thirty, and in addition to said directors to elect six trustees, each of whom shall be a member of some Protestant evangelical denomination, and not more than two of whom shall be members of any one denomination, and shall be divided 224 MempBersuie Corporations Law. into three classes to hold office for one, two and three years respectively or until their successors are elected by the board of directors. The trustees so elected, and their successors, shall be a board of trustees thereof and hold and control the real property of the corporation and all gifts and bequests of money to be held in trust. They shall pay the income of such property to the treasurer of the corporation so long as the income shall be expended by the directors thereof for the purposes for which it was formed. The real property of such corpo- ration shall not be liable for any debt or obligation contracted after the creation of such board of trustees without the approval of said board of trustees. In all proceedings for the purchase, sale, mortgage and lease of real property, the board of trustees of such corporation shall act as the board of directors thereof. After the creation of said board of trustees the directors of such corporation shall have the man- agement and control of its property and affairs, except as such man- agement and control is given by law to the board of trustees thereof. As added by L. 1901, ch. 469, sec. 1, and as amended by L. 1905, ch. 320, sec. 4. This was sec. 93 of the former law. ARTICLE 9. BAR ASSOCIATIONS. Section 150. Certificate of incorporation. 151. Certain bar associations may take by will. § 150. Certificate of incorporation. Nine or more attorneys or counselors of the supreme court of this state, in active practice, and residing or having their offices in the same county, or in the same judicial district, may become a bar associ- ation for the purposes of cultivating the science of jurisprudence, pro- moting reforms in the law, facilitating the administration of justice, elevating the standard of integrity, honor and courtesy in the legal profession, and cherishing the spirit of brotherhood among the mem- bers thereof, by making, acknowledging and filing a certificate stating the particular objects for which the corporation is to be formed; the name of the proposed corporation; the county, or judicial district, in which its operations are to be conducted ; the town, village or city in which its principal office is to be located; the number of its directors, not less than three nor more than thirty ; the names and places of resi- dence of the persons to be its directors until the first annual meeting; 225 MembBersHip Corporations Law. and the times for holding its annual meetings. If the attorneys or counselors organizing an association hereunder all reside in the same county, the operations of the association shall be conducted in the county in which they reside. Such certificates shall not be filed without the approval, indorsed thereupon or annexed thereto, of a justice of the supreme court. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors shall be a corporation in accordance with the provisions of such certificate, but no person shall be eligible to membership of such a corporation unless he have the same qualifica- tions as the persons authorized to sign the certificate of incorporation thereof. As amended by L. 1907, ch. 491, sec. 1. This was sec. 100 of the former law. IN GENERAL.—With reference to the preparation, filing, and recording of certificates of incorporation, sec, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and county clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. DisBaRMENT.—With reference to the disbarment of attorneys, see sec. 67 of ‘the Code of Civil Procedure. It is customary for bar associations to prefer charges for unprofessional conduct. See Rochester Bar Association y. Dorthy, 152 N. Y. 596. § 151. Certain bar associations may take by will. Any bar association formed under laws of eighteen hundred and eighty-seven, chapter three hundred and seventeen, shall be capable of taking, holding or receiving any property, real or personal, by virtue of any conveyance by any person or by devise or bequest contained in any last will and testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of twenty thousand dollars ; subject to the limitations provided in section twenty of the decedent estate law. L. 1887, ch. 317, sec. 7 (part). ARTICLE 10. VETERAN SOLDIERS’ AND SAILORS’ ASSOCIATIONS. SECTION 160. Certificate of incorporation. 161. Shares. 162. Property. § 160. Certificate of incorporation. Twenty-five or more honorably discharged soldiers or sailors of the Union army or navy, or the male descendants of such soldiers or sailors, may become a corporation for social, literary, 226 MemeBersoip Corporations Law. patriotic, charitable and historical purposes, by making, acknowledg- ing and filing a certificate stating the particular object for which the corporation is to be created; the name of the proposed corporation ; the town, village or city in which its principal office is to be located; the names of fifteen persons to be its directors until the first annual meeting, and the times for holding its annual meetings. Such certificate shall not be filed without the approval, indorsed thereupon or annexed thereto, of a justice of the supreme court. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors shall be a corporation in accordance with the provisions of such certificate; but mo person shall be eligible to membership of such corporation unless he have the same qualifi- cations as the persons authorized to sign the certificate of incorpora- tion thereof. This was sec. 110 of the former law. IN GPNERAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and county clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. $ 161. Shares. The by-laws of such a corporation may provide that the property of the corporation shall be divided into transferable shares of one hun- dred dollars each, entitling the holder thereof to one vote for each share, at all meetings of the corporation. Each shareholder shall be liable to the amount unpaid on the shares held by him, for the debts and liabilities of the corporation; but shall not be entitled to receive any interest or dividends thereon. Such a corporation shall be a mem- bership corporation and not a stock corporation. This was sec. 111 of the former law. § 162. Property. All sums over the necessary expenses of such corporation and over and above the amount necessary to discharge the principal and inter- est on any mortgage or bond issued by it shall be held by the direc- tors as a fund for the purchase of memorials, preservation of relics and historical evidences and trophies, and for charity to Union vet- erans, their families or descendants. This was sec. 112 of the former law. B27 MempBerrsHip Corporations Law. ARTICLE 11. SOLDIERS’ MONUMENT CORPORATIONS. Section 170. Certificate of incorporation. 171. Property; erection of monuments. 172. Improvement taxes. 173. Transfer of moneys from unincorporated association to incorporated association in same place. § 170. Certificate of incorporation. Three or more persons may become a corporation for the purpose of erecting a monument, monuments or memorial, including a memorial hall or building, to perpetuate the memory of the soldiers and sailors who served in defense of the Union in the war of the rebellion, or in the army or navy of the United States in the late war with Spain, or in the army or navy of the United States in any war in which the government of the United States has been engaged, including the American revolution on the side of the Colonies; such monument or memorial alike to perpetuate the memory of those soldiers and sailors, who, since rendering such military or naval service have become resi- dent of and die in the town, city or county in which such monument or memorial is erected; by making, acknowledging and filing a cer- tificate, stating the particular object for which the corporation is to be created; the name of the proposed corporation; the number of its directors, not less than six nor more than twelve; the names and places of residence of the persons to be directors until the first annual meet- ing, and the time for holding its annual meetings. Such certificate shall not be filed without the approval, indorsed thereupon or annexed thereto, of a justice of the supreme court. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors shall be a corporation in accordance with the provisions of such certificate. As amended by L. 1905, ch. 411, sec. 1. This was sec. 120 of the former law. In GmNBRAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp, Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and county clerk, see annotation under Business Corp. Law, sec. 2. No organization is imposed. See Tax Law, sec. 180, post. § 171. Property; erection of monuments. Such a corporation may acquire and hold, within the county in which its certificate of incorporation is recorded, not more than five 228 MempBersuie Corporations Law. acres of land to be used exclusively for the erection of a suitable monument or monuments or other memorial to perpetuate the memory of the soldiers and sailors who served in defense of the Union in the war of the rebellion, or who served in the army or navy of the United States in the late war with Spain, or in the army or navy of the United States in any war in which the government of the United States has been engaged, including the American revolution on the side of the Colonies; such monument or memorial alike to perpetuate the memory of those soldiers and sailors who since rendering such military or naval service, have become resident of and die in the town, city or county in which such monument or memorial is erected. Such a corporation may erect any such monument, monuments or memorial upon any public street, square or ground of any town, city or village, with the consent of the proper officers thereof, or may purchase or accept the donation of land suitable for that purpose; and may take and hold the property given, devised or bequeathed to it in trust, to apply the same or the income or proceeds thereof for the erection, improvement, embellishment, preservation, repair or renewal of such monument, monuments or memorial, or of any structure, fences or walks upon its lands, or for planting or cultivating trees, shrubs, flowers and plants, in and around or upon its lands, or for improving or embellishing the same in any manner consistent with the design and purposes of the association, according to the tenus of such grant, devise or bequest. It may take by gift or purchase any lots or lands in any cemetery within such county to be used and occupied exclusively for the burial of honorably discharged soldiers and sailors who served in either of such wars, and for the erection of suitable monuments or memorials therein. A town clerk or the board of trustees of a village shall, upon the petition of twenty- five resident taxpayers, submit to a biennial town meeting or village election, as the case may be, a proposition to raise by taxation a sum stated therein, not exceeding five hundred dollars in any one year, for the purpose of erecting such a monument, or contributing to the expense of such a monument, erected by a corporation under this section, or for repairing or improving the same and the grounds thereof; and such tax shall be levied in the manner prescribed by law for levying general taxes in such town or village, and when raised shall be applied to the purposes specified in such proposition. The property of any corporation formed pursuant to laws of eighteen hundred and sixty-six, chapter two hundred and seventy- three, as amended by laws of eighteen hundred and eighty-eignt, chapter two hundred and ninety-nine, shall be exempt from levy 229 MempBrrsuie Corporations Law. and sale on execution, and from all public taxes, rates and as- sessments, and no street, road, avenue or thoroughfare shall be laid through the lands of such association held for the purposes aforesaid without the consent of the trustees of such corporation, except by special permission of the legislature of the state. First paragraph, as amended by L. 1905, ch. 411, sec. 2. Second paragraph, L. 1888, ch. 299, sec. 1, subd. 5. This was sec. 121 of the former law. § 172. Improvement taxes. A tax may be levied and collected on the taxable property in a town, village or city in which such monument, monuments or other memorial may be erected, for the purpose of repairing or improving the same and the grounds thereof; and such tax shall be levied in the manner prescribed by law for levying general taxes in such town, village or city. This was sec. 122 of the former law. 8 173. Transfer of moneys from unincorporated association to ineorporated association in same place. Any unincorporated association which shall have been organized solely for the purpose of raising funds to be devoted to the erection of a monument or memorial to perpetuate the memory of the soldiers and sailors who served in the defense of the Union in the late war may, by a majority vote of all its members who shall be present and voting at a meeting thereof, called as in this section provided, transfer to and vest in any incorporated association which shall have been organized under a general statute, or under the foregoing sections of this article for the sole purpose of erecting a like monument or memorial in the same town or village where such unincorporated association is located, any or all money which it shall have accumulated for such object, except as hereinafter provided, provided that such transfer does not conflict with any provision of the constitution or by-laws of such association, and that it shall be made and the money so transferred shall be accepted by such incorporated association in trust to apply the same, or the income thereof, exclusively for the purposes mentioned in section one hundred and seventy-one of this article. Any member of such unincorporated association who shall have contributed individually to the fund so raised, and paid such contribution into the treasury of such association, the same appearing upon the books of the treasurer, shall be entitled to demand and receive the amount of such contribution from the treasurer of such association, in case such transfer shall be made and before the same shall be consummated, upon filing with the president or secre- tary of such unincorporated association his or her affidavit to the 230 Memeexsuip Corporations Law. effect that he or she has not approved of such transfer by vote or otherwise. No vote upon the question of transferring the funds of such unincorporated association as hereinbefore provided for shall be had or taken except at a meeting of such association especially called for that purpose by the president or secretary or other managing officer thereof, upon notice given at least ten days before the time fixed for such meeting, personally or by mail to each member of such association whose residence or post-office address is known, which notice shall state the object of the meeting to be the consideration of making such transfer pursuant to this section. Added by L. 1877, ch. 327, sec. 1. This was sec. 123 of the former law. ARTICLE 12. BoarpDs or TRADE. Section 180. Certificate of incorporation. 181. Annual assembly or convention of corporations formed hereunder of more than five thousand members. 182. Boards of trade heretofore incorporated, which have issued capital stock. § 180. Certificate of incorporation. Five or more persons may form a corporation commonly called a board of trade or exchange, or a building exchange or association, for the purpose of fostering trade and commerce, or the interests of those having a common trade, business, financial or professional in- terest, to reform abuses relative thereto, to secure freedom from unjust or unlawful exactions, diffuse accurate and reliable infor- mation as to the standing of merchants and other matters, to procure uniformity and certainty in the customs and usages of trade and commerce, and of those having a common trade, business, financial or professional interest; to settle differences between its members, and to promote a more enlarged and friendly intercourse between business men, by making, acknowledging and filing a certificate, stating the particular object for which the corporation is to be created; the name of the proposed corporation; the town, village or city in which its principal office is to be situated; the number of its directors, not less than five; the names and places of residence of the persons to be its directors, until its first annual meeting; and the times for holding its annual meetings. 231 MemsBersuir Corporations Law. Such certificate shall not be filed without the approval, indorsed thereupon, or annexed thereto, of a justice of the supreme court. On filing such certificate, in pursuance of law, the signers thereof, ‘their associates and successors, shall be a corporation in accordance with the provisions of such certificate. This was sec. 130 of the former law. In GpNERAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and county clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 181. Annual assembly or convention of corporations formed hereunder of more than five thousand members. Any corporation formed under the provisions of this article having no capital stock and composed of more than five thousand members may, in place of holding an annual meeting of all its members, pro- vide in its constitution and by-laws for an annual election by its members, of represetatives or delegates, either at large or from special districts, or in any other manner not contrary to law; and in such case, no annual meeting of the members shall be held. Such dele- gates or representatives, when assembled under the name and in the manner directed by the constitution and by-laws of the corporation, shall have and may exercise all the powers, rights and privileges of an annual meeting of the corporation. The time and place of hold- ing such annual assembly o rconvention may be prescribed in the constitution or by-laws of the corporation, and changed from time to time. The annual assembly or convention may be held without the state. L. 1907, ch. 61, sec. 1. This was sec. 130-a of the former law. § 182. Boards of trade heretofore incorporated, which have issued capital stock. A board of trade, incorporated prior to September first, eighteen hundred and ninety-five, under a law repealed by this chapter, which had issued capital stock prior to said date, entitling the holders of the shares thereof to dividends from the profits of the corporation, shall be subject to the provisions of the business corporations law, the stock corporation law and the general corporation law, and not to the provisions of this chapter. This was sec. 131 of the former law. 232 MemBersuie Corporations Law. ARTICLE 13. AGRICULTURAL AND HORTICULTURAL CORPORATIONS. Srcrion 190. Certificate of incorporation. 191. Restrictions on the formation of corporations. 192. Annual fairs and premiums. 193. Police and magistrates on exhibition grounds. 194. Capital stock. 195. Annual report. 196. Membership in state society. 197. Exhibitions and entertainments on fair grounds to be exempt from license. § 190. Certificate of incorporation. Ten or more persons may form a county or town agricultural cor- poration for promoting agriculture, horticulture and the mechanic arts, by making, acknowledging and filing a certificate, stating the particular objects for which the corporation is to be created; the territory in which its operations are to be conducted; the town, village or city in which its principal office is to be located; the number of its directors, not less than six or more than twelve; the means of the persons to be its directors until its first annual meeting; and the times for holding its annual meetings. Such certificate shall not be filed without the approval, indorsed thereupon or annexed thereto, of a justice of the supreme court. On filing such certificate, in pursuance of law, the signers thereof, their associates and successors, shall be a corporation in accordance with the provisions of such certificate. Any such agricultural corporation or any other agricultural society organized under the laws of this state shall have the right to buy or lease any lands or real estate necessary or needed for its purposes. In case any agricultural corporation or any other agricultural society which has received moneys from the state, for premiums paid for improving the breed of cattle, sheep and horses, or has acted as agent for the state in disbursing moneys for such purpose cannot purchase or acquire such lands or real estate upon satisfactory terms, then such agricultural corporation or agricultural society may acquire such lands or other real estate necessary for its purposes by condemnation in pursuance of the condemnation law. Any lands or real estate ac- 233 Memprrsuip Corporations Law. quired by any agricultural corporation or agricultural society by condemnation proceedings, or otherwise, shall not be subject to con- demnation proceedings instituted by any other agricultural society or any other corporation. As amended by L. 1902, ch. 582, sec. 1. This was sec. 140 of the former law. In GmpNERAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and county clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 191. Restrictions of the formation of corporations. There shall be but one county society in a county, and but one town society in a town. Whenever a new county shall be or shall have been erected out of a part of an existing county in which a county society existed at the time of the erection of such new county, such existing society may at its option be continued as the joint society of the new and the old county and its rights and liabilities shall be the same as if the new county had not been erected. The determination of an existing society to be continued as a joint society for such counties shall be evidenced by a certificate thereof, signed and acknowledged by a majority of the directors, and filed in the office of the secretary of state and in the clerk’s office of each of such counties. A joint society may be formed for two, three or four towns, but the formation of such society shall not prevent the formation of separate town societies for such towns. As amended by L. 1899, ch. 104, sec. 1. This was sec. 141 of the former law. § 192. Annual fairs and premiums. Every such corporation, the American institute in the city of New York, and the New York state agricultural society, shall hold annual fairs and exhibitions, and distribute premiums. Such a county or town corporation may, by a two-thirds vote of the members present and voting at a regular meeting, or at a special meeting, duly called for that purpose, fix the place where the annual fair and exhibition of the corporation shall be held. Such corporations and societies shall regulate and award premiums on such articles, productions and im- provements as they deem best calculated'to promote the agricultural and household manufacturing interests of the state, having special reference to the net profits which accrue or are likely to accrue from the mode of raising the crop, or stock, or fabricating the article ex- hibited, so that the award be given to the most economical or profit- able mode of production. As amended by L. 1896, ch. 476, sec. 1. This was sec. 142 of the former law. 234 Memeersure Corporations Law. 8 193. Police and magistrates on exhibition grounds. The board of directors of any such corporation, or the executive committee’ of such board, may appoint a chief of police and as many citizens of this state as may be necessary to act as policemen at their exhibitions. The chief of police may also while acting as such ap- point such additional. policemen as he may deem advisable. Suck chief of police and policemen shall preserve order within and for a space of two hundred yards from and around the grounds of the cor- poration, protect the property within such grounds and space, and eject all persons improperly therein, or acting disorderly therein, or who neglect or refuse to pay the entrance fee or observe the rules presctibed by the corporation. Any of such officers may arrest with- out a warrant, any person who he has reasonable cause to believe has unlawfully and fraudulently entered the exhibition grounds of such corporation without paying the entrance fee therefor. They shall have the same power within such grounds and space, during the time such exhibition continues, and for twenty-four hours thereafter, that a constable has by law, in serving criminal process, making arrests and preserving the peace. No town or county shall be liable to pay any such policeman for services rendered under this section. Such corporations may regulate or prevent all kinds of theatrical, or circus, exhibitions and shows, huckstering and traffic in fruits, goods, wares and merchandise, of whatever description, and shall prevent all kinds of mountebank exhibitions or shows for gain on the fair days and within a distance of two hundred yards of the fair grounds of such corporation, if it deems the same te obstruct or in any way interfere with the free and uninterrupted use of the highways around and approaching such fair grounds. ; A justice of the peace of the county in which such grounds are situated, may, while upon such grounds, hold a court of special ses- sions, having the same duties, powers and jurisdictions over offenses committed upon such grounds and within two hundred yards of the boundaries thereof, as is had by a court of special sessions of a town of such county over offenses committed in the town. The fines and penalties received by a justice of the peace under this section shall, before the close of the fair or exhibition at which the same are re- cived, be handed over by him to such society, for its use, together with a written report of his proceedings during such fair or exhibi- ‘tion. The report shall be in all respects the same as an annual ac- count rendered for services in criminal proceedings by a justice of the peace of a town to the board of town auditors. The justice shall receive as compensation for his services under this section his legal 235 MempBerrsuie Corporations Law. fees to be paid by such society. The justice shall include in his annual report to the board the offenses committed and the proceedings had under this section, and the disposition made by him of fines and penalties collected. The justice shall enter in his regular criminal docket the full proceedings of all matters coming before him under this section, stating each case separately; and the record of such pro- ceedings shall be kept open for public inspection upon such grounds during such fair or exhibition. As amended by L. 1900, ch. 333, sec. 1. This was sec. 143 of the former law. § 194. Capital stock. Such a corporation may, by a majority vote of the members thereof present and voting at a regular or regularly called meeting, and by filing a certificate to that effect in the county clerk’s office of the county where its certificate of incorporation is filed, fix the amount of capital stock which such corporation shall have, not more than forty thousand, nor less than five thousand dollars, divide the same into shares of not less than ten dollars each, and issue such shares at not less than the par value thereof, to raise money for the purposes for which the corporation was created. An agricultural corporation incorporated under this chapter or a law repealed hereby, which has issued or shall hereafter issue capital stock, entitling the holders of the shares thereof to dividends from the profits of the corporation, shall be subject to the business corporations law, the stock corporation law and the general corporation law, and not to the provisions of this article in conflict therewith, nor to article two of this chapter. This was sec. 144 of the former law. § 195. Annual report. The directors of such a corporation, on or before February first in each year, shall make a verified report to the secretary of the New York state agricultural society of the transactions of the corporation for the preceding year, giving full details of the receipts and ex- penditures thereof, with a list of premiums awarded and to whom and for what awarded. This was sec. 145 of the former law. § 196. Membership in state society. The presidents of the county agricultural association corporations, incorporated under this chapter, or under a law repealed thereby, or delegates to be chosen by such associations annually, shall be ex officio members of the New York state agricultural society. This was sec. 146 of the former law. 236 MempBrrsuie Corporations Law. § 197. Exhibitions and entertainments on fair grounds to be ex-~ empt from license. The provisions of any special or local law or municipal ordinance, requiring the payment of a license fee for exhibitions or entertain- ments, shall not apply to any exhibition or entertainment held on the grounds of a town or county fair association, if the association derives a pecuniary profit from such exhibition or entertainment by the lease of its grounds for such purpose, or otherwise. Added by L. 1903, ch. 275, sec. 1. This was sec. 146-a of the former law. ARTICLE 15. MEDICAL SOCIETIES. Szotion 210. Medical societies heretofore incorporated. 211. Certificate of incorporation. 212. Filing certificate. 213. Regulations for county medical societies. 214. May enforce discipline; appeal. 215. Real and personal property of county medical societies. § 210. Medical societies heretofore incorporated. Any medical society now organized in any of the counties of the state set apart since the passage of the act entitled “An act to in- corporate medical societies for the purpose of regulating the practice of physic and surgery in this state,” passed April tenth, eighteen hun- dred and thirteen, shall, upon complying with the provisions of this article, enjoy the same privileges and possess the same powers as the societies incorporated by virtue of said act now enjoy and possess, but subject, nevertheless, to the provisions of any acts or parts of acts heretofore passed in relation to medical societies or to regulate the practice of physic and surgery in this state. 8 211. Certificate of incorporation. Before any such medical society shall be entitled to the privileges and possess the powers provided in the last preceding section of this article, such society at a regular meeting thereof or at a special meet- ing called for that purpose after due notice to all its members, shall make and file with the secretary of state a certificate, signed and ac- knowledged by its president and secretary, stating the name of such society, the date of its organization, the name and residence of its members, that the said society, by a majority vote of its members, has elected to become and be a body corporate under and by virtue of 237 MemBersHip OCorpPporatTions Law. the act described in section two hundred and ten of this article, and be subject to the provisions of any acts or parts of acts heretofore passed, and now in force, in relation to such societies or the practice of physic and surgery in this state. L. 1894, ch. 430, sec. 2. In GpnpRAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 212. Filing certificate. Upon filing the certificate as provided in the last preceding section of this article, such society shall become and be a body corporate under the name set forth in said certificate, the same as if such society had been incorporated under and pursuant to the provisions of said act. 8 213. Regulations for county medical societies. It shall be lawful for any county medical society in this state, en- titled to representation in any medical society in the state of New York, and the homeopathic medical society of the state of New York, to establish such rules and regulations for the government of its members as they may deem fit, provided the action of such societies receive the sanction of the said state medical societies representing such county medical society, and is not inconsistent with the laws of the state. § 214. May enforce discipline; appeal. Each county medical society shall have full power and authority to enforce discipline among its members and obedience to its rules and regulations, with power to expel or otherwise discipline as they may deem most advisable for the best interests of said society. Any member of any county medical society or applicant for membershtp to such society feeling aggrieved at the action of said society, shall have the right to appeal to the medical society of the state of New York, representing such county medical society. § 215. Real and personal property of county medical societies. It shall and may be lawful for any medical society of a county incorporated prior to May tenth, eighteen hundred and ninety-three, and for any such society created pursuant to the provisions of the act passed April tenth, eighteen hundred and thirteen, entitled “ An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this state,” and for the medical society of the state of New York, to take, purchase and hold for the 238 MemsBersHir Corporations Law. use of said society, any estate, real or personal, provided that the aggregate estate, real and personal, of any such society, shall not exceed the sum of fifty thousand dollars, except in the case of the medical society of the county of New York, and in the case of the medical society of the county of Kings, each of which societies may hold property aggregating in value one hundred thousand dollars. Such societies may collect annual dues and assessments from mem- bers, provided that the aggregate of assessments and dues of any member in any one year shall not exceed the sum of five dollars, except in the county of Kings, in which county the aggregate assessment and dues of any member in any one year shall not exceed the sum of ten dollars. ARTICLE 15. ALUMNI CORPORATIONS. Szcrion 220. Alumni may be incorporated. 221. Certificate to be made and filed. 222. Corporations. 223. Corporate powers; alumni funds; special directors; expenses. 224. Directors and officers, election, compensation. 225. Alumni fund. 226. Annual report. 227. Only one corporation to be formed. § 220. Alumni may be incorporated. The alumni of any college or university, or of one or more colleges of any university, located in this state, may be incorporated by execut- ing and filing the certificate hereinafter mentioned, and they shall thereupon become a corporation, may sue and be sued in their cor- porate name, shall have the powers and privileges hereinafter granted, and such other powers and privileges, not inconsistent with the objects of their incorporation, as are conferred upon corporations by law. § 221. Certificate to be made and filed. The persons so desiring to be incorporated, not less than nine in number, shall execute and acknowledge, in the same manner as deeds entitled to be recorded, a certificate, which shall be recorded in the clerk’s office of the county in which such college or university is located, and which shall state: 239 Memspersuie Corporations Law. 1. The name by which such corporation shall be known. 2. That the object of the formation of such corporation is to secure the benefits of this article. 3. The names of the directors of such corporation who shall act until the first annual meeting of the alumni of such college, colleges or university, after the filing of such certificate. L. 1882, ch. 268, sec. 2. In GENHRAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 222. Corporators. Any graduate of such college, colleges or university, and any person who has received, upon examination, a degree from such college oz university, may become a member of such corporation, by subscrib- ing, or causing to be subscribed, his or her name to its constitution and by-laws, and by complying with such other reasonable conditions as such corporation may prescribe. Such corporation may also admit to membership therein such other persons as it shall deem qualified therefor, and upon such conditions as it may from time to time prescribe. L. 1882, ch. 268, sec. 3. § 223. Corporate powers; alumni funds; special directors; expenses. The corporations formed under the provisions of this article shall have power to create, manage and control a fund, to be known as an alumni fund, and for that purpose to take and acquire real and per- sonal property by gift, devise or purchase, the net annual income of which shall not exceed the sum of ten thousand dollars, and the in- come thereof may be used for and applied to such object or objects connected with such college, colleges or university as such corporation shall direct. The corporations formed under the provisions of this article shall also have power to elect from among their members such a number of trustees or directors of the college or colleges, or univer- sity to which their members shall respectively belong, as such college, colleges or university shall designate; to prepare and publish from time to time an alumni record or directory; to prescribe reasonable terms and conditions upon which their members shall be entitled to vote or hold office; to provide for meetings and reunions of their mem- bers, and for literary and other entertainment at such meetings and reunions; to appropriate from their funds a sufficient sum to defray the expenses of such meetings and reunions, including the expense of any banquet that may be given at the same, provided that no part of 240 Mempersuip Corporations Law. the permanent fund of such corporation, or of the income thereof, shall be appropriated for such purposes; to take such other action and to transact such other business as usually pertain to alumni associations of colleges and universities; and to adopt such a consti- tution and by-laws and such rules and regulations as may be neces- sary or proper for their government and regulation, and for the ac- complishment of the objects of their incorporation, not inconsistent with the laws of this state. This section shall not apply to any college or university whose alumni are now empowered to elect trus- tees in accordance with any special act heretofore passed by the legislature. § 224. Directors and officers, election, compensation, The corporations formed under the provisions of this article shall elect annually from their members such a number of directors, not less than nine, as their constitution and by-laws shall prescribe, and from the directors so chosen shall elect a president and a secretary and treasurer who shall be respectively the president, and the secre- tary and treasurer both of the corporation and of the board of direc- tors. Said corporations may also elect such other officers and com- mittees as their constitutions and by-laws shall prescribe. But no officer, director or member of a committee of such corporation, except its secretary and treasurer, shall receive any compensation for his service as such officer, director or member of a committee, except the same be granted by a two-thirds vote of all the members present at any regular meeting of the corporation. The compensation of the secretary and treasurer of any such corporation shall be fixed by the board of directors, and said board may refuse to grant any com- pensation to such secretary and treasurer. In case a vacancy shali occur from any cause in said board of directors, or in any office of said corporation, or board of directors, the same shall be filled by said board of directors, or by the executive committee of the same, if em- powered so to do by the constitution or by-laws of the corporation. and the person or persons chosen to fill such vacancy shall hold office until his or her successor shall be chosen at a regular meeting of said corporation. § 225. Alumni fund. The directors of the corporations formed under the provisions of this article, shall have the custody and management of the alumni fund, created and acquired under the provisions of this article, but they shall not permanently appropriate said fund, or any part thereof, for any purpose or object, or use the same, except such part 241 MemsBerrsuHip Corporations Law. thereof as may be necessary to defray the expense of its acquisition, investment and management, unless duly authorized thereto by a two-thirds vote of the members of such corporation, present at an annual meeting thereof. § 226. Annual report. Every corporation formed under the provisions of this article, shall prepare annually a report, which shall be verified by the affidavit of an officer thereof, and which shall show the whole amount of the real and personal property owned by said corporation, where it is located, or how and where invested; the amount and nature of the property acquired during the year immediately preceding the date of said report, and the manner of its acquisition; the amount applied, appropriated or expended during the year immediately preceding the date of said report, and the purposes, objects or persons to or for which such application, appropriation or expenditure has been made. Such report shall be presented to said corporation at its annual meeting, or at any special meeting appointed for that purpose, and entered in the minutes of its proceedings, and shall, within thirty days thereafter, be filed in the clerk’s office of the county in which said college or university is located. § 227. Only one corporation to be formed. No more than one such corporation shall be formed of the alumni of any one college, and the word “ alumni,” when used in this article, shall be construed to mean both male and female graduates. Should the alumni of two or more colleges of any university unite in forming a corporation under the provisions of this article, then but one such corporation shall be formed of the alumni of the colleges so uniting. ARTICLE 16. HISTORICAL SOCIETIES. Srorion 230. Historical societies; for what purposes they may hold property. 231. Historical societies may condemn land. § 230. Historical societies; for what purposes they may hold property. Any historical society of this state is hereby authorized to have and hold for the purposes of inclosure, preservation and the erection of monuments, but under no circumstances for the purpose of business, 242 MemspersHip Corporations Law. the sites of old forts and battles, not to exceed six acres in one locality, and when such sites have been so appropriated and improved, and used for such purposes only, they shall be exempt from taxation; and to receive donations of articles of historic interest on the condition that it shall not dispose of the same, except with the consent of the donor, and that in case of its dissolution or inability to pay its debts otherwise than from its effects, the said articles shall revert to the donors or their heirs. But nothing herein contained shall be cor- strued as authorizing the charging of any fee for the exhibition of such inclosure or structure by such historical society or its agents. § 231. Historical societies may condemn land. The appropriation by any historical society of this state of any real property for the purpose of inclosure, preservation, and the erection of monuments, is hereby declared to be for the public use. In case any such society desiring to acquire lands which it is by section two hundred and thirty of this article authorized to have and hold, can- not agree with the owners and occupants of such lands for the pur- chase thereof, such society is authorized to acquire title to the same by condemnation, and the proceedings for that purpose shall be taken in the manner prescribed in title one of chapter twenty-three of the Code of Civil Procedure known as “the condemnation law.” ARTICLE 17. VETERINARY ASSOCIATIONS. Section 240. Graduates of veterinary colleges may incorporate. 241. Filing certificate; powers; membership. 242. Election of officers. 243. Failure to elect officers. 244, Power of such corporation to take property by will. § 240. Graduates of veterinary colleges may incorporate. Any nine or more persons who are graduates from any legally chartered veterinary college or university, and who hold diplomas or certificates as such, citizens of the United States and of this state, who desire to form themselves into an association for the purpose of improving the methods of treating diseases and injuries of all domes- tic animals, to elevate the standard of integrity, honor and courtesy in the veterinary profession and to cherish the spirit of brotherhood among the members thereof, may sign and acknowledge before any 243 MemeersHip Corporations Law. officer authorized to take the acknowledgments of deeds in this state, and file in the office of the secretary of state and a duplicate thereot in the office of the clerk of the county in which such association is organized a certificate, in writing, to be approved by a justice of the supreme court, in which shall be stated the name of said association, its object, the officers of the same and the names of its officers for the first year of its existence, and the name of the county or district ia and for which it is formed. L. 1890, ch. 286, sec. 1. IN GBPNERAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see Gen. Corp. Law, sec. 5, and annotation. And with reference to the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. No organization tax is imposed. See Tax Law, sec. 180, post. § 241. Filing certificate; powers; membership. Upon filing a certificate as aforesaid, the persons who shall have signed and acknowledged such certificate, and their associates and successors, shall thereupon, by virtue of this article, be a body politic and corporate by the name stated in such certificate, and shall in law be capable of taking, receiving, purchasing, leasing and holding real estate for the purpose of such an association to an amount not ex- ceeding two hundred thousand dollars in value, exclusive of the buildings and improvements thereon, and personal estate not exceed- ing in amount the sum of fifty thousand dollars in value; but the clear annual income of such real and personal estate shall not exceed the sum of twenty-five thousand dollars; and provided further that no one shall be eligible to active membership in such association un- less he resides, or has an office, in the county or district in and for which such association is organized, and is engaged in the practice of veterinary medicine and surgery, and holds a diploma or certificate as a graduate from a legally chartered veterinary college or university. L. 1890, ch. 286, sec. 2. § 242. Election of officers. The association so incorporated shall elect its officers from its members. Such election may be held at such time and place, and in such manner as may be specified in the by-laws, and such officers shail have the control and management of the affairs and property of said association. A majority of such board of officers shall constitute a quorum for the transaction of business, and whenever any vacancy shall happen among such officers, by death, resignation or neglect to serve, such vacancy shall be filled in such manner as shall be provided by the by-laws of such association. L. 1890, ch. 286, sec. 4. 244 Memepersnie Corporations Law. § 243. Failure to elect officers. In case it shall at any time happen that an election of officers shall not be made on the day designated by the by-laws, said association for that cause shall not be dissolved, but it shall be lawful on any other day to hold an election for officers, in such manner as shall be directed by the by-laws of such association. § 244. Power of such corporation to take property by will. Any association formed under this article shall be capable of tak- ing, holding or receiving any property, real or personal, by virtue of any conveyance by any person, or by devise or bequest contained in any last will and testament of any person whatsoever, the clear annual income of which devise or bequest shall not exceed the sum of twenty thousand dollars; subject to the limitations provided in section twenty of the decedent estate law. ARTICLE 18. CONSOLIDATION OF LIBRARY CORPORATIONS IN NEW YORK CITY. Section 260. Libraries in New York city may agree to consolidate with other like corporations. 261. Ratification of agreement. 262. Effect of agreement. 263. Property to be vested in new corporation. 264, Rights of creditors. 265. Powers of such corporation. § 260. Libraries in New York city may agree to consolidate with other like corporations. Any corporation heretofore or hereafter organized under any gen- eral or special laws of this state as a library company, or for the pur- pose of carrying on any library im the city of New York, may be consolidated with any other corporation or corporations, organized for the same or similar purposes under any general or special law of this state, into a single corporation in the manner following: The respective boards of directors or trustees of the said corporations may enter into and make an agreement for the consolidation of the said corporations, prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corpora- tion, the number of trustees thereof, not less than five or more than twenty-five and the names of the trustees who shall manage the 245 Memepersuip Corporations Law. concerns of the new corporation for the first year, and until others shall be elected in their places. If either of the corporations so con- solidating shall be a stock company, then the said agreement may either provide that the new corporation shall have no stock or may prescribe the amount of capital of the new corporation and the num- ber of shares of stock into which the same is to be divided, which capital shall not be larger in amount than the fair aggregate value of the property, franchises and rights of the several corporations thus to be consolidated, and the manner of distributing such capital among such consolidated corporations, or the holders of the stock of the same with such other particulars as they may deem necessary. § 261. Ratification of agreement. If any such corporation so consolidated shall have no members or stockholders, other than its directors or trustees, said agreement of its directors or trustees shall be deemed to be the agreement of such corporation. If any such corporations consolidating shall have members or stockholders other than its directors or trustees, said agreement of its directors or trustees shall not be deemed to be the agreement of such corporation until the same shall have been ratified by a vote of at least two-thirds of the members or two-thirds in interest of the stockholders present and voting in person or by proxy at a meeting of the members or stockholders of such corporation to be called upon a notice of at least thirty days, specifying the time, place and object of such meeting, mailed’ post-paid to each member or stockholder whose place of residence is known to the secretary and published at least once in each week for four successive weeks in a newspaper published in the city of New York. A sworn copy of the proceedings of any such meeting made by the secretary of the corporation holding the same, and attached to said agreement shall be evidence of the holding and of the action of such meeting in the premises. If any stockholder or member shall, at said meeting of the stockholders or members, or within twenty days thereafter, object to the said consolidation and demand payment for his stock or in- terest in such corporation, such stockholder or member of said new corporation, if consolidation take effect at any time thereafter, may apply at any time within sixty days after such meeting of the stock- holders or members to the supreme court at any special term thereof, held in the county or counties in which said libraries or either of them may be, upon at least eight days’ notice to the corporation, for the appointment of three persons to appraise the value of his said stock or interest, and said court shall appoint three such appraisers and 246 MempBersuiep Corporations Law. shall designate the time and place of the first meeting of such ap- praisers and give such directions in regard to their proceedings on said appraisement as shall be deemed proper, and shall also direct the manner in which payment for such stock shall be made to such stockholder or member. The court may fill any vacancies in the board of appraisers occurring by refusal or neglect to serve or other- wise. The appraisers shall meet at the time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties, shall estimate and certify the value of such stock or interest at the time of such dissent as afore- said, and deliver one copy of their appraisal to the said new corpora- tion, and another to the said stockholder or member if demanded; the charges and expenses of the appraisers shall be paid by the new corporation. When the new corporation shall have paid the amount of the appraisal as directed by the court, such stockholder or member shall cease to have any interest in the said stock and in the corporate property of the said corporation, and the said stock or interest may be held or disposed: of by the said new corporation. §$ 262. Effect of agreement. Upon the making of the said agreement, as hereinbefore provided, and the filing of the duplicates or counterparts thereof in the office of the clerk or clerks of the county or counties in which said libraries may be and in the office of the secretary of state, and in the case of any corporations having members or stockholders other than their directors or trustees, upon the ratification of said agreement in the manner above provided, and the filing with said agreement of a veri- fied copy of the proceedings of the meetings of the members or stock- holders required by the preceding section, then and immediately thereafter, the said corporations whose boards of directors or trustees shall have united in said agreement shall be merged and consolidated into the new corporation provided for in the said agreement, to be known by the corporate name therein mentioned, and the details of such agreement shall be carried into effect as provided therein. L. 1892, ch. 541, sec. 3, as amended by L. 1901, ch. 594, sec. 3. § 263. Property to be vested in new corporation. Upon the consolidation of the said corporations all and singular the rights, privileges, franchises and interests of any kind belonging to and enjoyed by the said several corporations so consolidating, and every species of property, real, personal and mixed, and things in action thereunto belonging, shall be transferred to and vested in and may be held and enjoyed by such new corporation, without any deed 247 Mempersuire Corporations Law. or transfer; and such new corporation shall hold and enjoy the same, and all rights of property, privileges, franchises and interests of either of the said several corporations, in the same manner and to the same extent as the same were or might have been held and enjoyed by the several corporations so consolidating. Said new corporation shall have power to acquire, hold, possess, enjoy and dispose of all the property, real or personal, of said several corporations so con- solidating, and all such additional donations, grants, devises or be- quests, subject to all the provisions of law relating to devises or be- quests by last will and testament, as may be made in further support of its library, collections and objects, or any of the same; and may make such investments as any of the corporations so consolidating might lawfully make, or as may be authorized by the terms of any such donation, grant, devise or bequest; and any devise or bequest contained in any last will and testament made before or after such consolidation to or for the benefit of any of the corporations so con- solidating shall not fail by reason of such consolidation, but the same shall inure to the benefit of the said new corporations; and the title to all real and personal estate, and all rights and privileges acquired and enjoyed by either of the said corporations so consolidating shall not be deemed to revert or to be impaired by such act of consolidation, or anything relating thereto. L. 1892, ch. 541, sec. 4, as amended by L. 1895, ch. 209, sec. 4. § 264. Rights of creditors. The rights of the creditors of any corporation that shall be so con- solidated shall not in any manner be impaired by any act or con- solidation, nor shall any liability or obligation for the payment of any money now due or hereafter to become due to any person or persons, or any claim or demand in any manner, or for any cause existing against any such corporation, or against any stockholder thereof, be in any manner released or impaired, but such new corpora- tion is declared to succeed to such obligation and liabilities and to be held liable to pay and discharge all such debts and liabilities of each of the corporations that shall be so consolidated in the same manner as if such new corporation had itself incurred the obligation or liability to pay such debt or damages; and the stockholders of the respective corporations so entering into such consolidation shall con- tinue subject to all the liabilities, claims or demands existing against them as such at or before such consolidation; and no suit, action nor any proceedings then pending before any court or tribunal in which any corporation that may be so consolidated is a party, or in which any such stockholder is a party, shall be deemed to have abated or been 248 Memeersuip Corporations Law. discontinued by reason of any such consolidation, but the same may be prosecuted to final judgment, in the same manner as if the said corporations had not entered into the said agreement of consolidation, and the said new corporation may be substituted as a party in the place of any corporation so consolidated as aforesaid, and forming such new corporation, by order of the court in which such action, suit or proceeding may be pending. L. 1882, ch. 541, sec. 5. § 265. Powers of such corporation. The new corporation organized under this article shall be permitted to maintain and carry on any form of library and to promote any of the objects authorized by the charter of either or any of the cor- porations which have been consolidated. ARTICLE 19. AGRICULTURAL, FAIR AND OTHER CORPORATIONS AUTHORIZED TO GONSTRUCT TUNNELS AND BRIDGES. Section 270. Certain corporations authorized to construct tunnels under and bridges over highways. 271. Such corporations shall file maps and profiles. 272. Approval of maps and profiles by local authorities. 273. Application of this article. § 270. Certain corporations authorized to construct tunnels under and bridges over highways. Where any state, county or town agricultural corporation or any fair association, or any corporation or association organized under a general or special statute and paying under any statute applicable thereto a percentage of at least five per centum per annum upon its gross receipts to the state comptroller, is the owner of any real prop- erty which is or shall be separated or intersected in whole or in part by a street, avenue or public highway, and it shall be desired by said corporation or association to connect said real property by a tunnel under or a bridge over said street, avenue or public highway so as to avoid crossing said street, avenue or public highway at the grade thereof, the said corporation or association may cause such connection to be made and the necessary work including any change of grade incidental thereto to be performed, upon compliance with the pro- visions of this article. 249 MempBrrsuip Corporations Law. § 271. Such corporations shall file maps and profiles. The corporation or association desiring to make such connection shall file with the local authorities having control over said street, avenue or public highway a proper survey, map, plans, profiles and specifications showing in detail the nature and character of the work to be done, the change to be made, the nature and character of any tunnel or bridge to be constructed and any proposed change of grade of said intervening or intersecting street, avenue or public highway. § 272. Approval of maps and profiles by local authorities. Said survey, map, plans, profiles and specifications when approved by the said local authorities having control over any such street, avenue or public highway, and when duly filed in the office for the recording of deeds in the county where said property is situated, shall constitute an authorization to said corporation or association to con- struct said tunnel or bridge or make said change at its own expense in accordance with the said survey, map, plans, profiles and specifi- cations; and the entire expense of regulating, grading, paving or otherwise improving said intervening or intersecting street, avenue or public highway, upon said changed grade thereof, in such manner and to such extent as shall be required by the said local authorities, shall be wholly borne by the said corporation or association. § 273. Application of this article. This article shall not apply to any railroad corporation and shall not be construed to authorize any change in the grade of any such street, avenue or public highway except as to such portion thereof as is bounded by or lies within the lines of the property owned wholly by said corporation or association. ARTICLE 20. CoRPORATIONS FOR RAISING AND BREEDING AND IMPROVING THE BREED OF HORSES. Section 280. Corporators. 281. Restriction upon commencement of business. 282. Right to hold race meeting and races. 283. Certificate of payment of stock. 284. Additional certificates by existing corporations. 285. State racing commission. 286. License for running races and steeplechases. 287. Revocation of licenses. 250 Mempersuir Corporations Law. SECTION 288. Trotting and fair associations, when entitled to privileges. 289. Notices to be posted upon grounds. 290. Special policemen. 291. Personal liability of trustees or directors for violations. 292. Annual tax on gross receipts. 293. Annual report to comptroller. 294. Comptroller may examine books. 295. Tax receipts. 296. Penalty for unlawful racing and betting. 29%. Increased or additional entrance fees. 298. Supervisors for collection of tax. § 280. Corporators. Any number of persons, not less than five, may become a corpora- tion for the purpose of raising and breeding and improving the breed of horses, with all the general powers of corporations created under the laws of this state, by making, signing, acknowledging and filing a certificate which shall contain: 1. The name of the proposed corporation. 2. The objects for which it is to be formed, including a statement as to whether it is proposed to exercise the particular powers con- ferred by section two hundred and eighty-two of this chapter, and specifying whether it is proposed to conduct trotting or running or steeplechase race meetings. 3. The amount and description of the capital stock. 4, The number of shares of which the capital stock shall consist, each of which shall not be less than five nor more than one hundred dollars. 5. The location of its principal business office. 6. Its duration, which shall not exceed fifty years. %. The number of its directors, not less than five nor more than thirteen, who shall each be a stockholder having at least five shares of stock. 8. The names and post-office addresses of the directors for the first year. 9. The post-office addresses of the subscribers and a statement of the number of shares of stock which each agrees to take in the corporation. No certificate of incorporation under this section wherein the right to conduct running or steeplechase race meetings is claimed, shall hereafter be filed without the approval of the state racing com- 251 Mempersuie Corporations Law. mission indorsed thereon or annexed thereto, stating that, in its opinion, the purposes of this article and the public interests will be promoted by such incorporation, and that such incorporation will be conducive to the interests of legitimate racing. L. 1895, ch. 570, sec. 1, as amended by L. 1902, ch. 257, see. 1. In GENERAL.—With reference to the preparation, filing, and recording of cer- tificates of incorporation, see, also, Gen. Corp. Law, sec. 5, and annotation; see, also, Business Corp. Law, sec. 2, and annotation. And with reference to the fees of the Secretary of State and the County Clerk, see, also, sec. 2. As to the organ- ization tax, see Tax Law, sec. 180, post. § 281. Restriction upon commencement of business. No corporation organized under the provisions of this article shall engage in the prosecution or management of its business until the whole of its capital stock shall have been subscribed, nor until it shall have filed in the offices where its certificates of incorporation were filed, a further certificate stating that the whole of its capital stock has been in good faith subscribed, executed and acknowledged by its president or vice-president and treasurer or secretary, and verified by them to the effect that the statements contained in it are true. L. 1895, ch. 570, sec. 2. § 282. Right to hold race meetings and races. Any corporation formed under the provisions of this article, if so claimed in its certificate of organization, and if it shall comply with all the provisions of this article, and any other corporation entitled to the benefits and privileges of this article as hereinafter provided, shall have the power and right to hold one or more trotting or run- ning race meetings in each year, and to hold, maintain and conduct trotting or running races at such meetings. At such trotting or running race meetings the corporation, or the owners of horses en- gaged in such races, or others who are not participants in the race, may contribute purses, prizes, premiums or stakes to be contested for, but no person or persons other than the owner or owners of a horse or horses contesting in a race shall have any pecuniary interest in a purse, prize, premium or stake contested for in such race, or be en- titled to or receive any portion thereof after such race is finished, and the whole of such purse, prize, premium or stake shall be allotted in accordance with the terms and conditions of such race. Such meetings shall not be held except during the period extending from the fifteenth day of April to the fifteenth day of November, inclusive, in each year, nor upon any running course for more than forty days, nor upon any trotting course for more than fifteen days, nor upon any steeplechase course for more than five days, within such period. 252 Mempersuie Corporations Law. No races are authorized or shall be permitted except during such period nor except between sunrise and sunset. § 283. Certificate of payment of stock. Except as provided in this article, no corporation or association hereafter organized under this article or heretofore organized in pursuance of law for any purpose authorized by this article, shall have any of the powers conferred by section two hundred and eighty- two hereof until it shall have filed in the office or offices where its certificate of incorporation was filed, a further certificate stating that its capital stock has been fully paid in in cash, and if claiming the right to conduct running race meetings, that it actually maintains a race track of not less than one mile in length or circumference, the location of which shall be specified in such certificate. If such cor- poration or association was organized after the first day of February, nineteen hundred and two, and it claims the right to conduct running race meetings, the certificate must also have indorsed thereon, or an- nexed thereto, the approval of the state racing commission. Such certificate shall be executed and acknowledged by its president or vice- president and its treasurer or secretary, and verified by them to the effect that the statements contained in it are true. In the case of racing courses to be used for running races or steeplechases, a license from the state racing commission must also be obtained in the manner hereinafter provided, and such license be filed with such certificate. L. 1895, ch. 570, sec. 4, as amended by L. 1902, ch. 257, sec. 2. § 284. Additional certificates by existing corporations. 1. Any corporation heretofore or hereafter formed under the laws of this state for raising, breeding or improving the breed of horses, or formed or entitled to the benefits or privileges of an act, entitled “An act for the incorporation of associations for the improvement of the breed of horses and to regulate the same and to establish a state racing commission,” upon filing a certificate that its capital stock has been fully paid in in cash or property in accordance with the provisions of the law in force at the time of issuance thereof, shall be deemed to have complied with the requirement of any statute or statutes of this state, providing for the filing of a certificate that the capital stock of such corporation has been fully paid in in cash, or requiring the filing of such certificate as one of the conditions upon which any rights or privileges may be obtained under or pursuant to such statute or statutes. 2. Such corporation, its officers, directors and trustees, shall be subject to all other provisions of such statute or statutes, and, sub- 253 MempBersuie Corporations Law. ject to the conditions and restrictions thereof, shall be entitled to obtain and enjoy all the benefits and privileges thereof with the same force and effect as if such corporation were created by or pursuant to the provisions of such statute or statutes. § 285. State racing commission. There shall hereafter be a state racing commission, consisting of three persons, to be appointed by the governor, and who shall hold office for the term of five years, no two of whom shall be members of the same racing association. They shall receive no compensation for their services but shall be paid their necessary traveling and other expenses. Such commission shall appoint a secretary, who shall serve during their pleasure, whose duty it shall be to keep a full and faith- ful record of the proceedings of such commission, preserve at the general office of such commission all books, maps, documents and papers intrusted to his care, prepare for service such papers and notices as may be required of him by the commission, and perform such other duties as the commission may prescribe. He shall have the power, under the direction of the commission, to issue subpoenas for witnesses and to administer oaths in all cases pertaining to the duties of his office. The total annual expenses of the state racing commission, including the salary of the secretary, shall not exceed the sum of five thousand dollars. Such expenses shall be paid by the several racing or steeplechase corporations or associations, owning or operating such race tracks, to be apportioned by the comptroller, who shall, on or before the first day of December in each year, assess upon each of such corporations or association its just proportion of such expenses, and such assessment shall be collected in the manner provided by law for the collection of taxes upon corporations. Such commission shall annually make a full report to the legislature of its proceedings for the year ending with the first day of the preceding December, and such suggestions and recommendations as it shall deem desirable. L. 1895, ch. 570, sec. 5, as amended by L. 1896, ch. 380, sec. 1. § 286. License for running races and steeplechases. Any corporation or association desiring to obtain the benefits of the provisions of section two hundred and eighty-two of this article, if proposing to conduct a race-course or race meeting for running races or steeplechases, may annually apply to the state racing com- mission for a license to conduct running races and race meetings or steeplechases and steeplechase meetings, as the case may be. If, in the judgment of such commission a proper case for the issuance of 254 Memsersuip Corporations Law. such license is shown, it may grant such license, for a term of one year. Every such license shall contain a condition that all running races or race meetings conducted thereunder shall be subject to the reasonable rules and.regulations, from time to time prescribed by the Jockey club, a corporation organized under the laws of the state of New York, and that all steeplechase meetings or steeplechases shall be subject to the reasonable rules and regulations from time to time prescribed by the National steeplechase association, a corporation organized under the laws of the state of New York. Any rule or regulation of such Jockey club or National steeplechase association may be modified or abrogated by the state racing commission, on giv- ing such Jockey club or National steeplechase association an oppor- tunity to be heard. § 287. Revocation of licenses. If any corporation or association to which a license shall be granted shall fail or refuse to comply with the provisions of this article, or with the terms and conditions of its license, or if for any other reason the continuance of such license shall not be deemed conducive to the interests of legitimate racing, the said commission, upon the com- plaint of the said Jockey club, in the case of race-courses to be used for running races, or upon the complaint of the said National steeple- chase association, in the case of race-courses to be used for steeple- chases, shall have the power to cancel and revoke such license. Written notice of such complaint shall be given to such corporation or association by said state racing commission within five days after receiving such complaint, which notice shall specify a time and place of hearing thereon. If the commission cancels and revokes such license all powers exercised under section two hundred and eighty- two of this article by the corporation or association to which such license was granted shall cease and determine. L. 1895, ch. 570, sec. 1. 8 288. Trotting and fair associations, when entitled to privileges. Any trotting association, incorporated under the laws of the state of New York, and any state, county or other fair association shall be entitled to the privileges conferred by section two hundred and eighty- two of this article upon filing in the offices wherein its certificates of incorporation are filed, a certificate which shall set forth its intention to avail itself of such privileges; and any such trotting association, or state, county or other fair association shall not be required to ob- tain any license or file any other certificate. State, county and other fair associations entitled to conduct trotting races under the provisions 255 Memeersuie Corporations Law. of this article may also conduct running races in connection therewith, ‘under the same provisions, and the provisions of this article requiring a race-track to be of specified dimensions shall not apply to such assoc- ciation ; but no running races shall be conducted for more than five days on any track or grounds, unless the license of the state racing commission therefor is first obtained. L. 1895, ch. 570, sec. 8, as amended by L. 1896, ch. 380, sec. 2. § 289. Notices to be posted upon grounds. Every corporation to be organized under this article or which shall be entitled to exercise any of the powers conferred by section two hundred and eighty-two shall cause to be properly posted in conspicu- ous positions upon the grounds whereon such races are held, printed notices or placards in large and legible type, which notices or placards shall be to the effect that all disorderly conduct, pool-selling, book- making or any other kind of gambling is prohibited, and such notices or placards shall contain a copy of section nine hundred and eighty- six of the penal law. L. 1895, ch. 570, sec. 9. § 290. Special policemen. For the purpose of preserving order and preventing offenses against the laws prohibiting gambling, the trustees or directors of any cor- poration created under the provisions of this article are hereby authorized to appoint from time to time five or more special police- men, and the same to remove at pleasure, who, when appointed, shall be police officers with the same powers within and about such grounds as are vested in constables of the town where such grounds are located, whose duty, when appointed, shall be to preserve order within and around the grounds and race-tracks of said corporation, to protect the property within said grounds, to eject or arrest all persons who shall be improperly within the grounds of such corporation or who shall be guilty of disorderly conduct, or who shall neglect or refuse to pay the fees or to observe the rules prescribed by said corporation ; and it shall be the further duty of said policemen, when appointed, to prevent all violations of law with reference to pool-selling, book- making and other gambling, and to arrest any and all persons violat- ing such provisions, and to convey such person or persons so arrested, with a statement of the cause of such arrest, before a magistrate hav- ing jurisdiction of such offense, to be dealt with according to law. The appointment of policemen in pursuance of this section shall not be deemed to supersede in any wise on the grounds and race-track of 256 MempBersuip Corporations Law. such corporation the authority of peace officers of the jurisdiction within which such grounds and race-track are located. L. 1895, ch. 570, sec. 10, § 291. Personal liability of trustees or directors for violations. In the event that the trustees or directors of any corporation or association created pursuant to the provisions of this article shall comply with the foregoing provisions contained in sections two hun- dred and eighty-nine and two hundred and ninety of this article, then no trustee, director or officer of said corporation shall be personally liable'to the imposition of any fine, or to prosecution, or in any other manner held liable for any violation, by any person other than him- self, of the provisions of law with reference to pool-selling, book- making or other gambling, unless knowingly permitted by him; nor shall the maintenance of such race-course nor the holding or conduct- ing of races thereon pursuant to the provisions of this article be con- strued or held to be violations of any of the provisions of article eighty-eight of the penal law, or of the provisions of any penal statute not contained in said article. § 292. Annual tax on gross receipts. A tax of five per centum upon the gross receipts of every corpora- tion, person or persons from every trotting or running race meeting or meetings, held within the state of New York, either under the provisions of this article or otherwise, shall be paid by any person or persons, firm or association or corporation holding such races, or exercising any of the privileges conferred by section two hundred and eighty-two of this article whether the person or persons holding such races are incorporated or not. Such tax shall be annually paid by said person or persons, association or corporation to the comptroller of the state of New York, within fifteen days after the first day of December in each year. The amount collected by virtue of this sec- tion shall be appropriated and distributed as provided by section three hundred and ten of the agricultural law. Before any such person or persons, firm, association or corporation liable to pay the tax herein imposed shall hold any trotting or running race or exercise any of the privileges conferred by section two hundred and eighty-two of this article or otherwise, they shall pay all taxes due under this article and theretofore assessed thereon and file a statement with the comp- troller containing the name of the place and stating the time when such races are to be held, and shall execute to the people of the state a good and sufficient bond to be approved by the comptroller and filed in his office. The amount of such bond shall be determined by the 257 Memerrsure Corporations Law. comptroller and shall be conditioned for the payment of the tax im- posed by this section. Any person, persons, firm, association or cor- poration neglecting or refusing to execute such bond, and to file such bond and statement, as herein prescribed, shall be guilty of a misde- meanor. Nothing herein contained shall require such tax to be paid, bond to be executed or statement to be filed by any state, county or other agricultural association organized and in active operation as ‘such prior to May ninth, eighteen hundred and ninety-five, or which is entitled to share in the distribution of moneys for agricultural purposes as provided by section three hundred and ten of the agri- cultural law. All the provisions of this article relating to the powers and duties of the comptroller as to the collection of taxes from asso- ciations and corporations holding trotting or running races here- under, and relating to the payment of taxes and the making of reports by such corporations and associations, shall apply to all persons and firms liable to pay a tax upon their gross receipts as provided in this section. L. 1895, ch. 570, sec. 12, as amended by L. 1897, ch. 446, sec. 3. § 293. Annual report to comptroller. It shall be the duty of the president or treasurer of every corpora- tion or association liable to be taxed as provided in this article to make a report in writing to the comptroller, annually, on or before the first day of December, stating the amount of its gross earnings, which shall be duly verified by the oath of its treasurer. § 294. Comptroller may examine book. Whenever any such corporation or association shall neglect or refuse to make such report at the time prescribed in this article, or whenever the report is unsatisfactory to the comptroller, or whenever in the judgment of the comptroller the interests of the state would be promoted thereby, the comptroller is authorized to examine or cause to be examined its books and records, and to fix and determine the amount of tax due in pursuance of the provisions of this article either from such books and records, or from any other data in his possession which shall be satisfactory to him, and to. settle and account for such tax, together with the expenses of such examinations against such association. In case of the nonpayment of the amount of tax so as- certained to be due, together with the expenses of such examination, for a period of thirty days after notice to any such corporation or association so in default, it shall be liable in addition thereto to pay to the state for each such omission or failure, a sum not less than five hundred nor more than one thousand dollars; the same may be sued 258 Memepersuip Corporations Law. for and recovered in the name of the people of the state in any court having competent jurisdiction, by the attorney-general at the instance of the comptroller. The comptroller is also authorized and required to report any failure of any such corporation or association to make such report and to pay its tax to the governor, who, if he shall be satisfied that such failure was intentional, shall thereupon direct the attorney-general to take proceedings in the name of the people of the state to declare the charter of such corporation or association to be forfeited and its charter privileges at an end, and for such intentional failure the charter privileges, corporate rights and franchises of every such corporation or association shall cease. L. 1895, ch. 570, sec. 14, as amended by L. 1896, ch. 380, sec. 3. § 295. Tax receipts. The comptroller shall issue to every such corporation or association paying a tax under the provisions of this article a receipt for the same, and such receipt shall be presumptive evidence of such payment. § 296. Penalty for unlawful racing and betting. All racing or trials of speed between horses or other animals for any bet, stake or reward, except such as is allowed by this article or by special laws, is a public nuisance; and every person acting or aid- ing therein, or making or being interested in such bet, stake or reward is guilty of a misdemeanor and upon conviction is punishable by imprisonment in the county jail or penitentiary for a period of not more than one year; and in addition to the penalty prescribed there- for he forfeits to the people of this state all title or interest in any animal used with his privity in such race or trial of speed, and in any sum of money or other property betted or staked upon the result thereof. L. 1895, ch. 570, sec. 16, as amended by L. 1908, ch. 506, sec. 1. GamiInG.—This statute extends the gambling laws so as to apply within the racetrack the same as outside. People ex rel.- Sterling v. Sheriff of Nassau County, 60 Mise. 326, 112 N. Y. Supp. 154. As to oral betting, see People ex rel. Collins v. McLaughlin, 128 App. Div. 599, 113 N. Y. Supp. 188. See, also, Penal Law, sec. 986. § 297. Increased or additional entrance fees. A corporation or association authorized by or entitled to the bene- fits of this article, conducting a running or trotting or steeplechase meeting, shall have the right to charge increased or additional en- trance fees for admission to any special portion or portions of the grounds of such corporation or association, unless such pool-selling or book-making as is punishable by fine or imprisonment, or other acts so punishable, be thereon authorized or knowingly permitted. L. 1895, ch. 570, sec. 18, as amended by L. 1897, ch. 446, sec. 2, and L. 1908, ch. 506, sec. 3. 259 MermpBzrrsuip Corporations Law. $ 298. Supervisors for collection of tax. The governor shall appoint three suitable persons to supervise the collection of the tax imposed by this article, whose duty it shall be to ascertain and report to the comptroller of the state, under his direction, the gross receipts of the corporation, firms or associations, person or persons, referred to in this article and exercising the privileges con- ferred thereby, and who shall have access to the grounds, books and records of each of such associations and corporations, firm, person or persons, and who shall hold office for a period of five years. One of the persons so appointed shall examine the books and records of the running race meetings and shall receive an annual compensation of two thousand five hundred dollars, together with five hundred dollars annually for his expenses and disbursements incurred while in the discharge of his official duty, or so much thereof as may be necessary, all of which shall be payable monthly; and the other two shall examine the books and records of the trotting race meetings and shall each receive an annual compensation of one thousand five hundred dollars, together with five hundred dollars annually for his expenses and disbursements incurred while in the discharge of his official duty, or so much thereof as may be necessary, which compensation and expenses shall be payable monthly in the respective districts. The state shall be divided into two districts, with reference to the trotting race meetings, and each of said persons and their successors appointed to examine the books and records of trotting race meetings shall reside in the district for which he shall be appointed, as follows: District number one shall consist of that portion of the state of New York lying south of Clinton county, and each of Franklin, Hamilton, Fulton, Montgomery, Schoharie and Delaware counties, and district number two shall be composed of the rest of the counties of the state. The persons heretofore appointed shall continue during the term of office for which they were appointed, unless removed for cause, but the person heretofore appointed to examine the books and records of trotting race meetings, shall be limited in the performance of his duties to the district, as hereinbefore provided, in which he resides. It shall be the duty of the comptroller to cause to be prepared and furnish suitable forms, blanks and record books for the use of such persons in the performance of the duties hereby imposed upon them. L. 1895, ch. 570, sec. 20, as amended by L. 1899, ch. 414, sec. 1. 200 MemBerrsuie Corporations Law. ARTICLE 21. Laws REPEALED; WHEN TO TAKE EFFECT. Szction 310. Laws repealed. 311. When ito take effect. § 310. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that por- tion specified in the last column is hereby repealed. § 311. When to take effect. This chapter shall take effect immediately. SCHEDULE or LAws REPEALED. Laws of Chapter Section LI9G og esis oie. RB ces .» All 1811........ 190 otesconies 8 R. 1.18138... 94........ 13 1818. i. ewes 206 5 1823........ 228......6. All 1825 19. All 1841 O90 rs heres 3, 6 1847........ 183........ All 1848.6 ceca) 299. ewes oie 3, 6 1848 scissisiccs. BIDscein va 1-5; 6, except proviso; 7-10 1849 wciceeee DIB ccc decease All 1851........ 858........ All 1852........ 280........ All W858. 0 cciees UR occ ceees All 1853.......6 339........ All 1853........ 395........ All 1853........ 487........ All 1854. ccicceni, BOo.cewsies All 1854........ 112........ All 1854 i 238......0. All 1854 269... .000 , All 1855 BD sn cisiecenutels All WSBT sasicccs 8025060005 All VSBY ccs B8L ee wecces All eee ecees. see eeene ee eeeece see ce ene MemserrsuHip Corporations Law. Chapter 163 238 242 523 58 ene esses eee eeeee eee ee ees eset eene wer eens wee eneoes ee eee soe eee cesee sae ewes weoeveve eve eerene ed eee erase eee oeeees eee reece eae eeccse eee ee eee eve eenes saeco eee ene reeee see es eee eee ee nwe eer eeses eee crane eee eence eer ee ene a seer eees eae ences eer ernce ere eeace eee erenne eee enene Section Ail Laws of Memsersuip Corporations Law. Chapter OD ss eisiewrane Section All All All All All All, All All All All All All All All All All All All All All All All except proviso in § 7 MemsBersuip Corporations Law. Laws of Chapter Section 1882........ B67... cee ee All 1883........ RBZ. we eeees, All 1883........ 446. ....00. All 1884........ 68........ All 1884.6 c0 acs aves 140........ All 1884......... 216........ All 1884........ 483........ All 1884........ 436........ All 1885....0.... 66......6. All 1885........ 88.....66. All 1885......... LWA a tino os All 1885........ 204.....04- All 1885........ AMA. cece ee All 1886 : BU cade ae. All 1886 182........ All 1886......6. 236........ 1-6; 7, except. proviso; 8-10 1886........ 833... 65085 All 1886........ 546......0.6 All 1886.....6.. 666........ All 1887........ 313.......- All 1887........ 315........ 14 5, except proviso; 6-9 1887........ BL Teedinonse 1-6; 7, except proviso; 8-10 L887... scenes AUD 6 we sie v0 All 1887........ 501........ All 1887........ 506........ All 1887........ 645........ All 1888........ 293... ee eee All 1888........ 299....006. All 1888........ 340.....00. All 1888 B59... wees All 1888........ 391..... ... All 1888........ 415... 0.008. All 1888........ 484........ All 1888........ 490........ 1-4 1888........ 536........ All 1889........ BBs 6:55.45 All 1889........ 95... . eee 1-3, 5-11 1889........ 301........ All 1889........ 389........ All 1890........ OTe weuwess All 1890........ 68........ All MermsBersuip Corporations Law. Laws of Chapter Section 1890......... 104........ All 18903 os si.0s ai 118........ All 1890........ R29... cceee All 1890........ 286........ 1-5; 6, except proviso; 7, 8 1890. 6 seis ID 6: aie aies'6 0: All 1890.00 0% (BIB ier senaeis All VO9L sieves. W0eseegec. All 1891........ 167........ All DEOL. cies wine: BIB. 60 su eee All 1891. cis. esis B44 cia wees All L891 sees: B82.4,c20e80 All 1892........ 197........ All 1892. ..00.0. B91... 0.0 w All 1892........ 333........ All 1892...... 6 ADB iis aw nee All WQ92sccases Slliacsaciae All 1892...... tate: DAL ic sits ees All 1892......08 597........ All 1893 Siena evereiates All 1893........ G9 weieews All 1893. ....008 T8000 cee ‘All 1893 455. All 1893 466 iv crewisica All 18938.......6 469) os vipiere: ‘All 1893........ 602.....068. All 18938........ 6825 sis vieeein All 1894... 2.008 105........ All 1894... 0.65. 1389........ All B94 ieee cine OY: a csnsiceitee'e ss All 1894...... ve 256....0005 . All a 267. All 1894........ 325. All 1894 B32. oe ceees All 1894......4.., BDO acs os-a0e All 1894 o.005 ei 909 wis eiscereien All 1895.6 cease 149. eaistiicws All 1895 209. All 1895....:.... 4932. ..000- ‘All 1895... 2.00 B59... 2... All 1895... cee 570. All 1895... 2. oon 578. css eans ‘All Memsersuie Corporations Law. Laws of Chapter Section 1896.2 cee ee 745 cece eee All W806 ese 198. gated All 1896........ B25... . 060 All 1896..... oe. 880........ All 1896........ AOD owed s terete All 1896........ 476.......4. All 1896........ 542........ All 1896.6 sacs O8lescws wee All W897 was sees 129...4.... All 1897...... atts MODs sicsarscceile All TSOP oasis seine GOT wiscserntieare All 1897........ 446........ All 1897 6 632 wees 463........ All 1897...... sie AUD acetece ws All SOF ecsid-eis es 538....4.... All 1898........ 396........ All S99 ie pees. - MOR arenes All 1899........ 207. ...00.. All 1899 o6 eis: oi0 ROR sie. wa ees All 1899). i eecc es 360........ All 1899........ 414........ All 1900........ 208........ All 1900........ 333........ All 1900........ 404........ All 1900........ 480........ All 1900 BAL. cose ces All 1900........ 681iccs es All 1900...... 6 TID eee ied All 1900........ TAD i arotirass All 1900........ 761. All LOOM esas. 390. All 1901.66 oe 415 ccsiccns All WOOD cc sce wiaee. 439... . eee All Wiig hae 4 469........ All 1901........ 594........ All 1902). &:0: ausrass.s WD's eoweaie ee All 1902 ie wise ais 169. All 1902.2 esas OD ce eh nets 5 All 1902........ 341........ All 1902........ 439 oa: eae s All 19023. swe ea 582........ All 266 eee eeeos eoeececoe Memsersuie Corporations Law. Chapter 528... cee. 623....000. 237... eeee Es cews se sie 429... . 00s 431. ...600. 128... 6.06. QTL. we weeen B20... eee 411......6. 663... 2.006 493...... i Ghivtica cine ADT eiareieatésave B26. oe steve 486.....00. 491........ 86... ce eee Section All All All, except pt. amending proviso in L. 1848, ch. 319, § 6 All ‘All All All ‘All All All ‘All All All ‘All All All ‘All All All 1, pt. amending L. 1847, ch. 133, §10, first two sentences 267 JOINT-STOCK ASSOCIATION LAW. CHAPTER 29 OF THE CONSOLIDATED LAWS. Articte 1. Short title; definitions (§§ 1, 2). 2. General provisions (§§ 3-8). 3. Laws repealed; when to take effect (§§ 20, 21). ARTICLE 1. SHORT TITLE; DEFINITIONS. Section 1. Short title. 2. Definitions. § 1. Short title. This chapter shall be known as the “ Joint-Stock Association Law.” 8 2. Definitions. As used in this chapter, the term “ joint-stock association ” includes every incorporated joint-stock association, company or enterprise hav- ing written articles of association and capital stock divided into shares, but does not include a corporation; and the term “ stockholder ” includes every member of such an association. CHARACTERISTICS.—Joint stock associations are now, In all essential aspects, except the personal liability of stockholders, like corporations. See general dis- cussion as to characteristics in Hibbs v. Brown, 190 N. Y. 167 (177); see, also, case in lower court, 112 App. Div. 214, 98 N. Y. Supp. 353; Matter of Jones, 172 N. Y. 575; Van Aernam vy. Bleistein, 102 N. Y. 355; People ex rel. Platt v. Wemple, 117 N. Y. 136; Colton v. Raymond, 41 Misc. 580, 85 N. Y. Supp. 210. INSPECTION OF Books.—It was held in Marcter of Hatt, 57 Misc. 320, 108 N. Y. Supp. 468, that the decision in Matter of Steinway, 159 N. Y. 250, was broad enough to permit a stockholder to compel an exhibition of the books of a joint stock association. Mandamus will not Iie to compel an inspection of the books and records of the association, in absence of a refusal by the officer to permlt the same. Matter of Hatt, 57 Mise. 320, 108 N. Y. Supp. 468. 269 JOINT-Stock AssOcIATION LAw. ARTICLE 2. GENERAL PROVISIONS. SEction 3. Contents of articles of association. 4. Certificate to be filed within sixty days and annually thereafter; penalty; evidence. . Dissolution. . Power to take and convey real property. Changing articles of association. Proceeding to mortgage, lease or sell real estate. Wea N § 3. Contents of articles of association. The articles of association of a joint-stock association may: 1. Provide that the death of a stockholder thereof, or the transfer of his shares of stock therein, shall not work a dissolution of the association ; 2. Prescribe the number of its directors, not less than three, to have the sole management of its affairs ; 3. Contain any other provision for the management of its affairs not inconsistent with law. : § 4. Certificate to be filed within sixty days and annually there- after; penalty; evidence. Every joint-stock association transacting business within this state shall, within sixty days after its formation, and in each January there- after, file with the secretary of state, and with the clerk of the county in which its principal business is carried on, a written certificate, signed and verified by its president and treasurer, stating the name and date of organization of such association, the number of its stock- holders, the names and places of residence of its officers, and its prin- cipal place of business. Such certificates shall be recorded in such , offices respectively. Any such certificate, the record thereof, or a cer- tified copy of such certificate or record shall be presumptive evidence of the truth of all facts therein stated against such association, its officers and stockholders. The officers of a joint-stock association who fail to comply with the provisions of this section shall be jointly and severally liable to pay to the people of this state a penalty of fifty dollars for each day such failure continues. Furs.—For the fees of the Secretary of State and County Clerk, see annotation under Business Corp. Law, sec. 2. 270 Joint-Stock Association Law. § 5. Dissolution. A joint-stock association shall not be dissolved except in pursuance of its articles of association, or by consent of all its stockholders, or by judgment of a court for fraud in its management, or for good cause shown. FRraup.—The fraud contemplated by this section is such as would defeat the rights of shareholders in violation of the agreement of the association, or where those in charge are converting the assets to their own personal benefit. Colton vy. Raymond, 41 Misc. 580, 85 N. Y. Supp. 210, aff'd (App. Div.) mem. § 6. Power to take and convey real property. A joint-stock association, in the name of its president, as such president, may purchase, take, hold and convey such real property only, 1. As may be necessary for its immediate accommodation in the con- venient transaction of its business. 2. As may be mortgaged to it in good faith by way of security for loans made by or moneys due to it. .8. As it may purchase at sales under judgments, decrees or mort- gages held by it. § '7. Changing articles of association. Any change in the articles of association of a joint-stock associa- tion not inconsistent with law may be made with the consent of all its stockholders, or otherwise, as the articles of association may pro- vide. Unless the articles of association of a joint-stock association contain provisions to the contrary, its directors may be increased or reduced to not less than three; its capital stock may be increased or reduced ; or the term of its existence may be extended, with the con- sent of its stockholders owning at least two-thirds of its stock issued and outstanding, on the following terms and conditions: The consent of the requisite number of stockholders must be given by vote, or by writing presented and filed, at a regular or regularly called special meeting. Notice of the time and place of such meeting, with notice of the proposed change, must be personally served on each stockholder of the association at least thirty days before the meeting, or by mail- ing it to such stockholder at his last-known post-office address at least sixty days before the meeting. The amount of its capital stock shall not be reduced below the amount of its paid-up capital stock, nor shall it be reduced if the liabilities of the association exceed its assets. § 8. Proceeding to mortgage, lease or sell real estate. Whenever any joint-stock association is required by law to make application to the court for leave to mortgage, lease or sell its real 271 JOINT-Stock AssociaTION LAw. estate, the proceeding therefor shall be had as prescribed for corpora- tions in article four of the general corporation law. This was sec. 3390 of the Code of Civil Procedure. Former sec. 8 of the Joint- Stock Assoc. Law with reference to the exemption of an officer or stockholder from testifying in an action against the association, has been omitted. ARTICLE 3. LAWS REPEALED; WHEN TO TAKE EFFECT. Section 20. Laws repealed. 21. When to take effect. § 20. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that por- tion specified in the last column is hereby repealed, § 21. When to take effect. This chapter shall take effect immediately. ScHEDULE oF Laws REPEALED. Laws of Chapter Section L864 sere saws 245... cee ee All I86% acess R89 seat 06 All IB8livsccese DOO cae ciewuacs All 1885 iia wacince 505.....68. All TB OF eas cas oi.e 285. .c. eee All Code Civil Procedure........ 3390-3397, part relating to joint- stock associations. 272 TRANSPORTATION CORPORATIONS LAW. CHAPTER 63 OF THE CONSOLIDATED LAWS. ARTICLE 1. Short title (§ 1). 2 2. Ferry corporations (§§ 2-6). 3. Navigation corporations (§§ 10-14). 4, Stage-coach corporations (§§ 20-24). 5. Tramway corporations (§§ 30-33). 6. Pipe line corporations (§§ 40-54). 7. Gas and electric light corporations (§§ 60-66). 8. Water-works corporations (§§ 80-85). 9. Telegraph and telephone corporations (§§ 100-106). 10. Turnpike, plank-road and bridge corporations (§§ 120- 152). 11. Laws repealed ; when to take effect (§§ 160, 161). ARTICLE 1. SHORT TITLE. Srection 1. Short title. § 1. Short title. This chapter shall be known as the “Transportation Corporations Law.” Attention is directed to the General Corporation Law and the Stock Corpora- tion Law, supra, and annotation thereunder, for provisions relating to corporations not contained in the Transportation Corp. Law. ARTICLE 2. FERRY CORPORATIONS. Section 2. Incorporation. Half of capital to be paid in before commencing business. Powers. ‘Effect of failure to pay in capital stock. Must post schedule of rates. 273 oor & TRANSPORTATION CoRPORATIONS Law. § 2. Incorporation. Three or more persons may become a corporation for conducting and managing a ferry, by executing, acknowledging and filing a certificate, stating the name of the corporation, the places from and to which the ferry established or to be established shall run; the term not exceeding fifty years for which the corporation is to exist, the amount and number of shares of its capital stock; the number of directors thereof, not less than three nor more than fifteen, and the names of the di- rectors for the first year. INcoRPORATORS.—For the qualification of incorporators, see Gen. Corp. Law, sec. 4, and annotation. The certificate must be in the English language (Gen. Corp. L., sec. 5, subd. 1) and may contain any provision with reference to the conduct of the corporate business (Gen. Corp. L., sec. 10). NamMu.—On the subject of corporate name, see Gen. Corp. Law, sec. 6, and annotation; and on the change of corporate name, see Gen. Corp. Law, art. 3, and annotation. AMOUNT oF StocK.—If any of the stock is preferred, the certificate must state the amount and value thereof. With reference to the issue of common or pre- ferred stock, see Stock Corp. Law, sec. 61; and with reference to the increase or reduction of capital stock, see Stock Corp. Law, sec. 62, et seq. PLACE oF BuSsINESS.—With reference to a change of the place of business named in the certificate, see Stock Corp. Law, sec. 13, and annotation. DuraTion.—The Gen. Corp. Law, sec. 11, provides that every corporation as such has power, though not specified in the law under which it is incorporated, to have succession for the period specified in its certificate of incorporation or by law, and perpetually where no period is specified. On the subject of the extension of corporate existence, see Gen. Corp. Law, sec. 37. And on the subject of revival of corporate existence after the term specified in the certificate has expired, see Gen. Corp. Law, secs. 38-42. DrrecTors.—Gen. Corp. Law, sec. 34, provides that the affairs of every cor- poration shall be managed by the board of directors, at least one of whom shall be a resident of this state. Stock Corp. Law, sec. 25, provides that each director shall be a stockholder unless otherwise provided in the certificate or by-laws. With reference to the election, duties and Habilitles of directors, see Stock Corp. Law, art. 3, and annotation; also Gen. Corp. Law, sec. 28 et seq. On the subject of « quorum of directors and powers of majority, see Gen. Corp. Law, sec. 34. And as to a change in the number of directors, see sec. 26 of the Stock Corp. Law. AMENDED CBPRTIFICATH.—Gen Corp. Law, sec. 7, authorizes the filing of an amended certificate in case of defects or informalities in the original. FILINnG.—With reference to the filing and recording of certificates of incorpora- tion, and amended or supplemental certificates, see Gen. Corp. Law, secs. 5, 7, 8, 9. A County Clerk’s certificate need not be attached to the certificate filed in the office of the Secretary of State. ORGANIZATION Tax.—Sec. 180 of the Tax Law, post, provides that every cor- poration incorporated under the laws of this state shall pay to the state treasurer a tax of one-twentieth of one per centum upon the capital stock which the cor- poration is authorized to have (that is, 50 cents on every $1,000 of capital stock) ; but in no case shall the tax be less than one dollar. According to the rules of the office of the state treasurer, the tax, if over $25, must be paid in cash, by certified check, draft, post-office or express money order. The tax must be paid directly to the treasurer, as prescribed by sec. 180, and not sent to the secretary of state with the certificate of incorporation. Upon receipt of the tax the treasurer will notify the secretary of state. Freres OF SecRETARY OF StaTp.—For fees of Secretary of State, see annotation under Business Corp. Law, sec. 2. a7v4 TRANSPORTATION Corporations Law. Fens or County CLHRK.—Filing, 6 cents; recording, 10 cents per folio; for a copy of any order or record, 8 cents per folio. § 3. Half of capital to be paid in before commencing business. No ferry corporation shall be authorized to commence business until at least one-half its capital shall have been actually paid in, nor until affidavits of such payment, sworn to by a majority of the direc- tors, shall have been filed, in each of the offices in which the cer- tificate of incorporation is required to be filed. § 4. Powers. In addition to the powers conferred by the general and stock cor- poration laws, any such corporation shall have power to take by grant from any authority entitled by the laws of this state to make such grant, or by assignment, the franchise or right to establish and main- tain ferries, at the place specified in the certificate of incorporation, and to hold and exercise such franchise or right and carry on the business appertaining thereto, subject to the rights of the mayor, aldermen and commonalty of the city of New York, or any other municipal corporation, or of the owner or owners of any legally exist- ing ferry, or the vested rights of any other corporation whatever. MUNICIPAL REGULATION.—The grantees of ferry-rights take subject to the right of the municipal government to regulate the privileges granted so that they will not be abused to the inconvenience of the public. People v. New York, 32 Barb. 102. § 5. Effect of failure to pay in capital stock. The capital stock of every such corporation shall all be paid in, one-half thereof within one year and the other half thereof within two years from its incorporation, or such corporation shall be dis- solved. Ipso Facto DissoLurion.—The words “shall be dissolved’’ are not intended to work a dissolution, ipso facto, of the corporation, but simply authorize the attorney-general to institute appropriate proceedings to annul the charter. Matter of New York & L. I. Bridge Co., 148 N. Y¥. 540 (547). As to dissolution proceed- ings, see Gen. Corp. Law. § 6. Must post schedule of rates. Every corporation operating any ferry in this state, or between this state and any other state, and from or to a city of five hundred thousand inhabitants or over, shall post in a conspicuous and acces- sible place in each of its ferryhouses, in plain view of the passengers, a schedule plainly printed in the English language, of the rates of ferriage charged and authorized by law to be charged for ferriage over such ferry. In GpNERAL.—The Penal Law, sec. 871, formerly sec. 415-2 of the Penal Code, provides that ‘‘a person, corporation or association operating any ferry in this state, or between this state and any other state, operating from or to a city of 500,000 or over, posting a false schedule of ferry rates, or neglecting to post in a conspicuous and accessible place in each of its ferry houses, in plain view of the 275 Transportation Corporations Law. passengers, a schedule, plainly printed in the English language, of the rates of ferries charged thereon and authorized by law to be charged for ferriage over such ferry, is guilty of a misdemeanor.” See, also, sec. 274 of the Highway Law, post. APPLICABILITY TO FOREIGN CoRPORATIONS.—This section is inapplicable to foreign corporations. Blanchard v. Hoboken Land & Imp. Co., 6 N. Y. Supp. 279. The following provisions ‘of the Highway Law are applicable to ferries : § 270. Licenses. The county court in each of the counties of this state or the city court of a city, may grant licenses for keeping ferries in their respec- tive counties and cities, to such persons as the court may deem proper, for a term not exceeding five years. No license shall be granted to a person, other than the owner of the land through which that part of the highway adjoining to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eight days’ written notice from such person of the time and place at which he will apply for such license, or having obtained such license, shall neglect to comply with the conditions of the license or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk; and a certified copy thereof shall be delivered to the person licensed. When the waters over which any ferry may be used shall divide two counties or cities, or a county and city, a license obtained in either of the counties or cities shall be sufficient to au- thorize transportation of persons, goods, wares and merchandise, to and from either side of such waters. IN GBNERAL.—Sec. 870 of the Penal Law (sec. 415 of the Penal Code) pro- vides that a person who maintains a ferry for profit or hire upon any of the waters of this state without authority of law, is guilty of a misdemeanor. War CONSTITUTHS A Frerry.—A ferry is a continuation of the highway from one side of the water over which it passes to the other, and !s for the transporta- tion of passengers, with thelr teams and vehicles, and such property as they may have with them. New York v. Starin, 106 N. Y. 1 (11). For other definitions, see People v. Mago, 69 Hun 559, 23 N. Y. Supp. 988. Running a small steam yacht on Sundays and holidays from a village to a summer resort on an island in a river, for the conveyance of any willing to pay for passage, does not constitute maintaining a ferry requiring a license, where the course of the boat has no connection with a highway at either end. People v. Mago, 69 Hun 559, 23 N. Y. Supp. 938. § 271. Undertaking. Every person applying for such license shall, before the same is granted, execute and file with the clerk of the court his undertaking with one or more sureties, approved by the court, to the effect that he will attend such ferry with sufficient and safe boats and other imple- ments, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct. 276 TRANSPORTATION CorPoraTIoNns Law. In GENERAL —Sec. 870, subd. 2, of the Penal Law (sec. 415, subd. 2, of the Penal Code) provides that a person who, having entered into a recognizance to keep or maintain a ferry, violatey the condition of such recognizance, is guilty of a misdemeanor. § 272. Appendages for rope ferries. Any person licensed to keep a ferry may, with the written consent of the town superintendent of the town where such ferry may be, erect and maintain within the limits of the highway, at such point as shall be designated in such consent, a post or posts, with all necessary braces and appendages for a rope ferry. § 273. Superintendent of public works may lease right of passage. The superintendent of public works, may, where ferries are now maintained at tide-water, lease the right of passage for foot passengers across state lands adjoining tide-water for a period not exceeding ten years, on such conditions as he may deem advantageous to the state. § 274. When schedules to be posted. Every person licensed to operate or control any ferry in this state, or between this state and any other state, operating from or to a city of fifty thousand inhabitants or over, shall post in a conspicuous and accessible position outside and adjacent to each entrance to such ferry, and in at least four accessible places, in plain view of the passengers upon each of the boats used on such ferry, a schedule plainly printed in the English language of the rates of ferriage charges thereon, and authorized by law to be charged for ferriage over such ferry. If any such person shall fail to comply with the provisions of this section, or shall post a false schedule, he shall forfeit the sum of fifty dollars for each day’s neglect or refusal to post such schedule or any of them, to be recovered by any person who shall sue therefor in any court of competent jurisdiction. ARTICLE 3. NAVIGATION CORPORATIONS. Section 10. Formation of corporation, 11. Navigation between additional ports. 12. Payment of capital stock. 13. Ferries unauthorized. 14. Bicycles to be transported as baggage by steamboats. § 10. Formation of corporation. Seven or more persons may become a corporation, for the purpose 6f building for their own use, equipping, furnishing, fitting, pur- 207 TRANSPORTATION CorPoRaTions Law. chasing, chartering, navigating or owning steam, sail or other boats, ships, vessels or other property to be used in any lawful business, trade, commerce or navigation upon the ocean, or any seas, sounds, lakes, rivers, canals or other waterways, and for the carriage, trans- portation or storing of lading, freight, mails, property or passengers thereon by making, signing, acknowledging and filing a certificate, stating the name of the corporation, the specific objects for which it is formed, the waters to be navigated, and in case of ocean steamers, the ports between which such vessels are intended to be navigated, the amount of its capital stock, which shall not be less than five thou- sand, nor more than four million dollars, the term of its existence, not to exceed fifty years, the number of shares of which the capital stock shall consist, the number of directors thereof, not less than five nor more than thirteen, the names of the directors for the first year, and the name of the city, village or town and county in which its principal office is to be situated, the number of shares of stock which each subscriber of the certificate agrees to take, which must in the aggregate equal ten per centum of the capital and at least ten per centum of which must be paid in cash. Such certificate shall have at- tached thereto as a part thereof, the affidavit of at least three of such directors, to the effect that ten per centum of such capital stock has been in good faith subscribed, and at least ten per centum of such sub- scription has been paid in cash. No railroad corporation shall have, own or hold any stock in any such corporation. As amended by L. 1896, ch. 935, sec. 1, and L. 1901, ch. 483, sec. 1. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Existence, Directors, Filing Cer- ee Organization Tax, and Fees, see annotation under Business Corp. Law, § 11. Navigation between additional ports. Any such corporation desiring or intending to navigate boats, ships or vessels, upon any other waters, or in case of ocean steamers between any other or additional ports than those named in its original cer- tificate, may from time to time file a further certificate, in the same manner as is prescribed by law for the filing of the original certificate, in which shall be stated such additional waters or ports upon or be- tween which such corporation desires to navigate vessels, and there- after such corporation may navigate its vessels upon such waters and between such ports, with the like effect as if they had been named in the original certificate. § 12. Payment of capital stock. The capital stock of such corporation shall be paid in, at least one- 278 TRANSPORTATION CorporaTiIons Law. half thereof, within one year, and the remainder within two years from its incorporation, or the corporation shall be dissolved. Within thirty days after the payment of the last instalment, a certificate stating that the whole amount of such capital stock has been paid in shall be made, signed and sworn to by the president and a majority of the directors of the corporation, and filed and recorded in the offices where the original certificates of incorporation were filed. DISSOLUTION.—See annotation under sec. 5, supra. § 13. Ferries unauthorized. This article shall not authorize the formation of any ferry corpora- tion to ply between the city of New York and any other point. § 14. Bicycles to be transported as baggage by steamboats. It is hereby made the duty of the owners or lessees of any steam- boat, or line of steamboats, except ferry boats navigating the Hudson river, or any other waters within the jurisdiction of this state, to receive and transport the bicycle of any passenger as ordinary baggage. A check of convenient size and form, plainly stamped with numbers, and furnished with a convenient strap, shall be affixed to such bicycle when so taken for transportation for a passenger by the agent or employee of such owners or lessees and a duplicate thereof given to the passenger or person delivering the same to him. Such bicycle shall be transported as baggage and subject to the same liabilities, and no such passenger shall be require to crate, cover or otherwise protect any such bicycle. Such bicycle shall be delivered without unnecessary delay, to the passenger, or any person acting in his be- half, at the place to which it was to be transported, or at a regular intermediate stopping place, upon notice to such agent or employee of such owners or lessees, in whose charge such bicycle shall have been given by such passenger, of not less than ten minutes, upon presenta- tion of such duplicate check to such agent or employee of such owners or lessees. The object and intent of this section is to compel the owners or lessees of any steamboat, or line of steamboats, navigating the waters of this state to furnish, without further charges other than the cus- tomary fare generally paid such owners or lessees as compensation for transporting any passenger and his ordinary baggage, the same facilities to passengers going by boat, to or from any point or points in this state, as is afforded those who go by railroad. Any person or persons, partnership or corporation violating the provisions of this section shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than two 279 TRANSPORTATION CorPorATIons Law. hundred and fifty dollars, or by imprisonment in a county jail for a period of not less than thirty days, or by both such fine and imprison- ment. L. 1908, ch. 121, secs. 1-3. ARTICLE 4. STAGE-COACH CORPORATIONS. Section 20. Incorporation. 21. Alteration or extension of route. 22. Powers. 23. Existing routes and extensions. 24. Certain persons and corporations subject to public serv- ice commissions law. § 20. Incorporation. Five or more persons may become a corporation for the purpose of establishing, maintaining and operating any stage or omnibus route or routes for public use in the conveyance of persons and prop- erty elsewhere than in the city of New York, or any stage route or routes already established for a like public use, by making, signing, acknowledging and filing a certificate which shall state the name of the corporation, the number of years it is to continue, the route or routes upon which it is intended to run as near as practicable, the number of the directors thereof, not less than three nor more than five, the names of the directors for the first year, the amount of its capital stock, the place of residence of each subscriber thereto, and the number of shares of stock he agrees to take in such corporation. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Existence, Directors, Filing Cer- tificate, Organization Tax, and Fees, see annotation under Business Corp. Law, sec. 2. § 21. Alteration or extension of route. The directors may, by a vote of two-thirds of their number, at any time alter or extend the route or routes designated in the certificate of incorporation, upon making, acknowledging, and filing a certificate to that effect, in the offices where the original certificates of incor- poration were filed. § 22. Powers. In addition to the powers conferred by the general and stock cor- poration laws, every such corporation shall have power: 1. To take and convey persons and property in stages and omni- buses, and to provide and run the necessary stages and omnibuses 280 TRANSPORTATION Corporations Law. upon their route or routes for the public use and to receive compensa- tion therefor. 2. To erect and maintain all necessary and convenient buildings, fixtures and machinery for the use and accommodation of their pas- sengers and business. § 23. Existing routes and extensions. Any corporation incorporated under any law of this state heretofore enacted which owns and operates a lawfully established stage route which has been continuously operated by such company or its pre- decessors in title to such route for five years last past in any city of the first class, is hereby authorized and empowered to extend its exist- ing routes at any time or times and to operate the same as extended with stages and omnibuses propelled by electricity or any other motive power, in and upon any streets and highways of such city, without further or other authority, proceeding, or consent required under any act, general, public, private or local; provided, however, that such extensions shall not become valid until they shall have been first ap- proved by the public service commission which, on giving its approval, shall make a certificate of such extension or extensions of route as approved, which certificate shall be filed in the office of the secretary of state, and in the office of the clerk of the county in which such ex- tension is located. Such company, on filing in said offices an accept- ance of the extensions specified in such certificate and on operating such extensions, shall have the right to charge a fare not exceeding ten cents per passenger for a continuous ride over the whole or any part of the routes owned or operated by it, and shall pay a license fee to the city in which it operates equal to the charge now in force for licensing similar stages and omnibuses, and shall also pay to the comp- troller or other chief fiscal officer of said city five per centum per annum of its gross receipts from the operation of said routes. § 24. Certain persons and corporations subject to public service commissions law. Any person or any corporation who or which owns or operates any stage route in any city of one million inhabitants, or more, shall be deemed to be included within the meaning of the term “common stage route in any city of one million inhabitants, or more, shall be subject to all the provisions of the said law applicable to common carriers. 281 Transportation Corporations Law. ARTICLE 5. TRAMWAY CORPORATIONS. Section 30. Incorporation. 31. Powers. 32. May acquire land by condemnation. 33. Crossings. § 30. Incorporation. Thirteen or more persons may become a corporation for construct- ing, maintaining and operating an elevated tramway, constructed of poles, piers, wires, rods, ropes, bars or chains, for the transportation of freight in suspended buckets, cars or other receptacles, for hire, by making, signing, acknowledging and filing a certificate stating the name of the corporation, the number of years it is to continue, the places from and to which such tramway is to be constructed, main- tained and operated, its length as near as may be, the name of each county through or in which it is made or intended to be made, the amount of its capital stock and the number of shares into which it is to be divided, the number of the directors thereof, not less than three, the names and places of residence of the directors for the first year, the place of residence of each subscriber thereto and the number of shares he agrees to take in such corporation. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Existence, Directors, Filing Cer- tificate, Organization Tax, and Fees, see annotation under Business Corp. Law, sec. 2. § 31. Powers. Every such corporation, in addition to the powers conferred by the general and stock corporation laws, shall have power: 1. To cause such examination and surveys for its proposed tram- way to be made as may be necessary to the selection of the most ad- vantageous route, and for such purpose by its officers and servants, to enter upon the lands or waters of any person, but subject to respon- sability for all damages done thereto. 2. To lay out its tramway and to construct the same as hereby provided. 3. To erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommodation and transac- tion of its business. § 32. May acquire land by condemnation, In case any such corporation is unable to agree for the purchase, 282 TRANSPORTATION CorPporaTions Law. use or lease of any real property required for the purposes of its in- corporation, it shall have the right to acquire title to the same by con- demnation. § 33. Crossings. Whenever any tramway, constructed by any such corporation, shall cross a railroad, highway, turnpike, plank-road or canal, such tram- way shall be so constructed as not to interfere with the free use of such railroad, highway, turnpike, plank-road or canal for the purposes for which it was intended. ARTICLE 6. PIPE LINE CORPORATIONS. Szction 40. Incorporation. 41. Location of line. 42. Condemnation of real property. 43. Railroad, turnpike, plank-road and highway crossings. 44, Construction across and along canals, rivers and creeks. 45. Consent of local authorities. 46. Construction through villages and cities. 47. Over Indian reservations. 48. Over state lands. 49. Additional powers. 50. Use of line to be public; storage; liable as common carriers; rates and charges. 51. Receipts for property; cancellation of vouchers; delivery of property. 52. Monthly statements. 53. Fences; farm crossings and use of line not inclosed. 54. Taxation of property. 8 40. Incorporation. Twelve or more persons may become a corporation for constructing and operating for public use, except in the city of New York, lines of pipe for conveying or transporting therein petroleum, gas, liquids or any products or property, or for maintaining and operating any line of pipe already constructed and owned by any corporation, person or persons, except in such city, for the public use, by making, signing, acknowledging and filing a certificate stating the name of the cor- poration, the number of years it is to continue, the places from and to 283 TRANSPORTATION CorPoRATIONS Law. which it is to be constructed or maintained and operated, its length as near as may be, the name of each county through or into which it is to be constructed; the amount of its capital stock, which shall not be less than fifteen hundred dollars for every mile of pipe constructed or proposed to be constructed, and the number of shares of which it shall consist; the number of directors not less than seven, and the names and places of residence of the directors for the first year, and the place of residence of each subscriber and the number of shares he agrees to take in such corporation, which must in the aggregate equal ten hundred and fifty dollars for every mile of pipe constructed or proposed to be constructed, and twenty-five per centum of which must be paid in cash. Such certificate shall have indorsed thereon or appended thereto and as a part thereof, an affidavit made by at least three of the directors named therein that at least ten hundred and fifty dollars of stock for every mile of line proposed to be constructed or maintained and operated has been in good faith subscribed, and twenty-five per centum paid in money thereon, and that it is intended in good faith to construct or to maintain and operate the line of pipe mentioned in such certificate, and that such corporation was not pro- jected or formed with the intent or for the purpose of injuring any person or corporation, nor for the purpose of selling or conveying ites franchise to any person or corporation, nor for any fraudulent purpose. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Existence, Directors, Filing Cer- ae Organization Tax, and Fees, see annotation under Business Corp. Law, § 41. Location of line. Every such corporation shall before commencing the construction of its pipe line in any county, or any proceeding for the condemna- tion of real property, plainly and distinctly mark and designate the line adopted and located by it by a line of stakes consecutively num- bered and equally distant, and not more than twenty rods from each other, so that each line can be definitely known and ascertained in all places, and make a map and survey of the route so located and staked out, and shall indicate thereon plainly the points where such route crosses each parcel of land to which it has not acquired title by agree- ment, and shall cause such map and survey to be certified by the president and engineer, and filed in the office of the clerk of the county into or through which the line so located and mapped passes, and shall give to the owner or occupant, if he is known or can be ascertained, of every parcel of land through which such route passes, the title to which has not been acquired by purchase, written notice of the filing 284 TRANSPORTATION CorpPoRaTIons Law. of such map and survey, stating that such route passes over or across such owner’s or occupant’s lands, and that the route thereof is in- dicated thereon by such line of stakes. Any occupant or owner of such lands feeling aggrieved by the proposed location may, within fifteen days after the service of such notice, give ten days’ written notice to the corporation, by service upon the president, en- gineer, or any director thereof, and to the owner or occupant of any lands to be affected by the alteration to be proposed by him, of the time and place of an application to be made by him to a special term of the supreme court in the judicial district in which the lands are situated for the appointment of commissioners to re-locate such line. If upon the hearing the court shall consider that sufficient cause exists therefor, it shall appoint three disinterested persons commis- sioners to examine the route located and the proposed alteration thereof, and direct the mode of proceeding, who shall report to the court the facts relating thereto and their opinion as to the proposed alteration, and what, if any, alteration should be made in such line, and the court shall thereupon make such order as it shall deem proper in relation to such alteration, and determine the location of such line, and fix and adjust the costs, fees and charges of the commissioners, and the costs and charges of the proceedings, and direct by which party the same shall be paid, and may enforce payment thereof by proceedings as for a contempt of court, for refusal to pay costs directed to be paid by an order of the court, and such order shall be final as to the location of the line upon the lands embraced therein. Such cor- poration shall not commence the work of constructing or laying its line of pipe, or institute proceedings for the condemnation of real property, in any county, until after the expiration of fifteen days from the service by it of the notice herein required, nor until all applications for a re-location of its line in such county, if any are made, have been finally determined. : § 42. Condemnation of real property. In case such corporation is unable to agree for the purchase of any real estate required for the purposes of its incorporation, and its line of pipe in the county in which such real estate is situated has been finally located, it shall have the right to acquire title thereto by con- demnation, but such corporation shall not locate or construct any line of pipe through or under any building, dooryard, lawn, garden or orchard, except by the consent of the owner thereof in writing duly acknowledged, nor through any cemetery or burial ground, nor within one hundred feet of any building, except where such line is authorized 285 TransPorTaTiIon Corporations Law. by public officers to be laid across or upon any public highway, or where the same is laid across or upon any turnpike or plank-road. No pipes shall be laid for the purpose of carrying petroleum, gas or other products or property through or under any of the streets in the cities of this state, unless such corporation shall first obtain the consent of a majority of the property owners on the streets which may be selected for the laying of pipes, and such pipe line shall be located with all reasonable care and prudence so as to avoid danger from the bursting of the pipes. § 43. Railroad, turnpike, plank-road and highway crossings. Whenever any line of pipe of any such corporation shall necessarily cross any railroad, highway, turnpike or plank-road, such line of pipe shall be made to cross under such railroad, highway, turnpike or plank-road and with the least injury thereto practicable, and unless the right to cross the same shall be acquired by agreement, compensa- tion shall be ascertained and made to the owners thereof, or to the public in case of highways, in the manner prescribed in the con- demnation law, but no exclusive title or use shall be so acquired as against any railroad, turnpike or plank-road corporation, nor as against the rights of the people of this state in any public highway, but the rights acquired shall be a common use of the lands in such manner as to be of the least practical injury to such railroad, turnpike or plank- road, consistent with the use thereof by such pipe line corporation, nor shall any such corporation take or use any lands, fixtures or erec- tions of any railroad corporation, or have the right to acquire by con- demnation the title or use, or right to run along or upon the lands of any such corporation, except for the purpose of directly crossing the same when necessary. § 44. Construction across and along canals, rivers and creeks. No pipe line shall be constructed upon or across any of the canals of this state, except by the consent of and in the manner and upon the terms prescribed by the superintendent of public works, unless con- structed upon a fixed bridge across such canal, and with the consent of the person for whose benefit such bridge is constructed and main- tained, or upon such a bridge over the canal, at the crossing of a public highway or street, with the consent of the public officers having the supervision thereof, or of the municipal authorities of any village or city within whose limits such bridge may be, nor shall the pipes of any such corporation be laid through or along the banks of any of the canals of this state, nor through or under any of its rivers or creeks, unless such pipes shall be encased so as to prevent leakage, in such manner as shall be approved by the superintendent of public works. 286 TRANSPORTATION Corporations Law. § 45. Consent of local authorities. No pipe line shall be constructed across, along or upon any public highway without the consent of the commissioners of highways of the town in which such highway is located, upon such terms as may be agreed upon with such commissioners. If such consent or the consent of the commissioners or municipal authorities required by the pre- ceding section cannot be obtained, application may be made to the appellate division of the supreme court of the department in which such highway or bridge is situated for an order permitting the cor- poration to construct its line across, along or upon such highway, or across or upon such bridge. The application shall be by duly verified petition and notice which shall be served upon the commissioners of highways of the town in which the highway is situated, or the muni- cipal authorities of the village or city where such bridge is located, according to the practice or order of the court, or by an order to show cause, and the court upon the hearing of the application may grant an order permitting the line to be so constructed in such manner and upon such terms as it may direct. , § 46. Construction through villages and cities. No pipe line shall be constructed into or through any incorporated village or city in this state, unless authorized by a resolution prescrib- ing the route, manner of construction and terms upon which granted, adopted at a regular meeting of the board of trustees of the village or the common council of the city by a two-thirds vote of such board or council, but such resolution shall not affect any private right. No pavement shall be removed in any city under the provisions of this ar- ticle, unless done under the direction of the common council, nor until such corporation shall give a bond in such sum as the common council may require for the replacing of any pavements which shall have been removed. In case any pavement shall have been removed and not properly relaid, the common council may bring suit in any court of record, for the cost of relaying such pavement against any such corporation. No gas-houses shall be erected in any city under the provisions of this article, for supplying gas to the inhabitants, unless consent is first given by the corporate authorities of the city. § 47. Over Indian reservations. Such corporation may contract with the chiefs of any nation of Indians over whose lands it may be necessary to construct its pipe line for the right to construct such pipe line upon such lands, but no such contract shall vest in the corporation the fee of such lands, nor the right to occupy the same for any purpose other than for the construc- 287 TRANSPORTATION Corporations Law. tion, operation and maintenance of such pipe line, nor shall such contract be valid or effectual until the same has been ratified by the county court of the county in which the lands are situated. § 48. Over state lands. The commissioners of the land office shall have power to grant to any pipe line corporation any lands belonging to the people of this state which may be required for the purposes of its incorporation on such terms as may be agreed on by them, or such corporation may acquire title thereto by condemnation, and if any lands owned by any county, city or town be required by such corporation for such pur- poses, the county, city or town officers having charge of such lands may grant them to such corporation upon such terms and for such compensation as may be agreed upon. § 49. Additional powers. Every corporation formed under this article shall in addition to the powers conferred by the general and stock corporation laws have power: 1. To cause such examinations and surveys of its proposed line of pipe to be made as may be necessary to the selection of the most advantageous route, and for such purpose by its officers, agents or servants may enter upon the lands or waters of any person, upon, through or across which such corporation can construct its line of pipe, under the provisions of this article, subject, however, to liabi- lity for all actual damage which shall be done thereto. 2. To take and hold such voluntary grants of real estate and other property, as shall be made to it to aid in the construction, maintenance, operation and accommodation of its pipe line. 3. To lay out its pipe line route not exceeding twelve feet in width, but at the terminations of such line and at all receiving and dischar- ging points and at all places where machinery may properly or must necessarily be set up for the operation of such pipe line it may take such additional] width, and for such length as may be necessary. 4. To take and convey through pipes any property, substance or product capable of transportation therein by any force, power or mechanical agency, and to erect and maintain all necessary and con- venient buildings, stations, fixtures and machinery for the purposes of its incorporation. 5. To regulate the time and manner in which property shall be transported over its pipe lines, and the compensation to be paid there- for, but such compensation shall not exceed the sum or be above the rate of twenty-five cents per one hundred miles for the transportation 288 TRANSPORTATION Corporations Law. of forty-two gallons of any product transported on lines of one hun- dred miles in length or over, which shall be reckoned and adjusted upon the quantity or number of gallons delivered by such corporation at the point to which it shall have undertaken to deliver the same. § 50. Use of line to be public; storage; liable as common carriers; rates and charges. The pipe lines of every such corporation shall be open for transpor- tation to the public use, and all persons desiring to transport products through such pipe line shall have the absolute right upon equal terms to such transportation in the order of application therefor, on com- plying with the general requirements of such corporation, as to delivery for and payment of such transportation, but no application for such transportation shall be valid beyond or for a greater quantity of products than the applicant shall then own and have ready for delivery for transportation to such corporation, and every such cor- poration shall provide suitable and necessary receptacles for receiving all such products for transportation, and for storage at the place of delivery until the same can reasonably be moved by the consignee, and shall be liable as common carriers therefor from the time the same is delivered for transportation until a reasonable time after the same has been transported to the place of consignment and ready for de- livery to the consignee, which time shall be fixed by general regula- tion by the corporation, and shall not be less than two days from and after the same shall be ready for delivery and notice thereof given to such consignee, and all rates and charges of every description, for or on account of or in any manner connected with the transportation of any products, shall be fixed by such corporation by general rules and regulations, which shall be applicable to all parties who shall transport any products through such pipe line, or deliver or contract to deliver products for transportation and shall be written or printed and ex- posed to public view and at all times open to public examination. $ 51. Receipts for property; cancellation of vouchers; cdclivery of property. No receipt, certificate or order of any kind shall be made, accepted or issued by any pipe line corporation for any commodity unless the commodity represented by them is actually in possession of the cor- poration at the time of making, issuing or acceptance thereof. When- ever any such corporation shall have parted with the possession of any commodity and received therefor any order, voucher, receipt or certificate, such order, voucher, receipt or certificate shall not be issued or used again, but shall be canceled with the word “ canceled ” stamped ° 289 TransporTaTION Corporations Law. or printed legibly across the face thereof, and such canceled order, voucher, receipt or certificate shall be filed and preserved by such cor- poration and a record of the same kept by the secretary thereof. No petroleum or other commodity received for transportation by such corporation shall be delivered to any person without the presentation and surrender of all vouchers, receipts, orders or certificates that have been issued or accepted for the same. § 52. Monthly statements. Every pipe line corporation shall make monthly a specific state- ment showing the amount of all commodities received, the amount delivered during the month, and the stock on hand on the last day of each month of the year, and how much of such stock is represented by outstanding certificates, vouchers, receipts or orders and how much in credit balances on the books of the corporation. Such statement shall be made on or before the tenth day of the succeeding month and verified by the oath of the president and secretary that it is in all respects true and correct, and shall be filed within three days thereafter in the county clerk’s office in the county where the principal office of the corporation is located, and a true copy of the same posted in a conspicuous place in its principal office for at least thirty days there- after. § 53. Fences; farm crossings and use of line not inclosed. It shall not be necessary for any such corporation to fence the lands acquired by it for the purpose of its incorporation. But, if not inclosed by a substantial fence, the owner of the adjoining lands from whom such lands were obtained, his heirs or assigns, may occupy and use such lands in any manner not injurious to the interests of the corpora- tion and shall not be liable therefor, or for any trespass upon any such lands except for wilful or negligent injuries to the pipes, fixtures, machinery or personal property of the corporation. If the corpora- tion shall keep such lands inclosed it shall construct and provide all suitable and necessary crossings with gates for the use and con- venience of any owners of lands adjoining the portion of its lands so inclosed, and no claim shall be made by it against any owner of ad- joining lands to make or contribute to the making or maintaining of any division fence between such adjoining lands and its lands, and if it shall neglect to keep and maintain substantial fences along its lands the owners of adjoining lands may construct and maintain all farm or division fences, and all line fences crossed by such pipe line in the same manner as though it had not acquired such lands for such pipe line, and it shall be liable for all injuries to such fences caused 290 Transportation Corporations Law. or done by any of its officers or agents, or any persons acting in their or its behalf, or by any laborer in its or their employ or in the employ of any of its contractors. § 54, Taxation of property. The real estate and personal property belonging to any pipe line corporation in this state, shall be assessed and taxed in the several towns, villages and cities in the same manner as the real estate and personal property of railroad corporations are assessed and taxed, and such corporation may pay such taxes or commute therefor in the same manner as railroad corporations. ARTICLE 7. GAS AND ELECTRIC LIGHT CORPORATIONS. Section 60. Incorporation. 61. Powers. 62. Gas and electric light must be supplied on application. 63. Deposit of money may be required. 64. Buildings may be entered for the examination of meters, pipes, fittings, wires and works. 65. Refusal or neglect to pay rent. 66. No rent for meters to be charged. § 60. Incorporation. Three or more persons may become a corporation for manufactur- ing and supplying gas for lighting the streets and public and private buildings of cities, villages and towns in this state, of for manu- facturing and using electricity for producing light, heat or power, and in lighting streets, avenues, public parks and places, and public and private buildings of cities, villages and towns within this state, or for two or more of such purposes, by making, signing, acknowledginp and filing a certificate stating the name of the corporation, its objects, the amount of its capital stock, the term of its existence not to exceed fifty years, the number of shares of which the stock shall consist, the number of directors not less than three nor more than thirteen, the names and places of residence of the directors for the first year, and the names of the towns, villages, cities and counties in which the operations of the corporation are to be carried on, and thereupon the persons who shall have signed the same, their associates and succes- sors shall be a corporation by the name stated in the certificate. With reference to Incorporators, Certificate, Amended Certificate, Name, 291 TRANSPORTATION Corporations Law. Amount of Stock, Place of Business, Duration of Existence, Directors, Filing Cer- tificate, Organization Tax, and Fees, see annotation under Business Corp. Law, eis eee to Bore For Gas.—A corporation organized to bore, drill and dig for natural gas, distributing the same in pipes and selling it, is properly or- ganized under the Business Corp. Law, rather than under the Transportation Cor- porations Law. Wilson vy. Tennant, 61 App. Div. 100, 70 N. Y. Supp. 2, aff’d 179 N. ¥. 546 mem. CONSOLIDATION OF COMPANIDS.—A contract by which one gas company agrees to issue its stock in exchange for all of the stock of another gas company, entered into for the sole purpose of preventing ruinous competition, is not void as in restraint of trade. Rafferty v. Buffalo City Gas Co., 37 App. Div. 618, 56 N. Y. Supp. 288. See, also, Matter of Consolidated Gas Co., 56 Misc. 49, 106 N. ¥. Supp. 407. As to consolidation of corporations in general, see Business Corp. Law, sec. 7. § 61. Powers. Every such corporation shall have the following additional powers: 1. If incorporated for the purpose of supplying gas for light, to manufacture gas, and to acquire by purchase or otherwise natural gas and to sell and furnish such quantities of gas as may be required in each city, town and village named in its certificate of incorporation, for lighting the streets, and public or private buildings or for other purposes ; and to lay conductors for conducting gas through the streets, lanes, alleys, squares and highways, in each such city, village and town, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe; and such municipal authorities shall have power to exempt any such corporation from taxation on its personal property for a period not exceeding three years from the organization of the corporation. Any corporation authorized under any general or special law of this state to manu- facture and supply gas shall have the like powers and privileges. 2. If incorporated for the purpose of using electricity for light, heat or power, to carry on the business of lighting by electricity or using it for heat or power in cities, towns and villages within this state, and the streets, avenues, public parks and places thereof, and public and private buildings therein; and for the purposes of such business to generate and supply electricity ; and to make, sell or lease all machines, instruments, apparatus and other equipments therefor, and to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, public parks and places of such cities, towns or vil- lages, for conducting and distributing electricity, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe. Any electric light company in any town or village in this state having a contract with any town or incorporated village for the light- ing of streets, parks, squares or public buildings in any town or village, 292 Transportation Corporations Law. shall have the right and is hereby vested with the power and authority to acquire such real estate as may be necessary for the purposes of its incorporation, or acquire the right of way through any property in the same manner as is now vested by law in water-works companies. Such real estate or right of way shall be acquired in the manner and form prescribed by the general condemnation law of this state. 3. Subject to the permission and approval of the proper public service commission, any two or more corporations organized under this article or under any general or special law of the state for the purpose of carrying on any business which a corporation organized under this article might carry on, may consolidate such corporations into a single corporation [by], and any such corporation may with the like permission and approval be merged with any other such cor- poration, upon complying with the provisions of the business corpora- tions law relating to the consolidation of business corporations [.], and the stock corporation law relating to ane merger of stock cor- porations. 4, Any corporation organized under this article or under any general or special law of this state for the purpose of using electricity for light, heat or power in cities, other than of the first class, towns or villages within this state, may have and acquire the following addi- tional powers, to wit: the power of supplying steam to consumers from a central station or stations through pipes laid in the public streets of the cities, towns and villages within this state, and for that purpose to lay, construct and maintain suitable pipes and Conduits or other fixtures in, on and under the streets, avenues, public parks and places of such cities, towns or villages, with the consent of the municipal authorities thereof, and under such reasonable regulations as they may prescribe. For the purpose of acquiring the powers above specified any such corporation may make, sign, acknowledge and file in the same manner as an original or amended certificate of incorpora- tion, a certificate stating that such corporation desires and intends to exercise the powers hereinbefore specified. Upon the making, signing, acknowledging and filing such certificate, such corporation shall have and acquire for the purposes specified in such certificate all the rights, privileges and powers, and be subject to all the restrictions of district steam corporations, specified in sections twelve, thirteen and fourteen of the business corporations law. “MunicipaL AUTHORITIDS.’"—The term “Municipal Authorities" as used in subd. 2, in New York City, was held in People ex rel. W. 8. Bl. Co. y. Consolidated T. & EB. 8. Co., 187 N. Y. 58, to be the board of aldermen, and not the board of electrical control. 293 TransportTaTion Corporations Law. § 62. Gas and electric light must be supplied on application. Upon the application, in writing, of the owner or occupant of any building or premises within one hundred feet of any main laid down by any gas light corporation, or the wires of any electric light corpora- tion, and payment by him of all money due from him to the corpora- tion, the corporation shall supply gas or electric light as may be re- quired for lighting such building or premises, notwithstanding there be rent or compensation in arrears for gas or electric light supplied, or for meter, wire, pipe or fittings, furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of such arrears, and shall refuse or neglect to pay the same; and if for the space of ten days after such application, and the deposit of a reasonable sum as provided in the next section, if required, the cor- poration shall refuse or neglect to supply gas or electric light as required, such corporation shall forfeit and pay to the applicant the sum of ten dollars, and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue; pro- vided that no such corporation shall be required to lay service pipes or wires for the purpose of supplying gas or electric light to any ap- plicant where the ground in which such pipe or wire is required to be laid shall be frozen, or shall otherwise present serious obstacles to laying the same; nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay the cost of his portion of the pipe or wire required to be laid, and the expense of laying such portion. This was sec. 65 of the former Trans. Corp. L. Form oF APPLICATION.—No form of application is prescribed by the statute, and therefore one which fairly and plainly states the service required without ambiguity and with reasonable certainty should be deemed sufficient. Bennett vy. Eastchester Gaslight Co., 54 App. Div. 74, 66 N. Y. Supp. 292; Andrews vy. North River El. L. & T. Co., 24 Misc. 671, 53 N. Y. Supp. 810. An application stating “that I ................ do hereby make application to you to have you supply my offices, numbers 706, 708 Granite Building, with gas for lighting said offices ........ and that I am prepared and hereby offer to comply with any requirements of your company under the statutes of the state,” is suffi- cient. Jones v. Rochester Gas & El. Co., 7 App. Div. 465, 39 N. Y. Supp. 1105. But a notice for electric current which does not specify the number of lights and quantity of power desired, is insufficient; technical specifications, however, are not required. Andrews vy. North River El. L. & P., supra. SERvICH OF APPLICATION.—The service of an application for gas at the gas office by leaving the same with a man who was at work behind a desk in the office and to whom previous applications have been made, is notice to the company. Jones v. Rochester Gas & El. Co., 7 App. Div. 465, 39 N. Y. Supp. 1105, DISTANCE FROM MAIN OR Wrrps.—The 100 feet referred to in the statute is to be measured from the gas main to the nearest portion of the building occupied, and not to the portion where the gas is to be used. Jones v. Rochester Gas & El. Co., 7 App. Div. 465, 39 N. Y. Supp. 1105. It is essential that the main or wires so located be the source of supply for the purpose for which the application is made. Thus, an applicant is not encitled 294 TRANSPORTATION Corporations Law, to enforce the penalty because electric wires used for lighting the street but which cannot be used for lighting dwellings, run within 100 feet of his house. Moore v. Champlain El. Co., 88 App. Div. 289, 85 N. Y. Supp. 87. SprpaRATn Mprprs.—A gas company is not bound to furnish a separate gas meter for each floor of a house, unless the floors contain separate service pipes. Ferguson v, Metropolitan Gaslight Co., 37 How. Pr. 189. DEBTS OF FORMER OccupantT.—A gas company has no right to cut off the gas because of arrears owing by a former occupant of the premises. Morey v. Metro- politan Gaslight Co., 6 J. & S. 185. CONSENT TO REMOVAL OF METER.—A consent to the removal of a gas meter pending the settlement of a dispute over a gas bill, is no bar to an application under this section for a return of the supply. Jones v. Gas & Hl. Co., 7 App. Div. 474, 39 N. Y. Supp. 1110, aff'd 158 N. Y. 678 mem. MANDAMUS.—Mandamus will lie to compel a gas company to supply gas at the rate fixed by the legislature. Richman v. Consolidated Gas Co., 114 App. Div. 216, 100 N. Y. Supp. 81, aff'd 186 N. Y. 209. REGULATION AS TO PRicH.—It is within the power of the legislature to fix the maximum price of gas or electricity. Brooklyn Union Gas Co. y. New York, 50 Misc. 450, 100 N. Y. Supp. 570. When the rate is so fixed, the company is authorized to charge up to the maximum named. Brooklyn Union Gas Co. v. New York, 50 Misc. 450, 100 N. Y. Supp. 570, and cases cited. And the rate thus fixed will be deemed to be reasonable, and one purchasing gas is precluded from contesting the question of the reasonableness of the price. Brooklyn Union Gas Co. v. New York, 188 N. Y. 334 (illuminating gas). MINIMUM CHaRGE.—Payment of a minimum monthly charge may be exacted by an electric light company as a condition precedent to the company’s making the necessary ‘connections. Gould y. Edison El. Ill. Co., 29 Mise. 241, 60 N. Y. Supp. 559. ENFORCEMENT OF PHNALTY.—Payment of a penalty cannot be enforced under this section unless its requirements are strictly followed; an allegation in the complaint that the defendant waived written application is fatally defective. Shelly v. Westchester L. Co., 55 Misc. 105, 105 N. Y. Supp. 133. The statute is intended to cover not only the case of a refusal to begin to supply gas after a written request, but also a case where the supply has been cut off after it has been once commenced. Hoch y. Brooklyn Borough Gas Co., 117 App. Div. 882, 103 N. Y. Supp. 370. A written application is required before bringing an action to recover the statutory penalty, where, pursuant to an oral application the gas company installed a meter and supplied the consumer for a few days, but subsequently without reason cut off the supply and removed the meter. Shelly v. Westchester L. Co., 119 App. Div. 61, 103 N. Y. Supp. 951; see, also, 55 Mise. 105, 105 N. Y. Supp. 183. A long delay (450 days) in bringing an action for the penalty imposed may defeat recovery; the purpose of the statute is to satisfy a desire for gas and not for money. Shelly v. Westchester L. Co., 119 App. Div. 61, 103 N. Y¥. Supp. 951. The defendant in an action to recover a penalty for failure to supply plaintiff with gas, is not relieved from liability by the fact that the latter obtained gas by an arrangement with one of its tenants who was a customer of the defendant, since under such circumstances the gas cannot be considered as having been supplied by the defendant. Jones y. Rochester Gas & El. Co., 168 N. Y. 65. The statutory penalty, though continuous, is single and but one recovery can be had; after bringing an action an applicant is not entitled to maintain another without making a new application to set a new default in motion: this course would appraise the gas company that the applicant is still desirous of recelving gas and notice that a further refusal would be at its peril. Jones v. Rochester Gas & El. Co., 168 N. ¥. 65. ' WHar COMPLAINT LiaBLE.—A corporation authorized to bore, drill and dig for natural gas and distribute the same in pipes, selling it to customers, is not a “gas light company” within the meaning of this section, and so not subject to the penalties imposed. Wilson v. Tennent, 61 App Div. 100, 70 N. Y. Supp. 2, aff'd 179 N. Y. 546 mem. ' 295 TRANSPORTATION Corporations Law. § 63. Deposit of money may be required. Every gas light and electric light corporation may require every person to whom such corporation shall supply gas or electric light for lighting any building, room or premises to deposit with such corpora- tion a reasonable sum of money according to the number and size of lights used or required, or proposed to be used, for two calendar months, by such person, and the quantity of gas and electric light necessary to supply the same, as security for the payment of the gas and electric light rent or compensation for gas consumed, or rent of pipe or wire and fixtures, to become due to the corporation, but every corporation shall allow and pay to every such depositor legal interest on the sum deposited for the time his deposit shall remain with the corporation. This was sec. 66 of the former Trans, Corp. L. RPASONABLENESS OF Dpposit.—The sum of $5 has been held to be a reason- able deposit. Pallits v. Consolidated Gas Co., 118 App. Div. 92, 102 N. Y. Supp. 1017. The question as to the reasonableness of the deposit required is for the jury, where the same deposit has always been required. Bennett vy. Hastchester Gas- light Co., 40 App. Div. 169, 57 N. Y. Supp. 847. The burden of proof rests upon the applicant for gas to show the unreason- ableness of the deposit required by the gas company. Bennett v. E'astchester Gas- light Co., 40 App. Div. 169, 57 N. Y. Supp. 847. INJUNCTION.—A consumer who refuses to make the required deposit cannot restrain a gas company from refusing to supply him. Pollits v. Consolidated Gas Co., 118 App. Div. 92, 102 N. Y. Supp. 1017. § 64. Buildings may be entered for the examination of meters, pipes, fittings, wires and works. Any officer or other agent of any gas light or electric light corpora- tion, for that purpose duly appointed and authorized by the corpora- tion, may, at all reasonable times, upon exhibiting a written authority, signed by the president and secretary of the corporation, enter any dwelling, store, building, room or place lighted with gas or electric light supplied by such corporation, for the purpose of inspecting and examining the meters, pipes, fittings, wires and works for supplying or regulating the supply of gas or electric light and of ascertaining the quantity of gas or electric light consumed or supplied, and if any person shall, at any time, directly or indirectly, prevent or hinder any such officer or agent from so entering any such premises, or from making such inspection or examination at any reasonable time, he shall, for every such offense, forfeit to the corporation twenty-five dollars. This was sec. 67 of the former Trans. Corp. L. TRESPASS.—An abuse of the right of entry given by this section by breaking open a door to remove a gas meter may render the company Hable for trespass. Reed v. New York & R. Gas Co., 93 App. Div. 453, 87 N. Y. Supp. 810. But in the case of a technical trespass only, by an entry without permission to change an old meter for a new one, a plaintiff 1s entitled to nominal damages 296 TRANSPORTATION Corporations Law. only. Fortescue v. Kings Co. Lighting Co., 128 App. Div. 826, 112 N. Y. Supp. 1010. § 65. Refusal or neglect to pay rent. If any person supplied with gas or electric light by any such cor- poration shall neglect or refuse to pay the rent or remuneration due for the same or for the wires, pipes or fittings let by the corporation, for supplying or using such gas or electric light or for ascertaining the quantity consumed or used as required by his contract with the corporation, or shall refuse or neglect, after being required so to do, to make the deposit required, such corporation may prevent the gas or electric light from entering the premises of such person; and their officers, agents or workmen may enter into or upon any such premises between the hours of eight o’clock in the forenoon-and six o’clock in the afternoon, and separate and carry away any meter, pipe, fittings, wires or other property of the corporation, and may disconnect any meter, pipe, fittings, wires or other works whether the property of the corporation or not, from the mains, pipes or wires of the corpora- tion. This was sec. 68 of the former Trans. Corp. L. Deposit as DiscHaRGING BiLu.—Under this section, a gas company is not prohibited from cutting off the supply of gas for failure to pay rent until the amount of the deposit has been used up by charges for gas. Hewsey v. Queens Borough Gas & El. Co., 47 Misc. 375, 93 N. Y¥. Supp. 1114. RmADING OF MerteR.—A meter is not conclusive evidence of the quantity of gas consumed. Tarrytown & I. U. G. Co, v. Bird, 19 N. Y¥. Supp. 988; Sickles v. Gaslight Co., 64 How. Pr. 33. § 66. No rent for meters to be charged. No gas light corporation in this state shall charge or collect rent on its gas meters, either in a direct or indirect manner, and any person, party or corporation violating this provision shall be liable to a penalty of fifty dollars for each offense, to be sued for and recovered in the corporate name of the city or village where the violation occurs, in any court having jurisdiction, and when collected to be paid into the treasury of such city or village and to constitute a part of the con- tingent or general fund thereof. \ This was sec. 69 of the former Trans. Corp. L. Pouich REeGULATION.—This section is valid as a police regulation, and is not unconstitutional on the ground that it confiscates property without due process of law. Buffalo y. Buffalo Gas Co., 81 App. Div. 505, 80 N. Y. Supp. 1093. RENTAL.—A service charge for gas based on meter capacities violates this sec- tion on the ground that the charge is for rentals. Buffalo vy. Buffalo Gas Co., 81 App. Div. 505, 80 N. Y. Supp. 1093. . 297 Transportation Corporations Law. ARTICLE 8. WATER-WORKS CORPORATIONS. SECTION 80. Incorporation. 81. Must supply water; contracts with municipalities. 82. Powers. 83. Survey and map. 84. Condemnation of real property. 85. Corporation may contract with other cities, towns or villages; amended certificate. § 80. Incorporation. Seven or more persons may become a corporation for the purpose of supplying water to any of the cities, towns or villages and the in- habitants thereof in this state, by executing, acknowledging and filing a certificate stating the name of the corporation, the amount of its capital stock, the number of shares into which it is to be divided, the location of its principal office, the number of its directors, not less than seven, the names and places of residence of the directors for the first year, the names of the cities, towns and villages which it is proposed to supply with water; that the permit of the authorities of such cities, towns and villages herein required has been granted; the post-office address of each subscriber, and the number of shares he agrees to take in such corporation, the aggregate of which shall be at least one-tenth of the capital stock, and ten per centum of which shall be paid in cash to the directors. At the time of filing there shall be annexed to the certificate and as a part thereof, a permit, signed and acknowledged by a majority of the board of trustees of the village, in case an incorporated village is to be supplied with water, and in case a town, or any part thereof, not within an incorporated village, is to be so supplied, by the supervisor, justice of the peace, town clerk and highway commissioners thereof or a majority of them, and in case a city is to be supplied with water, by the board of water commis- sioners of said city, or by such other board or set of officials as per- form the duties of water commissioners and have charge of the water supply for said city, authorizing the formation of such corporation for the purpose of supplying such city, village or town with water, and an affidavit of at least three of the directors that the amount of capital stock herein required has been subscribed and paid in cash. As amended by L. 1892, ch. 617, sec. 1. With reference to Incorporators, Certificate, Amended Certificate, Name, 298 TRANSPORTATION CorproraTions Law. Amount of Stock, Place of Business, Duration of Existence, Htbsetiee Filing, Cer- tificate, Organization Tax, and Fees, see annotation under Business Corp. Law, sec. 2. As to Amended Certificate, see, also, sec. 85, post. With reference to the formation of corporations for the purpose of accumu- lating, storing or supplying water for domestic, manufacturing or municipal pur- poses, see Gen. Corp. Law, sec. 15, and annotation, CONSENT OF VILLAGE BoarpD.—This section does not permit a company organ- ized for the purpose of supplying water to u village to tear up the streets to con- struct the water system without authority from the village board. Bolivar vy. Bolivar W. Co., 62 App. Div. 484, 70 N. Y. Supp. 750. See, also, the provisions of the Village Law. § 81. Must supply water; contracts with municipalities. Every such corporation shall supply the authorities or any of the inhabitants of any city, town or village through which the conduits or mains of such corporation may pass, or wherein such corporations may have organized, with pure and wholesome water at reasonable rates and cost, and the board of trustees of any incorporated village and the water commissioners or other board or officials performing the duties of water commissioners, and having charge of the water sup- plies of any city of this state, shall have the power to contract in the name and behalf of the municipal corporation of which they are offi- cers, for the term of one year or more for the delivery by such com- pany to the village or city, of water through hydrants or otherwise, for the extinguishment of fires and for sanitary and other public purposes; and the amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such village or city, and shall be levied, assessed and collected in the same manner as other expenses of the village or city are raised, and when collected shall be kept separate from other funds of the village or city, and be paid over to such corporation by such trustees or city officials, according to the terms and conditions of any such contract; and any such contract en- tered into by the board of trustees of any village, or by water commis- sioners or other board performing the duties of water commissioners and having charge of the water supply of any city, shall be valid and binding upon such village or city, but no such contract shall be made for a longer period than ten years nor for a sum exceeding in the aggregate, two and one-half mills for every dollar of the taxable prop- erty of such village or city, per annum, except upon a petition of a majority of the taxable inhabitants of any such village or city, o1 portion thereof, which it is proposed to supply with pure and whole- some water, unless a resolution authorizing the same has been sub- mitted to a vote of the electors of the village or city, in the manner provided by the village law or city charter, and approved by a majority of the voters entitled to vote and voting on such question at any annual election or special election duly called; and any board of 299 TRANSPORTATION Corporations Law. trustees or board of water commissioners or other city officials, when so authorized, may make such contract for a term not exceeding thirty years, and the amount of such contract shall be paid in semi-annual instalments. The town board of any town may establish a water sup- ply district in such town outside of a city or incorporated village therein, by filing a certificate describing the bounds thereof, in the office of the town clerk; and may contract in the name of the town for the delivery, by a corporation, subject to the provisions of this article, of a supply of water for fire, sanitary or other public purposes, to such districts, and the whole town shall be bound by such contract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable property within such water supply district. Such money, when collected, shall be kept as a separate fund and be paid over to such corporation by the supervisor of the town, according to the terms and conditions of any such contract. No such contract shall be made for a longer period than five years, nor for an annual expense exceeding three mills upon each dollar of the taxable property within such water supply district, provided, however, that where the population of the water supply district does not exceed one thousand inhabitants such contract may be made for a period not longer than ten years. As amended by L. 1892, ch. 617, sec. 2; L. 1893, ch. 549, sec. 1; L. 1894, ch. 230, sec. 1; L. 1896, ch. 678, sec. 1, and L. 1907, ch. 629, sec. 1. LAYING MAINS THROUGH INTERVENING MUNICIPALIFY.—The first part of this section does not authorize a water company whose mains extend through an inter- vening municipality to supply inhabitants of such adjoining municipality unless the required consent has been obtained from the authorities. Rochester v. Rochester & L. O. W. Co., 189 N. Y. 8238. (In this instance the water mains extended along a railroad right of way through the city of Rochester.) But this part of the section contemplates an intervening municipality either having no water supply or an insufficient one, and desirous of obtaining a supply from a company using its territory as a route of access to other municipalities which it intends to furnish. By offering a permit to such company it would become its duty, enforceable by legal procedure, to furnish water to such intervening municipality and its inhabitants on reasonable terms. Rochester v. Rochester & L. O. W. Co., 189 N. Y. 323. On the other hand, a company which has been authorized to build its mains through a city to conduct water to adjoining towns, may, without the consent of the city, supply a railroad company along whose right of way the mains extend, with water for use within the city under private contract. Rochester y. Rochester & L. O. W. Co., 189 N. Y. 323. Deposit.—A water company is not bound to sell water’ on credit, but may require a deposit. People ex rel. Brush vy. New York S. W. Co., 38 App. Div, 413, 56 N. Y. Supp. 364. AGREBMENT AS TO PRicE.—As to the rights of individual consumers as affected by an agreement between a city and a water company fixing the maximum and minimum price, see Mt. Vernon v. New York I. W. Co., 115 App. Div. 658, 101 N. Y. Supp. 282, and Rogers Park Co. v. Fergus, 178 Ill. 571. A change in the source of supply does not affect the duty of a water company under its franchise and contract to supply a village. People ex rel. Pelham Manor v. New Rochelle W. Co., 119 App. Div. 472, 104 N. Y. Supp. 92. 300 TRANSPORTATION CorPoraTions Law. Town Water SuprpLty.—This section does not authorize a town, all of which is In a water district, to contract for a supply for a portion only of the town. People ex rel. Tupper Lake W. Co. v. Sisson, 75 App. Div. 1388, 77 N. Y. Supp. 376, aff'd 173 N. Y. 606 mem. A water company contracting with a town board to supply the town with water under the provisions of this section, is bound, at its peril, to know the limitations upon the authority of the board. People ex rel. Tupper L. W. Co. v. Ssison, 75 App. Div. 138, 77 N. Y. Supp. 392, aff’d 173 N. Y. 606 mem. See, also, Woodside Water Co. v. Long Island City, 23 App. Div. 78, 48 N. Y. Supp. 686, aff'd 159 N. Y. 558 mem. MANDAMUS.—Mandamus is the appropriate remedy to compel a water com- pany to supply water to an inhabitant of a village. Peeople ex rel. McGrath v. Green Island W. Co., 56 Hun 76, 9 N. Y. Supp. 168. And to supply pure water. People ex rel, Brush vy. New York S. W. Co., 38 App. Div. 413, 56 N. Y. Supp. 364. And to furnish water at reasonable rates. People ex rel. Brush vy. New York S. W. Co., supra. § 82. Powers. Every such corporation shall have the following additional powers: 1. To lay and maintain its pipes and hydrants for delivering and distributing water in any street, highway or public place of any city, town or village in which it has obtained the permit required by sec- tion eighty of this article. 2. To lay its water pipes in any streets or avenues or public places of an adjoining city, town or village, to the city, town or village where such permit has been obtained, provided that such right in an adjoin- ing city or village having a population of more than twelve thousand inhabitants shall be subject to the permission of the local authorities thereof and upon such conditions as they may prescribe. 3. To cause such examinations and surveys for its proposed water- works to be made as may be necessary to determine the proper loca- tion thereof, and for such purpose by its officers, agents or servants to enter upon any lands or waters in the city, town or village where or- ganized, or in any adjoining city, town or village for the purpose of making such examinations or surveys, subject to liability for all damages done. As amended by L. 1892, ch. 617, sec. 3; L. 1905, ch. 210, sec. 1; and L. 1906, ch. 455, sec. 1. The provision in subd. 2 that the right shall be subject to the permission of the local authorities and upon such conditions as they may prescribe, was added by the amendment of 1905. Laying MAIns THROUGH INTERVENING MUNICIPALITINS.—The purpose of sub- division 2 of this section is to prohibit one municipality which happens to be more favorably situated than another, from preventing the latter’s obtaining water when it is necessary for its supply to pass through such adjoining municipality. Pelham Manor v. New Rochelle Water Co., 143 N. Y¥. 532; Rochester & L. O. W. Co. v. Rochester, 176 N. Y. 86; Rochester v. Rochester & L. O. W. Co., 189 N. Y. 323. A water company supplying a village with water may use one of the streets of an adjoining village for the purpose of connecting two mains, thus completing the circuit, increasing the pressure and enabling the inhabitants to have running water instead of stagnant water. Pelham Manor y. New Rochelle Water Co., 143 N. ¥. 532. An intervening municipality cannot prevent a water company from laying its mains through its territory for the reason that it may possibly become a competitor 301 TRANSPORTATION CoRPoRATIONS Law. of the city in supplying water to consumers. Rochester & L. O. W. Co. v. Rochester, 176 N. Y. 36. PErRMIT.—On the power of a water company, whose rights have become vested, to lay its main along a railroad right of way extending through a city without first obtaining the city’s consent, see Rochester & L. O. W. Co. 176 N. Y. 36. § 83. Survey and map. Before entering upon, taking or using any land, for the purposes of its incorporation such corporation shall cause a survey and map to be made of the lands intended to be taken or entered upon, by and on which the land of each owner or occupant shall be designated, which map shall be signed by the president and secretary, and filed in the office of the county clerk of the county in which such lands are situ- ated. FaiLturE To Fitp—A failure to make and file a map and survey entitles a landowneer to dismiss the proceedings. Matter of Citizens’ Waterworks Co., 82 App. Div. 54, 52 N. Y. Supp. 473. § 84. Condemnation of real property. Any corporation organized under this article, shall have the right to acquire rea] estate, or any interest therein necessary for the pur- poses of its incorporation, and the right to lay, relay, repair and main- tain conduits and water pipes with connections and fixtures, in, through or over the lands of others, the right to intercept and divert the flow of waters from the lands of riparian owners, and from persons owning or interested in any waters, and the right to prevent the flow of drainage of noxious or impure matters from the lands of others into its reservoirs or sources of supply. If any such corporation, which has made a contract with any city, town or village or with any of the inhabitants thereof for the supply of pure and wholesome water as authorized by section eighty-one of this article, shall be unable to agree upon the terms of pugchase of any such property or rights, it may acquire the same by condemnation. But no such corporation shall have power to take or use water from any of the canals of this state, or any canal reservoirs as feeders, or any streams which have been taken by the state for the purpose of supplying the canals with water. As amended by L. 1892, ch. 617, sec. 4, and L. 1894, ch. 230, sec. 2. § 85. Corporation may contract with other cities, towns or villages; amended certificate. When any such corporation has entered into a contract with the authorities of any city, town or village not mentioned in its certifi- cate of incorporation, but situated in the same county as the city, towns or villages mentioned therein or an adjoining county, to supply it with pure and wholesome water, it may file an amended certificate, stating the name of such other city, town or village to be so supplied 302 TRANSPORTATION CorpoRATIons Law. with water, and it may thereupon supply any such city, town or vil- lage with water in the same manner and with the same rights and sub- ject to the same requirements as if it had been named in the original certificate of incorporation. As amended by L. 1892, ch. 617, sec. 5. AMENDED CHERTIFICATH.—As to amended certificate of incorporation, see Gen. Corp. Law, sec. 7, and annotation. ARTICLE 9. TELEGRAPH AND TELEPHONE CORPORATIONS. Section 100. Incorporation. 101. Extension of lines. 102. Construction of lines. 103. Transmission of dispatches. 104. Consolidation of, corporations. 105. Special policemen. 106. Application of article. § 100. Incorporation. Seven or more persons may become a corporation for the purpose of constructing, owning, using and maintaining a line or lines of electric telegraph or telephone, wholly within or partly beyond the limits of this state, or for the purpose of owning any interest in any such line or lines, or any grants therefor by executing, acknowledging and filing a certificate, stating the name of the corporation; its general route and the points to be connected ; its capital stock; the number of shares into which it is to be divided; the term of its existence; the number of its directors not less than seven; the names and residences of the di- rectors for the first year, and the post-office addresses of the subscribers and the number of shares which each agrees to take in such corpo- ration. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Existence, Directors, Filing Cer- tificate, Organization Tax, and Fees, see annotation under Business Corp. Law, sec. 2. ‘ § 101. Extension of lines. Any such corporation may construct, own, use and maintain any line of electric telegraph or telephone, not described in its original certificate of incorporation, whether wholly within or wholly or partly beyond the limits of this state, and may join with any other corporation in constructing, leasing, owning, using and maintaining such line, or hold or own any interest therein, or become lessees 303 TRANSPORTATION CoRPORATIONS Law. thereof, upon filing in the same manner as the original certificate is required to be filed an amended certificate, executed and acknowl- edged by at least two-thirds of the directors of such corporation, de- scribing the general route of such line or lines, and designating the extreme points connected thereby, and upon procuring the written consent of the persons owning at least two-thirds of the capital stock of such corporation, and such amended certificate shall not be filed until there is indorsed thereon or annexed thereto an affidavit made by at least three of the directors of the corporation that such consent has been obtained, which affidavit shall be filed with and be a part of such certificate. § 102. Construction of lines. Such corporation may erect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways; and through, across or under any of the waters within the limits of this state, and upon, through or over any other land, subject to the right of the owners thereof to full compensation for the same. If any such corporation can not agree with such owner or owners upon the compensation to be paid therefor, such compensa- tion shall be ascertained in the manner provided in the condemnation law. Any company or companies organized and incorporated under the laws of this state for the purpose of owning, constructing, using and maintaining a line or lines of electric telegraph within this state or partly within and partly beyond the limits of this state, are hereby authorized, from time to time, to construct and lay lines of electrical conductors under ground in any city, village or town within the limits of this state, subject to all the provisions of law in reference to such companies not inconsistent with this section; provided that such company shall, before laying any such line in any city, village or town of this state, first obtain from the common council of cities, the trustees of villages, or the commissioners of highways of towns, per- mission to use the streets within such city, village or town for the pur- poses herein set forth. Nothing herein contained shall be so construed as in any way to limit, alter, or affect the provisions or powers re- lating or granted to telegraph companies heretofore created by special act of the legislature of this state, except in so far as to confer on any such company the right to lay electrical conductors under ground. L. 1881, ch. 483, secs. 1, 2, added. MUNICIPAL CONTROL OVER, CONSTRUCTION oF Linws.—In the exercise of its police power the legislature may regulate the use of the streets of a city, and may prohibit their use for any purpose inconsistent with general street purposes: it may also authorize their use for public purposes not inconsistent with their use as streets. Of this power over streets for public purposes the legislature cannot 304 TRANSPORTATION Corporations Law. divest itself; but it has no other authority over them. American R. Telegraph Co. v. Hess, 125 N. Y. 641. By the enactment of this section the legislature, in effect, determined that the erection of poles and stringing of wires,is a public use, not inconsistent with the use of the streets for general street purposes.. American Rapid Telegraph Co. vy. Hess, 125 N. Y. 641. The Transportation Corporations Law seems to contain no restrictions or limitations upon the right of telephone companies to use the public streets and waters of the state; but most of the cities and villages have enacted regulations on the subject, pursuant to authority from the legislature. Rochester Telephone Co. v. Ross, 125 App. Div. 76, 109 N. ¥. Supp. 381. See the provisions of the Village Law. In absence of a delegation of power to cities and villages in regard to the construction, maintenance and control of telegraph and telephone corporations within their borders, these municipalities cannot exercise authority. Carthage v. Central N. Y. Tel. Co., 185 N. Y. 448; Barhite vy. Home Telephone Co., 50 App. Div. 25, 63 N. Y. Supp. 659. Telephone companies acquire their right to use the public easements in streets directly from the legislature, but subject to police regulation by the municipal authorities, exercised under authority from the legislature. Gannet v. Independent Telephone Co., 55 Mise. 555, 106 N. Y. Supp. 5; Carthage v. Central Telephone & T. Co., 185 N. Y. 448; Utica v. Utica Telephone Co., 24 App. Div. 361, 48 N. Y. Supp. 916; New Union Telephone Co. v. Marsh, 96 App. Div. 122, 89 N. Y. Supp. 79; Rochester v. Bell Tel. Co., 52 App. Div. 6, 64 N. Y. Supp. 804; Barhite v. Home Telephone Co., 50 App. Div. 25, 63 N. Y. Supp. 659. The enactment of the Transportation Corporations Law did not repeal the provisions of the city charter of Jamestown regulating the setting of telephone poles and stringing wires in the city. Jamestown v. Home Telephone Co., 125 App. Div. 1, 109 N. Y. Supp. 297. In absence of direct authority from the legislature, a village has no power to compel a telephone company to place the extension of its existing lines in under- ground conduits. Carthage y. Central N. Y. Tel. Co., 185 N. Y¥. 448. In this case the court called attention to difference between the language used in the Trans- portation Corporations Law, and that used in the Village Law; in the above section the words ‘upon, over or under any of the public roads” are used, while the Village Law permits a village to regulate the erection or stringing of wires ‘‘in, over or upon” the streets. It is therefore apparent that the state did not see fit to surrender its power to determine whether the wires should be strung overhead or placed underground, according to the varying judgments of the different local boards. But, in Rochester v. Bell Telephone Co., 52 App. Div. 6, 64 N. Y. Supp. 804, the court held that « city may, in exercise of its public power, require a telephone company to place its wires in a conduit beneath the street. See, also, American R. Telephone Co. v. Hess, 125 N. Y. 641; Geneva v. Geneva Tel. Co., 30 Misc. 236, 62 N. Y. Supp. 172. A village may regulate the erection of the poles, by indicating the location. Carthage v. Central N. Y. Tel. Co., 185 N. Y. 448; New Union Telephone Co. v. Marsh, 96 App. Div. 122, 89 N. Y. Supp. 79. It is not unreasonable for the trustees of a village to require a telephone com- pany to file a map with them showing where it desires to locate its poles and wires, before passing an ordinance regulating their erection. People v. Board of Trustees, 35 Misc. 675, 72 N. Y. Supp. 350. CONDDMNATION PROCEEDINGS.—Under this section a telephone company may take proceedings to condemn the right to place its poles and wires in the street in front of an owner’s property; but it will be permitted to acquire only an ease- ment for that purpose. New Union Telephone Co. vy. Marsh, 96 App. Div. 122, 89 N. ¥. Supp. 79. MaNnDAMUS.—On mandamus to compel the trustees of a village to exercise their discretion as to the location of telephone poles in the streets of a village, see People v. Board of Trustees, 35 Misc. 675, 72 N. Y. Supp. 350. § 103. Transmission of dispatches. Every such corporation shall receive dispatches from and for 305 TRANSPORTATION Corporations Law. other telegraph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such dispatch and entitled to have the same so transmit- ted, but arrangements may be made with the proprietors or publishers of newspapers for the transmission for publication of intelligence of general and public interest out of its regular order. PENALTY.—The statute does not impose penalties for errors of judgment on the part of the operators, for defective instruments or misunderstandings, but sole for refusal to transmit dispatches with impartiality, good falth and in the order of their reception. Gifford v. Glen Telephone Co., 54 Misc. 468, 106 N. Y. Supp. 53. This statute, belng penal in character, must be strictly construed. The ac- ceptance of a message for transmission ‘“ subject to delay” will not render the company Hable under this section, where the sender knew of the existence of a strike among the company’s operators. Petze v. Western Union Teleg. Co., 128 App. Div. 192, 112 N. Y. Supp. 516. The refusal of a telephone operator to make the necessary connections, because she did not hear the coin register in the box beside the telephone instrument, will not subject the company to a penalty. Gifford v. Glen Telephone Co., 54 Misc. 468, 106 N. Y. Supp. 53. A telegraph company is not liable for the penalty by unintentionally omitting a word in telephoning the message to the sendee of a telegram. Wishelman v. Western U. Teleg. Co., 30 Mise. 450, 62 N. Y. Supp. 491. The penalty cannot be recovered by the addressee of a telegram. Thompson y. Western U. Teleg. Co., 40 Misc. 443, 82 N. Y. Supp. 675. Mere delay in transmission does not render the company liable for the penalty, although the sender paid extra to have the message repeated. Hearn y. Western U. Teleg. Co., 36 Mise. 557, 73 N. Y. Supp. 1077. Manpamus.—Mandamus will not lie under this section to compel one telephone company to install a telephone in the office of another company doing business in a part of its territory. The remedy is by action for the penalty provided, or for damages. Matter of Baldwinsville Telephone Co., 24 Misc. 221, 53 N. Y. Supp. 574; People ex rel. Oneida Telephone Co. v. Central N. Y. T. Co., 41 App. Div. 17, 58 N. Y. Supp. 221. § 104. Consolidation of corporations. Any corporation organized under this article may lease, sell or convey its property, rights, privileges and franchises, or any interest therein, or any part thereof to any telegraph or telephone corporation organized under or created by the laws of this or any other state, and may acquire by purchase, lease or conveyance the property rights, privileges and franchises, or any interest therein or part thereof of any such corporation, and may make payments therefor in its own stock, money or property, or receive payment therefor in the stock, money or property of the corporation to which the same may be so sold, leased or conveyed, but no such lease, sale, purchase or conveyance shall be valid until it shall have been ratified and approved by a 306 TRANSPORTATION Corporations Law. three-fifths vote of its board of directors or trustees, and by the vote or written consent of stockholders owning at least three-fifths of the capital stock given at a meeting of all the stockholders duly called for that purpose. § 105. Special policemen. The police department or board of police of any city may, in addition to the police force now authorized by law, appoint a number of persons, not exceeding two hundred, who may be designated by any corporation operating a system of signaling by telegraph to a central office for police assistance, to act as special patrolmen in connection with such telegraphic system. And the persons so appointed shall, in and about such service, have all the powers possessed by the members of the regular force, except as they may be limited by and subject to the supervision and control of the police department or board of police of such city. No person shall be appointed such special policeman who does not possess the qualifica- tions required by such police department or board of police for such special service; and persons so appointed shall be subject, in case of emergency, to do duty as part of the regular police force of the city. The police department or board of police shall have power to revoke any such appointment at any time, and every person appointed shall wear a badge and uniform, to be furnished by such corporation and approved by the police department or board of police; such uniform shall be designated at the time of the first appointment and shall be the permanent uniform to be worn by such special police, and the pay of such special patrolmen and all expenses connected with their service shall be wholly paid by such corporation, and no expense or liability shall at any time be incurred or paid by the police depart- ment or board of police of any city, for or by reason of the services vi such persons so appointed. § 106. Application of article. The provisions of this article shall apply to corporations for the generation and distribution of music electrically; and such corpora- tions shall possess the powers and be subject to all the duties granted to or imposed upon telegraph and telephone companies thereby except that such corporations shall not have or exercise the right of con- demnation. 307 TransporTaTION Corporations Law. ARTICLE 10. TURNPIKE, PLANK-ROAD AND BRIDGE CORPORATIONS. SECTION 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 1382. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148, 149. 150. 151. 152. Incorporation. Restrictions upon location of road. Agreement for use of highway. Application to board of supervisors. Commissioners to lay out road. Possession of and title to real estate. Use of turnpike road by plank-road. Width and construction of road. Construction of bridges ; obstruction of rafts prohibited. Certificate of completion of road or bridge. Gates, rates of toll; and exemptions. Toll-gatherers. Penalty for running a gate. Location of gates and change thereof. Inspectors; their powers and duties, Change of route; extensions and branches. Mile-stones, guide-posts and hoist-gates. Location of office of corporation. Consolidation of corporations ; sale of franchise. Sale of rights, franchises and property to the county. Surrender of road. Taxation and exemption. Hauling logs and timber. Encroachment of fences. Penalty for fast driving over bridges. Acts of directors prohibited. Actions for penalties. Proof of incorporation. When stockholders to be directors. Dissolution of corporation ; road to be a highway. Town must pay for lands not originally a highway. Highway labor upon line of plank-road or turnpike. ‘Extension of corporate existence. 8 120. Incorporation. Five or more persons may become a corporation for the purpose of constructing, maintaining, and owning a turnpike, plank-road or a 308 TRANSPORTATION Corporations Law. bridge, or causeway across any stream or channel of water, or adjoining bay, swamp, marsh, or water to form in connection with such bridge or causeway a continuous roadway across the same, by signing, acknowledging and filing a certificate containing the name of the corporation, its duration, not exceeding fifty years, the amount and number of shares of its capital stock, the number of its directors, and their names and post-office addresses for the first year, the termini of the proposed road, its length, and each town, city or village into or through which it is to pass, or if a bridge, the location and plan thereof, and the post-office address of each subscriber and the number of shares of stock which he agrees to take, the aggregate of which subscriptions shall not be less than five hundred dollars for every mile of road, or if a bridge corporation not less than one-fourth of the amount of the capital stock, and five per centum of which must be actually paid in cash. There shall be indorsed on and annexed to the certificate and made a part thereof the affidavit of at least three of the directors named therein, that the required amount of capital stock has been subscribed and the prescribed percentage paid in cash. With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Place of Business, Duration of Hxistence, Directors, Filing, Cer- tificate, Organization Tax, and Fees, see annotation under Business Corp. Law. sec. 2. §.121. Restrictions upon Jpoation of road. No such road shall be laid out through any orchard of the growth of four years or more to the injury or destruction of fruit trees, or through any garden cultivated for four years or more before the laying out of the road, or through any dwelling house or building connected therewith, or any yards or inclosures necessary for its use or enjoyment without the consent of the owner thereof, nor shall any such corporation bridge any stream in any manner that will prevent or endanger the passage of any raft of twenty-five feet in width, or where the same is navigable by vessels or steam- boats. § 122. Agreement for use of highway. The supervisor and commissioner of highways, or a majority of them if there be more than one of any town, may agree in writing with any such corporation for the use of any part of a public highway therein required for the construction of any such road, and the compensation to be paid by, the corporation for taking and using such highway for such purpose on first obtaining consent of at least two-thirds of all the owners of land bounded on or along such high- 309 TRANSPORTATION CORPORATIONS Law. way, which agreement shall be filed and recorded in the town clerk’s office of the town. If such agreement can not be made the corpora- tion may acquire the right to take such highway for such purpose by condemnation. The compensation therefor shall be paid to the commissioners of highways, to be expended by them in improving the highways of the town. § 123. Application to board of supervisors, If the-lands necessary for the construction of the road or bridge of any such corporation in any county have not been procured by gift or purchase, and the right to take and use any part of any high- way therein required by such corporation shall not have been procured by agreement with the supervisor and commissioners of highways of the town in which such highway is situated, the corporation may make application to the board of supervisors of each county in which such bridge or road, or any part thereof, is to be located, for authority to build, lay out and construct the same, and take the necessary real estate for such purpose. Notice of the application shall be published in at least one public newspaper in each county for six successive weeks, specifying the time and place where it will be made, the location, length and breadth of any such bridge, and the length and route of any such proposed road, its character, and each town, city and village in or through which it is to be constructed. The applica- tion may be made at any annual or special meeting of the board, and if the corporation desires a special meeting therefor any three members of the board may fix a time when the same shall be held, and notice thereof shall be served upon each of the other supervisors by deliver- ing the same to him personally or leaving it at his place of residence at least twenty days before the meeting, and the expenses of the special meeting and of notifying the members of the board thereof shall be paid by the corporation. All persons interested therein or owning real estate in any of the towns through which it is proposed to contruct the road may appear and be heard upon the hearing of the application. The board may take testimony in respect thereto, or authorize it to be taken by a committee of the board and may adjourn the hearing from time to time. After hearing the applica- tion the board may, by an order entered in its minutes, authorize the corporation to construct such bridge or road and to take the real estate necessary for that purpose, and a copy of the order certified by the clerk of the board shall be recorded by the corporation in the office of the clerk of the county in which such bridge or road or any part thereof is to be located before any -act shall be done under it. 310 TRANSPORTATION CoRPORATIONS Law. § 124. Commissioners to lay out road. If the application for the construction of any such road is granted, the board shall appoint three disinterested persons, not owners of real estate in any town through which the road is to be constructed, or in any adjoining town, commissioners to lay out the road. They shall take the constitutional oath of office, and without unneces- sary delay lay out the route of such road in such manner as in their opinion will best promote the public interests; they shall hear all persens interested who shall apply to be heard and may take testimony in relation thereto, and shall cause an accurate survey and descrip- tion of the road and the necessary buildings and gates, signed and acknowledged by them, to be recorded in the clerk’s office of the county. If the road is situated in more than one county, such survey and description shall be separate as to that portion in each county and filed in the office of the clerk of the county to which it relates. The corporation shall pay each commissioner three dollars for every day spent by him in the performance of his duties and his necessary expenses. § 125. Possession of and title to real estate. The route so laid out and surveyed by the commissioners shall be the route of the road, and the corporation may enter upon, take and hold for the purposes of its incorporation, the lands described in such survey as necessary for the construction of its road, and requisite buildings and gates. If for any -cause the owner of any of such lands shall be incapable of selling the same or his name or residence can not with reasonable diligence be ascertained or the corporation is unable to agree with the owner for the purchase thereof, it may acquire title thereto by condemnation. § 126. Use of turnpike road by plank-road. No plank-road shall be made on the roadway of any turnpike cor- poration without its consent, except for the purpose of crossing the same. Any plank-road corporation may contract with any connect- ing turnpike corporation for the purchase of its roadway, or a part thereof, or of its stock, on such terms as may be mutually agreed upon, and such stock, if purchased, shall be held by the plank-road corporation for the benefit of its stockholders in proportion to the amount of stock held by each, and a transfer of stock in the plank- road corporation shall carry with it its proportional amount of the turnpike stock, and entitle the holder thereof to his share of the divi- dends derived therefrom. After the purchase of the whole of the stock of any such turnpike corporation by such plank-road corporation the 311 TRANSPORTATION CoRpoRATions Law. directors of the plank-road corporation shall be the directors of the turnpike corporation, and shall manage its affairs and render an account of the same annually to the stockholders of the plank-road corporation. If the plank-road corporation is dissolved, its stock- holders at the time of dissolution shall be the stockholders of the turnpike corporation in proportion to the amount of stock held by each, and the stock of the turnpike corporation shall thereafter be deemed to be divided into shares equal in number to the shares of stock of the late plank-road corporation, and scrip therefor shall be issued accordingly to each of the last stockholders of the plank- road corporation, and the officers of the turnpike corporation shall be the same in number as provided for in its charter or certificate of incorporation, and shall be chosen by such former stockholders of the plank-road corporation or their assigns. A corporation owning a turnpike road on or adjoining which a plank-road shall have been constructed may abandon that portion of its road on or adjoining the route of which a plank-road is actually constructed and used. § 127. Width and construction of road. Every such plank-road shall be so constructed as to make, secure and maintain a smooth and permanent road, the track of which shall be made of timber, plank or other hard material forming a hard and even surface, and every such turnpike road shall be bedded with stone, gravel or such other material as may be found on the line thereof, and faced with broken stone or gravel, forming a hard and even surface with good and sufficient ditches on each side wherever practic- able, and all such roads shall be laid out at least four rods wide, and the arch or bed at least eighteen feet wide, and shall be so constructed as to permit carriages and other vehicles conveniently to pass each other, and to pass on and off such road where intersected with other roads. Any corporation which shall have once laid its road with plank may relay the same, or any part thereof, with broken stone, gravel, shells or other hard materials, forming a good and substantial road. Any plank-road or turnpike corporation may lay iron rails on its road suitable for the use of wagons and vehicles drawn by horses or other animals over its road, but no other motive power shall be used thereon. § 128. Construction of bridges; obstruction of rafts prohibited. Every bridge constructed by any such corporation shall be built with a good and substantial railing or siding at least four and one- half feet high, and over any stream navigable by rafts the corporation shall keep the channel of the stream above and below the bridge free 312 TRANSPORTATION CoRPORATIONS Law. and clear from all deposits, formed or occasioned by the erection of the bridge, which shall in any wise obstruct the navigation thereof, and shall be liable to all persons unreasonably or unnecessarily delayed or hindered in passing the same for all damages sustained thereby. Nothing in this section shall be construed to authorize the bridging of any river or water course where the tide ebbs and flows, or any waters over which the federal authorities have any control, unless the consent of such federal authorities be first obtained; nor the construc- tion of any bridge within the limits prescribed by any existing law for the erection or maintenance of any other bridge. § 129. Certificate of completion of road or bridge. When any such corporation shall have completed its bridge or road or any five consecutive miles thereof, it may apply to the commission- ers of highways of each town in which the completed road or bridge is situated to inspect the same, and if a majority of the commissioners are satisfied that the road or bridge is made and completed as re- quired by law and in a manner safe and convenient for the public use, they shall make a certificate to that effect, which shall be filed in the office of the county clerk. Each commissioner shall be paid by the corporation two dollars per day for his services and necessary expenses. § 130. Gates, rates of toll; and exemptions. Upon filing such certificate such corporation may erect a toll-gate at such bridge or one or more toll-gates upon the road so inspected, and may demand and receive the following rates of toll, a printed list of which shall be conspicuously posted at or over each gate: If a bridge corporation, such sum as shall be from time to time prescribed by the board of supervisors of the county or counties in which the bridge is located. If a turnpike or plank-road, for every vehicle drawn by one animal, one cent per mile, and one cent per mile for each additional animal; for every vehicle used chiefly for carrying passengers, three cents per mile, and one cent per mile for each additional animal ; for every horse rode, led, or driven, three-quarters of a cent per mile; for every score of sheep or swine, one and one-half cents per mile, and for every score of meat cattle, two cents per mile. When diverging roads strike any plank-road or turnpike at or near any toll-gate, the board of supervisors of the county may direct that the toll charge shall commence from the point of such divergence, and only for the distance traveled on such turnpike or plank-road, but fractions of cents may be made units of cents in favor of the plank- road or turnpike corporation. The corporation may from time to time commute, but not for a longer period than one year at any one time, 313 TRANSPORTATION Corporations Law. with any person whose place of abode shall adjoin or be near to the road for the toll payable at the nearest gate on each side thereof, and the commutation may be renewed from year to year. No tolls shall be charged or collected at any gate from any person going to or from public worship, a funeral, school, town meeting or election at which he is a voter to cast his vote, a military parade which he is required by law to attend, any court which he shall be required to attend as a juror or witness, nor when going to or from his required work upon any public highway, nor when transporting troops in the actual service of the United States; and no toll from persons living within one-half mile of the gate by the most usual traveled road when not engaged in the transportation of other persons or property except that persons living within one mile of the gate, by the most usually traveled road, in an incorporated village of over six thousand inhabitants, when not engaged in the transportation of other persons or property shall be exempt from the payment of toll. Where a different rate is not otherwise prescribed or permitted by law, any corporation maintaining a plank-road, turnpike road or bridge and authorized, or which shall be hereafter authorized, to re- ceive tolls for the passage of vehicles over the same, may charge and receive for each and every motor vehicle propelled by any power other than animal power, passing over the same, a toll rate as prescribed by section three hundred ten of the highway law. The directors of the several plank-road and turnpike road com- panies in this state shall annually abate three dollars from the toll of any inhabitant, not an inn-keeper, or all of it in the aggregate not exceeding that sum, who shall construct on his own land, and keep in repair, a watering trough beside the plank-road or turn-pike road as the case may be, well supplied with fresh water, the surface of which shall be two or more feet above the level of the ground, and easily accessible for horses with vehicles; but the commissioners of highways of the towns respectively shall, and they are hereby invested with full power and authority to designate those necessary for the public con- venience along said plank-road or turn-pike road, as the case may be, and no others than those designated shall be allowed such abatement of toll. In case the directors of any plank-road or turnpike road road com- pany in this state, shall refuse or neglect to abate the toll as aforesaid, any inhabitant having constructed a watering trough in compliance therewith, may notify the commissioner or commissioners of highways, as the case may be, of the town in which the same had been erected, of such neglect or refusal on the part of the directors aforesaid, whose 314 TRANSPORTATION CorporaATions Law. duty it shall be, and who are hereby invested with full power and authority to proceed, without delay, to an examination of said water- ing trough; and if, upon a full examination of the same, the said commissioner or commissioners, as the case may be, or a majority of them, shall deem it necessary for the convenience of the public that such watering trough ought to be maintained, he or they, as the case may be, shall forthwith notify the said directors accordingly, by serv- ing a written notice on the president of the company, to that effect, in which the necessity of its maintenance shall be clearly expressed ; and if the said directors shall still refuse or neglect to abate the toll as aforesaid, and shall demand and take toll on application for such abatement, in violation of the provisions of the preceding paragraph, for the space of thirty days after the service of such notice, they shall be liable to a penalty of twenty dollars, to be recovered in an action at law at the suit of the person having constructed said watering trough. As amended by L. 1893, ch. 538, sec. 1; L. 1872, ch. 274, sec. 2, and L. 1907, ch. 127, sec. 1 (part) incorporated. Third paragraph from L. 1907, ch. 127, sec. 1. StTaTuTn ExBMPTING BicycuLists.—A statute prohibiting a turnpike company from charging toll for bicycles, thereby reducing the earning of the company about one-fourth, is unconstitutional. Rochester & Charlotte T. R. Co. v. Joel, 41 App. Div. 43, 58 N. Y. Supp. 346. § 131. Toll-gatherers. Every such corporation may appoint toll-gatherers to collect toll at each gate, who may detain and prevent from passing through the gate, any person riding, leading or driving animals or vehicles, subject to the payment of toll, until the toll is paid, but if he shall unreasonably hinder or delay any traveler or passenger liable to the payment of toll, or shall demand or receive from any person more toll than he is authorized by law to collect, he shall forfeit to such person the sum of five dollars for every offense, and the corporation employing him shall be liable for the payment thereof, and for any damages sustained by any person for acts done or omitted to be done by him in his capacity of toll-gatherer, if, on recovery of judgment against the toll-gatherer, _ therefor, execution thereon shall be returned nulla bona. § 132. Penalty for running a gate. Any person who, with intent to avoid the payment of toll, shall pass any gate, without paying the toll required by law, or shall, with his team, carriage or horse, turn out of a turnpike or plank-road and pass any gate thereon on ground adjacent thereto, shall forfeit for each offense the sum of ten dollars to the corporation injured. 315 TransPorTATION Corporations Law. § 133. Location of gates and change thereof. No such corporation shall erect any toll-gate, house or other build- ing within ten rods of the front of any dwelling house, barn or other out house, without the written consent of the owner, and the county judge of the county in which the same is located shall, on application, order any building so erected to be removed, and if a majority of the commissioners of highways of any town, in which a toll-gate shall be located, or in an adjoining town, shall deem the location of any gate unjust to the public interests by reason of the proximity of diverging roads or otherwise, they may, on fifteen days’ written notice to the president or secretary of the corporation, apply to the county court of the county in which the gate is located, for an order to alter or change its location. On hearing such application, and viewing the premises, if deemed necessary, the court may make such order in the matter as may be just and proper. Hither party may, within fifteen days there- after, appeal to the appellate division of the supreme court from such order, on giving such security as the county judge, making the order, may prescribe. Upon such appeal the supreme court, on motion of either party and on due notice, shall appoint three disinterested per- sons who are not residents of any town through or into which such road shall run, or to or from which it is the principal thoroughfare, or any adjoining town, as referees to hear, try and determine the appeal. Such referees shall view the premises and the location of the gate, and hear the parties in the same manner as on the trial of an issue of fact by a referee in a civil action in the supreme court, and report their decision thereon and the reasons therefor, and the evi- dence taken thereon to the supreme court, and such court shall review the report and render judgment thereon as justice and equity shall require, which shall be final and conclusive. The referees shall be entitled to the same fees as referees in civil actions in the supreme court, to be paid in the first instance by the party in whose favor their report or decision shall be, and the supreme court shall award judg- ment therefor, with such costs and expenses as it may deem reasonable, to the successful party on the appeal, which judgment shall be entered with the order affirming or reversing the order appealed from, and may be enforced by execution as a judgment of a court of record. If the order of the county court is not appealed from, it may be enforced, as the court may direct, and the court may allow such costs as may be deemed just and equitable. § 134. Inspectors; their powers and duties. The commissioners of highways of the several towns and the trustees or other officers in the incorporated cities and villages of the state, 316 TRANSPORTATION CoRPoRATIONS Law. who perform the duties of commissioners of highways in such cities and villages, shall be inspectors of plank-roads and turnpikes, in their respective town, cities and villages. They shall inspect or cause to be inspected by one or more of them the whole of such turnpike or plank-road as lies in their respective towns, villages or cities, at least once in each month, and whenever written complaint shall be made to any inspector, that any part of such road lying in the town, city or village of such inspector is out of repair he shall, without delay, view and examine the part complained of. If such turnpike or plank-road shall be found to be out of repair or in condition not to be con- veniently used by the public, such inspectors or either of them, or the one to whom such complaint shall have been made, shall give written notice to the toll-gatherer, or person attending the gate nearest the place out of repair or in bad condition, to cause the same to be put in good condition before a time therein designated not less than forty- eight hours after the service of such notice, or to appear before the county court of the county in which that part of the road is situated, at a time in said notice designated, and show cause why such turnpike or plank-road should not be repaired or put in good con- dition as in said notice directed. If such road shall not have been theretofore repaired or put in good condition as in said notice directed, then the county court shall, upon the return of such notice, hear the allegations and proofs of the parties, and it shall always be open for that purpose ; and if the court shall find such road to be out of repair or in bad condition it may give additional time for the repair thereof, or it may order the gate nearest the place out of repair or in bad con- dition to be immediately upon the service of the order, or at a time therein specified, thrown open and to remain open until the road shall be fully repaired at the place directed to be repaired as aforesaid. Such order shall be served in the manner therein specified upon the keeper of the gate so ordered to be thrown open. Any inspector within the town, city or village where such road has been repaired pursuant to notice or order as aforesaid, may certify that such road has been duly repaired. The fees of the inspector for the services above men- tioned shall be two dollars for each day actually employed, together with necessary witness fees, to be paid by the corporation or person whose road is so inspected, if the gates are ordered to be thrown open, but otherwise to be charged, audited and paid in the same manner as other fees of commissioners of highways. Any inspector who neglects to perform his duties shall forfeit to the party aggrieved the sum of twenty-five dollars for each offense. Every keeper of a gate ordered to be thrown open, not immediately obeying such 317 TRANSPORTATION Corporations Law. order or not keeping such gate open until such road shall be fully repaired or until a certificate that such road has been duly repaired is granted, or hindering or delaying any person in passing, or taking any tolls from any person passing such gate during the time it ought to be open, shall forfeit to the party aggrieved the sum of ten dollars for each offense, and the corporation or person owning the road, who shall refuse or neglect to obey requirements of any such order, shall forfeit to the people of the state the sum of two hundred dollars for each offense. § 135. Change of route; extensions and branches. Any such corporation may, with the written consent of the owners of two-thirds of its capital stock and of a majority of the commis- sioners of highways of the town or towns in which any change or extension is proposed to be made, construct branches to its main line or extend the same, or change the route of its road or any part thereof, and acquire the right of way for the same in the same manner as for the original or main line, and may, by any of its officers, agents or servants, enter upon lands for the purpose of making any examination, survey or map, doing no unnecessary damage; but before entering upon, taking or using such lands, the corporation shall make a survey and map thereof, designating thereon the lands of each owner or occupant intended to be taken or used, which shall be signed and acknowl- edged by the engineer making the same and the president of the cor- poration and filed in the office of the clerk of the county in which the land is situated. § 136. Mile-stones, guide-posts and hoist-gates, A mile-stone or post shall be erected and maintained by every such corporation on each mile of its road, on which shall be fairly and legibly marked or inscribed the distance of such stone or post from the place of commencement of the road, and when the road shall com- mence at the end of any other road having mile-stones or posts on which the distance from any city or town is marked, a continuation of that distance shall in like manner be inscribed. A guide-post shall also be erected at the intersection of every public road leading into or from every turnpike or plank-road, on which shall be inscribed the name of the place to which such intersecting roads leads in the direc- tion to which the name on the guide-post shall point. No plank-road or turnpike corporation shall erect or put up any hoist-gate on its road. Any person who shall wilfully break, cut down, deface or injure any mile-stone, post or gate on such road, or dig up, or injure any part of the road, or anything belonging thereto, shall forfeit to the corpora- 318 TRANSPORTATION CorPoRATIONS Law. tion twenty-five dollars for each offense, in addition to the damages resulting from the act. § 137. Location of office of corporation. Within two weeks after the formation of any such corporation its directors shall designate some place within a county in which its road or bridge or some part thereof shall be constructed, as its office, and shall give public notice thereof by publishing the same once in each week for three successive weeks in a public newspaper in the county, and shall file a copy of the notice in the office of the county clerk of every county in which any part of the road or bridge is, or is to be constructed, and if the location of such office shall be changed, like notice of the change shall be published and filed, in which shall be specified the time of making the change, before it shall take effect. Every notice, summons or other paper required by law to be served on the corporation may be served by leaving the same at such office with any person having charge thereof, at any time between nine o’clock in the forenoon and five o’clock in the afternoon of any day except Sunday or a legal holiday. § 138. Consolidation of corporations; sale of franchise. Any two or more of such corporations may consolidate into one cor- poration on such terms as the persons owning two-thirds of the stock of each corporation may agree upon, and may change the name of the road on filing in the office where the original certificates of incor- poration were filed, a certificate containing the names of the roads so consolidated, and the name by which such road shall thereafter be known. Any plank-road or turnpike corporation may, with the con- sent of the owners of sixty per centum of its stock, sell and convey the whole or any part of its rights, property and franchises to any other domestic plank-road or turnpike corporation, and such sale and conveyance shall vest the rights, property and franchises thereby transferred in the corporation to which they are conveyed for the term of its corporate existence. § 139. Sale of rights, franchises and property to the county. Any turnpike, plank-road or bridge corporation may by the affirma- tive vote of stockholders owning a majority of the stock thereof, ex- pressed in writing, or at a special meeting of the stockholders of such corporation held upon written notice of at least ten days to all the stockholders thereof, authorize its board of directors or trustees, to dispose of the rights, franchises and property of such corporation within a county, pursuant to sections three hundred and thirty-eight 319 TRANSPORTATION CoRPORATIONS Law. to three hundred and forty-two, inclusive, of the highway law, for a specified sum; and thereupon the board of directors or trustees of such corporation may convey and sell such rights, franchises and property to the county accordingly. § 140. Surrender of road. The directors of any plank-road or turnpike corporation may aban- don the whole or any part of its road at either or both ends thereof, upon obtaining the written consent of the stockholders, owning two- thirds of the stock of the corporation, which surrender shall be by a declaration in writing to that effect, attested by the seal of the cor- poration and acknowledged by the president and secretary. Such declaration and consent shall be filed and recorded in the clerk’s office of the county in which any part of the road abandoned shall be situated, and the road so abandoned shall cease to be the road or the property of the corporation, and shall revert and belong to the several towns, cities and villages through which it was constructed, and the corporation shall no longer be liable to maintain it or to be assessed thereon, or permitted to collect tolls for traveling over the same, but without impairing its right to take toll on the remaining part of its road at the rate prescribed by law. And when- ever any turnpike or plank-road company, now existing or hereafter created, shall abandon all or any part of its road within this state, in the manner above provided, or whenever the charter or franchise of such company shall be annulled or revoked, the road of such turnpike or plank-road company shall revert to and belong to the several towns, cities and villages through which such road shall pass. And it shall be the duty of the several towns, cities and villages acquiring any road under this section to immediately lay out and declare the same a free public highway. And it shall be the duty of the several towns, citiva and villages, to maintain and work every road acquired under the provisions of this section in the same manner as the other roads of such towns, cities and villages are maintained and worked. And any town, city or village may borrow money in the manner provided by law for the purpose of improving or repairing the same. As amended by L. 1896, ch. 964, sec. 1. This was sec. 139 of the former law. § 141. Taxation and exemption. So much of any bridge or toll-house of any bridge corporation as may be within any town, city or village, shall be liable to taxation therein as real estate. Toll-houses and other fixtures and all property belonging to any plank-road or turnpike corporation shall be exempt from assessment and taxation for any purpose until the surplus annual 320 TRANSPORTATION CorPoRATIONS Law. receipts of tolls on its road over necessary repairs and a suitable reserve fund for repairs or relaying of plank, shall exceed seven per centum per annum on the first cost of the road. If the assessors of any town, village or city and the corporation disagree concerning any ex- emption claim, the corporation may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to both parties, examine the books and vouchers of the corporation, and take such further proof as he shall deem proper, and decide whether such corporation is liable to taxation under this section, and his decision shall be final. This was sec. 140 of the former law. § 142. Hauling logs and timber. Any person who shall draw or haul or cause to be drawn or hauled, any logs, timber or other material upon the bed of any plank or turn- pike road, unless the same shall be entirely elevated above the surface of the road on wheels or runners, and the road-bed shall be injured thereby, or who shall do or cause to be done any act by which the road- bgd, or any ditch, sluice, culvert or drain appertaining to any turn- pike or plank-road shall be injured or obstructed, or shall divert or cause to be diverted, any stream of water so as to injure or endanger any part of such road, shall forfeit to the corporation the sum of five dollars for every offense in addition to the damages resulting from the wrongful act. This was sec. 141 of the former law. § 143. Encroachment of fences. Whenever the president or secretary of any turnpike or plank-road corporation shall notify any inspector of such roads in the county where situated that any person is erecting or has erected any fence or other structure upon any part of the premises lawfully set apart for any such turnpike or plank-road, the inspector shall examine into the facts and order the fence or other structure to be removed if it shall appear to be upon any part of any euch road, and any person neglect- ing or refusing to remove the same within twenty days or such gurther time not exceding three months, as may be fixed by the inspector, shall forfeit to the corporation the sum of five dollars for every day, during which the fence or other structure shall remain upon such road, but no such order shall require the removal of any fence, previously erected, between the first day of December and the first day of April. This was sec. 142 of the former law. § 144. Penalty for fast driving over bridges. Any plank-road, turnpike or bridge corporation may put up and: maintain at conspicuous places at each end of any bridge, owned or 321 TRANSPORTATION CorPoRATIONS Law. maintained by it, the length of whose span is not less than twenty- five feet, a notice with the following words in large characters: “ One dollar fine for riding or driving over this bridge faster than a walk.” Whoever shall ride or drive faster than a walk, over any bridge, upon which such notice shall have been placed, and shall then be, shall forfeit to the corporation the sum of one dollar for every such offense. This was sec. 143 of the former law. § 145. Acts of directors prohibited. No director of any such corporation shall be concerned, directly or indirectly, in any contract for making or working any road belong- ing to it during the time he shall be a director. No contractor for the making of such road, or any part thereof, shall make a new contract for the performance of his work, or any part of it, other than by hiring hands, teams, carriages or utensils to be superintended and paid by himself, unless such new contract and its terms be laid before the board of directors and be approved by them. This was sec. 144 of the former law. e § 146. Actions for penalties. No action to recover any penalty against any turnpike or plank- road corporation, shall be commenced or maintained against it, or any of its officers or agents, unless commenced within thirty days after the penalty was incurred. This was sec. 145 of the former law. § 147. Proof of incorporation. In any action brought by or against any domestic turnpike or plank- road corporation, which shall have been in actual operation, and in possession of a road upon which it has taken toll for five consecutive years, next preceding the commencement of the action, parol proof of such corporate existence and use shall be sufficient to establish the incorporation of the corporation, for all the purposes of the action, unless the opposing party shall set up a claim in his complaint or an- swer duly verified of title in himself to the road, or some part thereof stating the nature of his title, and right to the immediate possession and use thereof. This was sec. 146 of the former law. § 148. When stockholders to be directors. When the whole number of stockholders in any turnpike or plank- road corporation shall not exceed the number of directors specified in the certificate of incorporation, each stockholder shall be a director of such corporation, and the stockholder shall constitute the board of 322 TransporTATION Corporations Law. directors, whatever may be their number, and a majority thereof shall be a quorum. for the transaction of business. This was sec. 147 of the former law. § 149. Dissolution of corporation; road to be a highway. Every turnpike, plank-road or bridge corporation may be dissolved by the legislature; when, by the income arising from tolls, it shall have been compensated for all moneys expended in purchasing, making, repairing and taking care of its road, and have received in addition thereto an average annual interest at the rate of ten per centum, and on such dissolution all the rights and property of the corporation shall vest in the people of the state. Any such corporation, which shall not within two years from the filing of its certificate of incorporation, have commenced the construction of its road or bridge and actually expended thereon ten per centum of its capital, or which shall not within five years from such filing have completed its road or bridge, or, in case such bridge is destroyed, shall not rebuild the same within five years, or which for a period of five consecutive years shall have neglected or omitted to exercise its corporate functions, shall be deemed dissolved. Where the corporation has neglected or omitted for five years to exercise its corporate functions, and its road-bed or right of way shall have been used as a public highway for that period, or where any such corporation shall have become dissolved, or where the road or any part of it of a turnpike or plank-road corporation, or the bridge of any bridge corporation, shall have been discontinued, such road-bed or right of way, and such discontinued road or bridge, and the road or bridge of any such dissolved corporation, shall there- after be a public highway, with the same effect as if laid out by the commissioners of highways of the town, and be subject to the laws relating to highways and the erection, repairing and preservation of bridges thereon. This was sec. 148 of the former law. § 150. Town must pay for lands not originally « highway. When the corporate existence of any plank-road or turnpike cor- poration shall have ceased by limitation of time, or where any judg- ment of ouster or dissolution, or restraining the exercise of its fran- chises, has been rendered in any action against it, such portion of the line of its road as was built over lands which were originally purchased by it and not previously a public highway shall not be used as a public highway, nor be taken possession or control of by the town in which the same may be, or by any of the authorities thereof, or be claimed or worked or used as a public highway until the town shall pay over to 323 TransporTATION Corporations Law, the treasurer, receiver or other legal representatives of the corporation, or its assigns, the principal sum of the amounts paid by it for such lands, as shown by the deeds of conveyance thereof to it, and every such judgment shall provide accordingly. Such payments shall be made within three months after the expiration of the corporate existence of the corporation, or if any such judgment has been or shall be ren. dered within three months after service of written notice of the entry thereof on the supervisor of the town, and the person receiving such payment shall execute a proper discharge therefor and a conveyance to the town of all the title and interest which the corporation had in such lands at the expiration of its corporate existence. This was sec. 149 of the former law. § 151. Highway labor upon line of plank-road or turnpike. Every person liable for highway labor living or owning property on the line of any plank-road' or turnpike may, on written application to the commissioners of highways of the town, on any day previous to making out the highway warrant by the commissioners, be assessed for the highway labor upon his property upon the line of such road, in the discretion of the commissioners to be worked out upon the line of such road as a separate road district, and the commissioners shall make a separate list of the persons and property so assessed, as for a separate road district, and deliver the same to one of the directors of the corporation owning such road, who shall cause such highway labor to be worked out on such road in the same manner that overseers of highways are required to do, and such directors shall possess the powers and have the authority to compel the performance of such highway labor or the payment of the tax therefor as such overseers now have by law, and shall make like returns to the commissioner of highways, and any person so assessed may commute for the highway labor assessed upon him or his property by paying the sum now fixed by law as the commutation for such highway labor. This was sec. 150 of the former law. 8 152. Extension of corporate existence. No turnpike, plank-road or bridge corporation shall extend its cor- porate existence, pursuant to the provisions of the general corpora- tion law, without the written consent of the persons owning at least two-thirds of its capital stock, nor without the consent of the board of supervisors of each county in which any part of its road or bridge is situated, which consent shall be given by a resolution of the board adopted at any regular or special meeting, and a copy of such resolu- tion, certified by the clerk of the board, or verified by the affidavit of 324 TRANSPORTATION CoRPORATIONS Law. some member thereof, together with such consent of the stockholders, and a statement verified by the affidavit of the president and treasurer of the corporation, showing the actual capital expended upon the con- struction of the road, exclusive of repairs, the name of each town or ward through or into which the road passes, and, if any part of the road shall have been abandoned, the actual cost of the remaining part, exclusive of repairs, shall be filed with the certificate of the con- tinuance of the corporate existence. No further abandonment of any road belonging to a corporation whose corporate existence has been so extended shall be made, except with the consent of a majority of the board of supervisors of the county in which the abandoned portion of the road may lie, which consent shall be filed in the office of the clerk of the county. This was sec. 151 of the former law. ARTICLE 11. LAWS REPEALED; WHEN TO TAKE EFFECT. Section 160. Laws repealed. 161. When to take effect. § 160. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that por- tion specified in the last column is hereby repealed. § 161. When to take effect. This chapter shall take effect immediately, ScHEDULE oF Laws REPEALED. Laws of Chapter Section Revised Statutes.... Part 1, chapter 18, title 1,............... All 1803........ BO nieses All 1804 ac. ees BL veiw si All T3806. nes 160........ All 1807 a awe Ok arses All 1808........ GUacaraeeys All R. GG. 1813.. O1eccusves All TSU oc hese DD oup teste eas 1 : 1817s iuiewess DOB entre oes All 1817 ceca es OTS sracasrne ts 1 1818........ eee All eee ce ene ry eee en ewe eee enone eee eeeee er ee aencce TRansporTaTION Corporations Law. 20...... . 15, J§ 18-15 (2d Meet.) Bis wa cew ne 1, TF 72, 141, 230, 235, 249, 281, 421 (2d Meet.) Chapter Section VAD 6 sce oa ee All 236........ 1-4 AB os csicichciecs All 286........ All 284........ All 885......6. All L6Lieccecw a's All QGR siciwciees All 243........ All 2106-04 sega All 7) All B98. ose ws All BT okieteiewens All Ob ec esca oes All 259... . 60s All 265.....04. All 360........ All 250........ All 362.....06. All V1........ All 98........ All LO? «ciseees'ss All ABT ace e All 228......6- All B72... 008. All 124 sate dense All 136. cee nes All PAB. eee All 4Y1.....68. All 626........ All Besa. All BF. eee ces All W206 oi ose All 232.....6.. All BID ive orgies All 104........ All 390........ All 485........ All , TRANSPORTATION OoRPoRATIONS Law. Laws of Chapter Section 1855........ 495........ All 1855........ 546... 0.00. All 1855........ 559......6. All 1856........ GD isin aretare All 1857........ BB. we setae All 1857........ 202........ All 1857........ 261........ 1 1857........ 482........ All 1857 6 ica ew es 643........ All 1858........ TOs ian sesiag All 1858........ 193........ All 1859........ 1 All 1859........ 288 ...0000%8 I 1859........ BLD seven «6% All 1859........ AGL os sieves All 1860........ L1G 5 ccc s All IS61 ois sceais RAB cow eters All 1861........ 288........ All 1862........ 205........ All 1862........ PEO eral ee's All 1862........ 425... cee All 1863........ 1WB4 ie: esis All 1865........ 691........ All 1865........ TIS. can ace All 1865...... oe TBO. cece wee All 1866........ BRR iewes cas All 1866........ 780....4. All 1867........ 95......6. 38 1867........ M19 siesaceee All 1867........ 480........ All 1867........ 524.....06. All 1867...... ie QTE wecraseinre All 1868........ 2538......-- All 1868........ B27 iow sewne All 1869........ 234........ All 1870........ 4B. wiacce wine All 1870........ AON abe Barwa All 1870........ 568........ All 1871........ 95........ All 1871........ 697...... .. All 1872........ LS wearer « All TRANSPORTATION Corporations Law. Laws of Chapter Section 1872s. naxews Sito wae 2, 3 LOT Rei itate ais 283........ All 1872........ DIAG vresiesec sis All LST 2s WUD seem ee All 1872. aaaeees 180 ese 8 een All VBR cees ae BAO eos c5 ous 'e ah All TB V8 v4: e ence DIG. aceaen 3 VOUS erciccieee OOD a Kata All B48. ie cee es MOMs epee All W874. eens Ree sarees All TBA a axereFhaue 8382.....06- All 1875........ Artis eats All T81b vag ais VIB ssa seas All WSIS i nsweea T20 eeies ee aus All TS bees ccwas OID eres sok All 1875........ 44D... eee All T8%B 2 were wes 5380........ All VO UG cgutesiees 185 eee es All 18%65. 5.0445 BIB i erent in's All IB%6 esa aneen 41D cose eas All 1876........ ANG ss ait All T8760 cece. BBD wi wots: All LOT eaandie 1645.5 ie sae All USI Vee ecies Vileseisiewen All IBY sain 440........ All VT Bie eceeikans LRA Rosa eines All LST 8iacncsed DE Ochi ota tere All ILO (Bessey do 203. .....-. All W878. ease aes 894........ All B79 eieens Pa ee All 1879 fice wae. 3 RDO ow ap Seats All F819 jee ee s ON Teather eile All W879: oe vewegs BOs cecae tylew All 1879 wes e-a'aes 441. ween All T1906 csi 3 DA Riers Scisvsns 8 All 1880........ DO ecaaias All 1880........ WOT easerewes All L880 e208 c aw x BBA ewig) eave All 1881........ Ua wx lyecea yy All 1881. acces es TYE cae All T88De 5 news RIABiscs on ier All 328 eee ec eee TRANSPORTATION Corporations Law. Chapter Section Bs een ce All BIB seeieves All Beenie weak All BB oe nemes All 464........ All ee All CTA sed bare All Biss aiwe wie All 289 agate All RL Ghai sai vee All B28. ees All AD 5s weg All AB Die cava vines & All 483. ocean All OT 8 essen aie im All 386........ All I ssw dies All LSB esis cies All ROT woes ie 9, 10 WDD eosegicuenie All AOS sions Ye All PASS eeaaues All BR Usah sees All B22 ys ee xiee os All 570. wugaes All AGR sas se ae All BOR ne ecgene All 369........ All 489........ All 566........ Gite aieteteaae All 385........ All DB Bia sos awiatce All BAD esi wes All 230 eked es All WRG iis dapat All DD sneered All B48 odie nes All AAG sist cte All BIB. cece All CUB: Goisaretes All Transportation Corporations Law. Laws of Chapter Section 1896........ DOD Sieateaseces All 1896........ 964...... .. All L897 ods sso 486........ All 1898........ 864........ All 18995 6a 565........ All 1899........ T82.. eee All 1900........ BTB.. eee All 1900........ 657........ All TOOL a oicras nes 483........ 1 W902 ss ce ows 596........ All 1903........ DQ sce oes All 1905........ 120........ 1, part amending L. 1899, ch. 594, § 1, last sentence 1905........ P10s eeeewas All 1906........ 455... 0000 All 1907........ 104........ 1, part amending L. 1899, ch. 594, § 1, last sentence; 2 1907........ 310........ All 1907........ i ee All 330 THE RAILROAD LAW. BEING CHAPTER 565 OF THE LAWS OF 1890, AS AMENDED BY CHAPS. 806, 460, 862 AND 367 OF THE LAWS OF 1891, AND BY CHAPS. 534, 676 AND 700 OF THE LAWS OF 1892. CHAPTER XXXIX OF THE GENERAL LAWS. ARTIOLE 1. 2. oD oP Srcrion 1. 2. 3. 4, 5. 6. 4%. 8. Organization; general powers; location (§§ 1-21). Construction; operation; management (§§ 30-59). Consolidation; lease; sale; reorganization (§§ 70-83). Street surface railroads (§§ 90-110). Other railroads in cities and counties (§§ 120-142). Board of railroad commissioners (§§ 150-171). ARTICLE 1. ORGANIZATION, GENERAL POWERS, LOCATION. Short title. Incorporation. Supplemental certificate. Additional powers conferred. Entry upon lands for purpose of survey. . Acquisition of real property. . Construction of road. Intersection of streams, highways, plank-roads, turn- pikes and canals. 5. Intersection of other railroads. 6. Buildings and stations. ?. Transportation of persons and property. 8 9. Penh . Time and manner of transportation. Purchase of lands and stock in other states. When corporate powers to cease. Location of route, Acquisition of title to real property. Railroads through public lands. 331 Tuer Rarrtroap Law. Section 9. Railroads through Indian lands. 10. Railroads through Chautauqua assembly grounds. 11. Intersection of highways, additional lands for. 12. Intersection of other railroads. 13. Change of route, grade or terminus. 14. Construction of part of line in another state. 15. Two roads having the same location. 16. Tunnel railroads. 17. Railroads in foreign counties. 18. Additional corporate powers of such road. 19. Location of principal office of such road. 20. Individual, joint-stock association, or other corporation may lay down and maintain railroad tracks in certain cases. 21. Powers of electric light and power corporations. 22. Substituted lines in case of eminent domain. 23. Application. 8 1. Short title. This chapter shall be known as the railroad law. § 2. Incorporation. Fifteen or more persons may become a corporation, for the pur- pose (1) of building, maintaining and operating a railroad, or (2) of maintaining and operating a railroad already built, not owned by a railroad corporation, or for both purposes, or (3) of building, main- taining and operating a railroad for use by way of extension or branch or cut-off of any railroad then existing, or for shortening or straightening or improving the line or grade of such railroad or of any part thereof, by executing, acknowledging and filing a certificate, in which shall be stated: Amended by ch. 727 of 1905. j. The name of the corporation. 2. The number of years it is to continue. 3. The kind of road to be built or operated. 4. Its length and termini. 5. The name of each county in which any part of it is to be located. 6. The amount of capital stock, which shall not be less than ten thousand dollars for every mile of road built, or proposed to be built, except a narrow-gauge road, when it shall not be less than three thousand dollars for every such mile. 332 Tur Rartroap Law. %. The number of shares into which the capital stock is to be divided. 8. If the capital stock is to consist of common and preferred stock, the amount of each class and the rights and privileges of the latter over the former. 9. The names and post-office addresses of the directors of the cor- poration, not less than nine, who shall manage its affairs for the first year. 10. The place where its principal office is to be located. 11. If a street surface railroad, the names and description of the streets, avenues and highways in which the road is to be constructed. _ 12. If it is to be a railway corporation, specified in article five of this chapter, the statements required by that article to be inserted in the certificate of incorportaion. 13, The name and post-office address of each subscriber to the cer- tificate and the number of shares of stock he agrees to take. Such certificate shall have indorsed thereon, or annexed thereto, to be taken as a part thereof, an affidavit of at least three of such direc- tors, that at least ten per cent of the minimum amount of capital stock authorized by law has been subscribed thereto, and paid in good faith and in cash to the directors named in the certificate, and that it is intended in good faith to build, maintain and operate the road mentioned therein. In case of a railway corporation specified in article five of this chapter, the affidavit of the directors shall show that the full amount of such capital stock has been in good faith sub- scribed, and there shall be annexed to the certificate of incorporation and as a part thereof the certificate of the railroad commissioners showing the organization of the corporation for the purposes men- tioned in the certificate. The filing of every certificate, where the amount of stock required by this section has not been in good faith subscribed and paid in cash, shall be void. As amended by L. 1892, ch. 676, and L. 1905, ch. 727, sec. 1. In GENERAL.—With reference to Incorporators, Certificate, Amended Certificate, Name, Amount of Stock, Duration of Existence, Directors, Filing Certificate, Organ- ization Tax, and Fees, see annotation under Business Corporations Law, sec. 2, supra. LENGTH (subd. 4).—The statute is complied by naming the cities which are the terminal of the road. New York, L. I. R. Co. v. O’Brien, 121 App. Div. 819, 106 N. Y. Supp. 909, aff’d 192 N. Y. 558 mem. CoNNECTION (subd. 5).—This subdivision permits a connection of roads which do not in fact intersect, but which approach each other so closely—about 300 feet— that it is desirable to connect them. Waverly v. Waverly, S. & A. T. Co., .... App. Div. ....., 116 N. ¥. Supp. 1074. In this instance the village trustees refused to consent to the connection. RigHTs OF MUNICIPAL AUTHORITIDS.—The trustees of a village have a right to participate in determining the place and manner of connection between steam or 333 Tur Rartrosap Law. electric lines in a public street. Ft. Edward v. H. V. R. Co. 192 N. Y. 139; Waverly v. Waverly, S. & A. T, Co. .... App. Div. ...., 116 N. Y. Supp. 1074. But in determining the place and manner of connection, the trustees have no right to impose unreasonable or unusual conditions upon the roads. It is their duty, however, as stated in the Ft. Edward case, “to guard and preserve the streets from unnecessary encroachments or dangers to which the traveling public may be subjected,” and to see that the manner of connection is such as will interfere ag little as possible with the rights of travelers on the street and sidewalk which will necessarily be crossed by the railroad tracks if laid at the point in question. Payment (subd. 13).—The amount required by this subdivision must be ac- tually paid in cash; a check drawn against the proceeds of a note is insufficient. People ex rel. N. ¥. C. & H. R. BR. Co. v. Public Service Comm., 122 App. Div. 283, 106 N. Y. Supp. 968. Payment by an uncertified check is not a payment in cash, as required by this section. People ex rel. New York, N. H. & H. R. Co. v. Bd. Ry. Commrs., 81 App. Div. 242, 81 N. Y. Supp. 20, aff'd 175 N. Y. 516 mem. ACKNOWLEDGMENT OF CHRTIFICATH.—The certificate of incorporation must have been executed and acknowledged by 15 or more persons and filed as provided by statute, before a certificate of necessity and convenience will be issued pursuant to sec. 59, post. People ex rel. Erie R. Co. v. Board of Ry. Commrs., 105 App. Div. 273, 93 N. Y. Supp. 584. The certificate is defective if acknowledged before one of the signers thereof. People ex rel. Erie R. Co. v. Bd. Ry. Commrs., supra. As to proof of acknowledgment by affidavit of one signing, see People ex rel. Long Island R. Co. v. Ry. Commrs., 75 App. Div. 106, 77 N. Y. Supp. 380. AMENDED CBHRTIFICATH.—A corporation has no right to amend its certificate under sec. 7 of the General Corporation Law for the purpose of changing the route selected. Matter of Riverhead Q. & S. R. Co., 86 App. Div. 514, 55 N. Y. Supp. 938. The filing of an additional certificate showing that the necessary steps have been taken will cure a defect in the original in failing to show payment of the required 10 per cent of the capital stock. People ex rel. New York, N. H. & H. R. R. Co. v. Bd. Ry. Commrs., 81 App. Div. 242, 81 N. Y. Supp. 20, aff’d 175 N. Y. 516 mem. § 3. Supplemental certificate. If the names and places of residence of the directors of the corpo- ration have been omitted from the certificate, when executed and acknowledged, and thereafter the requisite number of directors has been chosen at a meeting of the subscribers to the certificate, a sup- plemental certificate, containing their names and places of residence, may be filed with such certificate with the same force and effect as if the names and places of residence of the directors had been originally inserted therein. § 4. Additional powers conferred. Subject to the limitations and requirements of this chapter, every railroad corporation, in addition to the powers given by the general and stock corporation laws, shall have have power :— 1. Entry upon lands for purposes of survey. To cause the necessary examination and survey for its proposed railroad to be made for the selection of the most advantageous route; and for such purpose, by its officers, agents or servants, to enter upon 334 Tue Rarroap Law. any lands or waters subject to liability to the owner for all damages done. 2. Acquisition of real property. To take and hold such voluntary grants of real estate and other property as shall be made to it to aid in the construction, main- tenance and accommodation of its railroad; and to acquire by con- demnation such real estate and property as may be necessary for such construction, maintenance and accommodation in the manner pro- vided by law, but the real property acquired by condemnation shall be held and used only for the purposes of the corporation during the continuance of the corporate existence. 3. Construction of road. To lay out its road not exceeding six rods in width, and to con- struct the same; and, for the purpose of cuttings and embankments, to take such additional lands as may be necessary for the proper construction and security of the road; and to cut down any standing trees that may be in danger of falling on the roads, upon making com- pensation therefor. 4. Intersection of streams, highway, plankroads, turmpikes and canals. To construct its road across, along or upon any stream, water- course, highway, plankroad, turnpike, or across any of the canals of the state, which the route of its road shall intersect or touch. 5. Intersection of other railroads. To cross, intersect, join, or unite its railroad with any other rail- road before constructed, at any point on its route and upon the ground of such other railroad corporation, with the necessary turn- outs, sidings, switches, and other conveniences in furtherance of the objects of its connection. 6. Buildings and stations. To erect and maintain all necessary and convenient buildings, sta- tions, fixtures and machinery for the accommodation and use of its passengers, freight and business. 7%. Transportation of persons and property. To take and convey persons and property on its railroad by the power or force of steam or of animals, or by any mechanical power, except where such power is specially prescribed in this chater and to receive compensation therefor. 335 Tue Rartroap Law. 8. Time and manner of transportation. To regulate the time and manner in which passengers and property shall be transported, and the compensation to be paid therefor. 9. Purchase of lands and stock in other states. To acquire and dispose of any real property in any other state through which any part of the railroad is operated, and stock in any foreign corporation owning lands another state for the purpose of securing for such railroad corporation in this state a permanent sup- ply of fuel for its use, and stock of corporations in this state, formed for the purpose of erecting railway depots. 10. Creation of mortgage. From time to time to borrow such sums of money as may be neces- sary for completing and finishing or operating or improving its rail- road, or for any other of its lawful purposes and to issue and dispose _ of its bonds for any amount so borrowed, and to mortgage its prop- erty and franchises to secure the payment of any debts contracted by the company for the purposes aforesaid, notwithstanding any limita- tion on such power contained in any general or special law. But no mortgage except purchase money mortgages, shall be issued by any railroad corporation under this or any other law without the consent of the board of railroad commissioners and the consent of the stock- holders owning at least two-thirds of the stock of the corporation, which consent shall be in writing, and shall be given and certified and be filed and recorded in the office of the clerk or register of the county where it has its principal place of business, as provided in section two of the stock corporation law; or else the consent of the board of railroad commissioners and the consent by their votes of stockholders owning at least two-thirds of the stock of the corpora- tion, which is represented and voted upon in person or by proxy at a meeting called for that purpose upon a notice stating the time place and object of the meeting, served at least three weeks previously upon each stockholder personally, or mailed to him at his post-office address, and also published at least once a week for three weeks suc- cessively in some newspaper printed in the city, town or county where such corporation has its principal office; and a certificate of the vote at such meeting, shall be signed and sworn to and shall be filed and recorded as provided by section two of the stock corporation law. When authorized by the stockholders’ consent to any bonds made or issued under this section, the directors, under such regulations as they may adopt, may confer on the holder of any such bonds the right to convert the principal thereof, after two and not more than twelve 336 Tue Rartroap Law. years from the date of the bond, into stock of the corporation at a price fixed by the board of directors, which may be either par or a price not less than the market value thereof at the date of such con- sent to such bonds; and if the capital stock shall not be sufficient to meet the conversion when made, the board of directors shall authorize an increase of capital stock sufficient for that purpose. As amended by L. 1892, ch. 676, and L. 1902, ch. 504, sec. 1. Susp, 1.—This subdivision has been held to be valid. Bloodgood v. M. & H. R. Co., 18 Wend. 16; Polly v. R. Co., 9 Barb. 449. Supp. 2.—See the Condemnation Law, post. Susp. 4.—The constitutional provision that the legislature ‘shall not sell, lease or otherwise dispose’’ of canals, does not prevent the legislature from grant- ing the right to construct and operate a railroad across a canal, providing the use of the canal is not interfered with. Pryor v. Buffalo, 60 Misc. 447, 112 N. Y. Supp. 437. Necessity of constructing the road on the street must be shown. Hornell & D. R. Co. v. Dansville, 127 App. Div. 867, 111 N. Y. Supp. 845. The mere fact that it is more convenient or less expensive, is insufficient; it is, however, a matter for consideration, but is not controlling. Hornell & D. R. Co. v. Dansville, supra. When the railroad companies cannot agree on the manner of intersection and connection, commissioners may determine the differences. Jennings vy. Delaware, L. & W. R. Co., 103 App. Div. 164, 93 N. Y. Supp. 374, aff’d (N. Y.) mem. Susp. 5.—The terms ‘join, or unite” as used in this subdivision, were con- strued in Eldert v. Long Island El. R. Co., 28 App. Div. 451, 51 N. Y. Supp. 186, aff'd 165 N. Y. 651 mem., as not authorizing a connection between a street surface railway and an elevated railroad by an inclined plane, where the property owners have consented only to a surface road. It is not essential that the two roads actually intersect in order that a con- nection may be made. Gallagher vy. Keating, 27 Misc. 131, 58 N. Y. Supp. 366. But it is otherwise where the connection is entirely upon the land of the surface road. Gallagher v. Keating, 27 Misc. 131, 58 N. Y. Supp. 366. As to what are connecting lines, see New York, L. & W. R. Co. v. Hrie R. Co., 31 App. Div. 378, 52 N. Y. Supp. 318. § 5. When corporate powers to cease. If any domestic railroad corporation shall not, within five years after its certificate of incorporation is filed, begin the construction of its road and expend thereon ten per centum of the amount of its capital, or shall not finish its road and put it in operation in ten years from the time of filing such certificate, its corporate existence and powers shall cease. But if any such steam railroad corporation whose certificate of incorporation was filed since the year eighteen hundred and eighty, and whose road as designated in such certificate is wholly within one county and not more than ten miles in length, has acquired the real property necessary for its road bed by purchase, its corporate existence and powers shall not be deemed to have ceased because of its failure to comply with the provisions of this article; and the time for beginning the construction of its road and expend- ing thereon ten per centum of its capital, is extended until thirteen years from the date of the filing of such certificate and the time for finishing its road and putting it in operation, is extended until 337 Tue Rarrroap Law. eighteen years from the date of such filing. This section shall not apply to any street surface railroad company incorporated prior to July first, eighteen hundred and ninety-five, which has obtained or become the owner of the consents of the local authorities, of any city of the first or second class, given under article four of the railroad law to the use of public streets, avenues or highways for the con- struction and operation of the railroad thereon. As amended by L. 1901, ch. 508, sec. 1. Streer RaiLRoaps.—This sec. is applicable to street railroads, Matter of Brooklyn Q. C. & S. R. Co., 185 N. Y¥. 171. § 6. Location of route. Every railroad corporation, except a street surface railroad corpora- tion and an elevated railway corporation, before constructing any part of its road in any county named in its certificate of incorporation, or instituting any proceedings for the condemnation of real property therein, shall make a map and profile of the route adopted by it in such county, certified by the president and engineer of the corpora- tion, or a majority of the directors, and file it in the office of the clerk of the county in which the road is to be made. The corporation shall give written notice to all actual occupants of the lands over which the route of the road is so designated, and which has not been purchased by or given to it, of the time and place such map and pro- file were filed, and that such route passes over the lands of such occupant. Any such occupant or the owner of the land aggrieved by the proposed location, may, within fifteen days after receiving notice, give ten days’ written notice to such corporation and to the owners or occupants of lands to be affected by any proposed alteration, of the time and place of an application to a justice of the supreme court, in the judicial district where the lands are situated, by petition duly verified, for the appointment of commissioners to examine the route. The petition shall state the objections to the route designated, shall designate the route to which it is proposed to alter the same, and shall be accompained with a survey, map and profile of the route designated by the corporation, and of the proposed alteration thereof, and copies thereof shall be served upon the corporation and such owners or occupants with the notice of the application. The justice may, upon the hearing of the application, appoint three disinterested persons, one of whom must be a practical civil engineer, commis- sioners to examine the route proposed by the corporation, and the route to which it is proposed to alter the same, and after hearing the parties, to affirm the route originally designated, or adopt the pro- posed alteration thereof, as may be consistent with the just rights of 338 Tue Rarrroap Law. all parties and the public, including the owners or occupants of lands upon the proposed alteration; but no alteration of the route shall be made except by the concurrence of the commissioner who is a practi- cal civil engineer, nor which will cause greater damage or injury to lands or materially greater length of road than the route designated by the corporation, nor which shall substantially change the general line adopted by the corporation. The commissioners shall, within thirty days after their appointment, make and certify their written determination, which with the petition, map, survey and profile, and any testimony taken before them shall be immediately filed in the office of the county clerk of the county. Within twenty days after such filing, any party may, by written notice to the other appeal to the general term of the supreme court from the decision of the com- missioners, which appeal shall be heard and decided at the next term held in the department in which the lands of the petitioners or any of them are situated, for which the same can be noticed, according to the rules and practice of the court. On the hearing of such appeal, the court may affirm the route proposed by the corporation or may adopt that proposed by the petitioner. The commissioners shall each be entitled to six dollars per day for their services, and to their rea- sonable and necessary expenses, to be paid by the person who applied for their appointment. If the route of the road as designated by the corporation, is altered by the commissioners, or by the order of the court, the corporation shall refund to the petitioner the amount so paid, unless the decision of the commissioners is reversed upon appeal taken by the corporation. No such corporation shall institute any proceedings for the condemnation of real property in any county un- til after the expiration of fifteen days from the service by it of the notice required by this section. Every such corporation shall trans- mit to the board of railroad commissioners the following maps, pro- files and drawings exhibiting the characteristics of their road, to wit: A map or maps showing the length and direction of each straight line; the length and radius of each curve; the point of crossing of each town and county line, and the length of line of each town and county accurately determined by measurements to be taken after the completion of the road. Whenever any part of the road is completed and used, such maps and profiles of such completed part shall be filed with such board within three months after the completion of any such portion and the commencement of its operation; and when any additional portion of the road shall be completed and used, other maps shall be filed within the same period of time, showing the additional parts so completed. : 339 Tue Rartroap Law. If the route, as located upon the map and profile filed in the office of any county clerk, shall have been changed, it shall also cause a copy of the map and profile filed in the office of the railroad commis- sioners, so far as it may relate to the location in such county, to be filed in the office of the county clerk. As amended by L. 1892, ch. 626. COMMENCEMENT oF PROCEEDINGS.—A railroad company is not required to wait before commencing its condemnation proceedings until after the final determina- tion of all applications that may be made for a change of route. Brie R. Co. v. Brown, 57 Misc. 164, 107 N. Y. Supp. 983. Map.—A map showing the alignment and profile, but not showing all of the turnouts, etc., was held in People y. Brooklyn F. & C. I. R. Co., 89 N. Y. 75, to be sufficient. § 7. Acquisition of title to real property. All real property, required by any railroad corporation for the pur- pose of its incorporation, or for any purpose stated in the railroad law, shall be deemed to be required for a public use, and may be acquired by such corporation. If the corporation is unable to agree for the purchase of any such real property, or of any right, interest or easement therein, required for any such purpose, or if the owner thereof shall be incapable of selling the same, or if after diligent search and inquiry the name and residence of any such owner can- not be ascertained, it shall have the right to acquire title thereto by condemnation. Every railroad corporation shall have the power from time to time to make and use upon or in connection with any rail- road either owned or operated by it, such additions, betterments and facilities as may be necessary or convenient for the better manage- ment, maintenance or operation of any such railroad, and shall have the right by purchase or by condemnation, to acquire any real prop- erty required therefor, and it shall also have such right in the follow- ing additional cases: 1. Where title to real property has been acquired, or attempted to be acquired, and has been found to be invalid or defective. 2. Where its railroad shall be lawfully in possession of a lessee, mortgagee, trustee or receiver, and additional real property shall be required for the purpose of running or operating such railroad. 3. Where it shall require for any railroad owned or operated by it any further rights to lands or the use of lands for additional main tracks or for branches, sidings, switches or turnouts, or for connec- tions or for cut-offs, or for shortening or straightening or improving the line or grade of its road or any part thereof. Also where it shall require any further rights to lands or the use of lands for filling any structures of its road, or for constructing, widening or completing 340 Tue Rartroap Law. any of its embankments or roadbeds, by means of which greater safety or permanency may be secured, and such lands shall be contiguous to such railroad and reasonably accessible to the place where the same are to be used for such purpose or purposes. 4. Where it shall require any further right to lands or to the use of lands for the flow of water occasioned by railroad embankments or structures now in use, or hereafter rendered necessary, or for any other purpose necessary for the operation of such railroad, or for any tight to take and convey water from any spring, pond, creek or river to such railroad, for the uses and purposes thereof, together with the tight to build or lay aqueducts or pipes for the purpose of conveying such water, and to take up, relay and repair the same, or for any right of way required for carrying away or diverting any water, stream or floods from such railroad for the purpose of protecting its road or for the purpose of preventing any embankment, excavation or structure of such railroad from injuring the property of any person who may be rendered liable to injury thereby. Waters commonly used for domestic, agricultural or manufactur- ing purposes, shall not be taken by condemnation to such an extent as to injuriously interfere with such use in future. No railroad cor- poration shall have the right to acquire by condemnation any right or easement in or to any real property owned or occupied by any other railroad corporation, except the right to intersect or cross the tracks and lands owned or held for right of way by such other corpo- ration, without approriating or affecting any lands owned or held for depots or gravel-beds. § 8. Railroads through public lands. The commissioners of the land office may grant to any domestic railroad corporation any land belonging to the people of the state, except the reservation at Niagara and the Concourse lands on Coney Island, which may be required for the purposes of its road on such terms as may be agreed upon by them; or such corporation may ac- quire title thereto by condemnation; and the county or town officers having charge of any land belonging to any county or town, requited for such corporation for the purpose of its road, may grant such land to the corporation for such compensation as may be agreed upon. In case the land or any right, interest or easement therein, required by such railroad corporation is used for prison purposes the commissioners of the land office may grant such land, or any right, interest or easement therein, provided the plans of such railroad cor- poration for the use of such prison lands, or such right, interest or 341 Tur Rarroap Law. easement therein, have the approval of the superintendent of state prisons. Amended by ch. 313 of 1904. § 9. Railroads through Indian lands. Any railroad corporation may contract with the chiefs of any nation of Indians, over whose lands it may be necessary to construct its railroad, for the right to make such road upon such lands, but such contract shall not vest in the corporation the fee to the land, nor the right to occupy the same for any purposes other than may be necessary for the construction occupancy and maintenance of such railroad, and such contract shall not be valid or effectual until it shall be ratified by the county court of the county where the land shall be situated. § 10. Railroads through Chautauqua assembly grounds. No railroad corporation shall build, construct or operate any rail- road in, upon, over or through the grounds, lands or premises owned by the Chautauqua assembly corporation in the town and county of Chautauqua, without. the written consent of a majority of the board of trustees of such assembly corporation. § 11. Intersection of highways. additional lands for. No railroad corporation shall erect any bridge or other obstruction across, in or over any stream or lake, navigated by steam or sail boats at the place where it may be proposed to be erected, nor shall it construct its road in, upon or across any street of any city without the assent of the corporation of such city, nor across, upon or along any highway in any town or street in any incorporated village, with- out the order of the supreme court of the district in which such high- way or street is situated, made at a special term thereof, after at least ten days’ written notice of the intention to make application for such order shall have been given to the commissioners of highways of such town, or board of trustees of the village in which such highway or street is situated. Every railroad corporation which shall build its road along, across or upon any stream, watercourse, street, high- way, plankroad or turnpike, which the route of its road shall inter- sect or touch, shall restore the stream or watercourse, street, highway, plankroad and turnpike, thus intersected or touched, to its former state, or to such state as not to have unnecessarily impaired its use- fulness, and any such highway, turnpike or plankroad may be carried by it, under or over its track, as may be found most expedient. Where an embankment or cutting shall make a change in the line of such highway, turnpike or plankroad desirable, with a view to a 342 Tur Rartroap Law. more easy ascent or descent, it may construct such highway, turn- pike or plankroad, on such new line as its directors may select, and may take additional lands therefor by condemnation if necessary. Such lands so taken shall become part of such intersecting highway, turnpike or plankroad, and shall be held in the same manner and by the same tenure as the adjacent parts of the highway, turnpike or plankroad are held for highway purposes. Every railroad corpo- ration shall pay all damages sustained by any turnpike or plankroad corporation in consequence of its crossing or occupation of any turn- pike or plankroad, and in case of inability to agree upon the amount of such damages it may acquire the right to such crossing or occupa- tion by condemnation. § 12, Intersection of other railroads. Every railroad corporation, whose roadbed is or shall be inter- sected by any new railroad, shall unite with the corporation owning such new railroad in forming the necessary intersections and connec- tions, and grant the requisite facilities therefor. If the two corpo- rations cannot agree upon the amount of compensation to be made therefor or upon the line or lines, grade or grades, points or manner of such intersections and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer and surveyor, to be appointed by the court, as it pro- vided in the condemnation law. Such commissioners may determine whether the crossing or crossings of any railroad before constructed shall be beneath, at, or above the existing grade of such railroad, and upon the route designated upon the map of the corporation seeking the crossing or otherwise. All railroad corporations whose roads are or shall hereafter be so crossed, intersected or joined, shall receive from each other and forward to their destination all goods, merchan- dise and other property intended for points on their respective roads, with the same dispatch as, and at a rate of freight not exceeding the local tariff rate charged for similar goods, merchandise and other property, received at or forwarded from, the same point for individ- uals and other corporations. As amended by L. 1892, ch. 676. INTHRSECTION OF ELECTRIC AND STHAM Roaps.—This section and the preced- ing one designate the practice in the case of the intersection of an electric street railway and a steam railroad upon the street of an incorporated village; and if the three corporations are unable to agree, the court will appoint the commissioners named in this section. Ft. Edward v. Hudson V. R. Co., 192 N. Y. 139. And this section applies in the case of the intersection and connection of an electric line with a steam railway. Matter of Stillwater & M. St. R. Co., 171 N. Y. 589; Buffalo B. & L. R. Co. v. New York L. B. & W. R. Co., 72 Hun 588, 25 N. Y¥. Supp. 265. p 343 Tue Rartroap Law. CERTIFICATE OF NECESSITY.—A certificate of public necessity and convenience is not required in the case of the intersection of one railroad by another. Ft. Edward v. Hudson V. R. Co., 192 N. Y. 139. § 13. Change of route, grade or terminus, Every railroad corporation except the elevated railroad corpora- tions, may, by a vote of two-thirds of all its directors, alter or change the route or any part of the route of its road or its termini, or locate such route, or any part thereof, or its termini, in a county adjoining any county named in its certificate of incorporation, if it shall ap- pear to them that the line can be improved thereby, upon making and filing in the clerks’ office of the proper county a survey, map and certificate of such alteration or change. If the same is made after the corporation has commenced grading the original route, compensa- tion shall be made to all persons for injury done by such grading to any lands donated to the corporation. But neither terminus can be changed, under this section, to any other county than one adjoining that in which it was previously located ; nor can the route or terminus ot any railroad be so changed in any town, county or municipal cor- poration, which has issued bonds and taken any stock or bonds in aid of the construction of such railroad without the written consent of a majority of the taxpayers appearing upon the last assessment-roll of such town, county of municipal corporation, unless such terminus, after the change, will remain in the same village or city as thereto- fore. No alteration of the route of any railroad after its construc- tion shall be made, or new line or route of road laid out or estab- lished, as provided in this section, in any city or village, unless approved by a vote of two-thirds of the common council of the city or trustees of the village. Any railroad corporation whose road as located terminates at any railroad previously constructed or located, whereby communication might be had with any incorporated city of the state, may amend its certificate of incorporation so as to termi- nate its road at the point of its intersection with any railroad sub- sequently located to intersect it, and thereby, by itself or its connection, afford communication with such city, with the consent of the stock- holders owning two-thirds of the stock of the corporation. Any rail- road corporation may, by a vote of its directors, change the grade of any part of its road, except that in the city of Buffalo, such change must conform to the general plan heretofore adopted and filed by the grade crossing commissioners of said city, or any modification thereof, within the territory covered by said general plan, in such manner as it may deem necessary to avoid accidents and facilitate the use of such road; and it may by such vote alter the grade of its road, for 344 Tus Rarttroap Law. such distance and in such manner as it may deem necessary, on each or either side of the place where the grade of its road has been changed by direction of the superintendent of public works, at any point where its road crosses any canal or canal feeder, except that in the city of Buffalo such change must conform to the general plan here- tofore adopted and filed by the grade crossing commissioners of said city, or any modification thereof, within the territory covered by said general plan. The superintendent of public works shall have a gen- eral and supervisory power over that part of any railroad which passes over, or approaches with ten rods of any canal or canal feeder belonging to the state so far as may be necessary to preserve the free and perfect use of such canals or feeders, or to make any repairs, im- provements or alterations, in the same. Any railroad corporation whose tracks cross any of the canals of the state, and the grade of which may be raised by direction of the superintendent of public works, with the assent of such superintendent, may lay out a new line of road to cross such canal at a more favorable grade, and may ex- tend such new line and connect the same with any other line of road owned by such corporation upon making and filing in the clerk’s office of the proper county a survey, map and certificate of such new or altered line. No portion of the track of any railroad, as described in its certificate of incorporation, shall be abandoned under this section. As amended by L. 1897, ch. 235, sec. 1. AMENDMENT OF ARTICLES.—The provisions of the Gen. Corp. Law with refer- ence to the correction of errors in articles of incorporation, are inapplicable to an amendment seeking to change the route of a railroad, no error in the original loca- tion being shown. Matter of Riverhead, Q. & S. R. Co., 36 App. Div. 514, 55 N. Y. Supp. 938. § 14. Construction of part of line in another state. Any railroad corporation, whose proposed railroad is to be built between any two points in this state, may, by a vote of two-thirds of all its directors, locate and construct a part of its road in an adjoin- ing state; and the sections of its road within this state shall be deemed a connected line, according to the certificate of incorporation, and the directors may reduce the capital stock of the corporation to stich amount as may be deemed proper, but not less than ten thou- sand dollars per mile for the number of miles of road to be actually constructed in the state. 8 15. Two roads having the same location. If two railroad corporations for a portion of their respective lines ewnbrace the same location of line, or if their lines connect, or are tributary to each other, such corporations may by agreement pro- 345 Tue Rartroap Law. vide for the construction by one of them of so much of such line as is common to both, or connects with its own line, and for the man- ner and terms upon which the business thereon shall be performed, and the corporation that is not to construct the part of the line which is common to both, may amend its certificate of incorporation, and terminate its line at the point of intersection, and may reduce its capital to a sum not less than ten thousand dollars for each mile of road proposed to be constructed in such amended certificate. $ 16. Tunnel railroads. When, according to the route and plan for the building of its road, adopted by any railroad corporation including corporations organized under chapter one hundred and forty of the laws of eighteen hun- dred and fifty, and the acts amendatory thereof, and supplementary thereto, it shall be necessary or proper to build it or any part of it under ground, or to tunnel or bridge any river or waters, such corpo- tation may enter upon, acquire title to and use such lands under water and uplands, except on or along any canals of the state, as shall be necessary for the purpose herein mentioned, and may construct, erect and secure the necessary foundations and other structures. which may be required for operating and maintaining such road, or con- necting the same with another, and to acquire, in the manner pro- ‘vided by law, such land or rights or easements in lands along its route, upon, over or beneath the surface thereof as may be necessary for the construction of its road and making such connections. Where such road runs underneath the ground, at such depth as to enable the corporation to tunnel the same, such tunnel shall be so built and at all times kept in such condition as to make the surface of the ground above the same and in the neighborhood thereof firm and safe for buildings and other erections thereon, and if surface excavations are made the surface shall be restored to its former con- dition as soon as can be done, except so far as may be actually re- quired for ventilation of the tunnel beneath the same or access thereto. Such road or any part of it may be built within the limits of any city or incorporated village of this state, and run by means of a tunnel underneath any of the streets, roads or public places thereof, provided such corporation shall before constructing the same under- neath any such street road or public place, have obtained the consent of the owners of one-half in value of the property bounded on the line of such street, road or public place, and the consent of the board of trustees of the village, by a resolution adopted at a regular meeting and entered on the records of the board, or of the proper authorities 346 Tue Rarzoap Law. of the city having control of such streets, roads or public places. If the consent of such property owners cannot be obtained, the general term of the supreme court in the district in which said city or vil- lage or any part thereof is situated, may upon application appoint three commissioners, who shall determine, after a hearing of all par- ties interested, whether such railroad ought to be built underneath such streets, roads or public places, or any of them, and in what man- ner the same may be so built with the least damage to the surface and to the use of the surface by the public and the determination of the commissioners confirmed by the court may be taken in lieu of the consent of the property owners. All railroad corporations construct- ing their road under this section shall be subject to all the pro- visions of this chapter applicable thereto. Any other railroad corporation may connect its road therewith, at such points or places as it may elect, and where such connections shall be made by con- necting roads, the rajlroad corporations owning such road shall build, at their joint expense, and for their joint use, such passenger and freight depots, and other accommodations for handling passengers and freight, as may be required for the convenience of the public. All railroad corporations, constructing any tunnel under this section shall be liable to any person or corporation for all damages which may be sustained by reason of the construction of such tunnel. Whenever it shall be necessary in constructing any railroad author- ized by this section through any city or incorporated village, to alter the position or course of any sewer, or water or gas pipes, it shall be done at the expense of the railroad corporation under the direction of the department or corporation having charge thereof, so as not to interfere with such work. In all cases the uses of- streets, docks and lands beneath which such railroad is constructed, and on the route thereof and the right of way beneath the same, for the purpose of such railroad shall be considered, and is hereby declared, a public use, consistent with and one of the uses for which streets and docks are publicly held. No public park or square in any city or village of this state shall be used or occupied by any corporation for any of the purposes of this section, and every road constructed hereunder in or through any such street or public place shall be wholly underground and constructed in a tunnel and not otherwise, but nothing in this section shall operate to revive any charter or franchise heretofore granted by or in the city of Brooklyn. This act does not authorize the construction of any bridge over or across the East or North rivers. Am’d by chaps. 676 and 702 of 1892 and chap. 316 of 1893. 347 Tue Rarrroap Law. § 1%. Railroads in foreign countries A railroad corporation may be formed under this chapter for the purpose of constructing, maintaining and operating in any foreign country a railroad for public use in the transportation of persons and property, or for the purpose of maintaining and operating therein any railroad already constructed, in whole or in part, for the like public use, and of constructing, maintaining and operating in con- nection therewith, telegraph lines and lines of steamboats or sailing vessels. Any corporation formed for the construction and operation of a railroad by stationary power, may construct, operate and main- tain a railroad in any other state or country, if not in conflict with the laws thereof, but the assent of the inventors or patentees of the method of propulsion used must be first obtained in the same man- ner and to the same extent as would be necessary within the United States. The term “foreign” in this and the next two sections of this law shall include Porto Rico. Amended by ch. 676 of 1892, ch. 225 of 1902. § 18. Additional corporate powers of such road. The corporation specified in the preceding section shall have the following additional powers: 1. To expend money in making preliminary examinations and sur- veys for its proposed railroad, telegraph lines, and lines of steam- boats and sailing vessels, and in acquiring from foreign countries, nations or governments, the grants, concessions and privileges herein authorized. 2. To take and receive from. foreign countries, nations and govern- ments, such grants, concessions or privileges, for the construc- tion, acquisition, maintenance and operation of railroads, telegraph lines and vessels, as may be consistent with the purposes of the cor- poration, and as may be granted and conceded to it, and to hold the same under such restrictions and with such duties and liabilities as may be fixed by the laws of such foreign country, nation or govern- ment, or as may be annexed to such grants or concessions. 3. To construct, acquire, maintain and operate the lines of rail- road, telegraph and shipping provided for by its certificate of incor- poration, and to take and hold by purchase or by voluntary grant such real estate and other property in foreign countries as may neces- sary and convenient for the construction, maintenance and accom- modation of such lines, and to sell, convey, mortgage or lease such reat estate or other property; and to acquire by purchase or otherwise any railroad or lines of telegraph constructed or in process of construction 348 Tue Rartroap Law. in any foreign country, and any grants, concessions, franchises, rights, privileges and immunities relating thereto, and to issue there- for the capital stock of the company or any part thereof at such valuation or valuations and on such terms as may be agreed upon, and to mortgage or sell and convey such railroad or lines of tele- graph constructed or in process of construction in any foreign country, and any grants, concessions, franchises, rights, privileges and immunities relating thereto, or any part of its property to any person or corporation created by this or any other state or foreign government, subject to the laws of the country or countries where such property may be, and the power of sale hereby granted shall be exercised only by a majority of the entire board of directors of the corporation, with the written concurrence of the holders of two- thirds in amount of its capital stock. 4. To take and convey persons and property on its transportation lines by the power or force of steam or of animals, or by mechanical or other power, and receive compensation therefor subject to the laws of the place or country where the same are situated. 5. To acquire and use such real estate and other property in this state as may be necessary in the conduct of its business, but the value of such real estate held at any one time shall not exceed the sum of one million dollars. Am’d by ch. 504 of 1897. § 19. Location of principal office of such road. Every such corporation shall maintain its principal office within this state and shall have during business hours, an officer or agent upon whom service of process may be made, and shall hold in this state at least one meeting of the stockholders in each year for the choice of directors, which shall be known as the annual meeting and be held at the time and place fixed by the by-laws of the corporation. Amended by L. 1892, ch. 676. § 20. Individual, joint stock association, or other corpora- tion may lay down and maintain railroad tracks in certain cases, Any individual, joint stock association or corporation, engaged in any lawful business in this state, may, except in any city of the state, lay down and maintain such railroad tracks on or across any street or highway, not exceeding three miles in length, as shall be necessary for the transaction of its business, and to connect any place of busi- ness owned by them with the track of any railroad corporation, and render such place of business more accessible to the public upon ob- taining the written consent of the owners of all the lands bounded on 349 Tue Rartroap Law. and of the local authorities having control of that portion of the street or highway, upon which it is proposed to construct or operate such railroad. If the consent of such property owners cannot be obtained, the general term of the supreme court of the department in which such railroad is to be constructed, may, upon application, ap- point three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and the amount of damages, if any, to be paid to such property owners, and their determination confirmed by the court may be taken in lieu of the consent of the property owners. But no such railroad shall be so located, graded, built or operated as to interfere with or obstruct the traveled part of any highway, or its use as a highway, or the use of any street or highway intersecting the same. § 21. Any corporation, whose railroad is or shall be not longer than sixteen miles and is or shall be in large part intended for or used in summer travel, or the convenience of summer sojourners, need not operate its road beyond the months of June, July, August and September inclusive. The motive power may be electricity. If the road be not longer than ten miles, such corporation may fix and col- lect fare for transporting each passenger, together with ordinary baggage, if any, not to exceed fifteen cents for each mile and fraction thereof. Added by chap. 700 of 1893. § 22. Substituted lines in cases of eminent domain. Where a portion of a steam surface railroad or branch thereof, shall be specifically authorized by statute to be taken for any other public use, and such portion lies wholly outside of any city, any cor- poration owning or operating such portion may locate, as provided in section six of this article, and may construct and operate, in sub- stitution for such portion, and with proper connections with the former line, a new line of steam surface railroad, wholly or partly mn the same or any adjoining county, and wholly outside of any city, and not exceeding twenty-five miles in length, in the manner, with the powers and subject to the limitations and requirements provided in this chapter with respect to steam surface railroads. Added by chap. 656 of 1898. § 23. Section 24 of the stock corporation law does not apply to a railroad corporation. Added by chap. 80 of 1898. 350 Tur Raiztroap Law. ARTICLH 2. CONSTRUCTION, OPERATION AND MANAGEMENT. Szotion 30. Liability of corporation to employes of contractor. 31. Weight of rail. ; 32. Fences, farm crossings and cattle-guards. 33. Sign-boards and flagmen at crossings. 34. Notice of starting trains; no preferences. 35. Accommodation of connecting roads. 36. Locomotives must stop at grade crossings. 3%. Rates of fare. 88. Legislature may alter or reduce fare. 39. Penalty for excessive fare. 40. Passengers refusing to pay fare may be ejected. 41, Extra fare for sleeping car. 42. Persons employed as drivers and conductors. 42a. Liability for injuries to employes. 43. Conductors and employes must wear badges. 44. Checks for baggage. 45. Penalties for injury to baggage. 46. Unclaimed freight and baggage. 47. Tickets and checks for connecting steamboats. 48. Rights and liabilities as common carriers. 49. Duties imposed: 1. Switches. . Warning signals. Guard posits. Automatic couplers. Automatic or other safety brake. . Tools in passenger cars. . Water. 49a. Inspection of locomotive boilers. 49b. State inspector of locomotive boilers, 49c. Care of steam locomotives; steam and water cocks; penalty. 50. Railroad commissioners may approve other safeguards. 51. Use of stoves or furnaces prohibited. 52. Canada thistles to be cut. 58. Riding on platform; walking along track. 351 @ Or IR oo Ww ze Tue Rartzo0oap Law. Section 54. Corporations may establish ferries. 55. Certain railroads may cease operations in winter. 56. Mails. 57. Corporations must make annual report. 58. When conductors and brakemen may be policemen. 59. Requisites to exercise of power of future railroad corpo- rations. 59a. Railroad commissioners may certify part of the route of a street surface railroad; power to revoke certifi- cates, street surface railroad extension. 59b. Revocation of certificate and consent. 60-69. Grade crossings. 8 30. Liability of corporation to employes of contractor. An action may be maintained against any railroad corporation by any laborer for the amount due him from any contractor for the con- struction of any part of its road, for ninety or any less number of days’ labor performed by him in constructing such road, if within twenty days thereafter a written notice shall have been served upon the corporation, and the action shall have been commenced after the expiration of ten days and within six months after the service of such notice, which shall contain a statement of the month and partic- ular days upon which the labor was performed and for which it was unpaid, the price per day, the amount due, the name of the contrac- tor from whom due, and the section upon which performed, and shall be signed by the laborer or his attorney and verified by him to the effect that of his own knowledge the statements contained in it are true. The notice shall be served by delivering the same to an engineer, agent or superintendent having charge of the section of the road, upon which the labor was performed, personally, or by leaving it at his office or usual place of business with some person of suit- able age or discretion; and if the corporation has no such agent, engineer or superintendent, or in case he cannot be found and has no place of business open, service may in like manner be made on any officer or director of the corporation. § 31. Weight of rail. The rail used in the construction or the relaying of the track of every railroad hereafter built or relaid in whole or in part shall be of iron or steel, weighing not less than twenty-five pounds to the lineal yard on narrow gauge roads, and on all other roads not less than fifty-six pounds to the lineal yard on grades of one hundred and 352 Tue Rarroap Law. ten feet to the mile or unler, and not less than seventy pounds to the lineal yard on grades of over one hundred and ten feet to the mile, except for turnouts, sidings and switches. § 32. Fences, farm crossings and cattle-guards, Every railroad corporation, and any lessee or other person in pos- session of its road, shall, before the lines of its roads are opened for use, and so soon as it has acquired the right of way for its roadway erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands with farm crossings and openings with gates therein at such farm crossings when- ever and wherever reasonably necessary for the use of the own- ers and occupants of the adjoining lands, and shall construct where not already done, and hereafter maintain, cattle-guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. So long as such fences are not- made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon. When made and in good repair, they shall not be liable for any such damages, unless negligently or wilfully done. A sufficient post and wire fence of requisite height shall be deemed a lawful fence within the provisions of this section, but barbed wire shall not be used in its construction. No railroad need be fenced, when not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands. Every adjoining land owner, who, or whose grantor, has received compensation for fencing the line of land taken for a railroad, and has agreed to build and maintain a lawful fence along such line, shall build and maintain such fence. If such owner, his heir or assign shall not build such fence, or if built, shall neglect to maintain the same during the period of thirty days after he has been notified so to do by the railroad corporation, such corporation shall thereafter build and maintain such fence, and may recover of the person neglecting to build and maintain it the expense thereof. And when such railroad shall cross timbered or forest lands, the company shall construct and maintain suitable and sufficient crossings, whenever and wherever reasonably necessary to enable the respective owners of said lands, to transport logs, timber and lumber for manufacture or sale, or for banking on any stream, to be floated or driven down the same. In case of any neglect or dispute the supreme court may by mandamus or other appropriate proceedings, 353 Tue Rarztroap Law. compel the same, and also fix the point or location of any such crossing. Thus amended by L. 1891, ch. 367, and by 1892, ch. 676. Strepr Raipways.—On the applicability of the requirements of this section to street surface railroads, see Evans v. Utica & M. Val. R. Co., 44 Misc. 345, 89. N. Y. Supp. 1089. § 33. Signboards and flagmen at crossings. Every railroad corporation shall cause a sign board to be placed, well supported and constantly maintained, at every crossing where its road is crossed by a public highway at grade. Such sign board, shall be of a shape and design to be approved by the board of rail- road commissioners, and shall have suitable words painted thereon to warn travelers of the existence of such grade crossing. The board of railroad commissioners shall have power to prescribe the location and elevation of such sign and the words of warning thereon. The commission may dispense with the use of such sign boards at such crossings as they may designate in cities and villages. At any point where a railroad crosses a street, highway, turnpike, plank-road, or traveled way at grade, or where a steam railroad crosses a horse railroad at grade, and the corporation owning or operating such railroad, refuses, upon request of the local anthorities, to station a flagman or erect gates, to be opened and closed when an engine or train passes, the supreme court or the county court, may, upon the application of the local authorities and upon ten days’ notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a person be stationed to open and close them when an engine or train passes, or may make such other order respecting the same as it deems proper. Whenever the crossing by a railroad at grade of the streets, highways, turnpike, plank-roads, or traveled ways of any village or city, having a popula- tion by the last state or federal enumeration of less than fifty thou- sand, shall be protected by gates with persons to open and close the same, when an engine or train passes, the local authorities of the city or village shall not impose any limitation, less than forty miles an hour, on the rate of speed at which such engine or train shall be run, or enforce any existing limitation upon such rate of speed, less than forty miles an hour. ’ ys Amended by ch. 301 of 1901. 8 34. Notice of starting trains; no preferences. Every railroad corporation shall start and run its cars for the transportation of passengers and property at regular times, to be fixed by public notice, and shall furnish sufficient accomodations for 354 Tur Rartzgoap Law. the transportation of all passengers and property which shall be offered for transportation at the place of starting, within a reasonable time previously thereto, and at the junctions of other railroads, and at the usual stopping places established for receiving and discharging way passengers and freight for that train; and shall take, transport and discharge such passengers and property at, from and to, such places, on the due payment of the fare or freight legally authorized therefor. No station established by any railroad corporation for the reception or delivery of passengers or property, or both, shall be discontinued without the consent of the board of railroad commis- sioners first had and obtained. No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its ground, shall be granted by any railroad corporation to any one of two or more persons, associations or corpora- tions competing in the same business, or in the business of transport- ing property for themselves or others. Any such station in an incorporate village shall have the same name as the village; if any road shall have more than one such station in any such village, the station nearest the geographical center thereof shall have such name. As amended by L. 1892, ch. 676. PREFERENCHES.—This section does not prohibit a railroad company whose line ends at a place where rival steamboat companies touch, from grariting to ove com- pany an exclusive right to occupy the terminal facilities of the road. Alexandria Bay S. Co. v. New York, C. & H. R. R. Co., 18 App. Div. 527, 45 N. Y. Supp. 1091. An agreement by a railroad company giving a hackman the exclusive privilege of soliciting and obtaining passengers on the station grounds, does not yiolate the provisions of this section. New York C. & H. R. R. Co. v. Warren, 31 Misc. 571, 64 N. Y. Supp. 781, and cases cited; New York C. & H. R. R. Co. v. Flynn, 74 Hun 124, 26 N. Y. Supp. 859; N. Y. C. & H. R. R. Co. v. Sheeley, 27 N. Y. Supp. 185. A hackman is not a common carrier within the meaning of this section. New York C. & H. R. R. Co. v. Sheeley, 27 N. Y. Supp. 185. NamzE.—Where a railroad station is between two incorporated villages, being half in one and half in the other, the company cannot be compelled to change the name of the station to that of the village. People ex rel. North Pelham y. New York, N. H. & H. R. Co., 125 App. Div, 641, 110 N. Y. Supp. 2. § 35. Accommodation of connecting roads. Every railroad corporation whose road, at or near the same place, connects with or is intersected by two or more railroads competing for its business, shall fairly and impartially afford to each of such connecting or intersecting roads equal terms of accommodation, privileges and facilities in the transportation of cars, passengers, bag- gage and freight over and upon it roads, and over and upon their roads, and equal facilities in the interchange ad use of passenger, baggage, freight and other cats required to accommodate the business of each road, and in furhishing passage tickets to passengers who may desire to make a continuous trip over any part of its roads and 355 Tue Rartroap Law. either of such connecting roads. The board of railroad commis- sioners may, upon application of the corporation owning or operat- ing either of the connecting or intersecting roads, and upon fourteen days’ notice to the corporation owning or operating the other road, prescribe such regulations as will secure, in their judgment, the enjoyment of equal privileges, accomodations and facilities to such connecting or intersecting roads as may be required to accommodate the business of each road, and the terms and conditions upon which the same shall be afforded to each road. The decision of the commissioners shall be binding on the parties for two years, and the supreme court shall have power to compel the performance thereof by attachment, mandamus, or otherwise. WHat ARH CONNECTING Linps.—As to what are connecting roads within the meaning of this section, see New York, L. & W. R. Co. v. Erie R. Co., 31 App. Div. 378, 52 N. Y. Supp. 318. § 36. Locomotives must stop at grade crossings. All trains and locomotives on railroads crossing each other at grade shall come to a full stop before crossing, not less than two hun- dred or more than eight hundred feet from the crossing, and shall then cross only when the way is clear and upon a signal from a watchman stationed at the crossing. If the corporations cannot agree as to the expense of the watchman, it shall be determined by the supreme court, upon motion thereto by either of them. If the corporations disagree as to the precedence of trains, the board of raidroad commis- sioners may, after hearing, upon the application of either corpora- tion, prescribe rules in relation thereto. The full stop and crossing on signal may be discontinued if the board of railroad commissioners shall decide it to be impracticable, or if, with the approval of the commissioners, an interlocking switch and signal apparatus is adopted and put in operation at such a crossing. The full stop and crossing on signal shall not be required in depot yards, or the approaches thereto, if the crossing roads are under lease or subject to the same management or control in the use of tracks. An engineer, violating the foregoing provisions of this section, or any such rule of the railroad commissioners, shall be liable to a penalty of one hundred dollars; and any corporation or person operating the railroad, violat- ing any of such provisions or rules shall be liable to a penalty of five hundred dollars. The board of railroad commissioners may, when- ever in its judgment the public safety requires the erection of inter- locking switch and signal devices at points where steam and street surface railroads intersect at grade, direct the erection of such devices and apportion the expense of construction, operation and maintenance 356 Tue Rartzoap Law. thereof between the companies affected thereby. No railroad corpo- ration, or any officer, agent or employe thereof, shall stop it cars, horses, or locomotives upon a grade crossing of a railroad of another corporation, for the purpose of receiving or delivering passengers or freight, or other purpose, and any person or corporation violating this provision, shall be liable to a penalty of two hundred and fifty dollars. Am’d ch, 466 of 1898. § 37. Rates of fare. Every railway corporation may fix and collect the following rates of fare as compensation to be paid for transporting any passenger and his baggage, not exceedng one hundred and fifty pounds in weight, for each mile or fraction of a mile. 1. Where the motive power is rope or cable, propelled by stationary power, five cents, with right to a minimum fare of ten cents; but if the railroad is less than two miles in length, and overcomes an eleva- tion of five hundred feet or more to the mile, five cents for each one hundred feet of elevation so overcome, and the same rates of fare if the motive power is locomotives, furnished with cogs working into cogs on the railway, and the length of road does not exceed four miles. 2. If a road, not incorporated prior to May 15, 1879, and not located in the counties of New York and Kings, or within the limits of any incorporated city, and not more than twenty-five miles in length, five cents; if over twenty-five and not more than forty miles, four cents; and if over forty miles, three cents. Where by the laying down of a third rail upon a railroad of the ordinary gauge, a narrow- gauge track is created and used for the transportation of passengers, and the length of road does not exceed six miles, including any connecting road of the same gauge, such railroad, for the purpose of fare, shall be deemed a narrow-gauge road. 3. If its railroad overcomes an elevation of two hundred feet to the mile, for at least two consecutive miles, and does not exceed twenty miles in length, ten cents; if it overcomes an elevation exceed- ing three hundred feet to the mile, within a distance of two miles, five cents for each one hundred feet of elevation; and where it over- comes an elevation of more than one thousand feet, within a distance of two miles, seven cents for each one hundred feet of elevation in a mile. : 4, If the line of its road does not exceed fifteen miles in length, and does not enter or traverse the limits of any incorporated city, and the distance traveled thereon by the passenger does not exceed one mile, five cents. 357 Tue Rartroap Law. 5. In all other cases, three cents for every such mile or fraction thereof, with a right to a minimum single fare of not less than five cents. This chapter shall not be construed to allow any rate of fare for way passengers greater than two cents per mile to be charged or taken over the track or tracks of the railroad known as the New York central railroad company, and the rate of fare for way passengers over the track or tracks of such company shall continue to be two cents per mile, and no more, wherever it is restricted to that rate of fare, nor shall any consolidated railroad corporation charge a higher rate of fare per passenger per mile, upon any part or portion of the consolidated line than was allowed by law to be charged by each existing corporation thereon previously to such consolidation. As amended by L. 1892, ch. 676. In GenpRAL.—A corporation organized as a steam railroad, but operating a line 5 or 6 miles long as an electric road, and charging » fee of 10 cents, must conform to the provisions of the steam railroad act under which it was organized. Petze v. Coney Island & B. R. Co., 127 App. Div. 351, 111 N. Y. Supp. 532. As to the right of a street railway company whose road overcomes an elevation exceeding 300 feet to the mile within a distance of two miles, to exact a fare of ten cents, see Goodspeed v. Ithaca St. R. Co., 184 N. Y. 351. § 38. Legislature may alter or reduce fare. The legislature may, when any such railroad shall be open for use from time to time, alter or reduce the rate of freight, fare or other profits upon such road; but the same shall not, without the consent of the corporation, be so reduced as to produce with such profits less than ten per centum per annum on the capital actually expended; nor unless on an examination of the amounts received and expended, to be made by the board of railroad commissioners they shall ascertain that the net income derived by the corporation from all sources, for the year then last past, shall have exceeded an annual income of ten per centum upon the capital of the corporation actually ex- pended. No person shall issue or sell, or offer to sell any passage ticket or instrument giving or purporting to give any right, either absolute or upon any condition or contingency to a passage or con- veyance upon any vessel or railway train, or for a berth or stateroom in any vessel unless he is an authorized agent of the owners or con- signees of such vessel or of the company running such trains, except- ing as allowed by sections six hundred and twenty-two and six hundred and twenty-three of the penal code; and no person is deemed an authorized agent of such owners, consignees or company unless he has received a certificate of authority in writing therefor, specify- ing the name of the company, line, vessel or railway for which he is authorized to act as agent, and the city, town or village, together 358 Tue Rartzoap Law. with the street and street number in which his office is kept for the sale of tickets; and no genera] passenger agent or other officer of a common carrier whose duty it may be to supply tickets to the agents of said common carrier for sale to the public shall suppty tickets for sale to any person other than such regularly authorized agents or persons specified in sections six hundred and twenty-two and six hundred and twenty-three of the penal code. As amended by L. 1901, ch. 639, sec. 1. In GmuNERAL.—A statute which is reasonable in its provisions and which seeks fairly to regulate the rates of transportation without discrimination, is not un- constitutional. Schutte v. Weir, 59 Misc. 438, 111 N. Y. Supp. 240. § 39. Penalty for excessive fare. Any railroad corporation, which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party paying the same; but no action can be maintained therefor, ‘unless commenced within one year after the cause of action accrued. Ricut To PrenaLty.—Payment of another fare because of the refusal of the conductor of the second car to accept a transfer on the ground that it was im- properly punched, does not make the company Hable for the penalty, since the act of the conductor in issuing a transfer incorrectly punched was a mistake within the meaning of the statute. McCarthy v. International R. Co., 126 App. Div. 182, 110 N. Y. Supp. 936. The payment of a second fare to a conductor of a street car who denied to the passenger that a previous fare had been paid, does not render the company lHlable to the penalty, since the second fare was received through mistake not amounting to gross negligence. Robinson v. International R. Co., 54 Misc. 163, 103 N. Y. Supp. 588. A street railway company which voluntarily gives a passenger a transfer for use over another line when It is legally entitled to payment of another fare on the second line, is not liable for the penalty by requiring the payment of another fare. King v. Nassau El. R. Co., 128 App. Div. 130, 112 N. Y. Supp. 589. A street railway company is not liable for the penalty imposed by this section, by the refusal of a conductor to accept a transfer and making a demand for pay- ment of fare by one who failed to take a car making a continuous trip to his destination, but who boarded one which turned off in another direction and from the conductor of which he obtained a transfer upon getting off to take the car going to his destination. Roach v. Brooklyn Heights R. Co., 119 App. Div. 520, 104 N. Y. Supp. 219. In Stewart v. Metropolitan St. R. Co., 20 Misc. 605, 46 N. Y. Supp. 414, it appeared that the passenger boarded a street car and paid his fare, and before reaching his destination was directed by the conductor to take the next car as the one in which he was riding did not go any further; the conductor of che next car demanded fare which the passenger refused to pay and upon such refusal ejected him. The court held that this did not constitute an attempt to exace more than one legal fare within the meaning of this section, and consequently plaintiff had no right of action, for the penalty provided. MISTAKE OF Law.—This section contemplates that the mistake therein men- tioned relieving the company from the penalty, may be one of law as well as one of fact. Goodspeed v. Ithaca St. R. Co., 184 N. Y. 351. A company charging a fare of 10 cents, under legal advice, is subject to the statutory penalty, and cannot claim that the charge was made through mistake or inadvertence. Petze v. Coney Island & B. R. Co. 127 App. Div. 351, 111 N. Y. Supp. 532. 859 Tur Rartroap Law. REFUSAL To GIvp TRANSFER.—The provisions of this section are inapplicable to the case of the refusal of a street car company to give a transfer to a connect- ing line, but is limited to the exaction of more than the lawful rate of fare. O’Connor v. Brooklyn Heights R. Co., 123 App. Div. 784, 108 N. Y. Supp. 471; Snee vy. Brooklyn Heights R. Co., 120 App. Div. 570, 104 N. Y. Supp. 907, aff'd (N. Y.) mem, 8 40. Passenger refusing to pay fare may be ejected. If any passenger shall refuse to pay his fare the conductor of the train, and the servants of the corporation, may put him and his baggage out of the cars, using no unnecessary force, on stopping the train, at any usual stopping place, or near any dwelling-house, as the conductor may elect. § 41. Sleeping and parlor cars. And railroad corporation may contract with any person, association or corporation for the hauling by the special or regular trains of said railroad corporation, the parlor, drawing-room or sleeping car or cars uf such person, association or corporation, in which extra accommoda- tions shall be furnished, for which said person, association or corpora- tion furnishing such parlor, drawing-room or sleeping car or cars may charge for the carriage and transportation of persons and property therein, a reasonable compensation for such extra accommodation, in addition to the fare and charges now allowed by law for the carriage and transportation of passengers and property in the ordinary cars of said railroad corporation. But said railroad corporation so cun- tracting shall be liable in the same way and to the same extent as if the said car or cars were owned by it, and shall furnish sufficient ordinary cars for the reasonable accommodation of the traveling public. § 42. Persons employed as drivers, conductors, motormen or grip- men. Any railroad corporation may employ any inhabitant of the State, of the age of twenty-one years, not addicted to the use of intoxicating liquors, as a car driver, conductor, mortorman or gripman, or in any other capacity, if fit and competent therefor. All applicants for positions as motormen or gripmen on any street surface railroad in this State shall be subjected to a thorough examination by the officers of the corporation as to their habits, physical ability and intelligence. If this examination is satisfactory, the applicant shall be placed in the shop or power house where he can be made familiar with the power and machinery he is about to control. He shall then be placed on a car with an instructor, and when the latter is satisfied as to the applicant’s capability for the position of motorman or gripman, he shall so certify to the officers of the company, and, if appointed, 360 Tue Rartroap Law. the applicant shall first serve on the lines of least travel. Any violation of the provisions of this section shall be a misdemeanor. As amended by L. 1895, ch. 513, sec. 1. CRIMINAL LIABILITY.—A person unable to read shall not act or be employed as an engineer. Penal Law. sec. 1982 (formerly sec. 418 of the Penal Code). § 42a. Liability for injuries to employes. In all actions against a railroad corporation, foreign or domestic, doing business in this state, or against a receiver thereof, for personal injury to, or death resulting from personal injury of any person, while in the employment of such corporation, or receiver, arising from the negligence of such corporation or receiver or of any of its or his officers or employes, every employe, or his legal representatives, shall have the same rights and remedies for an injury, or for death, suffered by him, from the act or omission of such corporation or receiver or of its or his officers or employes, as are now allowed by law, and, in addition to the liability now existing by law, it shall be held in such actions that persons engaged in the service of any railroad corporation, foreign or domestic, doing business in this state, or in the service of a receiver thereof, who are entrusted by such corporation or receiver, with the authority of superintendence, control or command of other persons in the employment of such corpora- tion or receiver, or with the authority to direct or control any other employe in the performance of the duty of such employe, or who have, as a part of their duty, for the time being, physical control or direction of the movement of a signal, switch, locomotive engine, car, train or telegraph oftice, are vice principles of such corporation or receiver, and ard not fellow servants of such injured or deceased employe. If an employe, engaged in the service of any such railroad corporation, or of a receiver thereof, shall receive any injury by reason of any defect in the condition of the ways, works, machinery, plant, tools or implements, or of any car, train, locomotive or attach- ment thereto belonging, owned or operated, or being run and operated by such corporation or receiver, when such defect could have been discovered by such corporation or receiver, by reasonable and proper care, tests or inspection, such corporation or receiver, shall be deemed to have had knowledge of such defect before and at the time such injury is sustained ; and when the fact of such defect shall be proved upon the trial of any action in the courts of this state, brought by such employe or his legal representatives, against any such railroad corporation or receiver, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation or receiver. This section shall not affect actions or 361 Tue Rartroap Law. causes of action now existing; and no contract, receipt, rule or regulation, between an employe and a railroad corporation or receiver, shall exempt or limit the liability of such corporation or receiver from the provisions of this section. Added by ch. 657 of 1906. § 43. Conductors and employes must wear badges. Every conductor and employe of a railroad corporation employed in a passenger train, or at stations for passengers, shall wear upon his hat or cap a badge, which shall indicate his office or employment, and the initial letters of the corporation employing him. No con- ductor or collector without such badge shall demand or receive from any passenger any fare or ticket or exercise any of the powers of his employment. No officer or employe without such badge shall meddle or interfere with any passenger, his baggage or property. As amended by L. 1892, ch. 676. CRIMINAL LIABILITy.—Wearing uniform without authority, see Penal Law, sec. 1989 (formerly sec. 425 of the Penal Code). § 44. Checks for baggage. A check, made of some proper substance of convenient size and form, plainly stamped with numbers, and furnished with a con- venient strap or other appendage for attaching to baggage, shall be affixed to every piece or parcel of baggage when taken for transporta- tion for a passenger by the agent or employe of such corporation, if there is a handle, loop or fixture therefor upon the piece or parcel of baggage, and a duplicate thereof given to the passenger or person delivering the same to him. If such check be refused on demand the corporation shall pay to the passenger the sum of ten dollars, and no fare shall be collected or received from him; and if he shall have paid his fare it shall be refunded to him by the con- ductor in charge of the train. Such baggage shall be delivered, without unnecessary delay, to the passenger or any person act- acting in his behalf at the place to which it was to be transported, where the cars usually stop, or at any other regular intermediate stopping place, upon notice to the baggage-master in charge of baggage on the train, of not less than thirty minutes, upon presenta- tion of such duplicate check to the officer or agent of the railroad corporation, or of any corporation, over any portion of whose road it was transported. Bicycles are hereby declared to be and be deemed , baggage for the purposes of this article and shall be transported as baggage for passengers by railroad corporations and subject to the same liabilities, and no such passenger shall be required to erate, cover or otherwise protect any such bicycle; provided, however, that a 362 Tue Rarroap Law. railroad corporation shall not be required to transport, under the provisions of this act, more than one bicycle for a single person. As amended by L. 1896, ch. 383; L. 1902, ch. 388, sec. 1. The amendment of 1902 struck out the word “ metallic’? with reference to baggage checks. In 1896 bicycles were declared to be baggage. § 45. Penalties for injuries to baggage. Any person, whose duty it is for or on behalf of the common earrier to handle, remove, or care for the baggage of passengers, who shall recklessly or willfully injure or destroy any trunk, valise, box, bag, package or parcel, while loading, unloading, transporting, delivering or storing the same, or any railroad corporation, which shall knowingly keep in its employment any such willful or reckless person, or which shall permit any injury or destruction of such property, through failure to provide sufficient help and facilities for the handl- ing thereof, shall pay to the party injured thereby the sum of fifty dollars, in a addition to such damages. § 46. Unclaimed freight and baggage. Every railroad or other transportation corporation, doing business in this state, which shall have unclaimed freight or baggage, not live stock or perishable, in its possession for the period of sixty days may deliver the same to any warehouse company, or’ person or persons engaged in the warehouse business, within this state, and take a warehouse receipt for the storage thereof. Upon such delivery and upon taking such warehouse receipt, every such railroad or other transportation corporation shall be discharged of all liability in re- spect to any unclaimed freight or baggage from and after such de- livery. At any time within two years after such delivery, such rail- road or other transportation corporation shall surrender and transfer such warehouse receipt to the owner of any such unclaimed freight or baggage upon demand, and upon payment of all charges and expenses for transportation and storage then due, if any, to any such railroad or other transportation corporation. In case any such railroad or other transportation company shall have had unclaimed freight or baggage upon demand, and upon payment of all charges and expenses for transportation and storage then due, if any, to any such railroad or other transportaion corporation, In case and such railroad or other transporation company shall have had unclaimed freight or baggage, not live stock or perishable, in its possession for a period of one year and shall not have delivered the same to a warehouse company or person or persons engaged in the warehouse business as above provided, then such railroad or other transporta- tion company may proceed to sell the same at public auction, and out 363 Tue Rartroap Law. of the proceeds may retain the charges of transportation handling and storage of such unclaimed freight or baggage, and the expenses of advertising and sale thereof; but no such sale shall be made until the expiration of four weeks from the first publication of notice of such sale to be published weekly in a newspaper published in or nearest the town or city to which such unclaimed freight or baggage was consigned, or at which it was directed to be left, and also at the town or city where such sale is to take place; and said notice shall contain a general description of such unclaimed freight or baggage, the name of the shipper thereof if known, and a statement of the consignment thereof, whether to a designated consignee or to order, if known, or the place, at which the same was to be left, as near as may be; and the expenses incurred for advertising shall be a lien upon such unclaimed freight or baggage in a ratable proportion, ac- cording to the value of each article, package or parcel, if more than one. Such railroad or other transportation company shall make an entry of the balance of the proceeds of the sale, if any, of the un- claimed freight or baggage consigned to the same consignee or covered by each consignment, as near as can be ascertained, and at any time within. five years thereafter, shall refund any surplus so retained to the owners of such unclaimed freight or baggage, his per- sonal representatives or assigns, on satisfactory proof of such owner- ship. In case such balance shall not be claimed by the rightful owner within five years after the sale as above specified, then it shali be paid to the county treasurer, for the use of the county poor of the county where the sale is made. Unclaimed live stock and perishable freight or baggage may be sold by any such railroad or other transportation corporation with- out notice, as soon as it can be, upon the best terms that can be ob- tained. All moneys arising from the sale of any such unclaimed live stock, perishable freight or baggage, after deducting therefrom all charges and expenses for transportation, storage, keeping, commis- sions for selling the property, and any amount previously paid for its loss or non-delivery, shall be deposited by the corporation making such sale with a report thereof, and proof that the property was live stock or perishabe freight, with the comptroller for the benefit of the general fund of the state, and shall be held by him in trust for reclamation by the person or persons entitled to receive the same. Amended by ch. 582 of 1899. § 41. Tickets and checks for connecting steamboats. The proprietors of any line of steamboats, terminating or stopping for passengers at any place where a railroad corporation has a depot 364 Tur Rartroap Law. or station, may furnish tickets and baggage checks to such corpora- tion for the use of passengers, traveling over its road, who desire to connect with such line of boats at any such place, and the railroad corporation shall sell such tickets and deliver a duplicate of one of such checks to any such passenger applying therefor, and shall ac- count for and pay over to the proprietor of such line of boats all moneys received by it for the sale of such tickets; and any such rail- road corporation may furnish tickets and checks for baggage to the proprietors of any such line of steamboats for the use of passengers traveling over any part of such line of boats, who desire to connect with the railroad of any such corporation at any such place, and such proprietors shall sell such tickets and deliver a duplicate of one of such checks to any such passenger applying therefor, and shall ac- count for and pay over to such corporation all moneys received by them for the sale of such tickets. No greater rate of fare shall be charged by any railroad corporation to any such passenger for the distance traveled over its road than is charged to travelers for the same distance whose trip ends at the place where connection is made with any such line of boats, and no greater rate of fare shall be charged by the proprietors of any such steamboat line to any such passenger for the distance traveled over its line, than is charged to travelers for the same distance whose trip ends at the place where connection is made with any such railroad. Any additional cost of transfer of a passenger or his baggage from railroad depot or station to steamboat landing, or from steamboat landing to depot or station, shall be borne by the passenger or the proprietors of the steamboat line or the railroad corporation at whose instance or for whose bene- fit such transfer is made. Every railroad corporation and the pro- prietors of any line of steamboats, their agents or servants, who shall neglect or refuse to sell tickets or furnish a check to any passenger applying for the same, when the same shall have been furnished to them, shall pay to such passenger the sum of ten dollars, and no fare or toll shall be collected from him for riding over such road or upon such boats, as the case may be; and in addition thereto any railroad corporation so neglecting or refusing, shall pay the proprietors of such line of boats two hundred and fifty dollars for each day it shall so neglect or refuse; and the proprietors of any such line of boats so neglecting or refusing, shall pay to such railroad corporation a like sum for each day they shall so englect or refuse. Every such railroad corporation shall also receive any freight which shall be delivered at any station on the line of its road, marked to go by way of boat or any particular line of boats from any station on its 365 Tue Rartroap Law. road at which such boat or line of boats terminates or stops for freight, and shall transport such freight with all convenient speed to such station, and on its arrival there cause the proprietors of the steamboat line by which it is directed to be sent, or their agent, to be notified of such arrival, and shall deliver such freight to such pro- prietors or their agent with the bill of charges thereon due such rail- road corporation, for the payment of which charges the proprietor or proprietors of such steamboat line shall be responsible, and shall ac- count for and pay the same to such railroad corporation on demand. The railroad corporation shall not charge for the transportation of such freight over its road any greater sum pro rata than it charges for carrying the same kind of freight the same distance over its road, if it was to be transported by such corporation by rail to its final destination, or to the terminus of the road of such corporation in case it terminates before such final destination is reached. Any freight delivered by the proprietors of any steamboat or steamboat line, or their authorized agent, at any station, at a place where such steam- boat or steamboats have a landing, to any such railroad corporation, for transportation over its road or any part thereof, shall be trans- ported by such corporation to its place of destination for the same price pro rata which would be charged for the same kind of freight the same distance over its road, if the same had been taken on at the point of first shipment by boat, or at the terminus of the road of such corporation, in case it does not extend to the point of first shipment. § 48. Rights and liabilities as common carriers. Every railroad corporation doing business in this state shall be a common carrier. Any one of two or more corporations owning or operating connecting roads, within this state, or partly within and partly without the state, shall be liable as a common carrier, for the transportation of passengers or delivery of freight received by it to be transported by it to any place on the line of a connecting road; and if it shall become liable to pay any sum by reason of neglect or misconduct of any other corporation it may collect the same of the corporation by reason of whose neglect or misconduct it became liable. § 49. Switches; warning signals; guard-posts; automatic couplers; automatic or other safety brake; tools in passenger car; water. Tt shall be the duty of every railroad corporation operating its road by steam : 1. To lay, in the construction of new and in the renewal of exist- 366 - Tue Rarroap Law. ing switches, upon freight or passenger main line tracks, switches on the principal of either the so-called Tyler, Wharton, Lorenze, or split-point switch, or some other kind of safety switch, which shall prevent the derailment of a train, when such switch is misplaced or a switch interlocked with distant signals. 2. To erect and thereafter maintain such suitable warning signals at every road, bridge, or structure which crosses the railroad above the tracks, where such warning signals may be necessary, for the pro- tection of employes on top of cars from injury. Subdivision 3 repealed by chap. 740 of 1900. 4, To use upon every new freight car, built or purchased for use, couplers which can be coupled and uncoupled automatically, without the necessity of having a person guide the link, lift the pin by hand, or go between the ends of the cars. 5. To attach to every car used for passenger transportation an automatic air-brake or other form of safety-power brake, applied from the locomotive, excepting cars attached to freight trains, the schedule rate of speed of which does not exceed twenty miles an hour. 6. To provide each closed car in use in every passenger train owned or regularly used upon a railroad, with one set of tools, con- sisting of an axe, sledge hammer, crowbar and hand saw and such other or additional tools as the board of railroad commissioners may require, to be placed where directed by the board of railroad com- missioners. Amended by ch. 521 of 1898. %. To provide, in each passenger car, where the line of road shall exceed forty continuous miles in length, a suitable receptacle for water, with a cup or drinking utensil attached upon or near such receptacle, and to keep such receptacle, while the car is in use, con- stantly supplied with cool: water. Every corporation, person or persons, operating such railroad, and violating any of the provisions of this section, except subdivis- ion seven, shall be liable to a penalty of one hundred dollars for each offense, and the further penalty of ten dollars for each day that it shall omit or neglect to comply with any of such provisions. For every violation of the provisions of the seventh subdivision of this section, every such corporation shall be liable to a penalty of twenty- five dollars for each offense. § 49-a. Inspection of locomotive boilers, It shall be the duty of every railroad corporation operated by steam power, within this state, and of the directors, managers or superin- tendents of such railroad to cause thorough inspections to be made of 367 Tue Rartroap Law. the boilers and their appurtenances of all the steam locomotives which shall be used by such corporation or corporations, on said rail- roads. Said inspections shall be made, at least every three months under the direction and superintendence of said corporations, or the directors, managers or superintendents thereof, by persons of suita- ble qualifications and attainments to perform the services required of inspectors of boilers, and who from their knowledge of the con- struction and use of boilers and the appurtenances therewith con- nected, are able to form a reliable opinion of the strength, form, workmanship and suitableness of boilers, to be employed without hazard of life, from inperfections in material, workmanship or ar- rangement of any part of such boiler and appurtenances. All such boilers so used shall comply with the following requirements: The boilers must be made of good and suitable materials; the openings for the passage of water and steam respectively, and all pipes and tubes exposed to heat shall be of proper dimensions; the safety valves, fusible plugs, low water glass indicator, gauge cocks and steam guages, shall be of such construction, condition and arrangement that the same may be safely employed in the active service of the railroad corporation without peril to life; and each inspector shall satisfy himself by thorough examination that said requirements have been fully complied with. No boiler, nor any connection therewith shall be approved which is unsafe in its form, or dangerous from de- fects, workmanship or other cause. The person or persons who shall make the said inspections if he or they approve of the boiler or boilers and the appurtenances throughout, shall make and subscribe his or their name to a written or printed certificate which shall con- tain the number of each boiler inspected, the date of its insepction, the condition of the boiler inspected, and such details as may be re- quired by the forms and regulations which shall be prescribed by the railroad commissioners. Every certificate shall be verified by the oath of the inspector, and he shall cause said certificate or certificates to be filed in the office of the railroad commissioners, within ten days after each inspection shall be made, and also a copy thereof with the chief operating officer or employee of such railroad having charge of the operation of such locomotive boiler; a copy shall also be placed by such officer or employee in a conspicuous place in the cab connected with the locomotive boiler inspected, and there kept framed under glass. The railroad commissioner shall have power, from time to time, to formulate rules and regulations for the inspection and test- ing of boilers as aforesaid, and may require the removal of incom- petent inspectors of boilers under the provisions of this act. Copies 368 Tux Rartroap Law. of such rules and regulations shall be mailed to every corporation operating a railroad by steam in this state. If it shall be ascertained by such inspection and test or otherwise, that any locomotive boiler is unsafe for use, the same shall not again be used until it shall be repaired, and made safe, so as to comply with the requirements of this section. Every corporation, director, manager or superintendent operating such railroad and violating any of the provisions of this section shall be liable to a penalty, to be paid to the people of the state of New York, of one hundred dollars for each offense, and the further penalty of one hundred dollars for each day it or they shall omit or neglect to comply with said provisions, and the making or filing of a false certificate shall be a misdemeanor, and every in- spector who wilfully certifies falsely touching any steam: boiler, or any appurtenance thereto belonging, or any matter or thing con- tained or required to be contained in any certificate, signed and sworn to by him, shall be guilty of a misdemeanor. Any person, upon ap- plication to the secretary of said board of railroad commissioners, and on the payment of such reasonable fee as said board may by rule fix, shall be furnished with a copy of any such certificate. Added by ch. 611 of 1905, ch. 208 of 1907. § 49-b. State inspector of locomotive boilers. Within twenty days after this section takes effect, the state rail- road commission shall appoint a competent person as inspector of locomotive boilers, who shall receive a compensation to be fixed by the commission, not exceeding three thousand dollars per year. Such inspector shall, under the direction of the commission, inspect boilers or locomotives used by railroad corporations operating steam rail- roads within the state, and may cause the same to be tested by hydrostatic test and shall perform such other duties in connection with the inspection and test of locomotive boilers as the commission shall direct. But this section shall not relieve any railroad corpo- tation from the duties imposed by the preceding section. Added by ch. 611 of 1905. § 49-c. Care of steam locomotives; steam and water cocks; penalty. It shall be the duty of every corporation operating a steam rail- road, within this state, and of its directors, managers or superin- tendents, to cause the boiler of every locomotive used on such railroad to be washed out as often as once every thirty days, and to equip each boiler with, and maintain thereon at all times, a water glass, showing the height of water in the boiler, having two valves or shut-off cocks, one at each end of such glass, which valves or shut-off cocks shail 369 Tue Rarroap Law. be so constructed that they can be easily opened and closed by hand; also to cause such valves or shut-off cocks and all gauge cocks or try- cocks attached to the boiler to be removed and cleaned whenever the boiler is washed out pursuant to the foregoing requirements of this section; also to keep all steam valves, cocks and joints, studs, bolts and seams in such repair that they will not at any time emit steam in front of the engineer, so as to obscure his vision. No locomotive shall hereafter be driven in this state unless the same is equipped and cared for in conformity with the provisions of this section; but noth- ing here contained shall be construed to excuse the observance of any other requirement imposed by this chapter upon railroad corpora- tions, their directors, officers, managers and superintendents. Every corporation, person or persons operating a steam railroad and viola- ting any of the provisions of this section, shall be liable to a penalty of one hundred dollars for each offense, and the further penalty of ten dollars for each day that such violation shall continue. The board of railroad commissioners shall enforce the provisions of this act. Added by ch. 208 of 1907. § 50. Railroad commissioners may approve other safeguards. The board of railroad commissioners may, on the application of any railroad corporation, authorize it to use any other safeguard or device approved by the board, in place of any safeguard or device re- quired by this article, which shall thereafter be used in lieu thereof, and the same penalties for neglect or refusal to use the same shall be incurred and imposed as for a failure to use the safeguard or device hereinbefore required, in lieu of which the same is to be used. § 51. Use of stoves or furnaces prohibited. It shall not be lawful for any railroad corporation, operating a steam railroad in this state, of the length of fifty miles or more, ex- cepting foreign railroad corporations, incorporated without the juris- diction of the United States, running cars upon tracks in this state for a distance of less than thirty miles, to heat its passenger cars, on other than mixed trains, excepting dining-room cars, by any stove or furnace kept inside the car, or suspended therefrom, unless in case of accident or other emergency, when it may temporarily use such stove or furnace with necessary fuel, in cars which have been equipped with apparatus to heat by steam, hot water or hot air from the locomotive, or from a special car; the present stove may be re- tained to be used only when the car is standing still, and no stove or furnace shall be used in a dining-room ear, except for cooking pur- 370 = Tur Rarttroap Law. poses, and of pattern and kind to be approved by the railroad com- missioners. This section shall not be held to affect or interfere with the use by the commissioners of fisheries of this or other states, or of the United States, of stoves for heating or cooking or boiling for hatching operations in their fish car or cars. Any person or corpo- ration, violating any of the provisions of this section, shall be liable to a penalty of one thousand dollars, and to the further penalty of one hundred dollars for each and every day during which such viola- tion shall continue. Amended by chap. 299 of 1896. 8 52. Canada thistles to be cut. Every railroad corporation doing business within this state, shall cause all Canada thistles, white and yellow daisies and other noxious weeds growing on any lands owned or occupied by it, to be cut down twice in each and every year, once between the fifteenth day of June and the twenty-fifth day of June, and one between the fifteenth day of August and the twenty-fifth day of August. If any such corpo- ration shall neglect to cause the same to be so cut down, any person may cut the same, between the twenty-fifth day of June and the fifth day of July inclusive, and between the twenty-fifth day of August and the fifth day of September inclusive in each year, at the ex- pense of the corporation on whose lands the same shall be so cut, at the rate of three dollars per day for the time occupied in cutting. § 53. Riding on platform; walking along track. ~ No railroad corporation shall be liable for any injury to any pas- senger while on the platform of a car, or in any baggage, wood or freight car, in violation of the printed regulations of the corporation, posted up at the time in a conspicuous place inside of the passenger cars, then in the train, if there shall be at the time sufficient room for the proper accommodation of the passenger inside such passenger coach. No person other than those connected with or employed upon. the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same. Any person riding, leading or driving any horse or other animal upon any railroad, or within the fences and guards thereof,, other than at a farm or street or forest crossing, without the consent. of the corporation, shall forfeit to the people of the state the sum of’ * ten dollars, and pay all damages sustained thereby to the party aggrieved. L. 4850, ch. 140, see. 44. 371 Tue Rattroap Law. § 54. Corporations may establish ferries. Any steam railroad corporation, incorporated under the laws of this state, with a terminus in the harbor‘of New York, may purchase or lease boats propelled by steam or otherwise, and operate the same as a ferry or otherwise, over the waters of the harbor of New York, ‘but this section shall not be construed to affect the rights of the cities of New York and Brooklyn. 8 55. Certain railroads may cease operation in winter. The directors of any railroad corporation operating a railroad, constructed and used principally for transporting lumber or ores, during the summer months, or for summer travel, may, by a resolu- tion duly passed at a meeting thereof, apply to the board of railroad commissioners for permission to cease the operation of their road during the winter season, for a period, not exceeding seven months in any one year, specifying the date of such suspension, and the date of the reopening thereof; and such board may, in their discretion, make an order granting the application wholly or in part, and thereupon such railroad corporation shall be relieved of the duty of operating its road during the period specified in the order. A copy of such order shall be posted in all the depots and at the termini of such railroad, and published in every newspaper in each town in any part of which such road shall be constructed at least four weeks prior to the date of such suspension. § 56. Mails. Any railroad corporation shall, when applied to by the Postmaster- General, convey the mails of the United States on its road, and in case such corporation and the Postmaster-General shall not agree as to the rate of transportation therefor, and as to the time, rate of speed, manner and condition of carrying the same, the board of rail- road commissioners shall fix the prices, terms and conditions there- for, after giving the corporation reasonable opportunity to be heard. Such price shall be not less for carrying such mails in the regular passenger trains than the amount which such corporation would re- ceive as freight on a like weight of merchandise transported in their merchandise trains, and a fair compensation for the post-office car. If the Postmaster-General shall require the mail to be carried at other hours, or at higher speed than the passenger trains are run, the corporation shall furnish an extra train for the mail, and be al- lowed an extra compensation for the expenses and wear and tear thereof, and for the service to be fixed as herein provided. Every railroad corporation refusing or neglecting to comply with 372 Tue Rarrroap Law. any provision of this section shall forfeit to the people of the state one hundred dollars for every day such neglect or refusal continues. § 57. Corporations must make annual report. Every person or corporation owing, leasing, operating or in pos- session of a railroad, wholly or partly, in this state, shall make an annual report to the board of railroad commissioners of its opera- tions for the year ending with June thirtieth, and of its conditions on that day which shall be verified by the oaths of the president, or treasurer, and the general manager, or acting superintendent, and shall be filed in the office of such board on or before September first. in each year. Every such person or corporation shall make quarterly and further reports to such board in the form and within the time prescribed by it. Such board may in its discretion change the date of the annual report and of filing the same, but the length of time between the date of the annual report and the filing of the same shall not be less than herein prescribed. Any person or railroad corpora- tion which shall neglect to make any such report, or which shall fail to correct any such report within ten days after notice by the board of railroad commissioners, shall be liable to a penalty of two hun- dred and fifty dollars, and an addition penalty of twenty-five dol- lars for each day after September first on which it shall neglect to file the same, to be sued for in the name of the people of the state of New York, for their use. The board of railroad commissioners may extend the time herein limited for cause shown. 8 58. When conductors and brakemen may ‘be policemen. The governor may appoint any conductor or brakeman on any train conveying passengers on any steam railroad in this state, a policeman, with all the powers of a policeman in cities and villages, for the preservation of order and of the public peace, and the arrest of all persons committing offenses upon the land or property of ihe corporation owning or operating such railroad; and he may also ap- point, on the application of any such corporation or of any steam- boat company, such additional policemen, designated by it, as he may deem proper, who shall have the same powers. Every such police- man shall within fifteen days after receiving his commission, and before entering upon the duties of his office, take and subscribe the constitutional oath of office, and file it with his commission in the office of the secretary of state. Every such policeman shall when on duty wear a metallic shield, with the words, “railway police,” or “steamboat police,” as the case may be, and the name of the corpo- 373 Tue Rartroap Law. ration for which appointed inscribed thereon, which shall always be worn in plain view, except when employed as a detective. The com- pensation of every such policeman shall be such as may be agreed upon between him and the corporation for which he is appointed, and shall be paid by the corporation. When any corporation shall no longer require the services of any such policeman they may file notice to that effect in the office in which notice of his appointment was originally filed, and thereupon such appointment shall cease and be at an end. Amended by ch. 609 of 1899, ch. 380 of 1906. § 59. Requisites to exercise of powers of future railroad corpora- tions. No railroad corporation hereafter formed under the laws of this state shall exercise the powers conferred by law upon such corpora- tions or begin the construction of its road until the directors shall cause a copy of the articles of association to be published in one or more newspapers in each county in which the road is proposed to be located, at least once a week for three successive weeks, and shall file satisfactory proof thereof with the board of railroad commissioners ; nor until the board of railroad commissioners shall certify that the foregoing conditions have been complied with, and also that public convenience and a necessity require the construction of said railroad as proposed in said articles of association. The foregoing certificate shall be applied for within six months after the completion of the three weeks’ publication hereinbefore provided for. If certificate is refused no further proceedings shall be had before said board, but the application may be renewed after one year from the date of such refusal. Prior to granting or refusing said certificate the board shall have a right to permit errors, omissions or defects to be supplied and corrected. After a refusal to grant such certificate the board shall certify a copy of all maps and papers on file in its office and of the findings of the board when so requested by the directors aforesaid. Such directors may thereupon present the same to a general term of the supreme court of the department within which said road is pro- posed in whole or in part to be constructed, and said general term shall have power, in its discretion, to order said board, for reasons stated, to issue said certificate, and it shall be issued accordingly. Such certificate shall be filed in the office of the secretary of state, and a copy thereof, certified to be a copy by the secretary of state, or his deputy, shall be evidence of the fact therein stated. Nothing in this section shall prevent any such railroad corporation from caus- ing such examination and surveys for its proposed railroad to be 374 Tue Rarrroap Law. made as may be necessary to the selection of the most advantageous route; and for such purpose by its officers or agents and servants, to enter upon the lands or water of any person, but subject to the responsibility for all damages which shall be done thereto. As added by L. 1892, ch. 676, and amended by L. 1895, ch. 545, sec. 1. The amendment passed in 1895 made this section applicable to street rallroa‘ts. PRELIMINARY PrRoor.—It is che duty of the commissioners before issuing a certificate of necessity and convenience, to ascertain whether the railroad company is properly incorporated and whether the required amount of capital stock has been paid in good faith. People ex rel. Bath & H. R. Co. v. Public Service Com., 127 App. Div. 480, 112 N. Y. Supp. 133, aff'd 194 N. Y. 543 mem. Matter of Kings, Q. & S. R. Co., 6 App. Div. 241, 39 N. Y. Supp. 1004. The question whether the required 10 per cent of capital has been naid in cash, is generally one of fact; it is one of law only when there is no conflict in the evidence. People ex rel. New York C. & H. R. R. Co. v. Public Service Com., 196 N. Y. , 88 N. BE. 261. It is the duty of the commissioners to inquire into the prior proceedings of the alleged railroad company to ascertain and determine whether such company is of a character which che law recognizes and to which it contemplates that a certificate should be given. People ex rel. Erie R. Co. v. Board of Commrs., 105 App. Div. 273, 93 N. Y. Supp. 584. The issuance of a certificate of necessity and convenience, is a judicial deter- mination that the company is a de jure corporation. People ex rel. New York Cc. H. & H. R. R. Co. v. Public Service Com., supra. EVIDENCH ADMISSIBLH.—The general rules of evidence do not prevail before the commissioners as to the necessity of the construccion of the proposed railroad ; the commissioners have a very wide discretion as to what they will hear. People ex rel. New York C. & W. R. Co. v. Bd. Ry. Commrs., 81 App. Div, 237, 81 N. Y. Supp. 26, aff’d 176 N. Y. 577 mem. Affidavits containing merely expressions of opinion are not competent evi- dence on which the board is authorized to grant a certificate of necessity. People ex rel. Terminal R. Co. v. Bd. Ry. Commrs., 53 App. Div. 61, 65 N. Y. Supp. 597, aff'd 164 N. Y. 572 mem. But, see, Matter of Rochester C. EB. Traction Co., 118 App. Div. 521, 102 N. Y. Supp. 1112. The decision of the board may be governed somewhat by public sentiment. McWilliams v. Jewett, 14 Misc. 491, 36 N. Y. Supp. 620. Ricutr To CeRTiricaTn.—A certificate of public necessity should not be granted to a proposed railway company for the construction of a freight line along a valu- able water front for the purpose of developing factory sites, against the wishes of a majority of the property owners. People ex rel. Amm vy. Bd. Ry. Commrs., 103 App. Div. 123, 93 N. Y. Supp. 58, aff'd 184 N. Y. 575 mem. People ex rel. Sawyer v. Bd. Ry. Commrs., 128 App. Div. 814, 114 N. Y. Supp. 122; Matter of Buffalo Frontier Terminal R. Co., 131 App. Div. 503, 115 N. Y¥. Supp. 488. See, also, People ex rel. Cluett, Peabody & Co. v. Bd. Ry. Commrs., 95 App. Div. 38, 88 N. Y. Supp. 522. Proof that the construction of the proposed line will obviate the necessity of operating a large number of trains through a populous city and save a delay of four hours in transportation, is sufficient to justify the granting of a certificate. People ex rel. Terminal R. Co. v. Bd. Ry. Commrs., 53 App. Div. 61, 65 N. Y. Supp. 597, aff’d 164 N. Y. 572 mem. The granting of a certificate of necessity is not a condition precedent to filing a bid for the purchase of a surface line in New York City under sec 93, post. Matter of Empire C. T. Co., 4 App. Div. 103, 38 N. Y. Supp. 983. PaRALLEL Linges.—A certificate for the construction of a terminal road will not be denied because it will parallel a similar line for a part of the distance. People ex rel. Terminal R. Co. v. Bd. Ry. Commrs., 53 App. Div. 61, 65 N. Y¥. Supp. 597, aff'd 164 N. Y. 572 mem. An application under this section for a certificate of necessity by a trolley company should not be denied, although the proposed road will parallel steam 375 SO Tue Raritroap Law. lines and reduce their earnings. Matter of Rochester, C. HB. Traction Co., 118 App. Div. 521, 102 N. Y. Supp. 1112. VARIATION IN LENGTH.—The commissioners have no power to issue a certificate where the route varies materially from that proposed in the articles of incorpora- tion. Matter of Ticonderoga U. T. R. Co., 116 App. Div. 56, 101 N. ¥. Supp. 107; People ex rel. N. Y. & H. R. R. Co. v. Bd. Ry. Commrs., 92 App. Div. 126, 87 N. ¥. Supp. 334. On right to certificate when the length of the road specified in the articles is slightly shorter than shown by an actual survey, see People ex rel. Erie R. Co. v. Bd. Ry. Commrs., 101 App. Div. 251, 91 N. Y. Supp. 977, aff’d 184 N. Y. 563 mem. PREFERENCH.—A preference:in the issuance of a certificate is not created in favor of the company first filing its articles of incorporation. People ex rel. Depew & S. W. R. Co. v. Bd. Ry. Commrs., 4 App. Div. 259, 38 N. Y. Supp. 528; Peovle ex rel. New York C. & W. R. Co. v. Bd. Ry. Commrs., 81 N. Y. Supp. 26, aff'd 176 N. Y. 577 mem. Matter of Long Lake R. Co., 11 App. Div. 233, 42 N. Y. Supp. 125. A certificate will not be denied because opposed by another railroad, which for fifteen years had the legal right to construct its road through the same territory and which shows that it is now able to build the same. People ex rel. New York Cc. & W. R. Co. v. Bd. Ry. Commrs., 81 App. Div. 237, 81 N. Y. Supp. 26, aff’d 176 N. Y. 577 mem. The court said that a priority of organization will not create a preference. PUBLICATION OF ARTICLES.—Publication of the articles of association for three weeks before any formal hearing is held, is sufficient. People ex rel. Erle R. Co. v. Bd. Ry. Commrs., 101 App. Div. 251, 91 N. Y. Supp. 977, aff’d 184 N. Y. 563 mem. Review or Decision.—The determination of the commissioners that the con- struction of the proposed road is a public necessity, is not subject to judicial re- vision. People ex rel. New York, N. H. & H. R. Co. v. Bd. Ry. Commrs., 81 App. Div. 242, 81 N. Y. Supp. 20, aff'd 175 N. Y. 516 mem. Unless it is founded on erroneous legal principles or is contrary to the weight of evidence. People ex rel. Terminal R. Co. v. Ry. Commrs., 53 App. Div. 61, 65 N. Y. Supp. 597, aff'd 164 N. Y. mem. Matter of Auburn & W. R. Co., 37 App. Div. 162, 55 N. Y. Supp. 895; Matter of Boston & A. R. Co. vy. Ry. Commrs., 64 App. Div. 257, 72 N. Y. Supp. 32, aff'd 170 N. Y. 619 mem. But in People ex rel. New York C. & H. R. R. Co. v. Public Service Com., 196 N. Y. , 88 N. BE, 261, the court held a railroad company owning u line more or less parallel to the proposed line and serving the same territory may appeal from the determination of the board granting a certificate of necessity. Unon an appeal from the refusal of the commissioners to grant a certificate of necessiry, the Appellate Division has power to order the board to grant the same. Matter of Wood, 181 N. Y¥. 93; Matter of Buffalo Frontier T. R. Co., 131 App. Div. 503, 115 N. Y. Supp. 483. Or to remit the proceedings for a rehearing by the board. Matter of Buffalo Frontier Ter. R. Co., supra. Upon an application under this section by the directors of a proposed trolley line for an order directing the railway commissioners to issue a certificate, the burden does not rest upon the applicant affirmatively to show that the commis- sioners erred in their determination, since the proceedings come before the court as an original application to be determined dn the record made before the board. Matter of Rochester, C. E. Traction Co., 118 App. Div. 521, 102 N. Y. Supp. 1112. But great weight should be given the decision of the board of commissioners. The burden rests upon the petitioner to show affirmatively that the commis- sioners erred in their determination. Matter of New Hamburgh & R. C. R. Co., 76 Hun 76, 27 N. Y. Supp. 664; Matter of Kings, Q. & 8S. R. Co., 6 App. Div. 241, 39 N. Y. Supp. 1004. CmRTIORARI.—A determination by the board of railway commissioners under this section that a certificate shall issue, is the exercise of a judicial function and ‘therefore reviewable in the courts by certiorari. People ex rel. Steward v. Bd. Ry. Commrs., 160 N. Y. 202. See, also, People ex rel. New York C. & H. R. R. Co. v. Public Service Co., 196 N. Y. ——, 88 N. E. 261. But, see, People ex rel. Depew & S. W. R. Co. v. Bd. Ry. Commrs., 4 App. Div. 259, 38 N. Y. Supp. 528. 376 Tue Rarrtrosap Law. § 59-a. Railroad commissioners may certify part of the route of a street surface railroad. Power to revoke certificates. Street surface railroad extension. Whenever application is made by a street surface railroad com- pany for a certificate of public convenience and a necessity as re- quired by the provisions of the foregoing section, and it shall appear to the board of railroad commissioners, after examination of the pro- posed route of the applicant company that public convenience and a necessity do not require the construction of said railroad as proposed in its articles of association but do require the construction of a part of the said railroad, the board of railroad commissioners may issue its certificate for the construction of such part of the said railroad as seems to it to be required by public convenience and a necessity. In case any railroad company which shall hereafter obtain the cer- tificate of the board of railroad commissioners that public conveni- ence and a necessity require the construction of the whole or a part of the said railroad shall fail to begin such construction within two years from the date of the issuing of said certificate, the board of railroad commissioners may inquire into the reason for such failure and the said board may revoke said certificate if it shall appear to it to be in the public interest so to do. Any street surface railroad company which proposes to extend its road beyond the limits of any city or incorporated village by a route which will be practically parallel with a street surface railroad already constructed and in operation shall first obtain the certificate of the board of railroad commissioners that public convenience and a necessity require the construction of such extension as provided in the case of a railroad corporation newly formed. Before making application for such cer- tificate the corporation shall cause to be advertised the route of the proposed extension in one or more newspapers in each county in which such extension is to be constructed, at least once a week for three successive weeks, and shall file satisfactory proof of such publi- cation with the board of railroad commissioners. Nothing in this section shall prevent street railroad companies from making ex- teusions within the limits of cities or incorporated villages upon compliance with the provisions of law now applicable thereto- § 59b. Whenever it shall be made to appear to the board of railroad commissioners that any steam railroad corporation, which has ob- tained from it a certificate under section fifty-nine of the railroad law since eighteen hundred and ninety-four and whose road is less than ten miles in length, and was to be built in the counties of Saratoga and Wasltington, shall not have completed its construction 377 Tue Rartroap Law. and put it in operation within three years after obtaining such cer- tificates, the said board, on notice to such corporation, shall have the power to revoke the said certificate and consent and thereupon the corporate existence and power of such railroad corporation shall cease and determine. Added by ch. 597 of 1899. § 60. All steam surface railroads, hereafter built except additional switches and sidings, must be so constructed as to avoid all public crossings at grade, whenever practicable so to do. Whenever ap- plication is made to the board of railroad commissioners, under sec- tion fifty-nine of the railroad law, there shall be filed with said board a map showing the streets avenues and highways proposed to be crossed by the new construction, and the said board shall determine whether such crossing shall be under or over the proposed railroad, except where said board shall determine such method of crossing to be impracticable. Whenever an application is made under this sec- tion to determine the manner of crossing, the said board shall desig- nate a time and place when and where a hearing will be given to said railroad company, and shall notify the municipal corporation having jurisdiction over such streets, avenues or highways proposed to be crossed by the new railroad. The said board shall also give public notice of such hearing in at least two newspapers published in the locality affected by the application, and all persons owning land in the vicinity of the proposed crossings shall have the right to be heard. The decision of the said board rendered in any proceedings under this section shall be communicated, within twenty days after final hearing, to all parties to whom notice of the hearing, in said pro- ceedings was given, or who appeared at said hearing by counsel or in person. Added, ch. 754 of 1897. § 61. When a new-street, avenue or highway, or new portion of a street, avenue or highway shall hereafter be constructed across a steam surface railroad other than pursuant to the provisions of sec- tion sixty-two of this act, such street, avenue or highway or portion of such street, avenue or highway, shall pass over or under such rail- road or at grade as the board of railroad commissioners shall direct. Notice of intention to lay out such street, avenue or highway, or new portion of a street, avenue or highway, across a steam surface railroad, shall be given to such railroad company by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue or highway by service personally on the president or vice-president of the railroad corporation, or any gen- 378 Tur Rarroap Law.. eral officer thereof. Such notice shall designate the time and place and when and where a hearing will be given to such railroad com- pany, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the ques- tion of the necessity of such street, avenue or highway. If the mu- nicipal corporation determines such street, avenue or highway to be necessary, it shall then apply to the boad of railroad commissioners before any further proceedings are taken, to determine whether such street, avenue or highway shall pass over or under such railroad, or at grade, whereupon the said board of railroad commissioners shall appoint a time and place for hearing such application, and shall give such notice thereof, as they judge reasonable, not, however, less than ten days, to the railroad company whose railroad is to be crossed by such new street, avenue or highway, or new portion of a street, ave- nue or highway, to the municipal corporation and to the owners of land adjoining the railroad and that part of the street, avenue or highway to be opened or extended. The said board of railroad com- missioners shall determine whether such street, avenue or highway, or new portion of a street, avenue or highway, shall be constructed over or under such railroad or at grade; and if said board determine that such street, avenue or highway shall be carried across such rail- road above grade, then such board shall determine the height, the length and the material of the bridge or structure by means of which such street, avenue or highway shall be carried across such railroad, and the length, character and grades of the approaches thereto; and if said board shall determine that such street, avenue or highway shall be constructed or extended below the grade, said board shall determine the manner and method in which the same shall be so carried under, and the grade or grades thereof, and if said board shall determine that said street, avenue or highway shall be constructed or extended at grade, said board shall determine the manner and method in which the same shall be carried over said railroad at grade and what safeguards shall be maintained. The decision of the said board as to the manner and method of carrying such new street, avenue or highway, or new portion of a street, avenue or highway across such railroad, shall be final, subject, however, to the right of appeal here- inafter given. The decision of said board rendered in any proceed- ing under this section shall be communicated within twenty days after final hearing to all parties to whom notice of the hearing in such proceeding was given or who appeared at such hearing by counsel or in person. 379 Tus Rartroap Law. § 62. The mayor and common council of any city, the president and trustees of any village, the town board of any town within which a street, avenue or highway crosses or is crossed by a steam surface railroad at grade, or any steam surface railroad company, whose road crosses or is crossed by a street, avenue or highway at grade, may bring their petition, in writing, to the board of railroad commissioners, therein alleging that public safety requires an altera- tion in the manner of such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing and discontinuance of a highway crossing and the division of the travel thereon to another highway or crossing, or if not practicable to change such crossing from grade or to close and discontinue the same, the opening of an additional crossing for the partial diversion of travel from the grade crossing and praying that the same may be ordered; whereupon the said board of railroad commissioners shall appoint a time and place for hearing the petition, and shall give such personal notice thereof as they shall judge reasonable, of not less than ten days, however, to said petitioner, the railroad company, the municipality in which such crossing is situated, and to the owners of the lands adjoining such crossing and adjoining that part of the high- way to be changed in grade or location, or the land to be opened for a new crossing, and shall cause notice of said hearing to be ad- vertised in at least two newspapers published in the locality affected by the application; and after such notice of hearing the said board of railroad commissioners shall determine what alterations or changes, if any, shall be made. The decision of said board of rail- road commissioners rendered in any proceeding under this section, shall be communicated within twenty days after final hearing to all parties to whom notice of the hearing in said proceeding was given, or who appeared at said hearing by counsel or in person. Any per- son aggrieved by such decision, or by a decision made pursuant to section sixty and sixty-one hereof, and who was a party to said pro- ceeding, may within sixty days appeal therefrom to the appellate division of the supreme court in the department in which such grade crossing is situated and to the court of appeals, in the same manner and with like effect as is provided in the case of appeals from an order of the supreme court. Am’d by ch. 359 of 1899. § 63. The municipal corporation in which the highway crossing is located, may with the approval of the railroad company, acquire by purchase any lands, rights or easements necessary or required for the purpose of carrying out the provisions of sections sixty, sixty-one and 380 Tue Raritroap Law. | sixty-two of this act, but if unable to do so shall acquire such lands, rights or easements by condemnation either under the condemnation law, or under the provisions of the chapter of such municipal corpo- ration. The railroad company shall have notice of any such pro- ceedings and the right to be heard therein. Amended by ch. 226 of 1899. § 64. When a highway crosses a railroad by an overhead bridge, the frame work of the bridge and its abutments shall be maintained and kept in repair by the railroad company, and the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality in which the same are situated; except that in the case of any overhead bridge constructed prior to the enactment of sections sixty-one and sixty-two of this act, the roadway over and the approaches to which the railroad company was under obligation to maintain and repair, such obligations shall continue, provided the railroad company shall have at least ten days’ notice of any defect in the roadway thereover and the approaches thereto, which notice must be given in writing by the commissioner of highways or other duly constituted authorities, and the railroad company shall not be liable by reason of any such defect unless it shall have failed to make re- pairs within ten days after the service of such notice upon it. When a highway passes under a railroad, the bridge and its abutments shall be maintained and kept in repair by the railroad company, and the subway, and its approaches shall be maintained and kept in repair, by the municipality in which the same are situated. Added ch. 754 of 1897, ch. 140 of 1902. § 65. Whenever, under the provisions of section sixty of this act, new railroads are constructed across existing highways, the expense of crossing above or below the grade of the highway shall be paid entirely by the railroad corporations. Whenever, under the pro- visions of section sixty-one of this act a new street, avenue or high- ways is constructed across an existing railroad, the railroad corporation shall pay one-half and the municipal corporation wherein such street, avenue or highway is located, shall pay the remaining one-half of the expense of making such crossing above or below grade; and whenever a change is made as to an existing crossing in accordance with the provisions of section sixty-two of this act, fifty per centum of the expense thereof shall be borne by the railroad cor- poration, twenty-five per centum by the municipal corporation, and twenty-five per centum by the state. Whenever, in carrying out the provisions of sections sixty-one or sixty-two of this act, two or more lines of steam surface railroad, owned and operated by different cor- 381 Tue Rartroap Law. porations, cross a highway at a point where a change in grade is made, each corporation shall pay such proportion of fifty per centum of the expense thereof as shall be determined by the board of rail- road commissioners. In carrying out the provisions of sections sixty, sixty-one and sixty-two of this act the work shall be done by the railroad corporation or corporations affected thereby, subject to the supervision of and approval of the board of railroad commissioners, and in all cases, except where the entire expense is paid by the raid- road corporation, the expense of construction shall be paid primarily by the railroad company, and the expense of acquiring additional lands, rights or easements, shall be paid primarily by the municipal corporation wherein such highway crossings are located. Plans and specifications of all changes proposed under sections sixty-one and sixty-two of this act, and an estimate of the expense thereof shall be submitted to the board of railroad commissioners for their ap- proval before the letting of any contract. In case the work is done ky contract the proposals of contractors shall be submitted to the board of railroad commissioners, and if the board shall determine that the bids are excessive it shall have the power to require the submission of new proposals. The board of railroad commissioners may em- ploy temporarily such experts and engineers as may be necessary to properly supervise any work that may be undertaken under sections sixty, sixty-one or sixty-two of this act, the expense thereof to be paid by the comptroller upon the requisition and certificate of the said board, said expense to be included in the cost of the particular change in grade on account of which it is incurred and finally ap- portioned in the manner provided in this section. Upon the com- pletion of the work and its approval by the board of railroad commissioners an accounting shall be had between the railroad cor- poration and the municipal corporation, of the amounts expended by each with interest, and if it shall appear that the railroad corpora- tion or the municipal corporation have expended more than their proportion of the expense of the crossing as herein provided, a set- tlement shall be forthwith made in accordance with the provisions of this section. All items of expenditure shall be verified under oath, and, in case of a dispute between the railroad corporation and the municipal corporation as to the amount expended, any judge of the supreme court in the judicial district in which the municipality is situated may appoint a referee to take testimony as to the amount expended, and the confirmation of the report of the referee shall be final. In the event of the failure or refusal of the railroad corpo- ration to pay its proportion of the expense, the same, with interest 382 Tue Rarrroap Law. from the date of such accounting, may be levied and assessed upon the railroad corporation and collected in the same manner that taxes and assessments are now collected by the municipal corporation within which the work is done; and in the event of the failure or refusal of the municipal corporation to pay its proportion of the expense, suit may be instituted by the railroad corporation for the collection of the same with interest from the date of such account- ing, or the railroad corporation may offset such amount with interest against any taxes levied or assessed against it or its property by such municipal corporation. The legislature shall annually appropriate out of any moneys not otherwise appropriated, the sum of one hun- dred thousand dollars for the purpose of paying the state’s propor- tion of the expense of a change in an existing grade crossing. If, in any year, any less sum than one hundred thousand dollars is ex- pended by the state for the purpose aforesaid the balance remaining unexpended shall be applied to reduce the amount appropriated by the state in the next succeeding year, except that no such deduction shall be made in case there are outstanding and unadjusted obliga- tions on account of a change in an existing grade crossing for a por- tion of which the state is liable under the provisions of this section. In the event of the appropriation made by the state in any one year being insufficient to pay the state’s proportion of the expense of any change that may be ordered the first payment from the appropriation of the succeeding year shall be on account of said change, and no payment shall be made on account of any subsequent change that may be ordered, nor shall any subsequent change be ordered until the obligation of the state on account of the first-named change in grade has been fully discharged, unless the same shall be provided for by an additional appropriation to be made by the legislature. The state’s proportion of the expense of changing any existing grade crossing shall be paid by the state treasurer on the warrant of the comptroller, to which shall be appended the certificate of the board or railroad commissioners to the effect that the work has been prop- erly performed and a statement showing the situation of the crossing that has been changed, the total cost and the proportionate expense thereof, and the money shall be paid in whole or in part to the rail- road corporation or to the municipal corporation as the board of railroad commissioners may direct, subject, however, to the rights of the respective parties as they appear from the accounting to be had as hereinbefore provided for. No claim for damages to property on account of the change or abolishment of any crossing under the provisions of this act shall be allowed unless notice of such claim is 383 Tue Rarrroap Law. filed with the board of railroad commissioners within six months after completion of the work necessary for such change or abolish- ment. Amended by chap. 517 of 1900. § 66. The railroad commissioners may, in the absence of any application therefor, when in their opinion, public safety requires an alteration in an existing grade crossing, institute proceedings on their own motion for an alteration in such grade crossing, upon such notice as they shall deem reasonable, of not less than ten days, however, to the railroad company, the municipal corporation and the person or persons interested, and proceedings shall be conducted as provided in section sixty-two of this act. The changes in existing grade crossings author- ized or required by the board of railroad commissioners in any one year shall be so distributed and apportioned over and among the railroads and the municipalities of the state as to produce such equal- ity of burden upon them for their proportionate part of the expenses as herein provided for as the nature and circumstances of the cases before them will permit. Added, ch. 754 of 1897. § 67. It shall be the duty of the corporation, muncipality or person or persons to whom the decisions or recommendations of the board of railroad commissioners are directed, as provided in sections sixty, sixty-one, sixty- two and sixty-six of this act to comply with such decisions and recommendations, and in case of their failure so to do, the board shall present the facts in the case to the attorney-general, who shall thereupon take proceedings to compel obedience to the decisions and recommendations of the board of railroad commission- ers. The supreme court at a special term shall have the power in all cases of such decisions and recommendations by the board of rail- road commissioners to compel compliance therewith by mandamus, subject to appeal to the appellate division of the supreme court and the court of appeals, in the same manner, and with like effect, as is provide in case of appeals from any order of the supreme court. Added, ch. 754 of 1897. § 6%a. Whenever in carrying out any of the provisions of sections sixty, sixty-one, sixty-two, sixty-three, sixty-four, sixty,five, sixty-six, of sixty-seven of theis act, any municipality shall incur any expense or become liable for the payment of any moneys, it shall be lawful for such municipality to temporarily borrow such moneys on the notes or certificates of such municipality, and to include the amount of outstanding notes or certificates, or any part thereof, in its next an- nual tax levy for municipal purposes, or in the discretion of the com- 384 Tur Rartroap Law. mon council in case of a city, the board of trustees in case of a village or the town board in case of a town, to borrow the same, or any part thereof, on the credit of the municipality, and to issue bonds there- for, which bonds shall be signed by the mayor and clerk in case of a city, the president and clerk in case of a village, and the town board in case of a town, and shall be in such form and for such sums and be payable at such times and places with interest not exceeding four per centum per annum, as the common council in case of a city, the board of trustees in case of a village, and the town board in case of a town, shall direct. Added by ch. 541 of 1899; amended by ch. 198 of 1902. § 68. All steam railroads hereafter constructed across the tracks of any other railroad and any street surface railroad hereafter constructed across a steam railroad shall be above, below, or at grade of such existing railroad as the board of railroad commissioners shall deter- mine, and such board shall in such determination fix the proportion of expense of such crossing to be paid by each railroad. Amended by chap. 739 of 1900. § 69. The provisions of this act shall also apply to all existing or future steam surface railroads, on which, after the passage of this act, electricity or some other agency than steam shall be substituted as a motive power. Added, ch. 754 of 1897. ARTICLE 3. CONSOLIDATION, LEASE, SALE, AND REORGANIZATION. Section 70. Consolidation of corporations owning continuous lines. 71. Conditions. 1. Joint agreement; amount of capital stock. 2. Agreement to be submitted to meeting of stock- holders. %2. New corporation. 73. Creditors’ rights not to be impaired. 74. Assessment of property of new corporation. %5. Stock of municipal corporation, how represented. %6. Foreclosure of mortgages made by consolidated railroads partly in the state. “7”. Powers of corporation of other states. 78. Lease of road. 79. Lessees of railroad may acquire stock therein. 385 Tue Rartroap Law. Section 80. Consolidation and lease of parallel lines prohibited. 81. Mortgagee may purchase at foreclosure sale. 82. Certificates of stock may be issued after foreclosure in certain cases. 83. Liabilities of reorganized railroad corporations. § 70. Consolidation of corporations owning continuous lines. Any railroad or other corporation, organized under the laws of this state, or of this state and any other state, and owning or operating a railroad, bridge or tunnel, either wholly within or partly within and partly without the state, or whose lines or routes of road have been located but not constructed, may merge and consolidate its capital stock, franchises, and property with the capital stock, franchises and property of any other railroad, tunnel or bridge corporation ur corporations organized under the laws of this state or of this state and any other state, or under the laws of any other state or states, whenever the two or more railroads of the companies or corporations so to be consolidated, tunnels, bridges or branches or any part thereof, or the line or routes of their road, if not constructed, shall or may form a continuous or connected line of railroad with each other or by means of any intervening railroad bridge, tunnel or ferry and any such consolidated corporation may thereupon construct or finish the — construction of such continuous line of railroad, if not previously con- structed, and operate the same, subject to all provisions of law applica- ble to such railroad corporations. Where the road to be operated is in whole or in part a tunnel or sub-surface road, authorized by section six- teen of this chapter, its consolidation with another road or roads under the provisions of this section shall not prevent any connect- ing railroad from having equal rights of transit for its passengers and freight through or over the tunnel or bridge of any such road, upon the same equitable terms, nor shall such consolidation be made where such tunnel or sub-surface road exceeds five miles in length. Any railroad corporation, which by consolidation or merger under any provision of the law, now owns, or shall hereafter own parallel or substantially parallel lines of railroad between any two points or stations, shall have the right, upon obtaining the consent of the public service commission of the proper district, to abandon such portion of its railroad and its franchise to own, maintain and operate the same on either of the said parallel lines, as shall, in the opinion of the said public service commission, be no longer necessary to furnish proper and adequate service to the public in the transporta- tion of passengers and freight within the district in which such 386 Tue Rarmroap Law. parallel lines may be operated. Such application for abandonment shall not be made until after it shall have been authorized by resolu- tion of the board of directors of the corporation under its seal, and such resolution shall have been submitted to the stockholders thereof at a meeting called and conducted in the same manner as required by section seventy-eight of the railroad law. If the stockholders shall a tsuch meeting ratify such action of the directors, the secretary of the corporation shall so certify under the seal of the corporation, upon such resolution. If approved by the commission, such approval shall be in- dorsed upon such resolution and annexed thereto, and such resolution shall thereupon be filed and recorded in the office of the secretary of state and the date of such abandonment shall be as of the date of such filing. The property of any person, taken, affected or damaged by such abandonment shall be deemed to be required for a public purpose, and if such corporation, before making application to the public service commission, shall have been unable to agree with any person damaged or claiming to be damaged as a result of such abandonment, as to the compensation, if any, which should justly be made therefor, such property, when paid for by such corporation as hereinafter provided shall be deemed to have been taken by condemnation, and the proceed- ing thereon, as herein provided shall be deemed to be a special pro- ceeding, and subject to all the provisions of the code of civil procedure regulating special proceedings. Any such railroad corporation shall have the right within thirty days after filing such resolution and approval, to make application by verified petition to a special term of the supreme court in and for the county or one of the counties in which the portion of the route to be abandoned may be located, for the appointment of commissioners to ascertain and determine the com- pensation, if any, which shall justly be made for the property of any person so taken, affected or damaged and such abandonment shall not be deemed to be effective against such person unless and until said corporation shall have filed in the office of the clerk of the county in which said application shall have been made, an undertaking in an amount approved by the court that it will pay to the person or persons determined to be damaged by the abandonment the amounts, if any, finally awarded to him or them in the proceedings; notice of the appointment of such commissioners and of the time and place of their first meeting shall be published once a week for four successive weeks in two newspapers published in said county or counties, and affidavits of such publication and the filing of such undertaking shall be filed in the office of the public service commission. If such corpora- tion shall fail to file such petition within said period of thirty days, 387 Tue Rarztroap Law. any person or persons claiming to be damaged, may by separate petition to the court apply for the appointment of commissioners to ascertain and determine the said compensation with like effect, as if such corporation had filed its petition. Nothing in this act shall be construed to impair or affect the rights of any lienor or mortgagee in and to the portion of the property of the said railroad or railroads affected by said abandonment, and no such abandonment shall be consented to as herein provided unless such liens or mortgages shall have first been discharged of record. New. §$ '71. Conditions, Such consolidation shall be made in the following manner: 1. Joint agreement; amount of capital stock. The directors of the corporations proposing to consolidate may enter into a joint agreement, under the corporate seal of each corporation, for the consolidation of such corporations, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corporation, the number and names of the directors and other officers thereof, and who shall be the first directors and officers and their places of residence, the number of shares of the capital stock, the amount or par value of each share, and the manner of converting the capital stock of each corporation into that of the new corporation, and how and when the directors and officers shall be chosen, with such other details as they shall deem necessary to perfect such new organization and the consolidation of such corporations. But in no case shall the capital stock of the corporation formed by such consolidation exceed the sum of the capital stock of the corpora- tions so consolidated, at the par value thereof. Nor shall any bonds or other evidences of debt be issued as a consideration for, or in con- nection with, such consolidation. If either of the corporations so to be consolidated is a corporation organized under the laws of any other state the joint agreement herein provided for may fix the location of the principal office of the new corporation in either state. Amended by ch. 228 of 1904. 2| Agreement to be submitted to meeting of stockholders. If stockholders owning two-thirds of all the stock of each of such corporations shall by a consent in writing, acknowledged as are deeds entitled to be recorded and indorsed upon said lease or agreement, signify their assent thereto, it shall be deemed and taken as the adop- tion of such agreement by and on behalf of such corporation, and the original or a certified copy thereof shall be filed as hereinafter pro- 388 Tue Rartroap Law. vided. If such agreement shall not be consented to in writing by _ holders of two-thirds of the stock of either of such corporations as hereinbefore provided, such agreement shall be submitted to the stock- holders of each of such corporations at a meeting thereof called separately for the purpose of taking the same into consideration. Due notice of the time and place of holding such meeting, and the cbject thereof, shall be given by each corporation to its stockholders by written or printed notices addressed to each of the persons in whose names the capital stock of such corporation stands on the books thereof, and delivered to such persons respectively, or sent to them by mail, when their post-office address is known to the corporation, at least thirty days before the time of holding such meeting, and also by a general notice published at least once a week for four weeks successively in some newspaper printed in the city, town or county where such corporation has its principal office or place of business. At such meeting of stockholders such agreement shall be considered, and a vote by ballot taken for the adoption or rejection of the same, and if the votes of the stockholders owning at least two-thirds of the stock of each corporation present and voting in person or by proxy shall be for the adoption of such agreement, then that fact shall be certified thereon by the secretaries of the respective corporations, under the seal thereof, and the agreement so adopted, or a certified copy thereof, shall be filed in the office of the Secretary of ‘State, and in the office of the clerk of the county where the new corporation is to have its principal place of business, and shall from thence be deemed and taken to be the agreement and act of consolidation of such cor- porations, and thereafter such corporations, parties thereto, shall be one corporation by the name provided in such agreement, but such act of consolidation shall not release such new corporation from any of the restrictions, liabilities or duties of the several corporations so consolidated. § 72. New coporation. Upon the consummation of such act of consolidation all the rights, privileges, exemptions and franchises of each of the corporations, parties to the same, and all the property, real, personal and mixed, and all the debts due on whatever account to either of them, as well as all stock subscriptions and other things in action belonging to either of them shall be taken and deemed to be transferred to and vested in such new corporation, without further act or deed; and all claims, demands, property, rights of way, and every other interest shall be as effectually the property of the new corporation as they were of the 389 Tue Rarroap Law. former corporations, parties to such agreement and act; and the title to all real estate, taken by deed or otherwise, under the laws of this state, vested in either of such corporations, parties to such agreement and act, shall not be deemed to revert or be in any way impaired by reason of this act, or anything done by virtue thereof, but shall be vested in the new corporation by virtue of such act of consolidation. And it shall be lawful for any railroad company or corporation, now or hereafter formed by the consolidation of one or more railroad com- panies or corporations organized under the laws of this state, or under the laws of this state and other states, with one or more railroad companies or corporations organized under the laws of any other state, er of the laws of this state and other states, to issue its bonds for the purpose of paying or retiring any bonds theretofore issued by either of said companies or corporations so consolidated, or for any purpose and to the amount authorized by the laws of the state under which either of said companies or corporations so consolidated was organized, and secure the same by a mortgage upon its real or personal property, franchises, rights and privileges, whether within or without this state, and subject to the remedies for the enforcement of the same under the laws of either of said states. Nothing in this act contained shall authorize the execution of any such mortgage without the consent of the stockholders as now required by the laws of this state, nor compel any bondholder to accept payment in whole or in part of any bond or bonds held by him or to surrender the same before they shall become due. Amended ch. 862 of 1891. § '73. Creditors’ rights not to be impaired. The right of all creditors of, and all liens upon the property of, either of such corporations, parties to such agreement and act, shall be preserved unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same, and all debts and liabilities incurred by either of such corporations shall thence- forth attach to such new corporation, and be enforced against it and its property to the same extent as if incurred or contracted by it. No actions or proceedings in which either of such corporations is a party shall abate or be discontinued by such agreement and act of consolidation, but may be conducted to final judgment in the names of such corporations, or such new corporation may be, by order of the court, on motion substituted as a party. § 74. Assessment of property of new cerporation. The real estate of such new corporations, situate within this state, 390 Tue Rariroap Law. shall be assessed and taxed in the several towns and cities where the same shall be situated in like manner as the real estate of other rail- road corporations is or may be taxed and assessed, and such propor- tion of the capital stock and personal property of such new corpora- tion shall in like manner be assessed and taxed in this state, as the number of miles of its railroad situate in this state bears to the number of miles of its railroad situate in the other state or states. § 75. Stocks of municipal corporations, how represented. At any meeting of the stockholders of any railroad corporation to consider any agreement or proposition to consolidate or lease, the commissioners or other officers of any municipal corporation holding or having charge of any of the capital stock of such railroad cor- poration shall represent such municipal corporation, and may act and vote in person or by proxy on all matters relating to such consolida- tion or lease in the same manner as individual stockholders. Amended by chap. 546 of 1893. § 76. Foreclosure of mortgages made by (consolidated) railroads partly in the state. Whenever a railroad corporation of this or of any other state or states whose line of road lies partly in this state and partly in another state or states, shall have executed a mortgage upon its entire line of railroad, and a sale of the entire line of road under such mortgage shall have been or may hereafter be ordered, adjudged and decreed by a court of competent jurisdiction of the state or states, or by a court of the United States sitting within the state or states in which the greater part of such line of railroad may be situated, upon the con- firmation of such judgment or decree, and of the sale made there- under, by the supreme court of this state or by the circuit court of the United States in the judicial district in which some part of such line of road is situated, such sale shall operate to pass title to the pur- chaser, of that part of the line of railroad lying in this state, together with its appurtenances and franchises, with the same force and effect as if the judgment or decree under which such sale is had, had been made by a court of competent jurisdiction of this state. Such judg- ment or decree and sale may be so ordered, adjudged, decreed or con- firmed in any action or proceeding heretofore or hereafter brought in the supreme court, or in a court of the United States sitting in this state, for the foreclosure of such mortgage, or in aid of an action for that purpose in such other state or states, if it shall appear that such confirmation is for the interest of the public and of the parties, due and lawful provisions being made for and in respect of any liens upon that 391 Tus Rarttroap Law. part of the line of road or other property sold situate in this state, and for such costs, expenses and charges which may appear to be just and lawful. If a receiver of the entire line of such railroad shall have been, or may hereafter be appointed by such court of competent juris- diction of the state in which the greater part of the line of railroad is situated, or by a court of the United States sitting in such other state, such receiver may perform, within this state, the duties of his office not inconsistent with the laws of this state, and may sue and be sued in the courts of this state. Amended by ch. 356 of 1896. § 77. Powers of corporations organized to acquire and operate railroads partly in the state. A railroad corporation created under the laws of the state or states in which the greater part of the line of its railroad may be situated, or a railroad corporation created under the railroad law, or under article one of the stock corporation law in this state, for the purpose of taking title to, and operating, the line of road as so sold, under a judgment or decree of a court of this state, or of a court of the United States sitting in this state, for the foreclosure of a mortgage, with its franchises and appurtenances, may hold, possess and operate not only those parts of the railroad lying in other states, but also that part of the line of such railroad lying in this state, and shall be subject to the duties and liabilities to which such corporation was, by the laws of this state, subject, and to such further or other duties and liabilities as are now or may hereafter be imposed by law upon railroad corporations of this state, and the provisions of the stock cor- poration law concerning reorganization of corporations shall apply to, and in respect of, every such successor railroad corporation. An exemplified copy of the certificate or certificates of incorporation, under and by virtue of which any such corporation is created in any other state, and a certified copy of the judgment or decree of any court sit- ting in any other state, under which said railroad shall have been sold, and a certified copy of the order or judgment or decree of confirmation and approval required by the preceding section, or of the order, judg- ment or decree of the court of this state, or of the United States in this state, which decreed the sale, confirming the same, shall be filed in the office of the secretary of state for this state, and in the office of the county clerk of the county where its principal business office in this state is or shall be located. : Amended by ch. 356 of 1896. § 3. This act shall take effect immediately, and shall apply in re- spect of decrees, foreclosures, sales, confirmations, reorganizations and 392 Tur Rartroap Law. incorporations, whether heretofore or hereafter made, provided, how- ever, that nothing in this act shall affect any action or proceeding pending in any court, on or.before the first day of April, eighteen hundred and ninety-six, to establish the invalidity of any foreclosure or reorganization theretofore had, or to enforce any judgment or claim arising before such foreclosure or reorganization. Ch. 356 of 1896. § '78. Lease of road. Any railroad corporation or any corporation owning or operating any railroad or railroad route within this state may contract with any other such corporation for the use of their respective roads or routes, or any part thereof, and thereafter use the same in such manner and for such time as may be prescribed in such contract. Such contract may provide for the exchange or guaranty of the stock and bonds of either of such corporations by the other and shall be executed by the contracting corporations under the corporate seal of each corporation, and if such contract shall be a lease of any such road and for a longer period than one year, such contract shall not be binding or valid unless approved by the votes of stockholders owning at least two-thirds of the stock of each corporation which is represented and voted upon in person or by proxy at an annual meeting of the stockholders for the purpose of electing directors; called in the manner prescribed by law provided that the notice of such meeting shall state that one of the purposes thereof will be the approval of such lease, or at a meeting, called separately for that purpose upon a notice stating the time, place and object of the meeting, served at least thirty days previously upon each stockholder personally, or mailed to him at his post-office ad- dress and also published at least once a week, for four weeks succes- sively, in some newspaper printed in the city, town or county where such corporation has its principal office, and there shall be indorsed upon the contract the certificate of the secretaries of the respective corporations under the seals thereof, to the effect that the same has been approved by such votes of the stockholders, and the contract shall be executed in duplicate and filed in the offices where the certificates of incorporation of the contracting corporations are filed. The road of a corporation can not be used under any such contract in a manner inconsistent with the provisions of law applicable to its use by the corporation owning the same at the time of the execution of the con- tract. Such contracts shall be executed by the corporations, parties thereto, and proved and acknowledged in such manner as to entitle the same to be recorded in the office of the clerk or register of each county through or into which the road so to be used shall run. If 393 Tuer Rartzoap Law. any contract so recorded shall be or has been terminated by the con- tracting corporations in pursuance of resolutions of their respective boards of directors prior to the time specified in such contract for the termination thereof, then the contracting corporations shall execute, acknowledge and procure to be recorded in each office where such contract is recorded a certificate to the effect that such contract has been terminated, stating the date of the termination thereof, and said certificates so recorded shall be presumption evidence of the termina- tion of such contract accordingly. Nothing in this section shall apply to any lease in existence prior to May first, eighteen hundred and ninety-one. Amended by chap. 433 of 1893; by chap. 695 of 1905. § 79. Lessees of railroad may acquire stock therein. And railroad corporation created by the laws of this state, or its successors, being the lessee of the road of any other railroad corpora- tion, may take a surrender or transfer of the capital stock of the stockholders, or any of them in the corporation whose road is held under lease, and issue in exchange therefor the like additional amount of its own capital stock at par, or on such other terms and conditions as may be agreed upon between the two corporations; and whenever the greater part of the capital stock of any such corporation shall have been so surrendered or transferred, the directors of the corporation taking such surrender or transfer shall thereafter, on a resolution electing so to do, to be entered on their minutes, become ex-officio the directors of the corporation whose road is so held under lease, and shall manage and conduct the affairs thereof, as provided by law; and whenever the whole of such capital stock shall have been so surren- dered or transferred, and a certificate thereof filed in the office of the Secretary of State, under the common seal of the corporation to whom such surrender or transfer shall have been made, the estate, property, rights, privileges and franchises of the corporation whose stock shall have been so surrendered or transferred, shall thereupon vest in and be held and enjoyed by the corporation, to whom such surrender or transfer shall have been made, as fully and entirely, and without change or diminution, as the same were before held and enjoyed, and be managed and controlled by the board of directors of the corpora- tion, to whom such surrender or transfer of such stock shall have been made, and in the corporate name of such corporation. Where stock shall have been so surrendered or transferred, the existing liabilities of the corporation, and the rights of the creditors and of any stock- holder not surrendering or transferring his stock, shall not be affected thereby. 394 Tue Rarrroap Law. § 80. Consolidation and lease of parallel lines prohibited. No railroad corporation or corporations owning or operating rail- roads whose roads run on parallel or competing lines, except street surface railroad corporations, shall merge or consolidate, or enter into any contract for the use of their respective roads, or lease the same the one to the other, unless the board of railroad commissioners of the state or a majority of such board shall consent thereto. § 81. Mortgagee may purchase at foreclosure sale. Any mortgagee of the property and franchises of any railroad cor- poration may become the purchaser of the same at any sale thereof under the mortgage, upon foreclosure by advertisement, or under a judgment, or decree, or otherwise, and hold and use the same, with all the rights and privileges belonging thereto or connected there- with for the period of six months, and convey the same to any railroad corporation. . § 82. Certificates of stock, may be issued after foreclosure in certain cases. If any person or corporation shall be entitled to certificates of stock subscribed to and paid for in any failroad corporation whose property and franchises have been sold under mortgage foreclosure, and such certificates have not been issued before foreclosure, the officers of the corporation shall, at any time within six months after the foreclosure sale issue and deliver to the person or corporation entitled thereto, upon demand, such certificates of stock, which shall have all the force and effect and confer upon the holder all the rights which he would have had if such certificates of stock had been issued at the time of the payment of the subscription thereto. 8 83. Liabilities of reorganized railroad corporations. A railroad corporation, reorganized under the provisions of law, relating to the formation of new or reorganized corporations upon the sale of their property or franchise, shall not be compelled or re- quired to extend its road beyond the portion thereof constructed, at the time the new or reorganized corporation acquired title to such railroad property and franchise, provided the board of railroad com- missioners of the State shall certify that in their opinion the public interests under all the circumstances do not require such extension. If such board shall so certify and shall file in their office such certifi- cate, which certificate shall be irreversible by such board, such cor- poration shall not be deemed to have incurred any obligation so to extend its road and such certificate shall be a bar to any proceedings to 395 Tur Ratrroap Law. compel it to make such extension or to annul its existence for failure so to do, and shall be final and conclusive in all courts and proceed- ings whatever. This section shall not authorize the abandonment of any portion of a railroad which has been constructed and operated, or apply to Kings county. § 84. All the provisions contained in the several sections of this act shall extend, apply to and cover the consolidation, lease, sale or reor- ganization of any railroad or other corporation heretofore or hereafter organized, under the laws of this State, and any other State or country, to build, lease, buy, sell, maintain or operate any of the lines or routes of railroads, tunnels, bridges, ferries or branches or any part thereof mentioned in this article, and any similar lines or routes of railroad, tunnels, bridges, ferries of any part thereof, constructed or to be located and constructed in any foreign country. Added by chap. 921 of 1895. ARTICLE 4. STREET SURFACE RAILROADS. Section 90. Street surface railroads; general provision. 91. Consent of property owners and local authorities. 92. Consent of local authorities; how procured. 93. Condition upon which consent shall be given; sale of franchise at public auction. 94. Proceedings if property owners do not consent. 95. Percentage of gross receipts to be paid in cities or vil- lages; report of officers. 96. Extension of route over rivers; terminus in other counties; when property owners withhold consent; supreme court may appoint commissioners. 9%. Use of tracks of other roads. 98. Repair of streets; rate of speed; removal of ice and snow. 99. Within what time road to be built. 100. Motive power. 101. Rate of fare. 101a. Collection of fare. 102. Construction of road in streets where other road is built. 103. Abandonment of part of route. 396 Tuer Rartroap Law. SEcTION 104. Contracting corporations to carry for one fare; penalty. 105. Effect of dissolution of charter as to consents. 106. Corporate rights saved in case of failure to complete road; right to operate branches; conditions; former consents ratified; limitations. 107. When sand may be used on tracks. 108. Road not to be constructed upon ground occupied by public buildings or in public parks. 109. Center-bearing rails prohibited. 110. Right to cross bridge substituted for bridge crossed for five years. 111. Protection of employes. 111a.Protection to employes. 112. Local authorities may contract with railroad corpora- tions. § 90. Street surface railroads; general provisions. The provisions of this article shall apply to every corporation which, under the provisions thereof, or of any other law, has constructed or shall construct or operate, or has been or shall be organized to construct or operate, a street surface railroad, or any extension or extensions, branch or branches thereof, for public use in the conveyance of per- sons and property for compensation, upon and along any street, avenue, road, highway or private property, in any city, town or village, or in any two or more civil divisions of the State, and every such corpora- tion must comply with the provisions of this article. Any street sur- face railroad corporation, at any time proposing to extend its road or to construct branches thereof, may, from time to time, make and file in each of the offices in which its certificate of incorporation is filed, a statement of the names and description of the streets, roads, avenues, highways and private property in or upon which it is proposed to con- struct, maintain or operate such extensions or branches. Upon filing any such statement and upon complying with the condition set forth in section ninety-one of the railroad law, every such corporation shall have the power and privilege to construct, extend, operate and main- tain such road, extensions or branches, upon and along the streets, avenues, roads, highways and private property named and described in its certificate of incorporation or in such statement. Every such corporation, before constructing any part of its road upon or through any private property described in its articles of association or certifi- cate of incorporation or statement, and before instituting any pro- ceeding for the condemnation of any real property, shall make a map 397 Tue Rarrroap Law. and profile of the route adopted by it upon or through any private property, which may and profile shall be certified by the president and engineer of the company, or a majority of its directors, and shall be filed in the office of the clerk of the county in which the road is to be constructed, and all provisions of section six of the act hereby amended so far as applicable shall apply to the route so located. If any such street surface railroad company is unable to agree for the purchase of any such real property, or of any right or easement therein required for the purpose of its railroad, or if the owner thereof shall be in- capable of selling the same, or if, after diligent search and inquiry, the name and residence of such owner can not be ascertained, it shall have the right to acquire title thereto by condemnation in the manner and by the proceedings provided by the condemnation law. Noth- ing in this section shall be deemed to authorize a street railroad cor- poration to acquire real property within a city by condemnation. Amended by L. 1892, ch. 676; L. 1893, ch. 434; L. 1895; ch. 933, PoweERS GRANTED.—Street surface railroad corporations organized under this section may operate cars designed and used exclusively for transporting express matter, freight or property. De Graw y. Long Island El. R. Co., 43 App. Div. 502, 60 N. Y. Supp. 163, aff’d 163 N. Y. 597 mem. See, also, Matter of Washington St. A. & P. R. Co., 115 N. Y. 442, and People’s Rapid T. Co. v. Dash, 125 N. Y. 93. UNDERGROUND Roap.—An underground tunnel railroad is not a street surface railway within secs. 170, 171, 172, 173. New York & L. I. R. Co. v. O’Brien, 121 App. Div. 819, 106 N. Y. Supp. 909, aff'd 192 N. Y. 558. § 91. Consent of property owners and local authorities. A street surface railroad, or extensions or branches thereof shall not be built, extended or operated unless the consent in writing ac- knowledged or proved as are deeds entitled to be recorded, of the owners, in cities and villages, of one-half in value, and in towns, not within the corporate limits of a city or village, of the owners of two- thirds in value, of the property bounded on, and also the consent of the local authorities having control of that portion of a street or high- way upon which it is proposed to build or operate such railroad, ex- tension or branch shall have been first obtained. Such consents of property owners in the county of Kings which shall be hereafter exe- cuted, may be forfeited unless within sixty days after the execution thereof, the same shall be recorded in the office of the register of such county. Such register is hereby directed upon the payment of the proper fees to record all consents left with him for that purpose in books to be provided by him and paid for out of the funds provided to meet the expenses of said office. Such books shall be indexed according to the names of the consenting property owners and also according to the names of the streets, roads or other highways upon which the property to which the consent relates shall be bounded on. 398 Tue Rarzroap Law. In case the recording of such consents shall be hindered, delayed or prevented by legal proceedings in any court or from any other or different cause not within the control of the corporation upon which such requirement is imposed, the time for the performance of such act is hereby and shall be deemed to be extended for the period cov- ered by such handrance, delay or prevention. The consents of prop- erty owners in one city, village or town, or in any other civil division of the state, shall not be of any effect in any other city, village or town, or other civil divisions of the state. Consents of property owners heretofore obtained to the building, extending, operating or change of, motor power shall be effectual for the purposes herein men- tioned and may be deemed to be sufficiently proved and shall be en- titled to be recorded, wherever such consents shall have been signed, executed or acknowledged before an officer authorized by law to take acknowledgments of deeds, or before or in the presence of a subscrib- ing witness, and without regard to whether or not the subscribing witness shall have affixed his signature in the presence of the sub- seriber, provided that the proof of such signing, execution or acknowl- edgment shall have been made by such subscribing witness in the manner prescribed by chapter three, part two of the revised statutes. In cities the common council acting subject to the power now pos- sessed by the mayor to veto ordinances; in villages the board of trus- tees, and in towns the commissioner or commissioners of highways and the town board shall be the local authorities, referred to; except that in villages where the control of the streets is vested in any other board or authorities, such other board or authorities shall be the local authorities referred to, and the consent of such other board or authori- ties hereafter or heretofore obtained shall be sufficient; if in any city or county the exclusive control of any street, avenue or other property, which is to be used or occupied by any such railroad, extension or branch, is vested in any other authority, the consent of such authority shall also be first obtained. The value of the property above specified shall be ascertained and determined by the assessment roll of the city, village or town in which it is situated, completed last before the local authorities shall have given their consent, except property owned by such city, village or town, or by the state of New York, or the United States of America, the value of which shall be ascertained and deter- mined by making the value thereof to be the same as is shown by such assessment roll to be the value of the equivalent in size and frontage of the adjacent property on the same street, or highway; and the consent of the local authorities shall operate as consent of such city, village or town, as the owners of such property. Whenever 399 Tue Rartroap Law. heretofore or hereafter a railroad has been or shall be constructed and put in operation for one year or the motive power thereof has been or shall be changed and put in operation for a similar length of time, such facts shall be presumptive evidence that the requisite consents of local authorities, property owners and other authority to the con- struction, maintenance and operation of such railroad or change of motive power have been duly obtained. No consent of local authorities heretofore given shall be deemed invalid because of any portion of the road or route consented to not being connected with an existing road or route of the corporation obtaining or acquiring such consent and all statements of extension filed under section ninety of this article in reference to the route or part thereof described in any consent of local authorities are hereby ratified and confirmed, whether the same were filed before or after the obtaining or acquiring of such consents, provided however that nothing herein contained shall be construed to affect any portion of a street surface railroad which is now in or upon any portion of a street which is under the jurisdiction of a park de- partment: in any city containing a population of over twelve hundred thousand inhabitants. Amended by L. 1892, ch. 676; L. 1893, ch. 434; L. 1894, ch. 723; L. 1895, ch. 545; L. 1896, ch. 555; L. 1901, ch. 638; L. 1903, ch. 537; L. 1905, ch. 650. WHat CONSTITUTES ‘ OPBRATION.’’—The use by a surface line of a few hun- dred feet of the intervening tracks of another company, to form a connection be- tween the main portions of its own track, over which to run its own cars and transport its own passengers as a part of a continuous route, constitutes an “operation” of its road within the meaning of this section, requiring the prior consent of the local authorities and abutting owners. Colonial C. T. Co. v. Kingston Cc. R. Co., 153 N. Y. 540. PropurTy CONSIpERED.—The value of an entire tract abutting on che street sought to be used by the company, with buildings thereon, is to be considered although it extends back to another street, it having no incerior boundaries and being used as an entirety. Fox v. New York C. Inter. R. Co., 112 App. Div. 832, 98 N. Y. Supp. 338. CONSENT TO ONE AS AVAILABLE TO ANOTHER.—The fact that one street surface line has the consent of both local authorities and abutting owners to build and operate u railroad through a street, does not relieve a second company from the necessity of obtaining further consents from both of those sources to enable it to use the tracks of the first. Colonial C. T. Co. v. Kingston R. Co., 153 N. Y. 540. But the provisions of this section are inapplicable to traffic contracts. Kunz vy. Brooklyn Heights R. Co., 25 Misc. 334, 54 N. Y. Supp. 187. § 92. Consent of local authorities; how procured. The application for the consent of the local authorities shall be in writing and before acting thereon such authorities shall give public notice thereof and of the time and place when it will first be con- sidered, which notice shall be published daily in any city for at least fourteen days in two of its daily newspapers if there be two, if not, in one, to be designated by the mayor, and in any village or town for at least fourteen days in a newspaper published therein, if any there 400 Tue Rarrroap Law. shall be, and if none, then daily in two daily newspapers if there be two, if not, one published in the city nearest such village or town. Such consent must be upon the expressed condition that the provisions of this article pertinent thereto shall be compiled with, and shall be filed in the office of the clerk of the county in which such railroad is located. Whenever the consent of the common council of a city is applied for, the first onsideration, of which notice is hereby required, may be by committee of such common council. Any such notice, publication or consideration heretofore or hereafter given, made or had in substantial conformity with the requirements of this section, is and shall be sufficient notice, publication and consideration for all the purposes hereof notwithstanding any conflicting provision of any local or special act or charter. Amended by L. 1892, ch. 676; L. 1893, ch. 434. ConpITIons.—As to fixing fares and giving transfers as a condition to consent, see Gaedeke v. Staten Island M. R. Co., 43 App. Div. 514, 60 N. Y. Supp. 598. § 93. Condition upon which consent shall be given; sale of franchise at public auction. The consent of the local authorities in any city of the first class must contain the condition that the right, franchise and privilege of using any street, road, highway, avenue, park or public place shall be sold at public auction to the bidder who will agree to give the city the largest percentage per annum of the gross receipts of such cor- poration, with a bond or undertaking in such form and amount and with such conditions and sureties as may be required and approved by the comptroller or other chief fiscal officer of the city, for the fulfill- ment of such agreement and for the commencement and completion of its railroad within the time designated by law and for the per- formance of such additional conditions as the local authorities in their discretion may prescribe. Whenever such consent shall provide for the sale at public auction of the right to construct and operate a branch or extension of an existing railroad, such consent shall pro- vide that but one fare shall be exacted for passage over such branch or extension and over the line of road which shall have applied there- for; and further, that if such right shall be purchased by any cor- poration other than the applicant, that the gross receipts from joint business shall be divided in the proportion that the length of such extension or branch so sold shall bear to the entire length of the road whether owned or leased which shall have applied therefor and of such branch or extension, and that if such right shall be purchased by the applicant, the percentage to be paid shall be calculated on such portion of its gross receipts as shall bear the same proportion to the 401 Tue Rartroap Law. whole value thereof as the length of such extension or branch shall bear to the entire length of its road, whether owned or leased. The bidder to which such right, franchise and privilege may be sold must be a duly incorporated railroad corporation of this state, organized to construct, maintain and operate a street railroad in the city for which such consent may be given; but no such corporation shall be entitled to bid at such sale unless at least five days prior to the day fixed for such sale, or five days prior to the day to which such sale shall have been duly adjourned, the corporation shall have filed with the comptroller or other chief fiscal officer of the city, a bond in writing and under seal, with sufficient sureties, to be approved by such comptroller or officer, conditioned that if such right, franchise and privilege shall be sold to such corporation, to pay to the city where such railroad is situated the sum of fifty thousand dollars as liquidated damages and not by way of penalty in the event of the failure of such bidder to fulfill the terms of sale, comply with the provisions of this article pertinent thereto, and complete and operate its railroad according to the plan or plans and upon the route or routes fixed for its construction within the ‘time hereinafter designated for the construction and completion of its railroad, and also conditioned to pay to the corporation first applying for the consent, if it shall not be the successful bidder, the necessary expenses incurred by such corporation prior to the sale pursuant to the requirements and direc- tion of the local authorities, within twenty days after such sale and upon the certificate of the comptroller or other officer conducting the same as to the sum or amount to be paid. Notice of the time, place and terms of sale, and of the route or routes to be sold, and of the conditions upon which the consent of the local authorities to the construction, operation and extension of such street railroad will be given, must be published by such local authorities for at least three successive weeks, at least three times a week in two daily newspapers of the city to be designated by the mayor. The comptroller or other chief fiscal officer of the city shall attend and conduct such sale and may adjourn the same from time to time, but not more than four weeks in all, unless further adjournments should, in his discretion, be necessary by reason of the pendency of legal proceedings, and shall cancel any bid if in excess of the gross receipts, leaving in force the highest bid not in excess, or if the bidder shall not have furnished adequate security entitling such bidder to bid, or shall otherwise fail to comply with the terms and conditions of sale, and shall resell the consent and license in the same manner as hereinbefore provided for the first sale. The bidder who may build and operate such railroad 402 Tur Rartroap Law. shall at all times keep accurate books of account of the business and. earnings of such railroad, which books shall at all times be subject to the inspection of the local authorities. In the event of the failure or refusal of the corporation operating or using such railroad to pay the rental or percentages of gross earnings agreed upon, and after notice of not less than sixty days to pay the same, the local authori- ties interested therein may apply to any court having jurisdiction upon at least twenty days’ notice: to such corporation, and after it shall have had an opportunity to be heard in its defense, for judg- ment declaring the consent and right to operate and use such railroad. forfeited and authorizing the sale again of the same in the manner hereinbefore prescribed, provided, however, that no such resale of any such consent and right heretofore granted shall be authorized except upon the condition that the same shall be. subject to all liens and incumbrances existing on said railroads at the time such forfeiture may have been declared. All consents hereafter given by the local authorities, unless it be otherwise provided in such consent or in some renewal thereof may be forfeited at the expiration. of two years there- after. The board of sinking fund commissioners of any city shall have power to reduce, compromise or release any obligation or lia- bility to the mayor, aldermen and commonalty of such city under the provisions of chapter six hundred and forty-two of the laws. of eighteen hundred and eighty-six, or of this chapter whenever, in the opinion of such board, such release or compromise shall be just or equitable, or for the public interest, the reason for any such release or com- promise to be stated in the recorded proceedings of such board. No lease by any company organized under section two of the railroad law and owning a right, privilege or franchise of using amy street, avenue, highway or public place for railroad purposes, which has. heretofore been sold under the provisions of this section, hereafter made to any street. surface railroad company which is not subject to the payment of any percentage pursuant to this section, and which is not organized for the purpose of operating a railroad in a city of the first class, * shall be valid until the lessee company shall have filed in the office of the secretary of state and in the office of the clerk of the county where its certificate of incorporation is filed, its acceptance in writing and under its corporate seal of the provisions of this section as now amended ; and upon such acceptance being filed, the total percentage amount thereafter to be paid annually under this section and under section ninety-five of this act, shall be at the rate of five per centum of the gross receipts derived from the operation of the roads of the lessor and. lessee companies considered as one system. The lessee company, 403 Tue Rattroap Law. at the time of filling its acceptance aforesaid, shall also file in the same offices a bond to the people of the state, executed in duplicate by it and a surety company authorized by law to act as surety on bonds and undertakings, in the penal sum of fifty thousand dollars, and conditioned for the faithful payment annually of the total per- centage aforesaid, and such bond shall be deemed to be a full com- pliance with the condition for a bond or undertaking required by this section to be provided for in the conditions of the consent of the local authorities and shall supersede any such bond or undertaking thereto- fore given. Whenever it shall be desired to unite two street surface railroad routes at some point not over one-half mile from such re- spective lines or routes, and establish by the construction of such connection a new route for public travel, and the corporation or cor- porations owning or using such railroads shall consent to operate such connection as a part of a continuous route for one fare, and it shall appear to the local authorities that such connection cannot be operated as an independent railroad without inconvenience to the public, but that it is to the public advantage that the same should he operated as a continuous line or route with existing railroads, or whenever for the purpose of connecting with any ferry or railroad depot, it shall be desired to construct an extension or branch not more than one-half mile in length, of any street surface, railroad corpora- tion, no sale of such franchise shall be made as provided in this sec- tion, but any consent of the local authorities for the construction and operation of such connection, extension or branch shall provide that the corporation or corporations operating such connection, exten- sion or branch shall pay into the treasury of said city annually the percentage provided for extensions or branches in section ninety-five of this chapter, for the purposes, at the times, in the manner and upon the conditions set forth in such section. Nothing herein con- tained shall be construed as superseding, repealing or modifying any provision of the charter of any city, village or town, nor as modifying or affecting the terms of a certain contract bearing date January first, eighteen hundred and ninety-two, entered into by and between the city of Buffalo and the various street surface railroad corporations therein named in said contract, nor as modifying or affecting the terms of a certain contract bearing date the twenty-fifth day of February, eighteen hundred and ninety, entered into by and between the city of Rochester and the street surface railroad corporation therein named, nor as modifying or affecting any contract heretofore entered into between a street surface railroad corporation and any city of the third class, town or village regulating the payment of per- 404 Tue Rartroap Law. centages or paving of streets, and any city of the third class, town or village, is hereby authorized to enter into any such form of contract with any street surface railroad corporation, and any such contract heretofore entered into is hereby ratified and confirmed. The local authorities may, in their discretion, make their consent to depend upon any further conditions respecting other or further security, or deposit, suitable to secure the construction, completion and operation of the railroad within any time not exceeding the period prescribed in this article and respecting the character, quality or motive power of the road to be completed and respecting the grouping of streets, avenues and highways, into one route, or into several routes, for the purpose of a single sale of the franchise, right or privilege for all the routes collectively, or of the separate sale for each route or street, as said local authorities may think expedient and respecting the payment of the percentage agreed to be paid at the sale upon all the lines operated by the successful bidder within the city and respecting any matter involved in or affecting the computation of percentage pay- ments and respecting the use of the railroads to be constructed under the consent by any other.company and respecting the interchange of traffic and division of fares between the company operating such rail- roads and any other company, and respecting the application of any provision herein contained as to carriage of passengers for single fare and the division of gross receipts and the payment of percentages to the line leased or operated under contract by the applicant for an extension, and also respecting any other matter concerning which, in their judgment, further conditions would be for the public interest. Nothing herein contained shall apply to, or affect any grant hereafter made under the provisions of title one, chapter three of chapter three hundred and seventy-eight of the laws of eighteen hundred and ninety- seven and the amendments thereto known as the Greater New York charter. Amended by ch. 475 of 1908, ch. 494 of 1901. § 94. Proceedings if property owners do not consent. If the consent of property owners required by any provision of this article can not be obtained, the corporation failing to obtain such consents may apply to any general term of the supreme court held in the department in which it is proposed to construct its road for the appointment of three commissioners to determine whether such railroad ought to be constructed and operated. Notice of such appli- cation must, at least ten days prior thereto, be served, personally, upon each non-consenting property owner by delivering the same to the person to whom such property is assessed upon such assessment-roll 405 Tue Rarzroap Law. or by duly mailing the same, properly folded and directed, to such property owner at his post-office address with the postage prepaid thereon. If the person upon whom service is to be made is unknown, or his residence and post-office address are unknown and cannot by reasonable diligence be ascertained, service of such notice may be made by publishing the same in such newspaper of the county as the court may direct, at least once a week for two successive weeks. Upon due proof of service of such notice the court to which the application is made shall appoint three disinterested persons, who shall act as com- missioners, and who shall, within ten days after their appointment, cause public notice to be given of their first meeting in the manner directed by the court, and may adjourn from time to time, until all their business is completed. Vacancies may be filled by the court after such notice to parties interested as it may deem proper to be given ; and the evidence taken before as well as after the happening of the vacancy shall be deemed to be properly before such commissioners. After a public hearing of all parties interested, the commissioners shall determine whether such railroad ought to be constructed and operated, and shall make a report thereon, together with the evidence taken, to the general term, within sixty days after appointment, unless the court, or a judge thereof, for good cause shown, shall extend such time; and their determination that such road ought to be constructed and operated, confirmed by such court, shall be taken in lieu of the consent of the property owners hereinbefore required. The commis- sioners shall each receive ten dollars for each day spent in the per- formance of their duties and their necessary expenses and disburse- ments, which shall be paid by the corporation applying for their appointment. § 95. Percentage of gross receipts to be paid in cities or villages; report of officers. Every corporation building or operating a railroad, or a branch or extension thereof, under the provisions of this article, or of chapter 252 of the laws of 1884, within any city of the state having a popu- lation of 1,200,000 or more, shall, for and during the first five years after the commencement of the operation of any portion of its rail- road annually, on November first, pay into the treasury of the city in which its road is located, to the credit of the sinking fund thereof, three per cent of its gross receipts for and during the year ending September thirtieth next preceding; and after the expiration of such five years, make a like annual payment into the treasury of the city to the credit of the same fund, of five per cent of its gross receipts. If a street surface railroad corporation existing and operating any 406 Tue Rarrroap Law. . such railroad in any such city on May 6, 1884, shall have thereafter extended its tracks or constructed branches therefrom, and shall operate such branches or extensions under the provisions of chapter 252 of the laws of 1884, or of this article, such corporation shall pay such percentages only upon such portion of its gross receipts as shall bear the same proportion to its whole gross receipts as the length of such extension or branches shall bear to the entire length of its line. In any other incorporated city or village the local authorities shall have the right to require, as a condition to their consent to the con- struction, operation or extension of a railroad under the provisions of this article, the payment annually of such percentage of gross receipts, not exceeding three per cent, into the treasury of the city or village as they may deem proper. In case of extension the amount to be paid shall be ascertained in the manner heretofore provided. The corporation failing to pay such percentage of its gross earnings, shall, after November first, pay in addition thereto five per cent a month on such percentage until paid. The president and treasurer of any corporation required by the provisions of this article to make a payment annually upon its gross receipts shall, on or before Novem- ber first in each year, make a verified report to the comptroller or chief fiscal officer of the city of the gross amount of its receipts for the year ending September thirtieth, next preceding, and the books of such corporation shall be open to inspection and examination by such comptroller or officer, or his duly appointed agent, for the purpose of ascertaining the correctness of its report as to its gross receipts. The corporate rights, privileges and franchises acquired under this article or such chapter by any corporation, which shall fail to comply with all the provisions of this section, shall be forfeited to the people of the state, and upon judgment of forfeiture rendered in an action brought in the name of the people by the attorney-general, shall cease and determine. L. 1884, ch. 252, sec. 8. L. 1889, ch. 564. § 96. Extension of route over rivers; terminus in other counties; when property owners withhold consent; supreme court mav appoint commissioners. Any street railroad in operation in this state, which shall by a two- thirds vote of its directors, decide to extend the route of its road, so as to cross a river over and by any bridge now or hereafter constructed under the provisions of any law of this state, may so extend their route over and across such bridge upon such terms as may be mutually agreed upon between it and such bridge company, and may locate the terminus of their road in the county adjoining the one in which their 407 Tue Rartrosap Law. road is now located and in operation, upon first obtaining the cosent of such bridge company or its lessees, and the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad, or in case the consent of such property owners cannot be obtained the appellate division of the supreme court in the district in which it is proposed to be constructed may, upon application, appoint three commissioners, who shall determine after a hearing of all parties interested, whether such railroad ought to be constructed, or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. Whenever a terminus of any public viaduct, bridge or bridges, or public viaduct connected with any bridge or bridges, heretofore or hereafter con- structed in and owned and maintained by any city of the first class, or town adjoining the same, is or shall be located at or adjacent to or within one-half mile of the route of any existing street surface rail- road, the corporation owning or operating such railroad may, irre- spective of any provisions otherwise applicable thereto contained in any general or local act, upon obtaining the consent of the local authorities and property owners as above provided, and upon com- plying with the provisions of the railroad law applicable thereto, ex- tend its road or route and construct and operate its railroad, to, upon and across such viaduct, bridge or bridges and approaches thereto for the purpose of connecting with another railroad route not more than one-half mile distant from such bridge or viaduct so as to afford a continuous ride for one fare, subject to the provisions of the railroad law, or for the purpose of reaching the depot, station or terminus of another railroad not more than one-half mile distant from such bridge or viaduct. This section shall not apply to any bridge over the Hudson or East rivers in the counties of New York and Kings, nor to any bridge or viaduct constructed under the provisions of any so- called grade crossing law. Amended by ch. 419 of 1901. § 97. Use of tracks of other roads. Any railroad corporation in this state, whose cars are run and operated by horses or other motive power, authorized by this article, upon the surface of the street, excepting in the city and county of New York, may, for the purpose of enabling it to connect with and run and operate its cars between its tracks and a depot or car-house owned by it, run upon, intersect, and use, for not exceeding five hun- dred feet, the tracks of any other railroad corporation, the cars of 408 Tur Rarrrosap Law. which are run and operated in like manner, with the necessary con- nections and switches for the proper working and accommodation of the cars upon such tracks, and in connection with such depot or car- house, upon paying therefor such compensation as it may agree upon with the corporation owning the tracks to be so run upon, intersected, and used ; and in case such corporations cannot agree upon the amount of such compensation, the same shall be ascertained and determined in the manner prescribed in the condemnation law. § 98. Repair of streets; rate of speed; removal of ice and snow. Every street surface railroad corporation so long as it shall con- tinue to use any of its tracks in any street, avenue or public place in any city or village shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe. In case of the neglect of any corporation to make pavements or repairs after the expiration of thirty days’ notice to do so, the local authorities may make the same at the expense of such corporation, and such authorities may make such reasonable regulations and ordinances as to the rate of speed, mode of use of tracks, and removal of ice and snow, as the interests or convenience of the public way require. A corporation whose agents or servants wilfully or negligently violate such an ordi- nance or regulation, shall be liable to such city or village for a penalty not exceeding five hundred dollars to be specified in such ordinance or regulation. Amended by L. 1892, ch. 676. In GENDRAL.—This section is applicable to street railroad companies incor- porated prior to its enactment. Doyle v. New York, 58 App. Div. 588, 69 N. Y. Supp. 120; Weed v. Binghamton, 26 Misc. 208, 56 N. Y. Supp. 105. Taxine PowrR.—The above section requiring a street surface railroad company to pay the cost of paving between their tracks is an exercise of the taxing power of the legislature. Rochester Ry. Co., 182 N. Y. 99, aff’d 205 U. S. 236. RicHT TO BE HearD.—And the street railway company has no constitutional right to be heard on the question whether the requirement to repave is reasonable or not, since the obligation of the company is a mere condition of its use of the streets and as compensation to the city therefor. New York v. New York C. R. Co., 182 App. Div. 156, 116 N. Y. Supp. 939. Dury To Repave.—As to duty of street railroad company to repave between its cracks when the pavement as a whole has become so out of repair that a new pavement is necessary, although the company has maintained the existing pavement in good repair within the railroad area of the street, see New York v. New York Cc. R. Co. 132 App. Div. 156, 116 N. Y. Supp. 939, and Conway v. Rochester, 157 N. Y. 33. In New York v. Harlem Bridge, M. & F. R. Co., 186 N. Y. 304, the court held that when the proper authorities in view of the condition of the street as shown to exist, decided that a granite block pavement should be laid, the requirement of repairing and keeping in good order the surface of the street compelled the company to co-operate with the city and put the space between its rails in the same con- 409 Tue Rartroap Law. dition as the rest of the street even though that necessitated the laying of a new pavement. See, also, Mechanicville v. Stillwater & M. St. R. Co., 35 Misc. 513, aff'd 174 N. Y. 507 mem., and Binninger, New York, 177 N. Y. 199. Neicher the provisions of the statute nor the decisions under it make the obligation depend upon the actual state of repair of the old pavement between the tracks; it is the condition of the street as a whole that is to be considered and when che public interests require that the street should be paved with a particular kind of pavement the statute imposes upon the company the obligation to keep the portion of the street specified in permanent repair by repaving it in the same way and with the same material as the balance of the street. New York v. New York City R. Co., supra. Under this section a street railway company is required to keep in repair a space 2 feet outside of each outside rail. Amsterdam v. Fonda. J. & G. R. Co., 119 App. Div. 680, 104 N. Y. Supp. 411. Notice ro REPAIR.—This section imposes upon a street railway company the duty of keeping the pavement between its tracks and 2 feet in width outside thereof in permanent repair, irrespective of any request or demand on the part of the local authorities to make repairs. Schuster v. Forty-Second St. M. & St. N. A. R. Co., 192 N. Y¥. 403. The court distinguished Conway v. Rochester, 157 N. ¥. 33, on the ground that the decision in that case related to the paving of the street, practically making a new street, and did not have reference to a hole exist- ing in the street which endangered the lives and property of persons passing over the street. The failure of the local authorities to nocify the company to repair a defect In the street does not absolve the company from its obligation to make repairs. Simon v. Metropolitan St. R. Co., 29 Misc. 126, 60 N. Y. Supp. 251, citing Brook- lyn v. Brooklyn C. R. Co., 47 N. Y. 475. EXxBMPTION.—A city has no power to exempt a street railway company by contract or otherwise from the requirements of this section. Wood vy. Binghamton, 26 Misc. 208, 56 N. Y. Supp. 105. See Rochester v. Rochester Ry. Co., 182 N. Y. 99, aff'd 205 U. S. 236. } 8 99. Within what time road to be built. In case any such corporation shall not commence the construction of its road, or of any extension or branch thereof, within one year after the consent of the local authorities and property owners or the determination of the appellate division of the supreme court as herein required, shall have been given or renewed, and shall not complete the same within three years after such consents, or determination shall have been obtained, its rights, privileges and franchises in re- spect of such railroad or extension or branch, as the case may be, may be forfeited. If the performance of any act required by the railroad law or any prior acts within the times therein prescribed, is hindered, delayed or prevented by legal proceedings in any court, such court may also extend such time for such period as the court shall deem proper, or if the performance of any act required by said article within the times therein prescribed is hindered, delayed or prevented by works of public improvement, or from any other or different cause, not within the control of the corporation upon which such require- ment is imposed, the time for the performance of such act is hereby and shall be deemed to be extended for the period covered by such hindrance, delay or prevention. The time for compliance with any 410 Tue Rartroap Law. requirement in this or any former act, by a street surface railroad corporation incorporated for the purpose of constructing a street sur- face railroad and which has prior to the passage of this act obtained or shall prior to June 30th, 1908, obtain such consents or determina- tion is hereby extended until June 30th, 1904. Amended by chap. 434 of 1893, chap. 209 of 1902. § 100. Motive power. Any street surface railroad may operate any portion of its road by animal or horse power, or by cable, electricity, or any power other than locomotive steam power, which said locomotive steam power is pri- marily generated by the locomotive propelling the cars, and in the use of which either escaping steam or smoke is visible, which may be ap- proved by the state board of railroad commissioners, and consented to by the owners of one-half of the property bounded on that portion of the railroad, with respect to which a change of motive power is proposed ; and if the consent of such property owners cannot be ob- tained, the determination of three disinterested commissioners, ap- pointed by the appellate division of the supreme court of the depart- ment in which such railroad is located, in favor of such motive power, confirmed by the court, shall be taken in lieu of the consent of the property owners. The consent of the property owners shall be ob- tained and the proceedings for the appointment and the determination of the commissioners and the confirmation of their report shali be conducted in the manner prescribed in sections ninety-one and ninety- four of this article, so far as the same can properly be made appli- cable thereto. Any railroad corporation making a change in its motive power under this section, may make any changes in the construction of its road or roadbed or other property rendered necessary by the change in its motive power. Where a street surface railroad in the counties of Herkimer and Hamilton is located wholly outside the limits of an incorporated city or village, such railroad may, with the approval of the state board of railroad commissioners be operated by locomotive steam power, provided that such steam power is generated by oil from and including April fifteenth to and including November thirtieth, and by either oil or coal from and including December first to and ‘including April fourteenth. Amended by L. 1901, ch. 5538, sec. 1. CoNSENT OF OwWN»RS.—iThe consent to a change of motive power is not re- quired by the owners of one-half of the lineal foot frontage. Matter of Rochester & L. O. R. Co, 51 App. Div. 65, 64 N. Y. Supp. 429. Ravisw.—The action of the Board of Railroad Commissioners in refusing to permit a street surface company to change its motive powers from horses to kineti¢ stored steam power is judicial in its nature, and therefore reviewable by the courts. People ex rel. Babyton R. Co. v. Ry. Commrs., 32 App. Div. 179, 5 N. Y. Supp. 908, aff'd 158 N. Y¥. 711 mem. 411 Tue Rartrroap Law. § 101. Rate of fare. No corporation constructing and operating a railroad under the provisions of this article, or of chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four, shall charge any pas- senger more than five cents for one continuous ride from any point on its road, or on any road, line or branch operated by it, or under its control, to any other point thereof, or any connecting branch thereof, within the limits of any incorporated city or village. Not more than one fare shall be charged within the limits of any such city or village, for passage over the main line of road and any branch or extension thereof if the right to construct such branch or extension shall have been acquired under the provisions of such chapter or of this article; except that in any city of the third class, or incorporated village, it shall be lawful for such corporation to charge and collect as a maxi- mum rate of fare for each passenger, ten cents, where such passenger is carried in a car which overcomes an elevation of at least four hun- dred and fifty feet within a distance of one and a half miles. This section shall not apply to any part of any road constructed prior to May six, eighteen hundred and eighty-four, and then in operation, unless the corporation owning the same shall have acquired the right to extend such road, or to construct branches thereof under such chap- ter, or shall acquire such right under the provisions of this article, in which event its rate of fare shall not exceed its authorized rate prior to such extension. The legislature expressly reserves the right to regulate and reduce the rate of fare on any railroad constructed and operated wholly or in part under such chapter or under the provisions of this article. § 101l-a. Collection of fare. It shall be unlawful for any corporation, or an employee thereof, operating a street surface railroad, or a branch thereof, on which the motive power is electricity, which road or branch is operated wholly or in part in a city having at least one million inhabitants and which crosses the boundaries of a city of the first class, to collect fare of a passenger more than once for and during one continuous ride on a single car or train ; excepting that fare may be once collected separately outside the city limits for passenger service to or from such limits, and once separately within the city for the service therein. A person or corporation violating the provisions of this section shall be liable te a penalty of twenty-five dollars for each violation, recoverable by the passenger aggrieved thereby. ENTERING ATTACHED Car.—One who boarded an open car and paid his fare, and then on account of a sudden change in the weather entered a closed car at- 412 Tur Rarrroap Law. tached thereto, is liable for another fare. Lasker v. Third Ave. R. Co., 27 Misc. 824, 57 N. Y. Supp. 395. And in Birmingham R. L, & P. Co. v. McDonough (Ala.), 40 So. 960, the court held that a passenger who paid his fare on a motor car and subsequently passed from it to a trailer, by alighting from the former, is liable for another fare, the cars being under separate conductors. See, also, Faber v. Chicago G. W. R. Co., 62 Minn. 433. Waat CONSTITUTES CONNECTING BrancH.—The terms of the statute suggest an original or main line which by an offshoot and secondary and tributary line has been extended or continued, the two constituting a single continuous and connected line of road. Bull v. New York C. R. Co., 192 N. Y. 361. But two lines of street surface railroad, originally constructed and owned by separate companies, operating different lines of cars, and brought into physical rela- tion only by means of 9 third intervening line, do not, where they have been taken into a general railway system, constitute a road and “connecting branch thereof,” or “main line of road and any branch or extension thereof,” within the meaning of this section. Bull v. New York C. R. Co., 192 N. Y. 361. See, also, O’Connor v. Brooklyn Heights R. Co., 123 App. Div. 784, 108 N. Y. Supp. 471. This section does not require the giving of a transfer over another line con- trolled by the same company, where there is no intersection, although one line approaches within 30 feet of the other. Ketcham v. New York C. R. Co., 48 Misc. 367, 95 N. Y. Supp. 553. ALLEGATIONS OF COMPLAINT.—As to what should be alleged in a complaint in an action brought under this section, see Mendoza v. Metropolitan St. R. Co., 51 App. Div. 430, 64 N. ¥. Supp. 745. § 102. Construction of road in street where other road is built. No street surface railroad corporation shall construct, extend or cperate 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, except for necessary crossings, or, in cities, villages and towns of less than one million two hundred and fifty thousand in- habitants over any bridges, without first obtaining the consent of the corporation owning and maintaining the same, except that any street surface railroad company may use the tracks of another street surface railroad company for a distance not exceeding one thousand feet, and if in a city having a population of less than thirty-five thousand in- habitants, except Long Island City, for a distance not exceeding fifteen hundred feet, and in cities, villages and towns of less than one million ‘ . . . two hundred and fifty thousand inhabitants, shall have the right to lay its tracks upon, and run over and use any bridges used wholly or in part as a foot-bridge, whenever the court upon an application for commissioners shall be satisfied that such use is actually necessary to connect main portions of a line to be constructed or operated as an independent railroad, or to connect said railroad with a ferry, or with another existing railroad, and that the public convenience requires the same, in which event the right to use shall only be given for a com- pensation to an extent and in a manner to be ascertained and deter- mined by commissioners to be appointed by the courts as is provided in the condemnation law, or by the board of railroad commissioners in cases where the corporations interested shall unite in a request for 413 Tuer Rartroap Law. such board to act. Such commissioners in determining the compen- sation to be paid for the use by one corporation of the tracks of another shall consider and allow for the use of the tracks for all injury and damage to the corporation whose tracks may be so used. Any street surface railroad corporation may, in pursuance of a unanimous vote of the stockholders voting at a special meeting called for that purpose by notice in writing, signed by a majority of the directors of such corporation, stating the time, place and object of the meeting, and serving upon each stockholder appearing as such upon the books of the corporation, personally or by mail, at his last known post-office address, at least sixty days prior to such meeting, guarantee the bonds of any other street surface railroad corporation whose road is fully or partly in the same city or town or adjacent cities or towns. Amended by chap. 693 of 1894. Amended by L. 1894, ch. 693. CoNSENTS AS CONDITION PRECEDENT.—The consents of the local authorities and the abutting owners to the use of an intervening track, are conditions precedent to proceedings to acquire such use under this section; in other words, the petitioner is not in a position to make the application until he has first obtained such consents. Colonial C. T. Co. v. Kingston R. Co., 154 N. Y. 493 (495); see, also, 153 N. Y. 540. But the consent of an existing railroad to the use of the streets is not a con- dition precedent to the right of a competing company to obtain the consent of local authorities. Hlectric City R. Co, v. Niagara Falls, 48 Misc. 91, 95 N. Y. Supp. 73. On the right of a street railway company to give consent in advance of the construction of its own line, see Staten Island M. R. Co. v. Staten Island El. R. €o., 34 App. Div. 181, 564 N. Y. Supp. 598. § 103. Abandonment of part of route. Any street surface railroad corporation may declare any portion of its route which it may deem no longer necessary for the successful operation of its road and convenience of the public to be relinquished or abandoned. Such declaration of abandonment must be adopted by the board of directors of the corporation under its seal, which shall be submitted to the stockholders thereof at a meeting called and con- ducted in the same manner as required by law for meetings of stock- holders for the approval of leases by railroad corporations for the use of their respective roads. If the stockholders shall, at such meeting, ratify and adopt such declaration of abandonment, the secretary of the company shall so certify under the seal of the corporation, upon such declaration. Such declaration shal] then be submitted to the board of railroad commissioners for its approval, and if approved by such board, such approval shall be indorsed therejn or annexed thereto and the declaration so certified and indorsed shall be filed and recorded in the office of the secretary of state, and from the time of such filing, 414 Tue Rartroap Law. such portion of the route designated in the declaration shall be deemed to be abandoned. Amended by chap. 478 of 1900. § 104. Contracting corporations to carry for one fare; penalty. Every such corporation entering into such contract shall earry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any pas- senger desiring to make one continuous trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer, entitling sueh passenger to one con- tinuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially. as a single railroad with a single rate of fare. For every refusal to comply with the requirements of this section the corporation so re- fusing shall forfeit fifty dollars to the aggrieved party. The pro- visions of this section shall only apply to railroads wholly within the limits of any one incorporated city or village. Amended by L. 1892, ch. 676. MpaninG or “ ContInNvoUs.”—The term “continuous” as used in the statute should be construed to mean direct. Charbonneau v. Nassau El. R. Co., 123 App. Div. 531, 108 N. Y. Supp. 103. MOTIVE FOR DBMANDING TRANSFER.—This section was enacted for the benefit of one who desires to make a continuous trip between certain points and who enters the car for the purpose of travel alone. Bull vy. New York €. R. Co., 192 N. ¥. 361. One who. rides on a street car for the purpose of acquiring information in re- gard to the custom of the company in issuing transfers to be used in pending litigation instituted for the recovery of penalties for refusal to issue transfers, is not a passenger within the meaning of the statute so as to be entitled to recover the penalty. Bull v. New York C. R. Co., 192 N. ¥. 361. In other words, one who takes a street car simply for the purpose of being denied a transfer in order that he may bring a suit for a penalty, is not entitled to the prosectton of the statute. Such an one is not an “aggrieved party’ within the meaning of the statute. Myers v. Brooklyn Heights R. Co., 10 App. Div. 335, 41 N. ¥. Supp. 798; Nicholson v. New York C. R. Co., 118 App. Div. 858, 103 N. Y. Supp. 695; Bull v. New York C. R. Co., supra. Fisher vy. N. ¥. C. & H. RB. R. Co, 46 N. Y. 644, is distinguishable. But, see, Fitamartin v. New York C. R. Co. 51 Mise. 36, 99 N. Y. Supp. 765, and McLean y. Interurban St. R. Co. 87 N. Y. Supp. 135. But the fact that the passengers, who were young boys, were indulging in “skylarking” did not affeet their standing as passengers or deprive them of their right to transfers when asked in good faith. Rosenberg v. Brooklyn Heights R. Co., 91 App. Div. 580, 86 N. ¥. Supp. 871. EXCUSE FOR FaILurRm TO Givp TRANSFER.—It ig no excuse for a refusal to give a transfer at a particular point that it might cause undue crowding in the street and at the crossings. Moskowwitz v. Brooklyn Heights R. Co., 47 Misc. 119, 93 N. Y. Supp. 385; Tapham v. Interurban St. R. Co., 42 Misc, 508, 86 N. Y. Supp. 295. Nor is it any excuse for refusal to give a transfer that the passenger could 415 Tue Rartroap Law. travel over another route for one fare. Tapham v. Interurban St. R. Co., 42 Misc. 503, 86 N. Y. Supp. 295. A failure to give a transfer because the conductor did not have any left, does not absolve the company from liability for the penalty. Rosenberg v. Brooklyn Heights R. Co., 91 App. Div. 580, 86 N. Y. Supp. 871. Error IN ASKING TRANSFER.—A company is not liable for refusal to give a transfer where a passenger asked for an ‘Amsterdam Avenue” transfer, desiring to go south, and was given one good only on the north-bound car. Gasper v. New York C. R. Co., 51 Misc. 43, 99 N. Y. Supp. 904. Notice To PUBLIC AS TO TRANSFERS.—In absence of proof that the public had notice of a rule of the company requiring a green transfer for use in one direction and a white one for use in another, the company is liable for refusing to give a transfer which may be used in the direction the passenger desired to travel. Gasper v. New York C. R. Co., 51 Mise. 39, 99 N. Y. Supp. 902. A street car company has no right to discontinue the giving of transfers over a certain route without notice to a passenger while it is still possible for him to take another route. Freeman v. New York C. R. Co., 92 N. Y. Supp. 47. See, also, Holmes v. Interurban St. R. Co., 92 N. Y. Supp. 57. TIM FOR Use oF TRANSFER.—A passenger cannot be expected to use a transfer within the time limited if the cars do not stop because they are overcrowded, or if there is no room on the cars stopping within the specified time. Jenkins v. Brook- lyn Heights R. Co., 29 App. Div. 8, 51 N. Y. Supp. 216; Hanna y. Nassau El. R. Co., 18 App. Div. 137, 45 N. Y. Supp. 437. In the latter case the.court said that if the cars which stop at the point of transfer are crowded, it is the passenger’s duty to wait for a car in a proper condition to receive him. A passenger may recover damages for his ejection from a car on which he attempted to use a transfer which had expired because the car was late. Little Rock T. & El. Co. v. Winn, 75 Ark. 529; and in Golden vy. Pittsburgh R. Co., 28 Pa. Super. Ct. 318, the court said that the passenger is entitled to resume his journey on the first car going in his direction from the place of transfer. For contrary decisions, see Hornesby v. Georgia R. & Bl. Co., 120 Ga. 913, and Garrison v. United R. & El. Co., 97 Md. 347. PLacbh OF TRANSFER.—A passenger who accepts a transfer stating on its face that the second car is to be boarded at a certain point has no right to attempt to transfer before such point is reached, although the car to which the transfer is to be made runs over the same track. Shortsleeves v. Capital Traction Co., 28 App. Div. D. C. 365. See, also, Percy v. Metropolitan St. R. Co., 50 Mo. App. 75. And the fact that the cars on the transfer line had stopped for a short while, will not permit the passenger to walk three blocks and board a car standing there, which, had the cars been in operation, would have passed the point of transfer before his arrival. Percy v. Metropolitan St. R. Co., supra. A passenger has the right to take the nearest and most convenient route. Charbonneau v. Nassau El. R. Co., 123 App. Div. 531, 108 N. Y. Supp. 105. DEFECTIVE TRANSFHRS.—The following authorities hold it to be the duty of the conductor of the transfer line to listen to the reasonable explanation of the pas- senger offering a transfer erroneously punched, and require him at his peril to determine whether the transfer presented entitles the passenger to ride, although it does not upon its face show that right. Indianapolis St. R. Co. v. Wilson, 161 Ind. 153; Georgia R. & El. Co. v. Baker, 125 Ga. 562; O’Rourke v. Citizens’ St. R. Co., 103 Tenn, 124; Citizens’ St. R. Co. v. Clark, 33 Ind. App. 190; Carpenter vy. Washington & G. R. Co., 3 Mackey 227. In Mickle v. Rochester R. Co., 79 Hun 32, 29 N. Y. Supp. 732, the court said that while the conductor of the transfer car personally may have been justified by his orders in ejecting 2 passenger tendering a defective transfer, yet the court held that the company was partly in the wrong by the act of the conductor issuing the transfer, and was therefore no more justified in attempting to eject the passenger than it would have been if he had at the time presented the evidence of his right to remain in the car without further payment, and so held the company liable for such violence upon the passenger as was employed by the conductor in ejecting him. And the right to damages for expulsion is not affected by a condition on the back of the transfer requiring payment of fare in case of dispute and application 416 Tur Rartroap Law. at the office of the company for reimbursement; such condition was regarded as unreasonable. QO’Rourke y. Citizens’ St. R. Co., 1038 Tenn. 124. INSPECTION.—Jt was held in the following authorities that a passenger is under no obligation to inspect the transfer, but has a right to assume that the con- ductor has punched it correctly. Moon v. Interurban St. R. Co., 85 N. Y. Supp. 863; Lawshe v. Tacoma R. & P. Co., 29 Wash. 682; Memphis St. R. Co. v. Graves, 110 Tenn. 232; Indianapolis St. R. Co. v. Wilson, 161 Ind. 153, A condition printed on transfers requiring the passengers to examine the date, time, and direction, and see that they are correct, was held in O’Rourke v. Citizens’ St. R. Co., 103 Tenn. 124, to be void as unreasonable, especially when the matters are so complex as not to be easily understood. See, also, Indianapolis St. R. Co. vy. Wilson, supra. The ejection of a passenger from a car because of the defectiveness of his transfer is wrongful and entitles him to damages, where he did not know the transfer was incorrect and was too ignorant to tell whether it was punched rightly or not. Eddy v. Syracuse R. T. Co., 50 App. Div. 109, 63 N. Y¥. Supp. 645; Jacobs v. Third Ave. R. Co., 71 App. Div. 199, 75 N. Y. Supp. 679. But a passenger who accepted a transfer which showed that it had expired and retained it relying upon the statement of the conductor who issued it that it was all right, is not entitled to recover for his ejection from the transfer car by the conductor who refused to honor it, Nicholson v. Brooklyn Heights R. Co., 118 App. Div. 18, 103 N. Y. Supp. 310. See Laird v. Pittsburg Traction Co., 166 Pa. 4, in which it appeared that the transfer contained two punches, one correct and the other incorrect, and was given to the passenger just as he was leaving the car without allowing sufficient time to ascertain whether it was correctly punched or not. The company was held liable for ejecting the passenger. For authorities requiring the passenger to pay his fare, or leave the car and enforce his rights by an appropriate remedy, see Bradshaw v. South Boston R. Co., 135 Mass. 407; Norton v. Consolidated R. Co., 79 Conn. 109 Kiley vy. Chicago Cc. R. Co., 189 Ill. 384; Little Rock R. & El. Co. v. Goerner, (Ark) 95 S. W. 1007; Woods v. Metropolitan St. R. Co., 48 Mo. App. 125. WHEN Two Fares LAWFUL.—A company owning an electric line, leased another line which had been used as a steam road since 1879 and converted it into an electric road. Such company had a right to charge a five-cent fare on each line for a continuous trip over both, since the law restricting the fare has no ap- plication, to roads, in operation prior to 1884, or to any road operated by steam. Barnett v. Brooklyn Heights R. Co., 53 App. Div. 482, 65 N. Y. Supp. 1068. Wuo May Brine AcTION.—The one to whom the transfer is refused in viola- tion of the section is the “aggrieved party.” So, a minor is entitled to main- tain an action by guardian ad litem to recover the statutory penalty. Fox vy. Interurban St. R. Co., 42 Mise. 538, 86 N. Y, Supp. 64. The penalty cannot be enforced by an assignee. Coyle vy. Interurban St. R. Co., 88 N. Y. Supp. 136. An action may be maintained for the penalty by a passenger not paying for herself but whose fare is paid by her escort. McLaughlin v. New York C. R. Co., 106 App. Div. 1, 94 N. Y. Supp. 653; Carpenter v. New York C. R. Co., 93 N. Y. Supp. 600. The payment by an escort is either payment by agent or is a gift. Carpenter vy. New York C. R. Co., supra. CUMULATIVN PENALTIBS.—The commencement of one action for a penalty con- stitutes a waive of all previous penalties. Griffin v. Interurban St. R. Co., 179 N. Y. 449, 180 N. Y. 538; Stevenson v. New York C. R. Co., 54 Misc. 641, 104 N. Y. Supp. 866; Harkow v. New York C. R. Co., 121 App. Div. 194, 105 N. Y. Supp. 689. Burpgn or Proor.—lIn an action to recover a penalty under this section, the burden rests upon the plaintiff to establish his case by a preponderance of evi- dence, but not beyond reasonable doubt. Kerin v. New York C. R. Co., 53 Misc. 568, 103 N. Y. Supp. 769. . LIMITATION OF ACTIONS.—An action under this section must be brought within three years from the time of its accrual. Munro v. Brooklyn Heights R. Co., 120 App. Div. 516, 105 N. Y¥. Supp. 325. 417 Tus Rartroap Law. OPERATION BY LESSEE.—iWith reference to the applicability of -this section to the operation of a line by a lessee, see Roosa vy. Brooklyn Heights R. Co., 28 Misc. 387, 59 N. Y. Supp. 664; Mendoza v. Metropolitan St. R. Co., 51 App. Div. 430, 64 N. Y. Supp. 745; Griffin v. Interurban St. R. Co., 179 N. Y. 488. When a street surface company engaged in the operation of a street car line leases another line which intersects its own road and commences to operate the same, they are ‘“‘embraced in such contract”? within the meaning of this section, and passengers must be transferred from one line to the other without additional fare. O'Reilly v. Brooklyn Heights R. Co., 179 N. Y. 450. 8 105. Effect of dissolution of charter as to consents. Whenever any street surface railroad corporation shall have been Cissolved or annulled, or its charter repealed by an act of the legis-_ lature, the consent of owners of property bounded on, and the consent of the local authorities having the control of that portion of a street or highway upon which the railroad of such corporation shall have been theretofore constructed and operated, and the order of the gen- eral term confirming the report of any commissioner that such rail- road ought to be constructed or operated, shall not, nor shall either thereof, be deemed to be in any way impaired, revoked, terminated or otherwise affected by such act of dissolution, annulment or repeal, but the same and each thereof shall continue in full force, efficacy and being. The right to the further enjoyment and to the use thereof, subsequent to such act of dissolution, annulment or repeal, and of all the powers, privileges and benefits therein or thereby created, shall be sold at public auction by the local authorities within whose jurisdic- tion such railroads shall be, in the same manner as is provided in section ninety-three of this article. When such sale shall have been so made, the purchaser thereat shall have the right to the further en- joyment and use of such consents and orders, and of each thereof, and of all the powers, privileges and benefits therein or thereby created, in like manner as if such purchaser had been originally named in such consents, reports and orders; if such purchaser shall be otherwise authorized by law to construct, maintain and operate a street surface railroad within the municipality within which such railroad shall be. Former section 106. § 106. Corporate rights saved in case of failure to complete road; right to operate branches; conditions; former consents ratified; limitations. The corporate existence of and powers of every street surface rail- road corporation, which has eompleted a railroad upon the greater portion of the route designated in its certificate of incorporation, within ten years from the date of filing such certificate in the office of the secretary of state, and which has operated such completed por- tion of its railroad continuously for a period of five years last past, 418 ‘ Tre Rartroap Law. and is now operating the same, shall continue with like force and effect, as though it had in all respects complied with the provisions of law with reference to the time when it should have fully completed its road. Every such corporation shall have the right to operate any ex- tensions and branches of its railroad, now constructed and operated by it, which have been so constructed and operated by it, for a period of ten years last past, with like force and effect, as though the route of such extensions and branches were designated in its certificate of incorporation. But every such street railroad corporation is author- ized to operate such railroad and any extensions or branches thereof, ‘upon condition that it is heretofore, or shall hereafter, obtain the consent of the local authorities having the control of that portion of the streets, avenues or highways included in such railroad, or any extension or branches thereof, to the construction and operation of the same, and also upon the condition that it has heretofore or shall hereafter first obtain the consent of the owners of one-half in value of the property bounded on the portion of the streets, avenues or highways included in the route of such railroad, or any extension or branches thereof, to the construction and operation of the same, or in case the consent of such property owners cannot be obtained, the appel- late division of the supreme court of the department in which such railroad or any extension or branch thereof is located, may, upon application, appoint three commissioners who shall determine, after a hearing of all the parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. If any street surface railroad corporation, shall have made and filed a statement or statements of proposed extensions or branches embracing a line from the boundary of a city or village to the boundary of an- other city or village generally parallel with the route specified in its certificate of incorporation and generally distant not more than one- half mile therefrom, and shall have made and filed an agreement of consolidation with some other street surface railroad corporation formed to build a street railroad upon a route continuous or connecting with one or more of the routes described in such statement or state- ments of proposed extensions or branches, and thereafter there shall have been constructed and operated for a period of four years a street surface railroad from such city or village to such other city or village upon a line embraced in any such proposed extensions or branches, such consolidated corporation may relinquish and abandon any uncon- structed route or unconstructed portions of route specified in the certifi- cate of incorporation or in any statements of proposed extensions or 419 Tue Rartroap Law. branches of such first mentioned corporation by filing in the office of the secretary of state a copy of a resolution of the board of directors of such consolidated corporation certified by its president and secretary, declaring such unconstructed route or unconstructed portions of route relinquished and abandoned, and thereupon the corporate rights, powers and franchises of such consolidated corporation shall be and continue the same as though the certificate of incorporation of such constituent corporation had specified the constructed and not the un- constructed portions of such route and proposed extensions and branches. All consents heretofore given, or grants made by local authorities having the control of the portion of any street, avenue or highway included in the route of such railroad, or any extensions or branches thereof, to any such street surface railroad corporation, are hereby ratified and confirmed and declared valid. This section shall be applicable to any corporations whose lines are wholly within any towns, cities or villages having less than twenty thousand inhabitants This section shall not apply to or affect any railroad corporation in the city of New York; nor any special grant made to or authority con- ferred upon any street surface railroad corporation by any law of this state; nor any pending litigation; nor shall it Impair existing rights, privileges or franchises of any street surface railroad corporation. Amended by chap. 198 of 1900. § 107. When sand may be used on tracks. The owner or operator of any street surface railroad in cities of this state, may place upon the space between the rails, and upon the rails of such road sand in sufficient quantities to prevent the horses travel- ing thereon from slipping, and to enable cars operated by mechanical, or electrical appliances to be safely and properly operated. The owner or operator of any street surface railroad in cities of this state may use salt in necessary quantities, upon the rails of all the switches, curves, turnouts and crossovers, between the first day of November of each year and the first day of May following, for the removal of snow and ice therefrom and to prevent the same from freezing. The quan- tity of salt to be used and the manner of applying salt to the rails, to be under the direction of the city officials having charge of the streets of said cities. Amended by ch. 491 of 1899. § 108. Road not to be constructed upon ground occupied by public buildings or in public parks. No street surface railroad shall be constructed or extended upon ground occupied by buildings belonging to any town, city, county or to the state, or to the United States, or in public parks, except in 420 . Tam Rattroap Law. tunnels to be approved by the local authorities having control of such parks. Provided however that the commissioners of the state reserva- tion at Niagara, by and with the consent of the commissioners of the land office, may construct without expense to the state street railroad tracks upon and along that part of the riverway, so called, between Falls and Niagara streets in the city of Niagara Falls, and in their discretion may grant revokable licenses to street surface railroad companies to use such tracks upon such terms as said commissioners may prescribe. Amended by ch. 710 of 1899. § 109. Center-bearing rails prohibited. No street surface railroad corporation shall hereafter lay down in the streets of any incorporated city or village of this state what are known as, “ center-bearing”’ rails; but in all cases, whether in laying new track or in replacing old rails, shall lay down “grooved” or some other kind of rail not “center-bearing,” approved by the local authorities. Such grooved or other rail shall be of such shape and so laid as to permit the paving stones to come in close contact with the projection which serves to guide the flange to the car wheel. Where in any city, the duty of repairing and repaving streets, as distinguished from the authorization of such paving, repairing and repaving, is by law vested in any local authority other than the com- mon council of such city, such other local authority shall be the local authority referred to in this section. Amended 1892; completely changed. § 110. Right to cross bridge substituted for bridge crossed for five years. Should any street. surface railroad company have crossed any bridge as a part of its route for a period of more than five years and should any other bridge be substituted therefor at any time, such company shall have the right to cross such substituted bridge and to lay and use railway tracks thereon for the transit of its cars and to make all changes and extensions of its route subject to all the provisions of this act, as the convenient operation of its cars and the public convenience may require. Added in 1892. § 111. Protection of employees. .Every corporation operating a street surface railroad in this state, except such as operate a railroad or railroads either in the borough of Manhattan or Brooklyn, in the city of New York, shall cause the front and rear platforms of every passenger car propelled by electric- 421 1 Tue Rartroap Law. ity, cable or compressed air, operated on any division of such railroad which extends in or between towns or outside of city limits, during the months of December, January, February and March, except cars attached to the rear of other cars, to be enclosed from the fronts of the platforms to the fronts of the hoods, so as to afford protection to any person stationed by such corporation on such platforms to per- form duties in connection with the operation of such cars. Every corporation or person using and operating a car in violation of this section shall be liable to a penalty of twenty-five dollars per day for each car so used and operated, to be collected in an action brought by the attorney-general and to be paid to the treasurer of the state of New York, or in a suit by the attorney of the municipality in which the violation of the provision of this act occurs, to be paid in the treasury of such municipality. § 2. All street surface railroad passenger cars hereafter purchased, built or rebuilt and operated in the state of New York on and after the passage of this act, except those owned by any company operating either in the borough of Mannattan or Brooklyn, in the city of New York shall be constructed in accordance with the provisions of section one of this act. § 3. This act shall take effect December first, nineteen hundred and four. Except that where the cars of any corporation affected by sec- tion one of this act are operated wholly in cities other than the boroughs of Manhattan or Brooklyn in the city of New York, the cars belonging to the corporations so operated shall be equipped with the enclosures provided for in section one of this act as follows, viz.: One-third thereof before December first, nineteen hundred and four, one-third thereof after December first, nineteen hundred and four and before December first, nineteen hundred and five, and the remaining one- third thereof after December first, nineteen hundred and five, and before December first, nineteen hundred and six. Added by ch. 825 of 1903. § llla. Protection to employees. Every corporation operating a street surface railroad in the counties of Albany and Rensselaer shall cause the front and rear platforms of every car propelled by electricity, cable or compressed air, during the months of December, January, February and March, except cars attached to the rear of other cars, to be enclosed from the front and at least one side of the platform to the hood, so as to afford protection to any person stationed by such corporation or person on such platforms te perform duties in connection with the operation of such cars. Plat- 422 Tur Rarrroap Law. , forms on cars on such street surface railroads used more than one mile outside the limits of a city shall be completely enclosed from plat- form to hood. Every corporation using and operating a car in viola- tion of this section shall be liable to a penalty of twenty-five dollars per day for each car so used and operated to be collected by the people to the use of the poor of the county in which such corporation has its frincipal office, in an action brought by the attorney-general or the district attorney of such county. The supreme court may, on the application of a citizen, direct the district attorney to bring such action. Added by ch. 426 of 1903. § 112. The board of estimate and apportionment, or if such board do not exist, the local authorities which have power to make appropriation of moneys to be raised by taxation, in any city of the first class, shall have the power in their discretion, to enter into a contract or contracts on behalf of the city with any railroad corporation or corporations owning or operating street surface railroads or other railroads in such city, for the purpose of adjusting any or all differences now existing between such corporation or corporations and such city with respect to car license fees, percentages upon gross earnings, rentals and any other payments, other than taxes upon real and personal property and capital stock, payable or claimed to be payable to the city under existing acts of the legislature, municipal ordinances, grants by, or contracts with, the municipal authorities or otherwise; and any such contract may provide for the payment of an annual amount to be aecertained as in such contract provided in lieu of any or all payments of any of the classes hereinbefore mentioned, other than taxes. Any such contract which shall be with a corporation operating lines of rail- road by lease may provide for an annual payment, to be ascertained as in such contract provided, which shall be in lieu of any or all-of the payments of any or all of said classes, other than taxes upon real and ~ personal property and capital stock, which would otherwise be payable in respect of the leased lines so long as the lease or leases thereof shall continue. The annual payments provided for in any contract made under the authority of this act shall, so long as such contract is in force, supersede the payments which would otherwise be payable by the corporation or corporations making such contract and in lieu of which the annual payments provided for in such contract are sub- stituted. Any contract made hereunder may, with the approval of the municipal authorities by whom the contract was made or their suc- cessors in office, be modified from time to time by the parties thereto for the purpose of meeting changed conditions. No contract shall be 423 Tue Rarttroap Law. made or modified hereunder without the written consent and approval of the mayor and of the comptroller or other chief financial officer of the city. Added by ch. 651 of 1905. § 112. Protection of employees in the counties of Kings and Queens. Every corporation operating a street surface railroad in the counties of Kings or Queens, shall cause the front and rear platforms of every passenger car propelled by electricity, cable or compressed air, operated on any division of such railroad during the months of December, January, February and March, except cars attached to the rear of other cars, to be enclosed from the fronts of the platforms to the fronts of the hoods so as to afford protection to any person stationed by such corporation on such platforms to perform duties connected with the operation of such cars. Every corporation or person using and oper- ating a car in violation of such section shall be liable to a penalty of twenty-five dollars per day for each car used and operated, to be col- lected in an action brought by the attorney-general and to be paid to the treasurer of the city of New York, or in a suit by the district attorney of the counties of Kings or Queens to be paid into the treas- wry of the city of New York. One-third of the cars operated by any corporation in either of the above named counties shall be equipped with the enclosures provided for in section one of this act on or before December first, nineteen hundred and five, one-third thereof after December first, nineteen hundred and five, and before December first, nineteen hundred and six, and the remaining one-third thereof after December first, nineteen hundred and six, and before December first, nineteen hundred and seven. § 2. All acts or parts of acts inconsistent with this act are hereby repealed. Added by ch. 453 of 1905. ARTICLE 5. OTHER RAILROADS IN CITIES AND COUNTIES. SecTIon 120. Application for railway; commissioners. 121. Oath and bond of commissioners. 122. First meeting of commissioners. 123. Determination of necessity of railroad and route. 124. Adoption of plans and terms upon which road shall be built. 424 Tuer Rarirosap Law. SrctTion 125. Appraisal of damages and deposit of money as security. 126. Shall prepare certificate of incorporation; proviso as to forfeiture. 127. Organization. S 128. Commissioners to deliver certificate; affidavit of di- rectors. 129. Powers.. 130. Crossing of horse railroad track. 131. Where route coincides with another route. 182. Commissioners; to transfer plans, etc. 133. Commissioners to file report; confirmation thereof. 134. Pay of commissioners. 135. Quorum ; term of office; removal; vacancies in board of commissioners. 136. Abandonment or change of route; new commissioners ; their power and proceedings. 13. Increased deposit; when and how required. 138. Trains to come to full stop, etc. 139. Gates. 140. Penalty for violation of this article. 141. Sections to be printed and posted. 142. Extension of time. § 120. Application for railway; commissioners. Upon the application of at least fifty reputable householders and tax pavers of any county or city, verified upon oath before a justice of the supreme court, that there is need in said county or city of a steam railway in the streets, avenues and public places thereof for the transportation of passengers, mails or freight, the board of super- visors of such county may, within thirty days thereafter by resolu- tion, approve of the application and authorize its presentation to the supreme court, and if the railway is to be built wholly within the limits of a city, upon the application of a like number of householders and tax pavers of the city to the mayor thereof, such mayor may, within thirty days thereafter, indorse upon the application his approval and direction that it may be presented to the supreme court, and if the railway is to be built, partly within the limits of a city and partly without, such application shall be approved, both by the mayor of the city and the board of supervisors of the county, and its presentation to the supreme court authorized by them, and upon the presentation of such applications so approved and authorized to a special term of the supreme court, held in the district where such railway is to be 425 : Tue Rartroap Law. built, or some part thereof, the court may appoint five commissioners, residents of the city if the railway is to be built wholly within the city, and of the county, if it is to be built wholly or partly outside of the limits of a city, to determine the necessity of such railroad, the route thereof, the time within which and the conditions upon which it shall be constructed, the damages to the property owners along the line thereof and all the matters lawfully submitted to them, and dis- charge the duties imposed upon them by law. ! § 121. Oath and bond of commissioners, Within ten days after his appointment and before entering upon the discharge of any of the duties of his office, each commissioner shall take and subscribe the constitutional oath of office, which shall be filed in the office of the clerk of the county and shall execute a bond tc the people of the state in the penal sum of twenty-five thousand dollars, with two or more sureties, to be approved by a justice of the supreme court of the department in which the railway is to be built and conditioned for the faithful performance of the duties of the office, which bond shall be filed in the office of the clerk of the county. § 122. First meeting of commissioners. Within fifteen days after their appointment, the commissioners shall meet in some convenient place in the county or city and organize themselves as a board with appropriate officers. § 123. Determination of necessity of railroad and route. The commissioners shall, within thirty days after such organization, determine upon the necessity of such steam railroad, and if they find it to be necessary, they shall, within sixty days after such organization, fix and determine the route therefor, and shall have the exclusive power to locate such route, over, under, through or across streets, avenues, places or lands in such county or city, and to provide for the connec- tion or junction with any other railway or bridge, if the consent of the owners of one-half in value of the property bounded on and the consent of the local authorities having control of that portion of a street or highway, upon which it is proposed to construct or operate such railway have been first obtained. If the consent of such property owners can not be obtained, the determination of three commissioners appointed by the general term of the supreme court of the department where the railroad is to be constructed, made after due hearing of all parties interested, and confirmed by the court, that such railway ought to be constructed and operated, may be taken in lieu of the consent of such property owners. No such railway shall be located in or upon 426 . Tue Rartroap Law. such portion of any street, avenue, place or lands in such county as are now occupied by an elevated or underground railway or in which such a railway has already been authorized by law to be so located and constructed, or which are contained in public parks, or occupied by buildings belonging to the county or the state or United States, or in or upon the following streets, avenues and public places, viz.: Broadway, Fifth avenue, Fourth avenue above Forty-second street, in the city of New York; Debevoise place, Irving place, Lefferts place, those portions of Grand, Classon and Franklin avenues and Dowling street lying between the southerly line of Lexington avenue and the northerly line of Atlantic avenue, that portion of Classon avenue lying between the northerly line of Lexington avenue and the southerly line of Park avenue, and that portion of Washington avenue lying between Park and Atlantic avenues in the city of Brooklyn; and that portion of the city of Buffalo lying between Michigan and Main streets, but such railway may be located and constructed across such excepted streets, avenues and places at their intersection only with other streets, avenues and places. Amended 1892. § 124. Adoption of plans, and terms upon which road shall be built. The commissioners by such public notice, and under such condi- tions, and with such inducements as they may prescribe, shall invite a submission of plans for the construction and operation of such rail- way, and shall meet at a time and place in such notice named, not more than ninety days after their organization and decide upon the plans for the construction thereof, with the necessary supports, turn- outs, switches, sidings, connections, landing-places, stations, buildings, platforms, stairways, elevators, telegraph and signal devices, or other requisite appliances, upon the route or location determined upon by them. They shall, upon notice to the local authorities, and after hear- ing all parties interested, fix and determine what compensation, if any, in a gross sum, or in a certain percentage of receipts, shall annually be paid to the local authorities by the corporation formed for the pur- pose of constructing, maintaining and operating such railway for public use in the conveyance of persons and property, for the use and occupation by the corporation of the streets, avenues and highways in and upon which its railway is to be constructed, and the time when such railway, or a portion thereof, shall be constructed and ready for operation, and the maximum rates to be paid for transportation and conveyance thereon, and the hours during which special cars or trains shall be run at reduced rates of fare; and the amount of the capital 427 Tue Rarttroap Law. stock of such corporation, and the number of shares into which it shall be divided, and the percentage thereof to be paid in cash on subscrib- ing for such shares. The commissioners may select two or more routes, upon one of which such railway may be constructed and operated; and the local authori- ties may consent to the construction and operation of such railway upon one or more of such routes, or parts thereof; and the commis- sioners shall have power to change and readopt routes and plans for the construction and operation of such railway, after they have been submitted to the local authorities, in cases where such authorities may recommend such changes, or may not be willing to consent to the con- struction or operation of the railway, upon ‘the routes and plans adopted, unless such changes are made therein. Amended 1892. § 125. Appraisal of damages and deposit of money as security. The commissioners shall, within one hundred and ten days after their organization, ascertain and determine the aggregate pecuniary damage arising from the diminution in the value of the property bounded on that portion of such street or streets, highway or highways, upon which it is proposed to construct and operate such railway to be caused by the construction and operation thereof. For that purpose they shall view the several parcels of real property so bounded, and shall appraise separately the pecuniary damages arising from such diminution in value of each parcel thereof, and for the purposes of such appraisal they shall give notice of the time and place, when and where they will meet to hear the owners, or persons interested in such real property, which notice shall be published for at least ten days consecutively in at least two newspapers in the county where such rail- way is to be constructed, and shall take such material testimony upon the probable diminution in value of any or all such parcels to be so caused as may be offered by or in behalf of any person or party in- terested therein, and the aggregate sum of the amounts so appraised and determined by them shall be the aggregate pecuniary damage re- quired to be ascertained and determined as above provided. No cor- poration which shall hereafter be organized under this article shall enter upon any street, highway or lane therein, until it shall first have deposited with some trust company, to be designated by the mayor of the city within which it is proposed to construct the railway or any part thereof, and by the board of supervisors, when the road does not lie wholly within a city, a sum of money equal to the amount so ascer- tained and determined by the commissioners to be the aggregate pecuniary damage to such property within the city, or within the 428 Tue Rarrroap Law. ‘county outside of any city, or shall have secured the payment of such amount by depositing with such trust company negotiable securities, equivalent at their par and actual value to such aggregate amount, and approved by the mayor of the city in which such road is wholly or in part located, and by the county treasurer of the county if the road is located wholly or in part outside of the limits of such city. The court may accept in lieu of the deposit of money or securities herein required the bond of the corporation, with two or more sureties, te be approved by the court, to the effect that the corporation before constructing or operating its railway in front of any premises, shall pay to the owner of the real property all the damages sustained, or which will be sustained by him, as fixed and determined by such com- missioners, and the costs allowed, if any. Such bond shall be in a sum double the amount of such damages, and the sureties shall justify in the aggregate to an amount equal to the amount of such bond. Such corporation shall also, at the same time, deposit with such trust company or with the county treasurer, as the commissioners may direct, the sum of five thousand dollars in cash, for the payment of the expense of apportioning and distributing such fund. Unless such moneys or securities shall be deposited by such corporation within one year after it shall have obtained the consent of the local authorities, and of the property owners, or the confirmation by the general term of the supreme court, of the determination of three commissioners in lieu thereof, and in the case of a corporation heretofore organized within one year after it shall have obtained the confirmation by the general term of the supreme court of the report of three commissioners in lieu of the consent of property owners, or within one year after the commissioners appointed to ascertain and determine the aggregate pecuniary damages as provided in this article, shall have made their report, then such corporation shall be deemed not to have accepted the franchises granted. Where the commissioners shall fix and de- termine different periods of time within which different sections of such railway shall be constructed and ready for operation, they shall ascertain, determine, and report separately the aggregate pecuniary damage to property bounded upon that portion of such street or streets upon which each of such sections is located. Upon the deposit by the corporation as above provided of moneys or securities equivalent to the aggregate pecuniary damage to be sustained by any one of such sections, or of any bond given in lieu thereof, it shall immediately be vested with the right and privilege to construct its railway through such section. Amended 1892. 429 Tue Rarrtzoap Law. § 126. Shall prepare certificate of incorporation; proviso as to forfeiture. The commissioners shall prepare an appropriate certificate of in- corporation for the corporation in the last section mentioned in which shall be set forth and embodied, as component parts thereof, the several conditions, requirements and particulars by such commissioners determined pursuant to the provisions of this article, and which shall also provide for the release and forfeiture to the supervisors of the county, or if the road is to be constructed wholly or partly within a city, to such city, of all rights and franchises acquired by such cor- poration in case such railway or railways shall not be completed within the time and upon the conditions therein provided; and the com- missioners shall thereupon and within one hundred and twenty days after their organization cause a suitable book of subscription to the capital stock of suzh corporation, to be opened pursuant to due public notice at a banking office in such county or city. A failure by any corporation heretofore or hereafter organized under this article to complete its railway within the time limited in and by its certificate of incorporation shall only work a forfeiture of the franchises of such corporation with respect to that portion of its route which such corpo- ration shall have failed to complete, and shall not affect the rights and franchises of such corporation to construct and operate such part of its railway which it shall have completed within the term prescribed by its certificate of incorporation, or as to which the time for completion shall not have expired, notwithstanding anything to the contrary in its certificate of incorporation. § 127. Organization. Whenever the whole capital stock of such corporation or an amount of such capital stock proportioned to the part of such railway directed hy the commissioners to be constructed, shall have been subscribed by not less than fifteen persons, and the fixed percentage of such subscriptions shall have been paid, in cash, the commissioners shall, by written or printed notice of ten days, served personally or by mail, call a meeting of such subscribers for organization, and appoint the inspectors of election to serve thereat. At such meeting, or at any subsequent one to which the same may be adjourned, a majority in uumber and amount of such subscribers may elect persons, of a num- ber to be theretofore determined by the commissioners not less than nine, who shall be directors for one year of the corporation formed for the purposes of constructing and operating such railway. § 128. Commissioners to deliver certificate; affidavit of directors. Within ten days after the election of such directors the commis- 430 Tue Rartroap Law. sioners shall deliver to them a certificate in duplicate, verified by the oath of three commissioners, before a justice of the supreme court, setting forth the certificate of incorporation and the organization of the corporation for the purposes therein mentioned, and within tive days after the reception by them of such certificates, three of the directors so elected shall make affidavit in duplicate that the full amount of stock has been subscribed in good faith to construct, main- tain and operate the railway or railways in such certificate of incor- poration mentioned, and such directors shall file such affidavits and certificate in the office of the Secretary of State, and a duplicate of the same in the office of the clerk of the county wherein such railway shatl be located; and thereupon the persons who have so subscribed such certificate of incorporation and all persons who shall become stock- holders in such corporation shall be a corporation by the name specified in such certificate, and be subject to the duties, liabilities and restric- tions of such corporations. § 129. Powers. Every such corporation shall have power, in addition to the powers conferred by the general and stock corporation laws and by sub- divisions two, five and seven of section eight of this chapter: 1. To take and convey persons and property on their railroad by the power or force of steam or by any motor other than animal power, and to receive compensation therefor. 2. To enter upon and underneath the several streets, avenues and public places and lands designated by the commissioners, and enter into and upon the soil of the same, to construct, maintain, operate and use in accordance with the plan adopted by the commissioners, a rail- way upon the route or routes and to the points decided upon and to secure the necessary foundations and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and maintenance of the railways constructed upon such plan and for operating the same; and to make such excavations and openings along the route through which such railway shall be con- structed as shall be necessary from time to time. In all cases the sur- face of the streets around such foundations, piers and columns shall be restored to the condition in which they were before such excava- tions were made, as near as may be, and any interference with or change in the water mains, or in the sewers or lamp posts, except such changes as may be made with the concurrence of the proper depart- ment or authority shall be avoided; and the use of the streets, ave- nues, places and lands designated by the commissioners and the right of way through the same for the purpose of a railway, as herein 431 Tue Rartroap Law. authorized, shall be considered and is hereby declared to be a public use, consistent with the uses for which the roads, streets, avenues and public places are publicly held. No such corporation shall have the right to acquire the use or occupancy of public parks or squares in any such city or county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction, and no such railway shall be constructed across the track of any steam railway now in actual operation at the grade thereof, nor shall any piers or supports for any elevated railway be erected upon a railway track now actually in use in any street or avenue; and no such corporation shall construct a street surface railroad to run in whole o1 in part upon the surface of any street or highway under the pro- visions of this article. § 130. Crossing of horse railroad track. Whenever the route selected by the commissioners for the construc- tion of such railway shall intersect, cross or coincide with any horse railway track occupying the surface of the street or avenues, such rail- way corporation is hereby authorized to remove, for the purpose of constructing its road, the tracks of such horse railway; but the same shall be done in such manner as to interfere as little as possible with their practical operation or working, and upon the construction of such railway, where such removals or changes have been made, the same shall be restored as near as may be to the condition in which they were previous to the construction of such railroad. All such removals and restorations shall be made at the proper cost and charges of such cor- poration, but no authority is herein given to any such corporation to use the tracks of any horse railway. § 131. Where route coincides with another route. Whenever the route or routes determined upon by the commissioners coincide with the route or routes covered by the charter of an existing corporation, formed for the purpose of constructing and operating such a railway, and it has not forfeited its charter or failed to comply with the provisions thereof, requiring the construction of a road or roads within the time therein prescribed, such corporation shall have the like power to construct and operate such railway upon the fulfill- ment of the like requirements and conditions imposed by the com- missioners as a corporation specially formed under this artcile, and the commissioners may fix and determine the route or routes by which any elevated steam railway now in actual operation may connect with 432 Tuer Rartroap Law. other steam railways or the depots thereof, or with steam ferries, upon making compensation therefor, and in case such corporations can not agree with the owners of such steam railways, depots or ferries upon the amount of such compensation, and such owners may be entitled te compensation therefor, the amount of such compensation shall be ascertained and paid in the manner prescribed in the condemnation law, and upon fulfillment by such elevated railway corporation, so far as it relates to such connection, of the requirements and conditions imposed by this article, it shall possess all the powers conferred by section 129 of this article, and when any connecting route or routes shall be so designated, such elevated railway corporation may construct such connection with all the rights and with like effect as though the same had been part of the original route of such railway. Amended 1892. § 132. Commissioners to transfer planus, etc. Within one month after such corporation shall have been formed and organized in the manner hereinbefore provided, the commissioners shall transfer and deliver to the corporation all plans, specifications, drawings, maps, books and papers in their possession, and they shall, within the like period of one month after the organization of such corporation, cause to be paid to the treasurer thereof all money col- lected under the provisions of this article, after deducting therefrom the necessary expenses incurred by the commissioners and the amounts due to them for their salaries. § 133. Commissioners to file report; confirmation thereof. , The commissioners shall within one hundred and forty days after their appointment, make a report to a special term of the supreme court of the department in which such railway may be located, of the amount of the pecuniary damage arising from the diminution of value of each parcel of property bounded on that portion of the street or streets, highway or highways, upon which it is proposed to construct such railway or railways, which will be caused by the construction, maintenance and operation thereof. The name and place of residence of the owner or owners of each parcel shall be stated if the same are known, or can be ascertained, and if not known the name of the person or persons appearing by the certificate of the clerk or register of the county, to have the title thereto from the records in his office, and a specific description of each parcel of property with reasonable cer- tainty. The testimony, if any, taken by the commissioners as to the amount of such daniage, shall accompany their report. Within thirty days after filing and recording its certificate of incorporation, the cor- 433 Tue Rarrroap Law. poration authorized to construct and operate such railway or railways shall move to confirm such report by giving notice of such motion to the property owners in the manner in which notice of the time and place of hearing before the commissioners is required by section 125 to be given, and if the corporation fails to so move, any property owner may make the motion; and thereafter the proceedings shall be con- ducted’ in the manner prescribed in the condemnation law. Before constructing and operating its railway in front of any real property bounded upon any street, avenue or public place wherein the corpora- tion is authorized by the certificate and report of the commissioners to construct and operate its road, such corporation shall pay to the owner of the real property the damages sustained or which will be sustained by him in consequence thereof, as finally fixed and ascertained, and the costs allowed him, if any, and the court may direct that such damages be paid out of the moneys deposited pursuant to the provis- ions of section 125, or in case negotiable securities shall have been deposited in lieu of money, that so much of such securities shall be sold as may be necessary to raise the amount required to be paid to such owner for “amages and costs if any. If a bond shall have been executed in lieu of such deposit, the court may order the sureties in such hond io pay the damages so fixed and ascertained, and in default thereof, may cause them to be proceeded against and punished as for a contempt of court. § 134. Pay of commissioners. Each of the commissioners shall be paid for his services at the rate of ten dollars per day for each day of actual service as such commis. sioner, and all expenses necessarily incurred by him in the discharge of his duties, to be paid by such corporation, but if a sufficient amount -of capital stock shall not be subscribed within one year after the appointment of such commissioners to authorize the formation of such corporation, the commissioners shall receive no salary, and shall cause to be returned to the subscribers for such stock the amounts paid in by them, after deducting therefrom the necessary expenses incurred by the commissioners, but the time, if any, unavoidably con- sumed by the pendency of legal proceedings shall not be deemed a part of any period of time limited by this article. § 135. Quorum; term of office; removal; vacancies in board of com- missioners. A majority of the members of any board of commissioners appointed under this article shall be a quorum for the transaction of any bus- iness or the performance of any duty or function, or the exercise of 434 THE Rattroap Law. any power, conferred or enjoined upon them. Any commissioner may be removed for cause at any time by the power appointing him, but no commissioner shall be removed without due notice and an opportunity to be heard in defense; and no commissioner thus removed is, or shall be eligible to be again appointed to the office of commissioner. In case of the death, resignation or removal from office of any commis- sioner the vacancy shall be filled by the power appointing him, within thirty days after such removal, or within thirty days after notice in writing to such appointing power given by some member of the board, or by the corporation hereinafter mentioned, of such death or resigna- tion, and a certificate of every such appointment shall be filed as here- inbefore required. Except as otherwise provided by law, the terms of office of the commissioners shall determine and expire with the per- formance of their functions as herein above prescribed. $ 136. Abandonment or change of route; new commissioners; their powers and proceedings. Any corporation heretofore organized or hereafter to be organized under this article, its successor or assigns, which shall have constructed or put in operation a railway upon a part and not upon the whole of the route fixed, determined and located for such railway by a board of commissioners, may at any time apply for authority to abandon any portion of the route upon which the railway shall not have been theretofore ¢onstructed or shall not then be in operation, with or without a change and relocation of such portion, and with or without extension of the portion not abandoned, or of any part thereof. Such application shall be made by petition in writing, addressed by such corporation to the board of supervisors of the county in which such portion of the route so desired to be changed or abandoned shall be situated, which is not within the limits of a city, or if such route, or any part thereof, shall be within the limits of a city, 'to the mayor of the city, for the route or portion thereof within such city. Five com- missioners may be appointed pursuant to such an application as here- inafter provided, who shall be residents of the county or city and who shall have full power as herein provided. When such application is made by a corporation heretofore organized such commissioners may be appointed within thirty days after presentation of the same by such board of supervisors, or, as the case may be, by such mayor. When such application is made by a corporation hereafter to be organized under this article, such board of supervisors, or, as the case may be, such mayor, may within thirty days after presentation of such applica- tion, indorse thereon their or his approval and direction that it may he presented to the supreme court in the manner provided in section 435 Tue Rartroap Law. 120 of this article, and such court may thereupon appoint such com- missioners. Within ten days after his appointment each commissioner so appointed shall take, subscribe and file the oath and give and file the bond prescribed by section 121 of this article; and if any one so ap- pointed shall not comply with this requirement, he shall be deemed te have declined to accept such appointment, and to have made a vacancy which the appointing power shall fill by another appointmen. — as herein provided. Within fifteen days after such appointments shall have been so made, the commissioners shall meet at some convenient place in such county and complete their organization as a board with appropriate officers. Such board shall have all the authority conferred by law upon commissioners appointed, or authorized to be appointed under this article. Before proceeding to hear the application of the corporation, the board shall give such public notice as it may deem most proper and effective of the time and place of the hearing. Within thirty days after completing their organization such board shall hear the application of the corporation, and all parties who may be interested therein, and within sixty days after their organization they shall determine whether any part of such route should be author- ized to be abandoned, or should be changed and relocated with or without extension or extensions. If the board shall determine that no abandonment of any part of the route should be allowed, and that no change and relocation of any part thereof should be effected, and that no extension should be made, the board shall dismiss the appli- cation. If the board shall determine that an abandonment of any portion of the route should be allowed, or that any change in or ex- tension ‘thereof should be made, the board shall proceed to authorize and require the same upon such conditions as to the board shall seem proper, and with or without extension of the remainder of the route or of any part thereof, by fixing, determining and locating the route or routes of the extension or extensions, if any, and by directing the abandonment of the part of the route theretofore located, but by the board allowed to be abandoned, if any, and by fixing, determining and relocating the part of the route theretofore located, but by the board changed, if any; and the board shall cause to be made in duplicate a survey and map of the route as so changed and fixed, determined and located. Neither such corporation nor any assign or successor thereof shall thereafter have any authority, by reason of anything done under this article to operate or construct any railway upon any portion of the route by the board so required to be abandoned. The board shall also fix and determine the time within which the railway by it authorized and required upon any portion of the route so changed, 436 Tue Raitroap Law. shall be reconstructed and ready for operation. If the railway or any portion of the route not by the board changed or allowed to be aban- doned, shall not have been theretofore constructed and made ready tor operation, the board may extend, and fix and determine anew the time within which such railway shall be completed, but such extension of time shall not be for a longer period than that originally allowed by law for the completion thereof. If the board shall have determined that any portion of the route theretofore located should be allowed to be abandoned, with or without a change or relocation thereof or any part thereof, and with or without extension, or if the board shall have extended the time within which such railway shall be completed, the board shall make a report in writing in accordance with the determina- tion so made, describing the portion of the route, if any there be, as so fixed, determined and located anew, and the part, if any there be, of the route allowed to be abandoned, and stating the period of time, if any, by the board fixed and determined within which such corpora tion shall construct and complete the railway theretofore authorized or by it authorized to be constructed, and prescribing that a failure by the corporation, its successors or assigns, to complete it within the time, if any so limited, shall work a forfeiture to the supervisors of the county if no part of the road is within a city, or in any city, to such city, of the rights and franchises of such corporation with re- spect to that portion of the route so fixed, determined and located anew, and with respect to the then authorized extension or extensions, if any there be of said route, upon which a railway shall not be con- siructed within the time so limited; but the time, if any, unavoidably consumed by the pendency of legal proceedings, shall not be deemed a part of any period of time limited in this article, and any recital of any forfeiture of any of the rights or franchises prescribed by any commissioners heretofore appointed, to be to the mayor, aldermen and commonalty of the city of New York, shall be as effectual for any and all purposes as if such forfeiture had been in terms recited to be to the board of supervisors of the coumty of New York. Such report shall be signed in duplicate by at least a majority of the then members of the board, and there shall be thereto annexed the survey and map as hereinabove directed, showing the line and location of each and all the routes, with or without the extension or extensions, as fixed, deter- mined and located, and showing also the parts or part, if any there shall be, of the route or routes as theretofore fixed, determined and located, but by the board allowed toe be abandoned. Within ten days after so signing such report the board shall cause the same to be filed in the office of the Secretary of State, and the duplicate thereof in the 43% Tue Rarroap Law. office of the clerk of the county wherein such railway shall be located ; and thereupon the corporation making such application, its successors or assigns, is and shall be authorized to construct, maintain and operate a steam railway for the transportation of passengers, mail and freight, upon the route or routes so fixed, determined and located, and in said report described, but the construction or operation of a railway upon any new location or selection of route is not and shall not be thus authorized except upon the condition that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having control of that portion of a street or high- way upon which it is proposed to construct or operate such railway be first obtained, or in case the consent of such property owners can not be obtained, that the determination of three commissioners, to be upon application appointed by the general term of the supreme court, in the district in which such railroad is proposed to be constructed, be given after a hearing of all parties interested that such railway ought to be constructed or operated, which determination, confirmed by the court, may be taken in lieu of the consent of the property owners. Such corporation is and the successors and assigns thereof shall be auth- orized to maintain and operate all the railroads and the appurte- nance thereof by it or them theretofore constructed upon any portion of a route or routes which shall have been located by commissioners under this article, and to complete within the time in and by such report so extended, fixed and determined anew, and thereafter to maintain and operate, the railway and the appurtenances, upon so much of the route or routes theretofore fixed, determined and lo- cated as shall not have been so authorized and required to be aban- doned, and with the same rights and effect, in all respects, as if such extended period of time had been originally fixed and determined, and in the original certificate of incorporation of such corporation recited, for completing such railway and putting it in operation. The other terms and conditions in and by such certificate mentioned and prescribed, except as the same are hereinbefore modified or may be modified by the board as hereinabove authorized, shall apply’ to the railway herein authorized to be constructed and operated upon the route or routes as so changed, fixed, determined and lo- cated, with the same force and effect as if such route or routes, as finally so changed and located, had been in and by such articles or certificates themselves prescribed. If a new location or extension of routes shall be fixed and determined by commissioners who shall have been appointed by the court pursuant to this section, they shall also ascertain and determine the aggregate pecuniary damages arising from 438 Tue Rariroap Law. the diminution of value of the property bounded on that portion of the street or highway upon the line of such new location or extension and of each parcel of real property so bounded, and their proceedings thereupon shall be conducted in the same manner and upon the like notice as the proceedings for that purpose before the commissioners specified in section 125, and shall make to the supreme court the re- port required by section 133, and thereupon the same proceeding shall be had as are provided for in such last named section. Each com- missioner shall be paid for his services at the rate of ten dollars per day for each day of actual services as such commissioner, and ull reasonable expenses incurred by him in or about any of the matters re- ferred to such board, to be paid by the corporation making the appli- cation so heard and determined. No corporation shall be authorized under this section to extend, abandon or change the location of its route, or any part thereof, where the greater portion of the route or routes is or shall be in that portion of the city of New York south or west of Harlem river, or of any route or part thereof in the city of Brooklyn or county of Kings, or to construct, extend, abandon or change the location of any railway or route for a railway over, under, through or across any street, avenues, place or lands south of One Hundred and Twenty-eighth street or west of Third avenue in that portion of the city of New York south or west of Third avenue in that portion of the city of New York south or west of Harlem river, or where a railway might not by law be constructed, or was not by law authorized to be by a board of commissioners located on the 5th day of June, 1888. § 137. Increased deposit, when and how required. In case any of the securities deposited in lieu of money as provided in section one hundred and twenty-five, shall in the opinion of the county treasurer or trust company with whom they may be deposited, fall below their actual value at the time of deposit, the county treas- urer or trust company shall call upon such railway corporation to sub- stitute therefor other securities equivalent at their par or market value to the amount in lieu of which securities for which they are to be substituted were deposited, and in case such other securities shall not be furnished, the county treasurer or trust company shall call upon such corporation to furnish as a substitute, and it shall so furnish an amount of money equal to the amount in lieu of which the se- curities first above referred to were deposited. § 138. Trains to come to full stop, ete. All trains upon elevated railroads shall come to a full stop before 439 é Tue Rartroap Law. any passenger shall be permitted to leave such trains; and no train on such railroad shall be permitted to start until every passenger desiring to depart therefrom shall have left the train, provided such passenger has manifested his or “her intention to so depart by moving toward or upon the platform of any car; nor until every passenger upon the plat- form or station at which such train has stopped, and desiring to board or enter such cars, shal] have actually boarded or entered the same, but no person shall be permitted to enter or board any train after due notice from an authorized employee of such corporation that such train is full and that no more passengers can be then received. § 139. Gates or vestibule doors. Every car used for passengers upon elevated railroads shall have gates at the outer edges of its platforms, so constructed that they shall, when opened, be caught and held open by such catch or spring as will prevent their swinging and obstructing passengers in their egress from or ingress to such cars, or vestibule doors so constructed as, to slide into the body of the car; and every such gate or door shall be kept closed while the car is in motion; and when the car has stopped and a gate or door has been opened, the car shall not start until such gate or door is again firmly closed. Amended by ch. 273 of 1903. § 140. Penalty for violation of this article. Any elevated railroad corporation that shall fail or neglect to comply with or enforce the provisions of this article, shall upon the petition of any citizen to any court of record, and upon due notice to such cor- poration, and proof of such failure or neglect, pay to the clerk of the court wherein such petition was made, a sum not less than two hun- dred and fifty nor more than one thousand dollars, as such court may direct by its order. The sum so ordered to be paid shall be paid by such clerk of the court to the county treasurer, and shall be distributed by such treasurer equally among the public hospitals of the county in which the proceeding is had, at such time, as the board of supervisors or board of aldermen in any such county shall direct. Nothing in this section shall relieve elevated railroad corporations from any liability under which they may now be held by existing laws for dam- ages to persons or property. § 141. Sections to be printed and posted. The officers and board of directors of such railroad corporations shall cause copies of sections one hundred and thirty-eight, one hun- dred and thirty-nine and one hundred and forty to be printed con- 440 Tue Rattroap Law. spicuously and posted in the depots or stations and in each car beloug- ing to them. § 142. Extension of time. The time within which any act is required to be done under this article may be extended by the supreme court for good cause shown, for one year, and but one extension will be granted. Any company that has heretofore constructed or is now operating an elevated railroad shall be deemed to have been duly incorporated, withstanding any failure on the part of commissioners to insert in its articles of association provisions complying with statutory require- ments relative to such articles. New. MISCELLANEOUS LAWS RELATING TO RAILROADS. . CHAPTER 463. AN ACT to amend chapter four hundred and eighty-eight of the laws of eighteen hundred and ninety-nine, entitled “An act auth- orizing the sale of property left in street surface railroad cars, and the disposition of the proceeds thereof,” relative to cabs, coaches, stages and other similar vehicles. The People of the State of New York, represented in Senate and Assembly, do enact, as follows: Section 1. Section one of chapter four hundred and eighty-eight of the laws of eighteen hundred and ninety-nine, entitled “An act authorizing the sale of property left in street surface railroad cars, and the disposition of the proceeds thereof,” is hereby amended to read as follows: Section 1. It shall be the duty of every street surface railway corporation doing business in this state, and of every corporation engaged in this state in the business of carrying passengers for hire in cabs, coaches, or other similar vehicles or of letting such vehicles for hire, or in the business of operating a line of stages or omnibuses, which shall have unclaimed property left in its cars, cabs, coaches, stages or other similar vehicles, to ascertain if possible, the owner or owners of such property, and to notify such owner or owners of the fact by mail as soon as possible, after such property comes into its possession. Every such corporation which shall have such property not perishable, in its possession for the period of three months, may 441 Tue Rartroap Law. sell the same at public auction, after giving notice to that effect, by one publication, at least ten days prior to the sale, in a daily news- paper published in the city or village in which such sale is to take place, of the time and place at which such sale will be held, and such sale may be adjourned from time to time until all the articles offered for sale are sold. All perishable property so left, may be sold by any such corporation without notice, as soon as it can be, upon the best terms that can be obtained. § 2. Section two of said act is hereby amended to read as follows: § 2. All moneys arising from the sale of any such unclaimed prop- erty, after deducting charges for storage and expenses of sale, shall be paid by any such corporation to the treasurer of any association, composed of the employees of such corporation, having for its ob- ject the pecuniary assistance of its members in case of disability caused by sickness or accident, for the use and benefit of such associa- tion and its members ; and where no such asgociation of the employees of any such corporation is in existence at the time of any such sale, such moneys shall be paid over to the county treasurer of the county or if in a city, to the chief fiscal officer thereof, in which such sale took place for the benefit of such city or county. § 3. All acts and parts of acts inconsistent with the foregoing provisions are hereby repealed. § 4. This act shall take effect immediately. CHAPTER 38, LAWS OF 1889. AN ACT to regulate the payment of fares upon railroads, Became a law without the approval of the Governor, in accordance with the pro- visions of article four, section nine, of the Constitution, March 2, 1889. Passed, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. It shall be lawful for any company owning or operat- ing a steam railroad in this state, to demand and collect an excess charge of ten cents over the regular or established rate of fare, from any passenger who pays fare in a car in which he or she may have taken passage, except where such passage is wholly within the limits of any incorporated city in this state, provided, how- ever, that it shall be the duty of such company to give to any pas- 442 Tue Raritgo0oap Law. senger paying such excess, a receipt or other evidence of such pay- ment, and which shall legibly state that it entitles the holder thereof to have such excess charges refunded, upon the delivery of the same at any ticket office of said company, upon the line of their railroad and said company shall refund the same upon de- mand; and provided further that this act shall not apply to any passenger taking passage from a station or stopping place where tickets cannot be purchased during half an hour previous to the schedule time for the departure of said train, on which such pas- senger takes passage. § 2. This act shall take effect immediately. CHAPTER 448, LAWS OF 1908. AN ACT to amend chapter five hundred and forty-four of the laws of eighteen hundred and ninety-three, entitled “ An act to promote the safety of railway employees by compelling the equipment of freight cars with automatic couplers,” relative to the use of cabooses. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section two of chapter five hundred and forty-four of the laws of eighteen hundred and ninety-three, entitled “An act to promote the safety of railway employees by compelling the equip- ment of freight care with automatic couplers,” as amended by chapter four hundred and eighty-five of the laws of eighteen hundred and ninety-six, is hereby amended to read as follows: § 2. That from and after the passage of this act, in addition to such new freight cars, there shall be equipped each year with such couplers, by every company operating a line or lines of railroad within the state, at least twenty per centum of all freight cars owned or operated by such companies, and used within the state, which are not so equiped, except certain cars known and designated as coal “ jimmies,” and that on and after the first day of January, eighteen hundred and ninety-eight, the use of said “coal jimmies,” in any form, and that on and after the first day of September, nine- teen hundred and eight, the use of any car as a caboose unless it shall have a suitable and safe platform at each end thereof, and the usual railing for the protection of persons using such platform shall be 443 Tue Rartroap Law. unlawful within this state, except upon any railroad whose main line is less than fifteen miles in length and whose average grade exceeds .two hundred feet to the mile, under penalty of one hundred dollars for each offense, said penalty to be recovered in an action to be brought by the attorney-general, in the name of the people, and in the judicial district where the principal office of the company within the state is located. This section shall not be construed to authorize the interchange of such “coal jimmies” with, and the use therefor upon railroads of more than fifteen miles in length or whose average grade is less than two hundred feet to the mile. § 2. This act shall take effect immediately. CHAPTER 459, LAWS OF 1908. AN ACT to repeal chapter four hundred and ninety-seven of the laws of eighteen hundred and ninety-nine, entitled “An act to regulate the use of lands forming part of the right of way of any such railroad company, the road of which has been removed from the surface in, or adjacent to, streets and highways in all cities of the first class in this state.” The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Chapter four hundred and ninety-seven of the laws of eighteen hundred and ninety-nine, entitled “ An act to regulate the use of lands forming part of the right of way of any railroad com- pany, the road of which has been removed from the surface in, or adjacent, to, streets and highways in all cities of the first class in this state,” is hereby repealed. § 2. This act shall take effect immediately. CHAPTER 442, LAWS OF 1908. AN ACT to amend the labor law, relative to the time when wages are to be paid. Became a law, May 20, 1908, with the approval of the Governor. Passed, three- fifths being present. miles The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section ten of chapter four hundred and fifteen of the 444 Tue Rarrtroap Law. laws of eighteen hundred and ninety-seven, entitled “ An act in rela- tion to labor, constituting chapter thirty-two of the general laws,” is hereby amended to read as follows: Every corporation or joint stock association, or person carrying on the business thereof by lease or otherwise, shall pay weakly to each employee the wages earned by him to a day not more than six days prior to the date of such payment. But every person or corporation operating a steam surface railroad shall, on or before the first day of each month, pay the employees thereof the wages earned by them during the first half of the preceding month ending with the fifteenth day thereof, and on or before the fifteenth day of each month pay the employees thereof the wages earned by them during the last half of the preceding calendar month. § 2. This act shall take effect October first, nineteen hundred and eight. 445 RAPID TRANSIT ACT. CHAPTER 4, LAWS OF 1891. APPLICABLE TO NEW YORK CITY ONLY. Commissioners; appointment; vacancies, § 1. In each city having over one million of inhabitants, according to the last preceding national or state census, there shall be a board of rapid transit railroad commissioners in and for such city, which shall consist of the mayor of such city, the comptroller or other chief financial officer of such city, the president of the chamber of commerce of the state of New York, by virtue of his office, and the following named persons, to wit: William Steinway, Seth Low, John Claflin, Alexander E. Orr and John H. Starin. The members of said board shall be styled commissioners of rapid transit. Vacancies which may take place in the offices so held by the persons specifically named herein as such commissioners shall be filled by a mafority vote of the remaining members of said board. Provided, however, that vacancies which may at any time after the first day of January, nineteen hundred and six take place in the offices so held by the persons specifically named herein as such commissioners, or by their successors heretofore elected, shall be filled by the mayor of such city, and any person so hereafter appointed by the mayor of such city to fill any such vacancy shall-be a citizen of the United States and of the State of New York and a bona fide resident of the city in which such person is appointed. The board thus constituted shall have and exercise the specific authority and powers hereinafter con- firmed and also such other and necessary powers as may be requisite to the efficient performance of the duties imposed upon said board by this act. Oath of commissioners. § 2. Each of the said commissioners other than the mayor and comptroller or other chief financial officer of such city shall take and subscribe an oath faithfully to perform the duties of his office, which oath shall be filed in the office of the clerk of any county within which there shall be a:city of the class mentioned in the first section of this act. Amended by chap. 752, Laws of 1894. 447 Rarip Transit Act. Meeting of board; by-laws and rules; quorum; seal; record of proceedings. § 3. Within twenty days after the filing of the oaths of said com- missioners so required to make and file the same the commissioners of rapid transit in respect to each of such cities shall meet and organize as a board. The board when so organized, may frame and adopt by-laws not inconsistent with this act, and establish suitable rules and regulations for the proper exercise of the powers and duties hereby conferred and imposed, and may, from time to time, amend the same. Four members of the board shall constitute a quorum for the tran- saction of business, but a less number may adjourn meetings. The said board shall adopt a seal, and keep a record of its proceedings, which shall be a public record and be open to inspection at all reason- able times. Necessity of road; plans; consents; parks. § 4. The said board upon its own motion may proceed, from time to time, to consider and determine whether it is for the interest of the public and of the city in which it is appointed, that a rapid transit railway or railways for the conveyance and transportation of persons and property should be established therein, and upon the request in writing of the local authorities of any such city at any time, the said board shall proceed forthwith to consider and determine the same questions, and in each case the said board shall conduct such an in- quest and investigation as may be deemed necessary in the premises. If, after any such consideration and inquest, the said board shall determine that a rapid transit railway or railways, in addition to any already existing authorized or proposed are necessary for the interest of the public, and such city, it shall proceed to determine and estab- lish the route or routes thereof and the general plan of construction. Such general plan shall show the general mode of operation and con- tain such details as to manner of construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected, and the concurrent votes of at least six members of the board shall be necessary for the purpose of determining and establishing such route or routes and plan of construction. The said board, from time to time, may locate the route or routes of such railway or railways over, under, upon, through and across any streets, avenues, bridges, via- ducts, rivers, waters and lands within such city, including blocks be- tween streets or avenues or, partly over, under, upon, through and across any streets, avenues, bridges, viaducts, and lands within such city and partly through blocks between streets or avenues; provided 448 Rarip Transit Act. that the consent of the owners of one-half in value of the property bounded on and the consent also of the local authorities having con- trol of that portion of a street, bridge, viaduct, or highway, upon which it is proposed to construct or operate such railway or railways be first obtained, or in case the consent of such property owners can- not be obtained, that the determination of three commissioners ap- pointed by the general term of the supreme court in the district of the proposed construction, given after due hearing of all parties in- terested, and confirmed by the court, that such railway or railways ought to be constructed or operated, be taken in lieu of the consent of such property owners; except that no publie park nor any lands or places, lawfully set apart for, or occupied by, any public building of any city or county, or of the state of New York, or of the United States, nor those portions of Grand, Classon, Franklin avenues and Downing street in the city of Brooklyn, lying between the southerly line of Lexington avenue and northerly line of Atlantic avenue, nor that portion of Classon avenue in said city lying between the northerly line of Lexington avenue and southerly line of Park avenue, nor that, portion of Washington avenue in said city lying between Park and Atlantic avenues, tor DeBevoise place, Irving place and Leffert’s place, Lee avenue, Nostrand aventie, Wavetly avenue, Vanderbilt avenue and Olinton avenue in said city of Brooklyn, nor that portion of the city of Buffalo lying between Michigan and Main streets, nor any part of Fifth avenue in the city of New York, nor that portion of any street ot avenue which is now actually occupied by any elevated railroad structure, shall be occupied by any corporation to be organ- ized under the provisions of this act for the purpose of constructing a tailway in or upon any of such public parks, lands of places, or upon or along either of the said excepted streets or avenues. It shall be lawful for said commissioners to locate the route of a railway or railways, by tunnel under any such public parks, lands, places, rivets or waters and to locate the route of any railway to be built, under this act, across any of the streets and avenues now occupied by ari elevated railroad structiire in the city of New York, or across any of the streets or avenues excepted in this act at any point at which, in its discretion, the board of rapid transit railroad commissioners may deem netes- sary in the location of any route or routes, or under, or under and along, any of said streets or avenues now so occupied or so excepted in this act. Nothing in this act shall authorize the consttuction of an elevated railway on Broadway south of Thirty-third street, nor on Madison avenue in the city of New York. It shall not be lawful to grant, use or occupy, for the purposes of an elevated railroad, except 449 i Rarip Transit Act. for the purpose of crossing the same, any portion of the following named streets and places in the city of New York, that is to say: Second avenue below Twenty-third street; Fourteenth street, between the eastérly line or side of Seventh avenue, and the westerly side of Fourth avenue; nor Eleventh street, west of Seventh avenue, nor any part of Bank street; Nassau street; Printing House square, socalled, south of Franklin street; Park row, south of Tryon row; Broad street and Wall street. 2. The provisions of the said section four of the said act shall, with reference to any rapid transit railroad for which routes and a gen- eral plan have been heretofore adopted by the board of rapid transit railroad commissioners of any city and for the municipal construction of which a contract has been heretofore made by any city, be deemed to have been in full force as hereby amended from before the time when the routes and general plan for such railroad or railroads were so adopted by the board of rapid transit railroad commissioners. Amended by chap. 564, Laws of 1904. See section 2, chap. 616, Laws of 1900. Approval of plan; consents; value. § 5. After any determination by said board of any such route or routes and of any general plan of construction of said railway or rail- ways, the said board shall transmit to the board of estimate nd ap- portionment or other board or boards of said city having the control of any street, highway, boulevard, driveway, bridge, tunnel, park, parkway, dock, bulkhead, wharf, pier or public grounds or water which is within or belongs to the city, a copy of said plans and conclu- sions as adopted. It shall be the duty of such board of estimate and apportionment and of every other such board or boards having such control, upon receiving such copy of plans and conclusions to appoint a day not less than one week nor more than ten days after the receipt thereof for the consideration of such plans and conclusions, and the said board of estimate and apportionment and every other such board having such control shall, on the day so fixed, proceed with the con- sideration thereof and may continue and adjourn such consideration, from time to time, until a final vote shall be taken thereon, as herein- after provided. Within sixty days after the copy of such plans and conclusions adopted by the board of rapid transit railroad commis- sioners shall have first been received by said board of estimate and apportionment or such other board or boards having such control, a final vote shall be taken thereon, by ayes and nays, according to the number of votes by law pertaining to each member of any such board in the form of a vote upon a resolution to approve such plans 450 Rarip Transit Act. and conclusions, and to consent to the construction of a railway or railways in accordance therewith. Upon the adoption of such a reso- lution by a majority vote of all the members of the said board of esti- mate and apportionment or other such board or boards having such control according to the number of votes by law pertaining to each member of any such board and the approval of the mayor, the said plans and conclusions shall be deemed to have been finally consented to and adopted, and such consent shall be deemed to be consent of the local authorities of such city; provided, that where in any such city the exclusive control of any street, road, bridge, viaduct, highway or avenue which is to be used or occupied by any railway or railways constructed under the provisions of this act, is by law vested in any local authority other than the board of estimate and apportionment of such city, the approval of the aforesaid plans and conclusions and the consent to the construction of a railway thereunder shall be given by such local authority in place of and if required in addition to such approval and consent by said board of estimate and apportionment and with like effect. Upon obtaining the approval and consent of the local authorities as above provided, the said board of rapid transit railroad commissioners shall also, unless such approval and consent of local authorities shall have been refused, take the necessary steps to obtain, if possible, the said consents of the property owners along the line of the said route or routes. For the purposes of this act the value of the property bounded on that portion of any street or high- way in, upon, over or under which it is proposed to construct or oper- ate such railway or railways, or any part thereof, shall be ascertained and determined from the assessment roll of the city in which the said property is situated, confirmed or completed last before the local authorities shall have given their consent as above provided. If such consents of property owners cannot be obtained, the said board may, in its own name, make application to the appellate division of the supreme court in the judicial district in which such railway is to be constructed for the appointment of three commissioners to determine and report after due hearing whether such railway ought to be con- structed and operated. T'wo weeks’ notice of such application shall be given by daily publication thereof, Sundays and holidays excepted, in six daily newspapers published in the city where such proposed railway is to be constructed, if there be so many newspapers published in said city, and if not, then in all the daily newspapers published in said city. The newspapers in which said publication shall be made shall be designated by the appellate division of the supreme court to which such application is to be made on the application of the commis- 451 Rari Transit Act. sioners without notice. The said appellate division, upon due proof of, the publication aforesaid, shall appoint three disinterested persons who shall act as commissioners, and’ such commissioners: within ten days after their appointment shall cause public notice to be given in the manner directed by the said appellate division of their first sitting, and may adjourn from time to time until all their business is com- pleted. Vacancies in such commission may be filled: by said appellate division after such notice to persons interested. as the appellate di- vision may deem proper, and the evidence taken befpre as well as after such vacancy occurred shall be deemed. to be properly before such com- missioners. The said commissioners shall determine after public hearing of all parties interested whether such railroad ought to. be constructed and operated and shall report the evidence taken to said! appellate division together with a report of their determination whether such road ought. to: be constructed and: operated, which report, if in favor of’ the construction and operation of such road shall, when‘ confirmed: by said court, be: taken’ im lieu of the consent of the prop- erty owners above mentioned. Such report shall be made within sixty days after the appointment of said commissioners, unless the said court, or a judge thereof, shall extend such time: The board of estimate and apportionment of the city of New York shall, with re- spect to: that city, be hereafter for all purposes of this act and be deemed to be the local authority in control! of the streets, roads, bridges, viaducts, highways, avenues; boulevards, driveways, parks, parkways, docks, bulkheads, wharfs, piers and public grounds and waters which are within or belong to the said’ city; and the consent of suchi board: of estimate and apportionment and the mayor, without the consent of the common council, board: of aldermen or other board: or officer of the city, shall be the only consent of local authorities required hereunder. Amended by chap. 631, Laws of 1905, section 2, of said chapter 631, being as follows : § 2. (Chapter 631, Laws of 1905.) This act and all the amendments hereby made to the sections thereof hereby amended, shall be applicable to every grant, franchise or contract heretofore made, authorized or issued by the said board of rapid transit railroad commissioners but not yet consented to by the common council or board of aldermen of the city, as well as to all grants, franchises and contracts hereafter made, authorized or issued by the said board of rapid transit railroad commissioners. § 6. When the consents of the local authorities and the property owners, or, in lieu thereof, the authorization of the said appellate division of the supreme court upon the report of commissioners, shall have been obtained, the board of rapid transit railroad commissioners shall at once proceed to prepare detailed plans and specifications for the construction of such rapid transit railway or railways in accord~ 452 Rariw Trawsit Act. ance with the general plan of construction, including all devices and appurtenances deemed by it necessary to secure the greatest efficiency, public convenience and safety, including the number, location and description of stations and plans and specifications for the suitable | supports, turnouts, switches, sidings, connections, landing places, buildings, platforms, stairways, elevators, telegraph and signal de- vices, and other suitable appliances incidental and requisite to what the said board may approve as the best and most efficient system of rapid transit in view of the public needs and requirements, and the said board may, in its discretion, include in said plans provisions for galleries, ways, subways or tunnels for sewers, gas or water pipes, electric wires and other subsurface structures and conductors proper to be placed underground, whenever necessary so to do, in order to permit of the proper construction of any railway herein provided for in accordance with the plans and specifications of the said board, or for any other purpose in furtherance of the public interest or con- venience. Stations and station approaches may be under or over streets of the route or cross streets, and the beard of aldermen, or other legislative body, of any such city shall have power to regulate by general or special ordinance or resolution, the erection, alteration and maintenance upon or in connection with any building used, wholly or in part for station purposes, or approaches, or any and all struc- tures or parts of structures extending over the whole or any part of any sidewalk or sidewalks adjacent thereto. The board may, from time to time, alter such detailed plans amd specifications, but always so that the same shall accord with the general plan of construction ; but whenever a contract shall have been made for the construction of any railway herein provided for, no such alteration shall be made by the board without the consent of the contractor and his sureties, ex- cept as liberty shall have been reserved in such contract by said board for such alteration. Whenever the construction of any railway, de- pressed way, subway or tunnel under the provisions of this act shall interfere with, disturb or endanger any sewer, waterpipe, gaspipe, or other duly authorized subsurface structure, the work of construction at such points shall be conducted in the city of New York in accord- ance with the reasonable requirements of the commissioner of public works, and in other cities in accordance with the reasonable require- ments and under the supervision of the officer or local authority having the care of and the jurisdiction or control over such subsurface structures so interfered with, disturbed or endangered. All expenses incidental to such supervision and to the work of reconstructing, re- adjusting and supporting any such sewer, waterpipe, gaspipe or other 453 Rarip Transit Act. duly authorized subsurface structure shall be borne and paid by the company which shall have acquired the right, privilege and franchise to construct, maintain and operate such railway, pursuant to a sale of the same at public auction, as hereinafter provided, if any such sale shall be made by said board. Where under the direction of the said board or in pursuance of any general plan adopted or of any con- tract made by the said board, galleries, ways, subways or tunnels shall be constructed to contain sewers, pipes or other subsurface structures, the said galleries, ways, subways or tunnels shall be maintained by the said city and shall be in the care and charge of the said board and subject to such regulations as it shall prescribe not inconsistent with the provisions of this act, and any revenue derived therefrom shall be paid into the treasury of said city, except that where bonds shall have been issued to provide for the cost of construction or equipment of such railroads, such amounts shall be paid to the sinking fund of the city, if there be one, or if not then into the sinking fund, to be estab- lished and created out of the annual rentals of said road, as provided in section thirty-seven of this act. Provided, however, that any per- son or corporation who or which at the time of the construction of the said galleries, ways, subways, or tunnels shall own pipes, subways or conduits in a street, avenue or public place in which said galleries, ways, subways or tunnels shall be constructed pursuant to this act, shall be entitled to the use of such galleries, ways, subways or tunnels for his or its said pipes, subways or conduits in the same manner as the said person or corporation shall be entitled by law to the use of such street, avenue or public place, and that no rent shall be charged for such use, except a reasonable charge to defray the actual cost of maintenance, unless such pipes, subways or conduits shall be of greater capacity than those theretofore owned by such person or cor- poration in said street, avenue or public place, and that, if the capacity of any such pipe, subway or conduit, so placed in the said galleries, ways, subways or tunnels shall be increased, the rent shall be charged only for such increased capacity; and provided further, that the placing in any such galleries, ways, subways or tunnels of the subways or conduits of any corporation owning subways or con- duits for electrical conductors, shall not in any wise affect the right of such corporation to charge and demand such compensation or rent for the use of said subways or conduits by other corporations or indi- viduals as is, or may be, permitted by law. Nothing in this section or contained in the act hereby amended shall be construed as granting, enlarging, changing, or in any manner validating, any right, privilege or franchise, or any claimed or alleged right, privilege or franchise, 454 Rapip Transit Act. to maintain, operate, or possess any gas mains, pipes or conductors, or any conduits or conductors for transmission of electricity, or any subsurface structures of any name or nature whatever, in any street, avenue, highway or public place in such eity. Amended by L. 1909, ch. 472. Public sale of franchise; terms and conditions; supervision of board; deposits by bidders; beginning and finishing roads; forfeiture and resale of franchise; terms as to organization of corporation; rejection and acceptance of bids; adjourn- ments; term of franchise; proviso as to extension. § 7. If, after having secured the necessary consents and after hav- ing prepared such detailed plans and specifications as are by this act provided for, it shall not have been determined by vote of the people as provided by sections twelve and thirteen of chapter seven hundred and fifty-two of the laws of eighteen hundred and ninety-four, that such railway or railways shall be constructed for and at the expense of such city as hereafter provided, said board shall sell at public auction in the city where said railway or railways are to be built and for the account and benefit of said, city the right, privilege and fran- chise to construct, maintain and operate such railway or railways. Notice of the time and place of such sale shall be published three times a week for at least six successive weeks in at least three daily news- papers published in said city. The board may prescribe all such terms and conditions of sale as it may deem to be for the interest of the public and of the city in which the railway or railways are to be constructed. The advertisement of sale shall contain only so much of the said terms, plans and specifications for the construction as the said board may think proper, but such advertisement must state at what place the full terms, plans and specifications may be examined, and they shall be subject to examination under such reasonable rules and regulations as the board may prescribe. The terms of sale shall provide for the construction of the railway or railways under the supervision of the board, and for the approval of an engineer or engineers to be appointed, from time to time, by the board, and the corporation or corporations to be organized for the purpose of con- structing and operating such railway or railways as in this act pro- vided shall pay such engineer or engineers such salary as may, from time to time, be fixed by the said board of rapid transit railroad com- missioners. Such engineer or engineers shall hold their office at the pleasure of the said board. The terms of sale shall require the suc- cessful bidder to deposit with the comptroller or chief fiscal officer of the city, in cash or approved securities, such amount as the board 455 Rarip Transit Act. may deem sufficient to constitute a guarantee of full compliance with the terms of sale by the purchaser and by the corporation to be formed for the purpose of building and operating said railway as hereinafter provided. Said bids and all rights which may have been acquired thereunder shall become null and void and of no effect, at the option of said board, should there be a failure to organize a corporation to exercise such rights, privileges and franchises as required by said terms of sale and this act, or for any violation of any of the require- ments of said terms of sale which should be complied with before such corporation is organized, and thereupon any deposit which may have been made pursuant to such terms of sale shall be paid into the treasury of such city upon a certificate being made and filed by said board with the public officer with whom such deposit shal] have been made, that said bid, and all rights which may have been acquired thereunder, have become null and void and of no effect; and said rights, privileges and franchises shall be again sold by said board, subject to all the provisions of this act regulating such sales. The terms of sale shall require the construction of the road to be begun within a time to be specified in said terms of sale, and to be finished within a certain time thereafter, to be specified therein, and may prescribe the time with which portions of the same shall be begun and finished. The said terms of sale may reserve to the board the power to extend the times for the commencement and completion of the con- struction of said railway, or of portions of the same, if, in its discre- tion, the said board deem such extension to be for the best interests of the city. In case the corporation formed for the purpose of construct. ing said railway shall fail to begin or finish the construction within the times for those purposes respectively limited, all rights, privi- leges and franchises of such corporations to maintain and operate said railway shall be forfeited, and upon such forfeiture being ad- judged by the court in a suit brought for that purpose in the name of the mayor, aldermen and commonalty of the city of New York, or such other appropriate corporate title of-said city or by said board of rapid transit railroad commissioners, then the said board shall have power to advertise and resell said rights, privileges and franchises and so much of the road as shall have been constructed by such corpo- ration; such suit shall have preference over all other cases in all courts; and the proceeds of such resale shall be applied first to the payment of the expenses of the resale, and then to the discharge of any liens which may have been created upon such property, and the balance shall be paid over to the said corporation. The terms of sale must provide for the organization by the purchaser or purchasers of 456 Rarip Transit Ac#. such rights, privileges and franchises of a corporation to exercise the same, and to construct, maintain and operate such rapid transit rail- way or railways, with the powers and subject to the duties and liabili- ties granted or imposed by this act. ‘The said terms of sale must also specify the amount of the capital of any such corporation, and number of shares of capital stock which such corporation shall be authorized to issue, the percentage to be paid in cash by the subscrib- ers on subscribing for such shares, the maximum amount of the bonded indebtedness which such corporation be authorized to incur, and which may be secured by mortgage upon its property and fran- chises, and the rates of fares and freights which such corporation may charge and collect for the carriage of persons and property. But the rate of fare for any passenger on said railway from any point on the same northward or southward within the city of New York shall not exceed five cents under any provision of this act. The said board may, if it considers that the public interest requires it to do so, reject all bids and readvertise the said rights, privileges and franchises for sale, with the same or different terms of sale, as often as it may deem necessary in the interest of such city, and shall finally accept that bid which, under all circumstances, in its opinion is most advantageous to the public and such city; and no bid shall be accepted without the concurrent vote of six members of the board. The terms of sale on any such resale must contain all the provisions required by this act to be inserted in the original terms of sale. Such sale may be adjourned from time to time at the discretion of the board. All sales of such rights, privileges and franchises shall be made for a definite term of years, but the expiration of the term, if sold for a term of years, shall not impair any mortgage or other lien upon the property of such corporation or the rights of any creditor or creditors of such corporation; provided, however, that nothing herein contained shall be so construed as to extend the term for which such rights, privileges and franchises are sold. Amended by chap. 752, Laws of 1894, and chap. 519, Laws of 1895. Resale of franchise after expiration of term; purchasers; new cor- poration, § 8. Within one year, and not less than six months, prior to the expiration of any term for which such rights, privileges and fran- chises shall have been sold, said board shall proceed to resell the right to maintain and operate the said railway. Such sale shall. be made in the manner prescribed for the original sale, and the board is empowered to make suitable provisions for securing to the corpo- 457 Rapiw Transit Act. ration then operating such railway or railways suitable compensation for the railroad structure and appurtenances, and for any other prop- erty, real or personal, which the said corporation may own or of which it may be vested at the expiration of the term for which such tights, privileges and franchises were sold. Any corporation thereto- fore organized under the provisions of this act may be a purchaser on such resale; but if no such corporation be the purchaser, a new cor- poration shall be formed to maintain and operate said road in the manner prescribed for the organization of a corporation on the orig- inal sale, except that the plans and specifications according to which said railway has been constructed need not be set out at large, but may be referred to as forming part of the articles of association of said new corporation. Offices and assistants for board. § 9. The said board may rent such offices and employ such en- gineers, attorneys and other persons, from time to time, as it may, in its discretion, deem necessary to the proper performance by it of its duties as in this act prescribed. It may sue in the name and behalf of the city for which it acts as a board. It may in the name of and in behalf of the said city bring action of specific performance or may apply by mandamus to compel the performance within its city by any corporation or person of any duty or obligation with reference to or arising out of the construction or operation of any railroad under, or by reason of, any grant made or right acquired under this act or the acts amendatory hereof or supplementary hereto, or out of or by reason of any contract made or authorized by any board of rapid transit commissioners within its city, or it may in behalf of and in the name of said city bring actions to recover damages for any viola- tion of contract or duty, or for any wrong committed by any such corporation or person by reason of any non-performance or violation of duty under the provisions of this act, or under any contract or stipulation made in pursuance of any provisions of this act. Every action or proceeding brought by the said board, and every action or proceeding in which an injunction is had or sought against the board or the said city, or against any corporation or person who or which shall have entered into a contract under the provisions of this act, or any act supplementary hereto, or amendatory hereof, by reason of any act or thing done, proposed or threatened under or by virtue of any provision of this act, or any act supplementary hereto, or amend- atory hereof, or is sought against any corporation or person claiming or claiming to act under any grant or franchise under this act, or 458 Rarip Transit Act. any act supplementary hereto, or amendatory hereof, and every action or proceeding in which the constitutionality of any part of this act, or of any act supplementary hereto, or amendatory hereof, shall or may be brought in question, shall have a preference above all causes not criminal on the calendar of every court, and may be brought on for trial or argument upon notice of eight days for any day of any term on which the court shall be in session. Amended by chap. 519, Laws of 1895. Appropriations for board; liability of city; audit and payment of expenditures; revenue bonds, issue of; compensation of commissioners, § 10. The board of estimate and apportionment or other boa:: or public body on which is imposed the duty, and in which is vested the power, of making appropriations of public moneys for the pur- poses of the city government in any city in which it is proposed to construct such railway or railways shall, from time to time, on requisition duly made by the board of rapid transit railroad commis- sioners, appropriate such sum or sums of money as may be requisite and necessary to properly enable it to do and perform, or cause to be done and performed, the duties herein prescribed, and to provide for the compensation of such commissioners, and such appropriation shall be made forthwith upon presentation of a requisition from the board of rapid transit railroad commissioners, which shall state the pur- poses for which such moneys are required by the said board. In case the said board of estimate and apportionment or such other board or ~ public body fail to appropriate such amount as the board of rapid transit railroad commissioners deem requisite and necessary, the said board of rapid transit railroad commissioners may apply to the general term of the supreme court, in the department in which the railway is to be or has been constructed, on notice to the board of esti- mate and apportionment, or such other board or public body afore- said, to determine what amount shall be appropriated for the purposes required by this section, and the decision of said general term shall be final and conclusive; and no city shall be liable for any indebtedness incurred by the said board of rapid transit railroad commissioners in excess of such appropriation or appropriations. It shall be the duty of the auditor and comptroller of any such city, after such appropri- ations shall have been duly made, to audit and pay the proper ex- penditures and compensation of said commissioners upon vouchers therefor, to be furnished by the said commissioners, which payments shall be made in like manner as payments are now made by the audi- tor, comptroller, or other public officers, of claims against and de- 459 Rarip Transit Act. mands upon such city; and for the purpose of providing funds with which to pay the said sums, the comptroller or other chief financial officer of said city is hereby authorized and directed to issue and sell revenue bonds of such city in anticipation of receipt of taxes, and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next following the year in which such appropriations are made. All expenses of the said board of rapid transit railroad commissioners, including the compensation of said commissioners, so incurred and paid by any city as in this section provided, and for which any city shall be liable, shall be repaid, with interest, by the bidder or bidders at the public sale of the rights, privileges and franchises, as in this act provided, in case said board shall so sell the same, whose bid shall be accepted by the board of rapid transit railroad commissioners, and the terms of such sale shall specify the time when such payment shall be made, as well as the amount thereof. The commissioners, other than the mayor and comptroller or other chief financial officer of such city, shall be paid a reasonable compensation for the duties performed by them, from time to time, under the provisions of this act. The amount of such compensation shall be determined by the general term of the supreme court in the department in which said city shall be located upon application by said board after notice to the mayor of such city. Amended by chap. 752, Laws of 1894. Corporations, how organized; articles of association; approval and filing; subscriptions; meeting of subscribers; preference in subscriptions, § 11. A corporation or corporations to construct and operate such rapid transit railway or railways, and to enjoy and exercise the rights, privileges and franchises in this act provided for shall be created and organized in the manner following: Articles of association shall be duly signed and acknowledged by not less than twenty-five persons, and such articles shall set forth the name of the proposed corporation and duration thereof. Said articles must also state that they are made and filed under and in pursuance of this act for the purpose of taking and exercising the rights, privileges and franchises so pur- chased as aforesaid, according to the terms of sale; and such terms of sale and all plans and specifications must be made a part of said articles, annexed thereto and filed therewith. The said articles 460 Rarip Transit Act. must also contain such other provisions as the said board may deem requisite and necessary, not inconsistent with the terms of sale or with this act. The said articles must be approved by said board, by the concurrent vote of four members, and its approval must be indorsed thereon and attested by the seal of the board and the signature of its presiding officer, and must then be filed in the office of the secretary of state, and a duly certified copy, or a duplicate thereof, must be filed in the office of the clerk of the county in which such railway or rail- ways are to be constructed. Immediately after the articles of associ- ation shall have been so made, approved and filed, the board of rapid transit railroad commissioners shall cause books of subscription to the capital stock of any such corporation to be opened, and shall giv. public notice of the opening of such books and of the time and place at which subscriptions will be received; and when the full amount of such capital stock shall have been subscribed by not less than fifty persons, and such percentage of the amount subscribed as may hav: been fixed by the board in the terms of sale shall have been paid in in cash, to such bank or trust company as the board may select, the said beard shall call a meeting of the subscribers for the purpose of organizing the corporation, serving upon or mailing to each subscriber a notice of such meeting at least ten days before the time appointed for holding the same; and the person or persons whose bid shall have been accepted by the said board of rapid transit railroad commis- sioners shall, if they elect te become subseribers to the capital stock of such corpotation, be entitled to a p¥eference for themselves and their associates in subscribing for, and in the allotment of the shares of capital stock of sueh corporation. Election ef first directors; by-laws. § 12. At such meeting of subscribers thirteen directors of the cor- poration shall be elected, each of whom shall be a holder in his own right of at least one hundred shares of the capital stock of the corpo- ration, and the board of rapid transit railroad commissioners shall appoint the inspectors of the first election. Each share of stock shall entitle the holder to one vote for each director. The directors so se- lected shall hold office for one year and until others are elected in their places. At such meeting by-laws must be adopted not incon- sistent with this act, which by-laws shall, among other things, pro- vide for: 1. The term of office of the directors eleeted at any subsequent meet- ing of stockholders, which term shall not exceed one year. 461 Rarip Transit Act. 2. The manner of filling any vacancy which may occur in any office or in the board of directors. 3. The time and place of the annual meeting of stockholders. 4. The manner of calling and holding special meetings of stock- holders. 5. The number of stockholders who shall attend either in person or by proxy, at any stockholders’ meeting in order to constitute a quorum. 6. The officers of the corporation, the manner of their election by the directors, and their duties and powers, and among which officers there shall be included a president, a secretary and a treasurer. 7. The manner of electing or appointing inspectors of election. 8. The manner of amending the by-laws. The by-laws may also provide for the forfeiture of shares for the non-payment of calls and for such other matters as may be deemed proper by the board of rapid transit railroad commissioners and they must be approved by a resolution of said board. Record of proceedings; certificate of organization; payment of deposit to corporation. § 13. Within ten days after the said subscribers’ meeting a record of the proceedings thereof, containing a copy of the subscription list, a copy of the by-laws adopted, and the names of the directors chosen, shall be prepared and duly certified by the person presiding over, an’! person acting as secretary of said meeting. There shall be attached thereto a certificate of the board of rapid transit railroad commission- ers, attested by its seal and the signature of its presiding officer, that said board has approved the by-laws adopted at the subscribers’ meet- ing, and that said corporation has been organized in accordance with the provisions of this act. The said record and certificate shall be filed by said board in the office of the secretary of state, and a duly certified copy or duplicate thereof shall be filed in the office of +): clerk of the county in which said railway or railways are to be built, and thereupon and upon the payment to the state treasurer of a tax of one-eighth of one per centum of the par value of the capital stock of said corporation, such corporation shall be deemed to be fully organ- ized.. A copy of said certificate, duly certified by the secretary of state, or by the county clerk in whose office it is filed, shall be presumptive evidence of the due organization of such corporation in all courts and proceedings. Upon the production of the certified copy of said certifi- cate, and upon the order of such corporation, the bank or trust com- pany in which the percentage of subscriptions to the capital stock 462 Rarip Transit Act. shall have been deposited, shall pay over to any such corporation the amount of such deposit, and said corporation shall repay to the pur- chaser or purchasers at the sale provided for in section seven of this act, the expenses paid by him or them to the city pursuant to the provisions of the terms of sale, with interest to the date of such repay- ment. Modification of plans; certificates; filing. § 14. The said board of rapid transit railroad commissioners, if, in their judgment, the public interest requires, may, at any time after the full organization of any such corporation, by the concurrent vote of four members, authorize such corporation to alter or add to the de- tailed plans and specifications contained in its articles of association, provided the plans and specifications as so modified do not change the route or routes of said railway and be not inconsistent with tl general plan of construction, adopted under the provisions of section four of this act, and provided also such modifications be first ap- proved by a vote of two-thirds of the directors of said corporation present and voting at any special meeting duly called for the purpose, by written notice stating the nature of the business to be transacted at said meeting. When such authorization by the board of rapid transit railroad commissioners shall have been given, a certificate shall be prepared, and acknowledged by the president and a majority of the directors of said corporation, stating the nature of the modifica- tion, and that the same has been approved by the board of directors in the manner above set forth, to which certificate there shall be at- tached a copy of so much of the original plans and specifications as are to be affected by the modification, and also the plans and specifica- tions as modified. There shall also be contained in such certificate a declaration of the approval of said board of rapid transit railroad com- missioners, attested in the same manner as the certificate of full or- ganization. The said certificate, plans and specifications shall then be filed in the office of the secretary of state, and a certified copy or duplicate thereof shall be filed in the office of the clerk in which the articles of association are filed. And thereupon said corporation shall be authorized to construct its railway or railways and appurtenances in accordance with such modified plans and specifications. Principal office; place of taxation. § 15. Every corporation organized under this act shall have its principal office and be taxed on its property in the city where its rail- way or railways are situated. But no taxes of any kind or nature shall be levied or imposed upon that portion of any railway con- 463 Rariw Transir Act. structed under this act which is in process of construction, and not in actual operation for the transportation of passengers or freight, but this exemption from taxation during construction shall not apply to any portion or portions of said railway after the date on which said portion or portions shall have been opened to the public for the transportation of passengers or freight. Board of directors; vacancies and qualifications; exhibition of books. § 16. The affairs of said corporation shall be managed by a board of thirteen directors, who shall be chosen annually, by a majority of the votes of the stockholders voting at such election, in such manner as may be prescribed in the by-laws of the corporation, and they may and shall continue to be directors until others are elected in their places. In the election of directors, each stockholder shalt be entitled to one vote for each share of stock held by him. Vacancies in the board of directors shall be filled in such manner as shall be preseribed by the by-laws of the corporation. No person shall be a director unless he shall be a stockholder owning one hundred shares of stock absolutely in his own right, and qualified to vote for directors at the election at which he shall be chosen. At every election of directors the books and papers of such corporation shall be exhibited to the meeting, provided a majority of the stockholders present shall require it. Payment of subscriptions. § 17%. The directors shall require the subscribers to the capital stock of the company to pay the amount by them respectively sub- scribed in money at such times and in such installments as they may deem proper, not inconsistent with the by-laws and the articles of association. Personal liability of stockholders; recovery by stockholder. § 18. Each stockholder of any corporation formed under this act shall be individually liable to the ereditors of such corporation, to an amount equal to the amount unpaid on the stock held by him, for all the debts and liabilities of such corporation, until the whole amount of the capital stock so held by him shall have been paid to the cor- poration; and all the stockholders of any such corporation shall be jointly and severally liable for the debts due or owing to any of its laborers and servants, other than contractors, for personal services, for thirty days’ service performed for such corporation, but shall not be liable to an action therefor before an execution or executions shall 464 Rapip Transit Act. be returned unsatisfied in whole or in part against the corporation, and the amount due on such execution or executions Shall be the amount recoverable, with costs, against such stockholders; before such laborer or servant shall charge such stockholder for such thirty days’ service, he shall give him notice. in writing within twenty days after the performance of such service, that he intends so to hold him liable and he shall commence such action therefor within thirty days after the return of such execution unsatisfied, as above mentioned; and every such stockholder against whom any such recovery by such laborer or servant shall have been had, shall have a right to recover the same of the other stockholders in said corporation, in rateable proportion to the amount of the stock they shall respectively hold. Transfer of stock. § 19. The stock of every corporation formed under this act shall be deemed personal estate, and shall be transferable in the manner prescribed by the by-laws of the company, but no share shall be transferable until all previous calls thereon shall have been fully paid in. Capital; notice to stockholders: statement to be made and filed. § 20. Any corporation formed under this act may increase or reduce its capital stock from time to time upon obtaining the ap- proval of the board of rapid transit railroad commissioners by a con- current vote of four members thereof. Such increase or reduction must be approved by a vote in person, or by proxy, of two-thirds in amount of all the stockholders of the corporation, at a meeting of such stockholders called by the directors of the corporation for that purpose, by a notice in writing to each stockholder, to be served on him in the manner provided for service of the notice of the sub- scribers meetings provided for in section eleven of this act. Such notice shall state the time and plate of the meeting, and its object, and the amount to which it is proposed to imtrease or reduce the capital stock. A statement of the increase or reduction shall be signed by the president and a majority of the directors and shall be filed in the office of the secretary of state and of the clerk of the county in which the original articles of association are filed. There must be attached thereto a certificate of the apptfoval of said board of rapid transit railroad commissioners attested in the same manner as the certificate of full organization. Liability of certain holders of stock. § 21. No person holding stock in any such corporation, as executor, 465 Rarip Transir Act. administrator, guardian or trustee, and no person holding such stock as collateral security, shall be personally subject to any liability as a stockholder of such corporation; but the person pledging such stock shall be considered as holding the same, and shall be liable as a stock- holder accordingly; and the estate and funds in the hands of such executor, administrator, guardian or trustee shall be liable in like manner, and to the same extent, as the testator or intestate or the ward or person interested in such trust fund would have been if he had been living and competent to act, and held the same stock in his own name. | Liability of corporation to employes of contractors; notice to be given. § 22. As often as any contractor for the construction of any part of a railway, which is in progress of construction under the provi- sions of this act, shall be indebted to any laborer for thirty or any less number of days’ labor performed in constructing said road, such laborer may give notice of such indebtedness to said corporation in the manner herein provided; and said corporation shall thereupon be- come liable to pay such laborer the amount so due him for such labor, and an action may be maintained against said corporation therefor. Such notice shall be given by said laborer to said corporation within twenty days after the performance of the number of days’ labor for which the claim is made. Such notice shall be in writing, and shall state the amount and number of days’ labor, and the time when the same was performed and the name of the contractor from whom due, and shall be signed by such laborer or his attorney, and shall be served on an engineer, agent or superintendent employed by such corporation having charge of the section of the road on which such labor was per- formed personally, or by leaving the same at the office or usual place of business of such engineer, agent or superintendent with some person of suitable age. But no action shall be maintained against any corporation under the provisions of this section, unless the same be commenced within thirty days after notice is given to such com- pany by such laborer as above provided. Real estate; proceedings to acquire. § 23. Every such corporation shall have the right to acquire and hold such real estate or easement or other interest therein, or rights appertaining thereto, as may be necessary to enable it to construct, maintain and operate the said railway, or railways, and such as may be necessary for stations, depots, engine-house, car-houses, machine- shops and other appurtenances specified in the articles of associ- 466 Rarip Transit Act. ation; and in case any such corporation cannot agree with the owner or owners of such property it shall have the right to acquire title to the same in pursuance of the terms of and in the manner prescribed in title one of chapter twenty-three of the Code of Civil Procedure, known as the condemnation law. Corporate powers; grants; purchase of property; crossing and uniting with other roads; compensation; transportation of persons and property; construction and maintenance of road; excavations; parks and streets; right to borrow money and issue bonds. § 24. Every corporation formed under this act shall have power: 1. To take and hold such voluntary grants of real estate and other property as shall be made to it, to aid in the construction, main- tenance and accommodation of its railway or railways, but the real estate received by voluntary grant shall be held and used for the purposes of such grant only. 2. To purchase, lease, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railway or railways, and the stations or other accommodations necessary to accomplish the objects of its incorporation; but nothing herein contained shall be held as repealing or in any way affecting the act, entitled “ An act authorizing the construction of railroads upon Indian lands,” passed May twelve, eighteen hundred and thirty-six. 3. To cross, intersect, joint and unite its railway or railways with any other railway at any point on its route and upon the grounds of such other railway company, with the necessary turnouts, sidings and switches and other conveniences in furtherance of the objects of its connections. And every corporation whose railway is or shall be hereafter intersected by any new railway, shall unite with the owners of such new railway in forming such intersections and connections, and grant the facilities aforesaid ; and if the two corporations cannot agree upon the amount of compensation to be made therefor, the same shall be ascertained and determined by commissioners to be ap- pointed by the court, in the manner provided in thig act in respect to acquiring title to real estate. And if the two corporations cannot agree upon the points and manner of such crossings and connections, the board of rapid transit railroad commissioners shall determine the same on the application of either corporation. : 4. To take and convey persons and property on its railway or railways by the power or force of steam, or by any motor other than animal power, and to receive compensation therefor not inconsistent with the provisions of this act, and the terms of sale under which the 467 Rapip Transit Act. said corporation shall have acquired its rights, privileges and fran- chises, 5. To enter upon and underneath the several streets, avenues, public places and lands designated by the said board of rapid transit railroad commissioners, and enter into and upon the soil of the same; to construct, maintain, operate and use, in accordance with the plan adopted by said board, a railway or railways upon the route or routes and to the points decided upon, and to secure the necessary founda- tions and erect the columns, piers and other structures which may be required to secure safety and stability in the construction and main- tenance of the railways constructed upon the plan adopted by the said board, and which may be necessary for operating the same, except that nothing in this act shall authorize the construction of a railway crossing the traek of any steam railway in actual operation at the grade thereof, and it shall be lawful to make such excavations and openings along the route through which such railway or railways shall be constructed as shall be necessary from time to time; in all cases the surface of said streets around such foundations, piers and columns shall be restored to the condition in which they were before such excavations were made, as near as may be, and under the direc- tion of the proper local authorities; and in all cases the use of the streets, avenues, places and lands designated by the said board, and the right of way through the same, for the purpose of a railway or railways, as herein authorized and provided, shall be considered, and is hereby declared, to be a public use, consistent with the uses for which the roads, streets, avenues and public places are publicly held; but no such corporation shall have the right to acquire the use or occupancy of public parks or squares in such county, or the use or occupancy of any of the streets or avenues, except such as may have been designated for the route or routes of such railway, and except such temporary privileges as the proper authorities may grant to such corporations to facilitate such construction. 6. From time to time to borrow such sums of money as may be necessary for completing and finishing or operating their railroad, and to issue and dispose of their bonds for such purposes; but the amount of such bonds outstanding at any one time shall not exceed the amount limited by the articles of association. Amended by chap. 556, Laws of 1892. Employes to wear badges. § 25. Every conductor, baggage master, engineer, brakeman or other servant of any railroad corporation employed in a passenger 468 Rapri Transit Act, train, or at stations for passengers, shall wear upon his hat or cap a badge, which shall indicate his office, and the initial letter of the style of the corporation by which he is employed. No conductor or collec. tor, without such badge, shall be entitled to demand or receive from any passenger any fare or ticket, or to exercise any of the powers of his office; and no officer or servant without such badge shall have authority to meddle or interfere with any passenger, his baggage or property. Carrying of mails; extra trains. § 26. Any corporation or person operating a railroad under any provision of this act or of any act supplementary hereto or amenda- tory hereof shall, when applied te by the postmaster-general, convey the mails of the United States on their road or roads respectively ; and in case the parties cannot agree as to the rate of transportation therefor, and as to the time, rate of speed, manner and conditions of carrying the same, it shall be lawful for the governor of this State to appoint three commissioners, who, or a majority of them, after fifteen days’ notice in writing of the time and place of meeting to the cor- poration, shall determine and fix the prices, terms and conditions aforesaid ; but such price shall not be less for carrying said mails in the regular passenger trains than the amount which such corporation would receiye as freight on a like weight of merchandise transported in their merchandise trains, and a fair compensation for the post- office car. And in case the postmaster-general shall require the mail to be carried at other hours, or at a higher speed than the passenger trains are run, the corporation shall furnish an extra train for the mail and be allowed an extra compensation for the expenses and wear and tear thereof, and for the service to be fixed as aforesaid. Amended by chap. 519, Laws of 1895. Ejection of passengers from ears. § 27. If any passenger shall refuse to pay his fare, it shall be lawful for the conductor of the train and the servants of the corpora- tion to put him and his baggage out of the cars, using no unneces- sary force, at any usual stopping place, on stopping the train. Running of cars. § 28. Every such corporation shall start and run its cars for the transportation of passengers and property at regular times, to be fixed by public notice; and shall furnish sufficient accommodations for the transportation of all such passengers and property as shall, within a reasonable time previous thereto, he offered for transporta- 469 Rapip Transit Act. tion at the place of starting and the junction of other railroads, and at usual stopping places established for receiving and discharging way passengers and freight for that train; and shall take, transport and discharge such passengers and property at, from and to such places, on the due payment of the freight or fare legally authorized therefor; and shall be liable to the party aggrieved in an action for damages, for any neglect or refusal in the premises. Intoxication of employes. § 29. If any person shall, while in charge of a locomotive engine running upon the railway of any such corporation, or while acting as the conductor of a car or train of cars on any such railroad, be intoxicated, he shall be deemed guilty of a misdemeanor. See action 42, Railroad Law; section 1984 of the Penal Law. Willful injury to property. § 30. If any person or persons shal] willfully do, or cause to be done, any act or acts whatever, whereby any building, construction or work of or on any part of any railroad either constructed or operated under any provision of this act or of any act supplementary hereto or amendatory hereof, or under any provision of any contract made under this act or any act supplementary hereto or amendatory hereof, or any engine, machine or structure, or any matter or thing apper- taining to the same, shall be stopped, obstructed, impaired, weak- ened, injured or destroyed, the person or persons so offending shall be guilty of a misdemeanor, and shall forfeit and pay to the owner of such building, construction, works, engine, machine, structure, matter or thing treble the amount of damages sustained in con- sequence of such offense. Amended by chap. 519, Laws of 1895. Dissolution, § 31. The legislature may, at any time, annul or dissolve any corporation formed under this act; but such dissolution shall not take away or impair any remedy given against any such corporation, its stockholders or officers, for any liability which shall have been previously incurred. Connecting routes and extend lines; additional tracks and facilities; plans of construction; powers of state board of railroad commissioners. § 32. The said board of rapid transit railroad commissioners may also from time to time, as in this section hereinafter provided, with the approval of the board of estimate and apportionment, or other 470 Rarip Transit Act. analogous local authority of such city, grant a right or rights, fran- chise or franchises or enter into a contract or contracts, upon applica- tion to said board of.any railroad corporation, now or hereafter incor- porated, for the purpose of constructing and operating a tunnel rail- road or railroads from an adjoining state under the North or Hudson or Harlem river to a terminus within such city; or under the North or Hudson river and thence transversely across and under the sur- face of the borough of Manhattan and thence under the Hast river by the shortest practicable route; such railroad or railroads to be con- nected with some trunk line steam railroad or railroads whose ter- minus or termini are in an adjoining state, thereby forming a con- tinuous line for the carriage of passengers and property between a point or points within such adjoining state and a point or points within the said city, provided such purpose is declared in the cer- tificate of incorporation of such corporation. A similar grant may be made, or a similar contract or contracts entered into, upon the ap- plication of a railroad corporation, owning or actually operating a trunk line railroad whose terminus or termini are within such city, or of a railroad corporation owning or actually operating, or by the cer- tificate of the board of rapid transit railroad commissioners herein- after in this section mentioned required to own or actually operate, a railroad wholly or partly within said city, and engaged or intended, and in said certificate so recited and required, to be, in interstate commerce in connection with a trunk line railroad and which shall have, or be required by such certificate to have a terminus or termini in said city, for the purpose of constructing and operating a railroad or railroads from such terminus or termini by the shortest practicable route to and under or over the Hast river or the North or Hudson river, or the Harlem river, to any point in an adjoining state, or tv connect with any other similar railroad in this state. If and when in the judgment of said board the public interests so demand, the said board may, with like approval, by the concurrent vote of six of its members fix and determine the route or routes by which any such railroad corporation making such application may so establish and construct or so extend its lines into or within said city, and may authorize any such railroad corporation to construct and operate any such railroad or connecting railroad under any lands, streets, avenues, waters, rivers, parkways, highways or public places in the said city, and also in the case of any such railroad or connecting railroad which is, or by the terms of the said certificate of the said board of rapid transit railroad commissioners is required to be, operated or used as a part of an interstate trunk line, to construct and operate the same 471 Rarip Transit Act. over and across any such lands, waters, rivers, streets, avenues, park- ways, highways or public places in the said city, but not over and lengthwise of any streets, avenues or highways, with all necessary sidings, platforms, stations, facilities for access to the surface and other appurtenances and with the right to emerge to the surface upon private lands at the termini, and to transport over the same passen- gers or freight or both, and to run over the same either passenger trains or freight trains or mixed trains. The said board shall, with like approval, fix and determine the locations and plans of construc- tion of the railroad or railroads upon such route or routes, the times within which they shall be respectively constructed, the compensation to be made therefor to the city by the railroad corporation to which the grant shall be made, or with which the contract shall be entered into, and such other terms, conditions and requirements as to the said board may appear just and proper,—provided, however, that every such grant shall be made and every such contract entered into upon the condition that the railroad corporation to which the grant shall be made or with which the contract shall be entered into shall, from the time of the commencement of the operation of any such railroad, annually pay to the said city a sum or rental, and that the amount of such sum or rental for a period of not more than twenty-five years, beginning with such operation of any such railroad, shall be pre- scribed by the said board in such grant or contract and that every such grant or contract shall provide for the readjustment of the amount of such sum or rental at the expiration of the period for which the same shall be so prescribed and for readjustment from time to time in the future of the amount of such annual payment at inter- vals each of not more than twenty-five years. A certificate shall be prepared by the said board, attested by its sea] and the signature of its presiding officer, setting forth in detail the action taken and grant made or contract entered into by the said board with respect to such railroad or railroads and the terms, conditions and requirement aforesaid, including provisions as to the said annual payments and the future readjustments thereof. A like certificate shall be prepared in like manner upon every modification of the terms of the grant or contract as hereinafter provided. Each such certificate shall pre- scribe the terms and conditions of the readjustments of such annual payments and may provide for the determination of such amount upon such readjustments by arbitration or by the supreme court. Such certificate shall he delivered to said railroad corporation upon the receipt by said board of a written acceptance of the terms, con- ditions and requirements of the grant or contract, duly executed by 472 Rarip Transit Act. said railroad corporation, so as to entjtle it to be recorded. The said certificate shall be filed in the office of the secretary of state, and a duly certified copy thereof shall be filed in the office of the clerk of the county in which the said city is situated, and thereupon, and upon fulfilment by such railroad corporation, so far as it relates to such railroad or railroads, of such of the requirements and conditions as are necessary to be fulfilled in such cases, under section eighteen of article three of the constitution of this state, and upon fulfillment by such railroad corporation of such other terms, conditions and requirements enumerated in said certificate, as the said board may require to be fulfilled as a condition precedent to commencing said work, said railroad corporation shall in such cases possess in addition to its already existing franchises all the powers conferred by this act upon corporations specially formed thereunder, with respect to its rail- ways authorized to be constructed as aforesaid, and when any route or routes, rights or franchises, shall be so fixed and determined, and a certificate as aforesaid shall have been duly filed, such railroad cor- poration may construct the same with all the rights, and with like effect as though the same had been a part of the original route of its railroad then in actual operation, or as may be provided in said cer- tificate but in every case subject to all the provisions and conditions of the said certificate. Every certificate prepared by the board of rapid transit railroad commissioners as aforesaid when delivered to and ac- cepted by such railroad corporation, shall be deemed to constitute a contract between the said city and said railroad corporation, accord- ing to the terms of the said certificate; and such contract shall be en- forceable by the said board acting in the name of and in behalf of the said city or by the said corporation according to the terms thereof, but subject to the provisions of this act. The terms of such contract may from time to time, with like approval and with the consent of such corporation, be modified by the board of rapid transit railroad commissioners by the vote of six of its members. But the construc- tion and operation of such railroad or railroads are hereby author- ized only upon the condition that the consent of the owners of one- half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon, above or under which it is proposed to construct or operate the same, be first obtained, provided that such local author- ities shall, upon the presentation to them of any such grant or con- tract, without requiring the execution of any other agreements than those herein provided for, either approve or disapprove the same; and every such approval, shall be and he deemed to be, free of all limita- tions except those contained in this act ar the constitution of the state. 473 Raprw Transit Act. In case the consent of such property owners cannot be obtained, the appellate division of the supreme court in the department in which such railroad or railroads are proposed to be constructed, may, upon application, in the same manner and on the same notice specified in section five of this act, appoint three commissioners, who shall deter- mine after a hearing of all parties interested, whether the same ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of such property owners. Nothing in this act contained shall be construed as interfer- ing in any way with the jurisdiction, powers and duties of the board of railroad commissioners of the state of New York, nor shall any grant or contract be made hereunder affecting in any way the liabilities and obligations of the grantee or contracting railroad corporation with reference to taxation for state or local purposes. The state of New York shall not be liable for injuries to persons or property in con- nection with any railroad or other construction which may be author- ized under the provisions of this act, nor shall the state of New York be liable for any damages in any event for any act or omission of the board of rapid transit railroad commissioners. Amended by L. 1909, ch. 472. Additional franchise to railroad companies. § 32-a The said board of rapid transit railroad commissioners may also from time to time, with the approval of the board of estimate and apportionment, upon application of any person, firm or corporation owning, leasing, constructing, or actually operating a railroad wholly or in part within the limits of the city in which the said board has power to act, if in the judgment of said board the public interests so demand, by the concurrent vote of six of the members of said board, fix and determine the route or routes by which any such person, firm or corporation may connect with other railways, or the stations thereof, or with ferries, or may extend his or its lines within said city, and may with like approval authorize any such person, firm or corporation to lay an additional track or tracks on, above, under or contiguous to a portion or the whole of the route or routes of his or its railway or railways within said city and to acquire terminal or other facilities necessary for the accommodation of the traveling public on any street or place except the place known as Battery park on which said railway shall be located; and may also with like ap- proval authorize any such person, firm or corporation to lay his or its tracks and operate his or its railway to any terminal or terminals within the said city, and to transport over the same passengers or freight or both, and to run over the same either passenger trains or 474 Raprip Transir Act. freight trains or mixed trains; and the said board shall with like ap- proval fix and determine the locations and plans of construction of the railways upon such route or routes and of such tracks and facilities, the times within which they shall be respectively con- structed, the compensation to be made therefor to the city by said person, firm or corporation, and such other terms, conditions and re- quirements as to the said boards may appear just and proper, provided, however, that every such determination, authorization and license shall made upon the condition that such person, firm or corporation shall from the time of the commencement of the operation of any such railway or track or tracks under such determination, authoriza- tion or license, annually pay to the said city a sum or rental, and that the amount of such sum or rental for a period of not more than. twenty-five years, beginning with such operation of any such railway, track or tracks, shall be prescribed by the said board in such deter- mination, authorization and license, and that every such determina- tion, authorization and license shall provide for the readjustment of the amount of such sum or rental at the expiration of the period for which the same shall be so prescribed and for readjustment from time to time in the future, to the end of the period of renewal, if any, of the amount of such annual payment at intervals each of not more than ten years. No such determination, authorization or license shall be made for a longer period than twenty-five years but may provide for renewal or renewals thereof not to exceed twenty years in the aggre- gate. A certificate shall be prepared by the said board, attested by its seal and the signature of its presiding officer, setting forth in detail the action taken by the said board with respect to such connecting or extended route or routes and such tracts and facilities, and the terms, conditions and requirements aforesaid, including provisions as to the said annual payments and the future readjustments thereof. A like certificate shall be prepared in like manner upon every modification or renewal of the terms of the contract as hereinafter provided. Every such certificate shall prescribe the terms and conditions of the readjustments of such annual payments and may provide for the determination of such amount upon such readjustments by arbitra- tion or by the supreme court. Such certificate shall be delivered to said person, firm or corporation upon the receipt by said board of a writen acceptance of said terms, conditions and requirements, duly executed by said person, firm or corporation, so as to entitle it to be recorded. ‘The said certificates shall be filed in the office of the secretary of state, and a duly certified copy thereof shall be filed in the office of the clerk of the county in which the said city is situated, 475 Rarip Transir Act. and thereupon, and upon fulfillment by such person, firm or corpora- tion, so far as it relates to such connections, additional track or tracks, or facilities, of such of the requirements and conditions as are neces- sary to be fulfilled in such cases, under section eighteen of article three of the constitution of this state, and upon fulfillment by such person, firm or corporation of such other terms, conditions and re- quirements enumerated in said certificate, as the said board may require to be fulfilled as a condition precedent to commencing said work, said person, firm or corporation shall in such cases possess in addition to existing franchises all the powers conferred by this act upon corporations specially formed thereunder, with respect to his or its railways authorized to be constructed as aforesaid, and when any route or routes, additional track or tracks, or terminal or other facilities, shall be so fixed and determined, and a certificate as afore- said shall have been duly filed, such person, firm or corporation may construct the same with all the rights, and with like effect as though the same had been a part of the original route of his or its railway then in actual operation or in process of construction, except that no franchise, right or authority shall be granted under this section to extend any railway, make any connections, lay any additional track or tracks or acquire any terminal or other facilities for a longer period than the original grant, franchise or contract of the railway to which such extension, connection, additional track or tracks, or ter- minal or other facilities are added. The certificate or certificates prepared by the board of rapid transit railroad commissioners as aforesaid when delivered to and accepted by such person, firm or corporation, shall be deemed to constitute a contract between the said city and said person, firm or corporation aecording to the terms of the said certificate; and such contract shall be enforceable by the said board acting in the name of and in behalf of the said city or by the said person, firm or corporation according to the terms thereof, but subject to the provisions of this act. The terms of such contract may from time to time, with the consent of such person, firm or corpora- tion be modified by the board of rapid transit railroad commissioners by the vote of six of its members. But the construction and opera- tion of such connections, extensions, additional track or tracks, or facilities, are hereby authorized only upon the condition that the con- sent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon, above or under which it is proposed to construct or operate the same, be first obtained, or in case the consent of such property owners cannot be obtained, the appellate 476 Rapip Transit Act. division of the supreme court in the district in which they are pro- posed to be constructed, may, upon application, in the same manner, and on the same notice specified in section five of this act, appoint three commissioners, who shall determine after a hearing of all the parties interested, whether the same ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. Every such cer- tificate granting any franchise, right or authority as aforesaid shall provide that upon the termination thereof all the rights of property of the grantee in the streets, avenues, parkways, highways and public places shall cease and terminate without compensation and shall further provide that upon such termination of such franchise, right or authority the plant and structure together with the appurtenances thereto, of the grantee constructed pursuant to such certificate, except rolling stock and other movable equipment, shall become the property of the city without further or other conipehsation to the grantee; but such certificate may provide that upon such termination there shall be a fair valuation of the rolling stock and other movable equipment which shall be and become the property of the city on the termina- tion of the grant on paying the grattee such valuation. The provi- sions of this section shall apply to any railrodd or railroads con- structed, constructing or contracted for tinder the provisions of sec- tion thirty-four of this act, and to any person, fitm or corporation constructing or opérating such railroad or railroads. Amended by L. 1909, ch. 472. Removal of surface railway tracks, costs; construction of tram- ways for removal of material. § 33. Wherever or whenever the route selected by the said board of rapid transit railroad commissioners for the construction of such railway shall intersect, cross or coincide with any railway track or tracks occupying the surface of any street or avenues, or the con- struction or operation of said railway shall interfere with any pipes, sewers, subways, or underground conduits or ways, any corporation organized under this act, or any contractor or person constructing any railway or part of a railway under any contract made with the board of rapid transit railroad commissioners, is hereby authorized, for the purpose of constructing the said work, to remove the track or tracks of any such surface railway or railways, or any such pipes, sewers, subways, or underground conduits or ways, but the same shall be done in such manner as to interfere as little as possible with the practical operation or workings of such surface railway or railways, or the works or business of the owners of any such pipes, sewers, sub- 47” Rariw Transit Act. ways, or underground conduits or ways, and upon the construction of such railways built under and in conformity with the provisions of this act, where such removals or changes have been made, said track or tracks, pipes, sewers, subways or underground conduits or ways shall be restored as nearly as may be to the condition in which they were previous to the construction of any such railway built under the provisions of this act, and any damages which such company or companies or owners may sustain shall be ascertained by a commission to be appointed the same as in the case where lands are taken for the purpose of a railway route or routes as hereinbefore provided in this act. For the purpose of the construction or operation of any railway under the provisions of this act, the board of rapid transit railroad commissioners may remove or cause to be removed, any pipes, sewers, subways or underground conduits or ways underneath any street, high- way, park, or public place; provided, however, that the same shall be replaced as soon as practicable, either in the same position as before or in a secure and convenient position underneath such street, highway or public place, or underneath such other street, highway or public place as may be approved by the head of the department of public works of the city. Provided, however, that nothing in this section contained shall authorize the permanent removal from any street, highway, park or public place of any subways or conduits for the reception of electrical conductors which shall have been placed in such street, highway or public place prior to the construction of the rapid transit railroad, without the consent of the owner and lessee of such subway or conduit. All such removals and restorations shall be made at the proper cost and charge of such corporation, contractor or person as may have made such removals, but subject to the provisions of its, his or their contract, if any, with the board of rapid transit railway commissioners. Nothing contained in this act shall authorize any corporation formed thereunder to use the tracks of any horse railway. For the purpose of facilitating construction, and to dimi- nish the period of occupancy of any street for the transportation of material, any contractor acting under a contract made in pursuance of this act, or of any act supplementary hereto or amendatory hereof, may, with the approval of the board of rapid transit railroad com- missioners, lay upon or over the surface of any street, temporary tramways, to be used only for the removal of excavated materials or the transportation of material for use in the construction; provided, however, that any such tramway shall be forthwith removed upon the direction of the board of rapid transit railroad commissioners; and provided, further, that this provision shall not be construed to authorize the construction or operation of any street railroad or to 478 Rapip Transit Act. grant to any corporation, association or individual the right to lay down railroad tracks. Amended by chap. 564, Laws of 1904. Railroad built by city. § 34. In case the people shall determine by vote, as provided in sections twelve and thirteen or chapter seven hundred and fifty-two uf the laws of eighteen hundred and ninety-four, that any such railway or railways shall be constructed for and at the expense of such city, then and in that event it shall be the duty of said board to consider the routes, plans and specifications, if any, previously laid out and adopted by them for their predecessors, and for which the consents have been obtained referred to in section five of this act; and either to proceed with the construction of such railway or railways, and provide for the operation of the same, as hereinafter provided, or to change and modify the said routes, plans or specifica- tions in such particulars as to said board may seem to be desirable, or from time to time and with or without reference to former toutes or plans to adopt other or different or additional routes, plans and specifications for such railway or railways, provided always, that in all cases in which any such change or modification shall be of such character as to require the consents thereto referred to in section five of this act; and in all cases where other or different routes or general plans may have been so adopted the said board shall proceed to secure the consents required to be obtained by section five of this act as herein set forth. If any city has been or shall have been formed by the union or consolidation of one or more cities and other territory, and if in or for one of such cities so consolidated or united there shall have been a board of rapid transit railroad commissioners as provided in this act the board of rapid transit railroad commission- ers for the said city formed by such union or consolidation shall have for and within such city so formed all the powers, and be subject to all the duties and responsibilities, which at the time of such union or consolidation belong to the board of rapid transit railroad commis- sioners of the former cities so as aforesaid possessing such board for or in or with respect to such former city. If in such former city the vote of the qualified electors thereof shall have been for municipal construction of rapid transit road as prescribed in sections twelve and thirteen of chapter seven hundred and fifty-two of the laws of eighteen hundred and ninety-four, then the system of municipal construction of rapid transit railways provided for in this act and all of the pro- visions with respect thereto in this act contained shall be applicable to and in full force within, all the districts or boroughs and through- out the entire area of the said city formed by such union or consoli- dation. The board of rapid transit railroad commissioners for any city shall, prior to the time of the final grant of any franchise under 479 Rapip Transir Act. the provisions of this act or the making of a contract for construction of any railroad under the provisions of this act have power to rescind and revoke any resolution or resolutions of such board adopting any routes or general plan for a rapid transit railroad adopted by such board and, in the discretion of such board, in lieu thereof to adopt new routes and general plan. Every such rescindment or revocation which shall have been heretofore made shall be deemed to have been lawful and authorized by this act as the same was prior to the present amendment hereof. As soon as stich consents, where necessary, shall have been obtained for any rapid transit railroad or railroads, and the detailed plans and specifications have been prepared as provided in section six of this act, the said board, for and in behalf of said city, shall enter into a contract with any person, firm or corporation, which in the opinion of said board shall be best qualified to fulfill and carry out said contract, for the construction of such road or roads, including such galleries, ways, subways and tunnels for subsurface structures as said boatd may include in the plans for such road or roads under the authority of section six of this act; upon the routes and in accordance with the plans and specifications so adopted, for such sum or sums of money, to be raised and paid out of the treasury of said city, as hereinafter provided, and on such terms and conditions, not inconsistent with the aforesaid plans and specifications, as said board shall determine to be best for the public interests. The sum or sums of money to be paid for the construction of such road or roads shall be separately stated in the contract from the sum or sums to be paid for any galleries, ways, subways or tunnels for subsurface struc- tures, the construction of which is provided for in stich contract. And said board may in any case contract for the construction of the whole road, or all the roads provided for by the aforesaid plans in a single contract, or may by separate contracts, executed from time to time, or at the same time, with one or more such persons, firms or corpora- tions provide for the construction of parts of said road or roads or for the construction at first of two or more tracks over a part or parts of such road or roads and afterwards of one or more additional tracks over a part or parts of such road or roads as the necessities of said city and the increase of its population or the advantageous and econo- mical performance of the work may in the judgment of said board require. The board may also, in a contract for a part of any such rapid transit railroad, insert a provision that, at a future time, upon the requirement of the board, the contractor shall construct the re- mainder or any part of the remainder of said road, as the growth of population or the interests of the city may, in the judgment of the board, require, and may, in such contract, insert a provision of a method for fixing and ascertaining at such future time the amount to be paid to the contractor for such additional construction, and to the end of such ascertainment, may provide for arbitration or for deter- 480 Kaprip Transit Act. mination by court of the amount of such compensation, or of any other details of construction which shall not be prescribed in the con- tract, but which shall be deemed necessary or convenient by said board. Any such contract may provide, if the public interest shall, in the opinion of the board, justify the provision, that the construction of any section or portion of the railroad included in such contract may, with the consent of the board, be suspended during the term of opera- tion of the railroad as hereinafter mentioned, or any part of such term; provided that during such term or part of term there shall be available for use, in lieu of such portion of the road, a railroad or a portion or section thereof, which shall, with the railroad or portion convenient route. Any such contract may be made for the construc- of railroad constructed under such contract form a continuous and tion of said road in sections, or for the construction of any section or sections thereof; and, except as herein otherwise pro- vided, every such contract shall specify when the construction cf the railroad or the section or sections thereof included therein shall be commenced in each case, and, in each case, the date of completion. The said board may by any such contract determine when and how the work of construction of the rapid transit railroad or railroads included therein shall proceed. The said board of rapid transit rail- road commissioners may also provide for the equipment at public expense of such railroad or railroads in connection with the construc- tion thereof, and may include in any contract for construction author- ized by this act provision for the equipment, or any part thereof, of such railroad or railroads, but may make a separate contract or con- tracts for the whole or any part of such equipment with the construct- ing contractor or contractors or any other responsible persons, firms or corporations. Amended by L. 1909, ch. 472. Equipment and operation. § 34-a. The board of rapid transit railroad commissioners shall, subject to the approval of the board of estimate and apportionment, or other analogous local authority of such city, have full power and authority to provide for the maintenance, supervision, care and oper- ation of the railroad or railroads, including the aforesaid galleries, ways, subways and tunnels for subsurface structures and all other appurtenances, constructed or to be constructed for and at the expense of such city pursuant to the provisions of this chapter, and may, with like approval, enter into a contract with any person, firm or corpo- ration, who or which in the opinion of said board of rapid transit railroad commissioners shall be best qualified to fulfill and carry out said contract, for the equipment, or any part thereof not provided for pursuant to the next preceding section of this act, of such road or roads, at his or its own cost and expense, and for the maintenance and 481 Rarip Transit Act. operation of such road or roads for a term of years to be specified in said contract and not to exceed twenty years. Hvery such contract shall contain such terms and conditions as to the rates or fare to be charged and the character of services to be furnished and otherwise as said board of rapid transit railroad commissioners shall deem to be best suited to the public interests, and subject to such public super- vision and to such conditions, regulations and requirements as may be determined upon by said board, with like approval; provided, that in case different parts of a road shall be constructed at different times or at intervals of time, or if the contract shall provide for the use by the contractor of an existing railroad as part of a continuous route as aforesaid, then and in any such case the board of rapid transit rail- road commissioners may, in its discretion, prescribe periods for the operation of the different parts of said road so that at one period of time in the future the board may be enabled to make a single operat- ing contract or lease of the entire road. Every such contract shall further provide that the person, firm or corporation so contracting to equip, maintain and operate said road shall annually pay into the treasury of said city, as rental for the use of said road, a sum which shall not, except as hereinafter provided, be less than the annual inter- est upon the bonds to be issued by said city for the construction and equipment of said road as hereinafter provided for, and in addition to said interest, a further sum which shall be equal to a percentage of not less than one per centum upon the whole amount of said bonds; provided, that in estimating such annual interest and additional per- centage there shall be deducted from the amount of said bonds the amount thereof issued to pay for rights, terms, easements, privileges or property other than lands acquired in fee, and also the amount thereof issued to pay for the construction of galleries, ways, subways and tunnels for subsurface structures. And provided, further, that the said contract may, in the discretion of the said board, provide that the payment of the said further sum of not less than one per centum upon the amount of said bonds as aforesaid, shall begin at a date not more than five years after the date at which the payment of rental shall begin, and that the said annual rate, instead of one per centum, may be a rate not less than one-half per centum for a further period not exceeding five years; but in case the contractor shall, during any year in which the said payment of one per centum shall be suspended or reduced as aforesaid, earn a greater profit upon his, its or their net capital invested in the enterprise than five per centum, then the surplus of his, its or their earnings for such year up to the extent of at least one per centum shall be paid as rental as aforesaid. Such rental and the term for the operation of the railroad included in any such contract shall begin, as to said road, of any section thereof, when the same shall be declared by the board of rapid transit railroad com- missioners to be completed and ready for operation. For the purpose 482 Rapip Transrr Act. of estimating such ofe pet centwm per annum ‘wpon the ascertainment of the aimount of such rental, there shall be included such portion of the said bonds as shall have been issued to pay interest on bonds theretofore issued wnder the provisions of this act, except bonds issued to pay for rights, terms, easements, privileges or property ‘other than lands acquired im fee. The aforesaid annual rental shall be paid at such times daring each year as said board shall require, and shall be applied first to the payment of the interest on said bonds, as the same slvall accrue and fall due, and the remainder of said remtal mot Te- quired for the payment of said interest shall be paid into the sinking fund, for the payment of the city debt, if there shall be such sinking fund in said city, or, if there be none such, then said balance of said rental shall be securely invested, amd, with the amnual accretions of interest thereon, shall constitute a sinking fund for the payment and redemption at matority of the bonds issued, as hereinafter provided. Any sach contract may also provide for a tenewal or renewals not to exceed twenty years in the apgregate of ithe deast of said road upon the expiration of the original term wpon such terms and conditions, to be approved by the board of estimate and apportionment, or other analogous local authority of such city, as to said board of rapid tran- sit railroad commissioners may seem just and proper, and may also contain provisions for the valuation of the whole or a part of the prop- erty of said contracting person, firm or corporation, employed in and about the equipment, maintenance and operation of said toad, and for the purchase of the same by the city, at ‘such valuation, or a per centage of the same, should said lease not be so renewed at any time. Such contract shail also state the date on which the operation of the road, or of any section thereof, shall commence. The city in and for which said road shall be constructed shall also have a ‘first lien wpon the rolling stock and other property of said contracting person, firm or corporation, constituting the equipment of said road and used or in- tended for use in the maintemance and operation of the same, as further security for the faithful performance by such contracting person, firm or corporation of the covenant, conditions and agree ments of said contract, on his, their, or its part to be fulfilled and performed, and in case of the breach of any such covenant, condition and agreement said lien shall be subject to foreclosure by action, at the suit of such city, in the same manner, aa far as may be, ws is then provided by law in the case of foreclosure by action of mortgages on real estate. The said board of rapid transit railroad commissioners may, however, from time to time, by a concurrent vote of six of the members of said board, relieve from such lien, any of the property to which the same may attach, upon receiving additional security, which may be deemed by said board so voting to be the equivalent of that which it is proposed to release and otherwise upon such térms as to such board go voting shall seem just. The said contract shall further 483 Rapip Transit Act. provide that in case of default in paying the annual sum or rental therein provided for, or in case of the failure or neglect on the part of said contracting person, firm or corporation, faithfully to observe, keep and fulfill the conditions, obligations and requirements of said contract, the said city, by its board of rapid transit railroad commis- sioners, may take possession of said road and the equipment thereof, and as the agent of said contracting person, firm or corporation, either maintain and operate said road, or enter into a contract with some other person, firm or corporation for the maintenance and operation thereof, retaining out of the proceeds of such operation, after the pay- ment of the necessary expenses of operation and maintenance, the annual rental hereinbefore referred to, and paying over the balance, - if any, to the person, firm or corporation with whom the first contract above mentioned was made, and if such proceeds of the operation of said road, after the payment of the necessary expenses of maintenance and operation, including the keeping in repairs of the rolling stock and other equipment, shall in any year be less than the annual rental hereinbefore referred to and provided in the first contract, then and in that case, the said contracting person, firm or corporation, and his or its bondsmen, shall be and continue (but in the case of any bond hereafter executed each bondsman only to the extent of the liability expressly assumed by him upon the bond) jointly and severally liable to the aforesaid city for the amount of such deficiency, until the end of the full term for which the said first contract was originally made. Any existing railway corporation owning or actually operating a rail- way wholly or in part within the limits of the city in and for which said board has power to act, and approved by the said board of rapid transit railroad commisisoners, shall be competent and is hereby au- thorized to enter into any contract for the equipment, maintenance and operation of any railway pursuant to the provisions of this chap- ter, or, after such a contract shall have been made, shall be competent and is hereby authorized, with the approval of the said board, to con- tract with the original contractor or his assignee or assignees for the maintenance and operation (including the equipment or any part thereof) of any railway constructed or in process of construction pur- suant to the provisions of this chapter, and shall have all the powers necessary to the due performance of such contract. A corporation may be organized under the railroad law of this state, for the pur- pose of maintaining and operating a railway (including the equip- ment or any part thereof) already constructed or in process of con- struction pursuant to the provisions of this chapter; and any corpo- ration so organized, upon the approval in writing of the said board of rapid transit railroad commissioners, shall, in addition to the powers conferred by the general act under which such corporation is organ- ized, be empowered, and is hereby authorized to enter into any con- tract permitted by law for the maintenance and operation when con- 484 Rapip Transit Act. structed (including the equipment or any part thereof if desired), as the case may be, of any such railway constructed or to be con- structed at the expense of the city as in this act provided. The certifi- cate of such approval shall be filed in the office of the secretary of state, and a copy thereof certified to be a true copy by the secretary of state or his deputy, shall be evidence of the fact therein stated. A corporation so organized shall not be required to procure the consent of the board of railroad commissioners of the state as provided for in section fifty-nine of the railroad law. Where in this section or in section thirty-four of this act the consents referred to in section five of this act are mentioned, they shall be construed to include any con- sent given by the commissioners appointed by the general term or appellate division of the supreme court, and confirmed by the said general term or appellate division in lieu of the consent of property owners as hereinbefore provided. Amended by L. 1909, ch. 472. Equipment and operation. § 34-b. If in the opinion of the board of estimate and appor- tionment, or other analogous local authority of such city, a con- tract for the equipment, maintenance and operation as provided for in the preceding section shall be inexpedient, impracticable or prejudicial to the public interest, the board of rapid transit rail- road commissioners may, with the approval of the board of estimate and apportionment, or such other analogous authority, equip the said road or roads in whole or in part, for and at the public ex- pense, by contract or contracts therefor subject to the provisions of section thirty-six of this act, and enter into a contract with any person, firm or corporation, who or which, in the opinion of said board or rapid transit railroad commissioners, shall be best qualified to fulfill and carry out said contract, for the maintenance and opera- tion of such road or roads for a term of years to be specified in said contract, and not to exceed ten years. The provisions of the fore- going sections in respect of a contract or contracts for the equip- ment, maintenance and operation of such road or roads shall apply to such contract for maintenance and operation so far as such pro- visions are pertinent and applicable thereto except that the annual rental to be paid into the city treasury for the use of said road or roads shall be based upon the total amount of bonds issued by said city for the construction and equipment, instead of for the con- struction alone, of said road or roads as hereinafter provided for and that the renewal or renewal of said contract provided for therein shall not exceed in the aggregate ten years. Amended by L. 1909, ch. 472. 485 Rapip Transit Acz. Liahility of contzaqtor;, bond of contractors assigument ef contract. road or : onda shall provide by proper stipulations and, covenants on the part of the said city, that the said city shall secure and assure to the contractor, so long as the contractor shalb perform the stipula- tions of the contract, the right to construct or to operate the road as prescribed in the contract, free of all right, claim or other inter- ference, whether by injunction, suit for damages or otherwise, on the part of the owner, abutting owner, or other person. The person, firm or corporation, bidding or contracting for the construction, equipment, maintenance, or operation of the railroad or railroads m- eluded in any such contract shall make such deposit of cash or securities and shall give a bond to said city, in such amount as said board of rapid transit railroad commissioners shall require, and with sureties to be approved by said board, who shall justify each in double the amount of his liability upon said bond. Said bond shal] be a continuing security, and shall provide for the prompt payment by said contracting person, firm or corporation, of the amount, of annual rental, if any, specified in the aforesaid contract, and alsa for the faithful performance by said contracting person, firm or cor- poration of all the conditions, covenants and requirements, specified and provided for in said contract. In lew of said continuing bond such contracting person, firm or e¢orporation may, upon the ap- proval of the said board, deposit with the comptroller or other chief financial officer of such city cash equal in amount to the entire amount of the said bond or securities which are lawful for the invest- ment of the funds of savings banks within this state and are worth not. less than the entire amount of such bond. If such bond shalt have been given then after the deposit of cash and securities in lieu thereof as aforesaid, and the approval thereof by the said board, the said bond shall be surrendered by the said city to the said contract- ing person, firm or corporation duly canceled by the comptroller or other chief financial officer of the said city. In the event of the deposit of cash or securities as aforesaid, the contract may provide for the payment to the contractor of the income of such securities or of jnterest upon such moneys at a rate not higher than the highest tate received by the city upon the deposit of its funds with banks, and may also proyide for withdrawal of securities so deposited upon deposit of cash or securities of the same value, provided that all such securities shall be such ag are so lawful for the investment of the funds of savings banks. The said board may in or by any such con- tract and in its discretion require, and this act, a8 the same was 486 Rarip Tranair Act. prior to the present amendment thereof shall he deemed to have au- thorized the said board to have heretofore required any other security upon any such contract. No contract entered into under authority of this act shall be assigned without. the written consent of the said board of rapid transit railroad commissioners, concurred in by six members of said board. The said contracting person, firm or corpo- ration, with sueh written consent and upon such terms and condi- tions as the said hoard shall prescribe, may either assign the whole of such contract or separately the right or obligation to maintain and operate the said road or roads for the remainder of the term of years specified in such contract and all rights with respect to. such maintenance and operation, or included in the leasing provisions of such contract, but subject to all the terms and conditions therein stated; provided, however, that the assignee or assignees shall, in and by such assignment, assume all of the obligations of the original contractor under or with respect to such leasing provisions and all obligations which relate in any way to such operation and mainte- nance, apd provide, further, that the said board before giving its consent shall he satisfied that the pecuniary responsibility of the as- signee or assignees shall be no less than that of such original con- tractor; and provide, further, that all of the security or securities which the city shall have received for the performance by the origi- nal contractor of such leasing provisions and of all provisigns of the contract. with respect to such operation and maintenance shall con- tinue in full force as provided in such contract, or any modification thereof, as security fer the performance by such assignee of all obli- gations of the contractor under or with respect. to such leasing pro- visions and such maintenance or operation. It shall be deemed to be part of every such contract that, in case the board of rapid transit railroad commissioners shall cease to exist, the legislature may pro- vide what public officer or officers of the city shall exercise the powers and duties belonging to the board of rapid transit, railroad commis- sioners under or by virtue of any such contract, and that in default ef such provision, such powers and duties shall be deemed to be vested in the mayor of the city. Every such contract shall provide that if the contracting person, firm or corporation shall fail to con- struct, equip, maintain or operate the railway according to the terms of the contract, and shall, after due notice of its default, omit for more than a reasonable time to comply with the provisions of such con. tract, the board of rapid transit railroad commissioners may bring an, action in the name and in behalf of the city to forfeit and vacate all the rights of such contracting person, firm or corporation under 487 Rarip Transit Act. such contract, and for damages and otherwise as may be necessary for the sufficient and just protection of the rights of the city; or may, upon such terms as to the board of rapid transit railroad commis- sioners seem just, and with such person or corporation as to the said board may seen proper, make another operating contract and lease of the said road for the residue of the term of the contractor in de- fault; and may bring action in the name and on behalf of the city to recover from the contractor the amount due from the contractor, less the amount which shall have been received by the city, under or by virtue of such new contract, and for all other damages sustained by the city by reason of such default. Amended by L. 1909, ch. 472. e Operation by city; rate of fare; no advertisements allowed, etc. § 34-d. If in the opinion of the board of estimate and apportion- ment, or other analogous local authority of such city, either a con- tract for equipment, maintenance and operation, or a contract for maintenance and operation as provided for in the preceding sections would be inexpedient, impracticable or prejudicial to the public in- terest, the board of rapid transit railroad commissioners shall forth- with devise and prepare a plan for the maintenance and operation of such road or roads, and when said plan shall have been approved by the board of estimate and apportionment, or other analogous local authority of such city, the said board of rapid transit rail- road commissioners shall maintain and operate such road or roads for and on behalf of said city. The rates of fare provided for in any operating contract or plan aforesaid shall be adjusted, fixed and re- adjusted always with a view to securing sufficient receipts there- from, when added to the net revenues from such galleries, ways, subways or tunnels, and all other sources incidental or appurte- nant to the use and operation of said road or roads, to provide for operating expenses, maintenance, interest on the cost, all other proper charges, and a sinking fund to discharge the bonds issued for the construction and equipment of such road or roads within a rea- sonable period, without recourse to taxation. Whenever it shall seem practicable to reduce rates of fare, the reduction shall in the first instance be in favor of school children, and then, next in order, in favor of all the public between six and nine o’clock ante meridian, and between four and seven o’clock post meridian, and then for all the public from five o’clock ante meridian until seven o’clock post meridian, and, lastly, for all the public at all times. No part of any road or roads or of its or their appurtenances, constructed under the authority of this act, shall be used for advertising purposes, except 488 Rapip Transit Act. that the person, firm or corporation operating such road or roads may use the structure for posting necessary information for the pub- lic relative to the running of trains and to the operation of. the road or roads. Nor shall any trade, traffic or occupation, other than re- quired for the operation of said road or roads, be permitted thereon or in the stations thereof, except such sale of newspapers and period- icals as may, from time to time, always with the right of revoca- tion, be permitted by the board of rapid transit railroad commis- sioners. Amended by L. 1909, ch. 472. Discretion as to contracts. § 34-e. Nothing contained in this act shall be deemed, or be con- strued as intending, to limit, or as limiting, in any manner, the dis- cretion of the board of rapid transit railroad commissioners, pro- vided in the opinion of the board of estimate and apportionment, or other analogous local authority of such city, it is expedient, practica- ble and in the public interest to do so, to enter into contracts for construction, equipment, maintenance and operation with the same person, firm or corporation, or for any one or more of said purposes with the same person, firm or corporation, or with different persons, firms or corporations, either in one contract or in separate contracts, and at any time or times. Equipment; power houses. § 35. The equipment to be supplied by the person, firm or corpo- ration contracting for the equipment or any part thereof, of any such road shall include all such rolling stock, motors, boilers, engines, wires, ways, conduits and mechanisms, machinery, tools, implements and devices of every nature whatsoever used for the generation or transmission of motive power and including all power houses, and all apparatus and all devices for signaling and ventilation as may Ve required for the operation of such road and specified in a contract for such equipment. Amended by L. 1909, ch. 472. Advertising for proposals. § 36. The said board of rapid transit railroad commissioners be- fore awarding any contract or contracts shall advertise for proposals for such contracts by a notice to be printed twice a week for three successive weeks in no less than four of the daily newspapers pub- lished in said city, and in such newspapers published elsewhere than in said city as said board shall determine. Such notice shall set forth and state the points within said city, between which said road 489 Rap. Transit Act, or roads is or are to run, the general method of conatructian, the route or routes to be followed, the term of years for which it is pra- posed to make such contract, and such other details and specifica- tions as said board shall deem to be proper, Said natice shall state the time and place at which said proposals will be opened, and the said board shall attend at the time and place sq specified, and shall publicly open, all proposals that shall have been received, but the said board shall not be bound to accept any proposals so received, but may reject all such proposals and readvertise for proposals in the man- ner hereinbefore provided, or may accept any of such proposals as will, in the judgment of such board, best promote the public interest, and award a contract accordingly. Amended by chap. 519, Laws of 1895, Issuance of hends by city; public hearing an preposed eentracta, § 3%. For the purpose of providing the necessary means for such construction, or equipment, or both, as the case may be, at the public expense, of any such road or roads, including galleries, ways, sub- ways and tunnels for subsurface structures, and the necessary means to pay for lands, property rights, terms, privileges and easement, whether of owners, abutting owners, or others, which shall be ac- quired by the city for the purposes of the construction or the operar tion of such road or roads as hereinafter provided, and of meeting the interest on the bonds in this section hereinafter provided for ac- cruing thereon prior to the completion and readiness for operation of the portion of such read or roads and the galleries, ways, subways and tunnels for subsurface structures, for the construction or equip- ment of which such bonds shall have been respectively issued, the board of estimate and apportionment, or other local authority in said city, in which such road or roads are to be constructed, having power to make appropriations of moneys to be raised by taxation therein, from time to time, and as the same shall be necessary, and upon the requisition of said board of rapid transit railroad commissioners, shall direct the comptroller, or other chief financial officer of said city, and it shall thereupon become his duty to issue the bonds of said city at such a rate of interest, not exceeding four per centum per annum, as said board of estimate and apportionment, or other local authority directing the issue of such bonds, may prescribe. Said bonds shall provide for the payment of the principal and in- terest in gold coin of the United States of America. They shall not be sold for less than the par value thereof, and the proceeds of the same shall be paid out and expended for the purposes for which the 490 Rapp Transit Act, same are issued, upen voughers certified by said board of rapid transit railroad commissioners. Said bonds shall be free from all taxation for gity and county purposes, and shall be payable at ma- turity out of the sinking fund for the payment of the city debt, if there be such a sinking fund of said city; hut if there be no such sink- ing fund, then out ef a sinking fund to be established and created out of the annua] rentals or revenues of said road including gal- leries, ways, subways or tunnels for subsurface structures, as here- inbefore provided. But this provision that the said bends shall be payable out of sueh sinking fund shall not diminish or affect the obligation of said city as a debter upon said bonds, or any other right or remedy of any helder or owner of any such bends, to collect the pripeipal or interest thereof. The amount of bonds authorized te be issued and sold by this section shall not exceed the limit of amount which shall be prescribed by the board of estimate and apportionment er such other logal authority having power to make appropriations for moneys to be raised by taxation; and no contract fer the construction ef such road or roads shall be made unless and upti] sueh board of estimate and apportionment or such other local authority shall have consented therete and have preseribed a limit to the amount of bonds available for the purposes of this section which shall be sufficient to meet the requirements of such contract in addition tq all obligations theretofore incurred and to he satisfied from such bonds, Amended by L. 1909, ch. 472. Modification of contracts and plans. $8 38. The board of rapid transit railroad commissioners for and on behalf of the said city in which such road er roads may be con- strueted, may, from time to time, with the concurrence of six mem- bers of said board and the consent, in writing, of the bondsmen or sureties of the person, firm or corporation which has eontracted to eonstruct, equip, maintain or operate said road or roads, or any of them, agree with the said contracting person, firm or corporation upon changes in and modifications of said contract, or of the plans and specifications upon which said road or roads is or are to be con- structed, but no ehange or modifications in the plans and specifica- tions consented to and authorized pursuant to section five of this act shall be made without the further consent and authorization pro- vided for in said section; but in no event shall the annual rental to be paid to said eity, for the use of said road, be reduced below the minimum rate hereinbefore provided. Amended by I. 1909, oh. 472. 490a Rapip Transit Act. Elevated railways in lieu of bridge approaches. § 38-a. The board of directors of any company incorporated for the purpose of constructing, maintaining or operating a bridge or bridges connecting a city of more than one million inhabitants with any other city in this state, and by the act of incorporation of which authority shall have been conferred or intended to be conferred, to construct, maintain or operate, as a part of or in connection with its bridge, an approach or approaches thereto extending generally in an easterly and westerly direction, may determine in lieu of con- structing such approach or approaches, to build, maintain and operate an elevated railway, the route of which shall be coincident with the route of such approach or approaches as defined in said act, and shall adopt a general plan for the construction thereof, and which shall show the general mode of operation, and contain such details as to manner of construction as may be necessary to show the extent to which any street, avenue, or other public place is to be en- croached upon and the property abutting thereon affected, a copy of which plan shall be transmitted to the common council of the city in which the same is to be located. Such proceedings shall thereupon be had by such common council as are provided by section five of this act, as though such plans had been transmitted by the rapid transit commissioners as contemplated in said section. Provided, that where in any such city the exclusive control of any. street, route, highway or avenue, which is to be occupied by any railway or rail- ways constructed under the provisions of this section is by law vested in any local authority other than the common council of such city, the approval of the aforesaid plans, and consent to the construction of a railway thereunder shall be given by such local authority in place of, and if required in‘addition to such approval and consent by such common council, and with like effect. Upon obtaining the approval and consent of the local authorities as in said section pro- vided, the said board of directors shall take the necessary steps to obtain, if possible, the consent of the property owners along the line of the said route or routes, and all proceedings in respect of such consents or when such consents cannot be obtained shall be similar in all respects to the proceedings in said section provided. Any con- sent of the local authorities to construct or operate such railway shall be given only upon the condition that the rate of fare upon such elevated railway shall not exceed five cents for each passenger, and that payment of such fare shall entitle each passenger to or from said elevated railroad to free transit across the bridge or bridges with which it is intended to connect the same. When the consents 490b Rapip Transit Act. of the local authorities and the property owners, or in lieu thereof, the authorization of the supreme court upon the report of the com- missioners shall have been obtained, and the said company shall have accepted such condition it shall have all the powers of corporations formed under this act, it shall be authorized to build, construct, maintain and operate such elevated railway or railways, but all pro- visions of this act, or of any act requiring the sale of the right, privilege and franchise of constructing, maintaining and operating such railway or railways, or requiring a corporation or corporations to be organized for the purpose of acquiring such right, privilege and franchise, and all other provisions of this act or of any act in- consistent with this section, are hereby declared inapplicable to such elevated railway and to such company. ‘The entire route of any elevated railway constructed under the provisions of this section shall not exceed three miles in length, nor shall any part of said rail- way except at the termini thereof be less than sixteen feet above any street, avenue or public place, or less than fourteen feet above any existing elevated railway which may be crossed, intervened or in- tersected thereby. The said railway may be located and constructed so as to cross any intersecting street, avenue, highway or place other- wise exempted, except that no public park shall be occupied or crossed thereby, the structure of such elevated railway shall be liable to taxation as provided by law for similar structures. Amended by changing the number of the section from 38 to 38a, by chap. 519, Laws of 1895. Acquisition of property. § 39. For the purpose of constructing or operating any road for the construction or operation of which a contract shall have been made by the board of rapid transit railroad commissioners, includ- ing necessary stations and station approaches, or for the purpose of operating or securing the operation of the same free of interference and right of interference and of action and right of action for dam- ages and otherwise, whether by abutting owners or others, or to pro- vide, lay or maintain conduits, pipes, ways or other means for the transmission of electricity, steam, water, air or other source or means of power or of signals or of messages necessary or convenient for or in the construction or operation of such road, or for the trans- portation of materials necessary for such construction or operation, or to provide a temporary or permanent way or course for any such conduit, pipe or other means or source of transportation, said board for and in behalf of said city may acquire, by conveyance or grant. to said city to be delivered to the said board and to contain such 490e Rarip Transit Act. terms, conditions, provisos ard limitations ag the said board shall deeti proper, ot by conderination or other legal or other proceedings, as ih this act provided, any real estate and any rights, terms and interést thereii, any and all rights, privileges, franchises and ease- ments, whether of owtiers or abutters, or others to interfére with the coistttiction or opefation of stich road or to feéovet daitiages there- fot; which, in the opmien of the board, it shall be necessary to ée+ quiré ot extinguish for the purpose of constructizig aiid operating stich road frée df initerferente or right of ititerference. The word property heteinafter used shall be deethed to include any sch real estate, and ahy rights, tetms atid ititetest thereit, arid any stich tights, privileges, franchises and easements, whether of owners, abut- ting owners, or others. Whéte any contractor for the construction of operation of any such railtoad shall require any arepenty for sach cbtistruction ahd operatic, such ptoperty shall be déetired to be re- gtlired fot 4 public purpose; and with the approval of the said boatd ‘of tapid tranit railroad cuttitissioners the satite may bée acquired by thé said eotitiacter in all respects as such property may be acquired by the said board of rapid transit railroad commissioners for the said city; and all proceediti#s to acquife the said property shall be éondwéted under the direction arid subject to the approval of the fapid transit railroad commissioners: It shall be the duty of the board whenever atiy property which the city shall have acquired as provided in this act shall be unnecessary fot rapid transit purposes, to sell and convey the same in behalf of said city, provided, however, that no such sale or conveyance shall be made extept with the ap- proval of the éomthissiotierg of the sinking fund of such city or, if there be no commissioners of the sinking fund than the other board oF public budy thereof having powet to sell ot lease city property and provided further that the proceéds of any such sale or conveyance shall, wndef the direction of the said board of rapid transit railroad commissioners, be applied either to thé purchase of other property necessary for rdpid transit purposes or shall be applied in all respects as the payment of rental to be made by the contractor as provided in this act. Whenever the said rapid transit railroad commissioners for and in behalf of the city shall have acquired or shall hereafter acquire an easement in property by conveyance or grant for the pure pose of the operation or construction of a rapid transit railroad, it may in behalf of the city and as part consideration for the grant or conveyance of the easement, enter inte an agreement with the grantor of such easement or right of way, giving te such grantor or his assigns, the right of lateral or other support through, in, or under 490d Ravip Transrr Act. the said property, or any adjoining lands or space occupied by said rapid transit railroad for any building erected or to be erected upon the land over which the easement or right of way hag been obtained for the support and maintenance of any such building or buildings, provided that any structure that shall be built for the support of any such building or buildings shall be approved by said board and shall not extend in or under any street beyond the curb lines ag fixed by the ordinances of the board of aldermen or other legislative body of such city. Amended by L. 1909, ch. 472. Entry upon lands. § 40. It shall and may be lawful for said board, and for all per- sons acting under its authority, to enter in the daytime into and upon any and all lands and property which it shall deem neces- sary to be acquired, or to which there may be appurtenant rights, terms, franchises, easements or privileges which it shall deem neces- sary to be acquired or extinguished by said city, for the purpose of making the maps or surveys hereinafter mentioned, and also to enter in like manner and for the same purpose upon any property adjacent to and within five hundred feet of the property to be so surveyed; and the said board shall cause three similar maps or plans to be made of each parcel of property which it may deem necessary so to be ac- quired, or to which there may be appurtenant rights, terms, fran- chises, easements or privileges necessary so to be acquired or ex- tinguished, designating each of said parcels by a number, and upon each map or plan so made or in a memorandum accompanying the same and to be deerned part thereof the said board shall cause to be clearly indicated the particular estate or estates, rights, terms, privi- leges, franchises or easements to be acquired or extinguished for the purposes of this act, in relation to each and every piece or parcel of property described tpon said map or plan. The said board shall have power to cause a triplicate set of maps or plans atid memoranda as herein provided for to be made as often and at such times as said board shall determine, and each set of maps or plans and memoranda so made shall contain the particulars above enumerated within such district as said board shall in each case provide. The maps of plans and memoranda herein provided for, when approved and adopted by said board, shall have written thereon a certificate of such approval, signed by the members of said board adopting and apptoving the same, and one copy thereof shall be filed in the department of public works, or other chief exetutive department having principal charge of the streets, thete to remdin as a publie tetord, and the other two 4900 Rarmw Transit Act. of said maps or plans and memoranda shall be transmitted to the counsel to the corporation or other principal legal adviser of said city. The said board may from time to time make and file further maps or plans and memoranda amending those already filed, but not so as to defeat or impair any property or interest which shall have been already acquired, or to revive any interest or right which may have been already extinguished by the said city. Amended by chap. 519, Laws of 1895. Proceedings to acquire property. § 41. Whenever and as often as the said board shall deem it to be necessary and proper that the said city should acquire any such prop- erty and shall have caused to be made, as provided in the last pre- ceding sections, the maps or plans and memoranda specifying and defining the said property to be acquired, or to which are appurtenant the rights, terms, franchises, easements or privileges to be acquired or extinguished, and shall have certified, filed and transmitted the several copies of such maps or plans as in the last section prescribed, the said board may direct the counsel to the corporation or other principal legal adviser of said city, to take legal proceedings to ac- quire the same for the said city, and the said counsel to the corpo- ration,, or other principal legal adviser, shall thereupon take proceedings as in this act provided. Amended by chap. 519, Laws of 1895. Filing of maps. § 42. The said counsel to the corporation, or other principal legal adviser of said city, shall cause one of the maps or plans, 30 as afore- said transmitted to him, to be filed in the office of the register of the county, or if there be no such register, then in the office of the county clerk of the county in which said city is situated. The map, here- inafter denominated the third map, being the other one of the two so as aforesaid transmitted to said counsel to the corporation, or other legal adviser, shall be disposed of as hereinafter provided. Added by chap. 752, Laws of 1894. Commissioners of appraisal. § 43. After the said set shall have been filed as hereinbefore pro- vided in the office of the register or county clerk of said county, the said counsel to the corporation, or other principal legal adviser, for and on behalf of the said city, shall, and he may from time to time, upon first giving the notice required by the next section of this act, apply to the supreme court at any special or general term thereof, to be held in the judicial district in which said city is situated, for 490f Rarip Transit Aor. the appointment of commissioners of appraisal. Ulpon each such application he shall present to the court a petition, signed by a majority of the members of said board and verified in the manner prescribed by law for the verification of pleadings, according to the practice of said court, setting forth the action or determination there- tofore taken or had by said board, with respect to the property to be acquired, and the filing of said maps or plans and memoranda and praying for the appointment of such commissioners of appraisal. Such petition shall contain a general description of all the property to, or in or over or appurtenant to which any title, interest, right, franchise, easement, term or privilege is sought to be acquired or ex- tinguished, and of every right, franchise, easement, or privilege sought to be acquired, by the said city for public purposes, each lot or parcel being more particularly described by a reference to the number of said lot or parcel as given on said maps, and the title, in- terest, right, easement, term or privilege sought to be acquired, or extinguished, to or in or over or appurtenant to each of said lots or parcels shall be stated in said petition. Amended by chap. 519, Laws of 1895. Petition for application for appointment of commissioners of appraisal § 44. The said counsel to the corporation, or other principal legal adviser, shall give or cause to be given notice by publication in two public newspapers published in the said city, or, instead of such pub- lication, may in his discretion cause service of the petition and notice of his intention to make application to the said court for the ap- pointment of such commissioners of appraisal, to be made in the same manner prescribed by section three thousand three hundred and sixty-two of the code of civil procedure, as amended by chapter ninety- five of the laws of eighteen hundred and ninety, such notice if pub- lished as aforesaid shall state the time and place of such application, shall briefly state the object of the application, and shall briefly describe the property sought to be acquired or affected, and refer to a fuller statement to be filed in the office of the board of rapid transit railroad commissioners, in which shall be set forth the loca- tion and boundaries of the several lots or parcels of property, and rights, franchises, easements or privileges sought to be taken or affected, and a brief statement as to each of said lots or parcels, of the title, interests, rights, easements, terms or privileges therein or appurtenant thereto sought to be acquired or extinguished, with a reference to the dates and places of filing the said maps or plans and memoranda shall be a sufficient description of the property sought to : 490g Rapviw Transit Act. be so taken or affected. Such notice in case of publication as afore- said shall be so published, in said newspapers twice a week for six weeks immediately previous to the time fixed in said notice for the presentation of each petition. Amended by chap. 533, Laws of 1902. Order for appointment of commissioners. § 45. At the time and place mentioned in said notice, unless the said court shall adjourn said application to a subsequent date, and in that event at the time to which the same may be adjourned, the court, upon due proof to its satisfaction of the publication aforesaid, and upon filing the said petition, shall make an order for the ap- pointment of three disinterested freeholders, residents in said city, as commissioners of appraisals, to ascertain and appraise the com- pensation to be made to the owners of property so to be taken or ex- tinguished for the purposes indicated in this act. Such order shall fix the time and place for the first meeting of the commissioners. Added by chap. 752, Laws of 1894. Oath of commissioners. § 46. The said commissioners shall take and subscribe the oath required by the twelfth article of the constitution of the state of New York, and shall forthwith file the same in the office of the clerk of the county in which said city is situated. Added by chap. 752, Laws of 1894. City seized im fee of land upon filing oaths. § 47. On filing said oath in the manner provided in the last sec- tion, the said city shall be and become seized and possessed in fee or absolute ownership of all those parcels of property, rights, terms, franchises, easements and privileges which are in the maps or plans and memoranda referred to in section forty of this act, described as parcels of property, rights, franchises, easements, or privileges which are to be acquired, and also shall become seized and possessed of all the rights, terms, franchises, easements or privileges appurtenant to any lots or parcels of property indicated on said maps or plans as parcels in regard to which it is deemed necessary to acquire such rights, terms, franchises, easements or privileges, or the said rights, terms, franchises, easements or privileges shall be extinguished as the case may be; and the said board for the said city, may imme- diately or at any time or times thereafter take possession or enter into the enjoyment of the said property, rights, terms, franchises, easements and privileges or of any part or parts thereof without any 490h Rapip Transit Act. suit or proceeding at law for that purpose and the said board for the said city, or any person or persons acting under their or its authority, may enter upon and use, occupy, and enjoy in perpetuity all the parcels of property and all the rights, terms, franchises, easements or privileges appurtenant to any of the parcels of property and all rights, franchises, easements, and privileges, described on said maps or plans or in said memoranda, for any of the purposes authorized and provided for by this act. But on such filing of the said oath the said city shall be and become forthwith liable to the respective owners of the several parcels of property and the several rights, terms, franchises, easements and privileges appertaining thereto, and of the said rights, franchises, easements, and privileges acquired as aforesaid, for the true and respective values thereof, together with interest thereupon from the time of filing the said oath, provided, however, that no such interest shall be payable to any owner of any such property, right, term, franchise, easement or privilege during any period during whieh the said city or the said board of rapid transit railroad commissioners may by any reslatance, whether by legal proceedings or otherwise of such owner er with his authority, be prevented from taking possession thereof or enjoying the same; and provided further, that no action shall be brought to recover the amount of such value or interest unless within eighteen months after the filing of such oath, a report shall not have been duly made by commissioners of appraisal as herein provided, or suclt report shall not have been confirmed by the supreme court as herein provided, so that the said city shall be liable to forthwith pay the amount by such report ascertained ta be due for such value or interest. Amended by chap. 519, Laws of 1895. Powers of commissioners. § 48. Any one of said commissioners of appraisal may issue sub- poenas and administer oaths to witnesses, and they or any one of them, in the absence of the others, may adjourn the proceedings, from time to time in their discretion, but they shal] continue to meet from time to time as may he necessary to hear, consider and determine upon all claims which may be presented to them under any of the provisions of this act. In case of the death, resignation, refusal or neglect to serve of any commissioner of appraisal, the remaining commissioner or commissioners shall, upon ten days” notice, to be given by advertisement in the newspapers mentioned in section forty- four of this act, apply to the supreme court, at a special or general term thereof, to be held in the judicial district in which said city ix situated, for the appointment of a commissioner or commissioners 490i Rapip Transir Act. to fill the vacancy or vacancies so occasioned. In case of the death, resignation or refusal to serve of all the commissioners of appraisal, the said counsel to the corporation or other principal legal adviser to said city shall, on giving the notice required in this section, apply to the said court for the appointment of other commissioners of ap- praisal. It shall be the duty of the commissioners of appraisal to procure from the counsel to the corporation or other principal legal adviser the third set of maps or plans and memoranda provided for in sections forty and forty-two of this act. They shall view the prop- erty laid down on said map, and shall hear the proofs and allega- tions of any owner, lessee or other person in.any way entitled to or interested in the property to be acquired or extinguished, or any part or parcel thereof, and also such proofs and allegations as may be offered on behalf of the said city. They shall reduce the testi- mony, if any, taken before them to writing, and after the testimony is closed, they, or a majority of them, all having considered the same, and having an opportunity to be present, shall, without unnecessary delay, ascertain and determine the compensation which ought justly to be made by the said city to the owners or persons interested in the property acquired or extinguished by said proceedings. The said commissioners of appraisal shall make reports of their proceedings to the supreme court, as in the next section provided with the min- utes of the testimony taken before them, if any, and they shall be entitled to the payment hereinafter provided for their services and expenses, to be paid from the fund hereinafter specified. The said commissioners may make a single report or may make reports from time to time as they shall reach their several decisions as to different parcels of property. Amended by chap. 519, Laws of 1895. Report of commissioners. § 49. The said commissioners shall prepare a report or reports, to which shall be annexed the third set of maps or plans and memoranda referred to in section forty-two of this act and therein denominated the third set or a copy thereof certified by them. Each said report shall contain a brief description of the property so taken or affected, with a reference to the map upon which the same is required to be indicated; a statement of the sums estimated and determined upon by them, as a just compensation for the same to be made by the city to the owners or persons interested therein and the names of such owners and persons; but in all and each and every case or cases where one or more of the owners and persons interested, or their re- 490j Raprip Transit Aor. spective estates or interests, are unknown, or not fully known, to the commissioners of appraisal, it'shall be sufficient for them to set forth and state in general terms the respective sums to be allowed and paid to the owners of and persons interested therein, generally, without specifying the names or estates or interests of such owners or persons interested, or any or either of them. Amended by chap. 519, Laws of 1895. Filing of reports. § 50. Hach said report, signed by said commissioners, or a ma- jority of them, shall be filed in the office of the clerk of the county in which said city is situated, and the commissioners of appraisal shall, in each case, notify the counsel to the corporation, or other principal adviser to said city, as soon as any such report is filed. Amended by chap. 519, Laws of 1895. Notice of presentation of report to court. § 51. The counsel to the corporation, or other principal legal ad- viser, or, in case of his neglect to do so within ten days after receiv- ing notice of such filing, then any person interested in the proceedings, shall give notice that the said report will be presented for confirmation to the supreme court, as a special term thereof, to be held in the judicial district in which said city is situated, at a time and place to be specified in said notice. The said notice shall contain a statement of the time and place of the filing of the report, and shall be published in two daily newspapers published in such city, for at least two weeks immediately prior to the presentation of said report for confirmation. Amended by chap. 519, Laws of 1895. Confirmation of report. § 52. The application for the confirmation of each such report shall be made to the supreme court at a special term thereof, held in the judicial district in which said city is situated. Upon the hear- ing of the application for the confirmation thereof, the said court shall confirm such report and make an order containing a recital of the substance of the proceedings in the matter of the appraisal, with a general description of the property appraise* ~md for which com- pensation is to be made, and shall also diré." «« wnom the money is to be paid, and whether or not any part thereof, and, if so, what part, is to be deposited with the comptroller or other chief financial officer of said city with the chamberlain of said city, or if there be no chamberlain, with a bank or trust company to be designated by said court. Such report when so confirmed shall, except in the case 490k Rarip Transit Aor. of an appeal, as hereinafter provided, be final and conclusive, as well upon the said city as upon owners and all persons interested in or entitled to said property, and also upon all other persons whomso- ever. Amended by chap. 519, Laws of 1895. Payment of awards, § 53. The said city shall, within four calendar months after the confirmation of any report of the commissioners of appraisal, pay to the respective owners and bodies politic or corporate mentioned or referred to in said report, in whose favor any sum or sums of money shall be estimated and reported by said commissioners, the respective sum or sums s0 estimated and reported in their favor respectively, with legal interest thereon from the date of filing the oath of said commissioners, and in case of neglect or default in the payment of the same within the time aforesaid, the respective person or persons or bodies politic or corporate, in whose favor the same shall be so reported, his, her or their executors, administrators, successors or assigns at any time or times after application first made by him, her or them, to the comptroller or other chief financial officer of said city for payment thereof, may sue for and recover the same, with lawful interest as aforesaid, and the costs of suit, in any proper form of action against the said city in any court having cognizance thereof, and in which it shall be sufficient to declare generally for so much money due to the plaintiff or plaintiffs therein by virtue of this act for property taken or extinguished for the purposes herein mentioned, and the report of said commissioners, with proof of the right and title of the plaintiff or plaintiffs to the sum or sums de- manded shall be conclusive evidence in such suit or action. Amended by chap. 519, Laws of 1895. Payment of awards to bank. § 54. Whenever the owner or owners, person or persons inter- ested in any property taken or affected in such proceeding, or in whose favor any such sum or sums or compensation shall be so re- ported, shall be under the age of twenty-one years, or of unsound mind or absent from the city, and also in all cases where the name or names of the owner or owners, person or persons, interested in any such property shall not be set forth or mentioned in said re- port, or where the said owner or owners, person or persons, being named therein, cannot, upon diligent inquiry, be found, or where there are adverse or conflicting claims to the money awarded as com- pensation, it shall be lawful for the said city to pay the sum or sums 4901 Rapip Transit Act, mentioned in said report, payable, or that would be coming to such owner or owners, person or persons, respectively, with interest, as aforesaid, to the chamberlain of said city, or, if there be no cham- berlain, then to any bank or trust company designated by the court in the order confirming the report of the commissioners of ap- praisal, to the credit of such owner or owners, person or persons, and such payments shall be as valid and effectual in all respects as if made to the said owner or owners, person or persons, interested therein, respectively, according to their just rights; and, provided, also, that in all and each and every such case and cases where any sum or sums or compensation reported by the commissioners in favor of any person or persons or parties whatsoever, whether named or not named in said report, shall be paid to any person or persons, or party or parties, whomsoever, when the same shall of right belong and ought to have been paid to some other person or persons, or party or parties, it shall be lawful for the person or persons, or party or parties, to whom the same ought to have been paid, to sue for and recover the same, with lawful interest and costs of suit, as so much money had and received to his, her or their use by the person or persons, party or parties, respectively, to whom the same shall have been so paid. Added by chap. 752, Laws of 1894. Claims for compensation for property taken. § 55, Every owner or person in any way interested in any prop- erty taken or extinguished as contemplated in this act, if he intends to make claim for compensation for such taking or extinguishment, shall within six months after the appointment of the commissioners of appraisal exhibit to the said commissioners a statement of his claim, and shall thereupon be entitled to offer testimony and to be heard before them touching such claim and the compensation proper to be made him, and to have a determination made by such commis- sioners of appraisal as to the amount of such compensation. Every person neglecting or refusing to present such claim within said time shall be deemed to have surrendered his claim for such compensation, except so far as he may be entitled, as such owner or person inter- ested, to the whole or a part of the sum of money awarded by the commissioners of appraisal as a just compensation for taking or ex- tinguishing the property owned by said person, or in which the said person is interested. Amended by chap. 587, Laws of 1901. Payment of awards; protection to city. § 56. Payment of the compensation awarded by said commis- 490m Raprrw Transit Act. sioners of appraisal to the persons named in their report (if not in- fants or persons of unsound mind), shall, in the absence of notice to the said city or other claimants to such award, protect the said city. Added by chap. 752, Laws of 1894. Special reports of commissioners, § 57. Said commissioners of appraisals may in their discretion take up any specified claim or claims, and finally ascertain and de- termine the compensation to be made thereon, and make a separate report with reference thereto, annexing to said report a copy of so much of the set of maps or plans and memoranda referred to in sec- tion forty-two of this act as indicates the property so reported on. Such report shall, as to claims therein specified, be the report re- quired in this act, and the subsequent action with reference thereto, shall be had in the same manner as though no other claim were em- braced in said proceeding, which, however, shall continue as to all claims upon which no such determination and report is made. Amended by chap. 519, Laws of 1895. Appeals from appraisal. § 58. Within twenty days after notice of the confirmation of the report of the commissioners, as provided for in section fifty-two of this act, which notice may, as to parties who have not appeared be- fore the commissioners, be given in the manner provided in section fifty-one of this act, either party may appeal to the general term of the supreme court in the department in which such commissionevs were appointed, from the appraisal and report of the commissioners and the order confirming the same. Such appeal shall be heard upon due notice thereof being given, according to the rules and practice of said court. On the hearing of such appeal the court may direct a new appraisal and determination of any question passed upon, by the same or new commissioners, in its discretion, and from any de- termination of the general term either party, if aggrieved, may take an appeal, which shall be heard and determined by the court of ap- peals. In the case of a new appraisal the second report shall be final and conclusive on all the parties and persons interested. If the amount of compensation to be made by such city is increased by the second report, the difference shall be paid by the comptroller or other chief financial officer of said’ city, to the parties entitled to the same, or shall be deposited with the chamberlain, or bank or trust com- pany, as the court may direct, and if the amount is diminished the difference shall be refunded to the said city by the party to whom 490n Rarip Transit Act. the same may have been paid, and judgment therefor may be rendered by the court on the filing of the second report against the party liable to pay the same. But the taking of an appeal by any person or persons shall not operate to stay the proceedings under this act except as to the particular property with which the said ap- peal is concerned. Such appeal shall be heard upon the evidence taken before said commissioners, and any affidavits as to irregular- ities, and three printed copies of such evidence shall be furnished by the said city to the party taking the appeal, within ten days after the appeal is perfected, and such appeal may be heard on the evi- | dence so furnished, and may be taken without security thereon. Added by chap. 752, Laws of 1894. Power of court to amend defects. § 59. The supreme court in the judicial district in which said city is situated shall have power at any time to amend any defect or informality in any of the special proceedings authorized by this act as may be necessary, and to direct such further notices to be given to any party in interest as it deems proper, ahd also to appoint other commissioners in place of any who shall die, or refuse, or neglect to serve or be incapable of serving, or be removed. And the said court may at any time remove any commissioner of appraisal who in its judgment shall be incapable of serving, or who shall for any reason in its judgment be an unfit person to serve as such commissioner. The cause of such removal shall be specified in the order making the same. If in any particular it shall at any time be found neces- sary to amend any pleading or proceeding or to supply any defect therein arising in the course of any special proceeding authorized by this act, the same may be amended or supplied in such manner as shall be directed by the supreme court, which is hereby authorized to make such amendment or correction. Wherever in this act reference is made to the general term of the supreme court, it shall be deemed to include the appellate division of the supreme court for the dis- trict in which said city is situated, whenever said general term shall be superseded thereby. Amended by chap. 519, Laws of 1895. Property acquired for public use. § 60. All property acquired under the provisions of this act shall be and shall be deemed to have been acquired for public uses and purposes, and for the purpose of affording increased facilities for rapid transit between points within the city acquiring such property. Added by chap. 752, Laws of 1894. 4900 Rapp Transit Act, Expense; how paid. § 61. The moneys necessary and sufficient to be paid for any prop- erty, acquired in any manner under the provisions of this act, to- gether with all expenses necessarily incurred in surveying, locating, and acquiring title to such property, and for surveying and locating the same, and for preparing the necessary maps and plans in con- nection therewith, shall be raised and paid out of the proceeds of bonds issued and sold as provided by section thirty-seven of this act, and all such expenses so incurred in surveying, locating and ac- quiring title, and for preparing necessary maps and plans and also - those incurred as provided in the next section shall be deemed a part of and included in the cost of constructing the road or roads, the construction of which rendered it necessary to acquire the prop- erty in the course of the acquisition of which such expenses may be incurred. Amended by chap. 519, Laws of 1985. Compensation of commissioners and employes, § 62. The commissioners of appraisal appointed in pursuance of this act shall receive as compensation the sum of ten dollars per day for each day actually employed. They may employ the necessary clerks, stenographers and surveyors. The counsel to the corporation or other principal legal adviser to said city shall, either in person or by such counsel as he shall designate for the purpose, appear for and protect the interests of the city in all such proceedings in court and before the commissioners. The fees of the commissioners and the salaries and compensation of their employes, and all other necessary expenses in and about the said proceedings provided for by this act, and such allowance for counsel fees as may be made by order of the court, and all reasonable expenses incurred by said counsel to the corporation, or other printipal legal adviser of said counse] designated by him for the proper presentation and defense of the interests of said city before said commissioners and in court, shall be paid by the comp- troller or other chief financial officer of said city out of the funds referred to in the last preceding section. But such fees and expenses shall not be paid until they have been taxed before a justice of the supreme court in the judicial district in which said city is situated upon five days’ notice to the counsel to the corporation, or other chief legal adviser of said city. Such allowance shall, in no case, exceed the limits prescribed by section thirty-two hundred and fifty-three of the code of civil procedure. Added by chap. 752, Laws of 1894. Proviso in case roads constructed at city’s expense, § 63. In case it shall be determined by vote of the people as pro- 490p Rariw Transit Act. vided by sections twelve and thirteen of chapter seven hundred and fifty-two of the laws of eighteen hundred and ninety-four to construct by and at the city’s expense, then and in that event the road or roads so constructed shall be and remain the absolute property of the city so constructing it or them, and shall be and be deemed to be a part of the public streets and highways of said city, to be used and enjoyed by the public upon the payment of such fares and tolls, and subject to such reasonable rules and regulations as may be imposed and pro- vided for by the board of rapid transit railroad commissioners in said city. Oe by chap, 752, Laws of 1894, and amended by chap. 519, Laws of 1895. Construction of act. § 64. This act shall not be construed to repeal or in any manner affect chapter six hundred and six of the laws of eighteen hundred and seventy-five, entitled “ An act to further provide for the construction and operation of a steam railway or railways in the counties of this state,” or the acts amendatory thereof or supplementary thereto, or article five of chapter five hundred and sixty-five of the laws of eight- een hundred and ninety, known as the railroad law, except so far as the said acts, or either of them, would, if this act had not been passed, authorize the appointment hereafter of any commissioners applied for as provided in section one of said act of eighteen hundred and seventy-five, or in section one hundred and twenty of said act of eighteen hundred and ninety, in any city or cities containing a popu- lation of over one million inhabitants, according to the last preceding national or state census, or authorize any commissioners already appointed pursuant to the provisions of such act or acts in any such city or cities, to fix, determine or locate any new route or routes, pur- suant to the provisions of either of said acts. This act shall not be construed in any manner to affect the exercise or enjoyment at any time, and from time to time hereafter, of any right or rights hereto- fore acquired, exercised or enjoyed by any corporation heretofore duly incorporated and organized or deriving powers and rights under the laws of this state. This act shall not affect or impair the exercise or enjoyment of any right or rights now possessed or heretofore acquired or heretofore authorized to be acquired, exercised or enjoyed by anj street surface railroad corporation, except as herein otherwise ex- pressly provided, and this act shall not be construed to repeal or in any manner affect chapter one hundred and forty of the laws of eight- een hundred and fifty, entitled “‘ An act to authorize the formation of railroad corporations, and to regulate the same,” or either of the sev- eral acts amendatory thereof or supplementary thereto. This act shall not be construed to repeal or in any manner affect chapter five hundred and sixty-five of the laws of eighteen hundred and ninety, 490q Rapmw Transit Act. known as the railroad law, except as hereinabove expressly provided, or except so far as the provisions of the same conflict with the pro- visions of this act. But nothing in this section contained shall pre- vent the board of rapid transit railroad commissioners from laying out a route for a railway and constructing and operating a railway, and such board shall have the right to lay out such route and construct and operate such railway, over, under, along or across any street in, along, under or over which there shall be any existing railway, pro- vided that the routes so laid out by the said board and the railway so constructed by it shall so pass over or under or at the side of such existing railway as not to interfere with its operation. Amended by L. 1909, ch. 472. Concurrent vote of rapid transit commissioners, § 10. Whenever it is expressly provided in the act hereby amended that any act of the board of rapid transit railroad commissioners shall be done by the concurrent vote of four of the members of said board, the act hereby amended is further amended so as to provide in such cases that such vote shall be that of six of such members. Chap. 752, Laws of 1894. ' Termination of commission heretofore appointed. § 11. The commissioners of rapid transit heretofore appointed under the act hereby amended, or who became such commissioners by its terms, upon the organization of the board which shall succeed them pursuant to said act as hereby amended, shall cease to be such com- missioners and shall transfer and deliver to the board of rapid transit railroad commissioners, provided for by the act hereby amended, as so amended, all furniture, books, maps, records, plans and other papers and property of what kind soever appertaining or belonging to or in the custody of the board of which they were commissioners, or in their possession, or under their control as such commissioners, or held by them, or for which they are responsible in their official capacity. The expenses incurred by said commissioners for which an appropri- ation or appropriations shall have been made pursuant to section ten of the act hereby amended, shall be paid upon vouchers to be furnished by said commissioners and otherwise, as provided in said section. Said commissioners shall also be entitled to receive a reasonable com- pensation for the services which have been rendered by them, which may have been, or which shall be, determined on their application in the manner provided for in said section. The comptroller, or other chief financial officer of said city, is hereby authorized and directed to issue and sell revenue bonds of such city in anticipation of the receipt of taxes, and out of the proceeds of such bonds to pay said compen- sation so ascertained and determined, and the amount necessary to pay the principal and interest of said bonds shall be included in the 490r Rarip Transit Act. tax levy of said city for the year next following the issue and sale of the same. Chap. 752, Laws of 1894. Submission of question of construction of road by city to electors, § 12. The said board of rapid transit railway commissioners shall cause the question, whether such railway or railways shall be con- structed by the city and at the public expense, to be submitted to the vote of the qualified electors of the city within which such railway or railways is or are to be constructed, and to that end it shall be the duty of the said board, after completion of the detailed plans and specifications, as required by the act hereby amended, at least thirty days prior to the next general election, to file with the public officer or officers within the county in which such city is located, who may be charged with the duty of printing the ballots to be used at such elec- tion, a request that separate ballots be printed and supplied to such electors, one-half in number of which shall read: “ For municipal construction of rapid transit road,” and the other half in number of said ballots shall read, “ Against municipal construction of rapid transit road.” Upon such request being so filed, such ballots shall be printed and supplied to such electors at such general election, and separate ballot boxes shall be provided for the reception of the same in each election district within such city, and the provisions of chapter six hundred and eighty of the laws of eighteen hundred and ninety- two, entitled “ An act in relation to the elections constituting chapter six of the general laws,” and any act or acts amendatory thereof or supplemental thereto shall apply thereto as far as the nature of the case may allow. No ballot which may be provided under this section shall be deemed invalid by reason of any error in dimensions, style of printing, or other formal defect, or through having been deposited in the wrong ballot box, but all of such ballots shall be canvassed and returned as if such formal defect had not existed, or as if they had been deposited in the box provided for the purpose. Upon the canvas of such votes by the board of county canvassers of the county in which such city is located, it shall be the duty of said board to file with the county clerk of said county a statement which shall declare the total number of votes cast in said city “for municipal construction of rapid transit road,” and the total number so cast therein “against municipal construction of rapid transit road.” And the said railway or railways shall be constructed by the said city and at the public expense, if it shall be found from such statements so filed that there is a majority of the votes so cast in favor of such municipal construc- tion. Chap. 752, Laws of 1894. 2 490s Rarip Transit Act. Duty of board in case of municipal construction. § 13. In case the majority of votes cast at such election shall be in favor of such municipal construction of said railway or railways, it shall be the duty of said board of rapid transit railway commissioners within thirty days after the official declaration of the said vote to pro- ceed to construct the said railway or railways, and to make and let all contracts required for the performance of the work necessary to be done and performed in and about the construction thereof. All such contracts must, before execution, be approved as to form by the coun- sel to the corporation, or other chief legal adviser for said city. Chap. 752, Laws of 1894. Act when to take effect. § 14. This act shall take effect immediately ; except that the build- ing of said road, or the sale of the franchises as provided for in see- tions seven and thirty-four of the act hereby amended, as so amended, is postponed until, and made dependent upon, the determination of that question by the vote of the people as called for by sections twelve and thirteen of this act. Chap. 752, Laws of 1894. Effect of act. § 14. Nothing in the act contained shall repeal, modify or alter any provision of the act hereby amended in respect of any railway or rail- ways constructed, constructing or contracted for thereunder when this act takes effect; but the act hereby amended shall be and continue in full force and effect in respect of such railway or railways so con- structed, constructing, or contracted for, as if this act had not been passed. Amended by L. 1909, ch. 472. 4904 THE PUBLIC SERVICE COMMISSIONS LAW. CHAPTER 429 OF THE LAWS OF 1907. Articie 1. Public service commissions; general provisions (§§ 1-23.) 2. Provisions relating to railroads, street railroads and com- mon carriers (§§ 25-40.) 3. Provisions relating to the powers of the commissions in respect to railroads, street railroads carriers (§§ 45-60.) 4, Provisions relating to gas and electric corporations ; 5. regulation of price of gas and electricity (§§ 65-77.) Commissions and offices abolished; saving clause; repeal (§§ 80-89.) ARTICLE 1. Pustic Servick CoMMissions; GENERAL PROVISIONS. SEerIon 1. 2. 3. A. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Short title. Definitions. Publie service districts. Commissions established; appointment; removal; terms of office. Jurisdiction of commissions. Counsel to the commissions. Secretary to the commissions. Additional officers and employees. Oath of office ; eligibility of commissioners and officers. Offices of commissions ; meetings ; official seal; stationery. Quorum; powers of a commissioner. Counsel to the commissions; duties. Salaries and expenses. Payment of salaries and expenses. Certain acts prohibited. Annual report of commissions. 491 Tu» Pousric Service Commissions Law. SECTION17. Certified copies of papers filed to be evidence. 18. Fees to be charged and collected by the commissions. 19. Attendance of witnesses and their fees. 20. Practice before the commissions; immunity of witnesses. 21. Court proceedings; preference. 22. Rehearing before commission. 28. Service and effect of orders. § 1. Short title. This chapter shall be known as the public service commissions law, and shall apply to the public services herein described, and to the commissions hereby created. § 2. Definitions. The term “commission,” when used in this act, means either public service commission, hereby created, which by the terms of this act is vested with the power or duty in question. The term “commissioner,” when used in this act, means one of the members of such commission. The term “corporation,” when used in this act, includes a cor- poration, company, association and joint-stock association. The word “ person,” when used in this act, includes an individual and a firm or copartnership. The term “street railroad,” when used in this act, includes every railroad by whatsoever power operated, or any extension or extensions, branch or branches thereof, for public use in the conveyance of persons or property for compensation, being mainly upon, along, above or below any street, avenue, road, highway, bridge or public place in any city, village or town, and including all switches, spurs, tracks, right of trackage, subways, tunnels, stations, terminals and terminal facilities of every kind used, operated, controlled or owned by or in connection with any such street railroad; but the said term “ street railroad,” when used in this act, shall not include a railroad con- stituting or used as part of a trunk line railroad system. The term “railroad,” when used in this act, includes every rail- road other than a street railroad, by whatsoever power operated for the public use in the conveyance of persons or property for compensation, with all bridges, ferries, tunnels, switches, spurs, tracks, stations and terminal facilities of every kind used, oper- ated, controlled or owned by or in connection with any such rail- road. The term “street railroad corporation,” when used in this act, 492 Tue Puszric Service Commissions Law. includes every corporation, company, association, joint-stock associa- tion, partnership and person, their lessees, trustees or receivers ap- pointed by any court whatsoever, owning, operating, managing or controlling any street or any cars or other equipment used thereon or in connection therewith. The term “railroad corporation,’ when used in this act, includes every corporation, company, association, joint-stock association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, managing or controlling any railroad or any cars or other equipment used thereon or in connection therewith. The term “common carrier,’ when used in this act, includes all railroad corporations, street railroad corporations, express com- panies, car companies, sleeping-car companies, freight companies, freight-line companies and all persons and associations of persons, whether incorporated or not, operating such agencies for public use in the conveyance of persons or property within this state. The term “gas corporation,’ when used in this act, includes every corporation, company, association, joint-stock association, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever, owning, operating, managing or controlling any plant or property for manufacturing and distributing and selling for distribution or distributing illuminating gas (natural or manu- factured) for light, heat or power. The term “electrical corporation,” when used in this act, in- cludes every corporation, company, association, joint-stock associa- tion, partnership and person, their lessees, trustees or receivers appointed by any court whatsoever (other than a railroad or street railroad corporation generating electricity for its own use exclusively), owning, operating, managing or controlling any plant or property for generating and distributing, or generating and selling for distribu- tion, or distributing electricity for light, heat or power or for the transmission of electric current for such purposes. The term “transportation of property or freight,’ when used in this act, includes any service in connection with the receiving, delivery, elevation, transfer in transit, ventilation, refrigeration, icing, storage and handling of the property or freight transported. The term “municipality,” when used in this act, includes a city, village, town or lighting district, organized as provided by a general or special act. See section 2, chapter 737, Laws of 1905, as to definitions of gas and elec- trical corporations. See section 1, U. S. Interstate Commerce Act. 493 Txs Puszric Szervicz Commissions Law. 8 3. Public service districts. There are hereby created two public service districts, to be known as the first district and the second district. The first district shall include the counties of New York, Kings, Queens and Richmond. The second district shall include all other counties of the state. 4, Commissions established; appointment; removal; terms of office. There shall be a public service commission for each district, and each commission shall possess the powers and duties hereinafter specified, and also all powers necessary or proper to enable it to carry out the purposes of this act. The commission of the first district shall consist of five members and the commission of the second district shall consist of five members, to be appointed by the governor, by and with the advice and consent of the senate, one of whom designated by the governor shall, during his term of office, be the chairman of the commission of which he is a member. Each com- missioner shall be a resident of the district for which he is appointed. The governor may remove any commissioner for inefficiency, neglect of duty or misconduct in office, giving to him a copy of the charges against him, and an opportunity of being publicly heard in person or by counsel in his own defense, upon not less than ten days’ notice. If such commissioner shall be removed the gov- ernor shall file in the office of the secretary of state a complete statement of all charges made against such commissioner, and his findings thereon, together with a complete record of the proceedings. Of the members of the commission in each district first appointed hereunder, one shall hold office until February first, nineteen hundred and nine, one until February first, nineteen hundred and ten, one until February first, nineteen hundred and eleven, one until February first, nineteen hundred and twelve, and one until February first, nineteen hundred and thirteen; the term of office of each com- missioner so appointed shall begin on the first day of July, nineteen hundred and seven. Upon the expiration of each of such terms, the term of office of each commissioner thereafter appointed shall be five years, from the first of February. Vacancies shall be filled by appointment for the unexpired term. § 5. Jurisdiction of commissions. The jurisdiction, supervision, powers and duties of the public service commission in the first district shall extend under this act: 494 » Tue Pusric Szrvicr Commissions Law. 1. To railroads and street railroads lying exclusively within that district, and to the persons or corporations owning, leasing, operating or controlling the same. ‘2. To street railroads any portion of whose lines lies within that district, to all transportation of persons or property thereon within that district or from a point within either district to a point within the other district, and to the persons or corporations owning, opera- ting, controlling or leasing the said street railroads; provided, how- ever, that the commission for the second district shall have jurisdio- tion over such portion of the lines of said street railroads as lies within the second district, and over the persons or corporations own- ing, operating, controlling or leasing the same, so far as concerns the construction, maintenance, equipment, terminal facilities and local transportation facilities of said street railroads within the second district. 3. To such partion of the lines of any other railroad as lies within that district, and to the person or corporation owning, leasing, operat- ing or controlling the same, so far as concerns the construction, maintenance, equipment, terminal facilities and local transportation facilities, and local transportation of persons or property within that district. 4. To any common carrier operating or doing business exclu- sively within that district. 5. To the manufacture, sale or distribution of gas and electricity for light, heat and power in said district, and to the persons or corporations owning, leasing, operating or controlling the same. 6. And in addition thereto, the commission in the first district shall have and exercise all powers heretofore conferred upon the board of rapid transit railroad commissioners under chapter four of the laws of eighteen hundred and ninety-one, entitled “An act to provide for rapid transit railways in cities of over one million inhabitants,” and the acts amendatory thereto. All jurisdiction, supervision, powers and duties under this act not specifically granted to the public service commission of the first district shall be vested in, and be exercised by, the public service commission of the second district, including the regulation and control of all transportation of persons or property, and the instrumentalities connected with such transportation, on any railroad other than a street railroad from a point within either district to a point within the other district. See section 157, chapter 565, Laws of 1890. See section 9, chapter 737, Laws of 1905. 9 495 Tue Pousiic Szrvics Commissions Law. & 6. Counsel to the commissions. Each commission shall appoint as counsel’ to the commission an attorney and counselor-at-law of the state of New York, who shall hold office during the pleasure of the commission. Each counsel to the commission shall, subject to the approval of the commission, have the power to appoint, and at pleasure remove, attorneys and counselors-at-law, to assist him in the performance of his duties, and also to employ and remove stenographers and process-servers. $ '7. Secretary to the commissions. Each commission shall have a secretary to be appointed by it and to hold office during its pleasure. It shall be the duty of the secretary to keep a full and true record of all proceedings of the commission, of all books, maps, documents and papers ordered filed by the commission and of all orders made by a commissioner and of all orders made by the commission or approved and confirmed by it and ordered filed, and he shall be responsible to the commission for the safe custody and preservation of all such documents at its office. Under the direction of the commission the secretary shall have general charge of its office, superintend its clerical business and perform such other duties as the commission may prescribe. He shall have power and authority to administer oaths in all parts of the state, so far as the exercise of such power is properly incidental to the performance of his duty or that of the commission. The secretary shall designate, from time to time, one of the clerks appointed by the commission to perform the duties of secretary during his absence and, during such time, the clerk so designated shall at the office possess the powers of the secretary of the commission. $ 8. Additional officers and employees. Each commission shall have power to employ, during its pleasure, such officers, clerks, inspectors, experts and employees as it may deem to be necessary to carry out the provisions of this act, or perform the duties and exercise the powers conferred by law upon the com- mission. | See section 163, chapter 565, Laws of 1890. § 9. Oath of office; eligibility of commissioners ad officers. Each commissioner and each person appointed to office by a com- mission or by counsel to a commission shall, before entering upon the duties of his office, take and subscribe the constitutional oath of office. No person shall be eligible for appointment or shall hold the office of commissioner or be appointed by a commission 496 Tue Pusric Serviczk Commissions Law. or by counsel to a commission to, or hold, any office or position under a commission, who holds any official relation to any common carrier, railroad corporation, street railroad corporation, gas cor- poration or electric corporation subject to the provisions of this act, or who owns stocks or bonds therein. See section 156, chapter 565, Laws of 1890. See section 11, U. S. Interstate Commerce Act. $ 10. Offices of commissions; meetings; official seal; stationery, etc. 1. The principal office of the commission of the first district shall be in the borough of Manhattan, city of New York; and the office of the second district shall be in the city of Albany, in rooms designated by the trustees of public buildings. Each commission shall hold stated meetings at least once a month during the year at its office. Each shall have an official seal to be furnished and prepared by the secretary of state as provided by law. The offices shall be supplied with all necessary books, maps, charts, stationery, office furniture, telephone and telegraph connections and all other necessary appliances, to be paid for in the same manner as other expenses authorized by this act. 2. The offices of each commission shall be open for business between the hours of eight o’clock in the morning and eleven o’clock at night every day in the year, and one or more responsible persons, to be designated by the commission or by the secretary under the direction of the commission, shall be on duty at all times in im- mediate charge thereof. See section 155, chapter 565, Laws of 1890. See sections 17 and 18, U. S. Interstate Commerce Act. 8 11. Quorum; powers of a commissioner. c A majority of the commissioners shall constitute a quorum for the transaction of any business, for the performance of any duty or for the exercise of any power of the commission, and may hold meetings of the commission at any time or place within the state. Any investigation, inquiry or hearing which either commission has power to undertake or to hold may be undertaken or held by or before any commissioner. All investigations, inquiries, hearings and decisions of a commissioner shall be and be deemed to be the investigations, in- quiries, hearings and decisions of the commission and every order made by a commissioner, when approved and confirmed by the com- mission and ordered filed in its office, shall be and be deemed to be the order of the commission. See section 156, chapter 565, Laws of 1890. , See sections 17 and 19, U. 8S. Interstate Commerce Act. 497 Tur Pusrio Service Cowmissions Law. § 12. Counsel to the commissions; duties. It shall be the duty of counsel to a commission to represent and appear for the people of the state of New York and the commission, in all actions and proceedings involving any question under this act, or under or in reference to any act or order of the commission, and, if directed to do so by the commission, to intervene, if possible, in any action or proceeding in which any such question is involved ; to commence and prosecute all actions and proceedings directed or authorized by the commission, and to.expedite in every way possible final determination of all such actions and proceedings; to advise the commission and each commissioner when so requested in regard to all matters in connection with the powers and duties of the commission and of the members thereof, and generally to perform all duties and services as attorney and counsel to the commission which the commission may reasonably require of him. $ 13. Salaries and expenses. The annual salary of each commissioner shall be fifteen thousand dollars ($15,000). The annual salary of counsel to a commission shall be ten thousand dollars ($10,000). The annual salary of a secretary to a commission shall be six thousand dollars ($6,000). All officers, clerks, inspectors, experts and employees of a commission, and all persons appointed by the counsel to a commission, shall receive the compensation fixed by the commission. The commissioners, counsel to the commission and the secretary, and their officers, clerks, inspectors, experts and other employees, shall have reimbursed to them all actual and necessary traveling and other expenses and disbursements incurred or made by them in the discharge of their official duties. § 14. Payment of salaries and expenses. 1. The salaries of the commissioners, the counsel to the commis- sion, and the secretary to the commission in the first district shall be audited and allowed by the state comptroller, and paid monthly by the state treasurer upon the order of the comptroller out of the funds provided therefor. All other salaries and expenses of the commission of the first district shall be audited and paid as follows: The board of estimate and apportionment of the city of New York, or other board or public body on which is imposed the duty and in which is vested the power of making appropriations of public moneys for the purposes of the city government shall, from time to time, on requisition duly made by the public service commission of the first district, appropriate such sum or sums of money as may be requisite 498 Tue Pousiio Service Commissions Law. and necessary to enable it to do and perform, or cause to be done and performed, the duties in this or in any other act prescribed, and to provide for the expenses and the compensation of the employees of such commission, and such appropriation shall be made forthwith upon presentation of a requisition from the said commission, which shall state the purposes for which such moneys are required by it. In case the said board of estimate and apportionment, or such other board or public body, fail to appropriate such amount as the said commission deems requisite and necessary, the said commission may apply to the appellate division of the supreme court in the first department, on notice to the board of estimate and apportionment or such other board or public body aforesaid, to determine what amount shall be appropriated for the purposes so required and the decision of said appellate division shall be final and conclusive; and the city shall not be liable for any indebtedness incurred by the said commission in excess of such appropriation or appropriations. It shall be the duty of the auditor and comptroller of said city, after such appropriation shall have been duly made, to audit and pay the proper expenses and compensation of the employees of said commission other than its counsel and secretary, upon vouchers there- for, to be furnished by the said commission, which payments shall be made in like manner as payments are now made by the auditor, comptroller or other public officers of claims against and demands upon such city; and for the purpose of providing funds with which to pay the said sums, the comptroller or other chief financial officer of said city, is hereby authorized and directed to issue and sell revenue bonds of such city in anticipation of receipt of taxes and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next following the year in which such appropriations are made. The commission may provide that all or any portion of the expenses so incurred and paid by said city as in this section provided, and for which said city shall be liable, shall be repaid, with interest, bythe bidder or bidders at the public sale of the rights, privileges and franchises, as provided in chapter four of the laws of eighteen hun- dred and ninety-one, entitled “An act to provide for rapid transit railways in cities of over one million inhabitants,” and the acts amendatory thereto. The said comptroller shall pay the proper salaries and the expenses of the said commission upon its requisition, 499 Tus Pusric Szrvicze Commissions Law. for the remainder of the fiscal year after this act shall take effect, from any funds that may have been heretofore appropriated for the board of rapid transit railroad commissioners, which appropriation is hereby transferred to the credit of the public service commission of the first district. In case the said appropriation shall not be sufficient to meet such salaries and expenses, the comptroller of said city is hereby authorized and directed to issue and sell revenue bonds of said city, in anticipation of receipt of taxes, as hereinbefore provided. 2. All salaries and expenses of the commission in the second district shall be audited and allowed by the state comptroller and paid monthly by the state treasurer upon the order of the comptroller, out of the funds provided therefor. § 15. Certain acts prohibited. Every commissioner, counsel to a commission, the secretary of a commission, and every person employed or appointed to office, either by a commission or by the counsel to a commission, is hereby for- bidden and prohibited to solicit, suggest, request or recommend, directly or indirectly, to any common carrier, railroad corporation or street railroad corporation, or to any office, attorney, agent, or em- ployee thereof, the appointment of any person to any office, place, position or employment. And every common carrier, railroad cor- poration, street railroad corporation, gas corporation and electrical corporation, and every officer, attorney, agent and employee thereof, is hereby forbidden and prohibited to offer to any commissioner, to counsel to a commission, to the secretary thereof, or to any person employed by a commission or by the counsel to a commission, any office, place, appointment or position, or to offer or give to any commissioner, to counsel to a commission, to the secretary thereof, or to any officer employed or appointed to office by the commission or by the counsel to the commission, any free pass or transportation or any reduction in fare to which the public generally are not entitled or free carriage for freight or property or any present, gift or gratuity of any kind. If any commissioner, counsel to a commission, the secretary thereof or any person employed or ap- pointed to office by a commission or by counsel to a commission, shall violate any provision of this section he shall be removed from the office held by him. Every commissioner, counsel to the commis- sion, the secretary thereof and every person employed or appointed to office by the commission or by counsel to the commission, shall be and be deemed to be a public officer. See section 168, chapter 565, Laws of 1890. Penal Code, sections 416, 417. 500 Tus Pustic Servicn Commissions Law. 8 16. Annual report of commissions. All proceedings of each commission and all documents and records in its possession shall be public records, and each commission shall make an annual report to the legislature on or before the second Monday of January in each year, which shall contain copies of all orders issued by it, and any information in the possession of the com- mission which it shall deem of value to the legislature and the people of the state. Five hundred copies of each report, together with ab- stracts of the reports to such commission of common carriers, railroad corporations and street railroad corporations, and gas and electrical corporations, in addition to the regular number prescribed by law, shall be printed as a public document of the state, bound in cloth, for the use of the commissioners and to be distributed by them in their discretion to railroad, street railroad, gas and electrical cor- porations and other persons interested therein. See section 166, chapter 565, Laws of 1890, as amended. See section 21, U. S. Interstate Commerce Act. § 17. Certified copies of papers filed to be evidence. Copies of all official documents and orders filed or deposited accord- ing to law in the office of either commission, certified by a commis- sioner or by the secretary of the commission to be true copies of the originals, under the official seal of the commission, shall be evidence in like manner as the originals. See section 167, chapter 565, Laws of 1890. See section 16, U. S. Interstate Commerce Act. § 18. Fees to be charged and collected by the commissions. Each commission shall charge and collect the following fees: For copies of papers and records not required to be certified or otherwise authenticated by the commission, ten cents for each folio; for certified copies of official documents and orders filed in its office, fifteen cents for each folio, and one dollar for every certificate under seal affixed thereto; for certifying a copy of any report made by a corporation to the commission, two dollars; for each certified copy of the annual report of the commission, one dollar and fifty cents; for certified copies of evidence and proceedings before the commission, fifteen cents for each folio. No fees shall be charged or collected for copies of papers, records or official documents, furnished to public officers for use in their official capacity, or for the annual reports of the commission in the ordinary course of distribution. All fees charged and collected by the commission of the first district shall belong to the city of New York, and shall be paid monthly, accom- panied by a detailed statement thereof, into the treasury of the city to 501 Tue Pusztio Service Commissions Law. the credit of the general fund, and all fees charged and collected by the commission of the second district shall belong to the people of the state, and shall be paid monthly, accompanied by a detailed statement thereof, into the treasury of the state to the credit of the general fund. See section 165, chapter 565, Laws of 1890. § 19. Attendance of witnesses and their fees. 1. All subpoenas shall be signed and issued by a commissioner or by the secretary of a commission and may be served by any person of full age. The fees of witnesses required to attend before a com- mission, or a commissioner, shall be two dollars for each day’s attendance, and five cents for every mile of travel by the nearest generally traveled route in going to and from the place where attendance of the witness is required, such fees to be paid when the witness is excused from further attendance; and the disburse- ments made in the payment of such fees shall be audited and paid in the first district in the same manner provided for the payment of expenses of the commission. 2. If a person subpoenaed to attend before a commission, or a commissioner fails to obey the command of such subpoena, without reasonable cause, or if a person in attendance before a commission, or commissioner, shall, without reasonable cause, refuse to be sworn or to be examined to a question or to produce a book or papers, when ordered so to do by the commission, or a commissioner, or to subscribe and swear to his deposition after it has been correctly reduced to writing, he shall be guilty of a misdemeanor and may be prosecuted therefor in any court of competent criminal jurisdiction. If a person in attendance before a commission or a commissioner tetuses without reasonable cause to be examined or to answer a legal and pertinent question or produce a book or paper, when ordered so to do by a commission or a commissioner, the commission may apply to any justice of the supreme court upon proof by affidavit of the facts for an order returnable in not less than two nor more than five days directing such person to show cause before the justice who made the order, or any other justice of the supreme court, why he should not be committed to jail; upon the return of such order the justice before whom the matter shall come on for hearing shall examine under oath such person whose testimony may be relevant, and such person shall be given an opportunity to be heard; and if the justice shall determine that such person has refused without reason- able cause or legal excuse to be examined, or to answer a legal and 502 Tue Puszic Serviczk Commissions Law. pertinent question, or to produce a book or paper which he was ordered to bring, he may forthwith, by warrant, commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law. See section 165, chapter 565, Laws of 1890. See sections 12 and 18, U. §S. Interstate Commerce Act. § 20. Practice before the cmmissions; immunity of witnesses. All hearings before a commission or a commissioner, shall be governed by rules to be adopted and prescribed by the commission. And in all investigations, inquiries or hearings the commission, or a commissioner, shall not be bound by the technical rules of evidence. No person shall be excused from testifying or from producing any books or papers in any investigation or inquiry by or upon any hear- ing before a commission or any commissioner, when ordered to do so by the commission, upon the ground that the testimony or evidence, books or documents required of him may tend to incriminate him or subject him to penalty or forfeiture, but no person shall be prosecuted, punished or subjected to any penalty or forfeiture for or on account of any act, transaction, matter or thing concerning which he shall under oath have testified or produced documentary evidence ; provided, however, that no person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in his testimony. Nothing herein contained is intended to give, or shall be construed as in any manner giving unto any corporation immunity of any kind. See section 9, 12 and 17, U. S. Interstate Commerce Act. Immunity protects witness from prosecutions in Federal courts in the same jurisdiction. Jack v. Kansas, 199 U. S. 372; Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. 8. 591. § 21. Court proceedings; preferences. All actions and proceedings under this act, and all actions and proceedings commenced or prosecuted by order of either commission, and all actions and proceedings to which either commission or the people of the state of New York may be parties, and in which any question arises under this act or under the railroad law, or under or concerning any order or action of the commission, shall be pre- ferred over all other civil causes except election causes in all courts of the state of New York and shall be heard and determined in preference to all other civil business pending therein excepting election causes, irrespective of position on the calendar. The same preference shall be granted upon application of counsel to the commission in any action or proceeding in which he may be allowed to intervene. See section 16, U. S. Interstate Commerce Act. 503 Tux Puszuio Servics Commissions Law. § 22. Rehearing before commission. After an order has been made by a commission any party interested therein may apply for a rehearing in respect to any matter determined therein, and the commission may grant and hold such a rehearing if in its judgment sufficient reason therefor be made to appear; if a rehearing shall be granted, the same shall be determined by the commission within thirty days after the same shall be finally sub- mitted. An application for such a rehearing shall not excuse any common carrier, railroad corporation or street railroad corporation from complying with or obeying any order or any requirement of any order of the commission, or operate in any manner to stay or postpone the enforcement thereof except as the commission may by order direct. If, after such rehearing and a consideration of the facts, including those arising since the making of the order, the commission shall be of opinion that the original order or any part thereof is in any respect unjust or unwarranted, the commission may abrogate, change or modify the same. An order made after any such rehearing abrogating, changing or modifying the original order shall have the same force and effect as an original order but shall not affect any right or the enforcement of any right arising from or by virtue of the original order. See section 16a, U. S. Interstate Commerce Act. § 23. Service and effect of orders. Every order of a commission shall be served upon every person or corporation to be affected thereby, either by personal delivery of a certified copy thereof, or by mailing a certified copy thereof, in a sealed package with postage prepaid, to the person to be affected there- by or, in the case of a corporation, to any officer or agent thereof upon whom a summons may be served in accordance with the provisions of the code of civil procedure. It shall be the duty of every person and corporation to notify the commission forthwith, in writing, of the receipt of the certified copy of every order so served, and in the case of a corporation such notification must be signed and acknowledged by a person or officer duly authorized by the corporation to admit such service. Within a time specified in the order of the commission every person and corporation upon whom it is served must if so required in the order notify the commission in like manner whether the terms of the order are accepted and will be obeyed. Every order of a commission shall take effect at a time therein specified and shall continue in force for a period therein designated 504 Tuz Pousuio Servics Commissions Law. unless earlier modified or abrogated by the commission or unless such order be unauthorized by this or any other act or be in violation of a provision of the constitution of the state or of the United States. See section 16, U. S. Interstate Commerce Act. ARTICLE 2. PROVISIONS RELATING TO RAILROADS, STREET RAILROADS AND COMMON CARRIERS. Szotron 25. Application of article. 26. Adequate service; just and reasonable charges. 27. Switch and side-track connections; powers of com- missions. 28 Tariff schedules; publication. 29. Changes in schedule; notice required. 30. Concuurrence in jcint tariffs; contracts, agreements or . arrangements between any carriers. 31. Unjust discrimination. 32. Unreasonable preference. 33. Transportation prohibited until publication of schedules ; rates as fixed to be charged; passes prohibited. 34. False billing, etc., by carrier or shipper. 35. Discrimination prohibited ; connecting lines. 36. Long and short haul. 3%. Distribution of cars. 38. Liability for damage to property in transit. 39. Continuous carriage. 40. Liability for loss or damage by violation of this act. § 25. Application of article. The provision of this article shall apply to the transportation of passengers, freight or property, from one point to another within the state of New York, and to any common carrier performing such service. § 26. Safe and adequate service; just and reasonable charges. Every corporation, person or common carrier performing a service designated in the preceding section, shall furnish, with respect thereto, such service and facilities as shall be safe and adequate and in all respects just and reasonable. All charges made or demanded 505 : Tur Pousrio Service Commissions Law. by any such corporation, person or common carrier for the transporta- tion of passengers, freight or property or for any service rendered or to be rendered in connection therewith, as defined in section two of this act, shall be just and reasonable and not more than allowed by law or by order of the commission having jurisdiction and made as authorized by this act. Every unjust or unreasonable charge made or demanded for any such service or transportation of passengers, freight or property or in connection therewith or in excess of that allowed by law or by order of the commission is prohibited. See sections 21, 37, 38, 39, 101, chapter 565, Laws of 1890, as amended; chapter 474, Laws of 1855; chapter 228, Laws of 1857; chapter 38, Laws of 1889, as to fares allowed by statute. See section 1, U. S. Interstate Commerce Act. Under common law common carriers could only make reasonable charges. Tift v. Southern R. Co., 123 Fed. Rep. 789. Rate of fare a question for the determination of the legislature, not the courts. People vy. Brooklyn Heights R. R. Co., 187 N. Y. 48 $ 27. Switch and sidetrack connections; powers of commissions. 1. A railroad corporation, upon the application of any shipper tendering traffic for transportation, shall construct, maintain and operate upon reasonable terms a switch connection or connections with a lateral line of railroad or private sidetrack owned, operated or con- trolled by such shipper, and shall, upon the application of any shipper, provide upon its own property a sidetrack and switch connection with its line of railroad, whenever such sidetrack and switch connec- tion is reasonably, practicable can be put in with safety and the busi- ness therefor is sufficient to justify the same. 2. If any railroad corporation shall fail to install or operate any such switch connection with a lateral line of railroad or any such sidetrack and switch connection as aforesaid, after written applica- tion therefor has been made to it, any corporation or person inter- ested may present the facts to the commission having jurisdiction by written petition, and the commission shall investigate the mat- ters stated in such petition, and give such hearing thereon as it may deem necessary or proper. If the commission be of opinion that it is safe and practicable to have a connection, substantially as prayed for, established or maintained, and that the business to be done thereon justifies the construction and maintenance thereof, it shall make an order directing the construction and establishment thereof, specifying the reasonable compensation to be paid for the construction, establishment and maintenance thereof, and may in like manner upon the application of the railroad corporation order the discontinuance of such switch connection. See section 1, U. 8S. Interstate Commerce Act. 506 f Tue Pustio Service Commissions Law. § 28. Tariff schedules; publication. Every common carrier shall file with the commission having jurisdiction and shall print and keep open to public inspection sched- ules showing the rates, fares and charges for the transportation of passengers and property within the state between each point upon its route and all other points thereon; and between each point upon its route and all points upon every route leased, operated or controlled by it; and between each point on its route or upon any route leased, operated or controlled by it and all points upon the route of any other common carrier, whenever a through route and joint rate shall have been established or ordered between any two such points. If no joint tate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspec- tion, as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid shall plainly state the places between which property and ‘passengers will be carried, and shall also contain the classification of passengers, freight or property in force, and shall also state sepa- rately all terminal charges, storage charges, icing charges, and all other charges which the commission shall require to be stated, all privileges or facilities granted or allowed, and any rules or regula- tions which may in any wise change, affect or determine any part, or the aggregate of, such aforesaid rates, fares and’ charges, or the value of the service rendered to the passenger, shipper or consignee. Such schedules shall be plainly printed in large type; copies thereof for the use of the public shall be kept posted in two public and con- spicuous places in every depot, station and office of every common carrier where passengers or property are received for transportation, in such manner as to be readily accessible to and conveniently inspect- ed by the public. The form of every such schedule shall be prescribed by the commission and shall conform as nearly as possible to the form of schedule required by the interstate commerce commission under the act of Congress, entitled: “An act to regulate commerce,” ap- amended by act approved June twenty-ninth, nineteen hundred and six, and other amendments thereto. Where any similar schedule is required by law to be filed with both commissions they shall agree upon an identical form for such schedule. The commission shall have power, from time to time, in its discretion, to determine and prescribe by order such changes in the form of such schedules as may be found expedient. See section 6, U. 8. Interstate Commerce Act. § 29. Changes in schedule; notice required. Unless the commission otherwise orders no change shall be made in 507 Tue Pusiio Service Commissions Law. any rate, fare or charge, or joint rate, fare or charge, which shall have been filed and published by a common carrier in compliance with the requirements of this act, except after thirty days’ notice to the commission and publication for thirty days as required by section twenty-eight of this act, which shall plainly state the changes pro- posed to be made in the schedule then in force, and the time when the changed rate, fare or charge will go into effect; and all proposed changes shall be shown by printing, filing and publishing new sched- ules or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection. The commission, for good cause shown, may allow changes in rates without requiring the thirty days’ notice and publication herein provided for, by duly filing and publishing in such manner as it may direct an order specifying the change so made and the time when it shall take effect; all such changes shall be immediately indicated upon its schedules by the common carrier. See section 6, U. S. Interstate Commerce Act. Payment by shipper voluntarily of increased rates before same became effec- tive cannot be recovered. Strough v. N. Y. C. & H. BR. R. Co., 92 App. Div. 584, affirmed 181 N. Y. 533. § 30. Concurrence in joint tariffs; contracts, agreements or arrangements between any carriers. 1. The names of the several carriers which are parties to any joint tariff shall be specified therein, and each of the parties thereto, other than the one filing the same, shall file with the commission such evidence of concurrence therein or acceptance thereof as may be required or approved by the commission; and where such evi- dence of concurrence or acceptance is filed, it shall not be necessary for the carriers filing the same also to file copies of the tariffs in which they are named as parties. 2. Every common carrier shall file with the commission sworn copies of every contract, agreement or arrangement with any other common carrier or common carriers relating in any way to the transportation of passengers, property or freight. See section 6, U. S. Interstate Commerce Act. § 31. Unjust discrimination. No common carrier shall, directly or indirectly, by any special rate, rebate, drawback, or other device or method, charge, demand, collect or receive from any person or corporation a greater or less compensation for any service rendered or to be rendered in the transportation of passengers, freight or property, except as authorized in this act, than it charges, demands, collects or receives from any other person or corporation for doing a like and contemporaneous 508 ¢ Tue Pustio Servicu Commissions Law. service in the transportation of a like kind of traffic under the same or substantially similar circumstances and conditions. See sections 2 and 6, U. S. Interstate Commerce Act. Diseriminations discussed. Interstate Commerce Commission v. Louisville, etc., R. Co., 118 Fed Rep. 613. § 32. Unreasonable preference. No common carrier shall make or give any undue or unreasonable preference or advantage to any person or corporation or to any locality or to any particular description of traffic in any respect snatsoever, or subject any particular person or corporation or locality or any particular description of traffic to any peeletiee or disadvan- tage in any respect whatsoever. See section 34, chapter 565, Laws of 1890. See section 3, U. S. Interstate Commercee Act. § 33. Transportation prohibited until publication of schedules; rates as fixed to be charged; passes prohibited. No common carrier subject to the provisions of this act shall after the first day of November, nineteen hundred and seven, engage or participate in the transportation of passengers, freight or property, between points within the state, until its schedules of rates, fares and charges shall have been filed and published in accordance with the provisions of this act. No common carrier shall charge, demand, collect or receive a greater or less or different compensation for transportation of passengers, freight or property, or-for any service in connection therewith, than the rates, fares and charges applicable to such transportation as specified in its schedules filed and in effect at the time; nor shall any such carrier refund or remit in any manner or by any device any portion of the rates, fares, or charges so specified, nor extend to any shipper or person any privi- leges or facilities in the transportation of passengers or property except such as are regularly and uniformly extended to all persons and corporations under like circumstances. No common carrier subject to the provisions of this act shall, directly or indirectly, issue or give any free ticket, free pass or free transportation for passengers or property between points within this state, except to its officers, employees, agents, pensioners, surgeons, physicians, attor- neys-at-law, and their families; to ministers of religion, officers and employees of railroad young men’s Christian associations, inmates of hospitals, charitable and eleemosynary institutions and persons exclusively engaged in charitable and eleemosynary work; and to indigent, destitute and homeless persons and to such persons when transported by charitable societies or hospitals, and the necessary 509 Tue Pusrio Szervick Commissions Law. agents employed in such transportation; to inmates of the national homes or state homes for disabled volunteer soldiers and of soldiers’ and sailors’ homes, including those about to enter and those return- ing home after discharge, and boards of managers of such homes; to necessary caretakers of property in transit; to employees of sleep- ing car companies, express companies, telegraph and telephone com- panies doing business along the line of the issuing carrier; to rail- way mail service employees, post-office inspectors, customs inspectors and immigration inspectors; to newsboys on trains, baggage agents, witnesses attending any legal investigation or proceeding in which the common carrier is interested, persons injured in accidents or wrecks and physicians and nurses attending such persons; to the’ carriage free or at reduced rates of persons or property for the United States, state or municipal governments, or of property to or from fairs and expositions for exhibit thereat. Nothing in this act shall be construed to prohibit the interchange of free or reduced transpor- tation between common carriers of or for their officers, agents, employees, attorneys and surgeons and their families, nor to prohibit any common carrier from carrying passengers or property free, with the object of providing relief in cases of general epidemic, pestilence or other calamitous visitation; nor to prohibit any common carrier from transporting persons or property as incident to or connected with contracts for construction, operation or maintenance, and to the extent only that such free transportation is provided for in the contract for such work. ‘Provided further, that nothing in this act shall prevent the issuance of mileage, excursion, or commutation passenger tickets, or joint interchangeable mileage tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thousand miles or more. But before any common carrier, subject to the provision of this act, shall issue any such mileage, ex- cursion, commutation passenger ticket or joint interchangeable mile- age ticket, with special privileges as aforesaid, it shall file with the commission copies of the tariffs of rates, fares or charges on which such tickets are to be based, together with the specifications of the amount of free baggage permitted to be carried under such joint interchangeable mileage ticket, in the same manner as common carriers are required to do with regard to other rates by this act. Nor shall anything in this act prevent the issuance of passenger transportation in exchange for advertising space in newspapers at full rates. See sections 1, 6 and 22, U. S. Interstate Commerce Act. 510 Tue Pusztio Service Commissions Law. § 34. False billing, etc., by carrier or shipper. No common carrier or any officer or agent thereof or any person acting for or employed by it, shall assist, suffer or permit any person or corporation to obtain transportation for any passenger, freight or property between points within this state at less than the rates then established and in force in accordance with the schedules filed and published in accordance with the provisions of this act, by means of false billing, false classification, false weight or weighing, or false report of weight, or by any other device or means. No person, corporation or any officer, agent or employee of a corporation, who shall deliver freight or property for transportation within the state to a common carrier, shall seek to obtain or obtain such transpor- tation for such property at less than the rates then established and in force therefor, as aforesaid, by false billing, false or incorrect classifi- cation, false weight or weighing, false representation of the contents of a package, or false report or statement of weight, or by any other device or means, whether with or without the consent or connivance of the common carrier, or any of its officers, agents or employees. See section 10, U. S. Interstate Commerce Act. § 35. Discrimination prohibited; connecting lines. Every common carrier is required to afford all reasonable, proper and equal facilities for the interchange of passenger, freight and property traffic between the lines owned, operated, controlled or leased by it and the lines of every other common carrier, and for the prompt transfer of passengers and for the prompt receipt and forwarding of freight and property to and from its said lines; and no common carrier shall in any manner discriminate in respect to rates, fares or charges or in respect to any service or in respect to any charges or facilities for any such transfer in receiving or forwarding between . any two or more other common carriers or between passengers, freight or property destined to points upon the lines of any two or more other common carriers or in any respect with reference to passengers, freight or property transferred or received from any two or more other common carriers. This section shall not be construed to Tequire a common carrier to permit or allow any other common carrier to use its tracks or terminal facilities. Every common carrier, as such, is required to receive from every other common carrier, at a connecting point, freight cars of proper standard, and haul the same through to destination, if the destination be upon a line owned, operated or controlled by such common carrier, or if the des- tination be upon a line of some other common carrier, to haul any 511 Tue Pusiio Servicp Commissions Law. car so delivered through to the connecting point upon the line owned, operated, controlled or leased by it, by way of route over which such car is billed, and there to deliver the same to the next connecting carrier. Nothing in this section shall be construed as in anywise limiting or modifying the duty of a common carrier to establish joint rates, fares and charges for the transportation of passengers, freight and property over the lines owned, operated, controlled and leased by it and the lines of other common carriers, nor as in any manner limiting or modifying the power of the commission to require the establishment of such joint rates, fares and charges. A railroad corporation and a street railroad corporation shall not be required to interchange cars except on such terms and conditions as the commission may direct. See sections 34, 35, chapter 565, Laws of 1890. See sections 3 and 10, U. S. Interstate Commerce Act. Discriminations against another carrier. Bigbee, etc., Co. v. Mobile, etc., R. Co., 60 Fed. Rep. 545. § 36. Long and short haul. No common carrier, subject to the provisions of this act, shall charge or receive any greater compensation in the aggregate for the transportation of passengers or of a like kind of property, under sub- stantially similar circumstances and conditions, for a shorter than for a longer distance over the same line in the same direction, the short- er being included within the longer distance; but this shall not be construed as authorizing any such common carrier to charge and receive as great a compensation for a shorter as for a longer distance or haul. Upon application of a common carrier the commission may by order authorize it to charge less for longer than for shorter distances for the transportation of passengers or property in special cases after investigation by the commission, but the order must specify and prescribe the extent to which the common carrier making such application is relieved from the operation of this section, and only to the extent so specified and prescribed shall any common carrier be relieved from the operation and requirements of this section. See section 4, U. S. Interstate Commerce Act. BDlements to be considered on question of comparative rates for a long and short haul. Interstate Commerce Commission v. Alabama, etc., R. Co. 168 U. 8. 144; Texas, etc., R. Co. v. Interstate Commerce Commission, 162 U. 8. 197; Louisville & N. R. Co. v. Behlmer, 175 U. S. 648; Hast Tennessee, etc., R. Co. v. Interstate Commerce Commission, 181 U. S. 1; Interstate Commerce Com- mission v. Clyde S88. Co., 181 U. S. 29; Louisville & N. R. Co. v. Eubank, 184 U. S. 25; Interstate Commerce Commission y. Louisville & N. R. Co., 190 U. 8. 273. § 37. Distribution of cars. 1, Every railroad corporation or other common carrier engaged 512 Tun Pusrio Serviczk Commissions Law. in the transportation of freight shall, upon reasonable notice, furnish to all persons and corporations who may apply therefor, and offer freight for transportation, sufficient and suitable cars for the trans- portation of such freight in carload lots. Every railroad corporation and street railroad corporation shall have sufficient cars and motive power to meet all requirements for the transportation of passengers and property which may reasonably be anticipated, unless relieved therefrom by order of the commission. In case, at any particular time, a common carrier has not sufficient cars to meet all requirements for the transportation of property in car-load lots, all cars available to it for such purposes shall be distributed among the several appli- cants therefor, without discrimination between shippers, localities or competitive or non-competitive points, but preference may always be given in the supply of cars for shipment of livestock or perishable property. 2. The commission shall have power to make, and by order shall make, reasonable regulations for the furnishing and distribution of freight cars to shippers, for the switching of the same, for the loading and unloading thereof, for demurrage charges in respect thereto, and for the weighing of cars and freight offered for shipment or trans- ported by any common carrier. See section 1, U. S. Interstate Commerce Act. It seems that a State may make regulations in regard to number of cars in interstate traffic. Houston, etc., R. Co. v. Mayes, 201 U. S. 821. § 38. Liability for damage to property in transit. Every common carrier and every railroad corporation and street railroad corporation shall, upon demand, issue either a receipt or bill of lading for all property delivered to it for transportation. No contract, stipulation or clause in any receipt or bill of lading shall ‘exempt or be held to exempt any common carrier, railroad corpora- tion or street railroad corporation from: any liability for loss, damage or injury caused by it to freight or property from the time of its delivery for transportation until the same shall have been received at its destination and a reasonable time shall have elapsed after notice to consignee of such arrival to permit of the removal of such freight or property. Every common carrier, railroad corporation and street railroad corporation shall be liable for all loss, damage or injury to property caused by delay in transit due to negligence while the same is being carried by it, but in any action to recover for damages sus- tained by delay in transit the burden of proof shall be upon the defendant to show that such delay was not due to negligence. Every common carrier and railroad corporation shall be liable for loss, 513 Tue Pousrio Servicr Commissions Law. damage and injury to property carried as baggage up to the full value and regardless of the character thereof, but the value in excess of one hundred and fifty dollars shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such liability in excess of one hundred and fifty dollars and for the carriage of baggage exceeding one hundred and fifty pounds in weight upon a single ticket. Nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. See section 20, U. S. Interstate Commerce Act. § 39. Continuous carriage. No common carrier shall enter into or become a party to any com- bination, contract, agreement or understanding, written or oral, ex- press or implied, to prevent by any arrangement or by change of arrangement of time schedule, by carriage in different cars or by any other means or device whatsoever the carriage of freight and property from being continuous from the place of shipment to the place of destination. No breakage of bulk, stoppage or interruption of carriage made by any common carrier shall prevent the carriage of freight and property from being treated as one continuous carriage from the place of shipment to the place of destination. Nor shall any such breakage of bulk, stoppage or interruption of carriage be made or permitted by any common carrier except it be done in good faith for a necessary purpose without intention to avoid or unnecessarily interrupt or delay, the continuous carriage of such freight or property or to evade any of the provisions of law, of this act or of an order of the commission. See section 7, U. S. Interstate Commerce Act. § 40. Liability for loss or damage caused by violation of this act. In case a common carrier shall do, cause to be done or permit to be done an act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done, either by any law of the state of New York, by this act or by an order of the commission, such common carrier shall be liable to the persons or corperations affected thereby for all loss, damage or injury caused thereby or resulting therefrom, and in case of recovery, if the court shall find that such act or omission was wilful, it may in its discretion fix a reasonable counsel or attorney’s fee, which fee shall be taxed and collected as part of the costs in the case. An action to recover for such loss, damage or injury may be brought 514 Tue Pousrio Servicr Commissions Law. in any court of competent jurisdiction by any such person or corpora- tion. See section 8, U. S. Interstate Commerce Act. ARTICLE 3. PROVISIONS RELATING TO THE POWERS OF THE COMMISSIONS IN RESPECT TO COMMON CARRIERS, RAILROADS AND STREET RAILROADS. Section 45. General powers and duties of commissions in respect to common carriers, railroads and street railroads. 46. Reports of common carriers, railroad corporations and street railroad corporations. 47. Investigation of accidents. 48. Investigations by commission. 49. Rates and service to be fixed by the commissions. 50. Power of commissions to order repairs or changes. 51. Power of commissions to order changes in time schedules ; running of additional cars and trains. 52. Uniform system of accounts; access to accounts, et cetera; forfeitures. 53. Franchises and privileges. 54. Transfer of franchises or stocks. 55. Approval of issues of stock, bonds and other forms of indebtedness. 56. Forfeiture; penalties. 5%. Summary proceedings. 58. Penalties for other than common carrier. 59. Action to recover penalties or forfeitures. 60. Duties of commissions as to interstate traffic. ° § 45. General powers and duties of commissions in respect to common carriers, railroads and street railroads. 1. Fach commission and each commissioner shall have power and authority to administer oaths, in all parts of the state, to witnesses summoned to testify in any inquiry, investigation, hearing or pro- ceeding; and also administer oaths in all parts of the state whenever the exercise of such power is incidentally necessary or proper to enable the commission or a commissioner to perform a duty or to exercise a power. 2. Each commission shall have the general supervision of all 515 Tun Pusrio Service Commissions Law. common carriers, railroads, street railroads, railroad corporations and street railroad corporations within its jurisdiction as hereinbefore defined, and shall have power to and shall examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines, owned, leased, con- trolled or operated, are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law, orders of the commission and charter requirements. 3. Each commission and each commissioner shall have power to examine all books, contracts, records, documents and papers of any person or corporation subject to its supervision, and by subpoena duces tecum to compel production thereof. In lieu of requiring production of originals by the subpoena duces tecum, the commission or any commissioner may require sworn copies of any such books, records, contracts, documents and papers or parts thereof to be filed with it. 4, Hither commission shall conduct a hearing and take testimony as to the advisability of any proposed change of law relating to any common carrier, railroad corporation or street railroad corporation, if requested to do so by the legislature, by the senate or assembly com- mittee on railroads, or by the governor, and may conduct such a hearing, when requested to do so, by any person or corporation, and shall report its conclusions to the officer, body, person or corporation at whose request the hearing was held. The commission may also recommend the enactment of such legislation, with respect to any matter within its jurisdiction, as it deems wise or necessary in the public interest, and may draft or cause to be drafted such bills or acts as it may deem necessary or proper to enact into law the legislation recommended by it. See section 12, U. S. Interstate Commerce Act. See sections 157 and 163, chapter 565, of the Laws of 1890. Commerce wholly within a State may be regulated by a State. Louisville, etc., R. Co. v. Mississippi, 188 U. S. 584; Platt v. Le Cocq, 150 Fed. Rep. 391; Sinot v. Davenport, 63 U. S. 227. Statutes regulating commerce are remedial and to be liberally construed. Interstate Commerce Commission v. Cincinnati, etc., R. Co., 200 U. S. 361. § 46. Reports of common carriers, railroad corporations and street railroads corporations. Each commission shall prescribe the form of the annual reports required under this act to be made by common carriers, railroad and street railroad corporations, and may from time to time make such changes therein and additions thereto as it may deem proper; provided, however, that if any such changes or additions require any 516 Tue Pustia Serviczs Commissions Law. alteration in the method or form of keeping the accounts of such corporations, the commission shall give to them at least six months’ notice before the expiration of any fiscal year of any such changes or additions, and on or before June thirtieth, in each year, shall furnish a blank form for such report. The contents of such report and the form thereof shall conform as near as may be to that required of common carriers under the provisions of the act of congress, entitled, “ An act to regulate commerce,” approved February fourth, eighteen hundred and eighty-seven, and the act amendatory thereof approved June twenty-ninth, nineteen hundred and six, and other amendments thereto. The commission may require such report to contain in- formation in relation to rates or regulations concerning fares or freights, agreements or contracts affecting the same, so far as such rates or regulations pertain to transportation within the state. When the report of any such corporation is defectivs, or believed to be erroneous, the commission shall notify the corporation to amend the same within thirty days. The originals of the reports, subscribed and sworn to as prescribed by law, shall be preserved in the office of the commission. The commission may also require such corporations to file monthly reports of earnings and expenses within a specified time. The commission may require of all such corporations specific answers to questions upon which the commission may need information. The annual report required to be filed by a common carrier, railroad or street railroad corporation shall be so filed on or before the thirtieth day of September in each year. The commission may extend the time for making and filing such report for a period not exceeding sixty days. If such corporation shall fail to make and file the annual report within the time above specified, or within the time as extended by the commission, or shall fail to make specific answer to any question, or shall fail to make the monthly reports when required by the commission as herein provided, within thirty days from the time when it is required to make and file any such report or answer, such corporation shall forfeit to the state the sum of one hundred dollars for each and every day it shall continue to be in default with respect to such report er answer. Such forfeiture shall be recovered in an action brought by the commission in the name of the people of the state of New York. The amount recovered in any such action shall be paid into the state treasury and credited to the general fund. Any railroad corporation operating a line partly within the second distriet and partly within the first district shall report to the commis- sion of the second district; but the commission of the first district may, upon reasonable notice, require a special report from such rail- 517 Tus Pusrtio Szervice Commissions Law. road corporation. Any street railroad corporation operating a line partly within the first district and partly within the second district shall report to the commission of the first district ; but the commission of the second district may, upon reasonable notice, require a special report from such street railroad corporation. See sections 57, 158, chapter 565, Laws of 1890. See section 20, U. S. Interstate Commerce Act. § 47. Investigation of accidents. Each commission shall investigate the cause of all accidents on any railroad or street railroad within its district which result in loss of life or injury to persons or property, and which in its judgment shall require investigation. Every common carrier, railroad corporation and street railroad corporation is hereby required to give immediate notice to the commission of every accident happening upon any line of railroad or street railroad owned, operated, controlled or leased by it, within the territory over which such commission has jurisdiction in such manner as the commission may direct. Such notice shall not be admitted as evidence or used for any purpose against such common carrier, railroad corporation or street railroad corporation giving such notice in any suit or action for damages growing out of any matter mentioned in said notice. See section 159, chapter 565, Laws of 1890. See section 20, U. S. Interstate Commerce Act. § 48. Investigations by commission. 1. Each commission may, of its own motion, investigate or make inquiry, in a manner to be determined by it, as to any act or thing: done or omitted to be done by any common carrier, railroad corpora- tion or street railroad corporation, subject to its supervision, and the commission must make such inquiry in regard to any act or thing done or omitted to be done by any such common carrier, railroad corporation or street railroad corporation in violation of any provi- sion of law or in violation of any order of the commission. 2. Complaints may be made to the proper commission by any person or corporation aggrieved, by petition or complaint in writing setting forth any thing or act done or omitted to be done by any common carrier, railroad corporation or street railroad corporation in viola- tion, or claimed to be in violation, of any provision of law or of the terms and conditions of its franchise or charter or of any order of the commission. Upon the presentation of such a complaint the com- mission shall cause a copy thereof to be forwarded to the person or corporation complained of, accompanied by an order, directed to such person or corporation, requiring that the matters complained of be 518 Tus Pusuio Service Commissions Law. satisfied, or that the charges be answered in writing within a time to be specified by the commission. If the person or corporation com- plained of shall make reparation for any injury alleged and shall cease to commit, or to permit, the violation of law, franchise or order charged in the complaint, and shall notify the commission of that fact before the time allowed for answer, the commission need take no further action upon the charges. If, however, the charges contained in such petition be not thus satisfied, and it shall appear to the com- mission that there are reasonable grounds therefor, it shall investigate such charges in such manner and by such means as it shall deem proper, and take such action within its powers as the facts justify. 3. Whenever either commission shall investigate any matter com- plained of by any person or corporation aggrieved by any act or omis- sion of a common carrier, railroad corporation or street railroad cor- poration under this section it shall be its duty to make and file an order either dismissing the petition or complaint or directing the common carrier, railroad corporation or street railroad corporation complained of to satisfy the cause of complaint in whole or to the extent which the commission may specify and require. See sections 13 and 14, U. S. Interstate Commerce Act, § 49. Rates and service to be fixed by the commission. Whenever either commission shall be of opinion, after a hearing, upon a complaint made as provided in this act, that the rates, fares or charges demanded, exacted, charged or collected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction for the transportation of persons, freight or property within the state, or that the regulations or practices of such common carrier, railroad corporation or street railroad corporation affecting such rates are unjust, unreasonable, unjustly discriminatory or un- duly preferential, or in any wise in violation of any provision of law, the commission shall determine the just and reasonable rates, fares and charges to be thereafter observed and in force as the maximum to be charged for the service to be performed, and shall fix the same by order to be served upon all common carriers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be observed. And whenever the commission shall be of opinion, after a hearing, had upon its own motion or upon com- plaint, that the regulations, practices, equipment, appliances, or ser- vice of any such common carrier, railroad corporation or street rail- road corporation in respect to transportation of persons, freight or property within the state are unjust, unreasonable, unsafe, improper or inadequate, the commission shall determine the just, reasonable, 519 Tue Pusrio SrervicE Commissions Law. safe, adequate and proper regulations, practices, equipment, appliances and service thereafter to be in force and to be observed in respect to such transportation of persons, freight and property, and so fix and prescribe the same by order to be served upon every common carrier, railroad corporation and street railroad corporation to be bound thereby ; and thereafter it shall be the duty of every common carrier, railroad corporation and street railroad corporation to observe and obey each and every requirement of every such order so served upon it, and to do everything necessary or proper in order to secure abso- lute compliance with and observance of every such order by all its officers, agents and employees. The commission shall have power by order to require any two or more common carriers or railroad cor- porations whose lines, owned, operated, controlled or leased, form a continuous line of transportation or could be made to do so by the construction and maintenance of switch connection, to establish through routes and joint rates, fares and charges for the transporta- tion of passengers, freight and property within the state as the com- mission may, by its order, designate; and in case such through routes and joint rates be not established by the common carriers or railroad corporations named in any such order within the time therein specified, the commission shall establish just and reasonable rates, fares and charges to be charged for such through transportation, and declare the portion thereof to which each common carrier or railroad cor- poration affected thereby shall be entitled and the manner in which the same shall be paid and secured. See section 15, U. S. Interstate Commerce Act. The legislature has power to fix rates. San Diego Co. v. Jasper, 189 U. S. 439; Stanislaus v. San Joaquin Co., 192 U. S. 201; Cotting v. Kansas City Stock Yards, 183 U. S. 79; Mumm vy. Illinois, 94 U. S. 113. It seems that the legis- lature can confer upon a commission the right to fix rates. Chicago, ete., v. Min- nesota, 1384 U. S. 418; Minneapolis R. Co. v. Minneapolis, 186 U. S. 257; Peck v. Chicago, etc., R. Co., 94 U. S. 164; New Memphis Gas Co. v. Memphis, 72 Fed. Rep. 952; Reagan v. Farmers’ L. & T. Co., 154 U. S. 362; Railroad Commission Cases, 154 U. S. 307; San Diego Land Co. v. National City, 174 U. S. 739; Stanislaus v. San Joaquin Co. supra. Contra, similar attempts have been held to be an unlawful delegation of legislative power. Barto v. Himrod, 8 N. Y. 483; Johnstown Cemetery Assn. v. Parker, 45 App. Div. 55; Bradshaw vy. Lankford, 73 Md. 428; Owensboro, etc., Co. v. Todd, 91 Ky. 175; Arms v. Ayer, 192 Ill. 601; Board v. Excelsior, 88 Cal. 491; State v. Des Moines, 103 Iowa, 76; Minnesota v. Great Northern R. Co., Supreme Court of Minnesota (1907), not yet reported. Rules for determining reasonable rate stated. Smyth v. Ames, 169 U. S. 466; Interstate Commerce Commission v. Delaware, ete, R. Co., 64 Fed Rep. 723. The determination of the reasonableness of rates is a judicial act. Chicago R. Co. v. Minnesota, 134 U. S. 418; Interstate Commerce Commission vy. Cincinnati, etc., R. Co., 167 U. S. 479; Smyth v. Ames, supra; Regan v. Farmers’ L. & T. Co., 154 U. S. 362. The fixing of rates is a legislative act. Interstate Commerce Commission v. Cincinnati, etc., R. Co., supra; Reasonableness of joint and through rates may be determined by a commission. Minnesota R. Co. v. Minnesota, 186 U. 8. 257. 520 Tus Pusrio Service Commissions Law. § 50. Power of commissions to order repairs or changes. If, in the judgment of the commission having jurisdiction, repairs or improvements to or changes in any tracks, switches, terminals or terminal facilities, motive power, or any other property or device used by any common carrier, railroad corporation or street railroad cor- poration in or in connection with the transportation of passengers, freight or property ought reasonably to be made, or that any additions should reasonably be made thereto, in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers, freight or property, the commission shall, after a hearing either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein, and every common carrier, railroad corporation and street railroad corporation is hereby required and directed to make all repairs, improvements, changes and additions required of it by any order of the commission served upon it. See sections 100 and 161, chapter 565, Laws of 1890. See section 1, U. S. Interstate Commerce Act. § 51. Power of commissions to order changes in time schedules; running of additional cars and trains. If, in the judgment of the commission having jurisdiction, any railroad corporation or street railroad corporation does not run trains enough or cars enough or possess or operate motive power enough, reasonably to accommodate the traffic, passenger and freight, transported by or offered for transportation to it, or does not run its trains or cars with sufficient frequency or at a reasonable or proper time having regard to safety, or does not run any train or trains, car or cars, upon a reasonable time schedule for the run, the commission shall, after a hearing either on its own motion or after complaint, have power to make an order directing any such railroad corporation or street railroad corporation to increase the number of its trains or of its cars or its motive power or to change the time for starting its trains or cars or to change the time schedule for the run of any train or car or make any other suit- able order that the commission may determine reasonably necessary to accommodate and transport the traffic, passenger or freight, transported or offered for transportation. See section 23, U. S. Interstate Commerce Act. Regulations in regard to running of trains. Railroad Co. v. Richmond, 96 U. S. 521; Cleveland R. Co. v. Illinois, 177 U. 8S. 514; Brb v. Morash, 177 U. 8. 584; Hunnington v. Georgia, 168 U. S. 299. 521 Tue Pousrtio Service Commissions Law. 8 52. Uniform system of accounts; access to accounts, etc.; for= feitures. Each commission may, whenever it deems advisable, establish a uniform system of accounts to be used by railroad and street railroad corporations or other common carriers which are subject to its super- vision, and may prescribe the manner in which such accounts shall be kept. It may also in its discretion prescribe the forms of accounts, records and memoranda to be kept by such corporations, including the accounts, records and memoranda of the movement of traffic as well as the receipts and expenditures of moneys. The system of acounts established by the commission and the forms of accounts, records and memoranda prescribed by it as provided above shall con- form as near as may be to those from time to time established and prescribed by the interstate commerce commission under the provi- sions of the act of Congress entitled “ An act to regulate commerce,” approved February fourth, eighteen hundred and eighty-seven, as amended by the act approved June twenty-ninth, nineteen hundred and six, and amendments thereto. The commission shall at all times have access to all accounts, records and memoranda kept by railroad and street railroad corporations and may prescribe the accounts in which particular outlays and receipts shall be entered, and may designate any of its officers or employees who shall thereupon have authority under the order of the commission to inspect and examine any and all accounts, records and memoranda kept by such corpora- tions. Where the commission has prescribed the forms of accounts, records and memoranda to be kept by such corporations it shall be unlawful for them to keep any other accounts, records or memoranda than those so prescribed, or those prescribed by or under authority of the United States. Any employee or agent of the commission who divulges any fact or information which may come to his knowledge during the course of any such inspection or examination except in so far as he may be directed by the commission, or by a court or judge thereof, or authorized by law, shall be guilty of a misdemeanor. See section 20, U. S. Interstate Commerce Act. § 53. Franchises and privileges. Without first having obtained the permission and approval of the proper commission no railroad corporation, street railroad corpora- tion or common carrier shall begin the construction of a railroad or street railroad, or any extension thereof, for which prior to the time when this act becomes a law a certificate of public convenience and necessity shall not have been granted by the board of railroad commis- sioners or where prior to said time said corporation or common carrier 522 Tue Pusztro Servicz Commissions Law. shall not have become entitled by virtue of its compliance with the provisions of the railroad law to begin such construction ; nor, except as above provided in this section, shall any such corporation or common carrier exercise any franchise or right under any provision of the railroad law, or of any other law, not heretofore lawfully exercised, without first having obtained the permission and approval of the proper commission. The commission within whose district such construction is to be made, or within whose district such fran- chise or right is to be exercised, shall have power to grant the per- mission and approval herein specified whenever it shall after due hearing determine that such construction or such exercise of the fran- chise or privilege is necessary or convenient for the public service. And if such construction is to be made, or such franchise to be exer- cised in both districts, the approval of both commissions shall be secured. § 54. Transfer of franchises or stocks. No franchise nor any right to or under any franchise, to own or operate a railroad or street railroad shall be assigned, transferred or leased, nor shall any contract or agreement with reference to or affecting any such franchise or right be valid or of any force or effect whatsoever, unless the assignment, transfer, lease, contract or agree- ment shall have been approved by the proper commission. The per- mission and approval of the commission, to the exercise of a franchise under section fifty-three, or to the assignment, transfer or lease of a franchise under this section shall not be construed to revive or validate any lapsed or invalid franchise, or to enlarge or add to the powers and privileges contained in the grant of any franchise, or to waive any forfeiture. No railroad: corporation, or steet railroad corporation, domestic o~ foreign, shall hereafter purchase or acquire, take or hold, any part of the capital stock of any railroad corporation or street railroad cor- poration or other common carrier organized or existing under or by virtue of the laws of this state, unless authorized so to do by the com- mission empowered by this act to give such consent; and save where stock shall be transferred or held for the purpose of collateral security only with the consent of the commission empowered by this act to give such consent, no stock corporation of any description, domestic or foreign, other than a railroad corporation or street railroad corpora- tion, shall purchase or acquire, take or hold, more than ten per centum of the total capital stock issued by any railroad corporation or street railroad corporation or other common carrier organized or existing 523 Tue Posuio Service Commissions Law. under or by virtue of the laws of this state. Nothing herein contained shall be construed to prevent the holding of stock heretofore lawfully acquired. Every contract, assignment, transfer or agreement for transfer of any stock by or through any person or corporation to any corporation, in violation of any provision of this act, shall be void and of no effect, and no such transfer or assignment shall be made upon the books of any such railroad corporation or street railroad corpora- tion, or shall be recognized as effective for any purpose. The power conferred by this section to approve or disapprove a transaction rela- ting to franchises, rights or stock of any railroad corporation or street railroad corporation, or other common carrier, shall be exercised by the commission which is authorized by this act to approve the issue of stock by such railroad corporation or street railroad corporation. $ 55. Approval of issues of stock, bonds and other forms of indebtedness. A common carrier, railroad corporation or street railroad corpora- tion organized or existing, or hereafter incorporated, under or by virtue of the laws of the state of New York, may issue stocks, bonds, notes or other evidence of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisi- tion of property, the construction, completion, extension or improve- ment of its facilities, or for the improvement or maintenance of its service or for the discharge or lawful refunding of its obligations, provided and not otherwise, that there shall have been secured from the proper commission an order authorizing such issue, and the amount thereof and stating that, in the opinion of the commission, the use of the capital to be secured by the issue of such stock, bonds, notes or other evidence of indebtedness is reasonably required for the said purposes of the corporation, but this provision shall not apply to any lawful issue of stock, to the lawful execution and delivery of any mortgage or to the lawful issue of bonds thereunder, which shall have been duly approved by the board of railroad commis- sioners before the time when this act becomes a law. For the purpose of enabling it to determine whether it should issue such an order, the commission shall make such inquiry or investigation, hold such ‘hearings and examine such witnesses, books, papers, documents or contracts as it may deem of importance in enabling it to reach a determination. Such common carrier, railroad cor- poration or street railroad corporation may issue notes, for proper corporate purposes and not in violation of any provision of this or any other act, payable at periods of not more than twelve 524 Tur Pousrio Serviczt Commissions Law. months without such consent, but no such notes shall, in whole or in part, directly or indirectly be refunded by any issue of stock or bonds or by any evidence of indebtedness running for more than twelve months without the consent of the proper commission. Pro- vided, however, that the commission shall have no power to authorize the capitalization of any franchise to be a corporation or to authorize the capitalization of any franchise or the right to own, operate or enjoy any franchise whatsoever in excess of the amount (exclusive of any tax on annual charge) actually paid to the state or to a political subdivision thereof as the consideration for the grant of such fran- chise or right; nor shall the capital stock of a corporation formed by the merger or consolidation of two or more other corporations, exceed the sum of the capital stock of the corporations so consolidated, at the par value thereof, or such sum and any additional sum actually paid in cash; nor shall any contract for consolidation or lease be capitalized in the stock of any corporation whatever; nor shall any corporation hereafter issue any bonds against or as a lien upon any contract for consolidation or merger. Whenever it shall happen that any railroad corporation shall own or operate its lines in both districts it shall, under this section, apply to the commission of the second district. Whenever it shall happen that any street railroad corpora- tion shall own or operate its lines in both districts, it shall, under this section, apply to the commission of the first district. Any other common carrier not operating exclusively in the first district shall apply to the commission of the second district. Legislature cannot delegate to a commission power to determine whether or not there shall be an increase of the capital stock of a corporation. Minnesota v. Great Northern R. Co., Minnesota Supreme Court, 1907 (not yet reported). “) § 56. Forfeiture; penalties. 1. Every common carrier, railroad corporation and street railroad corporation and all officers, and agents of any common carrier, rail- road corporation or street railroad corporation shall obey, observe and comply ‘with every order made by the commission, under authority of this act, so long as the same shall be and remain in force. Any com- mon carrier, railroad corporation or street railroad corporation which shall violate any provision of this act, or which fails, omits or neglects to obey, observe or comply with any order or any direction or requirement of the commission, shall forfeit to the people of the state of New York not to exceed the sum of five thousand dollars for each and every offense; every violation of any such order or direction or requirement, or of this act, shall be a separate and distinct offense, and, in case of a continuing violation, every day’s continuance thereof shall be and be deemed to be a separate and distinct offense. 525 Tur Pusitio Service Commissions Law. 2. Every officer and agent of any such common carrier or corpora- tion who shall violate, or who procures, aids or abets any violation by any such common carrier or corporation of, any provision of this act, or who shall fail to obey, observe and comply with any order of the commission or any provision of an order of the commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and comply with any such order or provision, shall be guilty of a misdemeanor. See sections 10 and 16, U. S. Interstate Commerce Act. § 57. Summary proceedings. Whenever either commission shall be of opinion that a common carrier, railroad corporation or street railroad corporation subject to its supervision is failing or omitting or about to fail or omit to do anything required of it by law or by order of the commission, or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commission to commence an action or proceeding in the supreme court of the state of New York in the name of'the commission for the pur- pose of having such violations or threatened violations stopped and prevented either by mandamus or injunction. Counsel to the com- mission shall thereupon begin such action or proceeding by a petition to the supreme court alleging the violation complained of and praying for appropriate relief by way of mandamus or injunction. It shall thereupon be the duty of the court to specify the time, not exceeding twenty days after service of a copy of the petition, within which the common carrier, railroad corporation or street railroad corporation complained of must answer the petition. In case of default in an- swer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any tec- nical requirement. Such other persons or corporations as the court shall deem necessary or proper to join as parties in order to make its order, judgment or writs effective, may be joined as parties upon application of counsel to the commission. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford the appropriate relief. See section 20, U. S. Interstate Commerce Act. A law which seeks to prohibit court review is unconstitutional. Chicago, etc., R. €o. v. Minnesota, 134 U. 8. 418. 526 Tie Pusrio Servicer Commissions Law. § 58. Penalties for other than common carriers. 1. Any corporation, other than a common carrier, railroad cor- poration or street railroad corporation, which shall violate any pro- vision of this act, or shall fail to obey, observe and comply with every order made.by the commission under authority of this act, so long as the same shall be and remain in force, shall forfeit to the people of the state of New York a sum not exceeding one thousand dollars for each and every offense; every such violation shall be a separate and distinct offense, and the penalty or forfeiture thereof shall be re- covered in an action as provided in section fifty-nine of this act. 2. Every person who, either individually or acting as an officer of agent of a corporation other than a common carrier, railroad corpora- tion or street railroad corporation, shall violate any provision of this act or fail to obey, observe or comply with any order made by the commission under this act, so long as the same shall be or remain in force, or who shall procure, aid or abet any such corporation in -its violation of this act or in its failure to obey, observe or comply with any such order, shall be guilty of a misdemeanor. 3. In construing and enforeing the provision of this act relating to forfeitures and penalties the act of any director, officer or other person acting for or employed by any common carrier, railroad cor- poration, street railroad corporation or corporation, acting within the scope of his official duties or employmient, shall be in every case and be deemed to be the act of such common carrier, railroad corporation, street railroad corporation ot corporation. § 59. Action to recover penalties or forfeitures. An action to recover a penalty or a forfeiture under this act may be brought in any court of competent jurisdiction in this state in the name of the people of the state of New York, and shall be commenced and prosecuted to final judgment by counsel to the commission. In any such action all penalties and forfeitures incurred up to the time of commencing the same may be sued for and recovered therein, and the commencement of an action to recover a penalty or forfeiture shall not be, or be held to be, a waiver of the right to recover any other penalty or forfeiture; if the defendant in sueh attion shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for a violation of an order of the com- mission the defendant was actually and in good faith prosecuting a suit, action or proceeding in the courts to set aside such order, the coutt shall remit the penalties or forfeitures incurred diiring the pendency of such suit, action or proceeding. All moneys recovered in 527 Tue Pusrio Service Commissions Law. any such action, together with the costs thereof, shall be paid into the state treasury to the credit of the general fund. § 60. Duties of commissions as to interstate traffic. Hither commission may investigate freight rates on interstate traffic on railroads within the state, and when such rates are, in the opinion of either commission, excessive or discriminatory or are levied or laid in violation of the interstate commerce law, or in conflict with the rulings, orders or regulations of the interstate commerce commission, the commission may apply by petition to the interstate commerce commission for relief or may present to the interstate commerce com~- mission all facts coming to its knowledge, as to violations of the rulings, orders, or regulations of that commission or as to violations of the interstate commerce law. ARTICLE 4. PROVISIONS RELATING TO GAS AND ELECTRIO CORPORATIONS ; REGULA- TION OF PRICE OF GAS AND ELECTRICITY. Seotion 65. Application of article. 66. General powers of commissions in respect to gas and . electricity. 67. Inspection of gas and electric meters. 68. Approval of incorporation and franchises ; certificate. 69. Approval of issue of stock, bonds and other forms of in- debtedness. %0. Approval of transfer of franchise. 71. Complaints as to quality and price of gas and electricity ; investigation by commission; forms of complaints. 72. Notice and hearing; order fixing price of gas or elec- tricity, or requiring improvements. 73. Forfeiture for noncompliance with order. 74. Summary proceedings. 75. Defense in case of excessive charge for gas or electricity. %6. Jurisdiction. 7. Powers of local officers. 8 65. Application of article. This article shall apply to the manufacture and furnishing of gas for light, heat or power and the furnishing of natural gas for light, 528 Tus Pousiio Service Commissions Law. heat or power, and the generation, furnishing and transmission of electricity for light, heat or power. § 66. General powers of commissions in respect to gas and electricity. Each commission shall within its jurisdiction: 1. Have the general supervision of all persons and corporations having authority under any general or special law or under any charter or franchise to lay down, erect or maintain wires, pipes, con- duits, ducts or other fixtures in, over or under the streets, highways and public places of any municipality, for the purpose of furnishing or distributing gas or of furnishing or transmitting electricity for light, heat or power, or maintaining underground conduits or ducts for electrical conductors. 2. Investigate and ascertain, from time to time, the quality of gas supplied by persons, corporations and municipalities; examine the methods employed by such persons, corporations and municipalities in manufacturing and supplying gas or electricity for light, heat or power and in transmitting the same, and have power to order such improvements as will best promote the public interest, preserve the public health and protect those using such gas or electricity and those employed in the manufacture and distribution thereof, or in the main- tenance and operation of the works, wires, poles, lines, conduits, ducts and systems maintained in connection therewith. 3. Have power to fix the standard of illuminating power and purity of gas, not less than that prescribed by law, to be manufactured or sold by persons, corporations or municipalities for lighting, heating or power purposes, and to prescribe methods of regulation of the electric supply system as to the use for incandescent lighting and fix the initial efficiency of incandescent lamps furnished by the persons, corporations or municipalities generating and selling electric current for lighting, and by order to require the gas so manufactured or sold to equal the standard so fixed by it, and to establish the regulations as to pressure at which gas shall be delivered. For the purpose of determining whether the gas sold by such persons, corporations or municipalities for lighting, heating or power purposes conforms to the standard of illuminating power and purity and, of its own motion, examine and investigate the methods employed in manufacturing, delivering and supplying the gas so sold, and shall have access through its members or persons employed and authorized by it to make such examinations and investigations to all parts of the manufacturing plants owned, used or operated for the manufacture or distribution of 529 Tue Pousztio Service Commissions Law. gas by any such person, corporation or municipality. Any employee or agent of the commission who divulges any fact or information which may come to his knowledge during the course of any such in- spection or examination, except in so far as he may be directed by the commission, or by a court or judge thereof, or authorized by law, shall be guilty of a misdemeanor. 4. Have power, in his discretion, to prescribe uniform methods of keeping accounts, records and books, to be observed by the persons, corporations and municipalities engaged in the manufacture, sale and distribution of gas and: electricity for light, heat or power. 5. Examine all persons, corporations and municipalities under its supervision, keep informed as to the methods employed by them in the transaction of their business and see that their property is maintained and operated for the security and accommodation of the public and in compliance with the provisions of law and of their franchises and charters. 6. Require every person and corporation under its supervision to submit to it an annual report, verified by the oath of the president, treasurer, or general manager thereof, showing in detail (1) the amount of its authorized capital stock and the amount thereof issued and outstanding; (2) the amount of its authorized bonded indebted- ness and the amount of its bonds ‘and other forms of evidence of in- debtedness issued and outstanding; (3) its receipts and expenditures during the preceding year; (4) the mount paid as dividends upon its stock and as interest upon its bonds; (5) the name of, and the amount paid as salary to each officer and the amount paid as wages to its em- ployees; (6) the location of its plant or plants and system, with a full description of its property and franchises, stating in detail how each franchise stated to be owned was acquired, and (7) such other facts pertaining to the operation and maintenance of the plant and system, and the affairs of such person or corporation as may be re- quired by the commission. Such reports shall be in the form, cover the period and be submitted at the time prescribed by the commission. The commission may, from time to time, make changes and addi- tions in such forms, giving to the persons, corporations and munic- ipalities six months’ notice before the time fixed by the commission as the expiration of the fiscal year of any changes or additions which would require any alteration in the method or form of keeping their accounts for the ensuing year. When any such report is defective or believed to be erroneous, the commission shall notify the person, corporation or municipality making such report to amend the same within thirty days. Any such person or corporation or municipality 530 Tue Pusrio Service Commissions Law. which shall neglect to make any such report within the time specified by the commission, or which shall fail to correct any such report within thirty days after notice, shall be liable to a penalty of one hundred dolllars and an additional penalty of one hundred dollars for each day after the prescribed time for which it shall neglect to file or correct the same, to be sued for in the name of the people of the state of New York. The amount recovered in any such action shall be paid into the state treasury and be credited to the general fund. The commis- sion may extend the time herein limited for cause shown. %. Require each municipality engaged in operating any works or systems for the manufacture and supplying of gas or electricity to make an annual report to the commission, verified by the oath of the general manager or superintendent thereof, showing in detail, (1) the amount of its authorized bonded indebtedness and the amount of its bonds and other forms of evidence of indebtedness issued and outstanding for lighting purposes, (2) its receipts and expenditures during the preceding year, (3) the amount paid as interest upon its bonds and upon other forms of evidence of in- debtedness, (4) the name of and the amount paid to each person receiving a yearly or monthly salary, and the amount paid as wages to employees, (5) the location of its plant and system with a full description of the property, and (6) such other facts per- taining to the operation and maintenance of the plant and system, as may be required by the commission. Such report shal] be in the form, cover the period and: be submitted at the time prescribed by the commission. 8. Have power, either through its members or inspectors or em- ployees duly authorized by it, to enter in or upon and to inspect the property, buildings, plants, factories, power houses and offices of any such corporations, persons or municipalities. 9. Have power to examine the books and affairs of any such corporations, persons or municipalities, and to compel the produc- tion before it of books and papers pertaining to the affairs being investigated by it. _10. Have power, either as a commission or through its mem- bers, to subpcena witnesses, take testimony and administer oaths to witnesses in any proceeding or examination instituted before it, or conducted by it in reference to any matter within its jurisdiction under this article. See section 9, chapter 737, of the Laws of 1905. Where legislature has fixed rate courts cannot lower it. Brooklyn Gas Co. y. New York, 188 N. Y. 334. Legislature may fix price of gas, but such rate must allow reasonable profit to stockholders. Richman vy. Consolidated Gas Co., 114 App. Div. 216, affirmed 186 N. Y. 209. 531 Tue Pusrio Servicz Commissions Law. By section 70 of the Transportation Corporation Law (chapter 566, Laws of 1890), the maximum price of gas in the city of New York was fixed at $1.25 per thousand cubic feet, except in certain wards and districts in which such max- imum price was fixed at $1.60. The standard of illuminating power was also fixed. By chapter 385, Laws of 1897, the maximum price was further reduced in said city, except certain specified district, by a yearly sliding scale, until, after the year 1900, the maximum price was fixed at $1.00. The standard of illuminating power was also fixed. By chapter 736, Laws of 1905, the maximum price to said city was fixed at 75 cents per thousand cubit feet, and the standard of illuminating power and pressure was also fixed. By chapter 125, Laws of 1906, the maximum price in said city was fixed at 80 cents, the same price at which the Commission of Gas and Electricity, acting under chapter 737, Laws of 1905, had fixed the maximum price in said city. In Consolidated Gas Co. v. Mayer, as Attorney-Gen- eral, et al., a temporary injunction was obtained (146 Fed. Rep. 150), and the matter referred to a special master in chancery for determination. By his report, just handed down, it is held that the prices fixed by chapter 736, Laws of 1905, chapter 125, Laws of 1907, and by the order of the commission were confiscatory, unconstitutional and void. See section 49 and notes, supra, as to right to fix rates generally. By chapter 732, Laws of 1905, the maximum price of electric current in the city of New York to consumers other than the city, was fixed at 12 cents per kilowatt hour in Kings county and at 10 cents per kilowatt in the remainder of said city, except fifth ward borough of Queens. By chapter 733, Laws of 1905, amended chapter 390, Laws of 1906, the price of electric current sold to the city of New York was regulated. By chapter 227, Laws of 1907, the maximum price of gas in the city of Albany was fixed at $1.00 per thousand cubic feet and the standard of illuminating power and purity was fixed. By chapter 152, Laws of 1907, the maximum price of electricity in the city of Albany was fixed at 10 cents per kilowatt hour. By chapter 457, Laws of 1907, the maximum price of gas in the city of Syracuse was fixed at 95 cents per thousand cubic feet, the maximum price of electricity at 9 cents per kilowatt hour, the standards of illuminating power, purity and pressure of gas were also fixed and the price and volume of illumination of electric arc street lamps. By chapter 557, Laws of 1907, the standards of purity, illuminating power and pressure of gas in cities of the second class was fixed. ’ § 67. Inspection of gas and electric meters. 1. Each commission shall appoint inspectors of gas and electric meters whose duty it shall be when required, to inspect, examine, prove and ascertain the accuracy of any and all gas meters used or intended to be used for measuring or ascertaining the quantity of illuminating or fuel gas or natural gas furnished by any gas corporation to or for the use of any person and any and all electric meters used or intended to be used for measuring and ascertaining the quantity of electrical current furnishing for light, heat and power by any electrical corporation to or for the use of any person or persons and when found to be or made to be correct, the inspector shall stamp or mark all such meters and each of them with some suitable device, which device shall be recorded in the office of the secretary .of state. 2. No corporation or person shall furnish or put in use any gas meter which shall not have been inspected, proved and sealed, or any electric meter which shall not have been inspected, approved, 532 Tue Poszuic Servick Commissions Law. stamped or marked by an inspector of the commission. Every gas and electric corporation shall provide or keep in and upon its prem- ises a suitable and proper apparatus, to be approved and stamped ov marked by the commission, for testing and proving the accuracy of gas and electric meters furnished for use by it, and by which apparatus every meter may and shall be tested, on the written re- quest of the consumer to whom the same shall be furnished, and in his presence if he desires it. If any consumer to whom a meter has been furnished, shall request the commission in writing to inspect such meter, the com- mission shall have the same inspected and tested; if the same on being so tested shall be found to be, four per cent. if an electric meter, or two per cent. if a gas meter, defective or incorrect to the prejudice of the consumer, the inspector shall order the gas or electrical corporation forthwith to remove the same and to place instead thereof a correct meter, and the expense of such inspection and test shall be borne by the corporation; if the same on being so tested shall be found to be correct the expense of such inspection and test shall be borne by the consumer. A uniform reasonable charge shall be fixed by the commission for this service. See sections 62, 63 and 64, chapter 566, Laws of 1890, as amended. See section 10, chapter 737, of the Laws of 1905. § 68. Approval of incorporation and franchises; certificate. No gas corporation or electrical corporation incorporated under the laws of this or any other state shall begin construction, or exercise any right or privilege under any franchise hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised without first having obtained the permission and approval of the proper commission. Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing that it has received the required consent of the proper municipal authorities. No municipality shall build, maintain and operate for other than municipal purposes any works or systems for the manufacture and supplying of gas or electricity for lighting purposes without a cer- tificate of authority granted by the commission. If the certificate of authority is refused, no further proceedings shall be taken before the commission, but a new application may be made therefor after one year from the date of such refusal. See section 11, chapter 737, of the Laws of 1905. 533 Tse Posrio Service Commissions Law. § 69. Approval of issues of stock, bonds and other forms of indebtedness. A gas corporation or electrical corporation organized or existing, or hereafter incorporated, under or by virtue of the laws of the state of New York, may issue stocks, bonds, notes or other evidence of indebtedness payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, the construction, completion, extension or improvement of its plant or distributing system, or for the improvement or maintenance of its service or for the discharge or lawful refunding of its obligations, provided and not otherwise that there shall have been secured from the proper commission an order authorizing such issue, and the amount thereof, and stating that, in the opinion of the commission, the use of the capital to be secured by the issue of such stock, bonds, notes or other evidence of indebtedness is reasonably required for the said purposes of the corporation. For the purpose of enabling it to de- termine whether or not it should issue such an order, the commission shall make such inquiry or investigation, hold such hearings and ex- amine such witnesses, books, papers, documents or contracts as it may deem of importance in enabling it to reach a determination. Such gas corporation or electrical corporation may issue notes, for proper corporate purposes and not in violation of any provision of this or of any other act, payable at periods of not more than twelve months without such consent; but no such notes shall, in whole or in part, directly or indirectly be refunded by any issue of stock or bonds or by any evidence of indebtedness running for more than twelve months without the consent of the proper commission. Pro- vided, however, that the commission shall have no power to authorize the capitalization of any franchise to be a corporation or to authorize the capitalization of any franchise or the right to own, operate or enjoy any franchise whatsoever in excess of the amount (exclusive of any tax or annual charge) actually paid to the state or to any political subdivision thereof as the consideration for the grant of such franchise or right. Nor shall the capital stock of a corporation formed by the merger or consolidation of two or more other corpora- tions, exceed the sum of the capital stock of the corporations, so consolidated, at the par value thereof, or such sum and any addi- tional sum actually paid in cash; nor shall any contract for con- solidation or lease be capitalized in the stock of any corporation whatever; nor shall any corporation hereafter issue any bonds against or as a lien upon any contract for consolidation or merger. See section 12, chapter 737, of the Laws of 1905. 534 Tue Pousiio Service Commissions Law. Legislature cannot delegate to a commission power to determine whether or not there shall be an increase of the capital stock of a corporation, Minnesota v. Great Northern R. Co., Minn. Supreme Court, 1907 (not yet reported). § '70. Approval of transfer of franchise. No gas corporation or electrical corporation shall transfer or lease its franchise, works or system on any part of such franchise, works or system to any other person or corporation or contract for the operation of its works and system, without the written consent of the proper commission. ‘The permission and approval of the commission to the exercise of a franchise under section sixty-eight of this act, or to the assignment, transfer or lease of a franchise under this section shall not be construed to revive or validate any lapsed or invalid franchise or to enlarge or add to the powers and privileges contained in the grant of any franchise or to waive any forfeiture. No such corporation shall directly or indirectly acquire the stock or bonds of any other corporation incorporated for, or engaged in, the same or a similar business, or proposing to operate or operating under a franchise from the same or any other munici- pality, unless authorized so to do by the commission. Save where stock shall be transferred or held for the purpose of collateral security only with the consent of the commission empowered by this act to give such consent, no stock corporation of any description, domestic or foreign, other than a gas or electrical corporation, shall purchase or acquire, take or hold, more than ten per centum of the total capital stock issued by any gas corporation or electrical corporation organized or existing under or by virtue of the laws of this state. Nothing herein contained shall be construed to prevent the holding of stock heretofore lawfully acquired. Every contract, assignment, transfer or agreement for transfer of any stock by or through any person or corporation to any corporation, in violation of any provision of this act, shall be void and of no effect, and no such transfer or assignment shal] be made upon the books of any such gas corporation, or electrical corporation, or shall be recognized as effective for any purpose. See section 13, chapter 737, of the Laws of 1905. § 71. Complains as to quality and price of gas and electricity; investigation by commission; forms of complaints. Upon the complaint in writing of the mayor of a city, the trustees of a village or the town board of a town in which a person or cor- poration is authorized to manufacture, sell or supply gas or electricity for heat, light or power, or upon the complaint in writing of not less than one hundred customers or purchasers of such gas or elec- 535 Tue Pustic Service Commissions Law. tricity in cities of the first or second class, or of not less than fifty in cities of the third class, or of not less than twenty-five elsewhere, either as to the illuminating power, purity, pressure or price of gas or the initial efficiency of the electric incandescent lamp supply, or the regulation of the voltage of the supply system used for incan- descent lighting, or price of electricity sold and delivered in such municipality, the proper commission shall investigate as to the cause for such complaint. When such complaint is made, the commission may, by its agents, examiners and inspectors, inspect the works, system, plant and methods used by such person or corporation in manufacturing, transmitting and supplying such gas or electricity, and may examine or cause to be examined the books and papers of such person or corporation pertaining to the manufacture, sale, transmitting and supplying of such gas or electricity. The form and contents of complaints made as provided in this section shall be prescribed by the commission. Such complaints shall be signed by the officers, or by the customers, purchasers or subscribers making them, who must add to their signatures their places of residence, by street and number, if any. See sections 15 and 16, chapter 737, of the Laws of 1905. Electric ight company cannot discriminate in prices, and excess prices may be recovered back. Armour P. Co. v. Edison BH. Co., 115 App. Dec. 51. § 72. Notice and hearing; order fixing price of gas or electricity, or requiring improvement. Before proceeding under a complaint presented as provided in section seventy-one, the commission shall cause notice of such com- plaint, and the purpose thereof, to be served upon the person or cor- poration affected thereby. Such person or corporation shall have an opportunity to be heard in respect to the matters complained of at a time and place to be specified in such notice. If an investigation be instituted upon motion of the commission, the person or corporation affected by the investigation may be permited to appear before the commission at a time and place specified in the notice and answer all charges which may be preferred by the commission. After a hearing and after such investigation as may have been made by the commission or its officers, agents, examiners or inspectors, the com- mission within lawful limits may, by order, fix the maximum price of gas or electricity to be charged by such corporation or person, or may order such improvement in the manufacture or supply of such gas, in the manufacture, transmission or supply of such electricity, or in the methods employed by such person or corporation, as will in its judgment improve the service. The price so fixed by the 536 Tur Pusiio Service Commissions Law. commission shall be the maximum price to be charged by such person or corporation for gas or electricity in such municipality until the commission shall upon complaint as provided in this section or upon an investigation conducted by it on its own motion, again fix the maximum price of such gas or electricity. In determining the price to be charged for gas or electricity the commission may consider all facts which in its judgment have any bearing upon a proper deter- mination of the question although not set forth in the complaint and not within the alllegations contained therein. See chapter 17, chapter 737, of the Laws of 1905. Writ of prohibition will not lie against the old Commission of Gas ‘and Hlectricity, who are about to investigate a company for the purpose of fixing the price of gas. People ex rel. Municipal Gas Co. v. Gunnison et al. (Special Term, 1907), Firrs, J., not yet reported. See section 49 and notes, supra, as to right to fix rates generally. § 73. Forfeiture for noncompliance with order. Every gas corporation and electrical corporation and the officers, agents or employees thereof shall obey, observe and comply with every order made by the commission under authority of this act, so long as the same shall be and remain in force. Any such corporation, or any officer, agent or employee thereof, who knowingly fails or neglects to obey or comply with such order, or any provision of this act, shall forfeit to the-state of New York not to exceed the sum of one ‘thousand dollars for each offense. Every distinct violation of any such order or of this act, shall be a separate offense, and in case of a continuing violation each day shall be deemed a separate offensé. An action to recover such forfeiture may be brought in any court of competent jurisdiction in this state in the name of the people of the state of New York, and shall be commenced and prosecuted to final judgment by counsel to the commission. In any such action all penalties and forfeitures incurred: up to the time of commencing the same may be sued for and recovered therein, and the commencement of an action to recover a penalty or forfeiture shall not be, or be held to be, a waiver of the right to recover any other penalty or forfeiture; if the defendant in such action shall prove that during any portion of the time for which it is sought to recover penalties or forfeitures for a violation of an order of the commission the de- fendant was actually and in good faith prosecuting the suit, action or proceeding in the courts to set aside such order, the court shall remit the penalties or forfeitures incurred during the pendency of such suit, action or proceeding. All moneys recovered in any such action, together with the costs thereof, shall be paid into the state treasury to the credit of the general fund. 537 Tue Pustio Servicr Commissions Law. § 74. Summary proceedings. Whenever either commission shall be of opinion that a gas corpora- tion, electrical corporation or municipality within its jurisdiction is failing or omitting or about to fail or omit to do any thing required of it by law or by order of the commission or is doing anything or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the commission, it shall direct counsel to the commission to com~- mence an action or proceeding in the supreme court of the state of New York in the name of the commission for the purpose of having such violations or threatened violations stopped and prevented elther by mandamus or injunction. Counsel to the commission shall thereupon begin such action or proceeding by a petition to the supreme court alleging the violation complained of and praying for appropriate relief by way of mahdamus or injunction. It shall thereupon be the duty of the court to specify the time not exceeding twenty days after setvice of a copy of the petition within which the gas corporation, electrical corporation or municipality complained of must answer the petition. In case of default in answer or after answer, the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings, and without respect to any technical requirement. Such other persons or corporations, as it shall seem to the court necessary or proper to join as parties in order to make its order, judgment or writs effective, may be joized as parties upon application of counsel to the commission. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a writ of mandamus or an injunction or both issue as prayed for in the petition or in such modified or other form as the court may determine will afford the appropriate relief. See section 20, chapter 737, of the Laws of 1905. A law which seeks to prohibit review by the courts is unconstitutional. Chicago, etc., R. Co. v. Minnesota, 184 U. S. 418. § 75. Defense in case of excessive charges for gas or electricity. If it be alleged and established in an action brought in any court for the collection of any charge for gas or electricity, that a price has been demanded in excess of that fixed by the commission or by statute in the municipality wherein the action arose, no recovery shall be had therein, but the fact that such excessive charges have been made shall be a complete defense to such action. See section 21, chapter 737, of the Laws of 1905. 538 Tue Pustio Servics Comuissrons Law, $ 76. Jurisdiction. Whenever any corporation supplies gas or electricity to consumers in both districts, any application or report to a commission required by this act shall be made to the commission of the district within which it is mainly supplying, or proposing to supply, such service to consumers. But nothing herein contained shall be construed to de- prive the commission of either district of the power of supervision and regulation within its district. And either commission shall have power to enter and inspect the plant of such corporation, wherever situated. © § 77. Powers of local officers. If in any city of the first or second class there now exists or shall hereafter be created a board, body or officer having jurisdiction of matters pertaining to gas or electric service, such board, body or officer shall have and may exercise such power, jurisdiction and authority in enforcing the laws of the state and the orders, rules and regulations of the commission as may be prescribed by statute or by the com- mission. ARTICLE 5. COMMISSIONS AND OFFICES ABOLISHED ; SAVING CLAUSE; REPEAL. Section 80. Board of railroad commissioners abolished; effect thereof. 81. Commission of gas and electricity abolished; effect thereof. 82. Inspector of gas meters abolished ; effect thereof. 88. Board of rapid transit railroad commissioners abolished ; effect, thereof, 84. Transfer of records. 85. Pending actions and proceedings. 86. Construction. 87. Repeal. 88. Appropriation. 89. Time of taking effect. § 80. Board of railroad commissioners abolished; effect thereof. On and after the taking effect of thig act the board of railroad commissionets shall be abolished. All the powers and duties of such 539 Tue Pousric Service Commissions Law. board conferred and imposed by any statute of this state shall there- upon be exercised and performed by the public service commissions. Chapter 566, Laws of 1890, as amended. § 81. Commission of gas and electricity abolished; effect thereof. On and after the taking effect of this act the commission of gas and electricity shall be abolished. All the powers and duties of such com- mission conferred and imposed by any statute of this state shall be exercised and performed by the public service commissions. Chapter 565, Laws of 1890, as amended. § 82. Inspector of gas meters abolished; effect thereof. On and after the taking effect of this act the offices of inspector and deputy inspectors of gas meters shall be abolised. All the powers and duties of such inspector conferred and imposed by any statute of this state shall be exercised and performed by the public service commis- sions. But any meter inspected, proved and sealed, by the said in- spector of gas meters, prior to the taking effect of this act, shall be deemed to have heen inspected by the commission. Chapter 737, Laws of 1905. § 83. Board of rapid transit railroad commissioners abolished; effect thereof. On and after the taking effect of this act the board of rapid transit railroad commissioners shall be abolished. All the powers and duties of such board conferred and imposed by any statute of this state shall thereupon be exercised and performed by the public service commis- sion of the first district. Chapter 4, Laws of 1891, as amended. 8 84. Transfer of records. 1. The board of railroad commissioners, the commission of gas and electricity, and the inspector of gas meters, shall transfer and deliver to the public service commission of the second district all books, maps, papers and records of whatever description, now in their possession ; and upon taking effect of this act, the said commission is authorized to take possession of all such books, maps, papers and records. 2. The board of rapid transit railroad commissioners shall transfer and deliver to the public service commission of the first district all contracts, books, maps, plans, papers and records of whatever descrip- tion, now in their possession; and upon taking effect of this act, the said commission is authorized to take possession of all such contracts, books, maps, plans, papers and records. The said commission may also, at its pleasure, retain in its employment any person or persons now employed by the said board of rapid transit railroad commia- 540 Tue Pousiio Servic—e Commissions Law. sioners, and all said persons shall be eligible for transfer and ap- pointment to positions under the public service commission of the first district. § 85. Pending actions and proceedings. This act shall not affect pending actions or proceedings, civil or criminal, brought by or against the board of railroad commissioners or the commission of gas and electricity, or the board of rapid transit railroad commissioners, but the same may be prosecuted or defended in the name of the public service commission, provided the subject- matter thereof is within the statutory jurisdiction of such commis- sion. Any investigation, examination or proceeding undertaken, com- menced or instituted by the said boards or commission or either of them prior to the taking effect of this act may be conducted and con- tinued to a final determination by the proper public service commis- sion in the same manner under the same terms and conditions, and with the same effect. as though such boards or commission had not been abolished. § 86. Construction. Wherever the terms board of railroad commissioners, or commission of gas and electricity or inspector of gas meters or board of rapid transit railroad commissioners occur in any law, contract or document or whenever in any law, contract or document reference is made to such boards, commission or inspector, such terms or reference shall be deemed to refer to and include the public service commissions as es- tablished by this act, so far as such law, contract or document pertains to matters which are within the jurisdiction of the said public service commissions. Nothing in this act contained shall be deemed to apply to or operate upon interstate or foreign commerce. § 87. Repeal. The following acts and parts of acts, together with all other acts amendatory of such acts, and all acts and parts of acts otherwise in conflict with this act, are hereby repealed: Laws of 1905, chapter 737. Laws of 1905, chapter 728. Laws of 1904, chapter 158. Laws of 1902, chapter 373. Laws of 1896, chapter 456. Laws of 1894, chapter 452. Laws of 1892, chapter 534. 541 Tue Pusrico Servicr Commissions Law. Laws of 1891, chapter 4, sections 1, 2 and 3. Laws of 1890, chapter 565, sections 150 to 172 inclusive. Laws of 1890, chapter 566, sections 62, 63 and 64. Laws of 1890, chapter 565, sections 150 to 172, inclusive, and Laws of 1892, chapter 534; Laws 1894, chapter 452; Laws of 1896, chapter 456; Laws of 1902, chapter 373; Laws 1904, chapter 158; Laws 1905, chapter 728, is the article of the Railroad Law and several acts amendacory thereto which establishes the Board of Railroad Commissioners, defines their duties, powers, etc. Laws of 1890, chapter 566, sections 62 to 64, is that portion of the Transpor- tation Law which creates the office of Inspector and Deputy Inspector of Gas Meters. Laws of 1891, chapter 4, sections 1 to 3, is that portion of the Rapid Transit Act which establishes the Board of Rapid Transit Commissioners. Laws of 1905, chapter 737, is the act that establishes the Commission of Gas and Electricity. § 88. Appropriation. There shall be appropriated for the use of the commissions, and for the payment of salaries and disbursements under this act, from money not otherwise appropriated, the sum of three hundred thousand dollars, one hundred and fifty thousand dollars for the use of the commission of the first district and one hundred an fifty thousand dollars for the use of the commission of the second district. § 89. Time of taking effect. This act shall take effect July first, nineteen hundred and seven. 542 TAX LAW CHAPTER 60 OF THE CONSOLIDATED LAWS. SECTIONS APPLICABLE TO CORPORATIONS. ? § 1. Short title. This chapter shall be known as the “ Tax Law.” § 2. Definitions. 1. “Tax district” as used in this chapter, means a political sub- division of the state having a board of assessors authorized to assess property therein for state and county taxes. 2. “ County treasurer” includes any officer performing the duties devolving upon such office under whatever name. 3. The terms “land,” “ real estate,” and “real property,” as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, substructures and super- structures, erected upon, under or above, or affixed to the same; all wharves and piers, including the value of the right to collect wharfage, cranage or dockage thereon; all bridges, all telegraph lines, wires, poles and appurtenances ; all supports and inclosures for electrical con- ductors and appurtenances upon , above and under ground; all surface, underground or elevated railroads, including the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways or public places; all railroads structures, substructures and superstructures, tracks and the iron thereon; branches, switches and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground; all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity or any property, substance or product capable of transportation or conveyance therein or that is protected thereby, including the value of all fran- chises, rights, authority or permission to construct, maintain or operate, in, under, above, upon, or through, any streets, highways or 543 Tax Law. public places, any mains, pipes, tanks, conduits or wires, with their appurtenances, for conducting water, steam, heat, light, power, gas, oil or other substance, or electricity for telegraphic, telephonic or other purposes ; all trees and underwood growing upon land, and all mines, minerals, quarries and fossils in and under the same, except mines belonging to the state. A franchise, right, authority or permission specified in this subdivision shall for the purpose of taxation be known as a “special franchise.” A special franchise shall be deemed to in- clude the value of the tangible property of a person, copartnership, association or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise. The tangible property so included shall be taxed as a part of the special franchise. No property of a municipal corporation shall be subject to a special franchise tax. 4. The term “special franchise” shall not be deemed to include the crossing of a street, highway or public place outside the limits of a city or incorporated village where such crossing is less than two hun- dred and fifty feet in length, unless such crossing be the continuation of an occupancy of another street, highway or public place. This sub- division shall not apply to any elevated railroad. 5. The terms “ personal estate,” and “personal property,” as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account, contract, note, bond or mort- gage; debts and obligations for the payment of money due or owing to persons residing within this state, however secured or wherever such securities shall be held; debts due by inhabitants of this state to per- sons not residing within the United States for the purchase of any real estate; public stocks, stocks in moneyed corporations, and such portion of the capital of incorporated companies, liable to taxation on their capital, as shall not be invested in real estate. § 3. Property liable to taxation. All real property within this state, and all personal property situated or owned within this state, is taxable unless exempt from taxation by law. In GENERAL.—As to the effect of the words “or owned” added in the revision in 1896, see People ex rel. Orinka Mills v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33. For history of this section, see People ex rel. United Verde C. Co. vy. Feitner, 54 App. Div. 217, 66 N. Y. Supp. 769, aff'd 165 N. Y. 645 mem. § 4. Exemption from taxation. The following property shall be exempt from taxation: 1. Property of the United States. 544 Tax Law. 2. Property of this state other than its wild or forest lands in the forest preserve. 3. Property of a municipal corporation of the state held for a public use, including real property held or used for cemetery purposes, and all lots and plats therein conveyed by the municipal corporation as places for the burial of the dead, except the portion of municipal property not within the corporation. In GennRaL.—Cemetery lands actually used for burial purposes, are exempt from assessment for local improvement as well as for purposes of general taxation. ‘Matter of Jerome Ave., 192 N. Y¥. 459. But such property is liable for water rates. Batterman vy. New York, 65 App. Div. 576, 73 N. Y. Supp. 44. 4, The lands in any Indian reservation owned by the Indian nation, tribe or band occupying them. 5. All property exempt by law from execution, other than an exempt homestead. But real property purchased with the proceeds of a pen- sion granted by the United States for military or naval services, and owned and occupied by the pensioner, or by his wife or widow, is subject to taxation as herein provided. Such property shall be assessed in the same manner as other real property in the tax districts. At the meeting of the assessors to hear the complaints concerning assessments, a verified application for the exemption of such real property from taxation may be presented to them by or on behalf of the owner thereof, which application must show the facts on which the exemption is claimed, including the amount of pension money used in or toward the purchase of such property. If the assessors are satisfied that the applicant is entitled to the exemption, and that the amount of pension money used in the purchase of such property equals or exceeds the assessed: valuation thereof, they shall enter the word “exempt” upon the assessment-roll opposite the description of such property. If the amount of such pension money used in the purchase of the property is less than the assessed valuation, they shall enter upon the assessment roll the words “ exempt to the extent of ...... dollars ” (naming the amount) and thereupon such real property, to the extent of the ex- emption entered by the assessors, shall be exempt from state, county and general municipal taxation, but shall be taxable for local school purposes, and for the construction and maintenance of streets and high- ways. If no application for exemption be granted, the property shall be subject to taxation for all purposes. The entries above required shall be made and continued in each assessment of the property so long as it is exempt from taxation for any purpose. The provisions herein, relating to the assessment and exemption of property purchased with a pension, apply and shall be enforced in each municipal corpora- tion authorized to levy taxes. 545 Tax Law. 6. Bonds of this state to be hereafter issued by the comptroller to carry out the provisions of chapter seventy-nine of the laws of eighteen hundred and ninety-five, chapter one hundred and forty-seven of the laws of nineteen hundred and three, chapter four hundred and sixty- nine of the laws of nineteen hundred and six, chapter seven hundred and eighteen of the laws of nineteen hundred and seven, and bonds of a municipal corporation heretofore issued for the purpose of paying up or retiring the bonded indebtedness of such corporation. % The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women. or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educational, scientific, literary, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to chil- dren or animals, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes, and the per- sonal property of any such corporation shall be exempt from taxation. But no such corporation or association shall be entitled to any such exemption if any officer, member or employee thereof shall receive or may be lawfully entitled to receive any pecuniary profit from the operations thereof, except reasonable compensation for services ir effecting one or more of such purposes, or as proper beneficiaries of its strictly charitable purposes; or if the organization thereof for any such avowed purposes be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or association, or for any of its members or employees, or if it be not in good faith organized or conducted exclusively for one or more of such purposes. The real property of any such corporation or association entitled to such exemption held by it exclusively for one or more of such pur- poses and from which no rents, profits or income are derived, shall be so exempt, though not in actual use therefor by reason of the absence of suitable buildings or improvements thereon, if the construction uf such buildings or improvements is in progress, or is in good faith con- templated by such corportion or association ; or if such real property is held by such corporation or association upon condition that the title thereto shall revert in case any building not intended and suitable for one or more of such purposes shall be erected upon said premises or some part thereof. The real property of any such corporation not s9 used exclusively for carrying out thereupon one or more of such pur- pose but leased or otherwise used for other purposes, shall not be exempt, but if a portion only of any lot or building of any such cor- poration or association is used exclusively for carrying out thereupon one or more such purposes of any such corporation or association, then 546 ; . Tax Law. such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion, shall be subject to taxation; provided, however, that a lot or building owned and ac- tually used for hospital purposes, by a free public hospital, depending for maintenance and support upon voluntary charity, shall not be taxed as to a portion thereof leased or otherwise used for the purposes of income, when such income is necessary for, and is actually applied to the maintenance and support of such hospital, and further provided that the real property of any fraternal corporation, association or body created to build and maintain a building or buildings for its meeting or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommodation of other fraternal bodies or associations, the entire net income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum or aslyums, a home or members of such fraternity, or for the relief, support and care of worthy and indigent members of the fraternity, their wives, widows or orphans, shall be exempt from taxation, and provided also that the real estate owned by a free public library, situate in any village of the third or fourth class, shall not be taxed as to that portion thereof leased or otherwise used for purposes of income, when such income is necessary for and actually applied to the maintenance and support of such library. Property held by any officer of a religious denomination shall be entitled to the same exemptions, subject to the same conditions and exceptions, as property held by a religious corporation. In GPNDRAL.—Laws which exempt property from taxation are to be strictly construed, and any one claiming the exemption must bring himself clearly within, the provisions of the statute. People ex rel. Blackburn vy. Barton, 63 App. Div. 581, 71 N. Y. Supp. 933. The present law differs from the Revised Statutes in prescribing an ‘ exclusive use’? as a condition of exemption. See People ex rel. Adelphi College v. Wells, 97 App. Div. 312, 89 N. Y. Supp. 957. EDUCATIONAL INSTITUTIONS.—Education was construed in People ex rel. Mt. Pleasant Academy v. Mezger, 98 App. Div. 237, 90 N. Y. Supp. 488, aff’d 181 N. Y. 511 mem., as broad enough to include moral as well as physical instruction. ‘“ The statute should be applied,’’ said the court, ‘so as to exempt the entire articulated system of an institution, and not merely the rooms or parts of buildings where tasks are conned or lessons are recited. The criterion is whether the property is exclusively devoted to the use of the academy in the education which the institu- tion offers to those attendant upon it in the sense that education contemplates their mental, moral, and physical training, and their maintenance while upon the rolls.” The court cited with approval People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, 83 N. Y. Supp. 39, aff'd 178 N. Y. 609 mem. Sleeping rooms, drill rooms, armories, stables, library buildings, buildings occupied by principals for residential purposes, dining halls, constituting a part of an academy, are exempt as property used exclusively for educational purposes. 547 Tax Law. People ex rel. Mt. Pleasant Academy v. Mezger, 98 App. Div. 237, 90 N. Y. Supp. 488. An athletic field exclusively used by the students of an educational institution, is exempt. People ex rel. Adelphi College v. Wells, 97 App. Div. 312, 89 N. Y. Supp. 957, aff'd 180 N. Y. 537 mem. But a college fraternity house is not exempt. People ex rel. D. K. BH. Soc. v. Lawler, 74 App. Div. 553, 77 N. Y. Supp. 840, aff'd 179 N. Y. 535 mem. The court said that while the house is in a certain sense an adjunct to Hamilton College, yet so far as ownership and control are concerned it is entirely independent. Property of an educational institution which is leased and the rentals devoted exclusively to corporate purposes, is subject to taxation. Pratt Institute v. New York, 183 N. Y. 151. As involving the same doctrine, see 63 App. Div. 581, 71 N. Y. Supp. 933; 32 App. Div. 197, 203, 53 N. Y. Supp. 67, 65; 97 App. Div. 312, 89 N. Y. Supp. 957. But, see, 190 N. Y. 284. An athletic field of an educational institution rented during vacations, is subjected to taxation. People ex rel. Adelphi College vy. Wells, 97 App. Div. 312, 89 N. Y. Supp. 957, aff'd 180 N. Y. 537 mem. As to the exemption of property of a medical society whose library is open to the public, see People ex rel. Med. Soc. v. Neff, 34 App. Div. 83, 53 N. Y. Supp. 1077. The General Tax Law which repealed, by implication, the portion of the charter of an educational institution exempting all of its property from taxation, is not void as impairing the obligation of contract by subjecting to taxation the portion of the property not exclusively used for educational purposes. Pratt Institute v. New York, 183 N. Y. 151. But, see, People ex rel. N. Y. Univ. v. Wells, 94 App. Div. 271, 87 N. Y. Supp. 1107. An educational institution whose property is exempt from taxation, cannot claim an exemption as to property acquired after the tax books for the fiscal year are closed. People ex rel. Barnard College v. Wells, 46 Misc. 13, 89 N. Y. Supp. 847, aff'd 179 N. Y. 524 mem. RELIGIOUS AND BPNEVOLENT SoOcIETIES.—The religious Society of Friends, though not incorporated, is an organization formed for religious purposes, and en- titled to exemption under this subdivision. People ex rel. Blackburn v. Barton, 63 App. Div. 581, 71 N. Y. Supp. 933. A building used by the Salvation Army for the sale of its books, etc., is exempt. People ex rel. Salvation Army v. Feitner, 33 Misc. 712, 68 N. Y. Supp. 338, aff’d 68 App. Div. 639 mem. A gymnasium, bowling alley and bathroom erected by a Y. M. C. Association are not exempt. Y. M. C. A. v. New York, 113 N. Y. 187. A mission house and Sunday-school building adjoining a church building used «daily for religious services, and into which women and children are constantly received for counsel and advice, are exempt. People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494. A rectory which does not constitute a part of the church building and used by the rector as a dwelling house, is not exempt, except to the extent provided in the statute. People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494. Land owned by a religious organization and used for dairy purposes, the pro- ceeds used for the support of a charitable school, is exempt. People ex rel. Black- burn y. Barton, 63 App. Div. 581, 71 N. Y. Supp. 933. But land owned by such society which is not cultivated and from which wood is cut for the use of the school, is not exempt. People ex rel. Blackburn v. Barton, supra. See, also, People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, 83 N. Y. Supp. 39, aff'd 178 N. Y. 609 mem. But, see 190 N. Y. 284. The portion of property of a benevolent association leased for public meetings, the rental being applied to benevolent purposes, is not exempt. People ex rel. Catholic Union v. Sayles, 32 App. Div. 197, 203, 53 N. Y. Supp. 65, 67, aff'd 157 N. Y. 677, 679 mem. The fact that a janitor and his family occupy the top floor of a Jewish synagogue, paying no rent, does not destroy the right to exemption, since the janitor has no proprietary interest in the premises and his position is merely incidental to the business of the corporation. Shaarai Berocho v. New York, 60 N. Y. Super. Ct. 479, 18 N. Y. Supp. 792. Hosritaus.—To be exempt, a corporation organized either for hospital or in- 548 Tax Law. firmary work, must be formed as required by this subdivision, and exclusively for some of the purposes therein mentioned. People ex rel. Sisters of Mercy v. Nowles, 34 Misc. 501, 70 N. Y. Supp. 277. 8. Real property of an incorporated association of present or former volunteer firemen actually and exclusively used and occupied by such corporation and not exceeding in value fifteen thousand dollars. See People ex rel. Haley v. Cahill, 181 N. Y. 403; Jefferson County v. Water- town, 98 App. Div. 494, 90 N. Y. Supp. 790. 9. All dwelling-houses and lots of religious corporations while ac- tually used by the officiating clergymen thereof, but the total ainount of such exemption to any one religious corporation shall not exceed two thousand dollars. Such exemption shall be in addition to that provided by subdivision seven of this section. 10. The real property of an agricultural society permanently used by it for exhibition grounds. 11. The real property of a minister of the gospel or priest who is regularly engaged in performing his duties as such, or permanently disabled by impaired health from the performance of such duties, or over seventy-five years of age, and the personal property of such minister or priest, but the total amount of such exemption on account of both real and personal property shall not exceed fifteen hundred dollars. 12. All vessels registered’ at any port in this state and owned by an American citizen, or association, or by any corporation, incorporated under the laws of the state of New York, engaged in ocean commerce between any port in the United States and any foreign port, are ex- empted from all taxation in this state, for state and local purposes ; and all such corporations, all of whose vessels are employed between foreign ports and ports in the United States, are exempted from all taxation in this state, for state and local purposes, upon their capital stock, franchises and earnings, until and including December thirty- first, ninteen hundred and twenty-two. 13. A bond, mortgage, note, contract, account or other demand, belonging to any person not a resident of this state, sent to or deposited in this state for collection; the products of another state, owned by a non-resident of this state and consigned to his agent in this state for sale on commission for the benefit of the owner; moneys of a non-resident of this state, under the control or in the pos- seccion of his agent in this state, when transmitted to such agent for the purpose of investment or otherwise. 14. The deposits in any bank for savings which are due depositors, the accumulations in any domestic life insurance corporation, held for the exclusive benefit of the insured, other than real estate and stocks, now liable to taxation; the accumulations of any incorporated co- 549 Tax Law. operative loan association upon the shares of such association held by any person; and personal property of any corporation, person, com- pany or association transacting the business of fire, casualty or surety insurance in this state equal in value to the unearned premiums required by the laws of this state, or the regulations of its insurance department, to be charged as a liability. 15. Moneys collected in the course of the business of any corpora- tion, association or society doing a life or casualty insurance business or both, upon the co-operative or assessment plan, and which are to be used for the payment of assessments, or for death losses or for benefits to disabled members. 16. The owner or holder of stock in an incorporated company liable to taxation on its capital, shall not be taxed as an individual for such stock. \ 1%. The personal property in excess of one hundred thousand dollars of a mutual life insurance corporation incorporated in this state before April tenth, eighteen hundred and forty-nine. 18. Property real, from which no income is derived, and personal property, situated within any city of the first class and belonging to the medical society of any county, which county is either wholly or partly within such city and which society was heretofore incorporated under the provisions of chapter ninety-four, laws of eighteen hundred and thirteen, entitled “ An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this slate,” provided that such property is used for the purposes of such a society and not otherwise, and provided that such exemption of property for any society in the counties of Kings or New York shall not exceed one hundred and fifty thousand dollars, and in any other county affected hereby shall not exceed fifty thousand dollars. 19. Property real from which no rent is derived and personal prop- erty, situated within any city of the first class and belonging to any incorporated pharmaceutical society of any county which is either wholly or partly within such city, which society has heretofore been or may hereafter be authorized and empowered by act of the legislature to establish and which has established or may hereafter establish, a college of pharmacy in such city; provided that such property is used for the purposes of such college and not otherwise, and provided also that the exemption of such property for any society in the counties of Kings and New York shall not exceed one hundred thousand dollars, and in any other county affected hereby shall not exceed fifty thou- sand dollars. 20. The commissioners of the sinking fund or other chief financial 550 Tax Law. board of any city of the first class, may, in their discretion, by resolu- tion, exempt from taxation for local purposes the real and personal property, or any part if it, of a corporation or association organized to maintain an academy of music, if, in the opinion of such board, the interests of such city require the maintenance of such academy of music, and it shall appear that the property so exempted represents or was purchased with the proceeds of popular or general subscrip- tion for the erection of such academy of music. No property of such corporation or association shall be exempt, except the real property consisting of such academy of music and the furniture thereof, or personal property so subscribed and held for the purpose of construct- ing such academy of music. No such exemption shall be made for any year unless it shall appear that, during the preceding year, the cor- poration or association has not earned a net annual income upon the net cost of such academy and the furniture thereof. § 7. When property of nonresidents is taxable. 1. Non-residents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such business, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state. 2. The personal property of non-residents of the state having an actual situs in the state, and not forming a part of capital invested in business in the state, shall be assessed in the name of the owner thereof for the purpose of identification and tax in the tax district where such property is situated, unless exempt by law. This sub- division shall not apply to money, or negotiable collateral securities, deposited by, or debts owing to, such nonresidents nor shall it be con- strued as in any manner modifying or changing the law imposing a tax on real estate mortgage securities. Subd. 1 superseded ch. 37, L. 1855. Subd. 2 was added by L. 1906, ch. 248, sec. 1. WHAT CONSTITUTES CARRYING ON Businuss.—The statute is intended to reach capital of nonresidents employed within the state in a continuous business and not property sent here only as to a market for sale. People ex rel. Parker Mills v. Tax Commrs., 23 N. ¥. 242; People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y¥. 159 (163). A foreign corporation which continuously engages within the state in the importation and sale of foreign goods, maintaining an office within the state at which the proceeds of sales are received and deposited in bank, after deducting the expenses of the business, the surplus being remitted to the home office, does business within the state. People ex rel Farty & O. Co. v. Wells, 183 N. Y. 264; People ex rel. Carey Mfg. Co. v. Tax Commrs., 39 Misc. 282, 79 N. Y. Supp. 485. And a foreign corporation which has carried on a continuous business in this state for 4 years keeping about $50,000 worth of goods on hand in its warehouse, is subject to taxation. People ex rel, Grave vy. Feitner, 49 App. Div. 108, 62 N. Y. Supp. 1107. 551 Tax Law. A corporation filing the required certificate and carrying on business in this state for 6 years, through a managing agent who sends to the home office the surplus left after paying incidental expenses, is subject to taxation under this section. People ex rel. Reversible Collar Co. v. Feitner, 31 Misc. 553, 65 N. Y. Supp. 518. A corporation whose only business office is in this state where products mined in another state are sold, is subject to this section. People ex rel. Union Sulphur Co. v. Glynn, 125 App. Div. 328, 109 N. Y. Supp. 869. The value of notes and open accounts owning to a foreign corporation for mer- ehandise sold by it in the course of the transaction of its business in the state, is properly included in the assessment. People ex rel. Armstrong Cork Co. v. Bar- ker, 157 N. Y. 159. Credits represented by book accounts kept in the state and promissory notes physically in the state, are taxable. People ex rel. Yellow Pine Co. vy. Barker, 23 App. Div. 524, 48 N. Y. Supp. 553, aff'd 155 N. Y. 665 mem. Bills receivable belonging to a foreign corporation maintaining an office within the state for the sale of its products, which are imported into this country and sold in the original packages, are taxable as capital employed in the state within the meaning of this section, although such bills are the proceeds of imported goods sold in the original packages, where such bills are not in transitu, but are actually and in the regular and permanent course of business held within the state until maturity for the convenience of the corporation, and the proceeds, in part, then remitted to the home office in a foreign country. People ex rel. Burke vy. Wells, 184 N. Y. 275, aff’d 206 U. &., citing Hibernia Sav. & L. Soc. v. San Francisco, 200 U. S. 310, with reference to taxation of checks given for interest on govern- ment bonds. Money deposited in a bank of a foreign corporation permanently kept there to defray expenses of the depositor’s business, is not subject to assessment. People ex rel. Kursheedt Mfg. Co. v. Feitner, 32 Misc. 84, 66 N. Y. Supp. 179. But a foreign corporation sending clothing made at its plant in another state to its salesroom in New York City where it has a manager, a large part of the clothing being reshipped to various parts of the country, is not subject to taxation under this section. People ex rel. A. J. Tower Co. v. Wells, 98 App. Div. 82, 90 N. Y. Supp. 313, aff'd 182 N. Y. 553 mem. People ex rel. Sherwin Co. v. Barker, 5 App. Div. 246, 39 App. Div. 151, aff'd 149 N. Y. 623 mem. A corporation having an office in this state with an agent to solicit orders to be approved at the home office, for goods to be sent from without the state and paid for at the home office, the agent being paid by commission, does not come within the purview of this section. People ex rel. Goetz Mfg. Co. v. Wells, 42 Misc. 86, 85 N. Y. Supp. 533, aff'd 93 App. Div. 613 mem. Procuring a certificate to carry on business within the state, is not conclusive evidence against the corporation so as to bring it within this section. People ex rel. Goetz Silk Mfg. Co. v. Wells, supra. ; On the subject of what constitutes doing business within the state requiring the filing of u certificate, see annotation under Gen. Corp. Law, sec. 15. Sirus or Dprsrs.—The situs for the purpose of taxation, of promissory notes and similar instruments for the payment of money, where the debt is inseparable from the paper, is the place where they are actually and physically held. People ex rel. Burke v. Wells, 184 N. Y. 275 (279) and cases cited. ; Tangible personal property which has, or has had, its situs within the state, but is temporarily without the state, as silk goods to be dyed and polished, is taxable within the state. People ex rel. Kursheedt Mfg. Co. v. Feitner, 32 Misc. 84, 66 N. Y. Supp. 179. § 11. Place of taxation ef property of corporations. The real estate of all incorporated companies liable to taxation shall be asessed in the tax district in which the same shall lie, in the same manner as the real estate of individuals. All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the tax district where the principal office or place for 552 Tax Law. transacting the financial concerns of the company shall be, or if such company have no principal office, or place for transacting its financial concerns, then in the tax district where the operations of such com- pany shall be carried on. In the case of a toll bridge, the company owning such bridge shall be assessed in the tax district in which the tolls are collected; and where the tolls of any bridge, turnpike, or canal company are collected in several tax districts, the company shall be assessed in the tax district in which the treasurer or other officer authorized to pay the last preceding dividend resides. R. S. pt. 1, ch. 18, tit. 13, sec. 6. RESIDENCE.—The residence of a corporation for purposes of taxation is where its principal place of business is located. Austen v. Hudson River T. Co., 73 Hun 96, 25 N. Y. Supp. 916; People ex rel. Fleischmann Mfg. Co. v. Marens, 116 N. ¥. Supp. 189. The term “inhabitant” was held in Ontario Bank v. Bunnell, 10 Wend. 186, to include a corporation, occupying an office in a town, ward of village especially with reference to Hability for taxes. CONCLUSIVENPSS OF CERTIFICATE AS TO RuSIDPNCH.—The statement in the certificate of incorporation of the location of the principal place of business of the corporation, estops the corporation from claiming that it is not taxable at that place. People ex rel. Knickerbocker Press. v. Barker, 87 Hun 341, 34 N. Y¥. Supp. 269, aff'd 147 N. Y. 715 mem. People ex rel. Edison El. L. Co. v. Barker, 91 Hun 594, 36 N. Y. Supp. 844; People ex rel. India Rubber Co. v. Barker, 16 Mise. 252, 39 N. Y. Supp. 88. The certificate is not the less conclusive because the actual principal place of business may be in fact elsewhere. People ex rel. India Rubber Co. v. Barker, supra. And the conclusive effect of the certificate is not destroyed by a statement therein that the principal place of business shall be at a designated city “or at such other place as the stockholders may determine.’”’ People ex rel. Edison El. L. Co. v. Barker, 91 Hun 594, 36 N. Y. Supp. 844. TAXATION OF PROPERTY WirHour Sraty.—Tangible personal property having an actual situs in another state, and therefore subject to taxation in such state, is not taxable here, although its actual owner is a resident of this state. People ex rel. Orinoka Mills v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33. In con- struing the words “or owned” added to sec. 3 in the revision of the Tax Law in 1896, the court said that possibly it was intended to apply to a species of property having no actual situs, such as credits, but that chattels having a de- fined situs are not owned in this state when actually located in another state. Under this section and section 3, supra, which provides that all personal prop- erty situated or owned within the state is taxable, machinery, fixtures and ma- terial located permanently outside of the state and owned by a New York cor- poration and having its principal place of business in this state, are not taxable at the domicile of the corporation. People ex rel. Orinoka Mills ‘v. Barker, 84 App. Div. 469, 83 App. Div. 33, relying upon People ex rel. Hoyt v. Tax Commrs., 23 N. Y. 224, Raw material owned by a domestic corporation and located at mills in another state where it is to be converted into a finished product, is not taxable in this state, although it is customary for the corporation to bring such property within the state for sale. People ex rel. A. J. Hyde & Sons vy. O’Donnel, 116 App. Div. 161, 101 N. Y. Supp. 610, aff'd 188 N. Y. 551 mem. But deposits in banks without the state and bills receivable for goods sold without the state by a domestic corporation engaged in mining and selling its product in other state, are taxable as a part of its personal estate in the state of its origin, since they, for purposes of taxation, have their situs at the home office. People ex rel. United Verde Copper Co. v. Feitner, 54 App. Div. 217, 66 N. Y. 769, aff'd 165 N. Y. 645 mem. 553 Tax Law. § 12. Taxation of corporate stock. The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment-roll or shall be exempt by law, together with its surplus profits or reserve funds exceeding ten per centum of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws of this state, shall be assessed at its actual value. L. 1857, ch. 456, sec. 3. MpaninG or “Caprran Srock.”—“ Capital Stock’’ as used in the Tax Law does not mean share stock; it is Iimited to the actual money or property paid in and possessed by the corporation as such; the tax is assessed against the corpora- tion and upon its property and not against the share holders and so upon their property. People ex rel. 28rd St. R. Co. v. Feitner, 92 App. Div. 518, 87 N. Y. Supp. 304; People ex rel. Union T. Co. v. Coleman, 126 N. Y. 433; People ex rel. Brooklyn U. Gas Co. v. Feitner, 82 App. Div. 368, 81 N. Y. Supp. 898; People er rel Cornell S. Co. v. Dederick, 161 N. Y. 206. WHat Constitures SuRPLUs.—The ‘surplus profits or reserve funds’ con- templated by this section, are the accumulations of money or property in excess of the par value of the stock issued. People ex rel. Manhattan R. Co. v. Barker, 165 N. Y. 305. RULB oF ASSBSSMENT.—In determining the actual capital of a corporation for the purpose of general taxation, the true value of the corporate assets, not the market value, less the debts and obligations, furnishes the rule of assessment. People ex rel. Bleeker St. & F. R. Co. v. Barker, 85 Hun 210, 82 N. Y. Supp. 990. And in People ex rel. Consol. Teleg. & Hl. 8. Co. v. Barker, 7 App. Div. 27, 39 N. Y. Supp. 776, aff'd 151 N. Y. 639 mem., the court said that ‘to ascertain the capital subject to taxation requires the valuation of the whole property owned by the corporation, whether real or personal or both; and from the aggregate is to be deducted the assessed value of the real estate, and the balance is the capital subject to assessment, after deducting debts and any exemptions allowed by law.” This section requires the valuation of the whole property owned by the cor- poration whether real or personal, in order to ascertain the capital which is sub- ject to taxation; and that after the assessed value of the real estate is deducted therefrom the balance ts the capital subject to assessment after deducting debts and legal exemptions. People ex rel. N. Y¥. Clearing House B. Co. v. Barker, 31 App. Div. 815, 51 N. Y. Supp. 1102, aff'd 158 N. Y. 709 mem., aff'd 179 U. S. 279. Under this section it is the duty of the commissioners to ascertain the actual value of the real estate and personal property of the corporation, up to the amount of the par value of the stock issued, and then the surplus profits or reserved funds that have been accumulated, in additions, which exceed 10 per cent. of its capital stock shall also be assessed at its actual value and in the same manner. People ex rel Delaware & H. C. Co. v. Feitner, 61 App. Div. 129, 70 N. Y. Supp. 500, aff'd 171 N. Y. 641 mem. The commissioners are bound to assess the capital and surplus at its full value; in doing this they cannot act arbitrarily, but must be governed by the statement filed, in absence of proof of any contradictory matter. People ex rel. Consolidated Gas Co. y. Feitner, 78 App. Div. 318, 79 N. ¥. Supp. 975. VALUATION OF REALTY.—In determining the value of the realty to be deducted from the value of all the corporate property, the assessors are not concluded by the assessed valuation of such realty. People ex rel. Consolidated Teleg. & El. 8. Co. v. Barker, 7 App. Div. 27, 39 N. Y. Supp. 776, aff'd 151 N. Y. 639 mem. People ex rel. N. Y. Clearing House B. Co. v. Barker, supra. In determining the value of the capital stock of a domestic corporation for the purposes of taxation, it is lawful to include the actual value of its real estate and to deduct merely the assessed value. People ex rel. Bankers’ Safe D. Co. v- O'Donnell, 54 Misc. 5, 105 N. Y. Supp. 457. The cost of real estate as shown by the corporate books furnishes a proper basis for the valuation thereof in ascertaining the value of the assets for the purpose 554 Tax Law. of fixing the value of the capital stock subject to taxation; the assessors are not pound by previous assessed valuations, People ex rel. N. Y. & S. Gas & El. Co. v. Feitner, 58 App. Div. 555, 69 N. Y. Supp. 27. But the cost of the construction of an electrical subway is not a proper basis for assessing its value. People ex rel. Consol. Tel. & El. S. Co. v. Barker, 7 App. Diy. 27, 89 N. Y. Supp. 776, aff'd 151 N. Y. 639 mem. In ascertaining the value of a lessee’s corporation’s interest in demised prop- erty for purposes of taxation, the value of the lease to the lessee is to be de- termined and not the value of the property leased. People ex rel. Metropolitan St. R. Co. v. Barker, 121 App. Div. 661, 106 N. Y. Supp. 336; People ex rel. Delaware & H. Canal Co. v. Feitner, 61 App. Div. 129, 70 N. Y. Supp. 500, aff’d 171 N. Y. 641 mem. DmpvucTions,—IN GpNERAL.—Assessors can only make such deductions from the gross value of the personal assets of a corporation as are expressly authorized by statute. People ex rel. Natl. Surety Co. v. Feitner, 166 N. Y. 129. A corporation is not entitled to a general deduction of 10 per cent. of its capital stock, but that percentage is to be deduced from the ‘surplus profits. Any doubt on this question is removed by the provisions of sec. 32 post. People ex rel. Citizens’ El. Ill. Co. v. Neff, 26 App. Div. 542, 50 N. Y. Supp. 680. See method of computation stated by the court in this case. Dests.—The Tax Law does not expressly grant the right! to deduct debts of a corporation in assessing its personal property, but that right is in harmony with the general provisions of the law. For a general discussion of the subject, see People ex rel Cornell 8. Co. v. Dederick, 161 N. Y. 195. See, also, People ex rel. Brooklyn C. R. Co. v. Assessors, 19 App. Div. 590, 46 N. Y. Supp. 385, aff'd 154 N. Y. 753 mem. People ex rel. 23rd St. R. Co. v. Feitner, 92 App. Div. 518, 87 N. Y. Supp. 304; People ex rel Rochester Ry. Co. Pond, 37 App. Div. 330, 57 N. Y. Supp. 490. The provisions of this section requiring assessment of capital stock at its actual value, does not prohibit the deduction of debts. People ex rel. Cornell 8S. Co. v. Dederick, 161 N. Y. 195. CONTINGENT LIABILITIES.—In absence of express statutory authority out- standing contingent liabilities are not deduceable. So, in the assessment of a surety company, a fund described as ‘“‘unearned premiums held as reinsurance reserve ag required by law, being amount necessary to reinsure outstanding risks,” which is a fund not set apart to purchase reinsurance, but the absolute property of the company and subject only to liabilities whch may arise from its outstanding con- tracts of suretyship, which are therefore, contingent, does not represent existing debts which may be deduced. People ex rel. Natl. Surety Co. v. Feitner, 166 N. Y. 129. AMOUNT OF LIENS.—The value of liens subject to which a domestic railroad corporation acquired the property of another railroad corporation, must be deducted from the value of the property acquired in determining the amount of property subject to taxation under this section. People ex rel. Delaware & H, Canal Co. v. Feitner, 61 App. Div. 129, 70 N. Y. Supp. 500, aff’d 171 N. Y. 641 mem. But in assessing the capital stock of a corporation owning realty encumbered by a mortgage which the corporation did not assume, the corporation is entitled to have deducted from the valuation only the value of the equity of redemption, and not the whole assessed value of the real estate. People ex rel. Weber Piano Co. vy. Wells, 180 N. Y. 62, citing People ex rel. Farmers’ L. & T. Co. v. Wells, 94 App. Diy. 463. Non-TaXaBLH Property (good will).—But indebtedness incurred by a corpor- ation in the purchase of the good will of a business cannot be deducted from the value of its taxable personal property, since sec. 6 of the Tax Law prohibits the deduction of indebtedness incurred in the purchase of nontaxable property; good will,, though it constitutes property, is not taxable as such for general town, county or municipal purposes. People ex rel Cornell S. Co. v. Dederick, 161 N. Y. 195. (Patent rights.) The value of patent rights issued to an electric light com- pany by the United States is not subject to state or local taxation. People ex rel. Edison El. Ill. Co. v. Assessors, 156 N. Y. 417. See, also, People ex rel. Hdison Bl. Ill, Co. v. Harkness, 44 N. Y. Supp. 51; People ex rel. N. Y. & N. J. Teleg. Co, v. Neff, 15 App. Div. 8, 44 N. ¥. Supp. 46. 555 Tax Law. (Copyrights). Copyrights granted by the United States are not subject to the taxing power of the state. People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70. FRANCHISHS.—The franchise of a corporation is no part of its taxable capital. People ex rel. Consolidated Gas Co. v. Feitner, 78 App. Div. 313, 79 N. Y. Supp. 975; People ex rel. 23rd St. R. Co. v. Feitner, 92 App. Div. 518, 87 N. Y¥. Supp. 304; People ex rel Manhattan R. Co. v. Barker, 146 N. Y. 304; People ex rel. Brooklyn C. R. Co. v. Assessors, 19 App. Div. 590, 46 N. ¥. Supp. 385, aff’d 154 N. Y. 763 mem. People ex rel. Union T. Co. v. Coleman, 126 N. Y. 433 (leading). And it is not liable for local taxation. People ex rel. Brooklyn C. R. Co. v. Assessors, 19 App. Div. 590, 46 N. Y. Supp. 385, aff’d 154 N. Y. 763 mem. PROPERTY TAXABLE.—Vaults owned by a safe deposit company should be treated as real estate for purposes of taxation. People ex rel. Knickerbocker 8. D. Co. v. Wells, 181 N. Y. 245; People ex rel Bankers’ Safe D. Co. v. O’Donnell, 54 Misc. 5, 105 N. Y. Supp. 457. Dividends declared, but with no intention of payment, are taxable. People ex rel. Hawley Box & L. Co. yv. Barker, 23 App. Div. 532, 48 N. Y. Supp. 557. Fee damages paid by an elevated railroad company to abutting owners rep- resent property subject to taxation. People ex rel. Manhattan R. Co. v. Barker, 165 N. Y. 305. But damages paid on account of past interference with abutting owners’ use of easements of light and air and access, do not form a basis upen which any valid assessment can be made, since no right or property of value is acquired by the railroad company in consequence of such payments. People ex rel. Manhattan R. Co. v. Barker, supra. A street railway corporation leasing the property of other companies and paying taxes thereon as a part of the rent, cannot be compelled to pay taxes again based on the fee value of the leased property. People ex rel. Metropolitan St. R. Co. v. Barker, 121 App. Div. 661, 106 N. Y. Supp. 336. TAXATION OF PROPHRTY WITHOUT Stratp.—Tangible personal property having an actual situs in another state, and therefore subject to taxation in such state, is not taxable here, although its actual owner is a resident of this state. People ex rel. Orinoka Mills v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33. In con- struing the words ‘‘or owned” added to sec. 3 in the revision of the Tax Law in 1896, the court said that possibly it was intended to apply to a species of property having no actual situs, such as credits, but that chattels having a defined situs are not owned in this state when actually located in another state. Under secs. 3, 11, supra, machinery, fixtures and material located permanently outside of the state and owned by a New York corporation having its principal place of business in this state, are not taxable at the domicile of the corporation. People ex rel. Orinoka Mills v. Barker, 84 App. Div. 469, 83 N. Y. Supp. 33, relying upon People ex rel. Hoyt v. Tax Commrs., 23 N. Y. 224. . Raw material owned by a domestic corporation and located at mills at another state where it is to be converted into a finished product, is not taxable in this state, although it is customary for the corporation to bring such property within the state for sale. People ex rel. A. G. Hyde & Sons y. O'Donnell, 116 App. Div. 161, 101 N. Y. Supp. 610, aff'd 188 N. Y. 551 mem. But deposits in banks without the state and bills receivable for goods sold without the state by a domestic corporation engaged in mining and selling its product in other states, are taxable as a part of its personal estate in the state of its origin, since these, for purposes of taxation, have their situs at the home office. People ex rel. United Verde Copper Co. v. Feitner, 54 App. Div. 217, 66 N. Y. Supp. 769, aff'd 165 N. Y. 645 mem. SumMary.—In defining the powers and duties of the department of taxes, the court of appeals has established the following rules:—(1) The action of the com- missioners must be based upon facts and evidence before them, and must not be capricious, arbitrary, or fanciful, (2) The commissioners must return the in- formation and evidence upon which they acted. (3) Where nothing is returned beyond the statements filed by the relator, these statemnts must be regarded as the basis of their action, and as containing the only facts upon which the assessment was made. (4) Statements which are not denied, or as to which the return is silent, must be regarded as true. People ex rel. Consolidated Teleg. & El. 8. Co. v. Barker, 7 App. Div. 27, 39 N. ¥. Supp. 776, aff'd 151 N. Y¥. 639 mem, 556 Tax Law. § 18. Stockholders of bank taxable on shares. The stockholders of every bank or banking association organized under the authority of this state, or of the United States, shall be assessed and taxed on the value of their shares of stock therein; said shares shall be included in the valuation of the personal property of such stockholders in the assessment of taxes in the tax district where such bank or banking association is located, and not elsewhere, whether the said stockholders reside in said tax district or not. § 23. Banks to make report. The chief fiscal officer of every bank or banking association organ- ized under the authority of this state, or of the United States, shall, on or before the first day of July, in each year, furnish the assessors of the tax district in which its principal office is located a statement under oath of the condition of such bank or banking association on the first day of June next preceding, stating the amount of its authorized capital stock, the number of shares and the par value of the shares thereof, the amount of stock paid in, the amount of its surplus and of its undivided’ profits, if any, a complete list of the names and residences of its stockholders and the number of shares held by each. In case of neglect or refusal on the part of any bank or banking asso- ciation to report as herein prescribed, or to make other or further reports as may be required, such bank or banking association shall forfeit the sum of one hundred dollars for each failure, and the addi- tional sum of ten dollars for each day such failure continues, and an action therefor shall be prosecuted by the county treasurer of the county in which such bank or banking association so neglecting or refusing to report is located, and in the city of New York by the receiver of taxes thereof. There shall, in addition to such report, be kept in the office of every such bank or banking association a full and correct list of the names and residences of all stockholders therein, and of the number of shares held by each, and such lists shall be subject to the inspection of the assessors at all times. The list of stockholders frunished by such bank or banking association shall be deemed to contain the names of the owners of such shares as are set opposite them, respectively, for the purpose of assessment and taxa- tion. § 24. Bank shares, how assessed. In assessing the shares of stock of banks or banking associations organized under the authority of this state or the United States, the assessment taxation shall not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individual , 557 Tax Law. citizens of this state. The value of each share of stock of each bank and banking association, except such as are in liquidation, shall be ascertained and fixed by adding together the amount of the capital stock, surplus and undivided profits of such bank or banking asso- ciation and by dividing the result by the number of outstanding shares of such bank or banking association. The value of each share of stock in each bank or banking association in liquidation shall be ascertained and fixed by dividing the actual assets of such bank or banking asso- ciation by the number of outstanding shares of such bank or banking association. The rate of tax upon the shares of stock of banks and banking associations shall be one per centum upon the value thereof, as ascertained and fixed in the manner hereinbefore provided, and the owners of the stock of banks and banking associations shall be entitled to no deduction from the taxable value of their shares because of the personal indebtedness of such owners, or for any other reason whatsoever. Complaints in relation to the assessments of the shares of stock of banks and banking associations made under the provisions of this article shall be heard and determined as provided in section thirty-seven of this chapter. The said tax shall be in lieu of all other taxes whatsoever for state, county or local purposes upon the said shares of stock, and mortgages, judgments and other choses in action and personal property held or owned by banks or banking asso- ciations the value of which enters into the value of said shares of stock shall also be exempt from all other state, county or local taxation. The tax herein imposed shall be levied in the following manner: The board of supervisors of the several counties shall, on or before the fifteenth day of December in each year, ascertain from an inspection of the assessment-rolls in their respective counties, the number of shares of stock of banks and banking associations in each town, city, village, school and other tax district, in their several counties, respec- tively, in which such shares of stock are taxable, the names of the banks issuing the same, respectively, and the assessed value of such shares, as ascertained in the manner provided in this article and entered upon the said assessment-rolls, and shall forthwith mail to the presi- dent or cashier of each of said banks or banking associations a state- ment setting forth the amount of its capital stock, surplus and un- divided profits, the number of outstanding shares thereof, the value of each share of stock taxable in said county, as ascertained in the manner herein provided, and the aggregate amount of tax to be col- lected and paid by such bank and banking association, under the pro- visions of this article. A certified copy of each of said statements shall be sent to the county treasurer. It shall be the duty of every 558 Tax Law. » bank or banking association to collect the tax due upon its shares of stock from the several owners of such shares, and to pay the same to the treasurer of the county wherein said bank or banking association is located, and in the city of New York to the receiver of taxes thereof on or before the thirty-first day of December in said year; and any bank or banking association failing to pay the said tax as herein pro- vided shall be liable by way of penalty for the gross amount of the taxes due from all the owners of the shares of stock, and for an additional amount of one hundred dollars for every day of delay in the payment ef said tax. Every bank or banking association so paying the taxes due upon the shares of its stock shall have a lien on the shares of stock, and on all property of the several share owners in its hands, or which may at any time come into its hands, for reimbursement of the taxes so paid on account of the several shareholders, with legal interest; and such lien may be enforced in any appropriate manner. ‘The tax hereby imposed shall be distributed in the following manner: The board of supervisors of the several counties shall ascertain the tax rate of each of the several town, city, village, school and other tax districts in, their counties, respectively, in which the shares of stock of banks and banking associations shall be taxable, which tax rates shall include the proportion of state and county taxes levied in such districts, respectively, for the year for which the tax is imposed, and the proportion of the tax on bank stock to which each of said districts shall be respectively entitled shall be ascertained by taking such proportion of the tax upon the shares of stock of banks and banking associations, taxable in such districts, respectively, under the provisions of this chapter as the tax rate of such tax districts shall bear to the aggregate tax rates of all the tax districts in which said shares of stock shall be taxable. The clerks of the several cities, villages and school districts to which any portion of the tax on shares of stock of banks and banking associations is to be distributed under this section shall, in writing and under oath, annually report to the board of supervisors, of their respective counties, during the first week of the annual session of such board, the tax rate of such city, village and school district for the year prior to the meeting of each such board. The said board of supervisors shall issue their warrant or order to the county treasurer on or before the fifteenth day of December in each year, setting forth the number of shares of bank stock taxable in each town, city, village, school and other tax district in said county, in which said shares of stock shall be taxable, the tax rate of each of said tax districts for said year, the proportion of the tax imposed by this chapter to which each of said tax districts is entitled, 559 Tax Law. under the provisions hereof, and commanding him to collect same, and to pay to the proper officer in each of such districts the proportion of such tax to which it is entitled under the provisions of this chapter. The said county treasurer shall have the same powers to enforce the collection and payment of said tax as are possessed by the officers now charged by law with the collection of taxes, and the said county treas- urer shall be entitled to a commission of one per centum for collecting and paying out said moneys, which commission shall be deducted from the gross amount of said tax before the same is distributed. In issuing their warrants to the collectors of taxes, the board of super- visors shall omit therefrom assessments of and taxes upon the shares of stock of banks and banking associations. Provided, that, in the city of New York the statement of the bank assessment and tax herein provided for shall be made by the board of tax commissioners of said city, on or before the fifteenth day of December in each year, and by them forthwith mailed to the respective banks and banking associations located in said city, and a certified copy thereof sent to the receiver of taxes of said city. The tax shall be paid by the res- pective banks in said city to the said receiver of taxes on or before the thirty-first day of December in said year, and said tax shall be col- lected by the said receiver of taxes and shall be by him paid into the treasury of said city to the credit of the general fund thereof. This section is not to be construed as an exemption of the real estate of banks or banking associations from taxation. No shares of stock of ‘such banks and banking associations, by whomsoever held, shall be exempt from the tax hereby imposed. § 26. Notice of assessment to bank or banking association. The assessors of every tax district shall, within ten days after they have completed the assessment of the stock of a bank or banking association, give written notice to such bank or banking association of such assessment of the shares of its respective shareholders and no personal or other notice to such shareholders of such assessment is required. § 27. Reports of corporations. The president or other proper officer of every moneyed or stock corporation deriving an income or profit from its capital or otherwise shall, on or before June fifteenth, deliver to one of the assessors of the tax district in which the company is liable to be taxed and, if such tax district is in a county embracing a portion of the forest preserve, to the comptroller of the state, a written statement specifying: 560 Tax Law. 1. The real property, if any, owned by such company, the tax district in which the same is situated and, unless a railroad corpora- tion, the sums actually paid therefor. 2. The capital stock actually paid in and secured to be paid in, excepting therefrom the sums paid for real property and the amount of such capital stock held by the state and by any incorporated literary or charitable institution, and 3. The tax district in which the principal office of the company is situated or in case it has no principal office, the tax district in which its operations are carried: on. Such statement shall be verified by the officer making the same to the effect that it is in all respects just and true. If such statement is not made within twenty days after the fifteenth day of June, or is insufficient, evasive or defective, the assessors may compel the cor- poration to make a proper statement by mandamus. REJECTION OF STATEMENT..-The tax commissioners have no right arbitrarily to reject 1 sworn statement on the ground that it is false. People v. Baker, 16 Misc. 252, 89 N. Y. Supp. 88. They are bound to accept a full and complete statement of the assets and abilities furnished by the corporation, together with a balance sheet supporting such statement. People ex rel. BE. Seidenberg, S. & Co. v. Feitner, 41 App. Div. 571, 58 N. Y. Supp. 713. When they are dissatisfied with the statement furnished they should require a more complete statement in the manner prescribed by law. People v. Barker, supra. § 29. County clerks to furnish data respecting corporations. Between the first and fifteenth days of June in each year the county clerk in each county of the state, excepting counties contain- ing a city of the second class and counties wholly situate within the corporate limits of a city, shall prepare from the records in his cffice and mail to each of the town clerks in his said county, a certified statement containing the names of every stock corporation, whose certificate of incorporation has been filed with him since his last preceding annual statements to said several town clerks, whose prin- cipal ‘business office or chief place of business is designated in its certificate of incorporation as being in such town or in any village or hamlet therein, together with the fact of such designation and the names and addresses of the directors of each such corporation so far as said county clerk can discover the same from the certificate of incorporation or from the latest certificate of election of directors of such corporation filed in his office. Each town clerk receiving such statement shall forthwith file the same in his office and mail a notice of such filing to each of the assessors of his town. This was sec. 28a of the former Tax Law. 561 Tax Law. § 32. Corporations, how assessed. The assessors shall assess corporations liable to taxation in their respective tax districts upon their assessment-rolls in the following manner: 1. In the first column the name of each corporation, and under its name the amount of its capital stock paid in and secured to be paid in; the amount paid by it for real property then owned fy it wherever situated; the amount of all surplus profits or reserve funds exceeding ten per centum of its capital, after deducting therefrom the amount of said real property and the amount of its stock, if any, belonging to the state and to incorporated literary and charitable institutions. 2. In the second column the quantity of real property except special franchises owned by such corporation and situated within their tax district. 3. In the third column the actual value of such real property, except special franchises. 4. In the fourth column the amount of the capital stock paid in and secured to be paid in, and of all of such surplus profits or reserve funds as aforesaid, after deducting the sums paid out for all the real estate of the company, wherever the same may be situated, and then belonging to it, and the amount of stock, if any, belonging to the people of the state and to incorporated literary and charitable insti- tutions. 5. In the fifth column the value of any special franchise owned by it as fixed by the state board of tax commissioners. As amended by L. 1899, ch. 712, sec. 38. This was sec. 81 of the former Tax Law. With reference to the conflict between subd. 4 and sec. 12 supra, see People ex rel. Cornell S. Co. v. Dederick, 161 N. Y. 195 (206). ARRANGEMENT OF COLUMNS.—An assessment is not void because the columns are not arranged precisely as directed by statute. People ex rel. Monhawk & M. R. Co. v. Garmon, 63 App. Div. 530, 71 N. Y. Supp. 826. § 40. Assessors to apportion valuation of railroad, telegraph, tele- phone or pipe line companies among school districts. The assessors of each town in which a railroad, telegraph, telephone or pipe line company is assessed upon property lying in more than one school district therein, shall, within fifteen days after the final com- pletion of the roll, apportion the assessed valuation of the property of each of such corporations among such school districts. Such appor- tionment shall be signed by the assessors or a majority of them, and be filed with the town clerk within five days thereafter, and thereupon the valuation so fixed shall become the valuation of such property in such school district for the purpose of taxation. In 562 Tax Law. case of failure of the assessors to act, the supervisor of the town shall make such apportionment on request of either the trustees of any school district or of the corporation assessed. The town clerk shall furnish the trustees a certified statement of the valuations appor- tioned to their respective districts. In case of any alteration in any school district affecting the valuation of such property, the officer making the same shall fix and determine the valuations in the dis- tricts affected for the current year. L. 1867, ch. 694, secs. 1-5. This was sec. 89 of the former Tax Law. § 43. Assessment of special franchises. The state board of tax commissioners shall annually fix and deter- mine the valuation of each special franchise subject to assessment in each city, town or tax district. After the time fixed for hearing complaints the tax commissioners shall finally determine the valu- ation of the special franchises, and shall file with the clerk of the city or town in which said special franchise is assessed a written statement duly certified by the secretary of the board of the valu- ation of each special franchise assessed therein as finally fixed and de- termined by said board; such statement of valuation shall be filed with the town clerk of the respective towns within thirty days next preceding the first day of July in each year; and with the clerks of cities of the state within thirty days before the date set opposite the name of each city in the following schedule. In the city of New York such statement shall be filed with the department of taxes and assessments. ScHEDULE oF Dares For FriLine or ASSESSMENTS OF SPECIAL FRANCHISES. Name of city. ; Date. Rochester <.cssavesvaesavsesowesesw oe vacate April first Gloversville: caches Gis Tae dea Wlnagewraeas aa April first ED ACAs-aa.crs ha grountoneliaasalcm nie Gs won thea oie April first New York City acti idea wane iearcwed sees April first AUDUID, vesseie disse ey ise aves es wea ere H May first COrvmin ge seecsites sine Siiacdlen iota eas Sia nies Ae ees ga June first Hortiell) s32e aac wee ee Raine ae aweien nels June first OSWES0” ives deme e teGe tied eee Mike June first JAMESTOWN, sie yiaviwewe bee nee ene dekewwad eens July first Schenectady ius awe sa eee se eis cee heels July first North Tonawanda ....... ccc ccc cece cece ence ees July first QUA My 2a cas vs rs esas aie dha Sb aay ote to aca la th cate ae wreaths July first 563 Name of city. Date. DSYTACUSE. shape vere nnaeuew aes a ewee asus July first COHOGS essieisiewcecee as esses Onis Wales RGR IS July first Ogdensburg ......... ee ee eee July first SDD ama es gs s/s, sch Sra Sake Sa landed ras ape sdhatsstans oy toaptte duals. stelank July first TOY ssasmoga inne’ aeary Ae wing's giana ongea ss July first ROMS si5 city nee geinasunnn seek mobeeeuieutarees July first Watertown scevsevsaw is wae dee etic edie y eee July first Hm ira), is esieascae eta waaaea Gunes ek Rake aes July first Mock port ois igeaas oes oad sawn wae July first UME Sil dikes Le See eee Rane ae July first POUsHKCOpsle”, sviuaowawaersneed SU radu newencen. July first Tattle: Ballet ada sews Meee asco bo eatsay July first Waterviiet «onde as dvaeeseainn a aadennaes July first Niagara Walle ci a3, cijeiedevaislaand.aartve alsheradeca leis ase taass July first KUN gS i055 oe seeded swede os Peake ee aA es July first INGWDUPPHY.35c-dsy cen sigatine le atsaea dg dinaeadia ge ot re July first FUdSOn eer ws ea eehns vee greeted ee dae ee ee July first Amsterdam ..... De eeaceawean detest «ea tees He July first GeNeV ae iso 6 ciGisid oh cians Helmet ae Geass July first Middletown slp 2s oie see ae es eee a July first JORUSLOWD, 2 scious ga ee Mguieeriesseeiedernee. July first MUltOn 151s abla dase ees eee aren wanes July first PlattshUlg ce cesccseaeessianins ave ecwwee ee aes July first PonAwands s:cceawwid weeds biw caadewsaines sean July first Rensselaer sistas cots, eaadeaGaaaa nk aka July first Qneds, peadwets ew eke ea re Ripa ne Goto July first Cortland: gaia ntaaneandee aeetee ed! sone edes July first Glens Balls. acai nay. Go eas oh ie he ls a Siew ee July first Port Jervis. sasewews acu y teayetesee ous aa ee July first OCOD Ga: nis aiecs. wanes eles alas e Owain N aevene July first MONKGRS Gis Sete Giei ad CG aby ucdiede citedioanenhaccins July first Binghamton sce vaveascear eoveewues eavaie sete September fae AIDSNY: svat iersu-ceahan eats ethnoeiy ¢sieds Cy anaes ee September first Mount Vernon .e:icencnseee evevewisvewseaas October first New. Rochelle siaisit.0s cui viie tae: elena ance ae October first BUMAlO< year sab: Ace hee cau saad e. eae utotar. December first Each city or town clerk shall, within five days after the receipt by him of the statement of assessment of a special franchise by the state board, deliver a copy of such statement certified by him to the as- sessors or other officers charged with the duty of making local assess- 564 Tax Law. ments in each tax district in said city or town and to the assessors of villages and commissioners of ‘highways within their respective towns and villages. The valuation of every special franchise as so fixed by the state board shall be entered by the assessors or other officers in the proper column of the assessment roll before the final revision and certification of such roll by them, and become part thereof with the same force and effect as if such assessment had been originally made by such assessor or other officer. If a special fran- chise assessed in a town is wholly within a village, the valuation fixed by- the state board for the town shall also be the valuation for _ the village. If a part only of such special franchise is in a village, or is in a village situated! in more than one tax district, it shall be the duty of the village assessors to ascertain and determine what portion of the valuation of such fanchise, as the same has been fixed by the state board, shall be placed upon the tax roll for village pur- poses. The valuation apportioned to the town shall be the assessed valuation for highway purposes, and in case part of such special fran- chise shall be assessed in a village and part thereof in a town out- side a village, the town assessors shall meet on the third Tuesday in August in each year and apportion the valuation of such special franchises between such town outside the village and such village for highway purposes. The town assessors shall make an apportionment among school districts at the time and in the manner required by section forty of this chapter. The valuations so fixed by the state board shall be the assessed valuation on which all taxes based on such special franchise in the city, town or village for state, municipal, school or * highways purposes shall be levied during the next ensu- ing year. The assessors or other taxing officer, or other local officer in any city, town or village, or any state or county officer, shall on demand furnish to the state board of tax commissioners any informa- tion required by such board for the punpore of determining the value of a specail franchise. § 2. Nothing in this act contained shall require the making and filing of new or further valuations of special franchises in cities for which valuations have already been made and certified for the year nineteen hundred and nine, nor affect in any manner the special franchise valuations made and certified to cities before this act takes effect, in accordance with the schedule of dates of certification set forth in section forty-three of the tax law. Added by L. 1899, ch 712, sec. 2, and amended by L. 1904, ch. 382, sec. 1, L. 1909, ch. 275. This was sec. 42 of the former Tax Law. * So in original. 565 Tax Law. § 44. Report to state board of tax commissioners. Every person, copartnership, association or corporation subject to taxation on a special franchise, shall, within thirty days after such special franchise is acquired, make a written report to the state board of tax commissioners containing a full description of every special franchise possessed or enjoyed by such person, copartner- ship, association or corporation, a copy of the special law, grant, ordinance or contract under which the same is held, or if possessed or enjoyed under a general law, a reference to such law, a statement of any condition, obligation or burden imposed upon such special franchise, or under which the same is enjoyed, together with any other information relating to the value of such special franchise, required by the state board. The state board of tax commissioners may from time to time require a further or supplemental report from any such person, copartnership, association or corporation, contain- ing information and data upon such matters as it may specify. very report required by this section shall have annexed thereto the affi- davit of the president, vice-president, secretary or treasurer of the association or corporation, or one of the persons or one of the mem- bers of the copartnership making the same, to the effect that the statements contained therein are true. Such board may prepare blanks to be used in making the reports required by this section. Every person, copartnership, association or corporation failing to make the report required by this section, or failing to make any special report required by the state board of tax commissioners within a reasonable time specified by it, shall forfeit to the people of the state the sum of one hundred dollars for every such failure and the additional sum of ten dollars for each day that such failure con- tinues, and shall not be entitled to review the assessment by certiorari, as provided by section forty-six of this chapter. Added by L. 1899, ch. 712, sec. 2, This was sec. 43 of the former Tax Law. PrNALTY.—The pecuniary penalty only attaches on the failure of a corporation to submit its report within 30 days, where the report was furnished before final assessment, since the object of the law is to obtain information for the guidance of the board. People ex rel. New York & Q. C. R. Co. v. Tax Commrs., 55 App. Div. 218, 67 N. Y. Supp. 69. § 45. Hearing on special franchise assessment. On making an assessment of a special franchise, the state board of tax commissioners shall immediately give notice in writing to the person, copartnership, association or corporation affected, and to each city or town in which such special franchise is subject to assessment, stating in substance that such assessment has been made, the total valuation of such special franchise, and the valuation thereof in each city, town or tax district; and that the board will meet at its office 566 Tax Law. in the city of Albany on a day specified in such notice, which must not be less than twenty nor more than thirty days from the date of the notice, to hear and determine any complaint concerning such assessment. But no notice need be given any such town unless the supervisor thereof shall at least fifteen days prior to the time fixed for such hearing file with said board a request in writing for notice thereof. Such notice must be served at least ten days before the day fixed for the hearing; and it may be served on a copartnership, as- sociation or corporation, by mailing a copy thereof to it at its prin- cipal office or place of business; and on a person, either personally or by mailing it to him at his place of business or last known place of residence; and on a city or town, by mailing it to the mayor of such city or the supervisor of such town at the address specified in such request. A city or town entitled to notice under this section shall have the right to be heard and to file affidavits and other proofs in respect to the valuation of such special franchise. Section thirty- seven of this chapter applies so far as practicable to a hearing by the state board of tax commissioners under this section. Added by L. 1899, ch. 712, sec. 2, and amended by L. 1906, ch. 458, sec. 1. ,This was sec. 44 of the former Tax Law. § 46. Certiorari to review assessment. An assessment of a special franchise by the state board of tax com- missioners may be reviewed in the manner prescribed by article thirteen of this chapter, and that article applies so far as practica- ble to such an assessment, in the same manner and with the same force and effect as if the assessment had been made by local assessors ; a petition for a writ of certiorari to review the assessment must be presented within fifteen days after the completion and filing of the assessment roll, and the first posting or publication of the notice thereof as required by law. Such writ must run to and be answered by said state board of tax commissioners and no writ of certiorari to review any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge grant- ing the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding. The state board of tax commissioners on filing with the city, town or village clerk a state- ment of the valuation of a special franchise, shall give to the person, copartnership, association or corporation affected written notice that such statement has been filed, and such notice may be served on a 567 Tax Law. copartnership, association or corporation by mailing a copy thereof to it as its principal office or place of business, and on a person either personally or by mailing it to him at his place of business or last known place of residence. Added by L. 1899, ch. 712, sec. 2, amended by L. 1900, ch. 254, sec. 2. This was sec. 45 of the former Tax Law. § 47. Tax commissioners to appear by counsel. In any proceeding for the review of an assessment of a special franchise made by the state board of tax commissioners, said state board of tax commissioners is authorized to appear by counsel to be designated by the attorney-general. The compensation of such coun- sel and the necessary and proper expenses and disbursements, in- cluding the expense of procuring the evidence of experts, incurred or made by him in the defense of such proceeding, and upon any ap- peals therein, shall when audited and allowed as are other charges against such tax district, be a charge upon the tax district upon whose rolls appears the assessment sought to be reviewed. Where, in one proceeding, there is reviewed the assessment of a special franchise in more than one tax district, separate accounts shall be rendered for said costs, expenses and disbursements to the proper officer of each of said tax districts and audited and allowed by him as aforesaid. For the purposes of this section, the city of New York shall be deemed one tax district. Added by L. 1906, ch. 155, sec. 1. This was sec. 45a of the former Tax Law. § 48. Deduction from special franchise tax for local purposes. If, when the tax assessed on any special franchise is due and pay- able under the provisions of law applicable to the city, town or village in which the tangible property is located, it shall appear that the person, copartnership, association or corporation affected has paid to such city, town or village for its exclusive use within the next pre- ceding year, under any agreement therefor, or under any statute re- quiring the same, any sum based upon a percentage of gross earn- ings, or any other income, or any license fee, or any sum of money on account of such special franchise, granted to or possessed by such per- son, copartnership, association or corporation, which payment was in the nature of a tax, all amounts so paid for the exclusive use of such city, town or village except money paid or expended for paving or repairing of pavement of any street, highway or public place, shall be deducted from any tax based on the assessment made by the state board of tax commissioners for city, town or village purposes, but not otherwise; and the remainder shall be the tax on such special franchise payable for city, town or village purposes. The chamber- 568 Tax Law. lain or treasurer of a city, the treasurer of a village, the supervisor of a town, or other officer to whom any sum is paid for which a per- son, coportnership, association or corporation is entitled to credit as provided in this section, shall, not less than five nor more than twenty days before a tax on a special franchise is payable, make and de- liver to the collector or receiver of taxes or other officer authorized to receive taxes for such city, town or village, his certificate showing the several amounts which have been paid during the year ending on the day of the date of the certificate. On the receipt of such certifi- cate the collector, receiver or other officer shall immediately credit on the tax roll to the person, copartnership, association or corporation affected the amount stated in such certificate, on any tax levied against such person, copartnership, association or corporation on an assessment of a special franchise for city, town or village purposes only, but no credit shall be given on account of such payment or cer- tificate in any other year, nor for a greater sum than the amount of the special franchise tax for city, town or village purposes, for the current year; and he shall collect and receive the balance, if any, of such tax as required by law. ; Added by L. 1899, ch. 712, sec.-2. This was sec. 46 of the former law. § 49. Special franchise tax not to affect other tax. The imposition or payment of a special franchise tax as provided in this chapter shall not relieve any association, copartnership or corporation from the payment of any organization tax or franchise tax or any other tax otherwise imposed by article nine of this chap- ter, or by any other provision of law; but tangible property subject to a speicial franchise tax situated in, upon, under or above any street, tighway, public place or public waters, as described in sub- ~ division three of section two, shall not be taxable except upon the assessment made asvherein provided by the state board of tax com- missioners. Added by L. 1899, ch. 712, sec. 2. This was sec. 47 of the former Tax Law. § 60. Statement of taxes upon certain corporations by clerk of supervisors. The clerk of each board of supervisors shall, within five days after the tax warrant is completed, deliver to the county treasurer a state- ment showing the names, valuation of property and the amount of tax of every railroad ‘corporation and telegraph, telephone and elec- tric-light line in each tax district in the county, and on refusal or neglect so to do, shall forfeit to the county the sum of one hundred dollars, to be sued for by the district attorney in the name of the county. This was sec. 67 of the former Tax Law. See, also, the County Law. 569 Tax Law. § 61. Statement of valuation to be forwarded to comptroller, The clerk of each board of supervisors shall, on or before the second Monday in December, transmit to the comptroller, in the form to be prescribed by such comptroller, a certificate or return of the ag- gregate assessed and equalized valuation of the real and personal estate in each tax district as the valuation of such real estate has been corrected by such board, and the amount of tax assessed thereon for town, city, school, county and state purposes. Also the aggregate assessed valuation of personal property classified as follows: 1. Property of resident natural persons assessed pursuant to sec- tion twenty-one. 2. Property held by agents, trustees, guardians, executors, or ad- ministrators assessed pursuant to sections eight and thirty-three. 3. Property of domestic corporations assessed pursuant to section twelve. 4. Property of nonresident natural persons assessed pursuant to subdivision one of section seven. 5. Property of nonresident natural persons assessed pursuant to subdivision two of section seven. 6. Property of foreign corporations assessed pursuant to section seven. In the city of New York such report shall be made by the depart- ment of taxes and assessments. As amended by L. 1908, ch. 307 sec. 1. This was sec. 58 of the former law. § 72. Collection of taxes assessed against stocks in banks and banking associations. Every bank or banking association shall retain any dividend until the delivery to the collector of the tax-roll and warrant of the current year, and within ten days after such delivery shall pay to such col- lector so much of such dividend as may be necessary to pay any un- paid taxes assessed on the stock upon which such dividend is declared. In case the owner of such stock resides in a place other than where the bank or banking association is located, the same power may be exercised in collecting the tax so assessed as is given in case a person has removed from a tax district in which the assessment was made. The tax so assessed shall be and remain a lien on the shares of stock against which it is assessed till the payment of such tax, and if the stock is transferred it shall be subject to such lien. The collector or county treasurer may foreclose such lien in any court of record, and collect from the avails of the sale of the stock the tax assessed against the same. In addition thereto, the same remedy may be had for the 570 Tax Law. collection of the tax on such shares as is now provided by law for enforcing payment of personal tax against residents. L. 1870, ch. 506, secs. 2-5; L. 1886, ch. 659, sec. 5. § 73. Payment of taxes by railroad and certain other corporations. Any railroad, telegraph, telephone or electric-light company may, within thirty days after receipt of notice by the county treasurer trom the clerk of the board of supervisors, pay its tax, with one per centum fees, to the county treasurer, who shall credit the same with such fees to the collector of the tax district, unless otherwise re- quired by law. If not so paid the county treasurer shall notify the collector of the tax district where it is due, and he shall then proceed to collect under his warrant. Until such notice from the treasurer the collector shall not enforce payment of such taxes, but may receive | the same, with the fees allowed by law, at any time. § 74, Enforcement of tax afainst telegraph, telephone and electric- light lines. Collection of tax against a telegraph, telophone or electric-light line may be enforced by sale of the instruments and batteries connected with such line, and in case there is not sufficient personal property, together with such instruments and batteries, to pay such tax and the percentage due the collector, he shall return a statement thereof to the eounty treasurer as other unpaid taxes are returned, and the county treasurer shall proceed: to sell such part of the line in the tax district where the tax was levied as may be necessary to satisfy the unpaid taxes and percentage, in the manner now provided by law for the sale of lands on execution, and upon such sale shall execute to the purchaser a conveyance of such part of said line, and the purchaser shall thereupon become the owner thereof. Nothing herein con- tained shall be construed to prevent collection of such taxes by any procedure now provided by law. L. 1886, ch. 659, secs. 3, 6. § 180. Organization tax. Every stock corporation incorporated under any law of this state shall pay to the state treasurer a tax of one-twentieth of one per centum upon the amount of capital stock which the corporation is authorized to have, and a like tax upon any subsequent increase. Provided, that in no case shall such tax be less than one dollar. Such tax shall be due and payable upon the incorporation of such corpora- tion or upon the increase of its capital stock. Except in the case of a railroad corporation neither the secretary of state nor county clerk shall file any certificate of incorporation or article of association, or give any certificate to any such corporation or association until he is 571 Tax Law. furnished a receipt for such tax from the state treasurer, and no stock corporation shall have or exercise any corporate franchise or powers, or carry on business in this state until such tax shall have been paid. And in case of a decrease of capital stock, upon which the tax required by law has been paid, and a subsequent increase thereof, a tax shall be paid only upon so much of such increase as exceeds the amount of capital stock upon which a tax has been before paid. In case of the consolidation of existing cor- porations into a corporation, such new corporation shall be re- quired to pay the tax hereinbefore provided for only upon the amount of its capital stock in excess of the aggregate amount of capital stock of said corporations. This section shall not apply to state and national banks or to building, mutual loan, accumulating fund and co- operative associations. A railroad corporation need not pay such tax at the time of filing its certificate of incorporation, but shall pay the same before the public service commission shall grant a certificate, as required by the railroad law, authorizing the construction of the road as proposed in its articles of association, and such certificate shall not be granted by the public service commission until it is furnished with a receipt for such tax from the state treasurer. L. 1896, ch. 908, sec. 180, as amended by L. 1897, ch. 369, L. 1901, ch. 448, L. 1906, ch. 524, sec. 1. By the amendment of 1901 the tax was reduced from one-eighth of one per cent. to the present rate; and the amendment of 1897 added the last sentence to this section. TABLD OF PAYMENTS OF ORGANIZATION Tax. Capital Stock Tax Between $500 and $2000 $1.00 (minimum rate) $2,500 1.25 2,800 1.40 3,000 1.50 3,500 1.75 4,000 2.00 4,500 2.25 5,000 2.50 5,500 2.75 6,000 3.00 6,500 3.25 7,000 3.50 7,500 8.75 8,000 4.00 8,500 4.25 9,000 4.50 9,500 4.75 10,000 5.00 12,000 6.00 15,000 7.50 18,000 9.00 20,000 10.00 25,000 12.50 PayMpnt.—As to the manner of paying this tax, see annotation under Bus- iness Corp. Law, sec. 2, supra. 572 Tax Law. TaX UPON REORGANIZATION AND CONSOLIDATION.—A new incorporation result-- ing from reorganization by the purchase on foreclosure sale of the property and franchise of a former corporation makes the new organization liable for the or- ganization tax. People v. Cook, 110 N. Y. 443. The provision with reference to the organization tax upon the consolidation of two corporations applies in the case of the consolidation of three. People ex rel. Eickemeyer Field Co. v. Rice, 66 Hun 130, 21 N. Y. Supp. 48. § 181. License tax on foreign corporations, Every foreign corporation, except banking corporations, fire, martne, casualty and life insurance companies, co-operative fraternal in- surance companies, and building and loan associations, authorized to do business under the general corporation law, shall pay to the state treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed upon the basis of the capital stock employed by it within this state, during the first year of carrying on its business in this state; and if any year thereafter any such corporation shall employ an increased amount of its capital stock within this state, the same license fee shall be due and payable upon any such increase. The measure of the amount of capital stock employed in this state shall be such a portion of the issued capital stock as the gross assets employed in any business within this state bear to the gross assets wherever employed in business. For purposes of taxation, the capital of a corporation invested in the stock of another corporation shall be deemed to be assets located where the physical property represented by such stock is located. The amount of capital upon which such taxes shall be paid shall be fixed by the comptroller, who shall have the same authority to examine the books and records in this state of such foreign corporations, and the employees thereof, and the same power to issue his warrant for the collection of such taxes, as he now has with regard to domestic corporations. No action shall be maintained or recovery had in any of the courts in this state by such foreign corporation without obtaining a receipt for the license fee hereby imposed within thirteen months after beginning such business within the state, or if such a corporation had, on October thirty-first, nine- teen hundred and six, been engaged in business within this state for more than twelve months, without obtaining such receipt within thirty days after such tax is due. L. 1896, ch. 908, sec. 181, as amended by L. 1901, ch. 558; L. 1906, ch. 474, sec. 1; L. 1895, ch. 240 pt., incorporated. COMPLIANCD aS CONDITION SuBsEqupNT.—Compliance with the provisions of this section is a condtion subsequent to the right of the corporation to maintain an action in this state. Wood & Selick v. Ball, 190 N. Y. 217. The neglect to pay the tax required by this section is u matter of defense and 573 Tax Law. must be alleged in the answer. Wood & Selick v. Ball, supra; Halsey v. Jewett Dramatic Co., 190 N. Y. 231. And failure to allege in the answer that the amount of such tax has been assessed by the state comptroller as required by the latter part of this section (formerly a part of L. 1895, ch. 240) and that more than 30 days have elapsed without payment makes the answer demurrable. Halsey v. Jewett Dramatic Co. supra. An answer in an action by the assignee of a corporation that the assignor corporation has done business in the state without paying the Mcense fee required by this section, is sufficient in law and a demurrer thereto should be overruled. Kinney vy. Reid Ice-Cream Co., 57 App. Div. 206, 68 N. Y. Supp. 825. A corporation is not relieved from paying the required tax because more than 18 months after beginning to do business in the state and at the time of the commencement in an action, it had ceased to do business. Kinney v. Reid Ice- Cream Co., supra. Proof that the corporation was doing business merely at the time of the trial, will not bar a recovery on a contract for goods sold, on account of non- payment of the tax. Stern v. Childs, 26 Misc. 419, 56 N. Y. Supp. 192. With reference to the right of the corporation to sue within the state without first procuring the license required by General Corp. Law, sec. 15, see annotation under that section, supra. ASSIGNEH.—The provisions of this section are applicable to the assignee of a corporation. Halsey v. Jewett Dramatic Co., 190 N. Y. 231; Kinney v. Reld Ice- Cream Co., 57 App. Div. 206, 68 N. Y. Supp. 325. TIMB OF PayMENT.—This tax cannot be paid in advanee, for it must be com- puted on the basis of the capital stock employed in the state, which cannot be known in advance. But when computed it is to be paid within 30 days. Wood & Selick v. Ball, 190 N. Y. 217. As to payment of the tax after expiration of the time prescribed, see Dun- barton F. Spinning Co. v. Greenwich & J. R. Co., 87 App. Div. 21, 83 N. Y. Supp. 1054. 8 182. Franchise tax on corporations. For the privilege of doing business or exercising its corporate franchises in this state every corporation, joint-stock company or association, doing business in this state, shall pay to the state treasurer annually, in advance, an annual tax to be computed upon the basis of the amount of its capital stock, employed during the preceding year within this state, and upon each dollar of such amount. The measure of the amount of capital stock employed in this state shall be such a portion of the issued capital stock as the gross assets employed in any business within this state bear to the gross assets wherever employed in business. For purposes of taxation, the capital of a corporation invested in the stock of another corporation shall be deemed to be assets located whére the physical property represented by such stock is located. If the dividends upon the capital stock amount to six, or more than six per centum upon the par value of the capital stock, during any year ending with the thirty-first day of October, the tax shall be at the rate of one-quarter of a mill for each one per centum of dividends made or declared upon the par value of the capital stock during said year.. If such dividend or dividends amount to less than six per centum on the par value of the capital stock, and 574 Tax Law. (1) The assets do not exceed the libilities, exclusive of capital stock, or (2) The average price at which such stock sold during said year did not equal or exceed its par value, or (3) If no dividend was declared, Then each dollar of the amount of capital stock employed in this state, determined as hereinbefore provided, shall be taxed at the rate of three-fourths of one mill. If such dividend or dividends amount to less than six per centum on the par value of the capital stock, and (1) The assets exceed the liabilities, exclusive of capital stock, by an amount equal to or greater than the par value of the capital stock, or (2) The average price at which such stock sold during said year is equal to or greater than the par value, Then the amount of capital stock, determined as hereinbefore provided to be employed in this state, shall be taxed at the rate of one and one-half mills on each dollar of the valuation of the - capital stock employed in this state, but such valuation shall not be less than (1) The par value of such stock, (2) The difference between the assets and liabilities, exclusive of capital stock, (8) The average price at which such stock sold during said year. If such corporation, joint-stock company or association shall have more than one kind of capital stock, and upon one of such kinds of stock a dividend or dividends amounting to six or more than six per centum upon the par value thereof, has been made or declared, and upon the other no dividend has been made or declared, or the dividend or dividends made or declared thereon amount to less than six per centum upon the par value thereof, then the tax shall be at the rate of one-quarter of a mill for each one per centum of dividends made or declared upon the capital stock upon the par value of which the dividend or dividends made or declared amount to six or more than six per centum, and in addition thereto a tax shall be charged upon the capital stock (1) Upon which no dividend was made or declared, or (2) Upon which the dividend or dividends made or declared did not amount to six per centum upon the par value, At the rate as hereinbefore provided for the taxation of capital stock upon which no dividend was made or declared, or upon which 5U5 Tax Law. the dividend or dividends made or declared did not amount to six per centum on the par value. All corporations not taxable under the preceding paragraphs of this section stall be taxed in an amount not less than would be produced by an assessment of one and one-half mills on each one dollar of the actual value of its capital stock, determined to be employed in this state as hereinbefore provided, or one and one- half mills upon each dollar of such capital stock at the average price at which said stock sold during the said year. L. 1880, ch. 542, sec. 3; L. 1896, ch. 908, sec. 182, as amended by L. 1901, ch. 558; L. 1906, ch. 474, sec. 2, and L. 1907, ch. 734, sec. 1. NATURE OF FRANCHISP TAX.—The tax imposed by this section upon a domestic corporation is not a tax upon property, although it is admeasured by the value of property, but upon the right of a corporation to exist and exercise the powers granted by this charter. People ex rel. U. S. Aluminum P. P. Co. vy. Knight, 174 N. Y. 475, and cases reviewed; Security T. Co. v. Liberty Bldg. Co., 96 App. Div. 436, 89 N. Y. Supp. 340. And it may be imposed although the business of the corporation is interstate or foreign commerce. People ex rel. International El. Co. v. Roberts, 116 App. Div. 30, 101 N. Y. Supp. 184. The imposition upon a domestic corporation of the franchise tax, is not a prop- erty tax, and where a portion of the property of a corporation consists of imported goods, a tax on such property does not violate the restriction of the Federal Con- Stitution upon the taxation of imports. People ex rel. Matheson & Co. v. Roberts, 158 N. Y. 162. The tax imposed upon foreign corporations is upon the business they do within the state; when such corporations come within the state and employ their capital here, it is the intention of the legislature to require them to pay a tax in return for the privileges and benefits they enjoy. People ex rel. Badische Fabrik v. Roberts, 152 N. Y. 59; People ex rel. Penn. R. Co. v. Wemple, 138 N. Y. 1. Power To IMpPosp Tax.—The power to tax a foreign corporation under this section depends upon the existence of two concurring conditions, namely, that the corporation shall be “doing business in this state,’ and that its capital or some portion thereof shall have been “employed within this state.” People ex rel. Chicago J. R. & U. S. Co. v. Roberts, 154 N. Y. 1. The terms “employed within this state” as used in this section do not mean simply the legal situs of the property within this state. People ex rel. Lackawanna Transp. Co. v. Knights, 75 App. Div. 164, 77 N. Y. Supp. 398; People ex rel. Chicago J. & Union Stockyards Co. v. Roberts, supra. The right to tax a corporation depends upon the privileges derived from its charter, and not alone upon what it has actually done or attempting to do there- under. People ex rel. Wall & H. St. R. Co. v. Miller, 181 N. Y. 328, distinguishing People v. American Bell T. Co., 117 N. ¥. 241. MBANING OF “ CaPITAL StTocxk.’’—The term ‘ capital stock ’’ as employed in this section refers to the capital or property of the corporation, and not to its share stock. People ex rel. Lackawanna Transp. Co. v. Knight, 75 App. Div. 164, 77 N. Y. Supp. 398; People ex rel. Singer Mfg. Co. v. Wemple, 150 N. ¥. 46; People ex rel. Com. Cable Co. v. Morgan, 178 N. Y. 433; Williams vy. Western U. Teleg. Co., 93 N. Y. 162. The terms “capital stock’’ and ‘‘capital’’ are practically the equivalent of each other when considered as a basis for a franchise tax. People ex rel. Com. Coble Co. v. Morgan, supra. Basis OF Tax.—The basis of assessing the tax upon capital of a corporation which has paid no dividends and of whose stock there have been no sales during the tax year, is to be determined by ascertaining the actual cash value of its capital stock. People ex rel. Wiebusch & H. Co. v. Roberts, 154 N. Y. 101. The actual cash value in such a case is the value of the assets, after deducting the liabilities 576 Tax Law. and adding to the sum remaining the value of the good-will of the business, includ- ing the right to conduet it under its franchise. The actual, not the par value of the capital stock of a corporation employed within the state is the basis for computing the franchise tax. People ex rel. New York C. & H. R. R. Co. v. Knight, 173 N. Y. 255. When the dividends do not equal 6 per cent, the average amount of capital employed the preceding year, and not the highest sum employed at any one time, is to be taken as the basis for computation. People ex rel. Brooklyn R. T. Co. v. Morgan, 57 App. Div. 335, 68 N. ¥. Supp. 21, mfd. 168 N. Y. 672 mem. , For the construction of the portion of this section so far as it relates to cor- porations which have declared a dividend of less than 6 per cent, see People ex rel. N. Y. & East R. Ferry Co. v. Roberts, 168 N. ¥. 14, and People ex rel. Union Ferry Co. v. Roberts, 66 App. Div. 157, 72 N. Y. Supp. 950. Assessment when a corporation has paid no dividends during the year, see People ex rel. Metropolitan Sec. Co. v. Kelsey, 101 App. Div. 248, 91 N. Y. Supp. 711. With reference to capital stock and share stock as the same thing and assess- able for more than the par value of the stock, see People ex rel. Colonial T. Ca. v. Morgan, 47 App. Div. 126, 62 N. Y. Supp. 191, aff'd 162 N. Y. 654 mem. TAXABLH CAPITAL,—IN GBNERAL.—The value of rolling stock of a domestic railroad company except that exclusively used outside the state but including that transferred to other roads and run outside the state where the cars are reloaded and returned to this state, is capital employed within the state. People ex rel. N. Y. C. & H.R. R. Co. v. Knight, 173 N. Y. 255. Rolling stock exclusively used within the state, is taxable as property em- ployed in the state. People ex rel. N. Y. C. & H. R. R. Co. v. Miller, 89 App. Div. 127, 84 N. Y. Supp. 1088, aff'd 177 N. Y. 584 mem., which is aff’d in 202 U. S. 584. A large tract of land owned by a corporation, no part of which is used for the shops of the corporation, but a portion of which is oceupied by dwellings rented by the corporation, is capital subject to the. franchise tax. People ex rel. Steinway & Sons v. Kelsey, 108 App. Div. 188, 96 N. ¥. Supp. 42. Money invested by a foreign corporation in structures on leased grounds, is taxable as capital employed within the state, although the structures may become the property of the owners of the land. People ex rel. Long Dock Mills & EB. v. Wilson, 121 App. Div. 376, 106 N. Y. Supp. 1. A foreign corporation is considered to be engaged in business in this state within the meaning of this section, by becoming a special partner in a limited partnership within the state, which is the sole agent for the sale of its products, and is liable to taxation upon the amount of capital contributed. People ex rel. Badische Fabrik v. Roberts, 152 N. Y. 59. Srocxs anp Bonps.—Bonds of the United States and other bonds purchased with capital should be treated as capital employed within the state. People ex rel. Com. Cable Co. v. Morgan, 178 N. Y. 433. Bonds held by a domestic corporation in foreign corporations,- issued to the former in payment of certain patent rights granted to the latter, are taxable under this section, since such bonds are presumably held by the relator at its office in this state and therefore have their situs at the domicile of the owner. People ex rel. Edison El. L. Co. v. Campbell, 188 N. Y. 548. The court said that the bonds took the place of the patent rights granted for their purchases and that they were held in this state to earn revenue for the relator, and consequently were employed within the state. But to subject the capital of a foreign corporation invested in stocks and bonds to taxation under this section, two conditions must exist, namely, the corporation must be “doing business in this state”, and some part of its capital shall have been ‘‘employed within this state”’. Thus, a foreign corporation whdse capital is wholly invested in the stocks and ponds of another foreign corporation doing business wholly without the state, and whose whole income is derived from such investment and which maintains a leased office in this state, with furniture, officers and clerks, where it receives and distrib- utes the dividends or income derived from its investment, which constitutes its whole business, is not subject to the provisions of this section. People ex rel. Chicago J. and Union Stockyards Co. v. Roberts, 154 N. Y. 1. 577 Tax Law. But bonds purchased with surplus do not furnish a basis for taxation. People ex rel. Com. Cable Co., supra; People ex rel. International Elevating Co. v. Roberts, 116 App. Div. 30, 101 N. Y. Supp. 184. There is no presumption, however, that the bonds owned by a corporation were purchased with surplus, even though the corporation has more assets than share stock. People ex rel. Com. Cable Co. v. Morgan, supra. Stocks held in other corporations are governed by the same rules that govern bonds. People ex rel. Com. Cable Co. v. Morgan, 178 N. Y. 433. Stocks held by a domestic corporation issued to it in payment for the use of certain patent rights owned by it, constitutes capital employed within the state; the stock so held takes the place of the relator’s capital of the patent rights transferred in payment. People ex rel. Edison Bl. L. Co. v. Campbell, 138 N. Y. 543. But stocks owned by a domestic corporation issued to the former in payment of certain patent rights, does not constitute capital employed within the state. People ex rel. Edison Bl. L. Co. v. Campbell, supra; People ex rel. Edison Hl. L. Co., 148 N. Y. 690. & The capital of a foreign corporation which is entirely invested in the stock of a local corporation doing business within the state, is not subject to taxation. People ex rel. Edison L. and P. Install. Co. v. Kelsey, 101 App. Div. 205, 91 N. Y. Supp. 709, citing People v. American Bell Telephone Co., 117 N. Y. 242. Capital invested by a foreign corporation doing business in this state in the stock of another corporation, for which purpose the former was organized, is taxable. People ex rel. Manhattan Silk Co. v. Miller, 125 App. Div. 296, 109 N. Y. Supp. 866. In People ex rel. Com. Cable Co. v. Morgan, supra, it appeared that the relator had not only acquired all of the share. stock of another corporation, but also all of its assets, except the corporate franchise and some non-assignable contracts ; the relator issued bonds in payment and deposited with a trust company the stock so acquired as collateral security to the bonds. The court held that the stock so owned should be regarded as capital upon which the franchise tax should be computed. CaPITaAL INVESTED IN Patent RIGHTS, ETc.—-While the state cannot tax property of the federal government, such as letters patent, copyrights, U. 8. bonds, etc., yet it may lawfully impose a franchise tax computed upon the basis of the amount of capital stock invested therein. People ex rel. U. S. Aluminum P. P. Co. v. Knight, 174 N. Y. 475, overruling contrary decision in People ex rel, Johnson Co. vy. Roberts, 159 N. Y. 70. Thus, capital invested by a domestic corporation in letters patent issued by the United States, which by federal law is exempt, is subject to taxation under this section. People ex rel. U. S. Aluminum P. P. Co. v. Knight, supra. With reference to the taxation of capital invested in U. 8S. bonds, see People ex rel. Com. Cable Co. v. Morgan, 178 N. Y. 433. And on capital invested in imported goods, see People ex rel. Matheson & Co. v. Roberts, 158 N. Y. 162. SureLus :Earnines.—Surplus earnings and property purchased therewith and representing such surplus, is not taxable as “capital employed within the state.” People ex rel. United Verde Copper Co. v. Roberts, 156 N. Y. 585; People ex rel. Com. Cable Co. vy. Morgan, 178 N. Y. 433; People ex rel. Steinway & Sons v. Kelsey, 108 App. Div. 138, 96 N. Y. Supp. 42; People ex rel. Ry. Adv. Co. v. Roberts, 4 App. Div. 288, 39 N. Y. Supp. 448, aff’d 151 N. Y. 621 mem. Goop WILL.—The good will of a corporation is to be considered in fixing the franchise tax. People ex rel. Victor Koechl Co. v. Morgan, 96 App. Div. 110, 88 N. Y. Supp. 1066, aff'd 183 N. Y. 574 mem., citing People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70. But the comptroller should not accept a corporation’s own estimate of its good will. People ex rel. Victor Koechl Co. v. Morgan, supra. The good will of a corporation is not shown to be of no value because the corporation it could get nothing for it. People ex rel. Journeay & B. Co. vy. Roberts, 87 App. Div. 1, 55 N. Y. Supp. 317. And the good will of a foreign corporation acquired and built up in this state and having a market value here where its business is carried on, is not exempt from taxation as capital employed within the state, merely because it is intangible. People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70. 578 Tax Law. TRADE Marx.—The value of a trade mark owned by a foreign corporation may be considered in determining the amount of capital stock employed within the state. People ex rel. Spencerian Pen Co. vy. Kelsey, 105 App. Div. 182, 93 N. Y. Supp. 971, aff’d 185 N. Y. 546 mem. ’ CAPITAL EMPLOYED IN INTERSTATE COMMPRCE.—This section imposing a tax on foreign corporations to the extent of their capital employed within the state, is not void as a burden on interstate commerce. People ex rel. Union Sulphur Co. v. Glynn, 125 App. Div. 328, 109 N. Y. Supp. 868; People ex rel. Klipstein & Co. v. Roberts, 86 App. Div. 597, 55 N. Y. Supp. 950. The state has no power to tax a foreign corporation upon its business carried on within the state which is exclusively the business of interstate commerce. Thus, a railroad company whose line does not extend into this state but which operates in conneection with its road, a ferry across the Hudson river to New York City where it has terminal facilities and employs a large number of clerks and agents, is not subject to the provisions of this section. People ex rel. Pennsylvania R. Co. v. Wemple, 138 N. Y. 1. A cab service operated in New York City by a foreign railroad corporation for the purpose of transporting to various points therein its passengers who are conveyed to the city by ferry from its terminal in another state, the service beginning and ending in this state, is not incidental to or a part of the interstate commerce carried on by the company and the capital employed in the maintenance of such service is taxable under this section. People ex rel. Penn. R. Co. v. Knight, 171 N. Y. 354, aff’d 192 U. S. 21. CaPitaL WiTHouT THn StTatw.—A corporation cannot be taxed under this section for the portion of its capital permanently without the state. People ex rel. Lackawanna Transp. Co. v. Knight, 75 App. Div. 164, 77 N. Y. Supp. 398, and cases cited. A domestic corporation operating a tannery in another state and maintaining another office within this state, is not liable for payment of the tax on mer- chandise sold without the state and which never came within the state, although the bill therefor was entered in the New York office. People ex rel. Hans Rees’ Sons v. Miller, 90 App. Div. 591, 86 N. Y. Supp. 193. Waat Constitutes ‘CapiraL EMPLOYED ”’.—‘“‘ Capital employed within the state’’ within the meaning of this section is capital actively employed; u nominal employment or a mere investment is not within the provisions of the statute. People ex rel. Union Ferry Co. v. Roberts, 66 App. Div. 157, 72 N. Y. Supp. 950. The capital of a corporation may be invested in the state without beeing employed within the meaning of this section. Thus, in People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46, it appeared that a foreign corporation doing business in this state, invested a portion of its surplus earnings in real estate in this state, which it leased to third parties. The court held that the portion so invested was no part of the capital stock of the corporation employed within the state, even if that sum was a part of the capital stock of the company; that it was an independent investment, and was in no sense employed within the state in the transaction of the ordinary business of the cor- poration. This decision was followed in People ex rel. Ft. Geo. R. Co. v. Miller, 179 N. Y. 49. Capital invested in real estate consisting of idle and unimproved swamp lands, not being employed, is not a basis for a tax. People ex rel. Niagara R. H. Co. v. Roberts, 30 App. Div. 180, 51 N. Y. Supp. 771, aff’d 157 N. Y. 676 mem. The court in this case also followed People ex rel. Singer Mfg. Co. v. Wemple, supra. The court said that ‘“‘ the tax contemplated by the statute is upon the active use of its capital in its corporate business, not upon passive holding of it in the form of an unproductive investment ”. ‘ But when a corporation has no surplus and all of its capital is placed in a single venture, which requires active management and constitutes its sole business, the doctrine of the foregoing authorities is inapplicable. Thus, a foreign corporation owning, managing, and renting an office building in New York City, under u charter broad enough to authorize unlimited dealing in real estate and personal property, all of its capital being invested in the property aforesaid and the profits arising being paid out in dividends, is engaged im carrying on business by the active use of capital and is subject to the tax imposed by this 579 Tax Law. and the preceding section. People ex rel. Wall & Hanover St. R. Co. v. Miller, 181 N. Y. 328, distinguishing 150 N. Y. 46; 179 N. Y. 49; 30 App. Div. 180, 51 N. Y. Supp. 771. And in People ex rel. Hubert Apartment Assoc. vy. Kelsey, 110 App. Div. 617, 96 N. Y. Supp. 745, aff'd 184 N. Y. 537 mem., it was held that a corporation whose only business consists in owning and renting an apartment house, is subject to the franchise tax. A corporation organized to do a general real estate business, and to purchase mortgages, stocks and bonds, is subject to the franchise tax. People ex rel. 14th St. Realty Co. v. Kelsey, 110 App. Div. 797, 97 N. Y. Supp. 197, aff'd 184 N. Y. 572 mem. See, also, People ex rel. Steinway & Sons v. Kelsey, 108 App. Div. 1387 96 N. Y. Supp. 42. ASSESSMENT OF TaX FOR PArT oF YEAR.—In People ex rel. Hans Rees’ Sons v. Miller, 90 App. Div. 591, 86 N. Y. Supp. 193, it appeared that a corporation was organized in October 1901 but owned no capital until June 1902, except $500 necessary for organization purposes; after the latter date active business was commenced and the entire capital stock issued. The eourt held that it wad liable for the franchise tax only during the part of 1902 during which it conducted active business. And in People ex rel. Ft. Geo. Realty Co. v. Miller, 90 App. Div. 588, 86 N. ¥. Supp. 420, rev’d in 179 N. Y. 49 on another point, it was held that a franchise tax on the business of a corporation whieh has done only 5% months should not be levied for the full year. The court cited People ex rel. Mutual Trust Co. v. Miller, 177 N. ¥. 51. See, also, People ex rel. S. Cohn & Co. v. Miller, 94 App. Div. 564, 88 N. Y¥. Supp. 197, aff'd 180 N. ¥. 16, and People ex rel. Brooklyn R. T. Co., 57 App. Div. 335, 68 N. Y. Supp. 2t. And see People ex rel. Jerome Pk. Villa S. & Imp. Co. v. Roberts, 41 App. Div. 21, 58 N. Y. Supp. 254, in which the real property of the corporation was condemned by the city of New York during the tax year. DebuctTions.—The indebtedness of a foreign corporation imcurred generally in its business and not in respect to any particular asset within the state, should be deducted from the sum of the assets wherever found and an amount set off against the value of the assets within the state as will be preportionate. People ex rel. Manhattan Silk Co. v. Miller, 125 App. Div. 296, 109 N. Y. Supp. 866, citing People ex rel. Rees’ Sons v. Miller, 90 App. Div. 591, 86 N. Y. Supp. 193. The debts of a foreign corporation should be deducted from the amount fixed by the comptroller as the capital employed within the state, where the entire eapital is employed here. People ex rel. Journeay & B. Co. v. Roberts, 37 App. Diy. 1, 55 N. Y. Supp. 317. In assessing the property of a corporation, the assets outside the state should be deducted from its total assets, and such proportion of its indebtedness only as its assets in the state bear to its total assets. People ex rel. A. G. Hyde & Sons v. Miller, 90 App. Div. 599, 85 N. Y. Supp. 522, aff'd 179 N. Y. 564 mem. DECISION OF COMPTROLLFER.—It is the established rule that the determination of the comptroller must stand upon the question of valuation, unless clearly shown to be erroneous. People ex rel. U. V. Copper Co. v. Roberts, 156 N. Y. 585, and cases cited. But the comptroller’s account should be readjusted when it appears that he has included stocks and bonds purchased with surplus earnings. People ex rel. United V. Copper Co. v. Roberts, supra. § 183. Certain corporations exempt from tax on capital stock. Banks, savings banks, institutions for savings, title guaranty, insurance or surety corporations, every trust company incorporated, organized or formed, under, by or pursuant to a law of this state, and any company authorized to do a trust company business, solely or in connection with any other business, under a general or special law of this state, laundering corporations, manufacturing cor- porations to the extent only of the capital actually employed in this 580 Tax Law. state in manufacturing, and in the sale of the product of such manufacturing, mining corporations wholly engaged in mining ores within this state, agricultural and horticultural societies or associ- ations, and corporations, joint-stock companies or associations own- ing or operating elevated railroads or surface railroads not operated by. steam, or formed for supplying water or gas for electric or steam heating, lighting or power purposes, and liable to a tax under sections one hundred and eighty-five and one hundred and eighty-six of this chapter, shall be exempt from the payment of the taxes prescribed by section one hundred and eighty-two of this chapter. But such a laundering, manufacturing or mining cor- poration shall not be exempted from the payment of such tax, unless at least forty per centum of the capital stock of such corporation is invested in property in this state and used by it in its laundering, manufacturing or mining business in this state. L. 1896, ch. 908, as amended by L. 1897, ch. 785; L. 1901, ch. 558, L. 1906, ch 474, sec. 4. EXEMPTION OF MANUFACTURING CORPORATIONS.—Prior to the amendment of 1901 only such corporations as were ‘“‘ wholly engaged in carrying on manufacturing ”» within the state were exempt; but under the present law the portion of the capital actually employed is exempt. Land owned by a manufacturing corporation, no part of which is used for the shops of the corporation, but a portion of which is occupied by dwellings rented by the corporation, is not ‘capital actually employed in manufaeturing’’, and exempt from taxation. People ex rel. Steinway & Sons vy. Kelsey, 108 App. Div. 138, 96 N. Y. Supp. 42. DEFINITION.—The term “ manufacture” was defiued in Kidd v. Pearson, 128 U. S. 1, as the act of transformation,—the fashioning of raw materials into a form for use. “The definition of the terms ‘manufacturing corporations’ and ‘manufacture’, as derived from some decisions and statutes to which our attention has been called ’’, said the court in People v. Silver Min. Co., 105 N. Y. 76 (82) aff’d 143 U. 8S. 305, “is of little service in the construction of the lamguage of this act. These terms must be construed in view of the general purposes of the acts in which they are made, and the general phraseology found in connection with them. To give effect to the Jegislative intention, their ordinary meaning may be enlarged or restricted. Under this section, it is nox sufficient to exempt a corporation from¥ taxation that it is a manufacturing corporation, but it must also carry on Manufacture within this state”. Wat CONSTITUTES “ MANUFACTURING ’’.—The following acts have been held to constitute manufacturing: Making composition for pavement by secret process. People ex rel. Eastern B. A. Co. v. Morgan, 61 App. Div. 373, 70 N. Y. Supp. 516; People ex rel. Fruin B. Pav. Co v. Knight, 99 App. Div. 62, 90 N. Y. Supp. 537 ;— making paving bricks. People ex rel. Eastern B. A. Co. v. Morgan, 61 App. Div. 373, 70 N. ¥. Supp. 516 ;—making kindling wood by machinery in large quantities which is bound inte bundles. People ex rel. Standard Wood Co. v. Roberts, 20 App. Div. 514, 47 N. Y. Supp. 122;—-making and inserting boiler linings. People ex rel Non-Antem 8. D. Co. v. Knight, 67 App. Div. 365, 73 N. Y¥. Supp. 743 ;— making paint. People ex rel. Devoe Co. v. Roberts, 51 App. Div. 77, 64 N. Y. Supp. 494;—Jputting together parts of fountain pens purchased from another eorporation. People ex rel. Waterman Co. v. Morgan, 48 App. Div. 395, 63 N. Y. Supp. 76;—generation of electricity for Hight and power. People ex rel. Brush El. Mfg. v. Wemple, 129 N. Y. 543; People v. Wemple, 129 N. Y. 664; People ex rel. Edison El. L. Co. v. Campbell, 88 Hun. 527, 34 N. Y. Supp. 711 (But see sec. 186, post) ;—making artificial tHuminating gas. Nassau Gaslight Co. 581 s Tax Law. y. Brooklyn, 89 N. Y. 409;—manufacturing flour or meal. Carlin v. Western Assur. Co., 57 Md. 515;—refining ofl. Hawes v. Anglo-Saxon P. Co., 101 Mass. 385 ;—making liquors. Com. v. Germania Brew. Co., 145 Pa. 83;—making coke from coal. Com. v. Juniata Coke Co., 157 Pa. 507;—reduction of metal-bearing ores. Matter of Tecopa Min. Co. 110 Fed. 120;—printing newspapers. State v. Dupre, 7 So. 727; contra, 47 N. J. L. 36; see 155 N. Y. 1;—printing, pub- lishing and selling books. People vy. Roberts, 90 Hun 533, 36 N. Y. Supp. 73. But the following acts do not constitute manufacturing: Preparing street for and laying pavements. People v. Morgan, 59 App. Div. 302, 69 N. Y. Supp. 263; People ex rel. Fruin B. Pav. Co. v. Knight, 99 App. Div. 62, 90 N. Y. Supp. 537 ;— repairing ships. People v. N. Y. Floating D. D. Co, 92 N. Y¥. 487 ;—making ice-cream. 32 La. Ann. 1075;—roasting coffee, mixing spices and blending teas. People v. Roberts, 145 N. Y. 375;—rendering tallow. People ex rel. New England D. M. Co. v. Roberts, 155 N. Y. 408;—-making hay. 18 Fed. 584 ;—cutting, housing and distributing ice. People v. Knickerbocker Ice Co., 99 N. Y¥. 181. ASSEMBLING ParTs.—A corporation is not entitled to bring into this state to be put together articles made in another state, and claim the benefit of this section. People ex rel. Seth Thomas Clock Co. v. Wemple, 1383 N. Y. 323; People ex rel. Roebling’s Sons Co. v. Wemple, 188 N. Y. 582. INCIDENTAL MatTTprs.—It should be noted that only capital actually employed in manufacturing is exempt, and therefore the right to exemption cannot be claimed for the portion used in doing what is necessarily incidental to the business of manufacturing. People ex rel. Eastern B. A. Co. v. Morgan, 61 App. Div 373, 70 N. Y. Supp. 516; People ex rel. Journeay & B. Co. v. Roberts, 37 App. Div. 1, 55 N. Y. Supp. 317. § 184. Additional franchise tax on transportation and transmission corporations and associations. Every corporation and joint-stock association formed for steam surface railroad, canal, steamboat, ferry, express, navigation, pipe- line, transfer, baggage express, telegraph, telephone, palace car or sleeping car purposes, and every other transportation corporation not liable to taxation under sections one hundred and eighty-five or one hundred and eighty-six of this chapter, shall pay for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, an annual excise tax or license fee which shall be equal to five-tenths of one per centum upon its gross earnings within this state, which shall include its gross earnings from its transportation or trans- mission business originating and terminating within this state, but shall not include earnings derived from business of an interstate char- acter. As amended by L. 1907, ch. 734, sec. 82. Gross EARNINGS.—The use of the term “gross earnings” shows an intent on the part of the legislature to include earnings of every kind arising from or growing out of the employment of capital of a corporation, except earnings from interstate commerce. People ex rel. N. Y. C. R. R. Co, v. Roberts, 32 App. Div. 118, 52 N. Y. Supp. 859, aff'd 157 N. Y. 677 mem. Thus, may be included receipts from stocks and bonds held by a railroad corporation in another railroad corporation, since it will be assumed that such hold- ings are for the purpose of controlling the latter corporation and thus beneficial to the holding company. People ex rel. N. Y. C. R. R. Co. v. Roberts, supra. And the railroad company cannot insist on the exclusion of such stocks and bonds on the ground of double taxation. But a cab service operated in New York City by a foreign railroad corporation 582 Tax Law. for the purpose of transporting to. various points therein its passengers who are conveyed to the city by ferry from its terminus in another state, the service beginning and ending in the state of New York, is not incidental to or a part of the interstate commerce carried on by the corporation, and the earnings therefrom are taxable under this section. People ex rel Penn. R. Co. v. Knight, 171 N. Y. 354, EARNINGS IN INTHRSTATH COMMERCH.—A railroad company is not Mable to an assessment upon its gross earnings derived from the business of carrying the U. S. mail, where they include not only those received for carrying domestic but also received from carrying foreign mail, and it is impossible to ascertain the proportion of mail which originates and terminates within the state. People ex rel. N. Y. C. & H. R. R. Co. v. Morgan, 168 N. Y. 1. Earnings from express business beginning in the state and transferred in the state for delivery in another state, or shipped outside the state for delivery within the state, are not taxable under this section, since such business constitutes inter- state commerce. People ex rel. N. Y. C. & H. R. R. Co. v. Miller, 94 App. Div. 587, 88 N. Y. Supp. 373, and cases cited. Steamships owned by a domestic corporation and employed in interstate commerce cannot be taxed at their full value under this section, since they are not entirely employed within the state. People ex rel. Lackawanna Transp. Co. v. Knight, 75 App. Div. 164, 77 N. Y. Supp. 398. § 185. Franchise tax on elevated railroads or surface railroads not operated by steam. Every corporation, joint-stock company or association owning or operating any elevated railroad or surface railroad not operated by steam shall pay td the state for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity within this state, an annual tax which shall be one per centum upon its gross earnings from all sources within this state, and three per centum upon the amount of dividends declared or paid in excess of four per centum upon the actual amount of paid-up capital employed by such corporation, joint-stock company or asso- ciation. Any such railroad corporation whose property is leased to another railroad corporation shall only be required under this section to pay a tax of three per centum upon the dividends declared and paid in excess of four per centum upon the amount of its capital stock.: L. 1896, ch. 908, as amended by L. 1906, ch 474, sec. 5. The above corpora- tions are subject to the tax imposed by this section instead of a tax upon its capital stock ; see sec. 183, supra. § 186. Franchise tax on water-works companies, gas companies, electric or steam heating, lighting and power companies. Every corporation, joint-stock company or association formed for supplying water or gas, or for electric or steam heating, lighting or power purposes, shall pay to the state for the privilege of exercising its corporate franchises or carrying on its business in such cor- porate or organized capacity in this state, an annual tax which shall be five-tenths of one per centum upon its gross earnings from all sources within this state, and three per centum upon the amount of dividends declared or paid in excess of four per centum upon the 583 Tax Law. actual amount of paid-up capital employed by such corporation, joint- stock company or association. The term “gross earnings” as used in this section means all receipts from the employment of capital without any deduction. As amended by L. 1907, ch. 734, sec. 3. Sec. 183 exempts these corporations from franchise tax imposed by sec. 182, on capital stock. § 187. Franchise tax on insurance corporations, An annual state tax for the privilege of exercising corporate fran- chises or for carrying on business in their corporate or organized capacity within this state equal to one per centum on the gross amount of premiums received during the preceding calendar year for business done at any time in this state, which gross amount of premiums shall include all premiums received during such pre- ceding calendar year on all policies, certificates, renewals, policies subsequently canceled, insurance and reinsurance during such pre- ceding calendar year, and all premiums that are received during such preceding calendar year on all policies, certificates, renewals, policies subsequently canceled, insurance and reinsurance executed, issued or delivered in all years prior to such preceding calendar year, whether such premiums were in the form of money, notes, credits, or any other substitute for money, shall be paid annually into the treasury of the state on or before the first day of June by the follow- ing corporations: 1. Every domestic insurance corporation, incorporated, organized or formed under, by or pursuant to a general or special law; 2. Every insurance corporation, incorporated, organized or formed under, by or pursuant to the laws of any other state of the United States, and doing business in this state, except a corporation doing a fire insurance business or a marine insurance business; 3. Every insurance corporation, incorporated, organized or formed under, by or pursuant to the laws of any state without the United States, or of any foreign country, except such a corporation doing a life, health or casualty insurance business, and doing business in this state; but the tax on gross premiums of a corporation so incor- porated, organized or formed and doing a fire or marine insurance business within the state shall be equal to five-tenths of one per cen- tum. This section does not apply to a fraternal beneficiary society, order or association, a corporation for the insurance of domestic enimals, a town or county co-operative insurance corporation, nor to any corporation subject to the supervision of or required by or in pursuance of law to report to the superintendent of banks; but this section does apply to an individual, or partnership, or association of 584 Tax Law. underwriters known as Lloyd’s in so far as corporations doing the same kind of insurance business are subject to its provisions. The taxes imposed by this section shall be in addition to all other fees, licenses or taxes imposed by this or any other law, except that in assessing taxes under the reciprocal provisions of section thirty-four of the insurance law, credit shall be allowed for any taxes paid under this section. The term “insurance corporations” as used in this article, shall include a corporation, association, joint-stock company or association, person, society, aggregation or partnership by what- ever name known doing an insurance business in this state. y 188. Franchise tax on trust companies, Every trust company incorporated, organized or formed under, by or pursuant to a law of this state, and any company authorized to do a trust company’s business solely or in connection with any other business, under a general or special law of this state, shall pay to the state annually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity, an annual tax which shall be equal to one per centum on the amount of its capital stock, surplus, and. undivided profits. Added by L. 1901, ch. 132, sec. 1, and amended by L. 1901, ch. 535, sec. 1. This was sec. 187-a of the former tax law. See People ex rel. Lincoln Trust Co. v. Glynn 132 App. Div. 546, 116 N. Y. Supp. 1078. ' Division or YuAR.—On apportionment of tax when a trust company has carried on business for! less than the fiscal year, see People ex rel. Mut. T. Co. v. Miller, 177 N. Y. 51. § 189. Franchise tax on savings banks. ‘very savings bank incorporated, organized or formed under, by vr pursuant to a law of this state, shall pay to the state annually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity, an annual tax which shall be equal to one per centum on the par value of its sur- plus and undivided earnings. Added by L. 1901, ch. 117, sec. 1. This was sec. 187-b of the former law. § 190. Purchase of state bonds; credit te be given. Every corporation, company or association required by section one hundred and eighty-seven, one hundred and eighty-eight, or oue hundred and eighty-nine of this chapter, to pay to the state an annual tax equal to a percentage of its gross premiums, capital stock, surplus, undivided profits or undivided earnings, or one or more, for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity, which shall own any of the bonds of the state of New York, shall have credited to it annually to apply upon or in lieu of the payment 585 Tax Law. of such tax an amount equal to one per centum of the par value of all such bonds of the state, bearing interest at a rate not exceeding three per centum per annum, owned by such corporation, company or association, and registered in its name or registered in the name of a public department, a public officer or officers of this state, or of any other state, or of the United States, in trust for such corporation, company or association, on the thirtieth day of June prior to the date when such tax shall become due and payable; provided, however, that there shall in no case be credited to any such corporation, company or association an amount in excess of the amount due to the state from such corporation, company or association for taxes payable to the state under this chapter for the fiscal year for which such credit is given; and further provided that any such credit so allowed under this section shall not bear interest. Added by L. 1907, ch. 550, sec. 1, and amended by L. 1908, ch. 228, sec. 1. This was sec. 187-c of the former Tax Law. § 191. Tax upon foreign bankers, Every foreign banker doing business in this state, shall annually pay to the treasurer a tax of five per centum on the amount of interest or compensation of any kind earned and collected by him on money loaned, used or employed in this state by such banker. The term “doing a banking business,” as used in this section, means doing such business as a corporation may be created to do under article three of the banking law, or doing any business which a corpora- tion is authorized by such article to do. The term “foreign banker doing a banking business in this state,” as used in this section, includes: 1. Every foreign corporation doing a banking business in this state, except a national bank. 2. Every unincorporated company, partnership or association of two or more individuals, organized under or pursuant to the laws of another state or country, doing a banking business in this state. 3. Every other unincorporated company, partnership, or associa- tion, of two or more individuals, doing a banking business in this state, if the members thereof, owning more than a majority interest therein, or entitled to more than one-half of the profits thereof, or who would, if it were dissolved, be entitled to more than one-half of the assets thereof, are not residents of this state. 4, Every nonresident of this state, doing a banking business in this state, in his own name and right only. As amended by L. 1900, ch. 500, sec. 1. This was sec. 188 of the former Tax Law. 586 Tax Law. § 192. Reports of corporations. Corporations liable to pay a tax under this article shall report as follows: 1. Corporations paying franchise tax. Every corporation, associa- tion or joint-stock company liable to pay a tax under section one hundred and eighty-two of this chapter shall, on or before November fifteenth in each year, make a written report to the comptroller of its condition at the close of its business on October thirty-first preceding, stating the amount of its authorized capital stock, the amount of stock paid in, the data and rate per centum of each dividend declared by it during the year ending with such day, the entire amount of the capital of such corporation, and the capital employed by it in this state during such year. 2. Transportation and transmission corporations. Every trans- portation or transmission corporation, joint-stock company or associa- tion liable to pay an additional tax under section one hundred and eighty-four of this chapter, shall also, on or before August first in each year, make a written report to the comptroller of its condition at the close of its business on June thirtieth preceding, stating the amount of its gross earnings from all sources and the amount of its gross earnings from its transportation or transmission business originating ‘and terminating within this state. 3. Elevated and surface railroad corporations. Every corporation, joint-stock company or association liable to pay a tax under section one hundred and eighty-five of this chapter, shall, on or before August first of each year, make a written report to the comptroller of its condition at the close of its business or June thirtieth preceding, stat- ing the amount of its gross earnings from business done in this state, the amount of dividends of every nature declared or paid during the year ending June thirtieth, the authorized capital of the company and the amount of capital stock authorized issued and outstanding. 4. Water-works, gas, electric, steam-heating, lighting and power corporations. Lvery corporation, joint-stock company or association liable to pay a tax under section one hundred and eighty-six of this chapter, shall on or before December first of each year, make a written report to the comptroller of its condition at the close of its business on October thirty-first preceding, stating the amount of its gross earnings from business done in this state, the amount of dividends of every nature declared or paid during the year ending with October thirty-first, the authorized capital of the company and the amount of capital stock actually issued and outstanding. . 5. Insurance corporations. Every insurance corporation liable to 587 Tax Law. pay a tax under section one hundred and eighty-seven of this chapter shall, on or before March first in each year, make a written report to the comptroller of its condition at the close of its business on Decem- ber thirty-first preceding, stating the gross amount of all premiums referred to in section one hundred and eighty-seven of this chapter, received during the preceding calendar year on business done thereby in this state during the year ending with such day and at all times prior thereto, whether the premiums were in money or in the form of notes, credits or other substitutes for money. 6. Foreign bankers, Every foreign banker liable to pay a tax under section one hundred and ninety-one of this chapter shall, on or before February first in each year, make a written report to the comptroller of the condition of his business on December thirty-first preceding, stating the amount of tax for which he is liable under this article, and giving in detail the facts required by the last preceding section for the purpose of ascertaining and computing the same. 7. Trust companies. Every company liable to pay a tax under sec- tion one hundred and eighty-eight of this chapter shall, on or before August first in each year, make a written report to the comptroller of its condition at the close of business on June thirtieth preceding, separately stating the amount of its capital stock, the amount of its surplus, and the amount of its undivided profits, and containing such other data, information or matter as the comptroller may require. 8. Savings banks. Every savings bank liable to pay a tax under section one hundred and eighty-nine of this chapter, shall on or before August first in each year, make a written report to the comptroller of its condition at the close of business on June thirtieth preceding, stat- ing the par value of its surplus, and undivided earnings and contain- ing such other data, information or matter as the comptroller may require. Subd. 5, as amended by L. 1905, ch. 94, sec. 2, Subd. 7, added by L. 1901, ch. 132, sec. 2, as re-enacted by L. 1902, ch. 172, sec. 1. Subd. 8, added by L. 1901, ch. 117, sec. 2. This was sec. 189 of the former Tax Law. § 193. Value of stock to be appraised. If the dividend or dividends amount to less than six per centum on the par value of the capital stock, or no dividend is declared, the president, treasurer or secretary of the company liable to pay a tax under the provisions of section one hundred and eighty-two of this chapter, shall, under oath, between the first and fifteenth days of November in each year, estimate and appraise the capital stock of such company at its actual value. And shall forward the same to the comptroller with the report 588 Tax Law. provided for in the last section. If the comptroller is not satisfied with the valuation so made and returned he is authorized and em- powered to make a valuation thereof, and settle an account upon the valuation so made by him, and the taxes, penalties and interest to be paid the state. As amended by L. 1906, ch. 474, sec. 3, and L. 1907, ch. 734, sec. 4. This was sec. 190 of the former Tax Law. Basis oF CoMPUTATION.—The actual and not the par value of the capital stock of a corporation employed within the state is the basis for computation. People ex rel. N. ¥. C. & H. R. RB. Co. v. Knight, 173 N. Y. 255. § 194. Further requirements as to reports of corporations, Every report required by this article shall have annexed thereto the affidavit of the president, vise-president, secretary or treasurer of the corporation, association or joint-stock company or of the per- son or one of the persons, or the members of the partnership making the same, to the effect that the statements contained therein are true. Such reports shall contain any other data, information or matter which the comptroller may require to be included therein, and he may prescribe the form in which such reports shall be made and the form of oath thereto. When so prescribed such forms shall be used in making the report. The comptroller may require at any time a further or supplemental report under this article, which shall contain information and data upon such matters as the comptroller may specify. This was sec. 191 of the former Tax Law. § 195. Powers of comptroller to examine into affairs of corpora- tions. In case any report required by any of the preceding sections of this article shall be unsatisfactory to the comptroller, or if any such report. is not made as herein required, the comptroller is authorized to make an estimate of the dividends paid by such corporation and the value of the capital stock employed by it, from any such report or from any other data, and to order and state an account according to the estimate and value so made by him for the taxes, percentage and interest due the state from such corporation, association, joint-stock company, person or partnership. The comptroller shall also have power to examine or cause to be examined, in case of a failure to report or in case the report is unsatisfactory to him, the books and records of any such corporation, joint-stock association, company, foreign banker, person or partnership, and may hear testimony and take proofs material for his information, either personally or he may appoint a commissioner by a written appointment under his hand and official seal for that purpose. Every commissioner so appointed shall 589 Tax Law. be authorized to make such examination and take such testimony and hear such proofs and report the proofs and testimony so taken and the result of his examination so made and the facts found by him to the comptroller. The comptroller shall, therefrom, or from any other data which shall be satisfactory to him, order and state an account for the tax due the state, together with the expenses of such exami- nation and the taking of such testimony and proofs. Such expenses shall be fixed and adjusted by the comptroller. This was sec. 192 of the former Tax Law. IncRpASB OF TaxX.—Upon a revision and readjustment under this section, the comptroller has no power to increase the tax. People ex rel. Sav. Bk. v. Miller, 84 App. Div. 166, 82 N. Y. Supp. 607. § 196. Notice of statement of tax; interest. Upon auditing and stating every account for taxes or other charges under this article, the comptroller shall forthwith send notice thereof in writing to the person, partnership, company, association or cor- poration against whom the same is made, which notice may be mailed to the post-office address of such person, partnership, association, com- pany or corporation. All accounts so audited and stated shall bear interest upon the total amount found due thereon to the state, for taxes, percentage, interest and other charges, from the expiration of thirty days after sending such notice until payment thereof shall be made. This was sec. 193 of the former Tax Law. § 197. Payment of tax and penalty for failure. A tax imposed by section one hundred and eighty-two or one hun- dred and eighty-six of this chapter shall be due and payable into the state treasury on or before the fifteenth day of January in each year. A tax imposed by section one hundred and eighty-four of this chapter on a transportation or transmission corporation, or by section one hundred and eighty-five, on elevated railroads or surface railroads not operated by steam, shall be due and payable into the state treas- ury on or before the first day of August in each year. A tax imposed by section one hundred and eighty-seven of this chapter on an in- surance corporation shall be due and payable into the state treasury on or before the first day of June in each year. A tax imposed by section one hundred and eighty-eight or one hundred and eighty-nine shall be due and payable into the state treasury on or before the first day of September in each year. A tax imposed by section one hun- dred and ninety-one of this chapter on a foreign banker shall be due and payable into the state treasury on or before February first in each year. If such tax in any case is not paid within thirty days after the same becomes due, or if the report of any such corporation igs not 590 Tax Law. made within the time required by this article, the corporation, asso- ciation, joint-stock company, person or partnership, liable to pay the tax, shall pay into the state treasury, in addition to the amount of such tax, a sum equal to five per centum thereof, and one per per centum additional for each month the tax remains unpaid, which sum shall be added to the tax and paid or collected therewith. Every corporation, association, joint-stock company, person or partnership failing to make the annual report required by this article, or failing to make any special report required by the comptroller, within any reasonable time to be specified by him, shall forfeit to the people of the state the sum of one hundred dollars for every such failure, and the additional sum of ten dollars for each day that such failure con- tinues. Such tax shall be a lien upon and bind all the real and per- sonal property of the corporation, joint-stock company or association liable to pay the same from the time when it is payable until the same is paid in full. : This was sec. 194 of the former Tax Law. § 198. Revision and readjustment of accounts by comptroller. If an application be filed with the comptroller by the party against whom the account is stated or by the attorney-general within one year from the time any such account shall have been audited and stated, the comptroller may at any time, upon notice thereof sent to the person, partnership, company, association or corporation against whom it is stated, revise and readjust such account and if it shall be made to appear upon any such application, by evidence submitted to him or otherwise, that any such account included taxes or other charges which could not have been lawfully demanded, or that pay- ment has been legally made or exacted of any such account, he shall resettle the same according to law and the facts, and charge or credit, as the case may require, the difference, if any, resulting from such revision or resettlement upon the accounts for taxes of or against any such person, partnership, company, association or corporation. Such credit, whether allowed before or after the passage of this chapter may be, by the person, partnership, company, association or corporation in whose favor it is allowed, assigned to a person, partner- ship, company, association or corporation liable to pay taxes under article nine of this chapter, and the assignee of the whole or any part of such credit on filing with the comptroller such assignment shall thereupon be entitled to credit on the books of the comptroller for the amount thereof on the current account for taxes of such assignee in the same way and with the same effect as though the credit had’ originally been allowed in favor of such assignee. The comptroller 591 Tax Law. shall forthwith send written notice of his determination upon such application to the applicant, and to the attorney-general, which notice may be sent by mail to his post-office address. As amended by L. 1903, ch. 642, sec. 1, and L. 1907, ch. 734, sec. 5. This was sec. 195 of the former Tax Law. § 199. Review of determination of comptroller by certiorari. The determination of the comptroller upon any application made to him by any person, partnership, company, association or corpora- tion for a revision and resettlement of any account, as prescribed in this article, may be reviewed both upon the law and the facts upon certiorari by the supreme court at the instance of any person, part- nership, company, association or corporation affected thereby, and in the name and on behalf of the people of the state. For the purpose of such review the comptroller shall return, on such certiorari, the accounts and all the evidence before him on such application, and all the papers and proofs upon the original statement of such account and all proceedings thereon. If the original or resettled accounts shall be found erroneous or illegal, either in point of law or of fact, by the supreme court, upon any such review, the accounts reviewed shall then be corrected and restated, and from any determination of the supreme court upon any such review an appeal to the court of appeals may be taken by either party. This was sec. 196 of the former Tax Law. § 200. Regulations as to such writ of certiorari. No certiorari to review any audit and statement of an account or any determination by the comptroller under this article shall be granted unless notice of application therefor is made within thirty days after the service of the notice of such determination. Hight days’ notice shall be given to the comptroller of the application for such writ. The full amount of the taxes, percentage, interest and other charges audited and stated in such account must be deposited with the state treasurer before making the application and an under- taking filed with the comptroller, in such amount and with such sureties as a justice of the supreme court shall approve, to the effect that if such writ is dismissed or the determination of the comptroller affirmed, the applicant for the writ will pay all costs and charges which may accrue against him or it in the prosecution of the writ, including costs of all appeals. This was sec. 197 of the former Tax Law. LEGISLATIVE APPROPRIATION.—On necessity of legislative appropriation when tax paid has been adjudged illegal, see matter of L. BE. Waterman Co., 33 Misc. 569, 68 N. Y. Supp. 892. 592 Tax Law. § 201. Warrant for the collection of taxes. After the expiration of thirty days from the sending by the comp- troller of a notice of a statement of an account as provided in this article, unless the amount of such account shall have been paid or deposited with the state treasurer, if an appeal or other proceedings have been taken to review the same, and the undertaking given as provided in this article, the comptroller may issue a warrant under his hand and official seal, directed to the sheriff of any county of the state, commanding him to levy upon and sell the real and personal property of the person, partnership, company, association or corpora- tion against which such account is stated, found within his county for the payment of the amount thereof with interest thereon and costs of executing the warrant, and to return such warrant to the comp- troller and pay to the state treasurer the money collected by virtue thereof, by a time to be therein specified, not less than sixty days from the date of the warrant. ‘Such warrant shall be a lien upon and shall bind the real and personal property of the person, partnership, company, association. or corporation against which it is issued, from the time an actual levy shall be made by virtue thereof. The sheriff to whom any such warrant shall be directed shall proceed wpon the same in all respects, with like effeet, amd in the same manner as prescribed by law in respect to executions issued’ against property upon judgmenis of a court of record, and shall be entitled to the same fees for his services in executing the warrant, to be collected in the same manner. This was sec. 198 of the former Tax Law. § 202. Information of delinquents. It shall be the duty of any person having knowledge of the evasion of taxation under this article by any corporation, association, joint- stock company, partnership or person liable to taxation thereunder, or any omission on their part to make the reports required by this article, to make a written report thereof to the comptroller of the state, with such information as may be in his possession as may lead to the recovery of any taxes due the state therefrom. If, in his opinion, the interests of the state require it, the comptroller may em- ploy such person to assist in the collection and preparation of evi- dence and in the prosecution and trial of actions for such taxes, and so much of the same, not exceeding ten per centum thereof, as may be collected from any such delinquent corporation, association, com- pany, partnership or person, by reason of such report and such serv- ices, as shall have been agreed upon between such person and the comptroller or attorney-general as a compensation therefor, shall be 593 Tax Law. paid to such person, and nothing shall be paid to such person for such report or services unless there shall be a recovery of taxes by reason thereof. This was sec. 199 of the former Tax Law. § 203. Action for recovery of taxes; forfeiture of charter of delinquent corporation. An action may be brought by the attorney-general, at the instance of the comptroller, in the name of the state, to recover the amount of any account audited and stated by the comptroller under the pro- visions of this article. If any such account shall remain unpaid at the expiration of one year after notice of the statement thereof has been sent as required by this article, and the comptroller is satisfied that the failure to pay the same is intentional, he shall so report to the attorney-general, who shall immediately bring an action, in the name of the people of the state, for the forfeiture of the franchise of any corporation, joint-stock company or association failing to make such payment, and if it is found that such faiture was intentional, judgment shall be rendered in such action for the forfeiture of its franchise and for its dissolution, and thereafter such franchise shall be annulled. This was sec. 200 of the former Tax Law. § 204. Reports to be made by the secretary of state. The secretary of state shall transmit on the first day of each month to the comptroller a report of the stock corporations whose certificates of incorporation are filed, or of the foreign stock corporations to whom a certificate of authority has been issued to do business in this state, during the preceding month. Such report shall state the name of the corporation, its place of business, the amount of its capital stock, its purposes or objects, the names and places of residence of its directors, and, if a foreign corporation, its place of business within the state. The comptroller may prescribe the forms and furnish the blanks for such reports. The secretary of state shall make like reports to the comptroller whenever required by him relating to any such corpora- tions whose certificates have been filed or to whom a certificate of authority has been issued prior to the time when this article takes effect, and during any period of time specified by the comptroller in his request for such report. This was sec. 201 of the former Tax Law. § 205. Exemptions from other state taxation. The personal property of every corporation, company, association or partnership, taxable under this article, other than for an organ- 594 Tax Law. ization tax, shall be exempt from assessment and taxation upon its personal property for state purposes, if all taxes due and payable under this article have been paid thereby. The personal property of every corporation taxable under section one hundred and eighty- eight of this article, other than for an organization tax, and as pro- vided in the banking law, shall be exempt from assessment and taxa- tion for all other purposes. The personal property of a private or individual banker, actually employed in his business as such banker, shall be exempt from taxation for state purposes, if such private or individual banker shall have paid all taxes due and payable under this article. Such corporation and private or individual banker shall in no other respect be relieved from assessment and taxation by reason of the provisions of this article. The owner and holder of stock in an incorporated trust company liable to taxation under the provisions of this chapter shall not be taxed as an individual for such stock. Personal property exempted from taxation by this section shall not include shares of stock of banks and banking associations taxable under the provisions of section twenty-four of this chapter. As re-enacted by L. 1902, ch. 172, sec. 1, and amended by L. 1907, ch. 121, sec. 1, and L. 1907, ch. 739, sec. 2. This was sec. 202 of the former Tax Law. § 206. Application of taxes. The taxes imposed by this article and the revenues thereof shall be applicable to the general fund of the treasury and to the payment of all claims and demands which are a lawful charge thereon. This was sec. 208 of the former Tax Law. § 207. Limitation of time, ' The provisions of the code of civil procedure relative to the limi- tation of time of enforcing a civil remedy shall not apply to any proceeding or action taken to levy, appraise, assess, determine or en- force the collection of any tax or penalty prescribed by this article, and this section shall be construed as having been in effect as of date of the original enactment of the corporation tax law. t 595 CONDEMNATION LAW SECTION 3357. 3358. 3359. 3360. 3361. 3362. 3363. 3364. 3365. 3366. 3367. 3368. 3369. 3370. 3371. 3372. 3373. 3374. 3375. 3376. 3377. 3378. 3379. 3380. 3381. 8382. 3383. 3384, Title. Definitions. When proceedings prescribed in this title to be taken. Proceedings to be commenced by petition; what to contain. Notice to be annexed to petition; upon whom served. Petition and notice: how served. - Appéarance of defendant infant, idiot, lowatie or habitual drunkard. Appeatance of parties. Answer; what to contain. Petition or answer must be verified. Trial of issues. Certain provisions made applicable. Judgment, what to contain; costs when to defendant ; commissioners. Proceedings of commissioners. Confirming or setting aside report; deposit when pay- ment. Offer to compromise; amount of costs; additional allowance. Judgment how enforced; when to deliver possession of premises and when writ of assistance to issue. Abandonment and diseontinuance of proceeding. Appeal from final orders; stay. Appeal from judgment by plaintiff. New appraisal; when. Conflicting claimants. Possession of property on giving security. When possession of real property given immediately. Notice of pendency of action to be filed. Practice in cases not provided for. Repealing clause. When title to take effect. 597 ConpEemMnation Law. § 3357. Title This title shall be known as the condemnation law. y 3358. Definitions. The term “person” when used herein includes a natural person and also a corporation, joint stock association, the state and a political division thereof, and any commission, board, board of managers or trustees in charge or having control of any of the charitable or other institutions of the state; the term “real property,” any right, interest or easement therein or appurtenances thereto; and the term “ owner ” all persons having any estate, interest or easement in the property to be taken, or any lien, charge or incumbrance thereon. The person instituting the proceedings shall be termed the plaintiff; and the person against whom the proceeding is brought, the defendant. § 3359. When proceedings prescribed in this title to be taken. Whenever any person is authorized to acquire title to real property, for a public use by condemnation the proceeding for that purpose shall be taken in the manner prescribed in this title. § 3360. Proceedings to be commenced by petition; what to contain. The proceedings shall be instituted by the presentation of a peti- tion by the plaintiff to the supreme court, setting forth the following facts: 1. His name, place of residence, and the business in which en- gaged; if a corporation or joint-stock association, whether foreign or domestic, its principal place of business within the state, the names and places of residence of its principal officers, and of its directors, trustees or board of managers, as the case may be, and the object or purpose of its incorporation or association; if a political division of the state, the names and places of residence of its principal officers; and if the state, or any commission or board of managers or trustees in charge or having control of any of the charitable or other institu- tions of the state, the name, place of residence of the officer acting in its or their behalf in the proceedings. 2. A specific description of the property to be condemned, and its location by metes and bounds, with reasonable certainty. 3. The public use of which the property is required and a concise statement of the facts showing the necessity of its acquisition for such use. 4. The names and places of residence of the owners of the prop- erty; if an infant, the name and place of residence of his general guardian, if he has one; if not, the name and place of residence of 598 ConpEmynation Law. the person with whom he resides; if a lunatic, idiot, or habitual drunkard, the name and place of residence of his committee or trus- tee, if he has one; if not, the name and place of residence of the per- son with whom he resides. If a non-resident, having an agent or attorney residing in the state authorized to contract for the sale of the property, the name and place of residence of such agent or at- torney ; if the name or place of residence of any owner cannot after diligent inquiry be ascertained, it may be so stated with a specific statement of the extent of the inquiry which has been made. 5. That the plaintiff has been unable to agree with the owner of the property for its purchase and the reason of such inability. 6. The value of the property to be condemned. 7. A statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement, for which the property is to be condemned; and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding. 8. A demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified upon making compensation therefor, and that commis- sioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken. $ 3361. Notice to be annexed to petition; upon whom served. -There must be annexed to the petition a notice of the time and place at which it will be presented to a special term of the supreme court, held in the judicial district where the property or some por- tion of it is situated, and a copy of the petition and notice must be served upon all the owners of the property at least eight days prior to its presentation. §$ 3362. Petition and notice; how served. Service of the petition and notice must be made in the same man- ner as the service of a summons in an action in the supreme court is required to be made, and all the provisions of articles one and two of title one of chapter five of this act, which relate to the service of a summons either personally or in any other way, and the mode of proving service, shall apply to the service of the petition and notice. If the defendant has an agent or attorney residing in this state, authorized to contract for the sale of the real property described in the petition, service upon such agent or attorney will be sufficient service upon such defendant. In case the defendant is an infant of the age of fourteen years or upwards, a copy of the petition and notice 599 ConpEMNATION Law. shall also be served upon his general guardian, if he has one; if not, upon the person with whom he resides. § 3363. Appearance of defendant infant, idiot, lunatic or habitual drankard. If a defendant is an infant, idiot, lunatic or habitual drunkard, it shall be the duty of his general guardian, committee or trustee, if he has one, to appear for him upon the presentation of the petition and attend to his interests, and in case he has none, or in case his general guardian, committee or trustee fails to appear for him, the court shall, upon the presentation of the petition and notice, with ptoof of service, without further notice, appoint a guardian dd litem for such defendant, whose duty it shall be to appear fot him and attend to his interests in the proceeding, and, if deemed necessaty to protect his rights, the court may require a general guardian, committee or trus- tee, or a guardian ad litem to give security in such sum and with such sureties as the court may approve. If a service other than personal has been made upon any defendant, and he does not appear upon the presentation of the petition, the court shall appoint some competent attorney to appear for him and attend to his interests in the proceeding. § 3364. Appearance of parties. The provisions of law and of the rules and practice of the court, re- lating to the appearance of parties in person or by attortiey in ac- tions in the supreme court, shall apply to the proceeding from and after the service of the petition, and all subsequent orders, tiotices and papers may be served upon the attorney appearing and upon a guardian ad litem in the same manher and with the same effect as the service of papers in an action in the supreme court may be made. § 3365. Answer; what to contain. Upon presentation of the petition and totice with ptoof of service thereof, an owner of the property may appear and intetpose an answer, which must contain a general or specific denial of each ma- terial allegation of the petition controverted by him, or of any knowledge or information thereof sufficient to form a belief, ot a statement of new matter constituting a defense to the proceeding. § 3366. Petition or answer must be verified. A petition or answet must be verified, and the provisions of this act relating to the form and contents of the verification of pleadings in courts of reeord, and the persons by whom it may be made, shall apply to the verification. 600 Conpemnation Law. § 3367. Trial of issues. The court shall try any issue raised by the petition and answer at, such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attornney for the prevailing party, within twenty days after the final submission of the proofs and allegations of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to mak- ing and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had in case such decision is not filed or delivered within the time herein required, and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under this title. § 3368. Certain provisions made applicable. The provisions of title one of chapter eight of this act shall also apply to proceedings had under this title. § 3369. Judgment, what to contain; costs, when to defendant; com- missioners, Judgment shall be entered pursuant to the direction of the court or referee in the decision filed. If in favor of the defendant the peti- tion shall be dismissed, with costs to be taxed by the clerk at the same rates as are allowed, of course, to a defendant prevailing in an action in the supreme court, including the allowances for proceedings before and after notice of trial. If the decision is in favor of the plaintiff, or if no answer has been interposed and it appears from the petition that he is entitled to the relief demanded, judgment shall ibe entered, adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and. hold the property for the public use specified, upon making com- pensation therefor, and the court shall thereupon appoint three dis- interested and competent freeholders, residents of the judicial dis- trict embracing the county where the real property, or some part of it, is situated, or of some county bdjoining such judicial district, com- missioners to ascertain the compensation to be made to the owners for the property to be taken for the public use specified, and fix the time and place for the first meeting of the commissioners. Provided, however, that in any such proceeding instituted within jhe first or second judicial district, such commissioners shall be residents of the «county where the real property, or some part of it, is situated, or of 601 ConpEMNaTION Law. some adjoining county. If a trial has been had, at least eight days’ notice of such appointment must be given to all the defendants who have appeared. The parties may waive, in writing, the provisions of this section as to the residence of the commissioners, and in that case they may be residents of any county in the state. Where owners of separate properties are joined in the same proceeding, or separate properties of the same owner are to be condemned, more than one set of commissioners may be appointed. § 3370. Proceedings of commissioners. The commissioners shall take and subscribe the constitutional oath of office. Any of them may issue subpoenas and administer oaths to witnesses; a majority of them may adjourn the proceedings before them, from time to time in their discretion. Whenever they meet, except by appointment of the court or pursuant to adjournment, they shall cause at least eight days’ notice of such meeting to be given to the defendants who have appeared, or their agents or attorneys. They shall view the premises described in the petition, and hear the proof and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a majority of them, all being present, shall without unneces- sary delay ascertain and determine the compensation which ought justly to be made by the plaintiff to the owners of the property ap- praised by them; and, in fixing the amount of such compensation, they shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the pub- lic use for which the property is to be taken, or the construction of any proposed improvement connected with such public use. But in case the plaintiff is a railroad corporation and such real property shall belong to any other railroad corporation, the commissioners on fixing the amount of such compensation, shall fix the same at its fair value for railroad purposes. They shall make a report of their proceedings to the supreme court with the minutes of the testimony taken by them, if any; and they shall each be entitled to six dollars for services for every day they are actually engaged in the performance of their duties, and their necessary expenses, to be paid by the plaintiff; pro- vided that in proceedings within the counties of New York and Kings such commissioners shall be entitled to such additional compensation not exceeding twenty-five dollars for every such day, as may be awarded by the court. § 3371. Confirming or setting aside report; deposit when payment. Upon filing the report of the commissioners, any party may move 602 ConpremNation Law. for its confirmation at a special term, held in the district where the property or some part of it is situated, upon notice to the other parties who have appeared, and upon such motion, the court may confirm the report, or may set it.aside for irregularity, or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient. If the report is set aside, the court may direct a rehearing before the same commis- sioners, or may appoint new commissioners for that purpose, and the proceedings upon such rehearing shall be conducted in the manner prescribed for the original hearing, and the same proceedings shall be had for the confirmation of the second report, as are herein pre- scribed for the confirmation of the first report. If the report is con- firmed, the court shall enter a final order in the proceeding, directing that compensation shall be made to the owners of the property, pur- suant to the determination of the commissioners, and that upon ipay- ment of such compensation, the plaintiff shall be entitled to enter into the possession of the property condemned, and take and hold it for the public use specified in the judgment. Deposit of the money to the credit-of, or payable to the order of the owner, pursuant to the direction of the court, shall be deemed a payment within the provisions of this title. § 3372. Offer to compromise; amount of costs; additional allowance. In all cases where’ the owner is a resident and not under legal dis- ability to convey title to real property the plaintiff before service of his petition and notice, may make a written offer to purchase the property at a specified price, which must within ten days thereafter be filed in the office of the clerk of the county where the property is situated; and which cannot be given in evidence before the commis- sioners, or considered by them. The owner may at the time of the presentation of the petition, or at any time previously, serve. notice in writing of the acceptance of plaintiff’s offer, and thereupon the plaintiff may, upon filing the petition, with proof of the making of the offer and its acceptance, enter an order that upon payment of the compensation agreed upon, he may enter into possession of the real property described in the petition, and take and hold it for the public use therein specified ; if the offer is not accepted, and the compensa- tion awarded by the commissioners does not exceed the amount of the offer with interest from the time it was made, no costs shall be allowed to either party. If the compensation awarded shall exceed the amount of the offer with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the de- 603 Conpemnation Law. fendant recover of the plaintiff the costs of the proceeding, to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded. The court shall also direct in the final order what sum shall be paid to the gen- eral or special guardian, or committee or trustee of an infant, idiot, lunatic or habitual drunkard, or to an attorney appointed by the court to attend to the interests of any defendant upon whom other than personal service of the petition and notice may have been made, and who has not appeared, for costs, expenses and counsel fees, and by whom or out of what fund the same shall be paid. If a trial has been had, and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering the costs of such trial caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the supreme court. § 3373. Judgment, how enforced; when to deliver possession of premises, and when writ of assistance to issue. Upon the entry of the final order, the same shall he attached to the judgment roll in the proceeding, and the amount directed to be paid, either as compensation to the owners, or for the costs and expenses of the proceeding, shall be docketed as a judgment against the person who is directed to pay the same, and it shall have all the force and effect of a money judgment in an action in the supreme court, and collection thereof may be enforced by execution and by the same pro- ceedings as judgments for the recovery of money in the supreme court may be enforced under the provisions of this act. When pay- ment of the compensation awarded, and costs of the proceeding, if any, has been made as directed in the final order, and a certified copy of such order has been served upon the owner, he shall, upon demand of the plaintiff, deliver possession thereof to him, and in case pos- session is not delivered when demanded, the plaintiff may apply to the court without notice, unless the court shall require notice to be given, upon proof of such payment and of service of the copy order, and of the demand and non-compliance therewith, for a writ of assistance, and the court shall thereupon cause such writ to be issued, which shall be executed in the same manner as when issued in other cases for the delivery of possession of real property. 604 Conpemyation Law. § 3374. Abandonment and discontinuance of proceeding. Upon the application of the plaintiff to be made at any time after the presentation of petition and before the expiration of thirty days after the entry of the final order, upon eight days’ notice of motion to all other parties to the proceeding who have appeared therein or upon an order to show cause, the court may, in its discretion, and for good cause shown, authorize and direct the abandonment and dis- continuance of the proceeding, upon payment of the fees and ex- penses, if any, of the commissioners, and the costs and expenses directed to be paid in such final order, if such final order shall have been entered, and upon such other terms and conditions as the court may prescribe; and upon the entry of the order granting such appli- cation and upon compliance with the terms and conditions therein prescribed, payment of the amount awarded for compensation, if such compensation shall have been theretofore awarded, shall not be en- forced, but in such case, if such abandonment and discontinuance of the proceeding be directed upon the application of the plaintiff, the order granting such application, if permitting a renewal of such pro- ceedings, shall provide that proceedings to acquire title to such lands or any part thereof shall not be renewed by the plaintiff without a tender or deposit in court of the amount of the award and interest thereon. § 3375. Appeal from final orders; stay. Appeal may be taken to the appellate division of the supreme court from the final order, within the time provided for appeals from orders by title four of chapter twelve of this act; and all the provisions of such chapter relating to appeals to the appellate division of the su- preme court from orders of the special term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings ante- cedent thereto may be reviewed on such appeal if the appellant states in his notice that the same will be brought up for review and excep- tions shall have been filed to the decision of the court or the referee, and a case or a case and exceptions shall have been made, settled and allowed as required by the provisions of this act for the review of the trial of actions in the supreme court without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court upon notice to him, and the appeal shall not affect his possession of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb such possession. 605 Conpemnation Law. § 3376. Appeal from judgment by plaintiff. If a trial has been had and judgment entered in favor of the de fendant, the plaintiff may appeal therefrom to the appellate division of the supreme court within the time provided for appeals from judg- ments by title four of chapter twelve of this act, and all the provisions of said chapter relating to appeals from judgments shall apply to such appeals; and on the hearing of the appeal the appellate division may affizm, reverse or modify the judgment, and in case of reversal may grant a new trial, or direct that judgment be entered in favor of the plaintiff. If the judgment is affirmed costs shall be allowed to the respondent, but if reversed or modified no costs of the appeal shall be allowed to either party. § 3377. New appraisal; when. On the hearing of the appeal from the final order the court may direct a new appraisal before the same or new commissioners in its discretion, and the report of such commissioners shall be final and conclusive upon all parties interested. If the amount of the com- pensation to be paid is increased by the last report, the difference shall be a lien upon the land appraised, and shall be paid to the parties en- titled to the same, or shall be deposited as the court shall direct; and if the amount is diminished, the difference shall be refunded to the plaintiff by the party to whom the same may have been paid, and judgment therefor may be rendered by the court, on the filing of the last report, against the parties liable to pay the same. § 3378. Conflicting claimants. If there are adverse and conflicting claimants to the money, or any part of it, to be paid as compensation for the property taken, the court may direct the money to be paid into the court by the plaintiff, and may determine who is entitled to the same, and direct to whom the same shall be paid, and may, in its discretion, order a reference to ascertain the facts on which such determination and directions are to be made. § 3379. Possession of property on giving security. At any stage of the proceeding the court may authorize the plain- tiff, if in possession of the property sought to be condemned, to con- tinue in possession, and may stay all actions or proceedings against him on account thereof, upon giving security, or depositing such sum of money as the court may direct to be held as security for the pay- ment of the compensation which may be finally awarded to the owner therefor and the costs of the proceedings, and in every such case the owner may conduct the proceeding to a conclusion, if the plaintiff 606 ConpEMNaTion Law. delays or neglects to prosecute the same. When the final award to any owner is less than fifty dollars, in proceedings to condemn a right of way, for telephone or telegraph poles and wires, the allowance of costs, if any, and the amount thereof not exceeding that prescribed by statute, shall be in the discretion of the court in any action or proceeding that may have been or may hereafter be stayed, if the telephone or telegraph poles and wires, in such action or proceeding so stayed, shall have been erected for more than three years prior to the commencement thereof. § 3380. When possession of real property given immediately. When an answer to the petition has been interposed, and it appears to the satisfaction of the court that the public interests will be prej- udiced by delay, it may direct that the plaintiff be permitted to enter immediately upon the real property to be taken, and devote it tem- porarily to the public use specified in the petition, upon depositing with the court the sum stated in the answer as the value of the prop- erty, and which sum shall be applied, so far as it may be necessary for that purpose, to the payment of the award that may be made, and the costs and expenses of the proceeding, and the residue, if any, re- turned to the plaintiff, and, in case the petition should be dismissed, or no award should be made, or the proceedings should be abandoned by the plaintiff, the court shall direct that the money so deposited, so far as it may be necessary, shall be applied to the payment of any damages which the defendant may have sustained by such entry upon and use of his property, and his costs and expenses of the proceeding, such damages to be ascertained by the court, or a referee to be ap- pointed for that purpose, and if the sum so deposited shall be insuffi- cient to pay such damages, and! all costs and expenses awarded to the defendant, judgment shall be entered against the plaintiff for the deficiency, to be enforced and collected in the same manner as a judgment in the supreme court; and the possession of the property shall be restored to the defendant. § 3381. Notice of pendency of action to be filed. Upon service of the petition, or at any time afterwards before the entry of the final order, the plaintiff may file in the clerk’s office of each county where any part of the property is situated, a notice of the pendency of the proceeding stating the names of the parties and the object of the proceeding, and containing a brief description of the property affected thereby, and from the time of filing, such notice shall be constructive notice to a purchaser, or incumbrancer of the property affected thereby, from or against a defendant with respect 607 Conpemnation Law. to whom the notice is directed to be indexed, as herein prescribed, and a person whose conveyance or incumbrance is subsequently exe- cuted or subsequently recorded, is bound by all proceedings taken in the proceeding, after the filing of the notice, to the same extent as if he was a party thereto. The county clerk must immediately record such notice when filed in the book in his office kept for the purpose of recording notices of pendency of actions, and index it to the name of each defendant specified in the direction appended at the foot of the notice, and subscribed by the plaintiff or his attorney. § 3382. Practice in cases not provided for. Tn all proceedings under this title, where the mode or manner of conducting all or any of the proceedings therein is not expressly pro- vided for by law, the court before whom such proceedings may be pending, shall have the power to make all necessary orders and give necessary directions to carry into effect the object and intent of this title and of the several acts conferring authority to condemn lands for public use, and the practice in such cases shall conform, as near as may be, to the ordinary practice in such court. § 3383. Repealing clause. So much of all acts and parts of acts as prescribe a method of pro- cedure in proceedings for the condemnation of real property for a public use is repealed, except such acts and parts of acts as prescribe a method of procedure for the condemnation of real property for public use as a highway, or as a street, avenue, or public place in an incorporated city or village, or as may prescribe methods of procedure for such condemnation for any public use for, by, on behalf, on the part, or in the name of the corporation of the city of New York, known as the mayor, aldermen, and commonalty of the city of New York, or by whatever name known, or by or on the application of any board, department, commissioners or other officers acting for or on behalf or in the name of such corporation or city, or where the title to the real property so to be acquired vests in such corporation or in such city; and all proceedings for the condemnation of real property embraced within the exceptions enumerated in this section are exempted from the operation of this title, § 3384. When title to take effect. This title shall take effect on the first day of May, one thousand eight hundred and ninety, and shall not affect any proceeding pre- viously commenced. 608 GENERAL CONSTRUCTION LAW. CHAPTER 22 OF THE CONSOLIDATED LAWS. ARTICLE 1. 90 52D gx I 9 BW Szcrion 1. Short title (§ 1). Meaning of terms (§§ 10-58). Ancient statutes and resolutions (§§ 70-72). Referencés, titles and head notes (§§ 80, 81). . Effect of repeals (§§ 90-96). Effect of consolidated laws (§§ 100, 101). Application of chapter (§ 110). ; Laws repealed ; when to take effect (§§ 120, 121). ARTICLE 1. SHORT TITLE. Short title. § 1. Short title. This chapter shall be known as the “ Geériéral Cofistruction Law.” SEctIon 10. 11. 12. 138. 14. 15. 16. ARTICLE 2. MEANING OF TERMS. Acknowledge and acknowledgmént: Acknowledgment or proof of #hsttuntent: Affidavit. Adjournment of meeting. Bond and undertaking. Chattels. Choose. 609 Section 17. 18. 19. 20. 21. 22. 28. 24, 25. 26. a7. 28. 29. 30. 31. 382. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 5%. GenzeraL Construotion Law. Civil code and criminal code. Consolidated laws. Day, calendar. Day, computation. Folio. Gender. Heretofore and hereafter. Holiday and half holiday. Holiday in contractual obligations. Judge. Last, preceding, next and following. Lunatic and lunacy. Men. Month, computation. Month in statute, contract and public or private in- strument. Municipal officers. Notice. Now. Number, singular and plural. Oath, affidavit and swear. Person. Property. Property, personal. Property, real. Quorum and majority. Register of county. Seal of court, public officer or corporation. Seal, private. Seal, private as corporate seal. Signature. State. Tense, present. Territory. Time, computation. Time, night. Time, standard. Time, use of standard. Village. Women. Writing and written. Year, common and leap. 610 GenerRaL Construction Law. Section 58. Year in statute, contract and public or private in- strument. § 10. Acknowledge and acknowledgment. The terms acknowledge and acknowledgment, when used with ref- erence to the execution of an instrument or writing other than a deed of real property, include a compliance with thep rovisions of the next section by either such proof or acknowledgment. § 11. Acknowledgment or proof of instrument. When the execution of any instrument or writing is authorized or required by law to be acknowledged, or to be proven so as to entitle it to be filed or recorded in a public office, the acknowledgment may be taken or the proof made before any officer then and there authorized to take the acknowledgment or proof of the execution of a deed of real property to entitle it to be recorded in a county clerk’s office, and shall be made and certified in the same manner as such acknowledgment or proof of such deed. WuHo May Taxkp ACKNOWLEDGMENTS.—With reference to who may take ac- knowledgments of conveyances within this state, see Real Property Law, sec. 248; as to acknowledgments in other states, see sec. 249; as to acknowledgments in Porto Rico, the Philippine Islands and Cuba, see sec. 249-a; and as to acknowledgments in foreign countries, see sec. 250. A police magistrate of New York City is not authorized to take an acknowl- edgment. Tully v. Lewitz, 50 Misc. 350, 98 N. Y. Supp. 829. An acknowledgment must not be taken by any officer unless he knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument. Real Property Law, sec. 252. Matters Provep.—The personal appearance of a party, the recognition of the signature as his, and the acknowledgment of execution are included among the facts which a certificate of acknowledgment should be regarded as evidence per se. Albany Co. Sav. Bk. v. McCarty, 149 N. Y. 71, and cases cited. CONCLUSIVENESS.—A certificate will not be overthrown upon evidence of a doubtful character. Albany Co. Sav. Bk. v. McCarty, supra. Every acknowledgment must show on its face that it was taken within the jurisdiction of the officer certifying it; no question should be left open as to the perfection of the certificate. Leavitt v. Thornton, 123 App. Div. 683, 108 N, Y. Supp. 162, and cases cited. The tendency of the courts, however, is to uphold a certificate of acknowledg- ment when the substance is present. Rogers v. Pell, 47 App. Div. 240, 62 N. Y¥. Supp. 92, aff'd 168 N. Y. 587 mem. A. receiver’s bond will not be excluded as evidence merely because the officer who took the acknowledgment failed to certify that he was a notary public. Liv- ingston v. Eaton, 90 App. Div. 251, 85 N. Y. Supp. 500. CoORRECTION.—Equity has no power to correct mistakes in the certificate of acknowledgment, since the officer derives his authority from the statute. Leavitt vy. Thornton, 123 App. Div. 683, 108 N. Y. Supp. 162. CounTy CLERK’S CERTIFICATH.—A county clerk’s certificate which fails to state the name and official character of the officer who took the acknowledgment, is not void, but the matter may be supplied from the certificate of acknowledg- ment. Thorn v. Mayer, 12 Misc. 487, 38 N. Y. Supp. 664. § 12. Affidavit. When an affidavit is authorized or required it may be sworn to 611 GeneRat Construction Law. before any officer authorized by law to take the acknowledgment of deeds in this state, unless a particular officer is specified before whom it is to be taken. § 13. Adjotirnment of nieetizg. Any méeting referred to in section forty-one of this chapter may be adjourned by a less number than a quorum. § 14. Bond and undertaking. A provision of law authorizing or requiring a bond to be given shall be deemed to havé been complied with by the execution of an undértaking to the same effect. 3 15. Chattels. : ; The term chattels includes goods and chattels. § 16. Choose. Thé tetm choose includes elect ahd appoint. 8 17. Civil code and criminal code. The term civil code means the code of ¢ivi? procedtite. The term criminal code means the eode of criminal procedure. § 18. Consolidated Laws: The term Consolidated Laws shall mean the compilation of the statutes prepared by the board of statutory consolidation and the amendments thereof. § 19. Day, calendar. A calendar day ineludes the time from midnight to midnight. Sunday or any day of the week specifically mentioned means a calendar day. Contract By Da¥.—A contract by the day ordinarily means the calendar day, or the hours of a calendar day which are Ordinarily made use of. Collis vy. Carlin, 121 App. Div. 524, 106 N. Y. Supp. 235. § 20. Day, computation. A number of days specified as a period from a certain day within which or after or before which an act is authorized or required to be done means such number of calendar days exclusive of the calendar day from which the teckoniing is made. Sunday or a public holiday, other than a half holiday, must be excluded from the reckoning if it is the last day of atiy stich period, or if it is 4n intervening day of atty such period of two days. In computing any specified number of days, weeks or months from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The 612 GeneRaL Cansrruction Law. day from which any specified number of days, weeks or months of time is reckoned shall be excluded in making the reckoning. The Statutory Construction Law (lL. 1892; ch. 677) so far as applicable, has taken the place, not only of the statute and code provisions relating to the com- putation of time in force pttor to its etdétment, but algo the ¢ommon law rules relating to computation. Ryér vy. Prudential Ins. Co. 185 N. Y. 6. But the statute discloses no inténtion materially to change the previous rule for the computation of titdé, except, pérhaps, to fix more définitely the event from which the count is madé, People vy. Burgess; 153 N. ¥. 561. In Aultman & Taylor Co. v. Symé, 116 N. ¥. 54, the court held that the provisions of this sectioh wére not dpplicable to a perfod of months or yéars. See, also, Ryer v. Pruderitidl Ins. Co.; 185 N. Y. 6 (9); Benoit v. New York C. & H. R. R. Co., 94 App. Div. 24, 87 N. Y. Supp. 951 (action for negligent injuries). When an act is required to be done a certain number of days before the day of a specified event, the day of such event is the one to be exclu ed in the com- puatdtion, and in counting back from that timé, the day on which the réquired act was performed may be included, People v. Burgess, 153 N. Y. 561. In computing time, if the specified event is to occur a certain number of days after 4 defitité day, thed that day is to bé éxcludéd; if ft i8 to be @ cértain num- ber of dayg before a Gay certain, then the last day As to be excluded and the first day counted. Jones vy. Wallace, 15 App. Div. 401, 78 N. Y. Supp. 35. With referditée to Service of process, either ‘the day of the issue 6f the sum- mons or its return day is to be excluded in the computation of the time. Jones v. Wallace, supra. The service of a summons and complaint on November 29th, the return day béing on December Sth, is sufiicietit uridét a statute requiring personal sérvicé “ not less than six nor moré that twelve days before the return Gay.” Jores v. Wal- lace, supra. Under the rule laid down in the General Construction Law, the re- turn day is the one specified and must be excluded from the reckoning, amd the day of the issuance of the summons included. Ti éomiputing' the time within: which ai detfoin fot négligent injuries must be eommenced, the day on which thé cduse of action aécrued must be included in the reckoning the period of limitations. Benoit v. New York C. & H. R. R. Co., 94 App. Div. 24, 87 N. ¥. Supp: 957. § 21. Folio. A folio is one hundred words, counting as a word each figure necéssarily used. § 22. Gender. Words of the masculine gender include the feminine and the neuter, and may refer to a corporation, or to a board or other body or assemblage of persons; and, when the sense so indicates, words of the neuter gender may refer to any gender. § 23. Héréteféré aiid hexveatter: Each of the terms, heretoforé; and hereafter, in any provision of a statute, relates to the time such provision takes effect: § 24, Holiday and half holiday. The ferm holiday includes the following days in each year: The first day of January, known as New Year’s day; the twelfth day of February, known as Lincoln’s birthday; the twenty-second day of February, known as Washington’s birthday; the thirtieth day of 613 GreneraL Constreporion Law. May, known as Memorial day; the fourth day of July, known as Independence day; the first Monday of September, known as Labor day; and the twenty-fifth day of December, known as Christmas day, and if either of such days is Sunday, the next day thereafter; each general election day and each day appointed by the president of the United States or by the governor of this state as a day of general thanksgiving, general fasting and prayer, or other general religious observances. The term half holiday includes the period from noon to midnight of each Saturday which is not a holiday. § 25. Holiday in contractual obligations. Where a contract by its terms requires the payment of money or the performance of a condition on a public holiday, such payment may be made or condition performed on the next business day suc- ceeding such holiday, with the same force and effect as if made or performed in accordance with the terms of the contract. § 26. Judge. The term judge includes every judicial officer authorized, alone or with others, to hold or preside over a court of record. 8 27. Last, preceding, next and following. A reference to the last or preceding section, or other provision of a statute, means the section or other division immediately preceding, and a reference to the next or following section or other division of a statute means the section or other division immediately following. § 28. Lunatic and lunacy. The terms lunatic and lunacy include every kind of unsoundness of mind except idiocy. § 29. Men. The term men includes boys. § 30. Month, computation. A number of months after or before a certain day shall be com- puted by counting such number of calendar months from such day, exclusive of the calendar month in which such day occurs, and shall include the day of the month in the last month so counted having the same numerical order in days of the month as the day from which the computation is made, unless there be not so many days in the last month so counted, in which case the period computed shall expire with the last day of the month so counted. When a life insurance policy provided that no action can be maintained thereon unless commenced within six months after the death of the insured, and such 614 Generat Construction Law. period expires on Sunday, an action commenced upon the following Monday is barred by the express terms of the policy. Ryer v. Prudential Ins. Co., 185 N. Y. 6. § 31. Month in statute, contract and public or private instrument. In a statute, contract or public or private instrument, unless other- wise provided in such contract or instrument or by law, the term month means a calendar month and not a lunar month. § 32. Municipal officers. A reference to several officers of a municipal corporation holding the same office, or to a board of such officers, shall be deemed to tefer to the single officer holding such office, when but one person is chosen to fill such office in pursuance of law. § 33. Notice. When a notice is required to be given to a board or body, service of such notice upon the clerk or chairman thereof shall be sufficient. 8 34. Now. The term now in any provision of a statute referring to other laws in force, or to persons in office, or to any facts or circumstances as existing, relates to the laws in force, or to the person in office, or to the facts or circumstances existing, respectively, immediately before the taking effect of such provision. § 35. Number, singular and plural. Words in the singular number include the plural, and in the plural number include the singular. § 36. Oath, affidavit and swear. The terms oath and affidavit include every mode authorized by law of attesting the truth of that which is stated. The term swear in- cludes every mode authorized by law for administering an oath. Vunun.—The omission of the venue on an affidavit for an attachment does not render the affidavit void, since the omission is not jurisdictional. Reedy Elevator Co. v. American Grocery Co., 48 N. Y. Supp. 619; Babcock vy. Kuntzsch, 85 Hun 83, 32 N. Y. Supp. 587. The venue of an affidavit is prima facie the place where it is taken. Thaw vy. New Central & H. R. R. Co., 101 App. Div. 246, 91 N. Y. Supp. 746; Fisher v. Bloomberg, 74 App. Div. 368, 77 N. Y. Supp. 541. § 37. Person. . The term person includes a corporation and a joint-stock associa- tion. When used to designate a party whose property may be the sub- ject of any offense, the term person also includes the state, or any other state, government or country which may lewsally own property in the state. : aes Pe 615 GenreraL Construction Law. § 38. Property. The term property includes real and personal property. § 39. Property, personal. The term personal property includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights or interests to which they relate, by which any right, in- terest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged; evidenced, transferred, discharged or defeated wholly or in part, and éverythifig, exeépt teal property, which may be the subject of ownership: Oil wells and all fixtures cofinéected thetewith, situdte on lands leased for oil purposes and oil interests, and rights held under and by virtue of any lease or contract or other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation. § 40. Property, real. The term real property includes real estate, lands, tenements and hereditaments, corporeal and incorporeal. § 41. Quorum did majority. Whenever three or more publie officefs ate given any power of authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of all such persons or officers at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at aity weeting duly held ‘ptm redsonablé notice to all of them, wiay perform and exercisé such fowet, authority of duty, and if one or moré of such persons or officers shall Have died oi havé become mentally incapable of acting, or shall refuse o* neglect to attend any such meeting, a majority of the whole number of such persons or officers shall be a quorum of such board or body, atid a miajority of 4 quorum, if not less than a majority of the whole number of such persons or officers may perforiti and exercise ahy such power, authot- ity or duty. § 43, Register of county. Any act done in pursuance of law by the register of a county shall be deemed to bé a compliance with any provision of law authorizing or requiring such act to be done by the county clerk of such county, and any instrument or writing filed, entered or recorded in pur- 616 GenersaL Construction Law, suance of law in the office of a register of a county, shall be deemed to be a compliance with any provision of law authorizing or requir- ing such paper to be filed, entered or recorded, as the case may be, in the office of the clerk of such county. The term county clerk when used in relation to conveyances of real property or the filing or re- cording of instruments which are or may be filed in the office of the register of a county, shall include the register of each county in which there is a register. § 43. Seal of cqurt, public officer or corporation. A seal of a court, public officer or corporation may be impressed directly upon the instrument or writing to be sealed, or upon wafer, wax or other adhesive substance affixed thereto, or upon paper, or other similar substance affixed thereto by mucilage or other adhesive substance. § 44. Seal, private. The private seal of a person, other than a corporation, to any instrument or writing shall consist of a wafer, wax or other similar adhesive substance affixed thereto, or of paper or other similar sub- stance affixed thereto, hy mucilage pr other adhesive substance, or of the word “seal,” or the letters “L. §.,” opposite the signature. A seal in a contract set opposite the name of only one person signing, is pre- sumed to be the seal of both and the contract will be held to be a sealed in- strument. Rusling v. Union Pipe Const. Co., 5 App. Div. 448, 39 N. Y. Supp. 216, aff'd 158 N. Y. 737 mem. And this rule applies although one of the parties may be a corporation. Rust- ling v. Union Pipe Const. Co., supra. But in such a case the seal must be adopted as the seal of the corporation. See, Mill Dam Foyndry y. Hovey, 21 Pick (Mass.) 417. ; Ap instrument is not made a sealed instrument by a mere recital therein that the parties thereto have set their hands and seals to it, where in fact no seal was affixed. Davis v. Bingham, 39 Misc. 299, 79 N. Y. Supp. 469. See, also, Farrington v. Brady, 11 App. Div. 1, 42 N, ¥. Supp. 385, with reference to a copy of a sealed instrument; and, see Barnard v. Gautz, 140 N. Y. 249, in which it was held that equity would deem the letters “L. S.” affixed where the parties intended to seal the instrument but failed to do so. § 45. Seal, private as corporate seal. An instrument or writing duly executed, in the corporate name of a corporation, which shall not haye adopted a corporate seal, by the proper officers of the corporation under their private seals, shall be ‘deemed to have been executed under the corporate geal. § 46. Signature. The term signature includes any memorandum, mark or sign, written or placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. 617 GeneraL Construction Law. § 47. State. The term state, when used generally to include every state of the United States, includes also every territory of the United States and the District of Columbia. § 48. Tense, present. Words in the present tense include the future. § 49. Territory. The term territory when used generally to include every territory of the United States, includes also the District of Columbia. § 50. Time, computation. Time shall continue to be computed in this state according to the Gregorian or new style. The first day of each year after the year seventeen hundred and fifty-two is the first day of January, according to such style. § 51. Time, night. Night time includes the time from sunset to sunrise. § 52. Time, standard. The standard time throughout this state is that of the seventy-fifth meridian of longitude west from Greenwich, and all courts and public officers, and legal and official proceedings, shall be regulated thereby. § 53. Time, use of standard. Any act required by or in pursuance of law to be performed at or within a prescribed time, shall be performed according to the standard time. § 54. Village. The term village means an incorporated village. § 55. Women. The term women includes girls. § 56. Writing and written. The terms writing and written include every legible representation of letters upon a material substance, except when applied to the signa- ture of an instrument. § 57. Year, common and leap. For the purpose of computing and reckoning the days of the year in the same regular course in the future, every year, the number of which in the Christian era is a multiple of four, is a bissextile or leap year consisting of three hundred and sixty-six days, unless such num- 618 GeneRaL Consteuction Law. ber of the year is a multiple of one hundred and the first two figures thereof treated as a separate number is not a multiple of four, and every year which is not a leap year is a common year consisting of three hundred and sixty-five days. § 58. Year in statute, contract and public or private instrument. The term year in a statute, contract, or any public or private instru- ment, means three hundred and sixty-five days, but the added day of. a leap year and the day immediately preceding shall for the purpose of such computation be counted as one day. In a statute, contract or public or private instrument, the term year means twelve months, the term half year, six months, and the term a quarter of a year, three months. ARTICLE 3. ANCIENT STATUTES AND RESOLUTIONS. Section 70. Statutes of Kmgland and Great Britain inoperative in this state. %1. Acts of the legislature of the colony of New York in- operative. 72. Resolutions of the congress of the colony and the con- vention of New York inoperative. § '70. Statutes of England and Great Britain inoperative in this state. A statute of England or Great Britain shall not be deemed to have had any force or effect in this state since May first, seventeen hundred and eighty-eight. 8 '71. Acts of the legislature of the colony of New York inoperative. Acts of the legislature of the colony of New York shall not be deemed to have had any force or effect in this state since December twenty-ninth, eighteen hundred and twenty-eight. § 72. Resolutions of the congress of the colony and the convention of New York inoperative. The resolutions of the congress of the colony of New York and of the convention of the state of New York, shall not be deemed to be the laws of this state hereafter. 619 GeneRsL Consrruction Law. ARTICLE 4. REFERENCES, TITLES AND HEAD NOTES. Section 80. References to repealed provisions. 81. Titles and head notes. § 80. References to repealed provisions. If any provision of a law be repealed and, in substance, re-enacted, a reference in any law to such repealed provision shall be deemed a reference to suck re-enacted provision. § 81. Titles and head notes. If the title of any article or other division of a statute, or the head note of a section shall be amended or repealed in the body of the statute, or if a new article or other division having a title, or a new section having a new head note be added to a statute, the correspond- ing title or head note, if any, in an abstract of contents at the be- ginning of the article or other division of the statute shall be deemed to be correspondingly amended or repealed, although there be no express reference thereto. ARTICLE 5. EFFECT OF REPEALS. Section 90. Effect of the repeal of a repealing statute. 91. Effect of the repeal of a statute upon amendments thereof. 92. Effect of the repeal of an amending statute, 93. Effect of repealing statute upon existing rights. 94. Effect of repealing statute upon pending actions and proceedings. 95. Effect of the repeal of a statute by another statute sub- stantially re-enacting the former. 96. Effect of hyphen in schedule of repeals. § 90. Effect of the repeal of a repealing statute. The repeal hereafter or by this chapter of any provision of a statute, 620 GeneRAL ConstRucTION Law. which repeals any provision of a prior statute, does not revive such prior provision. § 91. Effect of the repeal of a statute upon amendments thereof. The repeal by the Consolidated Laws of a statute includes a statute amendatory of the statute repealed. § 92. Effect of the repeal of an amending statute. The repeal hereafter or by this chapter of any provision of a statute, which amends a provision of a prior statute, leaves such prior pro- vision in force unless the amendatory statute be a substantial re- enactment of the statute amended. § 93. Effect of repealing statute upon existing rights. The repeal of a statute or part thereof shall not affect or impair any act done, offense committed or right accruing, accrued or ac- quired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be enjoyed, asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been effected. § 94. Effect of repealing statue upon pending actions and proceed- ings. Unless otherwise specially provided by law, all actions and pro- ceedings, civil or criminal, commenced under or by virtue of any pro- vision of a statute so repealed, and pending immediately prior to the taking effect of such repeai, may be prosecuted and defended to final effect in the same manner as they might if such provisions were not so repealed. § 95. Effect of the repeal of a statute by another statute sub- stantially re-enacting the former. The provisions of a law repealing a prior law, which are substantial re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, modified or amended according to the language employed, and not as new enactments. § 96. Effect of hyphen in schedule of repeals. When two numbers in a schedule of repeals of the consolidated laws are connected by a hyphen both such numbers are included as well as all intermediate numbers. 621 GrenERsL Construction Law. ARTICLE 6. EFFECT OF CONSOLIDATED LAWS. Section 100. Effect of consolidation upon laws passed at same session or before consolidation takes effect. 101. Effect of consolidated laws on penal law and civil and criminal codes. § 100. Effect of consolidation upon laws passed at same session or before consolidation takes effect. No provision of any chapter of the consolidation of the general laws, of which this chapter is a part, shall supersede or repeal by implication any law passed at the same session of the legislature at which any such chapter was enacted, or passed after the enactment of any such chapter and before it shall have taken effect; and an amendatory law passed at such session or at any subsequent session begun before any such chapter takes effect, shall not be deemed re- pealed, unless specifically designated in the repealing schedule of such chapter. § 101. Effect of consolidated laws on penal law and civil and criminal codes. The Consolidated Laws shall not be construed to amend, repeal or otherwise affect any provision of the penal law, code of civil procedure or code of criminal procedure unless expressly so stated. ARTICLE 7. APPLICATION OF CHAPTER. Srction 110. Application of chapter. 8 110. Application of chapter. This chapter is applicahle to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter. 622 GenzraL Construction Law. LAWS SEcTIon 120. Laws ARTICLE 8. REPEALED; WHEN TO TAKE EFFECT. repealed. 121. When to take effect. § 120. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that por- tion specified in the last column is hereby repealed. § 121. When to take effect. This chapter shall take effect immediately. SCHEDULE oF Laws REPEALED. Revised Statutes. Revised Statutes. . Revised Statutes. . Revised Statutes. . Revised Statutes. . Revised Statutes. . Revised Statutes. . Revised Statutes. . Revised Statutes. . . Part 1, chapter 8, title 8, section Part 1, chapter 19, title 1, sections Part 2, chapter 4, title 2, section Part 2, chapter 4, title 3, section Part 3, chapter 3, title 1, section Part 3, chapter 7, title 3, article 7, sections Part 3, chapter 8, title 17, section Part 3, chapter 10, title 4, section Part 4, chapter 2, title 8, section Laws of Chapter Section L788 occ ees 4G in ve sweus 37 1801........ D0 vais awa’ 28 R.L. 1813... 56........ 30, second sentence 1828........ WO ieswesiee wars 9-11 (2d Meet.) 1828........ Dds sence aa sks 2-15 (2d Meet.) 18303 2 ceees B20 se nie wione 65-67 1848........ UT acess seas 1 1849........ ROL see ces All 1857........ 586........ 3 1865 146. cceiceeys All 1870........ BIO. ace es All IST 2s sae ss DAA Sadie creiaie All TE 7B aices cee’ BU: wie wait All 1873. ...066:. 639 ie secs ears All 18%4........ Bela vixen vs All 16 1-5 10 61, 62 27 16 1902 Meee ew wee a a ry een e wees Genrerat Construction Law. OU waa aucreeen All BAB io feats: wisi 29, 788, 960 HAG cette 1, Wf 176, 214 406% cawiwen ae cL 1, pt. adding § 3343, subds. 6-8, 15, 17, 21-24 to L. 1876, Ch. 448 D0. samme All GAD egies: 6% 955-957 OT6.ccceces 261, 500, 718, subds. 9-15 BSG cae 1, pt. amending L. 1881, Ch. 676, § 718, subds. 9-15 Sia cseeyeew All TA sre bteserais All DLs wines ee 20 R89: sie soe a All OU netics All, except last sentence of § 24 Ce) en All BAS sai eiecete All 608s cece esis All OVA winis aes oe 1, except part providing that public offices shall be kept open on all week days; 2, 3 BO oie ks 1, except part providing that public offices shall be kept open on all week days. 800........ All 624 RELIGIOUS CORPORATIONS LAW. CHAPTER 51 OF THE CONSOLIDATED LAWS. ArticLe 1. Short title and definitions (§§ 1, 2). 2. General provisions (§§ 3-27). 3. Protestant Episcopal parishes or churches (§§ 40-46). 4, Presbyterian churches (§§ 60-70). 5. Roman Catholic and Greek churches (§§ 90-92). 6. Reformed Dutch, Reformed Presbyterian and Lutheran churches (§§ 110-116). %. Baptist churches (§§ 130-140). 8. Congregational and Independent churches (§§ 160- 171). 9. Free churches (§§ 180-183). 10. Other denominations (§§ 190-205). 11. Union churches (§§ 220, 221). 12. Laws repealed; when to take effect (§§ 260, 261). ARTICLE 1. SHORT TITLE AND DEFINITIONS. Szcrion 1. Short title. 2. Definitions. § 1. Short title. This chapter shall be known as the “ Religious Corporation Law.” § 2. Definitions. A “religious corporation” is a corporation created for religious purposes. An “incorporated church” is a religious corporation created to enable its members to meet for divine worship or other religious observances. An “unincorporated church” is a congregation, society, or other assemblage of persons who are accustomed to statedly meet for divine 625 t Retiaious Corporations Law. worship or other religious observances, without having been incor- porated for that purpose. The term “ minister,” includes a clergyman, pastor, rector, priest, rabbi, or other person having authority from, or in accordance with, the rules and regulations of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or other- wise from the church, 1o preside over and direct the spiritual affairs of the church. ARTICLE 2. GENERAL PROVISIONS. Sgotion 3. Filing and recording certificates of incorporation of religious corporations. 4. Property of unincorporated society transferred by its incorporation. 5. General powers and duties of trustees of religious cor- porations. 6. Acquisition of property by religious corporations for branch institutions; establishment, maintenance and management thereof. %. Acquisition of property by religious corporations for cemetery purposes; management thereof. 8. Lot owners’ rights. 9. Removal of human remains from one cemetery of a religious corporation to another cemetery owned by it. 10. Acquisition of property by two or more religious cor- porations for a common parsonage. 11. Correction and confirmation of conveyances to religious corporations. 12. Sale, mortgage and lease of real property of religious corporations. 13. Consolidation of incorporated churches. 14. Judicial investigation of amount of property of religious corporations. 15. Corporations with governing authority over churches. 16. Property of extinct churches, 17. Property of extinct Free Baptist churches. 18. Dissolution of religious corporations. 626 Reuiaiotus Corporations Law. Section 19. Corporations for organizing and maintaining mission churches and Sunday schools. 20. Corporations for acquiring parsonages for presiding elders and camp-meeting grounds. 21. Corporations for acquiring camp-meeting grounds for the Reformed Methodist denomination. 22. Establishing and maintaining a home for aged poor. 23. Powers of churches created by special laws. 24. Government of churches incorporated prior to Janu- ary first, eighteen hundred and twenty-eight. 25. Pastoral relation. 26. Worship. 27. Reservation as to Baptist and Congregational churches. § 3. Filing and recording certificates of incorporation of religious corporations. The certificate of incorporation of a religious corporation shall be acknowledged or proved before an officer authorized to take the ac- knowledgment or proof of deeds or conveyances of real estate, to be recorded in the county in which the principal office or place or wor- ship of said corporation is or is intended to be situated, and shall be filed and recorded in the office of the clerk of said county. If there is not, or is not intended to be, any such office or place of worship, the certificate shall be filed and recorded in the office of the secretary of state. The recording of any certificate of a religious corporation organized under provisions of “An act to provide for the incorporation of religious societies,” passed April fifth, eighteen hundred and thirteen, and of the acts amending the same, in the office of a clerk of a county prior to the passage of chapter thirty-five of the laws of eighteen hundred and ninety-seven, instead of in the office of the register of such county, shall be regarded and construed and such recording is hereby declared to be of the same validity, force and effect as would have been the recording of such certificate in the proper office. And every act, deed, matter and thing done or performed by every such religious society or corporation since the recording of its certificate in the office of said county clerk is hereby ratified, confirmed and declared to be as valid in all respects as if the said certificate had been properly and appropriately recorded in the office of the register of the county in which said religious society or corporation was or- ganized ; but this section shall not affect any suit or proceeding already commenced arising out of such original mistake. 627 Reureious Corporations Law. § 4. Property of unincorporated society transferred by its incor- poration. All the temporalities and property of an unincorporated church, or of any unincorporated religious society, body, association or con- gregation, shall, on the incorporation thereof, become the temporali- ties and property of such corporation, whether such temporalities or property be given, granted or devised directly to such unincorporated church, society, body, association or congregation, or to any other person for the use or benefit thereof. § 5. General powers and duties of trustees of religious corpora- tions. The trustees of every religious corporation shall have the custody and control of all the temporalities and property, real and personal, belonging to the corporation and of the revenues therefrom, and shall administer the same in accordance with the discipline, rules and usages of the corporation and of the ecclesiastical governing body, if any, to which the corporation is subject, and with the provisions of law relating thereto, for the support and maintenance of the cor- poration, or, providing the members of the corporation at-a meeting thereof shall so authorize, of some religious, charitable, benevolent or educational object conducted by said corporation or in connection with it, or with the denomination, if any, with which it is connected ; and they shall not use such property or revenues for any other pur- pose or divert the same from such uses. By-laws may be adopted or amended, by a two-thirds vote of the qualified voters present and voting at the meeting for incorporation or at any subsequent meeting, after written notice, embodying such by-laws or amendment, has been openly given at a previous meeting, and also in the notices of the meeting at which such proposed by-laws or amendment is to be acted upon. By-laws thus adopted or amended shall control the action of the trustees. But this section does not give to the trustees of an incorporated church, any control over the calling, settlement, dismissal or removal of its minister, or the fixing of his salary; or any power to fix or change the times, nature or order of the public or social worship of such church. § 6. Acquisition of property by religious corporations for branch institutions; establishment, maintenance and management thereof, Any religious corporation may acquire property for associate houses, church buildings, chapels, mission-houses, school-houses for Sunday or parochial schools, or dispensaries of medicine for the poor, or property for the residence of its ministers, teachers or employees, 628 Reuigious Corporations Law. or property for a home for the aged. The persons attending public worship in any such associate house, mission-house, church building, or chapel connected therewith shall not by reason thereof have any rights ag members of the parent corporation. The persons statedly worshiping in any such house, mission-house, church building or chapel may, with the consent of the trustees of such corporation, become separately incorporated as a church, and the parent corpora- tion may, in pursuance of the provisions of law regulating the dis- position of real property by religious corporations, rent or convey to the new corporation, with or without consideration, any such asso- ciate house, church building, chapel, mission-house, school-house or dispensary and the lot connected therewith, subject to such regula- tions as the trustees of the parent corporation may make. Any re- ligious corporation shall have power to establish, maintain and man- age by its trustees or other officers as a part of its religious purpose a home for the aged, and may take and hold by conveyance, dona- tion, bequest or devise real and personal property for such purpose, and may purchase and may erect suitable buildings therefor. Any such corporation may take and hold any grant, donation, bequest or devise of real or personal property heretofore or hereafter made upon trust, and apply the same, or the income thereof, under the direction of its trustees or other officers, for the purpose of establishing, main- taining and managing such a home and for the erection, preservation, repair or extension of any building or buildings for such purpose. 8 7. Aequisition of property by religious corporations for cemetery purposes; management thereof. A religious corporation may take and hold, by purchase, grant, gift or devise, real property for the purposes of a cemetery; or such lot or lots in any cemetery connected with it, as may be conveyed or devised to it, with or without provisions limiting interments therein to particular persons or classes of persons; and may take and hold any property granted, given, devised or bequeathed to it in trust to apply the same or the income or proceeds thereof, under the direction of the trustees of the corporation, for the improvement or embellish- ment of such cemetery or any lot therein, including the erection, repair, preservation or removal of tombs, monuments, gravestones, fences, railings or other erections, or the planting or cultivation of trees, shrubs, plants, or flowers in or around any such cemetery or cemetery lots. A religious corporation may erect upon any property held by it for cemetery purposes, a suitable building for religious services for 629 Reriarous Corporations Law. the burial of the dead, or for the use of the keepers or other persons employed in connection therewith, and may sell and convey lots in such cemetery for burial purposes, subject to such conditions and restrictions as may be imposed by the instrument by which the same was acquired, or by the rules and regulations adopted by such cor- poration. Every such conveyance of a lot or plat for burial purposes, signed, sealed and acknowledged in the same manner as a deed to be recorded, may be recorded in like manner and with like effect as a deed of real property. § 8. Lot owners’ rights. Lots in such cemeteries shall be held indivisible, and upon the decease of a proprietor of such lot the title thereto shall descend to his heirs-at-law or devisees, subject, however, to the following limita- tions and conditions: If he leaves a widow and children, they shall have in common the possession, care and control of such lot during her life. If he leaves a widow and no children, she shall have the possession, care and control of such lot during her life. If he leaves children and no widow, they, or the survivor of them, shall in common have the possession, care and control of such lot during the life of the survivor of them. The parties having such possession, care and contro] of such lot during the term thereof, may erect a monument and make other permanent improvements thereon. The widow shall have the right of interment, for her own body in such lot, or in a tomb in such lot and a right to have her body remain permanently interred or entombed therein, except that her body may be removed therefrom to some other family lot or tomb with the consent of her heirs. At any time when more than one person is entitled to the possession, care or control of such lot, the persons so entitled thereto shall designate in writing to the religious corporation which of their number shall represent the lot, and on their failure to designate, the board of trustees or directors of the corporation shall enter of record which of said parties shall represent the lot, while such failure con- tinues. The widow may at any time release her right in such lot, but no conveyance or devise by any other person shall deprive her of such right. § 9. Removal of human remains from one cemetery of a religious corporation to another cemetery owned by it. A religious corporation, notwithstanding the restrictions contained in any conveyance or devise to it, may remove the human remains buried in a cemetery owned by it, or when such church corporation is situated outside of a city in the grounds surrounding the church 630 Reuierous Corporations Law. belonging to such corporation, to another cemetery owned by it, or to a plot or lot acquired by it in any other cemetery located in the same town, if the trustees thereof so determine, and if either three-fourths of the members of such corporation, qualified to vote at its corporate meetings, sign and acknowledge and cause to be recorded in the office of the clerk of the county in which such cemetery or a part thereof is situated, a written consent thereto, or if three-fourths of the mem- bers of such corporation qualified to vote, and present and voting, at a corporate meeting of such corporation, specially called for that purpose, shall approve thereof. But if such corporation be a church, previous notice of the object of such meeting shall be published for at least four successive weeks in a newspaper of the town, village or city in which the cemetery from which the removal is proposed, is situated, or if no newspaper is published therein, then in a news- paper designated by the county judge of such county. Such removal shall be made in an appropriate manner and in accordance with such directions as to the manner thereof, as may be given by the board of health of the town, village or city in which the cemetery from which the removal is made, is situated. All tombstones, monu- ments or other erections at or upon any grave from which any remains are removed, shall be properly replaced or raised at the grave where the remains are reinterred. § 10. Acquisition of property by two or more religious corpora- tions for «1 common parsonage. Two or more religious corporations may acquire such real property as may be necessary for use as a parsonage, and the right, title and interest of each corporation therein shall be in proportion to its con- tribution to the cost of such property. The trustees of each corpora- tion shall, from time to time, appoint one of their number to be a trustee of such common parsonage property, to hold office during the pleasure of the appointing trustees or until his successor be appointed. The trustees so appointed shall have the care and management of such property and may make such improvements thereupon as they deem. necessary, and determine the proportion of the expense of the maintenance thereof which each corporation shall bear. If at any time either of such corporations acquires or desires to acquire for its own exclusive use as a parsonage other real property, it may, in pur- suance of the provisions of law, relating to the disposition of real property by religious corporations, sell and convey its interest in such common parsonage property to any one or more of the other corpora- tions having an interest therein. 631 Reuieious Corporations Law. § 11. Correction and confirmation of conveyances to religious cor= porations. If, in a conveyance of real property, or in any instrument intended to operate as such, heretofore or hereafter made to a religious cor- poration, its corporate name is not stated or is not correctly stated, but such conveyance or instrument indicates the intention of the grantor therein to convey such property to such corporation, and such corporation has entered into possession and occupation of such prop- erty, any officer of the corporation authorized so to do by its trustees may record in the office where such conveyance or instrument is re- corded a statement, signed and acknowledged by him or proved, set- ting forth the date of such conveyance or instrument, the date of record and the number and page of the book of record thereof, the name of the grantor, a description of the property conveyed or intended to be conveyed, the name of the grantee as expressed in such conveyance or instrument, the correct name of such corporation, the fact of authorization by the trustees of the corporation, to make and record such statement, and that the grantor in such conveyance or instrument intended thereby to convey such property to such corporation as the said officer verily believes, with the reason for such belief. Such statement so signed and acknowledged or proved shall be recorded with the records of deeds in such office, and indexed as a deed from the grantee as named in such instrument or in such conveyance to such corporation. The register or clerk, as the case may be, shall note the recording of such statement on the margin of the record of such conveyance, and for his services shall be entitled to receive the fees allowed for recording deeds. Such statement so recorded shall be presumptive evidence that such matters therein stated are true, and that such corporation was the grantee in the original instrument or conveyance. All conveyances heretofore made, or by any instru- ment intended to be made, to a religious corporation of real property appropriated to the use of such corporation, or entitled to be so appro- priated, are hereby confirmed and declared valid and effectual, not- withstanding any defect in the form of the conveyance or the descrip- tion of the grantee therein. § 12. Sale, mortgage and lease of real property of religious cor- porations. A religious corporation shall not sell or mortgage any of its real property without applying for and obtaining leave of the court there- for pursuant to the provisions of the code of civil procedure. The trustees of an incorporated Protestant Episcopal church shall not vote upon any resolution or proposition for the sale, mortgage or lease 632 Rezicgtous Corporations Law. of its real property, unless the rector of such church, if it then has a rector, shall be present, and shall not make application to the court for leave to sell or mortgage any of its real property without the con- sent of the bishop and standing committee of the diocese to which such church belongs; but in case the see be vacant, or the bishop be absent or unable to act, the consent,of the standing committee with their certificate of the vacancy of the see or of the absence or dis- ability of the bishop shall suffice. The trustees of an incorporated Roman Catholic church shall not make application to the court for leave to mortgage, lease or sell any of its real property without the consent of the archbishop or bishop of the diocese to which such church belongs or in case of their absence or inability to act, without the consent of the vicar-general or administrator of such diocese. The petition of the trustees of an incorporated Protestant Episcopal church or Roman Catholic church shall, in addition to the matters required by the code of civil procedure to be set forth therein, set forth that this section has also been complied with. But lots, plats or burial permits in a cemetery owned by a religious corporation may be sold without applying for or obtaining leave of the court. No cemetery lands of a religious corporation shall be mortgaged while used for cemetery purposes. Except as otherwise provided in this chapter in respect to a religious corporation of a specified denomination, any solvent religious corporation may, by order of the supreme court obtained as above provided in proceedings to sell, mort- gage or lease real property, convey the whole or any part of its real property to another religious corporation, for a consideration of one dollar or other nominal consideration; and for the purpose of apply- ing the provisions of title two of chapter twenty-three of the code of civil procedure, a proposed conveyance for such consideration shall be treated as a sale, but it shall not be necessary to show, in the petition or otherwise, nor for the court to find, that the pecuniary or pro- prietary interest of the grantor corporation will be promoted thereby ; and the interests of such grantor shall be deemed to be promoted if it appears that religious or charitable objects generally are conserved by such conveyance; provided, however, that such an order shall not be made if tending to impair the claim or remedy of any creditor. § 13. Consolidation of incorporated churches, Two or more incorporated churches may enter into an agreement, under their respective corporate seals, for the consolidation of such corporation, setting forth the name of the proposed new corporation, the denomination, if any, to which it is to belong, and if the churches 633 Re.icious Corporations Law. of such denomination have more than one method of choosing trustees, by which of such methods the trustees are to be chosen, the number of such trustees, the names of the persons to be the first trustees of the new corporation, and the date of its first annual corporate meet- ing. Such agreement shall not be valid unless approved by the gov- erning body of the denomination, if any, to which each church be- longs, having jurisdiction over such church. Each corporation shall thereupon make a separate petition to the supreme court for an order consolidating the corporations, setting forth the denomination, if any, to which the church belongs, that the consent of the governing body to the consolidation, if any, of that denomination having juris- diction over such church has been obtained, the agreement therefor, and a statement of all the property and liabilities and the amount and sources of the annual income of such petitioning corporation. In its discretion the court may direct that notice of the hearing of such petition be given to the parties interested therein in such manner and for such time as it may prescribe. After hearing all the parties in- terested, present and desiring to be heard, the court may make an order for the consolidation of the corporations on the terms of such agreement and such other terms and conditions as it may prescribe, specifying the name of such new corporation and the first trustees thereof, and the method by which their successors shall be chosen and the date of its first annual corporate meeting. When such order is made and duly entered, the persons constituting such corporations shall become an incorporated church by, and said petitioning churches shall become consolidated under, the name designated in the order, and the trustees therein named shall be the first trustees thereof, and the future trustees thereof shall be chosen by the method therein designated, and all the estate, rights, powers and property of whatso- ever nature belonging to either corporation shall without further act or deed be vested in and transferred to the new corporation as effec- tually as they were vested in or belonged to the former corporations; and the said new corporation shall be liable for all the debts and liabilities of the former corporations in the same manner and as effectually as if said debts or liabilities had been contracted or in- curred by the new corporation. A certified copy of such order shall be recorded in the book for recording certificates of incorporation in each county clerk’s office in which the certificate of incorporation of each consolidating church was recorded; or if no such certificate was so recorded, then in the clerk’s office of the county in which the principal place of worship or principal office of the new corporation is, or is intended to be, situated. 634 Reuieious Corporations Law. § 14. Judicial investigation of amount of property of religious cor- porations. The supreme court at a special term, held in the judicial district in which the principal place of worship or of holding corporate meet- ings of a religious corporation is situated, may require such corpora- tion to make and file an inventory of its property, verified by its trustees or a majority of them, on the written application of the attorney-general, stating that, from his knowledge, or on information and belief, the value of the property held by such corporation exceeds the amount authorized by law. On presentation of such application, the court shall order that a notice of at least eight days, together with a copy of the application, be served upon the trustees of the corpora- tion, requiring them to show cause at a time and place therein speci- fied why they should not make and file such inventory and account. If, on the hearing of such application, no good cause is shown to the contrary, the court may make an order requiring such inventory or account to be filed, and may also proceed to take and state the amount of property held by the corporation, and may appoint a referee for that purpose; and when such account is taken and stated, after hear- ing all the parties appearing on the application, the court may enter an order determining the amount of property so held by the corpora- tion and its annual income, from which order an appeal may be taken by any party aggrieved as from a judgment of the supreme court in an action tried therein before a court without a jury. No corporation shall be required to make and file more than one inventory and ac- count in any one year, or to make a second account and inventory while proceedings are pending for the statement of an account under this section. ; § 15. Corporations with governing authority over churches. An unincorporated diocesan convention, presbytery, classis, synod, annual conference, or other ecclesiastical governing body having jurisdiction over several churches, may at a statéd meeting thereof, determine to become incorporated by a designated name, and may by a plurality vote, elect not less than three nor more than nine persons to be the first trustees of such corporation. The presiding officer and clerk of such governing body shall execute and acknowledge a certificate stating that such proceedings were duly taken as herein provided, the name by which such ‘corporation is to be known, and the names of such first trustees. On filing such certificate the mem- bers of such governing body and their successors shall be a corpora- tion by the name stated in the certificate, and the persons named as trustees therein shall be the first trustees thereof. 635 Retieious Corporations Law. The trustees of every incorporated governing body and their suc- cessors shall hold their offices during the pleasure of such body, which may remove them and fill vacancies in accordance with its rules and regulations. Such corporation may take, administer and dispose of property for the benefit of such governing body, or of any parish, congregation, society, church, mission, religious, benevolent, charitable or educational institution existing or acting under it. § 16. Property of extinct churches. Such incorporated governing body may decide that a church, parish, or society in connection with it or over which it has ecclesiastical jurisdiction, has become extinct, if it has failed for two consecutive years next prior thereto, to maintain religious services according to the discipline, customs and usages of such governing body, or has had less than thirteen resident attending members paying annual pew rent, or making annual contribution toward its support, and may take possession of the temporalities and property belonging to such church, parish or religious society, and manage the same; or may, in pur- suance of the provisions of law relating to the disposition of real property by religious corporations, sell or dispose of the same and apply the proceeds thereof to any of the purposes to which the prop- erty of such governing religious body is devoted, and it shall not divert such property to any other object. And for the purpose of obtaining a record title to the land and the church edifice, or other buildings thereon, by such incorporated governing body, the surviv- ing trustee or trustees of said extinct church, or if there be no sur- viving trustee then a surviving member of said extinct church, may, without a consideration being paid therefor by such incorporated governing body, convey to it said land and church edifice, or other buildings thereon, subject, however, to an order of the supreme or county court based upon a petition reciting that said church has become extinct; the names of its surviving trustee or trustees, and the names of its members, who must have given their consent to the making of said conveyance. Upon the recital of said facts in said petition the court shall have jurisdiction to grant an order allowing said conveyance to be made without a consideration; and should there be no surviving members, as well as no surviving trustee of said extinct church, said petition may be made by an officer of such incorporated governing body, in which event the court, upon a recital of said fact, shall have jurisdiction to appoint a suitable person as trustee for the purpose of making said conveyance. Where a pro- ceeding is instituted under this section for the sale of the real prop- 636 Rexigious Corporations Law. erty of an extinct religious corporation, a compliance with sub- divisions four, five, seven, eight and nine of section seventy-one of “An act relating to corporations generally, constituting chapter twenty-three of the consolidated laws,” shall be unnecessary, and such proceeding shall be in all respects valid without a compliance with said subdivisions. The New York Hastern Christian Benevolent and Missionary Society, shall be deemed the governing religious body of any extinct or disbanded church of the Christian denomination situ- ated within the bounds of the New York Eastern Christian Con- ference ; and the New York Christian Association, of any other church of the Christian denomination, and any other incorporated conference shall be deemed the governing religious body of any such church situated within its bounds. By Christian denomination is meant only the denomination specially termed “ Christian,’ in which the Bible is declared to be the only rule of faith, Christian their only name, and Christian character their only test of fellowship, and in which no form of baptism is made a test of Christian character. § 17. Property of extinct Free Baptist churches. The property both real and personal, belonging to or held in trust for any Free Baptist church, or Free Baptist religious society organ- ized under the laws of the state of New York, that has become, or shall become extinct, shall vest in and become the property of the Central association existing under the laws of the state of New York, and its successors and assigns; provided that this section shall not affect the reversionary interests of any person in such property, nor the interests of any incorporated association; and any Free Baptist church or Free Baptist religious society becoming extinct or about to disband or disorganize may, by a vote of two-thirds of its members present and voting therefor at a meeting regularly called for that purpose assign, transfer, grant and convey all its temporalities to and place the same in the possession of the Central association existing under the laws of the state of New York. A Free Baptist church or Free Baptist religious society which has failed for two consecutive years next prior thereto to maintain religious services according to the custom and usages of Free Baptist churches, or has less than thirteen resident attending members, pay- ing annual pew rental or making annual contributions towards its support, may be declared extinct in the following manner, viz.: Upon such notice as the court may prescribe, and upon application made by petition, stating fully the facts in the case, and on evidence being furnished that the said Free Baptist church or Free Baptist 637 Reuieious Corporations Law. religious society has ceased to hold religious services in and use said property for religious worship or service for a term of two years previous to such application, the supreme court, at a term thereof held in the judicial district where such property is situated, may grant an order declaring such church or society extinct, and thereon direct that all its temporalities shall be transferred to, and thereupon shall be taken possession of by the Central association of the state of New York, or directing that the same be sold in the manner directed by said order, and that the proceeds thereof, after the payment of the debts of such church or society, be paid over to the Central association of the state of New York. All property and proceeds from the sale of property so transferred to said association shall be used and applied for the purposes for which said Central association of the state of New York was organized and shall not be directed to any other purpose. The First Free Will Baptist church of the city of New York, location in the borough of Manhattan, shall in no way be amenable to the provisions of this section. § 18. Dissolution of religious corporations, Whenever any religious corporation shall cease to act in its cor- porate capacity and keep up the religious services; it shall be lawful for the supreme court of this state, upon the application of a ma- jority of the trustees thereof, except in the county of New York, in case said court shall deem it proper so to do, to order and decree a dissolution of such religious corporation, and for that purpose to order and direct a sale and conveyance of any and all property belonging to such corporation, and after providing for the ascertaining and payment of the debts of such corporation, and the necessary costs and expenses of such sale and proceedings for dissolution, so far as the proceeds of such sale shall be sufficient to pay the same; such court may order and direct any surplus of such proceeds remaining after paying such debts, costs and expenses, to be devoted and applied to any such religious, benevolent, or charitable objects or purposes as the said trustees may indicate by their petition and the said court may approve. ‘Such application to said court shall be made by petition, duly verified by said trustees, which petition shall state the particular reason or causes why such sale and dissolution are sought; the situa- tion, condition and estimated value of the property of said corpora- tion, and the particular object or purposes to which it is proposed to devote any surplus of the proceeds of such property; and such 638 Reuiaious Corporations Law. petition shall, in all cases, be accompanied with proof that notice of the time and place of such intended application to said court, has been duly published once in each week for at least four weeks suc- cessively, next preceding such application, in a newspaper published in the county where such corporation is located. In case there shall be no trustees of such religious corporation re- siding in the county in which such corporation is located, such appli- cation may be made, and such proceedings taken, by a majority of the members of such religious corporation residing in such county. § 19. Corporations for organizing and maintaining mission churches and Sunday schools. Ten or more members of two or more incorporated churches may become a corporation for the purpose of organizing and maintaining mission churches and Sunday schools, and of acquiring property therefor, by executing a certificate stating the name of such corpora- tion, the city in which its principal office or church or school is or is intended to be located; the number of trustees to manage its affairs, which shall be three, six or nine, and the names of the trustees for the first year of its existence, which certificate shall be acknowledged or proved and filed as hereinbefore provided. Whenever a mission church established by such corporation becomes self-sustaining, such mission church may become incorporated and shall be governed under the provisions of this chapter for the incorporation and government of a church of the religious denomination to which such mission church belongs, and thereon such parent corporation may convey to such incorporated church the property connected therewith. § 20. Corporations for acquiring parsonages for presiding elders and camp-meeting grounds. The presiding elder and a majority of the district stewards residing within a presiding elder’s district, erected by an annual conference of the Methodist Episcopal denomination, may become incorporated for the purposes of acquiring, maintaining and improving real prop- erty to be used either as a parsonage for the presiding elder of such district or as a camp ground for camp-meeting purposes, or for both of such objects by executing, acknowledging and filing a certificate stating the name and object of the corporation to be formed, the name of such annual conference, and of such presiding elder’s district, the names, residences and official relations to such district of the signers thereof, the number of trustees of such corporation, which shall be three or some multiple of three not more than twenty-one, the names of such trustees, designating one-third to hold office for three years, 639 Reuicious Corporations Law. one-third to hold office for two years, and one-third to hold office for one year. On filing such certificate the presiding elder and all the stewards of such district by virtue of their respective offices, shall be a corporation by the name and for the purposes therein stated, and the persons therein named shall be the first trustees thereof. The presiding elder and stewards of any other adjoining presiding elder’s district, in this or any other state, may become members of any such corporation, at the time of its formation or any time thereafter, with the consent of such corporation, which has for its sole object, or for one of its objects, the acquiring, maintaining and improving of real property as a camp ground for camp-meeting purposes, if such pre- siding elder and a majority of such stewards sign, acknowledge and cause to be filed in the office of the secretary of state, a certificate stating such object, the name of such adjoining district, and the names, residences and official relations to such district of the signers thereof, with the consent of the original corporation indorsed thereon. If such a corporation, which has for its sole object or one of its objects, the acquisition and maintenance of camp grounds for camp- meeting purposes, is composed of the presiding elders and the district stewards of more than one presiding elder’s district, the number of such trustees shall be apportioned equally, as near as may be, between the different districts, and the presiding elder and district stewards of such district shall elect the number of trustees so apportioned to such district, and the remainder, if any, over an equal division of the trustees, shall be elected by all the members of the corporation. A person holding property in trust for the purposes of a parsonage for the presiding elder of a district, and his successors in office, or for camp-meeting purposes, for the Methodist Episcopal denomination, may convey the same to a corporation formed for the purpose of ac- quiring such property within the district in which the property is situated. Meetings held under the direction of such a corporation upon camp grounds owned by it shall be deemed religious meetings, within the provisions of law relating to disturbances of religious meet- ings, and the trustees of such a corporation shall have the powers of peace officers with relation thereto. Whenever such a corporation or any camp ground association owns land bordering upon any navigable waters, to be used for camp-meeting purposes only, such corporation or association may regulate or prohibit the landing of persons or vessels at the wharves, piers or shores upon such grounds during the holding of religious services thereon. If the trustees of any such corporation heretofore incorporated have not been classified, so that the terms of office of one-third of their 640 Rerieious Corporations Law. number expire each year, the trustees of such corporation shall be elected annually by the members thereof; but if the trustees of any such corporation have been so classified, one-third of the total number of trustees shall be lected annually to hold office for three years. Such a corporation heretofore incorporated may, by a majority vote, at an annual meeting, or at a special meeting duly called therefor, determine to change the number of its trustees to three, or some multiple thereof, not more than twenty-one. On such determination a majority of the trustees shall sign, acknowledge and file in the offices where the original certificate of such corporation is filed, a supplemental certificate, specifying such reduction or increase; and thereon the number of trustees shall be the number stated in such certificate. If the number of trustees is increased, the corporation shall elect, at its next annual meeting, a sufficient number of trustees to hold office for one, two and three years, respectively, so that the terms of office of one-third of the whole number of trustees of such corporation shall expire at each annual meeting thereafter. If the number is reduced, the corporation shall thereafter elect at its annual meetings one-third of the number of trustees specified in such supple- mental certificate, but the trustees in office when such certificate is filed shall continue in office until the expiration of their terms, respectively. § 21. Corporations for acquiring camp-meeting grounds for the Reformed Methodist denomination, The visiting elder of a visiting elder’s district, erected by an annual conference of the Reformed Methodist denomination, and three mem- bers or more in good and regular standing of three or more churches of such denomination, may become incorporated for the purposes of acquiring, maintaining and improving real property, to be used as a camp ground for camp-meeting purposes, by executing, acknowledg- ing and filing a certificate stating the name and object of the corpora- tion to be formed, the name of such annual conference, and of such visiting elder’s district, the names, residences and particular church membership of the signers thereof, the number of trustees of such corporation, which shall be three, or some multiple of three, not more than twenty-one, the names of such trustees, designating one-third to hold office for three years, one-third to hold office for two years, and one-third to hold office for one year. On filing such certificate, the visiting elder and the trustees named therein, and their successors in office, shall be a corporation by the name and for the purposes therein stated. A person holding property in trust for camp-meeting pur- 641 Reuietous Corporations Law. poses for the Reformed Methodist denomination, may convey the same to a corporation formed for the purpose of acquiring such property within the visiting elder’s district where the property is situated. Meetings held under the direction of such a corporation upon camp grounds owned by it, shall be deemed religious meetings within the religious law, relating to the disturbance of religious meetings, and the trustees of such a corporation shall have the power of peace officers with relation thereto. Whenever such a corporation, or any camp ground association of the Reformed Methodist denomination, owns land bordering upon any navigable waters to be used for camp- meeting purposes only, such corporation or association may regulate or prohibit the landing of persons or vessels at the wharves, piers or shores upon such grounds during the holding of religious services thereon. § 22. Establishing and maintaining a home for aged poor. An incorporated church or congregation in this state, either by itself or in conjunction with other incorporated churches or con- gregations, shall have power to establish and maintain by its or their trustees or other officers, as part of its or their regular church and charitable work, a home for the aged poor of its or their membership or congregation and may take and hold as joint tenants, tenants in common or otherwise, by conveyance, donation, bequest or devise, real and personal property for such purpose, and may purchase or erect suitable buildings therefor. Any such church or congregation, either by itself or in conjunction with other incorporated churches or con- gregations may take and hold any grant, donation, bequest or devise of real or personal property heretofore made, upon trust, and apply the same or the income thereof under the direction of the trustees or other officers having charge of the temporalities of such church, or churches, or congregation, or congregations, for the purpose of estab- lish or maintaininng such a home, and for the erection, preservation, repair or extension of any buildings for such purpose, upon such terms and conditions and subject to such conditions, limitations and restric- tions as shall be contained in the deed, will or other instrument or con- veyance by which the property is given, transferred or conveyed. § 23. Powers of churches created by special laws. If a church be incorporated by special law, it and its trustees shall have, in addition to the powers conferred on it by such law, all the powers and privileges conferred on incorporated churches and the trustees thereof respectively by the provisions of this article, and also all the powers and privileges conferred by this chapter on 642 Rexicious Corporations Law. churches of the same denomination or of the like character, and on the trustees thereof respectively. § 24. Government of churches incorporated prior to January first, eighteen hundred and twenty-eight. Any provision of this chapter shall not be deemed to apply to any church incorporated under any general or special law, prior to January first, eighteen hundred and twenty-eight, if such provision is inconsistent with or in derogation of any of the rights and privi- leges of such corporation as they existed under the law by or pursuant to which such corporation was formed, unless such corporation sub- sequent to such date, shall have lawfully reincorporated under a law enacted since the first day of January, eighteen hundred and twenty- eight, or unless the trustees of such corporation shall, by resolution, determine that the provisions of this chapter applying to churches of the same denomination and to the trustees thereof shall apply to such church, and unless such resolution shall be submitted to the next ensuing annual meeting of such church, and ratified by a majority of the votes of the qualified voters present and voting thereon. Notice of the adoption of such resolution and of the proposed sub- mission thereof for ratification, shall be given with the notice of such annual meeting, and in addition thereto, mailed to each member of such church corporation at his last known post-office address, at least two weeks prior to such annual meeting, and published once a week for two successive weeks immediately preceding such meet- ing in a newspaper, if any, published in the city, village or town in which the principal place of worship of such corporation is located, and otherwise in a newspaper published in an adjoining town. If such resolution is so ratified, the trustees of such church shall cause a certificate setting forth a copy of such resolution, its adoption by the board of trustees and its due ratification by the members of such corporation, to be filed in the office of the clerk of the county im which the principal place of worship of such corporation is located. Such county clerk shall cause such certificate to be recorded in the book in which certificates of incorporation of religious corporations are re- corded in pursuance of law. § 25. Pastoral relation. No provision of this chapter authorizes the calling, settlement, dis- missal or removal of a minister, or the fixing or changing of his salary, and a meeting of a church corporation for any such purpose shall be called, held, moderated, conducted, governed and notice of such meeting given and person to preside thereat ascertained and the 643 Reticious Corporations Law. qualification of voters thereat determined, not as required by any provision of this chapter but only according to the aforesaid laws and regulations, practice, discipline, rules and usages of the religious denomination or ecclesiastical governing body, if any, with which the church corporation is connected. § 26. Worship. No provision of this chapter authorizes the fixing or changing of the times, nature or order of public or social or other worship of any church, in any other manner or by any other authority than in the manner and by the authority provided in the laws, regulations, practice, discipline, rules and usages of the religious denomination or ecclesiastical governing body, if any, with which the church corpora- tion is connected. § 27, Reservation as to Baptist and Congregational churches. Sections twenty-five and twenty-six are not applicable to a Baptist church, a Congregational church or to any other religious corporation having a congregational form of government. ARTICLE 3. PROTESTANT EPISCOPAL PARISHES OR CHURCHES. Section 40 .Meeting for incorporation. 41. Certificate of incorporation. 42. Coroprate trustees, vestry; powers and duties thereof. 43. Annual elections and special meetings of incorporated Protestant Episcopal parishes. 44. Changing the number of vestrymen of Protestant Episcopal parishes hereafter incorporated. 45. Changing date of annual election, number and terms of office of vestrymen and terms of office of church- wardens in Protestant Episcopal churches hereto- fore incorporated. 46. Changing the qualifications of voters and the quali- fications of wardens and vestrymen. § 40. Meeting for incorporation. Notice of a meeting for the purpose of incorporating an unincor- porated Protestant Episcopal parish or congregation, and of electing the first churchwardens of vestrymen thereof, shall specify the object, ‘ 644 Reuieious Corporations Law. time and place of such meeting, and shall be made public for at least two weeks prior to such meeting, either by open reading of such notice in time of divine service, at the usual place of worship of such parish or congregation, or by posting the same conspicuously on the outer door of such place of worship. Only men of full age who have been regular attendants at the worship of such parish or con- gregation and contributors to the support thereof for one year next prior to such meeting, or since the establishment of such parish or congregation, shall be qualified to vote at such meeting. The presence of at least six persons qualified to vote thereat shall be necessary to constitute a quorum of such meeting. The action of the meeting upon any matter or question shall be decided by a majority of the qualified voters voting thereon, a quorum being present. The officiating ministers, or if there be none, or he shall be necessarily absent, any other person qualified to vote at the meeting, who is called to the chair, shall preside thereat. Such presiding officer shall receive the votes, be the judge of the qualifications of voters, and declare the result of the votes cast at such meeting. The polls of the meeting shall remain open for one hour or longer, in the discretion of the presiding officer, or if required by a vote of a majority of the voters present. The meeting shall decide whether such unincorporated parish or congregation shall become incorporated. If such decision be in favor of incorporation, such meeting shall decide upon the name of the proposed corporation ; what secular day of the week beginning with the first Sunday in Advent, shall be the date of the regular annual election; whether the vestrymen thereof shall be three, six, nine, twelve, fifteen, eighteen, twenty-one, or twenty-four; and shall elect by ballot from the persons qualified to be voters thereat, who have been baptized, one-third of the number of vestrymen so decided upon to hold office until the first annual election to be held thereafter, one- ‘third of such number, to hold office until one year after such annual election, and one-third of such number, to hold office until two years after such annual election and shall elect from such qualified voters who are communicants in the Protestant Episcopal church, two persons to be churchwardens thereof, one to hold office until such annual election, and one to hold office until one year after such annual election. § Al. Certificate of incorporation. If such meeting shall decide in favor of incorporation and comply with the next preceding section, the presiding officer of such meeting and at least two other persons present and voting thereat, shall execute and acknowledge a certificate of incorporation setting forth: 645 Rexieious Corporations Law. 1. The fact of the calling and holding of such meeting ; 2. The name of the corporation as decided upon thereat ; 3. The county, and the town, city, or village, in which its principal place of worship is, or is intended to be located; 4. The day of the week commencing with the first Sunday in Ad- vent upon which the annual election shall be held; 5. The number of vestrymen decided upon at such meeting ; 6. The names of the vestrymen elected at such meeting and the term of office of each; %. The names of the churchwardens elected at such meeting and the term of office of each. On filing such certificate in the office of the clerk of the county so specified therein the churchwardens and vestrymen so elected and their successors in office, together with the rector, when there is one, shall form a vestry and shall be the trustees of such church or congregation; and they and their successors shall thereupon, by virtue of this chapter, be a body corporate by the name or title expressed in such certificate, and shall have power, from time to time, to adopt by-laws for its government. Such corporation shall be an incorporated church, and may be termed also an incorporated parish. § 42. Corporate trustees, vestry; powers and duties thereof. No meeting of the vestry or trustees of any incorporated Protestant Episcopal parish or church shall be held unless either all the members thereof are present, or three days’ notice thereof shall be given to each member thereof, by the rector in writing either personally or by mail, or, if there be no rector or he be incapable of acting, by one of the churchwardens; except that twenty-four hours’ notice of the first meeting of the vestry or trustees after an annual election shall be sufficient, provided such meeting be held within three days after the election. To constitute a quorum of the vestry or board of trustees there must be present either: 1. The rector, at least one of the churchwardens and a majority of the vestrymen; or, 2. The rector, both churchwardens and one less than a majority of the vestrymen ; or, 3. If the rector be absent from the diocese and shall have been so absent for over four calendar months, or if the meeting be called by the rector and he be absent therefrom or be incapable of acting, one churchwarden, and a majority of the vestrymen, or both church- wardens and one less than a majority of the vestrymen. But if there be a rector of the parish, no measure shall be taken, in his absence, 646 f Rerigious Corporations Law. in any case, for effecting the sale or disposition of the real property of the corporation, nor for the sale or disposition of the capital or principal of the personal property of the corporation, nor shall any act be done which shall impair the rights of such rector. The pre- siding officer of the vestry or trustees shall be the rector, or if there be none, or he be absent, the churchwarden who shall be called to the chair by a majority of the votes, if both the churchwardens be present ; or the churchwarden present, if but one be present. At each meeting of the vestry or trustees each member thereof shall be entitled to one vote. The vestry shall have power to fill a vacancy occurring in the office of a churchwarden or vestryman by death, resignation or other- wise than by expiration of term, until the next annual election, at which, if such vacancy would continue thereafter, it shall be filled for the remainder of the unexpired term. If vacancies exist in the offices of churchwardens or vestrymen in such number that a quorum of the vestry or board of trustees is not in office at any time, the rector shall forthwith call a special election for the filling of such vacancies. If there be no rector the churchwarden longest in office shall call _ such special election. Notice of such special election shall be read by the rector, or if there be none, or he be absent, by the officiating minister or by one of the churchwardens, on the Sunday next pre- ceding such election, in the time of divine service. If for any rea- son the usual place of worship of the parish be not open for divine service on such Sunday, such notice shall be posted conspicuously on the outer door of the place of worship for one week next preceding the election. Such notice shall conform to that required for an annual election. The provisions of section forty-three of this chapter relat- ing to annual elections shall apply to such special election, except as inconsistent herewith. Such vacancies shall be filled at such election for the remainder of the unexpired terms. The vestry may, subject to the canons of the Protestant Episcopal church in the United States, and of the diocese in which the parish or church is situated, by a majority vote, elect a rector to fill a vacancy occurring in the rector- ship of the parish, and may fix the salary or compensation of the rector. § 43. Annual elections and special meetings of incorporated Protestant Episcopal parishes. The annual election of a Protestant Episcopal parish, hereafter in- corporated, shall be held on the secular day in the week commencing with the first Sunday in Advent, designated in its certificate of incorporation. The annual election of an incorporated Protestant Episcopal parish or church heretofore incorporated shall be held on the 647 Reicious Corporations Law. day fixed for such annual election, by or in pursuance of law, or if no such date be so fixed, then on the Monday next after the first Sunday in Advent. Special meetings of any Protestant Episcopal parish or church heretofore or hereafter incorporated may be held on any secular day fixed by the vestry. Notice of such annual election or special meeting shall be read by the rector of the parish, or if there be none, or he be absent by the officiating minister or by a church- warden thereof, on each of the two Sundays next preceding such election or special meeting, in the time of divine service, or if, for any reason, the usual place of worship of the parish be not open for divine service, the notice shall be posted conspicuously on the outer door of the place of worship for two weeks next preceding the election or special meeting. Such notice shall specify the place, day and hour of holding the election or special meeting. The notice of the annual election shall also specify the name and term of office of each church- warden and vestryman whose term of office shall then expire, or whose office shall then be vacant for any cause, and the office for which each such officer is to be then elected. The notice of a special meeting shall specify the matter or question to be brought before such meeting and no matter or question not specified in such notice shall be acted on at such meeting. The presiding officer of such annual or special meeting shall be the rector of the parish, if there be one, or if there be none, or he be absent, one of the churchwardens elected for the purpose by a majority of the duly qualified voters present, or if no churchwarden be present, a vestryman elected in like manner. Such presiding officer shall be the judge of the qualifications of the voters; shall receive the votes cast; and shall declare the result of the votes cast. The presiding officer of such annual or special meeting shall enter the proceedings of the meeting in the book of the minutes of the vestry, sign his name thereto, and offer the same to as many qualified voters present as he shall think fit, to be also signed by them. Only men of full age belonging to the parish, who have been regular attendants at its worship and contributors to its support for at least twelve months prior to such election or special meeting or since the establishment of such parish, shall be qualified voters at any such elec- tion or special meeting. The action of an annual or special meeting upon any matter or question shall be decided by a majority of the qualified voters voting thereon. The polls of an election shall con- tinue open for one hour and longer, in the discretion of the presiding officer, or if required by a vote of a majority of the qualified voters present and voting. The churchwardens and vestrymen shall be 648 Reuicious Corporations Law. elected by ballot from persons qualified to vote at such election, and no person shall be eligible for election as churchwardens, unless he be also a communicant in the Protestant Episcopal church, nor be eligible for election as vestryman, unless he shall have been baptized. At each annual election of an incorporated Protestant Episcopal parish here- after incorporated, one churchwarden shall be elected to hold office for two years; and one-third of the total number of vestrymen of the parish shall be elected to hold office for three years. At each annual election of an incorporated Protestant Episcopal parish or church heretofore incorporated, two churchwardens and the total number of its vestrymen shall be elected to hold office for one year thereafter, unless the term of office of but one churchwarden or of but one-third of its vestrymen shall then expire, in which case one churchwarden shall be elected to hold for two years, and one-third of the total number of its vestrymen shall be elected to hold office for three years. Each churchwarden and vestryman shall hold office after the ex- piration of his term until his successor shall be chosen. § 44. Changing the number of vestrymen of Protestant Episcopal parishes hereafter incorporated. If the vestry of -a Protestant Episcopal parish, hereafter incorpo- rated, shall, by resolution, recommend that the number of vestrymen of such parish be changed to either three, six, nine, twelve, fifteen, eighteen, twenty-one or twenty-four vestrymen, notice of such recom- mendation shall be included in the notice of the next annual election of such parish, or in the notice of a special meeting to be held not less than six months before the time fixed for holding the next annual election thereafter, and be submitted to such annual or special meet- ing. If such recommendation be ratified by such meeting, the pre- siding officer thereof, and at least two qualified voters present thereat, shall execute and acknowledge a certificate setting forth such resolu- tion of the vestry, the fact that notice thereof had been given with the notice of such annual election, or with the notice of such special meet- ing as the case may be; that the meeting had ratified the same; and the number of vestrymen so decided on. Such certificate shall be filed in the office of the clerk of the county in which the original certificate of incorporation is filed and recorded, and such change in the number of vestrymen shall take effect at the time of the next annual election thereafter. If the number of vestrymen be thereby increased, then, in addition to the number of vestrymen to be elected at such annual election, one-third of such increased number of vestry~ men shall be elected to hold office for one year thereafter, one-third of 649 Reuieious Corporations Law. such increased number shall be elected to hold office for two years thereafter, and one-third of such increased number shall be elected to hold office for three years thereafter. If the number of vestrymen by such change be reduced, such reduction shall not affect the term of office of any vestryman duly elected, and at such next annual election and at each annual election thereafter, one-third of such reduced number of vestrymen shall be elected to hold office for three years. § 45. Changing date of annual election, number and terms of office of vestrymen and terms of office of churchwardens in Protestant Episcopal churches heretofore incorporated. If the vestry of a Protestant Episcopal parish, heretofore incorpo- rated, shall by resolution, recommend that the date of the annual elec- tion be changed to a secular day in the week beginning with the first Sunday in Advent, or that the number of vestrymen be changed to three, six, nine, twelve, fifteen, eighteen, twenty-one or twenty-four, and that the terms of office of the churchwardens be changed so that one warden shall be elected annually, notice of such recommendation shall be included in the notice of the next annual election of such parish, or in the notice of a special meeting to be held not less than six months before the time fixed for holding the next annual election thereafter, and be submitted to such annual or special meeting. If such recommendation be ratified by such meeting, the presiding officer thereof and at least two qualified voters present thereat, shall execute and acknowledge a certificate setting forth such resolution of the vestry ; the fact that notice thereof had been given with the notice of the annual election, or with the notice of the special meeting, as the case may be; that such meeting had ratified the same; the date determined upon for the annual election of the parish; the number of vestrymen so decided on; and the fact that the meeting determined to thereafter elect churchwardens, so that the term of one warden shall expire annually. Such certificate shall be filed in the office of the clerk of the county in which the original certificate of incorporation is filed and recorded. If the meeting determine to change the date of the annual election, the next annual election shall be held on the day in the week beginning with the first Sunday in Advent, deter- mined on at such meeting, and the terms of the vestrymen and church- wardens which, pursuant to law, would expire at the next annual election shall expire and their successors shall be elected on such day. If the meeting determine to change the number of vestrymen and manner of electing wardens and vestrymen, there shall be elected at the first annual election thereafter, one-third of the number of vestry- men so determined on, to hold office for three years; one-third thereof 650 Rexieious Corporations Law. to hold office for two years; and one-third thereof to hold office for one year; and one churchwarden to hold office for one year, and one to hold for two years ; and thereafter at the annual election there shall be elected one-third of the number of vestrymen determined on at such meeting and one churchwarden. Any Protestant Episcopal parish, heretofore incorporated, which has changed the number of its vestry- men and the manner of electing wardens and vestrymen pursuant to the provisions of this section, may make further changes in the num- ber of its vestrymen in the manner provided in section forty-four of this chapter. § 46. Changing the qualifications of voters and the qualifications of wardens and vestrymen, If the vestry of a Protestant Episcopal parish heretofore incorpo- rated shall by resolution recommend that the qualifications of voters and the qualifications of wardens and vestrymen be changed to con- form in both cases to the requirements of section forty-three of this chapter, notice of such recommendation shall be included in the notice of the next annual election of such parish, and be submitted to the meeting. If such recommendation be ratified by such meeting the pre- siding officer thereof and at least two qualified voters present thereat shall execute and acknowledge a certificate setting forth such resolution of the vestry, the fact that notice thereof had been given with the notice of such annual election, and that the meeting had ratified the same. Such certificate shall be filed in the office of the clerk of the county in which the original certificate of incorporation is filed and recorded. | ARTICLE 4. PRESBYTERIAN CHURCHES. Section 60. Application of this article. 61. Creation and termination of pastoral relation. 62. Worship. 63. Incorporation of unincorporated Presbyterian churches and decision as to system of incorporation and gov- ernment. 64. Changing system of trustees. 65. Corporate meetings. 66. Organization and conduct of corporate meetings; quali- fications of voters thereat. 651 Rexiatious Corporations Law. Section 67. Changing date of annual corporate meetings. 68. Changing number of trustees. 69. Trustees, their meetings, vacancies and filling thereof, their powers. 70. Definitions. § 60. Application of this article. This article applies only to a Presbyterian church in connection with the general assembly of the Presbyterian church in the United States of America. § 61. Creation and termination of pastoral relation. The election, calling, settlement, installation, dismissal, removal, translation, constituting or dissolving of the pastoral relation, or fixing or changing of the salary of a minister or pastor of a Presby- byterian church in connection with the general assembly of the Presbyterian church in the United States of America, or taking any action for or toward any such purpose, and the calling and conduct of a meeting of any such church for any such purpose, and the quali- fication of voters at any such meeting, are not authorized or regulated or controlled by any provision of this chapter, but the same shall be in all respects, done, and reanlaird, and any meeting therefor called, conducted, and controlled, only in accordance with the laws, regu- lations, practice, discipline, books of government, rules and usages of the ecclesiastical governing body of such church and of the Presby- terian church in the United States of America, except that the salary of any such minister may be increased at any corporate meeting of any such church. § 62. Worship. Nothing in this chapter contained shall authorize the fixing or changing of the times, nature or order of public or social or other wor- ship of any Presbyterian church, in any other manner, or by any other authority, than in the manner and by the authority provided in the laws, regulations, practice, discipline, rules and usages of the Presby- terian religious denomination or ecclesiastical governing body, with which such church is connected. § 63. Incorporation of unincorporated Presbyterian churches and decision as to system of incorporation and government. A meeting for the purpose of incorporation of an unincorporated Presbyterian church in connection with the Presbyterian church in the United States of America, must be called and held in pursuance of the provisions of this article. 652 Rericiots CosroratioNs Law. 1. The notice aiid call of such meeting shall be in writing, and shall state in substance, that a meeting of such unincorporated church. will be held at its usual place of worsliip at a specified day and hour for the purpose of incorporating such church and designating the trus- tees thereof. The notice must bé signed by at least six persons of full age who are then members in good and regular standing of such church by admission into full communion or membership theiewith, in accordance with the rules and regulations of such church, and of the goverhing ecclesiastical body of the denioniination or order, to which the church belongs: A copy of stich notice shall be posted con- spicuously on the outside of the main entrance to such place of wor- ship, at least fifteen days before the day so specified for such meeting, and such notice shall be publicly read at each of the two next preced- ing regular meetings of such whincorporated éhureli for public wor- ship, at least one week apart, at morning service, if such service be held on Sunday, by the first named of the following persons who is present thereat; to wit: 'The minister of such church, the officiating minister thereof, the elders thereof in the order of theit age beginning with the oldest, the deacons of the chiirch in the order of their age beginning with the oldest, or by any person qualified to sign such Tiotice. 2. At the meeting for incorporation held iti pursuance of such notice, the following persons, and no others, shall be qualified voters, to wit: All nersons of full age, who are then methbets, in good and regular standing of such church by admission into full commutiion or membership therewith, ii accotdance with the rules and regulations thereof, and of the governing ecclesiastical body of the denomination or order to which the church belongs: The presence of a majority of such qualified voters, at least six iti number, shall be necessary to con- stitute a quorum of such meetitig. The action of the meeting upon atty matter or question shall be decided by a majority of the quali- fied voters voting thereon, a quorum beiig present. 3. The first nattied of the followitig petsdns who is presetit at such teetitig shall preside thereat, to wit: The wiinister of the church, the officiating minister thereof, the elders thereof in the order of theit age, begithing with the oldest, the deacons thereof in the order of their age, beginning with the oldest. The presiding officer of the meeting shall receive the votes, be the judge of the qualifications of voters, and declare the restilt of the votes cast on any matter. Nothing contained in this section, or in this chapter, shall prevent the qualified voters at any such meeting, from choosing another person, 4 qualified voter, 653 Renieious Corporations Law. to preside at such meeting, other than the person or officer above designated. 4. The first business of such meeting after its organization, shall be to determine whether such church shall be incorporated, and if so, the name of such church, and whether its temporalities shall be man- aged by the spiritual officers of such church as the trustees thereof, or whether its temporalities shall be managed by trustees to be elected by the church. 5. If such meeting shall determine that such church shall be in- corporated and its temporalities managed by the spiritual officers of such church as the trustees thereof, then the meeting shall also de- termine whether by virtue of their office, the deacons only of such church, or the pastor, ruling elders and deacons of such church, or the pastor and ruling elders of such church shall manage its tempo- talities, and be the trustees of such corporation. 6. If such meeting shall determine that such church shall be in- corporated and its temporalities managed by trustees to be elected by the church, it shall further determine the number of the trustees of such church, which shall not be less than three nor more than nine, and shall further determine the date not more than fifteen months thereafter on which the first annual election of the trustees thereof after such meeting shall be held, and such meeting shall elect from the persons qualified to vote at such meeting, one-third of the number of trustees so decided on who shall hold office until the first annual election of trustees thereafter, one-third of such number of trustees to hold office until the second annual election of trustees thereafter, and one-third of such number of trustees to hold office until the third annual election of trustees thereafter. %. If any such meeting shall determine that such church shall incorporate in pursuance of this article, the presiding officer and at least two other persons present at such meeting, shall execute, acknowl- edge and cause to be filed and recorded, as provided in this chapter, a certificate of incorporation. Such certificate of incorporation shall state the name of the proposed corporation: the county and town, city or village, where its principal place of worship is or is intended to be located ; the fact that a meeting of such church duly called decided that such church be incorporated, also the determination of such meet- ing of all the matters required in this article to be determined by such meeting, and, as the case shall be, the names of the persons elected as trustees, and the term for which each was elected, or the names of the spiritual officers and their offices, who, by the determination of such meeting, are by virtue of their office to be trustees of such corpo- 654 Retigious Corporations Law. ration. On filing such certificate such church shall be a corporation by the name stated therein, and the officers determined upon by the meeting for incorporation and their successors in office, by virtue of their offices, if they be spiritual officers of such church, ‘shall be the trustees of such corporation, or if by said meeting it was determined that the trustees should be elected as such, then such as were 80 elected by said meeting as trustees, and their successors in office shall be the trustees of such corporation. § 64. Changing system of trustees. 1. If the trustees of an incorporated Presbyterian church in connec- tion with the Presbyterian church in the United States of America, shall at any time be elective as trustees and not trustees by virtue of being spiritual officers, the church may, at an annual corporate meet- ing if notice thereof be given with the notice of such meeting, determine that he deacons thereof, or the pastors, the ruling elders and the deacons thereof or the pastor and the ruling elders thereof, shall thereafter constitute the trustees thereof, and thereupon the presiding officer of such meeting and at least two other persons present thereat, shall sign, acknowledge and cause to be filed and recorded, a certificate stating the fact of such determination, the names of the officers determined upon to be the ex officio trustees thereof ; and thereon the terms of office of such elective trustees shall cease, and the officers determined upon by such corporate meeting, and their successors in office shall, by virtue of their respective offices, be the trustees of such church. 2. If, at any time, the spiritual officers of an incorporated Presby- terian church in connection with the Presbyterian church in the United States of America, which officers by virtue of their offices con- stitute the trustees thereof, shall determine to submit to a meeting of such church corporation, the question whether the trustees of such church shall be thereafter elective as such trustees, they shall cause a special corporate meeting of such church to be called and held in the manner provided in section sixty-five of this chapter, and such corpo- rate meeting shall determine, whether the trustees of such church shall thereafter be elective in pursuance of this article, and also whether the number of such trustees shall be three, six or nine, and the date of the annual corporate meeting of the church. If such meet- ing shall determine that such trustees shall thereafter be elective as such trustees, and the number of such trustees, and the date of the first annual corporate meeting of the church, the presiding officer thereof and at least two other persons, present and voting thereat, 655 Retigtous Corporations Law. shall sign, acknowledge and cause to be filed and recorded in the office of the clerk of the county in which the certificate of incorporation of such church is filed, a certificate of such determination of such meet- ing ; and thereater the trustees of such church shall be elective itt pur- suance of this article. At the next annual corporate meeting after the filing of such certificate, one-third of the number of trustees so de- termined on, shall be elected to hold office fot one year, one-third for two years, and one-third for three yeats, and the officers of such church who by virtue of their offices have been trustees of such church, shall then cease to be such trustees, and thereafter the trustees of such church and their successors shall be elective as such trustees as in this article provided. At each subsequent annual corporate meeting of such church, one-third of the number of trustees so determined on shall be elected to hold office for three years. § 65. Corporate meetings. 1. In evety incorporated church to which this article applies and in which the trustees thereof a such are elective, there shall be held an annual corporate meeting. Such annual corporate meeting of every incorporated church to which this article is applicable, shall be held at the time and place fixed by or in pursuatice of law therefor, if such time and place be so fixed, arid otherwise, at a tiie and place to be fixed by its trustees. 2. A special corporate meeting of any such church may be called by trustees thereof on their own motion, and must be so called on the written request of at least ten qualified voters of such church, and shall be called and notice thereof given in the same manner as for an annual corporate meeting. 3. The trustees shall cause notice of the time and place of its cor- porate meetings to be given at a regular meeting of the church for public worship, at morning service, if such service be held, on each of the two successive Sundays next preceding such meeting, if public worship be had thereon, or otherwise on each of two days, at least one week apart, next preceding such meeting; or if no such public worship be held during such period, by conspicuously posting such notice, in writing, upon the outer entrance to the principal place of worship of such church. Such notice shall be given by the minister of the church, if there be one, or by the officiating ministet thereof, if there be one, or by any officer of such church. If such notice be of an annual cor- porate meeting it shall specify the names of the trustees whose suc- cessors are to be elected thereat; if such notice be of a special corpo- rate meeting, it shall specify the particular business to be transacted 656 Rexreious Corporations Law. thereat, and no other business shall be transacted at such special cor- porate meeting. 4. Whenever jn any such ingorporatd church, by virtue of their offices, any of the spiritual officers thereof are the trustees thereof, they may in their discretion call special corporate meetings of such incorporated church; and in such case such meeting shall be called by the same notice pyblished or posted in the game manner as herein pro- vided for the notice of such a meeting by the trustees of such a church elected as such; and in each sych case such notice must specify the particular business to be transacted at such meeting, and no other business shall be transacted at such special corporate meeting. § 6G. Organization ang conduct of corporate meetings; qualifica- tions of voters thereat. 1. At a corporate meeting of an incorporated church to which this article is applicable the following persons and no others shall be quali- fied voters, to wit: All persons of full age who are then members in good and regular standing of such church by admission into full communion and membership therewith, in accordance with the rules and regulations thereof, and of the governing ecclesiastical body, of the denomination to which the church belongs, or who have been stated attendants on divine worship in such chureh and have regularly contributed to the financial support thereof during the year next preceding such meeting. 2. The presence at any corporate meeting of an incorporated church of at least six persons qualified to vote thereat shall be necessary to constitute a quorum. ‘The action of the meeting upon any matter er question shall be decided by a majority of the qualified voters voting thereon, a quorum being present. 3. The first named of the following persons who is present at any corporate meeting of any incorporated church shall preside thereat, to wit: The minister of such church, the officiating minister thereof, the officers thereof in the order of their age, beginning with the oldest ; any qualified voters elected therefor at the meeting. 4. Nothing contained in this article shall prevent the qualified voters at any meeting held pursuant to this article from choosing a person to preside at any corporate meeting of any incorporated chureh, other than the person or officer designated in this article to preside thereat, and when such other person shall be chosen he shall exercise all the powers in this artiele conferred upon the presiding officer of such meeting. 5. The presiding officer of a corporate meeting shall receive the 657 Renieious Corporations Law. votes, be the judge of the qualifications of voters, and declare the result of the votes cast on any matter. The polls of an annual corpo- rate meeting shall continue open for one hour, or until all qualified voters present shall have had a full opportunity to vote, and longer in the discretion of the presiding officer, or if required by a majority of the qualified voters present. 6. At each annual corporate meeting successors to those trustees whose terms of office then expire shall be elected from the qualified voters by ballot for a term of three years thereafter. § 67. Changing date of annual corporate meetings. An annual corporate meeting of an incorporated church to which this article is applicable, may change the date of its annual meeting thereafter. If such date shall next thereafter occur less than six months after the annual meeting at which such change is made the next annual meeting shall be held one year from such next recur- ring date. For the purpose of determining the terms of office of trus- tees, the time between the annual meeting at which such change is made and the next annual meeting thereafter shall be reckoned as one year. § 68. Changing number of trustees. An incorporated church to which this article is applicable, may, at an annual corporate meeting, change the number of its trustees to three, six or nine, and classify them so that the terms of one-third expire each year. No such change shall affect the terms of the trus- tees then in office, and if the change reduces the number of trustees if shall not take effect until the number of trustees whose terms of office continue for one or more years after an annual election, is less than the number determined upon. Whenever the number of trustees so holding over is less than the number so determined on, trustees shall be elected in addition to those so holding over sufficient to make the number of trustees for the ensuing year equal to the number so de- termined on. The trustees so elected up to and including one-third of the number so determined on, shall be elected for three years, the remainder up to and including one-third of the number so determined on for two years and the remainder for one year. § 69. Trustees, their meetings, vacancies and filling thereof, their powers. 1. Two trustees of an incorporated church, to which this article is applicable, may call a meeting of such trustees by giving at least twenty-four hours’ notice thereof personally or by mail to the other 658 Rewiaious Corporations Law. trustees. A majority of the trustees lawfully convened shall consti- tute a quorum for the transaction of business. In case of a tie vote at a meeting of the trustees, the presiding otficer of such meeting shall, notwithstanding he has voted once, have an additional casting vote. 2. If any trustee of an incorporated church to which this article is applicable, declines to act, resigns or dies, or having been a member of such church, ceases to be such member, or not having been a member of such church, ceases to be a qualified voter at a corporate meeting thereof, his office shall be vacant and such vacancy may be filled by the remaining trustees until the neXt annual corporate meeting of such church, at which meeting the vacancy shall be filled for the un- expired term. 3. The trustees of an incorporated church to which this article is applicable shall have the custody and control of all the temporalities and property belonging to the.corporation and of the revenues from such property, and shall administer the same in accordance with the discipline, rules, usages, laws, and book of government of the religious denomination or ecclesiastical governing body with which the church is connected, and with the provisions of law relating thereto, for the support and maintenance of the church corporation or providing the members thereof at a corporate meeting thereof shall so authorize, of some religious, charitable, benevolent, or educational object, conducted by such church, or connected with it, or with the denomination with which it is connected, and they shall not use such property or revenue for any other purpose or divert the same from such uses. 4. By-laws, or directions, adopted at any corporate meeting of any such incorporated Presbyterian church shall control the subsequent action of its trustees, as to the temporalities and property or revenues therefrom, and as to the care thereof, and changes in either therof and disposition thereof. 5. The words “ temporalities,” “ property,” “revenue” and “ reve- nues,” as used in this section, or elsewhere in this article, shall not be construed to include the contributions in such church or elsewhere for benevolent or other purposes, which shall be contributed and paid to the pastor or pastors, ruling elders, the church session, or the dea- cons of any such church, either in the church services or otherwise, to be distributed, or used, or administered, by them, or any, or either of them, nor to any funds or property devised, bequeathed or contrib- uted, to be administered or expended by such pastor or pastors, ruling elders, church session, deacons or other spiritual officers of such church. 6. The trustees of any such church shall have no power, without 659 Reticious Corporations Law. the consent of a corporate meeting, to incur debts beyond what is necessary for the care of the property of the corporation. § 70. Definitions. The words “ spiritual officers,” as used in this article, include the pastor or pastors, the ruling elders, and the deacons, of any church to which this article is applicable. ARTICLE 5. s ROMAN CATHOLIC AND GREEK CHUBOHES. SECTION 90. Incorporation of Roman Catholic and Greek churches. 91. Government of incorporated Roman Catholic and Greek churches. : 92. Division of Roman Catholic parish ; disposition of prop- erty. § 90. Incorporation of Roman Catholic and Greek churches. An unincorporated Roman Catholic church, or an unincorporated Christian Orthodox Catholic church of the Eastern Confession, in this state may become incorporated as a church by executing, acknowledg- ing and filing a certificate of incorporation, stating the corporate name by which such church shall be known and the county, town, city or village where its principal place of worship is, or is intended to be, located. A certificate of incorporation of an unincorporated Roman Catholic church shall be execyted and acknowledged by the Roman Catholic archbishop or bishop, and the vicar-general of the diocese in which its place of worship is, and by the rector of the church, and by two lay- men, members of such church who shall be selected by such officials, or by a majority of such officials. A certificate of incorporation of an unincorporated Christian Orthodox Catholic church of the Eastern Confession shall be exe- cuted and acknowledged by the envoy extraordinary and minjster plenipotentiary, and the consul-general of Russia to the United States, then acknowledged and received as such by the United States. On filing such certificate such church shal] be a corporation by the name stated in the certificate. § 91. Government of incorparated Roman Catholic and Greek churches. The arehbishop or bishop and the yicar-general of the diocese to 660 Rerieious Cerporstions Law. which any incorporated Roman Catholic church belongs, the rector of such church, and their successors in office shall, by virtue of their offices, he trustees of such church. Two laymen, members of such incorporated church, selected by such officers or by a majority of them, shal] also be trustees of such incorporated church, and such officers and such laymen trustees shall together constitute the board of trustees thereof, The two laymen signing the certificate of incorpo- ration of an incorporated Roman Catholic church shall be the two Jaymen trustees thereof during the first year of its corporate existence. The term of office of the two laymen trustees of an incorporated Roman Catholic church shall be one year, Whenever the office of any such layman trustee shall become vacant by expiration of term of office or otherwise, his successor shall be appointed from members of the church, by such officers or a majority of them. No act or pro- ceeding of the trustees of any such incorporated church shall be valid without the sanction of the archbishop or bishop of the diocese to which such church belongs, or in case of their absence or inability to act, without the sanction of the yicar-general or of the administrator of such diocese. The envoy extraordinary and minister plenipotentiary, and the ‘econsul-general of Russia to the United States, acknowledged and re- ceived as such, and their successors in office shall, by virtue of office, be the trustees of every incorporated Christian Orthodox Catholic church of the Eastern Confession in this state, The trustees of any ‘such church shall have power to fix and change the salary of the rector and his assistant, appointed or commissioned according to the rules and usages of the denomination to which such church belongs. § 92. Division of Roman Catholic parish; disposition of property. Wherever a Roman Catholic parish has been heretofore or shall hereafter be duly divided by the Roman Catholic bishop having juris- diction over said parish, and the original Roman Catholic church cor- poration is given one part of the old parish, and a new or second Roman Catholie church corporation is given the remaining part of the old parish, and it further appears that by reason of the said division the original Roman Catholic church corporation holds title to real property situate within the part of the old parish that was given to the new or second Roman Catholic church corporation, then the said Roman Cathelic bishop or his successor shall have the right and power, of himself, independently of any action or consent on the part of the trustees of the original Roman Catholie church corporation, to trans- fer the title of the said real property, with or without valuable con- 66] Retieious Corrorations Law. sideration, to the said new or second Roman Catholic church corpo- ration. Said transfer shall be made by the said Roman Catholic bishop or his successor after having complied with the requirements of the code of civil procedure in the same manner as the trustees of any religious corporation are compelled to do before making a trans- fer of church property. If a valuable consideration is paid for the transfer the same shall be received by the said Roman Catholic bishop or his successor and distributed between the said original Roman Catholic church corporation and the new or second Roman Catholic church corporation in such proportions as in the discretion of the said bishop or his successor may seem proper. ARTICLE 6. REFORMED DUTCH, REFORMED PRESBYTERIAN AND LUTHERIAN CHURCHES. Szction 110. Decision by a Reformed Dutch or Reformed Presby- terian church as to system of incorporation and government. 111. Decision by Lutheran church as to system of incorpo- ration and government. 112. Incorporation of Reformed Dutch, Reformed Presby- terian and Evangelical Lutheran churches under this article. 113. Consistory of a Reformed church in America; minister, how chosen. 114. Reformed churches in America, changing system of choosing trustees; minister, how chosen. 115. Reformed Presbyterian churches, changing system of choosing trustees; pew rents and minister’s salary. 116. Evangelical Lutheran church, changing system of elect- ing trustees. § 110. Decision by a Reformed Dutch or Reformed Presbyterian church as to system of incorporation and government. The minister or ministers, if there be any, and the elders and dea- cons of an unincorporated church in connection with the Reformed church in America, the true Reformed Dutch church in the United States of America, or with the Reformed Presbyterian church, may 662 Retiaious Corporations Law. determine to incorporate such church in pursuance of this article, or ‘to call a meeting of such unincorporated church for the purpose of deciding whether such church shall be incorporated in pursuance of article ten of this chapter, entitled “Special provisions for the in- corporation and government of churches of other denominations.” If such ministers, elders and deacons determine to call such meet- ing for such purpose, then such church may be incorporated and shall be governed after its incorporation in pursuance of the provisions of article ten of this chapter, except such provisions thereof as are ap- plicable to churches of a single denomination only, and except that the notice of the meeting for incorporation shall be signed by such minis- ters, elders and deacons or a majority of them, and no other signa- tures thereto shall be necessary to its validity ; and, if it be a Reformed church in America, it shall, after incorporation, be governed by such of the provisions of this article as relates to its consistory and to the choice of its minister. §$ 111. Decision by Lutheran church as to system of incorporation and government. A meeting for the purpose of incorporating an unincorporated Evangelical Lutheran church must be called and held in pursuance of the provisions of article ten of this chapter, except that the first business of such meeting after its organization, shall be to determine whether such church shall be incorporated and governed in pursuance of this article, or in pursuance of article ten of this chapter. If such meeting determines that such church shall be incorporated and gov- erned in pursuance of this article, then no further proceedings shall be taken in pursuance of article ten, and such church may be incor- porated and shall be governed after its incorporation in pursuance of the provisions of the following sections of this article, except such provisions as are applicable only to churches of a different denomi- nation; and the certificate of incorporation shall recite such deter- mination of such meeting. If such meeting determine that such church shall be incorporated and governed in pursuance of article ten of this chapter, then this article shall not be applicable thereto, but such church may be incorporated and shall be governed after its in- corporation in pursuance of the provisions of article ten of this chapter, except such provisions as are applicable to churches of a single religious denomination only. 8 112. Incorporation of Reformed Dutch, Reformed Presbyterian and Evangelical Lutheran churches under this article. If any unincorporated church in connection with the Reformed 663 Rexietous Corporations Law. church jn America, the true Reformed Dutch church in the United States of America, the Reformed Presbyterian church, or with the Evangelical Lutheran church, determine to incorporate in pursuance of this article, the minister or ministers and the elders and deacons thereof shall execute, acknowledge and cause to be filed and recorded, a certificate in pursuance of this article. The deacons of a Reformed Presbyterian church may alone sign such certificate if authorized so to do by such church, Such certificate of incorporation shall state the name of the proposed corporation, the county and town, city or village where its principal place of worship is or is intended to he located, and, if it be an Evangelical Lutheran church, the fact, that a meet- ing of such church duly called decided that it be incorporated under this article. If it be signed hy the deacons of a Reformed Presby- terian church, it shall state that they were authorized so to do by such church. On filing such certificate such church shall he a corporation by the name stated therein, and the minister or ministers, if any, and the elders and deacons of such church shall by virtue of their offices be the trustees of such corporation, except that if it be a Reformed Presbyterian church, the certificate of incorporation of which shall have been, in pursuance of law, signed by its deacons only, the deacons of such church shall, by virtue of their offices, be the trustees of such corporation. § 113. Consistory of a Reformed church in America; minister, haw chosen. Any church in connection with the Reformed church in America, the choice or election of the members of whose consistory is not subject to the ecclesiastical rules or jurisdiction of such Reformed church in America, shall, if the consistory so determine, be subject to such rules and jurisdiction; and thereafter the choice of the members of the consistory shall be in accordance with such rules and practices. If any such church be incorporated under article ten of this chapter, or if its trustees be elective in pursuance of such article, its board of trustees and its consistory shall act concurrently in the choice of its minister. § 114. Reformed churches in America, changing system of choosing trustees; minister, how chosen. If the ministers, elders and deacons who, at any time, by virtue of their offices, constitute the trustees of any Reformed church in America, or of any true Reformed Dutch church jn the United States of America, determine that the trustees of such church shal] there- 664 Retigiovs Corporations Law. after be elective in piirsiance of article ten of this chapter, and shall determine whether the number of such trustees shall be three, six or nine, and the date of the annual corporate meeting of the church, they may sign, acknowledge and cause to be filed and recorded in the office of the clerk of the county in which the certificate of incorpora- tion of such church is filed or recorded; a certificate of such de- terminations. Thereafter the trustees of such church shall be elective in pursuance of the provisions of article ten of this chapter, relating to the election of trustees of incorporated churches. At the next annual corporate meeting after the filing of such certificate, one-third of the number of trustees so determined on shall be elected to hold office for one year, one-third for two years and one-third for three years, and the minister, elders and deacons shall cease to be the trustees of such church. At each subsequent annual corporate meeting of such church, one-third of the number of trustees so determined on shall be elected to hold office for three years. If the trustees of an in- corporated Reformed church in America or of a true Dutch Re- formed church in the United States of America are at any time elective, in pursuance of article ten of this chapter, or otherwise, the board of trustees and the consistory thereof may concurrently determine that the minister or ministers, if any, and the elders and deacons of such church shall constitute the trustees thereof. There- on the president and clerk of the consistory and the president and clerk of the board of trustees shall sign and acknowledge and cause to be filed and recorded in the office of the clerk of the county in which the original certificate of incorporation is filed or recorded, a certificate of such determination, stating the names of such ministers, elders and deacons. On so filing and recording such certificate, such board of trustees shall be dissolved, and the minister or ministers, and elders and deacons of such church, and their successors in office shall constitute the trustees of such church. § 115. Reformed Présbyterian churches, changing system of choos- ing triistees; péw rents and minister's salary. If any incorporated Reformed Presbyterian church, at a imeeting of the church or congregation, detertiine that the dédcons of stich church shall be the trustees thereof, then thé deacotis of such chiitch actively engaged in the exercise of theit offices therein, and their swécessors in office, shall, by virtue of their respective offices, be thé trtistecs of stich chutch. The salary of the ministet atid the pew rents in atiy such church shall be fixed by the vote of the congregation, and the trustees slidll Hot fix of change the saine. 665 Reuieious Corporations Law. § 116. Evangelical Lutheran church, changing system of electing trustees. If the trustees of an incorporated Evangelical Lutheran church shall at any time be elective in pursuance of article ten of this chapter, the church may, at an annual corporate meeting, if notice thereof be given with the notice of such meeting determine that the minister or ministers and elders and deacons thereof shall thereafter constitute the trustees thereof, and thereon the trustees of such church shall sign, acknowledge and cause to be filed and recorded, a certificate stating the fact of such determination, and the name of the minister or ministers, if any, and of the elders and deacons of such church; and thereon the terms of office of such elective trustees shall cease, and the minister or ministers and the elders and deacons of such church, and their successors in office shall, by virtue of their respective offices, be the trustees of such church. If, at any time, the officers of an incorporated Evangelical Lutheran church which officers by virtue of their cffices constitute the trustees thereof shall determine to submit to a meeting of such church corporation, the question whether the trustees of such church shall be thereafter elective in pursuance of article ten of this chapter, they shall cause a corporate meeting of such church to be called and held in the manner provided in sections one hundred and ninety-four and one hundred and ninety- five of this chapter, and such corporate meeting shall determine whether the trustees of such church shall thereafter be elective in pursuance of article ten of this chapter, and also whether the number of such trustees shall be three, six or nine, and the date of the annual corporate meeting of the church. If such meeting shall determine that such trustees shall thereafter be elective, the presiding officer thereof and at least two other persons present and voting thereat, shall sign, acknowledge and cause to be filed and recorded in the office of the clerk of the county in which the certificate of incorpo- ration of such church is filed, a certificate of such determination of such meeting; and thereafter the trustees of such church shall be elective in pursuance of article ten of this chapter. At the next annual corporate meeting after the filing of such certificate, one-third of the number of trustees so determined on shall be elected to hold office for one year, one-third for two years, and one-third for three years, and the officers of such church who by virtue of their offices have been trustees of such church, shall then cease to be such trustees, and thereafter article ten of this chapter shall apply to such church. At each subsequent annual corporate meeting of such church, one-third of the number of trustees so determined on shall be elected to hold office for three years. 666 Reuigious Corporations Law. ARTICLE 7%. BAPTIST CHURCHES. SEotion 130. Notice of meeting for incorporation. 131. The meeting for incorporation. 132. The certificate of incorporation. 133. Time, place and notice of corporate meetings. 134. Organization and conduct of corporate meetings; qualifications of voters thereat. | 135. Changing date of annual corporate meetings. 136. Changing number of trustees. 137. Meetings of trustees. 138. The creation and filling of vacancies among trustees of such churches. 139. Control of trustees by corporate meetings of such churches ; salary of minister. 140. Transfer of property to Baptist corporations. § 130. Notice of meeting for incorporation. Notice of a meeting for the purpose of incorporating an unincor- porated Baptist church shall be given as follows: The notice shall be in writing, and shall state, in substance, that a meeting of such unincorporated church will be held at its usual place of worship at a specified day and hour, for the purpose of incorporating such church, electing trustees thereof, and selecting a corporate name therefor. The notice must be signed by at least six persons of full age, who are then members in -good and regular standing of such church by ad- mission into full communion or membership therewith. A copy of such notice shall be publicly read at a regular meeting of such unin- corporated church for public worship, on the two successive Sundays immediately preceding the meeting, by the minister of such church, or a deacon thereof or by any person qualified to sign such notice. § 131. The meeting for incorporation. At the meeting for incorporation, held in pursuance of such notice, the qualified voters, until otherwise decided as hereinafter provided, shall be all persons of full age, who are then members, in good and regular standing of such church, by admission into full communion or membership therewith. At such meeting the presence of a majority of such qualified voters, at least six in number, shall be necessary to 667 Renieious Corporations Law, constitute a quorum, and all matters or questions shall be decided by a majority of the qualified voters voting thereon. There shall be elected at said meeting from the qualified voters then present, a presiding officer, a clerk to keep the record of the procedings of the meeting and two inspectors of election to receive the ballots cast. The presiding officer and the inspectors shall declare the result of the ballots cast on any matter, and shall be the judges of the qualifications of voters. If the meeting shall decide that such unincorporated church shall become incorporated, the meeting shall also decide upon the name of the proposed corporation, the number of the trustees thereof, which shall be three, six or nine, and the date, not more than fifteen months thereafter, on which the first annual election of. the trustees thereof shall be held, and shall decide also whether those who, from the time of the formation of such church or during the year preceding the meeting for incorporation, have statedly wor- shipped with such church and have regularly contributed to the financial support thereof, shall be qualified voters at such meeting for incorporation, and whether those who during the year preceding the subsequent corporate meetings of the church shall have statedly worshipped with such church and shall have regularly contributed to the financial support thereof, shall be qualified voters at such cor- porate meetings. Such meeting shall thereupon elect by ballot from the persons qualified to vote thereat, one-third of the number of trustees so decided on, who shall hold office until the first annual election of trustees thereafter, and one-third of such number of trus- tees who shall hold office until the second annual election of trustees thereafter, and one-third of such number of trustees who shall hold office until the third annual election of trustees thereafter, or until the respective successors of such trustees shall be elected. § 132. The certificate of incorporation. If the meeting shall decide that such unincorporated church shall become incorporated, the presiding officer of such meeting and the two inspectors of election shall execute a certificate setting forth the name of the proposed corporation, the number of the trustees thereof, the names of the persons elected as trustees and the terms of office for which they were respectively elected and the county and town, city or village in which its principal place of worship is or is intended to be located. On the filing and recording of such certificate after it shall have been acknowledged or proved as hereinbefore provided, the persons qualified to vote at such meeting and those persons who shall thereafter, from time to time, be qualified voters at the corporate 668 Reziaious Corporations Law. meetings thereof, shall be a corporation by the name stated in such certificate, and the persons therein stated to be elected trustees of such church shall be the trustees thereof, for the terms for which they were respectively elected and until their respective successors shall be elected. § 133. Time, place and notice of corporate meetings. The annual corporate meeting of every incorporated Baptist church shall be held at the time and place fixed by or in pursuance of law therefor, if such time and place be so fixed, and otherwise, at a time and place to be fixed by its trustees. A special corporate meeting of any such church may be called by the board of trustees thereof, on its own motion, and shall be called on the written request of at least ten qualified voters of such church. The trustees shall cause notice of the time and place of its annual corporate meeting, and of the names of any trustees whose successors are to be elected thereat; and, if a special meeting, of the business to be transacted thereat, to be publicly read by the minister of such church or any trustee thereof at a regular meeting of the church for publie worship, on the two succes- sive Sundays immediately preceding such meeting. § 134. Organization and conduct of corporate meetings; qualifica- tions of voters thereat. At a corporate meeting of an incorporated Baptist church the qualified voters shall be all persons of full age, who are then members of such church in good and regular standing by admission into full communion or membership therewith, or who have statedly wor- shipped with such church and have regularly contributed to the financial support thereof during the year next preceding such meet- ing; but any incorporated Baptist church may at any annual corporate meeting thereof, if notice of the intention so to do has been given with the notice of such meeting, decide that thereafter only members of such church of full age and in good and regular standing by ad- mission into full communion or membership therewith shall be quali- fied voters at the corporate meetings. At such corporate meetings the presence of at least six persons qualified to vote thereat shall be necessary to constitute a quorum, and all matters or questions shall be decided by a majority of the qualified voters voting thereon. There shall be elected at said meeting from the qualified voters then present, a presiding officer, a clerk to keep the records of the proceedings of the meeting and two inspectors of election to receive the ballots cast. The presiding officer and the inspectors of election shall declare the 669 Rexieious Corporations Law. result of the ballots cast on any matter and shall be the judge of the qualifications of voters, At each annual corporate meeting, successors to those trustees whose terms of office then expire, shall be elected by ballot from the qualified voters, for a term of three years thereafter, and until their successors shall be elected. § 135. Changing date of annual corporate meetings. An annual corporate meeting of an incorporated Baptist church may change the date of its annual meeting thereafter. If the date fixed for the annual meeting shall be less than six months after the annual meeting at which such change is made, the next annual meet- ing shall be held one year from the date so fixed. For the purpose of determining the terms of office of trustees, the time between the annual meeting at which such change is made and the next annual meeting thereafter shall be reckoned as one year. § 136. Changing number of trustees. An incorporated Baptist church may, at an annual corporate meet- ing, change the number of its trustees to three, six or nine, or classify them so that the terms of one-third expire each year, provided that notice of such intended change or classification be included in the notice of such annual corporate meeting. No such change shall affect the terms of the trustees then in office, and if the change reduces the number of trustees, elections shall not be held to fill vacancies caused by the expiration of the terms of trustees until the number of trustees equals the number to which the trustees were reduced. Whenever the number of trustees in office is less than the number so determined on, sufficient additional trustees shall be elected to make the number of trustees equal to the number so determined on. The trustees so elected up to and including one-third of the number so determined on, shall be elected for three years, the remainder up to and including one-third of the number so determined on for two years, and the remainder for one year. § 137. Meetings of trustees. Meetings of the trustees of an incorporated Baptist church shall be called by giving at least twenty-four hours’ notice thereof person- ally or by mail to all the trustees and such notice may be given by two of the trustees, but by the unanimous consent of the trustees a meeting may be held without previous notice thereof. A majority of the whole number of trustees shall constitute a quorum for the trans- action of business at any meeting lawfully convened. 670 Rexierous Corporations Law. § 138. The creation and filling of vacancies among trustees of such churches, If any trustee of an incorporated Baptist church declines to act, resigns or dies, or having been a member of such church ceases to be such member, or not having been a member of such church, ceases to be a qualified voter at a corporate meeting thereof, his office shall be vacant, and such vacancy may be filled by the remaining trustees until the next annual corporate meeting of such church, at which meeting the vacancy shall be filled for the unexpired term. § 139. Control of trustees by corporate meetings of such churches; salary of minister. The trustees of an incorporated Baptist church shall have no power to settle or remove a minister or to fix his salary or, without the con- sent of a corporate meeting, to incur debts beyond what is necessary for the administration of the temporal affairs of the church and for the care of the property of the corporation; or to fix or change the time, nature or order of the public or social worship of such church. § 140. Transfer of property to Baptist corporations. Any incorporated Baptist church, created by or existing under the laws of the state of New York, having its principal office or place of worship in the state of New York, or whose last place of worship was within the state of New York, is hereby authorized and empowered, by a vote of two-thirds of its qualified voters present and voting therefor, at a meeting regularly called for that purpose, to transfer and convey any of its property, real or personal, which it now has or may hereafter acquire, to any religious, charitable or missionary cor- poration connected with the Baptist denomination and incorporated by or organized under any law or laws of the state of New York, either solely, or among other purposes, to establish or maintain, or to assist in establishing or maintaining churches, schools, or mission stations or to erect, or assist in the erection of such buildings as may be necessary for any of such purposes, and on or without the payment of any money or other consideration therefor, and upon such transfer or conveyance being made, the title to and the ownership and right of possession of the property so transferred and conveyed shall be vested in and conveyed to such grantee; provided, however, that noth- ing herein contained shall impair or affect in any way, any existing claim upon or lien against any property so transferred or conveyed, or any action at law or legal proceeding, and subject, in respect to the amount of property the said grantee may take and hold, to the re- strictions and limitations of existing laws. 671 Reuicious Corporations Law. ARTICLE 8. CONGREGATIONAL AND INDEPENDENT CHURCHES. SEcTION 160. Notice of meeting for incorporation. 161. The meeting for incorporation. 162. The certificate of incorporation. 163. Time, place and notice of corporate meetings. 164. Organization and conduct of corporate meetings ; qualifications of voters. 165. Changing date of annual corporate meetings. 166. Changing number of trustees. 167. Meetings of trustees. 168. Vacancies among trustees. 169. Limitation of powers of trustees. 170. Election and salary of ministers. 171. Transfer of property. § 160. Notice of meeting for incorporation. Notice of a meeting for the purpose of incorporating an unincor- porated Congregational or Independent church shall be given as fol- lows: The notice shall be in writing, and shall state, in substance, that a meeting of such unincorporated church will be held at its usual place of worship at a specified day and hour, for the purpose of incorporating such church, electing trustees thereof, and selecting a corporate name therefor. The notice must be signed by at least six persons of full age, who have statedly worshipped with such church and have regularly contributed to its support, according to its usages, for at least one year or since it was formed. A copy of such notice shall be publicly read at a regular meeting of such unincorporated church for public worship, on the two successive Sundays im- mediately preceding the meeting, by the minister of such church, or a deacon thereof or by any person qualified to sign such notice. § 161. The meeting for incorporation. At the meeting for incorporation, held in pursuance of such notice, the qualified voters, until otherwise decided as hereinafter provided, shall be all persons of full age who have statedly worshipped with such church and have regularly contributed to its support, according to its usages, for at least one year or since it was formed. At such meeting the presence of. a majority of such qualified voters, at least six in 672 Reurierovs Corporations Law. number, shall be necessary to constitute a quorum, and all matters or questions shall be decided by a majority of the qualified voters voting thereon. The meeting shall be called to order by one of the signers of the call. There shall be elected at such meeting, from the qualified voters then present, a presiding officer, a clerk to keep the record of the proceedings of the meeting and two inspectors of elec- tion to receive the ballots cast. The presiding officer and the in- spectors shall decide the result of the ballots cast on any matter, and shall be the judges of the qualifications of the voters. If the meeting shall decide that such unincorporated church shall become incor- porated, the meeting shall also decide upon the name of the proposed corporation, the number of the trustees thereof, which shall be three, six or nine, and the date, not more than fifteen months thereafter, on which the first annual election of the trustees thereof shall be held; and it may, by a two-thirds vote, decide that all members of the un- incorporated: church, of full age, in good and regular standing, who have statedly worshipped with such church but who have not con- tributed to the financial support thereof, shall also be qualified voters at such meeting, and that such church members, who, for one year next preceding any subsequent corporate meeting, shall have statedly worshipped with such church and have been members thereof in good and regular standing, but have not regularly contributed to the finan- cial support thereof, shall be qualified voters at such corporate meet- ings. Such meeting shall thereupon elect by ballot from the persons qualified to vote thereat one-third of the number of trustees so decided on, who shall hold office until the first annual election of trustees thereafter, one-third of such number of trustees who shall hold office until the second annual election of trustees thereafter, and one-third of such number of trustees who shall hold office until the third annual election of trustees thereafter, or until the respective succes- sors of such trustees shall be elected. Such meeting shall also elect by ballot a clerk of the corporation, who shall hold his office until the close of the next annual meeting. § 162. The certificate of incorporation. If the meeting shall decide that such unincorporated church shall become incorporated, the presiding officer of such meeting and the two inspectors of election shall execute a certificate setting forth the name of the proposed corporation, the number of trustees thereof, the names of the persons elected as trustees, the terms of office for which they were respectively elected and the county and town, city or village in which its principal place of worship is or is intended to be located. 673 Rexieious Corporations Law. On the filing and recording of such certificate, after it shall have been acknowledged or proved as hereinbefore provided, the persons quali- fied to vote at such meeting and those persons who shall thereafter, from time to time, be qualified voters at the corporate meetings thereof, shall be a corporation by the name stated in such certificate, and the persons therein stated to be elected trustees of such church shall be the trustees thereof for the terms for which they were respect- ively elected and until their respective successors shall be elected. § 163. Time, place and notice of corporate meetings. The annual corporate meeting of every church incorporated under this article shall be held at the time and place fixed by its by-laws, or if no time and place be so fixed, then at a time and place to be first fixed by its trustees, but to be changed only by a by-law adopted at an annual meeting. A special corporate meeting of any such’ church may be called by the board of trustees thereof, on its own motion, and shall be called on the written request of at least ten qualified voters of such church. The trustees shall cause notice of the time and place of its annual corporate meeting, and of the names of any trustees whose successors are to be elected thereat, and if a special meeting, of the business to be transacted thereat, to be publicly read by the minister of such church or any trustees thereof at a regular meeting of the church for public worship, on the two successive Sundays immediately preceding such meeting. § 164. Organization and conduct of corporate meetings; qualifica- tions of voters. At every corporate meeting of a church incorporated under this article all persons of full age who, for one year next preceding such meeting, have statedly worshipped with such church and have regu- larly contributed to its financial support, according to its usages, and no others, shall be qualified voters; but, if so decided, by a two-thirds vote at the original meeting or at any annual corporate meeting thereof, after notice of intention so to do has been given with every notice of such meeting, all members of such church of full age and in good and regular standing, by admission into full communion or membership therewith, who have statedly worshipped with such church, for one year next preceding the meeting at which they vote, may also be admitted as qualified voters at corporate meetings. At such corporate meetings, the presence of at least six persons qualified to vote thereat shall be necessary to constitute a quorum; and all matters or questions shall be decided by a majority of the qualified voters voting thereon, except that by-laws can be adopted or amended 674 Reuigious Corporations Law. only by a two-thirds vote. The clerk of the corporation shall call the meeting to order; and under his supervision the qualified voters then present shall choose a presiding officer and two inspectors of election to receive the ballots cast. The presiding officer and the inspectors of election shall declare the result of the ballots cast on any matter and shall be the judges of the qualifications of voters. At each annual corporate meeting, successors to those trustees whose terms of office then expire shall be elected by ballot from the qualified voters, for a term of three years thereafter, and until their successors shall be elected. A clerk of the corporation shall be elected by ballot, who shall hold office until the close of the next annual meeting, and until his successor shall be elected. § 165. Changing date of annual corporate meetings. An annual corporate meeting of any church incorporated under this article may change the date of its subsequent annual meetings. If the date fixed for the annual meeting shall be less than six months after the annual meeting at which such change is made, the next annual meeting shall be held one year from the date so fixed. For the purpose of determining the terms of office of trustees, the time be- tween the annual meeting at which such change is made and the next annual meeting thereafter shall be reckoned as one year. § 166. Changing number of trustees. Any such incorporated church may, at an annual corporate meeting, change the number of its trustees to three, six or nine, classifying them so that the terms of one-third expire each year, provided that notice of such intended change be included in the notice of such annual corporate meeting. No such change shall affect the terms of the trustees then in office; and if the change reduces the number of trustees, elections shall not be held to fill the vacancies caused by the expiration of the terms of trustees, until the number of trustees equals the number to which the trustees were reduced. Whenever the number of trustees in office is less than the number so determined on, sufficient additional trustees shall be elected to make the number of trustees equal to the number so determined on. The trustees so elected, up to and including one-third of the number so determined on, shall be elected for three years, the remainder up to and including one-third of the number so determined on for two years, and the remainder for one year. § 167. Meetings of trustees. Meetings of the trustees of any such incorporated church shall be 675 Reuiaious Corporations Law. called by giving at least twenty-four hours’ notice thereof personally or by mail to all trustees; and such notice may be given by two of the trustees ; but by the unanimous consent of the trustees, a meet- ing may be held without previous notice thereof. A majority of the whole number of trustees shall constitute a quorum for the trans- action of business, at any meeting lawfully convened. § 168. Vacancies among trustees. If any trustee of any such incorporated church declines to act, resigns or dies, or ceases to be a qualified voter at a corporate meeting thereof, his office shall be vacant; and such vacancy may be filled by the remaining trustees until the next annual corporate meeting of such church; at which meeting the vacancy shall be filled for the un- expired term. § 169. Limitation of powers of trustees. The trustees of any such incorporated church shall have no power to call, settle or remove a minister or to fix his salary, nor without the consent of a corporate meeting, to incur debts, beyond what is neces- sary for the administration of the temporal affairs of the church and for the care of the property of the corporation; or to fix or change the time, nature or order of the public or social worship of such church. § 170. Election and salary of ministers. The ministers of any such church shall be called, settled or removed, and their salaries fixed, only by the vote of a majority of the mem- bers of such corporation duly qualified to vote at elections present and voting at a meeting of such corporation specially called for that purpose, in the manner hereinbefore provided for the call of special meetings; and any such corporation inay, by its by-laws, make the call, settlement or removal of its ministers dependent upon a con- current vote of the unincorporated church connected with such cor- poration ; and in that case the concurrence of a majority of the mem- bers of such unincorporated church, present and voting at a meeting thereof, called for that purpose, shall be necessary to the call, settle- ment or removal of such ministers. § 171. Transfer of property. Any incorporated Congregational church, created by or existing under the laws of the state of New York, having its principal office or place of worship in the state of New York, or whose last place of worship was within the state of New York. is hereby authorized and empowered, by the concurrent vote of two-thirds of its qualified voters present and voting therefor, at a meeting regularly called for that 676 Rexietous Corporations Law. purpose, and of two-thirds of all its trustees, to direct the transfer and conveyance of any of its property, real or personal, which it now has or may hereafter acquire, to any religious, charitable or missionary corporation connected with the Congregational denomination and in- corporated by or organized under any law of the state of New York, either solely, or among other purposes, to establish or maintain, or to assist in establishing or maintaining churches, schools or mission stations, or to erect or assist in the erection of such buildings as may be necessary for any of such purposes, with or without the payment of any money or other consideration therefor; and upon such con- current votes being given, the trustees shall execute such transfer or conveyance; and upon the same being made, the title to and the ownership and right of possession of the property so transferred and conveyed shal! he ~ozted in and conveyed to such grantee; provided, however, that nothing herein contained shall impair or affect in any way any existing claim upon or lien against any property so tians- ferred or conveyed, or any action at law or legal proceeding ; aud such transfer shall be subject, in respect to the amount of property the said grantee may take and hold, to the restrictions and limitations of all laws then in force. ARTICLE 9. FREE CHURCHES. Section 180. Corporation, how formed. 181. Rights, powers and limitations. 182. Vacancies in boards of trustees. 183. Seats and pews to be free. § 180. Corporation, how formed. Any seven or more persons of full age, citizens of the United States, and a majority of them being residents of this state, who shall asso- ciate themselves for the purpose of founding and continuing one or more free churches, may make, sign and acknowledge, before any officer authorized to take the acknowledgment of deeds of land to be recorded in this state, and may file in the office of the secretary of state, and also of the clerk of the county in which any such church is to be established, and record as provided in section three of this chapter, a certificate in writing, in which shall be stated the name or 677 Reuiegious Corporations Law. title by which such society shall be known in the law, the purpose of its organization, and the names of seven trustees, of whom-not less than five shall be persons who are not ministers of the gospel or priests of any denomination, to manage the same; but such certificate shall not be filed, unless with the written consent and approbation of a justice of the supreme court of the district in which any such church shall be intended to be established, to be indorsed on such certificate. § 181. Rights, powers and limitations. Upon the filing of such certificate the persons named therein as trustees, and their successors, being citizens of the United States and residents of this state, shall be a body politic and corporate, with all the rights, powers and duties, and subject to all the restrictions and obligations and other provisions, so far as the same may be applicable and consistent with this article, specified and contained in the act en- titled, “ An act for the incorporation of benevolent, charitable, scien- tific and missionary societies,’ passed April twelfth, eighteen hun- dred and forty-eight, and the act amending the same, passed April seventh, eighteen hundred and forty-nine, except that the limitation in the first of the said acts of the value of real estate that may be held by any society in the city or county of New York, incorporated under this article, shall not be applicable to any church edifice erected or owned by such society, or the lot of ground on which the same may be built; and except that the provision in the first of the said acts, in relation to the personal liability of the trustees, shall be applicable only to the trustees who shall have assented to the creation of any debt. § 182. Vacancies in boards of trustees. Any vacancies occurring in the said board of trustees shall be sup- plied by the remaining trustees at any legal meeting of the members; but there shall always be at least five members of the board who are not ministers of the gospel or priests of any denomination. § 183. Seats and pews to be free. The seats and pews in every church, building or edifice, owned or occupied by any corporation organized under this article, shall be forever free for the occupation and use, during public worship, of all persons choosing to occupy the same, and conducting themselves with propriety, and no rent, charge or exaction shall ever be made or demanded for such occupation or use. 678 Rexigious Corporations Law. j ARTICLE 10. OTHER DENOMINATIONS. Section 190. Application of this article. 191. Notice of meeting for incorporation. 192. The meeting for incorporation. 193. The certificate of incorporation. 194. Time, place and notice of corporate meetings. 195. Organization and conduct of corporate meetings; quali- fications of voters thereat. 196. Changing date of annual corporate meetings. 197%. Changing number of trustees. 198. Meetings of trustees. 199. Vacancies among trustees. 200. Control of trustees by corporate meetings; salaries of ministers. 201. Trustees of a church in connection with the United Brethren in Christ. 202. Trusts for Shakers and Friends. 203. Conveyance of trust property of Friends. 204. Conveyance of property of Methodist Episcopal churches for church, school or missionary purposes. 205. Presiding officer. 8 190. Application of this article. This article is not applicable to a Baptist church, a Congregational or Independent church, a Protestant Episcopal church, a Roman Catholic church, a Presbyterian church in connection with the General Assembly of the Presbyterian church in the United States of America, or a Christian Orthodox Catholic church of the Eastern Confession. No provision of this article is applicable to a Reformed church in America, a True Reformed Dutch church in the United States of America, a Reformed Presbyterian church, or to an Evangelical Lutheran church, incorporated after October first, eighteen hundred and ninety-five, except as declared to be so applicable by article six of this chapter; this article is applicable to an Evangelical Lutheran church, incorporated before October first, eighteen hundred and ninety-five, if the trustees thereof were then elective as such and so long as they continue to be elective as such. Article six of this chapter 679 Rexicious Corporations Law. is applicable to an Evangelical Lutheran church incorporated before October first, eighteen hundred and ninety-five, if its trustees were not then elective as such and so long as its trustees continue not to be elective as such. This article is applicable to churches of all other denominations. 8 191. Notice of meeting for incorporation. Notice of a meeting for the purpose of incorporating an unincor- porated church, to which this article is applicable, shall be given as follows: The notice shal} be in writing, and shall state, in substance, that a meeting of such unincorporated church will be held at its usual place of worship at a specified day and hour, for the purpose of incorpora- ting such church and electing trustees thereof. The notice must be signed by at least six persons of full age, who are then members in good and regular standing of such church by admission into full communion or membership therewith, in ac- cordance with the rules and regulations of such church, and of the governing ecclesiastical body of the denomination or order, if any, to which the church belongs, or who have statedly worshipped with such church and have regularly contributed to the financial support thereof during the year next prior thereto, or from the time of the formation thereof. A copy of such notice shall be posted conspicuously on the outside of the main entrance to such place of worship, at least fifteen days before the day so specified for such meeting, and shall be publicly read at each of the two next preceding regular meetings of such un- incorporated church for public worship, at least one week apart, at morning service, if such service be held, on Sunday, if Sunday be the day for such regular meetings, by the first named of the following persons who is present thereat, to wit: The minister of such church, the officiating minister thereof, the elders thereof in the order of their age beginning with the oldest, the deacons of the church in the order of their age beginning with the oldest, any person qualified to sign such notice. § 192. The meeting for incorporation. At the meeting for incorporation held in pursuance of such notice, the following persons, and no others, shall be qualified voters, to wit: All persons of full age, who are then members in good and regular standing of such church by admission into full communion or mem- bership therewith, in accordance with the rules and regulations thereof, and of the governing ecclesiastical body, if any, of the de- 680 Retiaious Corporations Law. nomination or order, to which the church belongs, or who have statedly worshipped with such church and have regularly contributed to the financial support thereof during the year next preceding such meet- ing, or from the time of the formation thereof. The presence of a majority of such qualified voters, at least six in number, shall be necessary to constitute a quorum of such meeting. The action of the meeting upon any matter or question shall be decided by a majority of the qualified voters voting thereon, a quorum being present. The first named of the following persons who is present at such meeting shall preside thereat, to wit: The minister of the church, the officiating minister thereof, the elders thereof in the order of their age, beginning with the oldest, the deacons thereof in the order of their age, beginning with the oldest, any qualified voter elected to preside. ‘The presiding officer of the meeting shall receive the votes, be the judge of the qualifications of voters and declare the result of the votes cast on any matter. The polls of the meeting shall remain open for one hour, and longer, in the discretion of the presiding officer, or if required by a majority of the voters present. Such meeting shall decide whether such unincorporated church shall become incorporated. If such decision shall be in favor of in- corporation such meeting shall decide upon the name of the proposed corporation, the number of the trustees thereof, which shall be three, six or nine, and shall determine the date, not more than fifteen months thereafter, on which the first annual election of the trustees thereof after such meeting shall be held. Such meeting shall elect from the persons qualified to vote at such meeting, one-third of the number of trustees so decided on who shall hold office until the first annual election of ‘trustees thereafter, one-third of such number of trustees to hold office until the second annual election of trustees thereafter, and one-third of such number of trustees to hold office until the third annual election of trustees thereafter. § 193. The certificate of incorporation. The presiding officer of such meeting and at least two other persons present and voting thereat, shall execute and acknowledge a certificate of incorporation, setting forth the matters so determined at such meeting, the trustees elected thereat and the terms of office for which they were respectively elected and the county, town, city or village in which its principal place of worship is or is intended to be located. On filing such certificate the members of such church and the persons qualified to vote at such meeting and who shall thereafter, from time 681 Retuieious Corporations Law. to time, be qualified voters, at the corporate meetings thereof, shall be a corporation by the name stated in such certificate, and the persons therein stated to be elected trustees of such church shall be the trustees thereof, for the terms for which they were respectively so elected. § 194. Time, place and notice of corporate meetings. The annual corporate meeting of every incorporated church to which this article is applicable, shall be held at the time and place fixed by or in pursuance of law therefor, if such time and place be so fixed, and otherwise, at a time and place to be fixed by its trustees. A special corporate meeting of any such church may be called by the board of trustees thereof, on its own motion or on the written request of at least ten qualified voters of such church. The trustees shall cause notice of the time and place of its annual corporate meeting, therein specifying the names of any trustees, whose successors are to be elected thereat, and, if a special meeting, specifying the business to be transacted thereat, to be given at a regular meeting of the churen for public worship, at morning service, if such service be held, on each of the two successive Sundays next preceding such meeting, if Sun- day be the regular day for such public worship, and public worship be had thereon, or otherwise at a regular meeting of such church for public worship on each of two days, at least one week apart, next preceding such meeting, or if no such public worship be held during such period, by conspicuously posting such notice, in writing, upon the outer entrance to the principal place of worship of such church. Such notice shall be given by the minister of the church, if there be one, or if not, by the officiating minister thereof, if there be one, or if not, or if any such minister refuse to give such notice, by any officer of such church. But a special corporate meeting of an incorporated Presbyterian church, to elect a pastor of such church or to take action in reference to the dissolution of the relations of the pastor and the church, may be called only by the session of such church. They may call such meeting whenever they deem it advisable to do so, or upon the request to them, by petition, of a majority of the qualified voters of such corporation, they must call such meeting. They shall give notice of such meeting in either case, in the manner in this section provided in a notice of a special meeting. § 195. Organization and conduct of corporate meetings; qualifica- tions of voters thereat. At a corporate meeting of an incorporated church to which this article is applicable the following persons, and no others, shall be 682 Retraious Corporations Law. qualified voters, to wit: All persons of full age, who are then members in good and regular standing of such church by admission into full communion or membership therewith in accordance with the rules and regulations thereof, and of the governing ecclesiastical body, if any, of the denomination or order to which the church belongs, or who have been stated attendants on divine worship in such church and have regularly contributed to the financial support thereof during the year next preceding such meeting; and any incorporated church in connection with the Congregational denomination or with the de- nomination known as Disciples of Christ, may at any annual corporate meeting thereof, or any corporate meeting called pursuant to the pro- visions of this article, if notice of the intention so to do has been given with the notice of such meeting determine that thereafter only mem- bers of such church shall be qualified voters at corporate meetings thereof. ‘The presence at such meetings of at least six persons quali- fied to vote thereat shall be necessary to constitute a quorum. The action of the meeting upon any matter or question shall be decided by a majority of the qualified voters voting thereon, a quorum being present. The first named of the following persons who is present at such meeting shall preside thereat, to wit: The minister of such church, the officiating minister thereof; the officers thereof in the order of their age beginning with the oldest, any qualified voters elected therefor at the meeting. The presiding officer of the meeting shall receive the votes, be the judge of qualifications of voters and declare the result of the votes cast on any matter. The polls of an annual corporate meeting shall continue open for one hour, and longer in the discretion of the presiding officer, or if required by a majority of the qualified voters present. At each annual corporate meeting, successors to those trustees whose terms of office then expire, shall be elected from the qualified voters by ballot, for a term of three years thereafter; provided, however, that any Methodist Episcopal church in the boroughs of Brooklyn and Queens, in the city of New York, which is now or hereafter may become a beneficiary of the Brooklyn church society of the Methodist Episcopal church, by receiving from said society contributions to its current income, or by loan or gift from the same, may elect to fill any vacancy existing in its board of trustees by expiration of term, or for any other cause, at any corporate meeting legally called, not to exceed at any time three members of . said board of trustees, who shall have been nominated to such posi- tions by the Brooklyn church society of the Methodist Episcopal church, without regard to any qualifications for trustees required by this chapter, and such trustees or their successors, nominated and 683 Re.iaious Corporations Law. elected in the same manner, shall continue in office so long as said church shall be a beneficiary of said society. Notice of the expiration of term of said trustees shall be given by the said church to the said society not less than two months before said expiration of term. § 196. Changing date of annual corporate meetings. An annual corporate meeting of an incorporated church to which this article is applicable, may change the date of its annual meeting thereafter. If such date shall next thereafter occur less than six months after the annual meeting at which such change is made, the next annual meeting shall be held one year from such next recurring date. For the purpose of determining the terms of office of trustees, the time between the annual meeting at which such change is made and the next annual meeting thereafter shall be reckoned as one year. § 197. Changing number of trustees. An incorporated church to which this article is applicable, may, at an annual corporate meeting, change the number of its trustees to three, six or nine, or classify them so that the terms of one-third expire each year. No such change shall affect the terms of the trustees then in office, and if the change reduces the number of trustees, it shall not take effect until the number of trustees whose terms of office continue for one or more years after an annual election, is less than the number determined upon. Whenever the number of trustees so holding over is less than the number so determined on, trustees shall be elected in addition to those so holding over, sufficient to make the number of trustees for the ensuing year equal to the number so de- termined on. The trustees so eleeted up to and including one-third of the number so determined on, shall be elected for three years, the temainder up to and including one-third of the number so determined on for two years and the remainder for one year. § 198. Meetings of trustees. Two of the trustees of an incorporated church, to which this article is applicable, may call a meeting of such trustees, by giving at least twenty-four hours’ notice thereof personally or by mail to the other trustees. A majority of the trustees lawfully convened shall constitute a quorum for the transaction of business. In case of a tie vote at a meeting of the trustees, the presiding officer of such meeting shall, notwithstanding he has voted once, have an additional casting vote. 8 199. Vaeancies among trustees. If any trustee of an incorporated church to which this article is applicable, declines to act, resigns or dies, or having been a member 684 Reuieious Correrzarions Law. of such church, ceases to be such member, or not having been a mem- ber of such church, ceases to. be a qualified voter at a corporate meet- ing thereof, his office shall be vacant, and such vacancy may be filled by the remaining trustees until the next annual corporate meeting of such church, at which meeting the vacancy shall be filled for the unexpired term. § 200. Control of trustees by corporate meetings; salaries of ministers, A corporate meeting of an incorporated church, whose trustees are elective as such, may give directions, not inconsistent with law, as to the manner in which any of the temporal affairs of the church shall be administered by the trustees thereof; and such directions shall be followed by the trustees. The trustees of an incorporated church to which this article is applicable, shall have no power to settle or remove or fix the salary of the minister, or without the consent of a corporate meeting, to incur debts beyond what is necessary for the care of the property of the corporation; or to fix or * charge the time, nature or order of the public or social worship of such church, except when such trustees are also the spiritual officers of such church. § 201. Trustees of a church in connection with the United Brethren in Christ. If any church connected with the denomination known as the United Brethren in Christ shall neglect or omit to elect trustees at any an- nual election at which trustees should have been elected, the quar- terly conference of the circuit, station or omission of such denomi- nation may elect such trustees for full terms, or to fill vacancies, in accordance with the rules and usages of such denomination. § 202. Trusts for Shakers and Friends. All deeds or declarations of trust of real or personal property, executed and delivered before January first, eighteen hundred and thirty, or since May fifth, eighteen hundred and thirty-nine, to any person in trust for any United Society of Shakers, or hereto- fore executed and delivered to any person or persons in trust for any meeting of the Religious Society of Friends, or any of the purposes thereof, and the legal estates, interests and trusts pur- ported to be conveyed, created or declared thereby, shall be valid. Trusts of real or personal property, for the benefit and use of the members of any United Society of Shakers, or of any meeting of the Religious Society of Friends, or any of the purposes thereof, may *So in original. 685 Reuieious Corporations Law. hereafter be created, according to the religious constitution of such society of Shakers, or the regulations and rules of discipline of such society of Friends. Such deeds or declarations of trust, heretofore or hereafter executed and delivered, shall vest in the trustees the legal estates and interests purported to be conveyed or declared thereby, to and for the uses and purposes declared therein; and such legal estates and trusts, and all legal authority with which the original trustees were vested by virtue of their appointment and conferred powers, shall descend to their successors in office or trust, who may be chosen in conformity to the constitution of such society, or the directions of such meeting. In case of the death of all the trustees of any trust for the benefit of any meeting of the Religious Society of Friends or any of the purposes thereof, heretofore appointed, or who may be hereafter appointed by virtue of this section, any such meeting may appoint a trustee or trustees in place of such person or persons, and the person or persons thus appointed by such meeting shall succeed to, and be invested with, all the powers, rights and duties conferred by this section and the deed or declaration of trust upon the trustee or trustees. In case of the consolidation of two or more meetings of the Religious Society of Friends into one meet- ing, all real and personal property held in trust for either or any of the meetings so consolidated, or any of the purposes thereof, shall continue to be vested in the trustees holding the same at the time of such consolidation, until their successors shall be chosen as above pro- vided. Such consolidated meeting shall have the same rights, powers and duties in respect to such property, estates and trusts and in respect to the appointment of such trustees and their successors as the meetings so consolidated or either of them previously had. This section does not impair or diminish the rights of any person, meeting or association claiming to be a meeting of the Religious Society of Friends, which such person, meeting, or association claiming to be a meeting, had to any real or personal property held in trust for the use and benefit of any meeting of such society, before the division of such society which took place at the annual meeting held in the city of New York in May, eighteen hundred and twenty-eight. No society of Shakers shall become beneficially interested in real or personal property, the clear annual value or income of which exceeds twenty-five thousand dollars. No meeting of the Religious Society of Friends shall become beneficially interested in real or personal property, the clear annual value or income of which exceeds fifty thousand dollars. No person shall be a trustee at the same time of more than one society of Shakers or meeting of Friends. A society 686 Retieious Corporations Law. of Shakers includes all persons of the religious belief of the people called Shakers, resident within the same county. § 203. Conveyance of trust property of Friends. The trustee or trustees, or survivor of any trustees, of any meeting of the Religious Society of Friends, appointed pursuant to the last preceding section, may sell, convey and grant, or demise any or all of the trust property described in said trust deed or declaration of trust, to any person absolutely or in trust for such meeting, whenever any meeting of said society by resolution so directs. Any conveyance of real estate or property so held in trust by any meeting of the Religious Society of Friends, which is hereafter made in pursuance of a resolution of such meeting as provided herein, shall be as valid and effectual for the conveyance of the title of any real estate so held in trust, as if the heirs of any trustee who has died prior to the pas- sage of such resolution had joined in the execution of such conveyance or demise. Any instrument for the sale or demise of such property shall embody such resolution, and be executed and acknowledged by such trustee or trustees; and in such acknowledgment such trustee or trustees shall make an affidavit that the person or persons executing such conveyance or demise are the trustee or trustees of the trust property, and that the resolution embodied in such conveyance or de- mise was duly passed by such meeting. Such affidavit shall be prima facie evidence of the facts therein stated. § 204. Conveyance of property of Methodist Episcopal churches for church, schocl or missionary purposes. Any church or society of the Methodist Episcopal church created by or existing under the laws of the state of New York, having its principal office or place of worship in the state of New York, or whose place of worship was within the state of New York, is hereby authorized and empowered by the concurrent vote of two-thirds of its qualified voters present and voting therefor, at a meeting regularly called for that purpose, and of two-thirds of all its trustees, to direct the transfer and conveyance of any of its property, real or personal, which it now has or may hereafter acquire, to any religious, charitable or missionary corporation connected with the Methodist Episcopal denomination and incorporated by or organized under any law of the state of New York, either solely, or among other purposes, to estab- lish or maintain, or to assist in establishing or maintaining churches, schools, or mission stations, or to erect or assist in the erection of such buildings as may be necessary for any such purposes, with or without the payment of any money or other consideration therefor ; and upon 687 Reuigious Corporations Law, such concurrent votes being given, the trustees shall execute such transfer or conveyance; and upon the same being made, the title to and the ownership and right of possession of the property so trans- ferred and conveyed shall be vested in and conveyed to such grantee; provided, however, that nothing herein contained shall impair or affect in any way any existing claim upon or lien against any property so transferred or conveyed, or any action at law or legal proceeding; and such transfer shall be subject, in respect to the amount of prop- erty the said grantee may take and hold, to the restrictions and limitations of all laws then in force. § 205. Presiding officer. Nothing contained in this article shall prevent the qualified voters at any meeting held pursuant to this article or in this article de- scribed, from choosing a person to preside at any such meeting, other than the person or officer designated in this article to preside thereat, and when such other person shall be chosen he shall exercise all the powers in this article conferred upon the presiding officer of such meeting. ARTICLE 11. UNION CHURCHES. Section 220. Joint meeting for the purposes of incorporation. 221. Government of incorporated union churches. 8 220. Joint meeting for the purposes of incorporation. Two or more unincorporated churches, which separately agree on a plan of union and determine to meet together for the purpose of being incorporated as a union church, may be incorporated as a union church in pursuance of the provisions of article ten, and there- after such union church shall be governed by the general provisions of such article, as near as may be, except as otherwise provided in this article. A notice of such joint meeting shall be given to the congregation of each church, in pursuance of the provisions of article ten of this chapter, relating to notice of meeting for incorporations, in every respect as if it were a notice of a meeting for the separate incorporation of such church under such article, except that the notice shall state in substance that a joint meeting of such unincorporated churches, which shall be specified in the notice, will be held for the 688 Rezicious Corporations. Law. purpose of incorporating such churches as a union church, and elect- ing trustees thereof at a time and place specified in the notice, which place may be the usual place of worship of either of such churches or any other reasonably convenient place. Such notice must be signed by at least six persons from each of such churches who would be autherized to sign a notice for the meeting of each church, respec- tively, for the purpose of incorporating it under such article. The provisions of article ten hereof shall be applicable to the organization and conduct of such meeting, the matters to be deter- mined upon and the certificate of incorporation to be executed and filed accordingly, except that the presiding officer of such joint meet- ing shall be the oldest person present at such meeting who would be entitled to preside at a meeting of either of such churches singly for the purposes of incorporation in pursuance of such article. All persons who would be qualified to vote at such meeting of either of such churehes held singly, shall be qualified voters at. such joint meet~ ing, and the number of trustees of the union church after incorpora- tion, to be selected from each such church, may be agreed on by such unineorporated churches, and the trustees shall be selected by each of such churches accordingly. The certificate of incorporation shall set forth the plan of union agreed on and the number of trustees of the incorporated union church to be selected by each unincorporated church. § 221. Government of incorporated union churches, Any union church or society having a common place of worship or holding property belonging jointly to the several societies composing the same, but the sole right of occupancy of which is reserved to each of them in proportion to their interest in such property, or the money originally paid therefor by each, or in accordance with their plan of union agreed on, may, if any one or more of the churches or societies comprising such union ¢ghurch or society has ceased to exist, on the request of such remaining churches or society, redistribute and divide the time of occupancy among such remaining societies in proportion to their contributions to such property respectively, or in accordance with a new plan of union agreed on by them. Such re- distribution shall be made by the trustees of said union church or society on written notice to the societies which it is alleged have ceased to exist; but no. such society shall be deemed to have ceased. to exist unless it has failed or neglected for a period of five consecutive years next preceding such request for redistribution, to hold meet- ings and have a clerk or secretary, and keep a list or registry of its 689 Retiaious Corporations Law. members, or to have preaching, prayer or conference meetings, or other religious services in keeping with the usages of the denomina- tion to which it belongs. Any one of the societies composing a union church or society, which shall have built a church edifice in the same village or neighborhood in which it holds its religious services, shall not thereby lose or for- feit in any way any of its rights or privileges in such union society, and the maintaining of divine worship, or contributing to its support in its own building, shall be regarded the same as if it held its meet- ings in the church building of such union society. Any notice for the election of trustees of the union society or for any other purpose which the law requires to be read or given at the time of divine serv- ice, may be read or given in the church edifice so built by any one of such societies, if at the time religious services are not held in the church edifice of such union society. But such notice must be posted on the outer door of such union church edifice at least fifteen days before the meeting. If any society composing any such church union or society has a greater interest in the occupancy of the church build- ing than others, unless the several churches composing the union church or society have agreed otherwise, the number of trustees shall be odd, and the trustees shall be elected from such societies in pro- portion to thir respective interests in the union, church or society, as nearly as may be. Any society composing such union church or society, which has built for itself a church edifice and become incor- porated, may sell its interest and right of occupancy in such union society, and convey the same, when authorized so to do by a two- thirds vote of the voters thereof qualified to vote for union trustees, at a special meeting called for that purpose. The proceeds of such sale shall be used for the benefit of its church property. ARTICLE 12. LAWS REPEALED; WHEN TO TAKE EFFECT. Szction 260. Laws repealed. 261. When to take effect. § 260. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that por- tion specified in the last column is hereby repealed. §$ 261. When to take effect. This chapter shall take effect immediately. 690 ey eee ceeee a ey eee ce one wee cerns ey eee ce wae Retiarous Corporations Law. ScHEDULE or Laws REPEALED. Chapter eee ee eee or re) eee teoee Ce Section All (Yth Sess.) All (11th Sess.) All (21st Sess.) All (23d Sess.) 1-11 All 2 All All 6 All All All All 8-11 All All All All All All All All All All All All All All All All All All All All All All -691 Retigious Corporations Law. Laws of Chapter Section PSTD J otansessis TQ saibnelnd All TBD ca shesiacsis TUB. ceeeee All B92 is ese FOE on is was isn All LOGO ws sia sivas 633........ All WOT eee sacwn ais AO tia nc ad All 1874........ DU aaieiaeetare All 1875 ose ears TO: ara asters All U8%5 i avwesess 209 6 oe saree a All 1875........ B25... eee All 1875........ 354........ All 1875........ OOls. ctaceveie All 1875........ 408........ All 1875........ 443........ All 1875........ BOF. wea All 1876........ 110........ All 1876........ WG sean aie All 1876.2). 000 B29) gs aed All 1877... . 6. Daw aie acie All 1878........ dU ea All 188 saiscew aes 849... All 1879........ TDC is. 68ers All 1879........ 186........ All 1879......6.% 463........ All 1880.,...... Db. 6 ieeewe All 1880s race ces 167 sw dives ss All 1880........ B387......0. All 1881........ Bab ais oleate ge All TBST cscs e ars io 501........ All TBS 2 a ini nese RB aaweies All 1883........ 501........ All 1884........ 198........ All IB8S x swgaigne ee All 1885........ 431........ All 1886........ AG3 eames All 1886........ 98........ All 1886........ 209... 600. All 1887........ 100........ All 188% ei cciectes 406........ All 1887........ 600........ All 1888........ 459......4. All - 1890........ 50........ All Reuiarous Corporations Law. Laws of Chapter Section 1890...... ve Oboe caaee es All 1890..... Sere AR A cw ee ieee acs All 1894........ VQeecaie ea +». All 1895........ 60s ec: ears All 1895........ (RO snes cea All 1896 sie reece DOwalsnece ised All 1896........ DO eta-alsea ele All 1896........ TOO ss er sseteceitar a All 1896. 2.6025. 308........ All 1896........ B24. sce. All 1896........ 836........ All 189626 2040s B37... 0.2 All 1896... 6040 B25. acer e es All 1896........ 969........ All BO aN Sgro: B5....666- All BOT isis aisitensits 144........ All 189 Tcweyeeicas 238......4. All 1897........ O21 oxic wees All 1898........ BAB ea aeaiie All 1898........ 358........ All 1898........ AWB... cece All 1898........ BAB ec wae Part relating to religious corporations. 1899......6. TRO scces eaters All 1900........ 206........ All 1900........ Ded a esiasaeras All 90D oases RAR sv eweees All W902 sae eees OF ecewiasis All 1902........ 208........ All 1902........ 865........ All 1908........ BIA. civeeas All 1904...... we (BB eca newer All 1904........ 344........ All 1908 stisins AG cpaenues All 1909 eee ote 193........ All 1906 i.e cass De Divas saree All 1906........ 526......6- All 1907......., 199........ All W908 so weeiene TAS cess ass All 1908 BER oxicia wie All 1908........ 863........ All CODE OF CIVIL PROCEDURE. SECTIONS APPLICABLE TO CORPORATIONS. 8 341. Domestic corporations, etc., when deemed resident, etc. For the purpose of determining the jurisdiction of a county court, in either of the cases specified in the last section, a domestic corpora- tion or joint-stock association, whose principal place of business is established, by or pursuant to a statute, or by its articles of associa- tion, or is actually located within the county, or in case of a railroad corporation where any portion of the road operated by it is within the county, it is deemed a resident of the county; and personal serv- ice of a summons, made within the county, as prescribed in this act, or personal service of a mandate, whereby a special proceeding is commenced, made within the county, as prescribed in this act for personal service of a summons, is sufficient service thereof upon a domestic corporation wherever it is located. § 431. How personal service of summons made upon a domestic corporation. Personal service of the summons upon a defendant, being a domes- tic corporation, must be made by delivering a copy thereof, within the state as follows: 1. If the action is against the mayor, alderman, and commonalty of the city of New York, to the mayor, comptroller, or counsel to the corporation. 2. If the action is against any other city, to the mayor, treasurer, counsel, attorney, or clerk; or, if the city lacks either of those officers, to the officer performing corresponding functions, under another name. 3. In any other case, to the president or other head of the corpora- tion, the secretary or clerk to the corporation, the cashier, the treas- urer, or a director or managing agent. 8 432. Id.; upon a foreign corporation, Personal service of a summons, upon a defendant, being a foreign 695 Copz or Crvit PRocrepvure. corporation, must be made by delivering a copy thereof, within the state as follows: 1. To the president, vice-president, treasurer, assistant treasurer, secretary, or assistant secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name. 2. To a person designated for the purpose as provided in section 16 of the General Corporation Law. 3. If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the state, or the cause of action arose therein ; to the cashier, a director, or a managing agent of the corporation, within the state. 4. If the person designated as provided in section sixteen of the general corporation law dies or removes from the place where the corporation hag its principal place of business within the state and the corporation does not within thirty days after such death or re- moval designate in like manner another person upon whom process against it may be served within the state, process against the corpora- tion in an action upon any liability incurred within this state or if the corporation has property within the state may after such death, removal or revocation and before amother designation is made be served upon the secretary of state. WHO IS MANAGING AGENT OF FORRIGN CORPORATION FOR SPRVICH OF PROCESS.— It may be stated as a general rule that the managing agent of a forelgn corporation on whom the statute authorizes the service of process in actions against the cor- poration, is one whose rank, position, and duties make it reasonably certain that the corporation will be appraised of the service made. Palmer v. Chicago E. Post Co., 85 Hun 403, 32 N. Y. Supp. 992; Doe v, Springfield Boiler Co., 104 Fed. 864; Federal Betterment Co. v. Reeves, (Kan.} 84 Pac. 560. The following persons have been held to be ‘‘ managing agents” within the meaning of the statute :—One signing corporate letters as manager. Young & F. Co. y. Welsbach L. Co., 55 App. Diy. 16, 66 N. Y. Supp. 1024 ;—-one having full charge of the business of a corporation dealing tn lumber at a particular place within the state. Foster y. Betcher Lumber Co., 5 S. D, 57;3-—an attorney in fact. Perrine v. Ransom Gas M. Co., 60 App. Div. 32, 69 N. Y. Supp. 698;—an attorney en- gaged in winding up the affairs of the corporation. New Port News & N. V. Co. v. MeDonald Brick Co. 109 Ky. 408;—-an agent having an office and paid by com- missioners on gales. Toledo Comp. Scales Co. y. Computing Scales Co., 142 Fed, 919 ;—an advertising solicitor paid by commissions. Palmer v. Chicago Herald Co., 70 Fed. 886 ;-—a, freight solicitor. Norton y. Atchison T. & S. F. R. Co., 61 Fed. 618. But the following persons have been held not to be “managing agents” :— An advertising solicitor paid by weekly salary. Vitala v. Bee Rub. Co., 66 App. Div. 582, 73 N. ¥. Supp. 273; Fontana v. Post Printing & Pub. Co., 87 App. Div. 233, 84 N. Y. Supp. 308; United Assoc. Press v. Times Star Co. 84 Fed, 419;— an attorney in fact engaged in obtaining patent for mining claim. Mars v. Oro Fino Min. Co., 7 S. D. 605;—ae foreman designated as “ assistant superintendent.” Kramer v. Buffalo Union Furnace Co., 182 App. Div. 415, 116 N. Y. Supp. 1101. If the one upon whom the service was made was “managing agent,” the service was good, irrespective of what he may have done with the paper after the same was delivered to him. Kramer y. Buffalo Union Furnace Co., 182 App. Div. 415, 696 Cops or Civin PRocEDURE. 116 N. Y. Supp. 1101. See, also, Brun v. Northwestern Realty Co., 52 Misc. 528, 102 N. Y. Supp. 473. § 525. Verification; how and by whom made. The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the state are, or a public officer, in their behalf, is the party, the verification may be made by any person ac- quainted with the facts. 3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, or, if the latter is not a resident of the state, the county where he has his office, and capable of making the affidavit; or, if there are two or more parties united in imterest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of mak- ing the affidavit; or where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case the verification may be made by the agent of or the attorney for the party. WHo May Vpriry PLeaDING.—A director of a domestic corporation is a proper party under this section to verify a pleading. FEastham v. New York 8. Tel. Co., 86 App. Div. 562, 83 N. Y. Supp. 1019. In Bigelow v. Whitehall Mfg. Co., 1 City Ct. Rep. 188, Judge McAdam held that a director was an officer of a corporation within the meaning of this section. The members of a committee appointed by the directors of a corporation who were empowered by the creditors and stockholders to name such committee to liquidate the affairs of the corporation, with power to institute all legal proceed- ings for such purpose, were held in Wills v. Jas. Rowland & Co., 117 App. Div. 122, 102 N. Y. Supp. 386, to be officers of the corporation within the meaning of subd. 1. An attorney of a domestic corporation who swears that he was appointed to verify petitions in condemnation proceedings brought by the corporation may law- fully do so. Matter of St. Lawrence & A. R. Co., 183 N. ¥. 270. In High Rock Knitting Co. v. Bronner, 18 Misc. 627, 43 N. Y. Supp. 725, aff’d 29 App. Div. 627 mem., the court held that it ts the purpose of the statute to allow verification by attorneys for foreign corporations in all cases and for do- mestic corporations to the same extent as for other parties. A’ domestic corporation is in the county where its principal place of business is located, within the meaning of subd. 3, allowing verification by ‘attotney when the party “is not in the county where the attorney resides.” High Rock Knitting Co. v. Bronner 18 ‘Mise. 627, 43 N. Y. Supp. 725, aff'd 29 App. Div. 627 mem. | See, also, Climax Specialty Co. v. Smith, 31 Mise. 275, 64 N. Y. Supp. 42; Syracuse Moulding Co. v. Squires, 138 N. Y. Supp. 547. Grounps or BuLisr.—An officer of a domestic corporation for the purpose of verifying a pleading is a “ party” within the meaning of subd. 1 of ‘this section, and so is not required to state in hig affidavit the grounds of his belief as to all matters not stated upon his knowledge as required by sec. 526. Henry v. Brooklyn 697 Copr or Civit PRocepurE. Heights R. Co., 43 Misc. 589, 89 N. Y. Supp. 525; American Insulator Co. v. Bankers’ Co., 13 Daly 200, 2 How. Pr. (N. S.) 120; Duryea, Watts & Co. v. Rayner, 11 Misc. 294, 32 N. Y. Supp. 247; Glaubensklee v. Hamburg, etc., Packet Co., 9 Abb. Pr. 104. But an officer of a foreign corporation was held in Robinson v. Hcuador Develop. Co., 32 Misc. 106, 65 N. Y. Supp. 427, not to be a “ party.” The secretary of a foreign corporation is an agent of the corporation author- ized to verify an answer; but he must set forth the grounds of his belief as to all matters not stated upon his knowledge. Robinson v. Ecuador Develop. Co., 32 Misc. 106, 65 N. Y. Supp. 427. An attorney for a foreign corporation who verified an answer in an action against the corporation need not state the grounds of his belief. American Audit Co. v. Industria Fed. of Amer., 84 App. Div. 304, 82 N. Y. Supp. 642. The answer in this case contained no allegations on information and belief. § 610. Order must recite grounds; service of order. The injunction order must briefly recite the grounds for the in- junction. Where it is granted by the court, it must be served by delivering a certified copy thereof; where it is granted by a judge, it must be served by showing the original order, and delivering a copy thereof. Service of the order, upon a corporation, may be made as prescribed in this act, for making personal service of a summons upon a corporation. Copies of the papers, upon which the order was granted, must be delivered with the copy of the order. § 624. Damages sustained by a third person. Where the defendant enjoined was an officer of a corporation, or joint-stock association, or a bailee, agent, trustee, or other representa- tive of another, and the damages sustained by him, are less than the sum specified in the undertaking, the court or the referee may also separately ascertain and determine the damages sustained, by reason of the injunction, by the corporation, association, or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking; and those damages may be recovered in a separate action, brought as prescribed in the next section. § 636. What must be shown to procure the warrant. To entitle the plaintiff to such a warrant he must show, by affidavit, to the satisfaction of the judge granting the same, as follows: 1. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of contract, the affidavit must show that the plaintiff is en- titled to recover a sum stated therein, over and above all counter- claims known to him. 2. That the defendant is either a foreign corporation or not a resident of the state; or, if he is a natural person and a resident of the state, that he has departed therefrom, with intent to defraud his 698 Copz or Civit Procepure. creditors, or to avoid the service of a summons, or keeps himself con- cealed therein with the like intent; or, if the defendant is a natural person or a domestic corporation, that he or it has removed, or is about to remove, property from the state, with intent to defraud his or its creditors; or has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete property with the like intent ; or where, for the purpose of procuring credit, or the extension of credit, the defendant has, made a false statement in writing, under his own hand or signature, or under the hand or signature of a duly author- ized agent, made with his knowledge and acquiescence as to his finan- cial responsibility or standing; or, where the defendant, being an adult and a resident of the state, has been continuously without the state of New York for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section four hundred and thirty of this act; or a designation so made no longer remains in force; or service upon the person so designated cannot be made within the state, after diligent effort. § 646. Attachment of unpaid subscription to foreign corporation. Under a warrant of attachment against a foreign corporation, other than a corporation created by or under the laws of the United States, the sheriff may levy upon the sum remaining unpaid upon a sub- scription to the capital stock of the corporation, made by a person within the county; or upon one or more shares of stock therein, held by such a person, or transferred by him, for the purpose of avoiding payment thereof. § 647. Id.; interest in corporation. The rights or shares which the defendant has in the stock of an association or corporation, together with the interests and profits thereon, may be levied upon; and the sheriffs certificate of the sale thereof entitles the purchaser to the same rights and privileges, with respect thereto, which the defendant had, when they were so attached. § 650. Certificate of defendant’s interest to be furnished. Upon the application of a sheriff, holding a warrant of attachment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note, or other instrument, for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate, under his hand, 699 Cope or Civit PRocepurs. specifying the rights or number of shares of the defendant, in the stock of the association or corporation, with all dividends declared, or incumbrances thereon; or the amount, nature, and description of the property held for the benefit of the defendant, or of the defend- ant’s interest in property so held, or of the debt or demand owing to the defendant as the case requires. § 707. When judgment enforcible only against attached property. Where a defendant who has not appeared is a non-resident of the state, or a foreign corporation, and the summons was served without the state, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judg- ment is entered. But this section does not declare the effect of such a judgment, with respect to the application of any statute of limitation. § 791. Preferences; among civil actions. Civil causes are entitled to preference among themselves, in the trial or hearing thereof, in the following order, next after the causes specified in the last section but one: %. An action against a corporation or joint-stock association, issu- ing bank notes or any kind of paper credits to circulate as money, or by or against a receiver of such corporation or association. An action in which a county or town is sole plaintiff or defendant. 8. An action against a corporation founded upon a note, or other evidence of debt for the absolute payment of money. An action upon an undertaking given upon an appeal to the court of appeals, or to stay the execution on an appeal to the court of appeals. § 839. Admission by member of corporation. The admission of a member of an aggregate corporation, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning and while engaged in a transaction in which he was the authorized agent of the corporation ; or unless it was made while a member of such corporation and testifying as a witness concerning a transaction of the corporation, when the official record of such testimony shall be received. § 929. Book of foreign corporation; when evidence. Where a party wishes to prove an act or transaction of a foreign corporation; the book or books of the corporation may be used for 700 Cope or Crvit Procepurr, that purpose, as presumptive evidence, whether any or all of the parties are or are not members of the corporation. § 931. How copy to be verified. The copy must be verified by the deposition, taken as prescribed by law, or the oral testimony, taken at the trial, of the person who made it, or of a person who has examined and compared it with the original book, or the entry therein. The witness must testify that the copy produced is correct; that he made it, or compared it with the original ; and that he then knew that the original book so copied, or containing the entry, was the book of the corporation; or that it was then ac- knowledged to him to be such, by an officer or receiver of the corpora- tion, or a person having the custody thereof, naming the person who made the acknowledgment; and he must specify where, and in whose custody, the original was then kept. § 931la. Copy of designation of person uponwhom to make service, as evidence. An exemplified copy of a designation of a person upon whom to make service filed by a foreign corporation as provided by section sixteen of the general corporation law accompanied with a certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it. Ch. 65, L. 1909. § 1775. Complaint in actions by or against corporations. In an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation; and, if the latter, the state, county, or govern- ment, by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding, by or under which the corporation was created. SUFFICIENCY oF ALLEGATION.—A complaint which really alleges that defend- ant “is a foreign corporation,’ was held in Fraser v. Granite State Prov. Assoc., 8 Mise. 7, 28 N. Y. Supp. 65, to be sufficient on demurrer, since the matter omitted is merely formal, and the objection can be taken by motion only. An allegation that the corporation is ‘a Pennsylvania corporation” shows all that this section requires. Roberts vy. Pioneer Iron Works, 125 App. Div. 207, 109 N. Y. Supp. 230. OBJECTIONS.—The failure of the complaint in an action against a corporation to allege the matter required by this section is not a ground for demurrer, and the objection can be raised only by motion. Harmon vy. Vanderbilt Hotel Co., 79 Hun 392, 29 N. Y. Supp. 783, aff'd 143 N. Y. 665 mem. Fraser v. Granite State Prov. Assoc., supra. As was stated by the court, in Fox v. Preserving Co., 93 N. Y. 54, “the allegation that defendant is a corporation is no part of the cause of action, but simply relates to the character or capacity of the defendant.” An objection under this section cannot be raised on appeal for the first time. Ernest Ochs v. Frey, 47 App. Div. 390, 62 N. Y. Supp. 67. 701 Copr or Crvit PRocEDUBE. § 1776. When proof of corporate existence unnecessary. In an action brought by or against a corporation, the plaintiff need not prove, upon the trial, the existence of the corporation, unless tne answer is verified, and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation. Incorporation is admitted when the answer fails to allege affirmatively that the plaintiff is not a corporation. Erie & J. R. Co. v. Brown, 57 Misc. 164, 107 N. Y. Supp. 983. An allegation of corporate existence was held, in Snow, Church & Co. y. Hall, 19 Mise. 655, 44 N. ¥. Supp. 427, not to be converted so as to require proof where the answer alleges that “ affiant has no knowledge or information sufficient to form a belief as to said allegation.” A denial on information and belief that plaintiff is a corporation, does not constitute an ‘‘affirmative allegation” within the meaning of this section re- quiring proof of incorporation. Lamson Consol. Stone S. Co. v. Conygham, 11 Mise. 428, 82 N. Y. Supp. 129; Taendsticksabriks Aktiebolaget Vulcan v. Myers, 58 Hun 161, 11 N. Y. Supp. 663. Proof of corporate existence when the pleadings are oral, see Riley v. Metro- politan St. R. Co., 36 Mise. 789, 74 N. Y. Supp. 873. An affidavit in replevin is not defective because it alleges incorporation on in- formation and belief, where no verified answer has been served. Sloan y. Im- plement Dealers’s Mfg. Co., 25 Misc. 451, 55 N. Y. Supp. 558. § 1777. Misnomer, when waived. In an action or special proceeding, brought by or against a cor- poration, the defendant is deemed to have waived any mistake in the statement of the corporate name, unless the misnomer is pleaded in the answer, or other pleading in the defendant’s behalf. Misnomer as available in action against a stockholder, see Gen. Corp. Law, sec. 309. On failure to plead misnomer as waiver, see Whittlesey v. Frantz, 74 N. Y. 456. § 1778. Action against a corporation upon a note, etc. In an action against a foreign or domestic corporation, to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money, upon demand, or at a particular time, an order extending the time to answer or demur, shall not be granted, except by the court, upon notice to the plaintifi’s attorney. In such an action, unless the defendant serves, with a copy of his answer or demurrer, a copy of an order of a judge, directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at the expiration of twenty days after service of a copy of the complaint, either personally with the summons, or upon the defendant’s attorney, pursuant to his demand therefor; or, if the service of the summons was otherwise than personal, at the expiration of twenty days after the service is enmplete. § 1779. When foreign corporation may sue. An action may be maintained by a foreign corporation, in like 702 Cope or Crviz Procepvrs, manner, and subject to the same regulations, as where the action is brought by a domestic corporation, except as otherwise specially pre- scribed by law. But a foreign corporation cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, arising out of, or made and entered into in consideration of, an act, which the laws of the state forbid a corporation or association of individuals to do without express authority of law. This section does not affect the validity of a meeting of the stockholders or direc- tors of a foreign corporation, held within the state, where such a meeting is authorized by the laws of the state, country, or govern- ment by or under which the corporation is created; or of an act, done at such a meeting, which is not in conflict with the same laws or the laws of the state. § 1780. When foreign corporation may be sued. An action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a non-resident, in one of the following cases only: 1. Where the action is brought to recover damages for the breach of a contract, made within the state, or relating to property situated within the state, at the time of the making thereof. 2. Where it is brought to recover real property situated within the state or a chattel, which is replevied within the state. 3. Where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state. § 2880. Id.; special provision relating to railroad corporations. Where the defendant to be served is a railroad corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered, as prescribed in the last section, it may be per- sonally served, by delivering a copy thereof to a local superintendent of repairs, freight agent, agent to sell tickets, or station keeper of the corporation, residing in the county; unless at least thirty days before it was issued, the corporation had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it, may be served; in which case the summons may be personally served by delivering a copy to the person so designated. Service on freight agent where assistant superintendent resides in county, see Duval v. Boston & M. R. Co., 58 Misc. 504, 111 N. ¥. Supp. 629. 703 Copz or Civit PERocEDURE, § 2881. Service of summons, relating to express, insurance and telegraph companies. Where the defendant to be served is a corporation, association, part- nership or person doing business in the state as an express company, an insurance company, or a telegraph company, and no person resides in the county to whom a copy of the summons may be delivered, as prescribed in the foregoing sections of this article, it may be personally served on the express company by delivering a copy thereof to any local or general agent to receive freight or, parcels, route agent, or messenger of the defendant, residing in the county, and on any insur- ance company by delivering a copy thereof to any local or general agent of the defendant, residing in the county, and on any telegraph com- pany by delivering a copy thereof to any office manager of the defend- ant, residing in the county; unless at least thirty days before it was issued, the defendant had filed in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against the defendant may be served; in which case the summons may be per- sonally served by delivering a copy thereof to the person so designated. Service upon a local agent and local treasurer of a casualty company is sufficient. People ex rel. Brennan v. Tilden, 121 App. Div. 852, 106 N. Y. Supp. 247. § 2882. Last two sections qualified. Where a person has been designated as prescribed in either of the last two sections, and the designation has been revoked, or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the county; or that he cannot, after due diligence, be found within the county, so as to deliver a copy of the summons to him; the original summons, or the second or third sum- mons, issued as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation. § 3268. When defendant may require security for costs. The defendant, in an action brought in a court of record, may re- quire security for costs to be given, as prescribed in this title, where the plaintiff was, when the action was commenced, either 1, A person residing without the state; or if the action is brought in a county court, except in the counties of Kings, Queens and Richmond, or in the city court of the city of New York, the city court of Yonkers, or the justices’ court of the city of Albany, residing 704 Cope oF Crvin. PRocEDURE. without the city or county, as the case may be, wherein the court is located ; or 2. A foreign corporation; or 3. A person imprisoned under execution for a crime; or 4. The official assignee of a person so imprisoned, the official assignee or official trustee of a debtor; or an assignee in bankruptcy; where the action is brought upon a cause of action, arising before the assignment the appointment of the trustee, or the adjudication in bankruptcy. 705 PENAL LAW. SECTIONS APPLICABLE TO CORPORATIONS. § 140. Agents must file statement of agency. Any person now carrying on or conducting a general mercantile or manufacturing business within this state, or hereafter commenceing such business at or in a fixed location, as agent or manager for another shall, within thirty days after May sixteenth, eighteen hundred and ninety-three, or the commencement of such business, file a sworn state- ment, verified by such agent and principal, in the county clerk’s office of the county within which said business is carried on, stating the nature of the business and the full name and residence of such principal. § 141. Failure to make and file statement «a misdemeanor. Any person failing to make and file the statement required by section one hundred and forty, shall be guilty of a misdemeanor. § 142. Duty and fees of county clerk. The county clerk shall keep a register of the names of such agents in alphabetical order, and of their principals, for which registering and filing he shall receive a fee of one dollar; and copies of such certificate and registry certified by him and the affidavit of such publication shall be evidence. § 143. Relief of principal from liability for future acts of agent. Any person or principal may be relieved from all liability for the future act of such agent or manager by filing in the office of the county clerk where the original statement appointing such agent or manager is filed, a statement revoking such agent or managership, to take effect ten days after the filing thereof; provided he shall, at or before the date of such filing, serve either personally or by mail, in the manner prescribed by the code of civil procedure for service of papers in civil actions, a copy of such revocation statement on each person or firm with whom such principal shall have transacted any business through such agent or manager within six months previous to such 207 Prenat Law. filing. But failure to make service of such statement shall not invalidate such revocation except as to persons not so served, said statement to be acknowledged before an officer authorized to take acknowledgments of deeds and to be published in at least three con- secutive issues of the newspaper published in the county and nearest to the place where the business of said agent or manager is carried on; but if no newspaper is published in said county, then said statement shall be published in the newspaper published nearest to the place where such business shall be carried on. § 280. Corporations not to practice law. It shall be unlawful for any corporation to practice or appear as an attorney-at-law for any person other than itself in any court in this state or before any judicial body, or to make it a business to practice as an attorney-at-law, for any person other than itself, in any of said courts or to hold itself out to the public as being entitled to practice law, or to render or furnish legal services or advice, or to furnish attorneys or counsel or to render legal services of any kind in actions or proceedings of any nature or in any other way or manner, or in any other manner to assume to be entitled to practice law or to assume, use or advertise the title of lawyer or attorney, attorney-at-law, or equivalent terms in any language in such manner as to convey the impression that it is entitled to practice law, or to furnish legal advice, services or counsel, or to advertise that either alone or together with or by or through any person, whether a duly and regularly admitted attorney-at-law, or not, it has, owns, conducts or maintains a law office or an office for the practice of law, or for furnishing legal advice, services or counsel. It shall be unlawful further for any corporation to solicit itself or by or through its officers, agents or employees any claim or demand for the purpose of bringing an action thereon or of representing as attorney-at-law, or for furnishing legal advice, services or counsel to, a person sued or about to be sued in any action or proceeding or against whom an action or proceeding has been or is about to be brought, or who may be affected by any action or proceed- ing which has been or may be instituted in any court or before any judicial body, or for the purpose of so representing any person in the pursuit of any civil remedy. Any corporation violating the provisions of this section shall be liable to a fine of not more than five thousand dollars and every officer, trustee, director, agent, or employee of such corporation who directly or indirectly engages in any of the acts heresn prohibited or assists such corporation to do such prohibited acts is guilty of a misdemeanor. The fact that any such officer, trustee, 708 ‘Prenat Law. director, agent, or employee shall be a duly and regularly admitted attorney-at-law shall not be held to permit or allow any such corpora- tion to do the acts prohibited herein nor shall such fact be a defense upon the trial of any of the persons mentioned herein for a violation of the provisions of this section. This section shall not apply to any corporation lawfully engaged in a business authorized by the provi- sions of any existing statute, nor to a corporation lawfully engaged in the examination and insuring of titles to real property, nor shall it pro- hibit a corporation from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party, nor shall it apply to organizations organized for benevolent or charitable purposes, or for the purpose of assisting persons without means in the pursuit of any civil remedy, whose exist- ence, organization or incorporation may be approved by the appellate division of the supreme court of the department in which the principal office of said corporation may be located. {Inserted by chap. 483, L. 1909. In effect Sept. 1, 1909.] § 290. Misconduct of officers, directors, trustees, or employees of banking corporations, A director of a corporation, organized under the laws of this state, having banking powers, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended to make a loan or discount to any director of such corporation, or upon paper upon which any such director is liable or responsible to an amount exceeding the amount allowed by statute ; or, Any director, trustee, officer or employee of any corporation to which the banking law is applicable who makes or maintains, or attempts to make or maintain, a deposit of such corporation’s funds with any other corporation on condition, or with the understanding, express or implied, that the corporation receiving such deposit make a loan or advance, directly or indirectly, to any director, trustee, officer or employee of the corporation so making or maintaining or attempting to make or maintain such deposit; or, Any officer or employee of any corporation to which the bank- ing law is applicable who intentionally conceals from the directors or trustees of such corporation any discounts or loans made by it between the regular meetings of its board of directors or trustees, or the purchase of any securities or the sale of any of its securities during the same period, or knowingly fails to report to its board of directors or trustees when required to do so by law, all dis- counts or loans made by it and all securities purchased or sold by 709 Penat Law. it between the regular meetings of its board of directors or trustees ; or, Any director, officer or employee of a trust company who makes any agreement, express or implied, before or at the time of issuing a certificate of deposit, by which its holder may demand or receive payment thereof in advance of its maturity, Is guilty of a misdemeanor. Nothing in this section shall render any loan made by the directors of any such corporation, in violation thereof, invalid. § 291. Sale or hypotnecation of bank notes by officer. An officer or agent of any corporation having banking powers. who sells, or causes or permits to be sold, any bank notes of such corporation, or pledges or hypothecates, or causes or permits to be pledged or hypothecated, with any other corporation, association or individual, any such notes, as a security for a loan or for any liability of such corporation, is punishable by imprisonment in a county jail not exceeding one year, or by a fine not exceeding five thousand dollars, or both. § 292. Officer of bank putting excessive number of its notes in circulation. An officer or agent of any corporation having banking powers, who issues or puts in circulation, or causes or permits to be issued or put in circulation, the bank notes of such corporation to an amount, which, together with previous issues, leaves in circulation or outstanding a greater amount of notes than such corporation is allowed by law to issue and circulate, is punishable by imprisonment in a county jail not execeeding one year, or by a fine not exceeding five thousand dollars, or both. § 293. Officer or agent of banking corporation making guaranty or indorsement, in its behalf, beyond the legal limit. An officer or agent of any banking corporation, who makes or delivers any guaranty or indorsement on behalf of such corporation, whereby it may become liable on any of its discounted notes, bills or obligations, in a sum beyond the amount of loans and discounts which such corporation may legally make, is guilty of a misdemeanor. § 294. Bank officer overdrawing his account or asking for or receiving commissions or gratuities from persons procur- ing loans or making overdrafts of their accounts. An officer, director, agent, teller, clerk or employee of any bank, banking association, savings bank or trust company, who: 710 Prenat Law. 1. Knowingly overdraws his account with such bank, banking association, savings bank or trust company, and thereby obtains the money, notes or funds of any such bank, banking association, savings bank or trust company ; or, 2. Asks or receives, or consents or agrees to receive, any com- mission, emolument, gratuity or reward, or any promise of any commission, emolument, gratuity or reward, or any money, prop- erty or thing of value or of personal advantage, for procuring or endeavoring to procure for any person, firm or corporation, any loan from, or the purchase or discount of any paper, note, draft, check or bill of exchange, by any such bank, banking association, savings bank or trust company, or for permitting any person, firm or corporation to overdraw any account with such bank, banking association, savings bank or trust company, Is guilty of a misdemeanor. § 295. Receiving deposits in insolvent bank. An officer, agent, teller or clerk of any bank, banking association or savings bank, and every individual banker or agent, and every private banker or agent and any teller or clerk of an individual banker, or of a private banker who receives any deposit, knowing that such bank or association or banker is insolvent, is guilty of a misdemeanor, if the amount or value of such deposit be less than twenty-five dollars; if the amount or value of such deposit be twenty-five dollars or over, such person shall be guilty of a felony, punishable by imprisonment for not less than one nor more than five years, or by a fine of not less than five hundred nor more than three thousand dollars, or by both. § 296. Unlawful investments by officers of savings banks. Any officer or trustee of a savings bank authorizing or making any investment of the funds of the bank in securities, not authorized by law, is guilty of a misdemeanor. § 297. Misconduct by dircetors of moneyed corporations. Every director of a moneyed corporation who: 1. In case of the fraudulent insolvency of such corporation, shall have participated in such fraud; or, 2. Wilfully does any act as such director which is expressly forbidden by law, or wilfully omits to perform any duty imposed upon him as such director by law, Is guilty of a misdemeanor, if no other punishment is prescribed therefor by law. 711 Prenat Law. The insolvency of a moneyed corporation is deemed fraudulent unless its affairs appear upon investigation to have been admin- istered fairly, legally and with the same care and dilgence that agents receiving a compensation for their services are bound, by law, to observe. § 298. Misconduct by banks and bankers. Any moneyed corporation or individual banker authorized to carry on the business of banking under the laws of this state who: 1. Receives, pays out, gives or offers in payment as money to circulate, or who attempts to circlute as money, any bill, note or other evidence of debt issued or purporting to have been issued by any corporation or individual, situated or residing without this state, and which bill, note or other evidence of debt shall, upon any part thereof, purport to be payable or redeemable at any place or by any corporation or individual within this state; or, 2. Issues, utters or circulates, as money, or in any way, directly or indirectly, aids or assists in the. issuing, uttering or circulating as money within this state of any bank bill, note or other evidence of debt in the similitude of a bank note issued or purporting to have been issued by any corporation or individual situated or residing without this state; or procures or receives, in any manner whatever, any such bank bill, note or other evidence of debt with intent to issue, utter or circulate, or. with intent to aid in issuing, uttering or circulating the same as money within this state; or, 3. Directly or indirectly lends or pays out for paper discounted or purchased any bank bill, note or other evidence of debt, which is not received at par by such corporation or banker for debts due such corporation or banker; or, 4, Issues or puts in circulation any bank bill or note of any such corporation or banker, unless the same shall be made payable on demand and without interest, except bills of exchange on foreign countries or places beyond the limits or jurisdiction of the United States, Is guilty of a misdemeanor. Nothing in this section contained shall be construed to prohibit any such corporation or banker from receiving and paying out such foreign bank bills as they shall receive at par in the ordinary course of their business, or to prohibit such corporation or banker from receiving foreign notes from their dealers and customers in the regular and usual course of their business, at a rate of discount not exceeding that which is or shall be at the time fixed by law, for 712 Prenat Law. the redemption of the bills of the banks of this state at their agencies, or from obtaining from the corporations, associations or individuals by which such foreign notes are aoe the payment or redemption thereof. § 299. Unlawful discount of bills of foreign banks. Any person, association or corporation within the state who, directly or indirectly, on any pretense whatever, procures or receives or offers to receive from any corporation or person any bank bill or note or other evidence of debt in the similitude of a bank note issued or purporting to have been issued by any corporation or individual, situated or residing without this state, at a greater rate of discount than is or shall be at the time fixed by law for the redemption of the bills of the banks of this state at their agencies, is guilty of a misde- meanor. § 300. Misconduct by officers of banking department. The superintendent of banks, or any officer in the banking depart- ment who countersigns bills or notes for any person or corporation exceeding the value of the interest bearing stocks of the state of New York or of the United States, or other securities deposited with such superintendent by such person or corporation on account thereof, is guilty of a felony, punishable by a fine of not less than five thousand dollars or by imprisonment for not less than five years, or by both. § 301. Using dies and plates of extinct state bank. Any person who uses the dies and plates of a state bank in the manufacture of notes and bills, after such bank has become a national bank in pursuance of law, is guilty of a misdemeanor. § 302. Unauthorized use of the term “ bank.” Any person engaged in banking in this state, not subject to the supervision of the superintendent of banks, and not required by law to report to such superintendent, who was not engaged in such bank- ing before May twenty-third, eighteen hundred and eighty-five, who: 1. Uses an office sign at the place where such business is trans- acted, having thereon any artificial or corporate name, or other words indicating that such place or office is the place or office of a bank; or, 2. Uses or circulates any letter-heads, bill-heads, blank notes, blank receipts, certificates, circulars or any written or printed paper what- ever, having there any artificial or corporate name, or other word or words indicating that such business ig the business of a bank, Is guilty of a misdemeanor. 713 Prenat Law. § 367. Penalty for failure to issue bill of lading. Any person who, being the owner, master or agent of any vessel transporting merchandise or property between ports of this state, departs with such vessel or causes such vessel to depart from the port where such merchandise or property is taken on board, without giving or tendering to the shipper of such merchandise or property, if a bill of lading be demanded by such shipper, a bill of lading or shipping document as provided by section three hundred and ninety-eight of the general business law, is guilty of a misdemeanor. § 390. Acts prohibited; penalty for violation. Any person, copartnership, firm, association or corporation, whether acting in his, their or its own right, or as the officer, agent, servant, correspondent or representative of another, who shall, 1. Make or offer to make, or assist in making or offering to make any contract respecting the purchase or sale, either upon credit or margin, of any securities or commodities, including all evidences of debt or property and options for the purchase thereof, shares in any corporation or association, bonds, coupons, scrip, rights, choses in action and other evidences of debt ov vest on? ontions for the purchase thereof or anything movable that is bought and sold, wherein both the parties thereto intend, that such contract shall be or may be terminated, closed or settled according to, or upon the basis of the public market quotations of prices made on any board of trade or exchange upon which such commodities or securities are dealt in, and without intending a bona fide purchase or sale of the same ; or, 2. Makes or offers to make or assists in making or offering to make any contract respecting the purchase or sale, either upon credit or margin, of any such securities or commodities, wherein both parties intend, that such contract shall or may be deemed terminated, closed and settled when such market quotations of prices for such securities or commodities named in such contract shall reach a certain figure, without intending a bona fide purchase or sale of the same; or, 3. Mbkes or offers to make, or assists in making or offering to make any contract respecting the purchase or sale, either upon credit or margin of any such securities or commodities, wherein both parties do not intend, the actual bona fide receipt or delivery of such secu- rities or commodities, but to intend a settlement of such contract based upon the difference in such public market quotations of prices at which said securities or commodities are, or are asserted to be, bought or sold; or, 714 Pena Law. 4. Shall, as owner, keeper, proprietor or person in charge of, or as officer, director, stockholder, agent, servant, correspondent or repres- entative of such owner, keeper, proprietor or person in charge, or of any other person, keep, conduct or operate any bucket shop, as here- inafter defined; or knowingly permit or allow or induce any person, copartnership, firm, association or corporation whether acting in his, their or its own right, or as the officer, agent, servant, correspondent or representative of another to make or offer to make therein, or to assist in making therein, or in offering to make therein, any of the contracts specified in any of the three preceding subdivisions of this section, Shall be guilty of a felony and on conviction thereof shall, if a cor- poration, be punished by a fine of not more than five thousand dollars for each offense and all other persons so convicted shall be punished by a fine of not more than one thousand dollars or by imprisonment for - not more than five years, or by both such fine and imprisonment. The prosecution, conviction and punishment of a corporation here- under shall not be deemed to be a prosecution, conviction or punish- ment of any of its officers, directors or stockholders. § 391. Exhibiting quotations; penalty for violation. Any person, firm, copartnership, association or corporation receiv- ing, communicating, exhibiting or displaying in any manner any statement of quotations of prices of any such securities or commodities with an intent to make or offer to make or to assist in making or offering to make any contract prohibited in this article shall be guilty of a felony and on conviction thereof shall be punished as provided in section three hundred and ninety of this chapter. 8 392. Written statement to be furnished; presumption. Every person, firm, association, copartnership or corporation shall furnish upon written demand to any customer, or principal for whom such person has executed an order for the actual purchase or sale of any such securities or commodities, either for immediate or future delivery, a written statement containing the names of the persons from whom such property was bought, or to whom it has been sold, as the case may be, the time when, place where, the amount of and the price at which the same was either bought or sold; and if such person, firm, association, copartnership or corporation shall refuse or neglect to furnish such statement within forty-eight hours after such demand, such refusal shall be prima facie evidence that such pur- chase or sale was made in violation of this article. 715 Prenat Law. * 393. Corporations; additional penalty for second offense. If a domestic corporation shall be convicted of a second offense hereunder the supreme court shall have jurisdiction upon an action brought by the attorney-general, in the name of the people, for that purpose, to dissolve such corporation; and if a foreign corporation shall be convicted of a second offense, such court shall have jurisdic- tion in an action brought in like manner to restrain such corporation from doing busines in this state. § 394. Definitions. “ Bucket shop” shall mean ‘any building, or any room, apartment, booth, office or store therein or any other place where any contract prohibited by this article is made or offered to be made. § 421. Untrue and misleading advertisements, Any person, firm, corporation or association, or any employee thereof, who, in a newspaper, circular or other publication published in this state, knowingly makes or disseminates any statement or as- sertion of fact concerning the quantity, the quality, the value, the method of production or manufacture, or the reason for the price of his or their merchandise, or the manner or source of purchase of such merchandise, or the possession of rewards, prizes or distinctions conferred on account of such merchandise or the motive or purpose of a sale, intended to give the appearance of an offer advantageous to the purchaser which is untrue or calculated to mislead, shall be guilty of a misdemeanor. Any person, firm, corporation or association or any employee thereof who violates any provision of this section shall be liable to a fine of not less than twenty-five nor more than one hundred dollars for each offense. § 422. Marking certain articles silver, sterling silver or solid silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession, within intent to sell dispose of, any article of merchandise marked, stamped or branded with the words “sterling ” or “ sterling silver,” or incased or inclosed in any box, package, cover or wrapper, or other thing in, by or with which the said article is packed, inclosed or otherwise prepared for sale or disposition, having thereupon any engraving or printed label, stamp, imprint, mark or trade-mark, indicating or denoting by such marking, stamping, branding, engraving or printing that such article is silver, serling silver or solid silver, unless nine hundred and twenty-five one thousandths of the component parts of 716 Prnat Law. the metal of which the said article is manufactured is pure silver, is guilty of a misdemeanor. § 423. Selling silverware marked coin or coin silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise marked, stamped or branded with the words “coin” or “coin silver,” or incased or in- closed in any box, package, cover or wrapper, or other thing in, by or with which the said article is packed, inclosed or otherwise prex pared for sale or disposition, having thereupon any engraving or printed label, stamp, imprint, mark or trade-mark, indicating or denoting by such marking, stamping, branding, engraving or printing that such article is coin or coin silver, unless nine hundred one- thousandths parts of the component parts of the metal of which the said article is manufactured is pure silver, is guilty of a misdemeanor. § 424. Marking soldered metal sterling or sterling silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise, whose component parts are made of the same metal soldered together, which article is marked, stamped, or branded with the words “ sterling” or “sterling silver,” unless all of said component parts shall contain not less than nine hundred and twenty-five one-thousandths parts of pure silver, is guilty of a misdemeanor. § 425. Marking soldered metal coin or coin silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise,. whose component parts are made of the same metal soldered together, which article is marked, stamped, or branded with the words “ coin ” or “ coin silver,” unless all of said component parts shall contain not less than nine hundred one-thousandths parts of pure silver, is guilty of a mis- demeanor. 8 426. Marking metal placed on leather or other substances, sterl- ing or sterling silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise comprised of leather, shell, ivory, celluloid, pearl, glass, porcelain, pottery, steel, or wood to which is applied or attached a metal mounting marked, stamped or V1? Penat Law. branded with the words “sterling ” or “ sterling silver,” unless said applied or attached metal mounting shall contain not less than nine hundred and twenty-five one-thousandths parts of pure silver, is guilty of a misdemeanor. § 427. Marking metal placed on leather or other substances, coin or coin silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise comprised of leather, shell, ivory, celluloid, pearl, glass, porcelain, pottery, steel, or wood to which is applied or attached a metal mounting marked, stamped or branded with the words “ coin ” or “ coin silver,” unless said applied or attached metal mounting shall contain not less than nine hundred one-thousandths parts of pure silver, is guilty of a misdemeanor. § 428. Marking watch cases sterling or sterling silver. Auy person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise comprised of works or movements and a case or covering, applied or attached thereto, wholly or partially concealing said works or movements marked, stamped or branded with the words “sterling” or “sterling silver,” unless said case or covering shall contain not less than nine hundred and twenty-five one-thousandths parts of pure silver, is guilty of a misdemeanor. § 429. Marking watch cases coin or coin silver. Any person, firm, corporation or association who makes or sells, or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise comprised of works or movements and a case or covering applied or attached thereto, wholly or partially concealing said works or movements marked, stamped or branded with the words “coin” or “coin silver,” unless said case or covering shall contain not less than nine hundred one-thousandths parts of pure silver, is guilty of a misdemeanor. § 430. Marking articles made of linen. Any person, firm, corporation or association who makes or sells or offers to sell or dispose of, or has in his or its possession, with intent to sell or dispose of, any collars or cuffs marked, stamped, or branded with the words “linen,” “pure linen” or “all linen” or incased or inclosed in any box, package, cover or wrapper or other thing in, by or with which the said article is packed, inclosed or otherwise prepared 718 Preyat Law. for sale or disposition, having thereupon any engraving or printed label, stamp, imprint, mark, or trade-mark, indicating or denoting by such marking, stamping, branding, engraving or printing, that such article is “linen,” “pure linen,” or “all linen,” unless the material of which the said collars or cuffs are manufactured contains at least one fold or ply which has a flax thread in both its warp and filling, is guilty of a misdemeanor. § 431. Marking articles made of gold. Any person, firm, corporation or association who or which makes or sells or offers to sell or dispose of, or has in his or its possession with intent to sell or dispose of, any article of merchandise, constructed in whole or in part of gold or of any alloy of gold and having stamped, branded, engraved or imprinted thereon any mark indicating or designed or intended to indicate that the gold or alloy of gold in such article is of a greater degree or karat of fineness by more than one karat than the actual quality or fineness of such gold or alloy, is guilty of a misdemeanor. § 440. Conducting business under assumed name. 1. No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or trans- acting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact or intend to conduct or transact such business, a certificate setting forth the name under which such busi- ness is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post-office address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting, or intending to conduct said business. 2. Persons conducting such business under an assumed name, or under any such designation referred to in subdivision one, on Septem- ber first, nineteen hundred, shall file such certificate as hereinbefore prescribed, within thirty days after that date, and persons thereafter conducting or transacting business as aforesaid shall, before com- mencing said business, file such certificate in the manner hereinbefore prescribed. 3. The several county clerks of this state shall keep an alphabetical index of all persons filing certificates, provided for herein, and for the 719 Prenat Law. indexing and filing of such certificates, they shall receive a fee of twenty-five cents. A copy of such certificate duly certified to by the county clerk in whose office the same shall be filed shall be pre- sumptive evidence in all courts of law in this state of the facts therein contained. 4. This section shall in no way affect or apply to any corporation duly organized under the laws of this state, or to any corporation or- ganized under the laws of any other state and lawfully doing business in this state, nor shall this section be deemed or construed to prevent the lawful use of a partnership name or designation, provided that such partnership name or designation shall include the true or real name of at least one of such persons transacting such business. 5. Any person or persons carrying on, conducting or transacting business as aforesaid, who shall fail to comply with the provisions of this section shall be guilty of a misdemeanor. § 531. Coercion by employers. Any person or employer of labor, and any person of any corpora- tion on behalf of such corporation, who shall hereafter coerce or compel any person, employee, laborer or mechanic, to enter into an agreement, either written or verbal from such person, employee, laborer or mechanic, not to join or become a member of any labor organization, as a condition of such person securing employment, or continuing in the employment of any such person, employer or cor- poration, shall be deemed guilty of a misdemeanor. The penalty for such misdemeanor shall be imprisonment in a penal institution for not more than six months, or by a fine or not more than two hundred dollars, or by both such fine and imprisonment. § 660. Frauds in the organization of corporations. A person who: 1. Without authority subscribes the name of another to or inserts the name of another in any prospectus, circular or other advertise- ment or announcement of any corporation or joint-stock association existing or intended to be formed, with intent to permit the same to be published, ‘and thereby to lead persons to believe that the person whose name is so subscribed is an officer, agent, member or promoter of such corporation or association ; or, 2. Signs the name of a fictitious person to any subscription for or agreement to take stock in any corporation, existing or proposed ; or, 3. Signs to any such subscription or agreement the name of any person, knowing that such person does not intend in good faith to comply with the terms thereof, or under any understanding or 720 Prenat Law. agreement, that the terms of such subscription or agreement are not to be complied with or enforced, Is guilty of a misdemeanor. § 661. Frauds in procuring organization of corporations. An officer, agent or clerk of a corporation, or of persons proposing to organize a corporation, or to increase the capital stock of a corpora- tion, who knowingly exhibits a false, forged or altered book, paper, voucher, security or other instrument of evidence to any public officer or board authorized by law to examine the organization of such cor- poration, or to investigate its affairs, or to allow an increase of its capital, with intent to deceive such officer or board in respect thereto, is punishable by imprisonment in a state prison not exceeding ten years. § 662. Fraudulent issue of stocks and bounds. An officer, agent or other person in the service of any joint-stock company or corporation formed or existing under the laws of this state, or of the United States or of any state or territory thereof, or of any foreign government or country, who wal and knowingly, with intent to defraud: 1. Sells, pledges or issues, or causes to be sold, pledged or issued, or signs or executes, or causes to be signed or executed with intent to sell, pledge or issue, or causes to be sold, pledged or issued, any certificate or instrument purporting to be a certificate or evidence of the ownership of any share or shares of such company or corporation, or any bond or evidence of debt, or writing purporting to be a bond or evidence of debt of such company or corporation, without being first thereto duly authorized by such company or cor poration, or contrary to the charter or laws under which such corpora- tion or company exists, or in excess of the power of such company or corporation or of the limit imposed by law or otherwise upon its power to create or issue stock or evidences of debt; or, 2. Reissues, sells, pledges or disposes of, or causes to be reissued, sold, pledged or disposed of, any surrendered or canceled certificates, or other evidence of the transfer or ownership of any such share or shares, Is punishable by imprisonment for a term not exceeding seven years, or by a fine not exceeding three thousand dollars, or by both. § 663. Acting for foreign corporations net authorized to do busi- ness in this state. Any person, or corporation, who: 1. Acts as agent or representative of any mortgage, loan or invest- W21 Prenat Law. ment corporation or building and mutual loan corporation or asso- ciation or co-operative savings and loan association organized outside of this state, while such mortgage, loan or investment corporation or building and mutual loan corporation or association or co-operative savings and loan association shall not be authorized under a license of the superintendent of banks to do business in this state; or, 2. Acts as agent or representative in this state of a foreign cor- poration, other than a moneyed corporation, with the words “ trust,” “bank,” “banking,” “insurance,” “assurance,” “indemnity,” “ guarantee,” “guaranty,” “savings,’ “investment,” “loan,” “benefit,” or any other words or terms indicating, representing or holding out such company to be a moneyed corporation as a part of its name or corporate title, or who, in connection with such corpora- tion or otherwise, shall put forth any sign containing such name, or who shall advertise or publish the said company as doing business in this state, directly or indirectly, through agents or otherwise, while such company shall not be authorized under a certificate procured from the secretary of state pursuant to section fifteen of the general corporation law to do business in this state, Is guilty of a misdemeanor. § 664. Misconduct of officers and directors of stock corporations. A director of a stock corporation, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended : 1. To make a dividend, except from the surplus profits arising from the business of the corporation, and in the cases and manner allowed by law; or, 2. To divide, withdraw, or in any manner pay to the stockholders, or any of them, any part of the capital stock of the corporation; or to reduce such capital stock without the consent of the legislature ; or, 3. To discount or receive any note or other evidence of debt in pay- ment of an instalment of capital stock actually called in, and required to be paid, or with intent to provide the means of making such pay- ment ; or, 4. To receive or discount any note or other evidence of debt with intent to enable any stockholder to withdraw any part of the money paid in by him on his stock; or, 5. To apply any portion of the funds of such corporation, except surplus profits, directly or indirectly, to the purchase of shares of its own stock, 722 Prenat Law. Is guilty of a misdemeanor. An officer or director of a stock corporation who: 6. Issues, participates in issuing, or concurs in a vote to issue any increase of its capital stock beyond the amount of the capital stock thereof, duly authorized by or in pursuance of law; or, 7. Sells, or agrees to sell, or is directly or indirectly interested in the sale of any share of stock of such corporation, or in any agree- ment to sell the same, unless at the time of such sale or agreement he is an actual owner of such share, Is guilty of a misdemeanor, punishable by imprisonment for not less than six months, or by a fine not exceeding five thousand dollars or by both. § 665. Misconduct of directors, officers, agents and employees of corporations, A director, officer, agent or employee of any corporation or joint- stock association who: 1. Knowingly receives or possesses himself of any of its property otherwise than in payment for a just demand, and with intent ta defraud, omits to make or to cause or direct to be made a full and true entry thereof in its books and accounts; or, 2. Makes or concurs in making any false entry, or concurs in omitting to make any material entry in its books or accounts; or, 3. Knowingly (a), concurs in making or publishing any written report, exhibit or statement of its affairs or pecuniary condition con- taining any material statement which is false, or (b), omits or con- curs in omitting any statement required by law to be contained therein; or, 4, Having the custody or control of its books, wilfully refuses or neglects to make any proper entry in the stock book of such corpora- tion as required by law, or to exhibit or allow the same to be inspected, and extracts to be taken therefrom by any person entitled by law to inspect the same, or take extracts therefrom; or, 5. If a notice of an application for an injunction affecting the property or business of such joint-stock association or corporation is served upon him, omits to disclose the fact of such service and the time and place of such application to the other directors, officers and managers thereof ; or, 6. Refuses or neglects to make any report or statement lawfully required by a public officer, Is guilty of a misdemeanor. 723 Prenat Law. § 666. Unlawful use of certain titles in connection with corporate name, Any person, association or corporation, other than a moneyed cor- poration, who shall within this state directly or indirectly, or through agents or representatives transact business under, or in anywise use a corporate name or a corporate title with the words “ trust,” “ bank,” “banking,” “insurance,” “assurance,” indemnity,” “ guarantee,” “ guaranty,” “saving,” “investment,” “loan,” “benefit,” as a part of such name or title, is guilty of misdemeanor; provided, however, that any domestic corporation, other than a moneyed corporation, heretofore duly organized and heretofore duly authorized by law to use and on April twenty-ninth, nineteen hundred and four, lawfully using either or any of such words as a part of its lawful corporate title, may lawfully continue to use such corporate title, provided and if it, being a corporation other than a moneyed corporation, shall, wherever the name shall be printed, written, engraved or displayed, add, in legible English characters, of substantially the same size and style as the name, directly under the said name or immediately in connection therewith, wherever so used, the words “not a moneyed corporation.” § 667. Presumption of knowledge of corporate condition and busi- mess and of assent thereto by directors; definitions. It is no defense to a prosecution for a violation of the provisions of this article and article twenty-six, that the corporation is a foreign corporation, if it carries on business or keeyis an offi-e therefor in this state. The term “ director” as used in this article and article twenty-six includes any of the persons having, by law, the direction or manage- ment of the affairs of a corporation, by whatever name described. A director of a corporation or joint-stock association is deemed to have such a knowledge of the affairs of the corporation or association as to enable him to determine whether any act, proceeding or omis- sion of its directors is a violation of this article and article twenty- six. If present at a meeting of the directors at which any act, pro- ceeding or omission of such directors in violation of this article and article twenty-six occurs, he must be deemed to have concurred therein, unless he at the time causes or in writing requires his dissent therefrom to be entered on the minutes of the directors. If absent from such meeting, he must be deemed to have concurred in any such violation, if the facts constituting such violation appear on the record or minutes of the proceedings of the board of directors, and he remains a director of the corporation for six months thereafter without causing 724 Prenat Law. or in writing requiring his dissent from such violation to be entered on such record of minutes. § 668. Misconduct at corporate elections, Any person who: 1. Being entitled to vote at any meeting of the stockholders or bondholders or both of a stock corporation, sells his vote, or who issues a proxy to vote to any person for any sum of money or thing of value, except as expressly authorized by law; or, 2. Acts as an inspector of election at any such meeting and violates an oath taken by him in pursuance of law as such inspector, or violates the provisions of an oath required by law to be taken by him as such inspector, or is guilty of any dishonest or corrupt conduct as such inspector, Is guilty of a misdemeanor. § 669. Misconduct of officers and agents of pipe-line corporations. Any officer, agent or manager of a pipeline corporation who: 1. Neglects or refuses to transport any product delivered for trans- portation, or to accept and allow a delivery thereof in the order of application, according to the general rules of the corporation, as provided by law; or, 2. Charges, accepts or agrees to accept for such receipt, transporta- tion and delivery, a sum different from the amount fixed by such regulations ; or, 3. Allows or pays, or agrees to allow or pay, or suffers to be allowed or paid or repaid, any draw-back, rebate or allowance, so that any person shall, by any device, have or procure any transportation of products over such pipe-line at a less’ rate or charge than is ‘fixed in such regulations, Is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or by imprisonment not exceeding six months, or by both. § 890. Officer of corporation selling fraudulent shares. An officer, agent or other person employed by any company or cor- poration existing under the laws of this state, or of any other state or territory of the United States, or of any foreign govern- ment, who wilfully and with a design to defraud, sells, pledges or issues, or causes to be sold, pledged or issued, ,or signs or procures to be signed with intent to sell, pledge or issue, or to be sold, pledged or issued, a false, forged or fraudulent paper, writing or instrument, being or purporting to be a scrip, certificate or other evidence of the Y25 Prenat Law. ownership or transfer of any share or shares of the capital stock of such company or corporation, or a bond or other evidence of debt of such company or corporation, or a certificate or other evidence of the ownership or of the transfer of any such bond or other evidence of debt, is guilty of forgery in the third degree, and upon conviction, in addition to, the punishment prescribed in section eight hundred and ninety-three of this chapter for that offense, may also be sentenced to pay a fine not exceeding three thousand dollars. § 924. Fictitious copartmership names, A person who transacts business, using the name, as partner, of one not interested with him as partner, or using the designation “ and company,” or “ & Co.” when no actual partner is represented thereby is guilty of a misdemeanor. But this section does not apply to any case, where it is specially prescribed by statute that a partnership name may be continued in use by a successor, survivor, or other person. § 12°70. Refusal to admit inspector to mines; tunnels, and quar- ries; failure to comply with requirements of inspector. A person: 1. Refusing to admit the commissioner of labor, or any person authorized by him, to a mine, tunnel or quarry, and to each and every part thereof, for the purpose of examination and inspection; or, 2. Neglecting or refusing to comply with the provisions of article nine of the labor law upon written notice of the commissioner of labor, Is guilty of a misdemeanor, and upon conviction therefor shall be punished by a fine of not less than fifty dollars, or by imprisonment for not less than thirty days. § 1271. Hours of labor to be required. Any person or corporation : 1. Who, contracting with the state or a municipal corporation, shall tequire more than eight hours work for a day’s labor; or, 2. Who shall require more than ten hours labor, including one- half hour for dinner, to be performed within twelve consecutive hours, by the employees of a street surface and elevated railway owned or operated by corporations whose main line of travel or routes lie prin- cipally within the corporate limits of cities of more than one hundred thousand inhabitants; or, 3. Who shall require the employees of a corporation owning or 726 Prenat Law. operating a brickyard to work contrary to the requirements of section five of the labor law; or, 4. Who shall require or permit any employee engaged in or con- nected with the movement of any train of a corporation operating a line of railroad of thirty miles in length, or over, in whole or in part within this state, to remain on duty more than sixteen consecutive hours; or to require or permit any such employee who has been on duty sixteen consecutive hours to go on duty without having had at least ten hours off duty; or to require or permit any such employee who has been on duty sixteen hours in the aggregate in any twenty- four hour period, to continue on duty or to go on duty without having had at least eight hours off duty within such twenty-four hour period; except when by casualty occurring after such employee has started on his trip, or by unknown casualty occurring before he started on his trip, and except when by accident or unexpected delay of trains scheduled to make connection with the train on which such employee is serving, he is prevented from reaching his terminal ; Is guilty of a misdemeanor, and on conviction therefor shall be punished by a fine of not less than five hundred nor more than one thousand dollars for each offense. If any contractor with the state or a municipal corporation shall require more than eight hours for a day’s labor, upon conviction therefor in addition to such fine, the contract shall be forfeited at the option of the municipal corporation. § 1272. Payment of wages. A corporation or joint-stock association or a person carrying on the business thereof, by lease or otherwise, who does not pay the wages of its employees in cash, weekly or monthly as provided in article two of the labor law, is guilty of a misdemeanor, and upon conviction therefor, shall be fined not less than twenty-five nor more than fifty dollars for each offense. § 1273. Failure to furnish seats for female employees. Any person employing females in a factory or mercantile establish- ment who does not provide and maintain suitable seats for the use of such employees and permit the use thereof by such employees to such an extent as may be reasonable for the preservation of their health, is guilty of a misdemeanor. 8 1274. No fees to be charged for services rendered by free public employment bureaus. A person connected with or employed in a free public employ- 729 Prenat Law. ment bureau, who shall charge or receive direetly or indirectly, any fee or compensation from any person applying to such bureau for help or employment, is guilty of a misdemeanor. § 1275. Violations of provisions of labor law. Any person who violates or does not comply with: 1. The provisions of article three of the labor law, relating to the department of labor ; 2. The provisions of article four of the labor law, relating to the bureau of labor statistics ; 3. The provisions of article five of the labor law, relating to the bureau of factory inspection ; 4. The provisions of article six of the labor law, relating to fac- tories ; 5. The provisions of article seven of the labor law, relating ta the manufacture of articles in tenements ; 6. The provisions of article eight of the labor law, relating to bakeries and confectioneries ; 7. The provisions of article eight of the labor law, relating to mer- cantile establishments, and the employment of women and children therein ; 8. And any person who knowingly makes a false statement in or in relation to any application made for an employment certificate as to any matter required by articles six and eleven of the labor law to appear in any affidavit, record, transcript or certificate therein pro- vided for, Is guilty of a misdemeanor and upon conviction shall he punished for a first offense by a fine of not less than twenty nor more than fifty dollars; for a second offense by a fine of not less than fifty ner more than two hundred dollars, or by imprisonment for not more than thirty days or by both such fine and imprisonment ; for a third offense by a fine of not less than two hundred and fifty dollars, or by im- prisonment for not more than sixty days, or by both such fine and im- prisonment. § 1562. Redemption of unused passage tickets. Every person who shall have purchased a passage ticket from an authorized agent of a railroad company, which shall not have been used, or shall have been used only in part, may, within thirty days after the date of the sale of said ticket, present the same, unused or partly used, for redemption, at the general office of the railroad com- pany which issued said ticket, or at the ticket office where said ticket was sold, or at the ticket office at the point to 728 Prenat Law. which the ticket has been used. If said ticket, wholly unused, shall be presented for redemption at the ticket office where sold, the same shall be then and there redeemed by the agent in charge of said ticket office at the price paid for said ticket. If said ticket, partly used, shall be presented for redemption at the ticket office where sold, or at the ticket office at the point to which used, the ticket agent at either of said offices, upon the delivery of said ticket, shall issue to the holder thereof a receipt, properly describing said ticket and setting forth the date of the receipt of said ticket, and the name of the person from whom received, and shall thereupon forthwith transmit said ticket for redemption to the general office. It shall be the duty of every railroad company to redeem tickets presented for redemption, as in this section provided for, promptly and within not to exceed thirty days from the date of presentation at the general office or from the date of the aforesaid receipt. A wholly unused ticket shall be redeemed at the price paid therefor. A partly used ticket shall be redeemed at a rate which shall be equal to the difference between the price paid for the whole ticket and the cost of a ticket of the same class between the points for which said ticket was actually used. Mileage books shall be redeemed within thirty days after the date of the expiration thereof in the same manner. Every railroad company which shall wrongfully refuse redemption, as in this section pro- vided for, shall forfeit to the aggrieved party fifty dollars, which sum may be recovered, together with the amount of redemption money to which the party is entitled, in an action in any court of competent jurisdiction, together with costs ; but no such action can be maintained unless commenced within one year after the cause of action accrued. § 1566. Street surface railroad transfer tickets not to be given away or sold. No transfer ticket or written or printed instrument giving, or pur- porting to give, the right of transfer to any person from a public con- veyance operated upon one line or route of a street surface railroad to a public conveyance upon another line or route of a street surface railroad, or from one car to another car upon the same line of street surface railroad, shall be issued, sold or given except to a passenger lawfully entitled thereto. Any person who shall issue, sell or give away such a transfer ticket or instrument as aforesaid to a person not lawfully entitled thereto, and any person not lawfully entitled thereto who shall receive and use or offer for passage any such transfer ticket or instrument, or shall sell or give away such transfer ticket or in- strument to another with intent to have such transfer ticket used or 729 Prenat Law. offered for passage after the time limited for its use shall have ex- pired, shall be guilty of a misdemeanor. § 1567. Offices kept for unlawful sale of passage tickets declared disorderly houses, All offices kept for the purpose of selling passage tickets in violation of any of the provisions of this article, and all offices where any such sale is made, are deemed disorderly houses; and all persons keeping any such office, and all persons associating together for the purpose of violating any of the provisions of this article, are punishable by imprisonment in a county jail for a period not exceeding six months. § 1568. Owners, pursers and clerks allowed to sell tickets. The provisions of this article do not prevent the actual owners or consignees of any vessel, from selling passage tickets thereon; nor do they prevent the purser or clerk of any vessel from selling in his office on board of such vessel, any passage ticket upon such vessel. § 1569. Station masters, conductors and agents allowed to sell tickets. The provisions of this article do not prevent the station master or other ticket agent upon any railway, from selling in his office at any station on such railway, any passage tickets upon such railway; nor do they prevent any conductor upon a railway from selling such tick- ets upon the trains of such railway. § 1913. Employment by common carrier of person addicted to intoxication. Any person or officer of an association or corporation engaged in the business of conveying passengers or property for hire, who shall employ in the conduct of such business, as an engineer, fireman, conductor, switch-tender, train dispatcher, telegrapher, commander, pilot, mate, fireman or in other like capacity, so that by his neglect of duty the safety and security of life, person or property so conveyed might be imperiled, any person who habitually indulges in the in- temperate use of liquors, after notice that such person has been intoxicated, while in the active service of such person, association or corporation, shall be guilty of a misdemeanor. § 1980. Unlawful acts of and neglect of duty by railroad officials. An officer, agent, attorney or employee of a railroad corporation, who: 1. Offers a place, appointment, position or any other consideration to a public service commissioner or to a secretary, clerk, agent, employee or expert employed by the public service commissions; or, 730 Prenat Law. 2. After due notice, neglects or refuses to make or furnish any statement or report lawfully required by the public service com- missions, or wilfully hinders, delays or obstructs such commissioners in the discharge of their official duties. Is guilty of a misdemeanor. § 1981. Misconduct of public service commissioners and their employees. Any public service commissioner, or any secretary, clerk, agent, expert or other person employed by the public service commissions, who: 1. Directly or indirectly solicits or requests from or recommends to any railroad corporation, or to any officer, attorney or agent thereof, the appointment of any person to any place or position; or, 2. Accepts, receives or requests, either fot himself or for any other person, any pass, gift or gratuity from any railroad corporation; or, 3. Secretly reveals to any railroad corporation, or to any officer, member, or employee thereof, any information gained by him from any other railroad corporation, Is guilty of a misdemeanor. § 1982. Person unable to read not to act or be employed as engineer; telegraph operators, Any person unable to read the time-tables of a railroad and ordi- nary handwriting, who acts as an engineer or runs a locomotive or train on any railroad in this stte, or any, person who, in his own behalf, or in the behalf of any other person or corporation, knowingly employs a person so unable to read to act as such engineer or to run any such locomotive; or who employs a person as a telegraph operator who is under the age of eighteen years, or who has less than one year’s experience in telegraphing, to receive or transmit a telegraphic mes- sage or train order for the movement of trains, is guilty of a mis- demeanor. § 1983. Misconduct of officials or employees on elevated railroads. Any conductor, brakeman, or other agent or employee of an ele- vated railroad, who: 1. Starts any train or car of such railroad, or gives any signal or order to any engineer or other person to start any such train or car, before every passenger therein who manifests an intention to depart therefrom by arising, or moving toward the exit thereof, has departed therefrom; or before every passenger on the platform or station at which the train has stopped, who manifests a desire to enter the train, has actually boarded or entered the same, unless due notice is given 731 Prenat Law. by an authorized employee of such railroad that the train is full, and that no more passengers can then be received; or, 2. Obstructs the lawful ingress or egress of a passenger to or from any such car; or, : 3. Opens a platform gate of any such car while the train is in motion, or starts such train before such gate is firmly closed, Is guilty of a misdemeanor, § 1984. Intoxication or other misconduct of railroad or steamboat employees. 1. Any person who, being employed upon any railway as engineer, conductor, baggage-master, brakeman, switch-tender, fireman, bridge- tender, flagman, signal man, or having charge of stations, starting, regulating or running trains upon a railroad, or, being employed as captain, engineer or other officer of a vessel propelled by steam, is in- toxicated while engaged in the discharge of any such duties; or, 2. An engineer, conductor, brakeman, switch-tender, or other officer, agent or employee of any railroad corporation, who wilfully violates or omits his duty as such officer, agent or employee, by which human life or safety is endangered, the punishment of which is not otherwise prescribed, Is guilty of a misdemeanor. § 1985. Ringing bells and blowing whistles at crossings; obstruct- ing highways. A person acting as engineer, driving a locomotive on any railway in this state, who fails to ring the bell, or sound the whistle, upon, such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level, except in cities, or to continue the ringing of such bell or sounding such whistle at intervals, until such locomo- tive and the train to which the locomotive is attached shall have com- pletely crossed such road or street, or any officer or employee of a corporation in charge of a locomotive, train or car, who shall wilfully obstruct, or cause to be obstructed, any farm or highway crossing with any locomotive, train or car for a longer period than five con- secutive minutes, is guilty of a misdemeanor. § 1986. Placing passenger cars in front of other cars. A person being an officer or employee of a railway company, who knowingly places, directs, or suffers a freight, lumber, merchandise or oil car to be placed in rear of a car used for the conveyance of passen- gers in a railway train is guilty of a misdemeanor. 732 Prenat Law. § 1987. Platforms and heating apparatus of passenger cars. A railroad corporation, or any officer or director thereof having charge of its railroad, or any person managing a raiload in this state, or any person or corporation running passenger cars upon a railroad into or through this state, who: 1. Fails to have the platforms or ends of the passenger cars run upon such railroad constructed in such manner as will prevent pas- sengers falling between the cars while in motion; or, 2. Except temporarily, in case of accident or emergency, heats any passenger car, while in motion, on any such railroad more than fifty miles in length, except a narrow-gauge railroad which runs only mixed trains, between October fifteenth and May first, by any stove or fur- nace inside of or suspended from such car, except stoves of a pattern and kind approved by the public service commissions for cooking pur- poses in dining-room cars, and except within the extended time al- lowed by the public service commissions, in pursuance of law, for introducing other heating apparatus, Is guilty of a misdemeanor. § 1988. Guard posts; automatic couplers. All corporations and persons other than employees, operating any steam railroad in this state: 1. Failing to cause guard posts to be placed in prolongation of the line of bridge trusses upon such railroad, so that in case of derailment, the posts and not the trusses shall receive the blow of the derailed locomotive or car; or, 2. Failing to equip all of their own freight cars, run and used in freight or other trains on such railroad, with automatic self-couplers, or running or operating on such railroad any freight car belonging to any such person or corporation, without having the same equipped, except in case of accident or other emergency, with automatic self- couplers, and except within the extended time allowed by the public service commission, in pursuance of law, for equipping such car with such couplers, is guilty of a misdemeanor, punishable by a fine of five hundred dollars for each offense. § 198y. Inciting railroad employees not to wear uniform; unauthorized wearing of uniform. A person who: 1. Advises or induces any one, being an officer, agent or employee of a railway company, to leave the service of such company, because it requires a uniform to be worn by such officer, agent or employee, or to refuse to wear such uniform, or any part thereof; or, 733 Prenat Law. 2. Uses any inducement with a person employed by .a railway com- pany to go into the service or employment of any other railway com- pany, because a uniform is required to be worn; or, 3. Wears the uniform designated by a railway company without authority, Is guilty of a misdemeanor. § 1990. Riding on freight trains; boarding cars in motion; obstructing passage of car. 1. A person who rides on any engine or any freight or wood car of any railway company, without authority or permission of the proper officers of the company or of the person in charge of said car or en- gine; or, 2. Who gets on any car or train while in motion, for the purpose of obtaining transportation thereon as a passenger; or, .8. Who wilfully obstructs, hinders or delays the passage of any car lawfully running upon any steam or horse, or street railway, Is guilty of a misdemeanor. § 1994. Injuring railroad property and appurtenances; obstructing tracks. A person who wilfully: 1. Displaces, loosens, removes, injures or destroys any rail, sleeper, switch, bridge, viaduct, culvert, embankment or structure or any part ‘thereof, attached, appertaining to or connected with any railway, or ‘by any other means attempts to wreck, destroy, or so damage any car, tender, locomotive or railway train or part thereof, while moving or standing upon any railway track in this state, as to render such car, ‘tender, locomotive or railway train wholly or partially unfitted for its ordinary use, whether operated by steam, electricity or other motive power ; or, 2. Places any obstruction upon the track of any such railway; or, 3. ‘Wilfully destroys or breaks any guard erected or maintained by a railroad corporation as a warning signal ‘for ‘the protection of its employees ; or, _ 4, Wilfully discharges a loaded fire-arm, or projects, or throws a -Stone or other missile at a railway train, or at a locomotive, car or vehicle standing or moving upon a:railway ; or, 5. Wilfully displaces, removes, cuts, injures or destroys any wire, insulator, pole, dynamo, motor, locomotive, or any part -thereof, -attached, appertaining :to or connected with any railway operated by electricity,.or wilfully interferes with or interrupts any motive power ~ used in running such road,-:or wilfully places:any obstruction-upon the 34 Pewat Law. track of such railroad, or wilfully discharges a loaded fire-arm, or projects or throws a stone or any other missile at such railway train or locomotive, car or vehicle, standing or moving upon such rail- way ; or, 6. Removes a journal brass from a car while standing upon any railroad track in this state, without authority from some person who has a right to give such authority, Is punishable as follows: First. If thereby the safety of any person is endangered, by imprisonment for not more than twenty years. Second. In every other case by imprisonment for not more than five years. § 2350. Trade-mark defined. A “trade-mark ” is-a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person, or corporation, or any letter, word, device, em- blem, figure, seal, stamp, diagram, brand, wrapper, ticket, stopper, label or other mark, lawfully adopted by him, and usually affixed to an article of merchandise to denote that the same was imported, manu- factured, produced, sold, compounded, bottled, packed or otherwise prepared by him; and also a signature or mark, used or commonly placed by a painter, sculptor or other artist, upon a painting, drawing, engraving, statute or other work of art, to indicate that the same was designed or executed by him. 735 GENERAL CORPORATION LAW. No. 1. Amended or supplemental certificate. Stare or New York, es We, the undersigned, directors of ...... » under the authority given by section 7 of the general corporation law of 1892, do hereby certify that, in the original (or amended or supplemental) certificate of in- corporation, a matter, not authorized by law to be therein stated, has been inserted (or a matter required to be stated therein has been omitted), to wit: (here particularly state the defect.; ...........- To conform to the poquivetiente of the law, we do make eee file this [amended certificate, and for such purpose certify and allege as follows: (Here set forth all the allegations of the former certificate, supply- ing or omitting the aforesaid recital.) In witness whereof, we, the said directors, have executed this cer- tificate in duplicate, and hereto set our hands this .... day of (Signatures of Directors.) State or New York, County of....... On this .... day of ...... , 18—, before me personally came .... .+.+++.+++, to me known to be the persons described in, and who exe- cuted, the foregoing amended certificate, and they severally acknowl- edged that they executed the same for the intents and purposes therein mentioned. Justice of the peace. No. 2. Proxy to Vote. Kiwow ALL MEN BY THESE PRESENTS, that I, Thomas Doe, do 13? Generat Corporation Law. hereby constitute and appoint John Jones to be my lawful attorney, substitute and proxy, for me and in my name, to vote on all the stock held by me in the Jones Manufacturing Company, at any elec- tion for directors, as fully as I might or could do, were I personally present at such election. And I hereby révoke any proxy or proxies heretofore given by me to any person or persons whomsoever. In witness whereof, I have herewnto set my hand and seal this . day of ...... , 18—. (Signed) THomuas Dos. [L. s.] In presence of RicHaRp Roe. Spats or New Yorx, a Thomas Dove, beitg: duly sworn; says thatthe stock (or bonds) upon whicl the foregoitig: power or ptoxy to vote is given are in hie posses- sion and! urider his control; thdt he- has ret: ceased to retain title thereto, and that: thie fordgoing power ot proxy to vote has not been issued for any sum of money or anything of value. (Juratiy —, No: 3. Form of Consent. Start’ or New’ You, County of....... We, the stockholders of the ...... , a domestic cofporation, owning two-thirds int amourit’ of its capital stock, do, pursuant to the pro- visions of section 32 of the General Corporation Law of 189%, hereby certify that we severally consent to the extension of the term of the corporate’ existence’ of sid’ ebiipany for a further’ period of ...... years beyond! the tine’ fixed, By the’ certificate of incorporation, for the termination of its‘ corporate exivterice: Tn witness! whereof, we have hereto’ severally set our hands and annexed thereto the respective number of shares of stovk owned by us, in said company, this .... day of ......, 18—. (Names and stock) (For instance). tereass 50 Shares. 83. 7338 GenrraL Corporation Law. (Acknowledgment clause as in No. 1.) State or New York, County of....... Meee ale , being duly sworn, says that he is the .... of the corpora- tion named in the foregoing consent and the custodian of its stock- book; that the persons, whose names are subscribed to such consent, are the owners, upon the books of said corporation, of the number of shares of stock therein set opposite to their respective signatures to the above consent, and that such stock constitute at least two-thirds in the amount of the capital stock of said corporation.. (Jurat.) ss. 939 STOCK CORPORATION LAW. No. 1. Form of certificate of incorporation. Stats oF New York, County of....... { - We, the undersigned, do, in conformity with the provisions of sec- tion 3 of the Stock Corporation law, hereby certify to the following matters: The property and franchises of the ...... , a domestic corporation, organized under chap. .. of the laws of ...., were duly sold, on the .... day of ...., 18.., by virtue of a judgment of the ...... court of this state, dated and entered in the office of the clerk of the county OL estes , on the .... day of ...., 18—. The property, sold as above stated, is described as follows: (Here give brief description.) At such sale, the said property was purchased by ...... , who desire to become a corporation, and have associated with themselves the following persons, a majority of whom are citizens and residents of this state, and all unite with the purchasers in this certificate. (Here insert names.) The name of the corporation intended to be formed by the filing of this certificate is (state name.) The maximum amount of its capital stock is (state amount of capi- tal stock), and the number of shares into which the same is to be divided is (give number), of which .... shares are to be common stock, and .... shares are to be preferred stock. The rights pertain- ing to each class shall be as follows: (Here particularly describe such rights. ) The number of directors, who shall manage the affairs of the new corporation for the first year, and their names and post-office address are as follows: Names. Post-office address. 740 Stock Corporation Law. The following plan or agreement was entered into at or previous to the time of such sale, in anticipation of the formation of a new corpo- ration, and the purchase was made pursuant to it: (Here insert plan or agreement, if any.) In witness whereof, we, the said purchasers, and their associates (if any), have hereto set our hands, this .... day of ...., 18... (Signatures. ) (Add acknowledgment clause as in No. 1 of General Corporation Law.) No. 2. Form of certified transcript of the minutes, etc. Stare or New York, County of......: We, the undersigned, president and secretary, do hereby certify that the following is a correct transcript of the minutes of a meeting of stockholders of the ...... , held pursuant to article 2 section 21 of the stock corporation law, to wit: A special meeting of the stockholders of the ...... was held this day at .... O’clock .. M. to determine whether the number of direc- tors shall be increased (or reduced). Such meeting was held at the office of the company, the usual place of meeting of its directors, on two weeks’ notice in writing to each stockholder of record; such notice having been served personally, or by mail, postage prepaid, directed to each stockholder at his last known post-office address. The following is a true copy of said notice: “ Notice to Stockholders. died pe Ne eiany 18a Notice is hereby given that a special meeting of the stockholders of the ...... will be held .at the office of the company at No. ... . st. in the ...., N. Y., on the .... day of ...., 18.., at .. o’clock .. M. of that day, to determine whether the number of its directors shall be increased (or reduced, as the case may be). Secretary of ....... Proof of service of said was duly filed in the office of the corpora- tion at or before the time of such meeting. At the time and place mentioned in such notice, the meeting was 741 Siock Corpoxatron Law. held pursuant thereto, and duly organized’ by choosing ...... » presi- dent, and’ ...... , secretary’ thereof. The following resolution was duly moved’ by ...... and duly seconded by ...... anid: adopted on a vote taken by ayes and noes: “ Resolved, that the number of diréctors of the'...... be’ inicreased (or reduced, as the case may be), from ...., the present number, The following stockholders, owning the number of shares of stock set opposite their respective names, voted in favor of such resolution, to wit: Names. Number of shares. mses’. ; aman lee The following shareholders, owning the number of shares of stock set opposite their respective names, voted against its adoption, to’ wit: Names: Number of shares. (If none voted against its passage, then state in place of last clause.) No stockholder voted against its adoption. Said resolution was thereupon declared duly adopted, and the meet- ing adjourned. In witness whereof, we have made, subscribed arid verified the fore- going certificate, this .... day of ...... eESese ere » President sj onveie , Secretary State or New York, ) County of....... si neGiee 2 and ......, being severally duly sworn, does, edch for him- self, say, that they are the persons chosen president and secretary, respectively, of the meeting of stockholders of the ...... » held at the time and place above mentioned, to determine whether the number of directors thereof shall be increased (or reduced, as the case may be) ; that the foregoing is a correct transcript of the proceedings of such meeting, as entered in the minutes of the corporation, and the whole thereof. (Surat yee A form for the notice of such special meeting is found in the fore- going form. 442 Sitocx Conboraitton Law- No. 3. Section 28 of Stock Corporation Law. Form of oath of inspectors of election. State or New Yorx, ; s saat and ...... and ......, the inspectors duly appointed to act as such at the election of directors at the annual meeting of the stockholders of ...... » being severally duly sworn, does each for himself say, that he will faithfully execute the duties of inspector at such meeting with strict impartiality and according, to the best of his ability. (Jurat.) 6 ties rr eee eece No. 4. _ Form of Certificate of Inspectors. State or New Yorx, County of....... We, the inspectors of election of ...... , duly appointed #6 act at the annual meeting of the stockholders of sack corporation, do hereby certify as follows, to wit: Such meeting was held at.the office of the company on the .... day of ...., 18.., at .... o’clock, in the .... noon of that ded Before entering spor the discharge ‘of our duties, we subscribed and took the required oath, which is hereto annexéd, marked “ Ex. A,” and: hereby made a part of this certificate. At such meeting, the election of ...... directors to manage the affairs for the ensuing year was held. It was found, upon a canvas of the votes cast at such election, that ...... votes, representing. ...... shares of the capital stock, had been cast, as follows: For evsacx 5 OF ace rs ea votes ee : OF bade bey mae re SOL eisai ‘gales eouued SOL eee wits sdaniseees CFP x uiatess » Of sseasy aie ataee Wheretpon the adid « c..0.s5 wenbesy cinsveg veeees pO, a dsass were declared by us duly elected fame of sich corporation for ‘the ensuing year. 743 Srock Corporation Law. In witness whereof, we have signed and acknowledged this certifi- cate, this .... day of ...., 18... (Surat) ee 3 Inspectors. Acknowledgment clause as in No. 1 of General Corporation Law. No. 5. Annual Report. State or NEw York, Albany City and County, The Jones Manufacturing Company of Albany, N. Y., hereby makes its annual report as of the Ist day of January, 18... 1. The capital stock of said company is $...... » all of which is issued (if not all issued state the proportion actually issued). 2. The amount of its debts does not exceed the sum of (insert amount) dollars. 3. The amount of its assets is at least the sum of (insert amount) dollars. 4. The amount of its stock issued for property purchased is (in- sert amount) dollars. (After the sheets containing the statements above referred to, here is to be added). This report, made by said corporation, is signed by its president or vice-president, as the case may be. Dated Arpany, January ...., 18... (Signed) JOHN JONES, President. ss, Sworn to before me this .... day of January, 18.., SaraH Doz, Notary Public, Albany Co. No. 6. Form of certificate of stock. No. ..... No. of shares....... Par value of each $..... The ...... Company. This is to certify that ...... is the owner of .... shares of the 744 Srocx Corporation Law. capital stock of the ...... company, transferable only on the books of the company by the holder thereof, in person or by attorney, on the surrender of this certificate. In witness whereof, the said company has caused its corporate seal to be affixed hereto and this certificate to be signed by its president and treasurer. On. back of the certificate, a blank transfer, in following form, should be printed. For value received, hereby sell, assign and transfer unto binictea tue > Shares of the within mentioned stock, and do hereby consti- tute and appoint ...... attorney to transfer the same on the books of the company. Witness my hand and seal, this .... day of ...... 5p LB ioe Witnesses ee (Seal.) No. 7%. i Form of certificate. State or New York, { e County of....... We, , chairman, and ...... , secretary, of a special meeting of the stockholders of the ...... , *a domestic corporation, held for the purpose of increasing (or reducing, as the case may be), its capi- tal stock, do hereby certify: A notice of such meeting, of which the following is a true copy, was published once a week,} for at least two successive weeks, in eanweae » @ newspaper in the county, where its principal business office is located, and a copy of such notice was served personally upon, or duly mailed, postage prepaid, to each stockholder or member of the company, at his post-office address at least two weeks before the meeting. [or, That a copy of such notice was personally served at least five days before such meeting upon the following named stock- holders :] Notice to Stockholders.—A special meeting of the stockholders of the ...... will be held, on .... day of ...... ,18.. at .... o’clock .. M. at its office, at No. .... st. in the .... of ...... N. Y., for the purpose of voting upon a proposition { to increase (or decrease, as the case may be) its capital stock from .... dollars, consisting of 745 Sroex Corporation Law. .. shares of the par value of ..... doljars each, to .... dollars, to consist of ...,. shares of the par value of .... dollars each. Dated, etc. sesso Directors owning at least a majority | of stock: i At the time and place named in such notice, stockholders of such company, representing at least a majority of all its shares of stock, appeared in person .or by proxy, and organized by choosing, from their number, the undersigned ...... » as chairmap, and ......, a8 -Beeretary. A vote.of thoge present, in pergon or by proxy, was taken upon the following resolution: “ Resolved, that the capital stock of ...... be increased (or reduced, as the case may be), from its present amount OL ae Moe dollars, congisting of ...... shares of the par value of --:.,. Gollars each, to ....... dollars, to consist of ...... shares of the par value of ...... dollars each.” Stockholders, owning .... shares of stock, being at least a major- ity of the stock of the company, voted in favor of such resolution. Stockholders, owning .... shares of stock, voted against its adop- tion. (In case of no opposing vote, then substitute for the last clause the following :) . And no stockholder voted against its adoption. ‘Such resolution was thereupon declared duly adopted. The amount of capital of the .corporation actually paid in is . dollars. The whole amount of its debts and liabilities is —— dollars. The amount of the increased (or reduced, as the case may be) capital stock is .... dollars. In witness whereof, we have made, | a acknowledged and verified this certificate, this .. . day of . > 18. (Add acknowledgment dens as in To. 1 of Genetail Corporatiqn law.) State or New York, { sa County Of ....0. f 7 Bpishens , chairman, and ......, secretary of the said meeting, being severally duly sworn, does each for himself say that he has read the foregoing certificate, subscribed by him, and knows the contents thereof, and that the same js trye. (Jurat.) ouearie 746 Stock Corporation Law. Form of proof to obtain Comptroller’s approval. State or New Yor«, } as County of....... Cedars , secretary, and ......, treasurer of ......, being severally duly sworn, does each for himself say that the said ...... is secretary, and the said ...... is treasurer of .......; that a capital of . dollars is sufficient for the proper purposes of the corporation, and is in excess of its debts and liabilities, and that the actual market value of the stock before reduction was less than its par value. (Surat) ; No. 8. Certificate as to Payment of Capital Stock. Stats or New York, ) _ Albany Oity and County. ° We, the president and a majority of the directors of the Jones Manufacturing Company, a corporation duly organized under the “ Business Corporation Law,” of New York, and located and doing business at Albany, N. Y., . hereby certify, .... that the whole amount of capital stock of gaia [ora has ‘been paid in. Dated, ALBANY, ...... » 189. (Signed) JOHN JONES, President, RicHarp Roz, JOHN ‘DoE, THomas Rog, Directors. S&, Stare or New York, County of....... 3 John Jones, Richard Roe, John Doe and Thomas Roe, ‘being sever- ally duly sworn, does each for himself say, that the said John Jones is the president of the Jones Manufacturing Company, and the said Richard Roe, John Doe and Thomas ‘Roe are directors of said com- pany, anda majority thereof; that he has read the foregoing certifi- cate, subscribed by him and knows the contents thereof, and that the same is true. (Surat) (Add acknowledgment clause as in No. 1 of General ‘Corporation Lay.) wa" BUSINESS CORPORATIONS. No. 1. Certificate of Incorporation. State oF New York, City and County of Albany, } iss THIS CERTIFICATE is made in accordance with the “ Business Corporation Law” of the State of New York, by the undersigned, who desire to form a corpo- ration to carry on a lawful business. One of the undersigned is a resident of this state and at least two- thirds of them are citizens of the United States, all of full age. 1. The name of the proposed corporation is to be “ Jonzs Manv- FACTURING COMPANY.” 2. The purpose or purposes for which it is to be formed, are, to manufacture and sell various articles of merchandise, generally known as hardware, and is to be located at Albany, N. Y. 3. Its capital stock is to be $100,000 in common stock, and ...... is preferred stock (if any). 4. There shall be one thousand shares of the capital stock of the par value of $100 each, and the amount of capital not less than $500 with which the said corporation will commence business is $..... 5. Its principal business office is to be in the city of Albany. 6. Its duration shall be fifty years. %. Its directors shall be five, each of whom is a stockholder having at least five shares of stock. 8. The names and post-office addresses of its directors for the first year are as follows: Names. Post-office addresses, John Jones ........... No. 1 Capitol Street, Albany, New York. Richard Roe .......... No. 2 Capitol Street, Albany, New York. John Doe ............ No. 2 Capitol Street, Albany, New York. Thomas Doe .......... No. 2. Capitol Street, Albany, New York. James Jones .......... No. 1 Capitol Street, Albany, New York. 9. Affixed hereto are the signatures of the subscribers, with their 748 Business CorPorations. post-office addresses, and a statement of the number of shares which each agrees to take in the corporation. Dated Atpany, ...., 18... No. of Names of subscribers. Post-office addresses. shares es ; alanetiate 80 albicans 5 spetiracseale 5 wineteals 5 Beets ate 5 elas eee 5 sew ea ae 5 sleeaees ; arstecsiavein 5 State oF New York, County of....... On this .... dayof...... ,18.., before me personally came ...... wedtne » to me known to be the persons described in, and who exe- cuted, the foregoing amended certificate, and they severally acknowl- edged that they executed the same for the intents and purposes therein mentioned. «Beauties 5 Justice of the Peace. State oF NEw York, Albany City and County, John Jones, Richard Roe, and John Doe, being duly and severally sworn, each for himself, says, that he is a director of the Jones Manu- facturing Company, and one of those named in the annexed certificate of incorporation ; that the sum of $...., the amount of capital speci- fied in its certificate as the amount of capital with which it will begin business, has been paid in money (or property). ss. JoHN JONES, RicHarpD Ros, JouNn Dos. Sworn to before me this 2d day of May, 1891. SaraH Doz, Notary Public, Albany County, Albany, N. Y. No. 3. Form of certificate of reorganization Law. (Follow form No. 7 of Stock Corporation Law down to *, and then insert before +, the following) : A corporation heretofore organized, held for the purpose of voting \ 749 Businesa CorPoratrons. upon a proposition to re-incorporate under the provisions of section 4 of the Business Corporation Law, do hereby certify. The directors of the corporation called a meeting of the stock- holders thereof by publishing a notice, of which the following is a true copy, once a week. (Then proceed as in said form to {, and then finish copy of notice as follows) : To re-incorporate such company under the provisions of section 4 of the Business Corporation Law. Dated ...... y 186-45 A Majority of the Directors. (Follow said form down to “ Resolved ” and then proceed) : Resolved, That ...... be re-incorporated under the provisions of the Business Corporation Law, and the officers of this meeting be em- powered and directed to execute a proper certificate or such reincorpo- ration, and file the same with a copy of the by-laws of the corporation, in the manner prescribed by law. Votes representing a majority of all the stock of the corporation were thereupon east in favor of such resolution, and such resolution was thereupon declared duly adopted. And we further certify as follows: (Here insert the recitals contained in form No. 1.) A copy of the by-laws of the corporation is hereto annexed, marked Ex. “A.,” and hereby made a part of this certificate. In witness thereof, we, the chairman and secretary of such meeting of the stockholders, have made, subscribed and acknowledged this certificate, this .... day of ...... , 18... (Add acknowledgment and verification clauses as in No. 7 of Stock Corporation Law.) Ex. A., referred to in the foregoing certificate. By-laws of .... Company. (Let a copy of the by-laws follew.) No. 4. Form of Certsficate ag ta Payment of Capttal Stock. (Follow form No. 8 of Stock Corporation Law to word after “certify,” and insert thereim just prior to date the following clause) : 750 Busivess, CozroRarions. That the ome-half of the capital stock thereof, to wit, the sum of .... dollars, was paid in on the ....day of ...... pss No. 5. Form of Certificate of Change of Place of Business. Stare or New York, County of....... We, the president, secretary, and majority of directors of ...... > do hereby certify as follows: That its principal office and place of business was originally 83. located at ...... Of scniss in the county of ...... , N. Y., and (if so) was subsequently changed to the ...... Of caning » in the county of ...... , N.Y. That it is desired to change its principal office and place of .busi- ness to the ...... Of maees , in the county of ...... » N.Y. That it is the purpose of said corporation to actually transact and carry on its regular business from day to day at such last mentioned place. That such change has been authorized as provided in § 59 of Stock Corporation Law. That the names of the directors of this corporation and their re- spective places.of residence are as follows: Namus or Directors. PLAceEs OF RESIDENCE. Dated ...... (Signatures. ) (Add acknowledgment clause as in form No. 1.) State or New York, } a County of....... Sas? abbcetgy ala /ataia rig? salasabatincn y rete pies gh ta caso and ......, being sever- ally duly. sworn, dees endl for himself, say that said ...... is the president, ...... is the secretary and ...... are a majority of the directors of ......; that each has heard read the foregoing certificate and knows the contents thereof, and the same is true to his own knowl- edge. (Jurat.) (Signatures. ) No. 6. Notice to Stockholders. Noticz to StocK HOLDERS. A meeting of the subscribers to the capital stock of ...... will be V51 Business CorPorations. held at No. .. .... street, in the ...... OF -seiseess , on the ...... day of ...... , 18.., at .... o’clock, in the .... noon, for the pur- pose of adopting by-laws of such company. Dated ...... mG, = = 5 isd wees ’ ieee . Wining , Directors. 752 TRANSPORTATION COMPANIES. No. 1. Form of Certificate of Incorporation of a Navigation Company. State oF New York, County of....... We, the subscribers, for the purpose of becoming a corporation for the objects hereinafter specified, do hereby certify: 1. The name of the company is to be ....... 2. The specific objects for which it is organized are the following: eee mee een ees ee see tee weet eee eee ee eee eee ewe eee es Ce eeeseennoe 4, The amount of its capital stock is to be ..........cc eee eeees 5. The term of its existence is to be ....... to be ....... %. The company is to have ...... directors. 8. The names and place of residence of the directors for the first year are as follows: Names. Place of residence ....... 9. The principal office is to be situated in the ....of ...., in the county of ...., N. Y. 10. The number of shares of stock which each subscriber of the certificate agrees to take in such company is hereto set opposite the names of such subscribers, respectively. 11. (In case of ocean steamers.) The ports between which its ves- sels are intended to be navigated are............ AN oss avai eee ata oe In witness whereof, we have made this certificate, this .... day of ..++, 18..; and we hereto subscribe our respective names and the number of shares of stock which each of us agrees to take in such cor- poration. x ea a shares. “cc 753 TransPorTATION CoMPANIES. State oF New Yor«, 88. County of....... On this .... day. of . .» 18.., before me personally came ...... 7 and ...... cll me caveraily known to be the persons described in and who exeputed the foregoing certificate, and they severally ac- knowledged that they executed the same. Justice of the Peace. State or New York, \ as ee > +++. and ,.,..., being severally duly sworn, does each for himself say that he is one of the directors named in the foregoing certificate; that at least ten per cent. of the amount of capital stock named therein has been in good faith subscribed, and at least ten per cent, of such subscriptions has been paid in cash. (Surat) ee ; bse a * No. 2. Form of Certificate of full payment of capital stock by Navigation Company. State oF New York, County of....... \ = We, the president, and ...... ighahe dys Slag Sue 9 Ad! sas eee >a majority of the directors of ...... , do herby certify : The amount of the capital stock of said company has been paid in. The last installment thereof, to wit, the sum of ...... dollars, was paid in on the .... dayof...... , 18... In witness whereof, we have made and signed this certificate, this . day of ...... , 18... Add acknowledgment agin preceding form. = ~~... State or New York, County of....... { a ais Shiiagy Sewage y seeese, and ......, being severally duly sworn, flocs each for himself, say that the said ...... is the president, 154 Transportation Compantts, and said ...... siaainens Gees pand...... » are directors of ...... ; and a majority thereof ; that he has read the foregoing certificate and knows the contents therect, and that the same is true. (Surat) a No. 3. Form of Certificate of Incorporation of a Ferry Company. (Follow form for incorporating Navigation Company, inserting only clauses 1, 4, 5, 6, 7 and 8. And adding the following clause :) 2. The places from and to which the ferry to be established shall run are from ...... 10 dates as (Similar acknowledgment clause as in such form.) No. 4. Form of affidavit as to payment of one-half of capital stock of Ferry Company. State or New York, County of....... t = ween »-+++-. and ......, being duly sworn, does each for himself say that he is a director of ...... , and that said ...... ene and er constitute a majority of the directors thereof; that such com- pany is a ferry corporation duly organized under the laws of this state; and that at least one-half of the capital stock of such company has been actually paid in. (Surat) ee 5 i No. 5. Form of Certificate of Incorporation of a Stage Coach Company. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 5, 7, 8, 10, and add the following clause:) 3. The route or routes upon which such company is to run, as near as practica- ble, are ...... eine wa eee Oe aes Riel ceanionus hes evahaeea sidsrges ween tons 6. The place of residence of each subscriber is as follows: (Omit certificate as,to payment of ten per cent. of capital stock.) Y55 TRANSPORTATION COMPANIES. No. 6. Form of Certificate of Incorporation of a Tramway Corporation. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 5, 6, 7, 8, and adding the following clauses :) 3. The places from and to which such tramway is to be constructed, maintained and operated, are as follows: From ...... 10 sr eeaos (9.) Its length, as near as may be, is to be ....... (10.) The name of each county, through which or in which it is intended to be made, is ...........eee0ee (11.) The place of residence of each subscriber to its capital stock is as follows: Name. Place of residence. eee eee > ee eee (Omit certificate as to payment of stock.) No. 7. The last form can be readily adapted, in fact fully followed, in case of a Pipe Line Company. (The following certificate must be attached.) State or New York, County of....... } = eee > ++eeee, and ......, being severally duly sworn, does each for himself say, that he is a director named in the foregoing certifi- cate of incorporation; that at least ten hundred and fifty dollars of stock for every mile of line proposed to be constructed (or operated) has been in good faith subscribed, and twenty-five per cent. paid in money thereon; that it is intended in good faith to construct (or operate) the line of pipe mentioned in such certificate; that such cor- poration was not projected or formed with the intent or for the pur- pose of injuring any person or corporation, nor for the purpose of selling or conveying its franchise to any person or corporation, nor for any fraudulent purpose. (Jurat.) : No. 8. Form of Certificate of a Gas Company. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 5, 6, 7, 8, and adding the following clause) : 756 TRANSPORTATION COMPANIES. 8. The name of the town and county in which the operations of the company are to be carried on, is ....... (Omit certificate as to payment of stock.) No. 9. The last form of certificate will answer in case of an Electric Light Company. No. 10. Form of Certificate of Incorporation of a Water-Works Company. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 6, 7, 8, 9, 10, and adding the following clauses) : (3.) The names of the towns and villages which it is proposed to supply with water, are ....... (3a.) The permit of the authorities of such towns and villages has been granted, and is hereto attached, marked Hx. “A,” and made a part of this certificate. (5.) The post-office address of each subscriber to the capital stock of such company, is as follows: Names. Post-office address. a eeves > Use the same acknowledgment clause and affidavit as are attached to said form, but the latter must be verified by at least seven directors. Ex. “ A,” referred to in the foregoing certificate. We, the undersigned, being a majority of the board of trustees of the village of ...... » having received, on the .... day of ...... 5 18.., from ...... , an application, do hereby grant a permit, author- izing the formation of a corporation for the purpose of supplying such village and the inhabitants thereof with water. In witness thereof, we have made and signed this permit, this .... day of ...... , 18... (Signatures). (Add acknowledgment clause). No. 11. Form of Certificate of Incorporation of a Telegraph or Telephone Company. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 5, 6, 7, 8, 10, and adding the following clauses) : 757 TRaNsPpoRTATION ComMPaNi#s. ‘3. Its general route and the points to be connected are ....... (9.) The post-office address of the subscribers is as follows: Names. Post-office address. wea reece No. 12. Form of Certificate for evtension of lines of Telegraph or Telephone Company. State oF New York, a County of....... We, being at least two-thirds of the directors of ...... , do hereby certify that the written consent of the persons owning at least two- thirds of the capital stock thereof has been procured, as shown by Ex. “ A,” which is hereby made a part of this certificate; that such cor- poration desires to construct, own, use and maintain a line of electric telegraph or telephone, not described in the original certificate of in- corporation (or, state one of the grounds specified in section 101). We do hereby, for the said purpose, execute this amended certificate : (Insert same recitals as in original, but make the description cover both the present and proposed routes.) In witness whereof, we have executed and acknowledged this amended certificate, this .... day of ...., 18... Add acknowledgment clause. (Signatures. ) Ex. “A,” referred to in foregoing certificate. State or New York, County of....... } Sakreag saws and ......, being severally duly sworn, does each for himself say that he is a director of ...... ; that the persons who have executed and acknowledged the foregoing certificate constitute at least two-thirds of the directors of such company; and that the written consent of persons owning at least two-thirds of the capital stock of such company has been obtained for carrying out the objects set forth in the foregoing amended certificate. (Jurat.) 758 Transportation Compantrzs. No. 13. Form of Certificate of Incorporation of a Turnpike or Plank-road Company. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 5, 6, 7, 10, and adding the following clauses) : (3.) The names and post-office address of the directors for the first year are as follows, viz.: Names. Post-office address. anager - Rass Hy Reg me ti(i‘i™S™C 5 (8.) The termini of the proposed road are ....... (9.) Its length is to be ....... (11.) The name of each town, city or village into or through which such road is to pass is ....... (12.) The post-office address of each subscriber is as follows: Name. Post-office Address. eg ee Add aelendledgnient clause as in said form and attach the follow- ing certificate: Strate or New York, County of....... } sitster seo peeeee. and ......, being severally duly sworn, does each for himself say that he is a director named in the foregoing certificate of incorporation ; that the aggregate of the subscriptions to such cer- tificate is at least five hundred dollars for every mile of road to be con- structed, and that five per cent. of such subscriptions has been actually paid in cash. (Jurat.) eee ; No. 14. Form of Certificate of Incorporation of a Bridge Company. (Follow form of certificate of Navigation Company, inserting only clauses 1, 2, 4, 5, 6, 7, 10, and adding the following clauses) : (3.) The names and post-office address of the directors for the first year are as follows, viz.: Names. Post-office Address. 759 TRANSPORTATION COMPANIES. (8.) The location and plan of such bridge are ....... (9.) The post-office address of each subscriber is as follows: Names. Post-office Address. vlersters ‘ eons ete (Acknowledgment clause as in said form.) State oF New Yor«, County of....... srgrapeta?s y++++..and......, being duly sworn, does each for himself say, that he is a director named in the foregoing certificate of incor- poration ; that the aggregate of the subscriptions to such certificate is at least one-fourth of the amount of the capital stock therein stated, and that five per cent. of such subscriptions has been actually paid in cash. (Jurat.) eee ‘ oe eeeee 760 INDEX TO FORMS. rene meant PAGR Affidavit as to payment of stock in Ferry Company ................ 765 Amended certificate 6.6 ssc is wees cs pee cima s ewedn se meeN Sew eEw ST 137 Annual report <.605 6 sawiessvee ee ewee re swees is wei esa bss ashy wad devas 744 Certlficate: dei sd steve cca ss aeieleie wE eI NR eM haa ceete 28 Fiduciary relationship of .............0eeeeeeeoee divs Gisele eeegouess 43n Tdability Of: see sienwgas sinew s acise ss BERKS a ORE OS ee BRS 35, 53, 54 for debts upon dissolution ........... cece ecw cece eee eseees 53, 54 LO) ACTIOUS 5 yesiarsi 35 Senge a's hdeals seaside ayannsgie aia Sauer kdavaseta 35, 44n, 52 Majority and powers Of ....... ccc cece eee c reece cee e ere eee eeees 30 Personal liability Of ocd 3 ssn vs aaueta 34 ieee os avers boise ewe ee 44n Petition by, for voluntary dissolution ..............ccceec ee ceee 64 Political contributions by ...... ccc cece cece cece tec ee nee ececuee 35 Policy holder eligible aS ........ cc cen cea cece acc e cere eres ccces 128 QUOPUD ccrsiees cannes 4 oars as SWS 2 dese Ns Gee v ws ees eee 30, 30n, 31n Power tO SUG! ss.nwe es enews dened dead ee cerie bee aes os amee ss GEE 35 Separate actions against. vcs isicias eee ss sens eee wws eed wON oe awed 52 Special meetings of, how called ........ cc cece cece eee ven vceves 35 StOck Corporation. aeiccscaccccsraed tw weewieje wives eo ee oe Dedede 128-132 Validity of acts of, after refusal to hold election ............... 130 DISSOLUTION. BACEIO ME POT carb seine a seseieecsa aang Galh cd wy aiitei le 6 scesnandva 4s ovmiansr ad’ guess camara a 48, 48n Corporations not subject to voluntary ............ cece ee eeeee 65, 71 Depositories of aSsetS UPON ....... ccc cece eee e renee tree en eeeees 98 Directors as trustees in case Of 1.2... cece cece cece ee eerenes 31, 31n TNjUNnCtON AFaiNSt oo. cs cc stew Darou sed Ca RESO ORAM ES RE 8 49 Permanent receiver UPON ....... cc cece cece cece eee tee eee rensane 51 Service of papers on attormey-gemeral ......... ces ceececrerece 97 Voluntary disSolution ......... cece eee e eect ae eeereceene 63, 70, 71 corporations not subject ..... iia ae soantee wale 8 Sees eoake eee 65, 71 defaults of receiver 2... cc cece cece cece cere eee renee eaee 71 FINAL OT MON g saisers ois eccewe: oe wenie eo einhin Sig we KE Gey aleiseieh8'S anieyes ecacaayeaess 70 Hearin’ ccc codes wewe ve maw dee Gee Ree oe Baie Bis ieee Seta Soe 69 UNJUNCHON, ooiecacéeccaeed Ve Ges FEST Es WEG S a OES TOS NEE OO Nes 68 Order tO SHOW CAUSE 2... csc ve cece cre cn cence ee teeeeeteneees 67 permanent receiver ....... cece eee cece cence eee eceeeeeees 70, 71 DCUUON: vob vs wow sacs ca eee Gee EO TAS OY 63, 64, 64n, 65, 66 TOLETOO. 26h che ea Mba ee bee s OATES ea Ses FRR LEER Se RES SO 69 temporary TeCeiVer ...... eee cece ete e tee en eens seen eiais aes 67, 68 transfers Of PrOPerty ....... cece cece cree etree tesa enecee W1 USC Of PAPETS 2... cece cee cece nese eee e reece rete eereeeeens 69 who may bring action for ............... Fides avareaternte tetanic 49, 49n DISTRIBUTION. Assets of dissolved corporation ......... ccc cece neces cee reerens 53 Claims barred after .......- ccc cece cece cece e cnet ener anseeee 62 GeneRaL INDEX. PAGH DISTRIBUTION.— ( Continued.) Order sOf,. DY TOCOIVEL: ocse5.k ese isie: sc etwiciele Pe whelw delauite ds aie eS queues 87, 88 funds retained for suits .......... cece eee eee eee eee .. 88 BUIDIUS: saw sea since ee nw sears 804 sien ed aiigle Ses HOE Oa wee 88 unclaimed dividends: ..ic665. csc sciweed os eae eases awewes 88 Upon dissolution of moneyed corporation ............0ee eee eee 60 DISTRICT STEAM CORPORATIONS. See Business Corporations. DIVIDENDS. BY PECCIVER sieaeiaesi wens pane. lo trtaaves Rue eeulvie se sume ayes 87,88 Liability of directors of stock corporation for making un- authorized: s.ccsass sci eed ccs eae seaeine os PeeGice ee ee ees dase 131 Unclaimed sss ii seas ccieave eee eae ds on eed sss saad eee Gaes 88 “DOING BUSINESS WITHIN STATE.” What Constitutes: cases esi d cee ves sen ee eeeaee pee eas 19n, 20n, 21n DOMESTIC CORPORATION. As resident: 0.8 i.4 ntecee sea sce GSES BOE TR WHE RG ROR RTA SS 695 Service Of PTOCESS OD 1... . ccc cece cece c eee reece eect eanenveees 695 MWerifiGation: BY) eséciscciswaaies he 2e5c5 us evieseg, Gs Siassied ees sdei oy Bw, aalesiad 0! oth muaeget Seevand yes 8 eenes a ayone 184n TOINStALTEMICN EG secs csieccpecs sb aie: os rabnereg Sige 0G Site ce'g lero eee 184n property rlehts Of is sccd ices scales d epic ee Mende doen o oomlenes 184 MEMBERSHIP CORPORATIONS. SST ACUES: scans. 0:4 iseddhea sagt ee tile Staaten testcase oo eidadeto. a mapidoatian | epauaaeed a vayeseee ss 179 et seq. General, provisions: «ios cscs eo nisi w sles ois Were es a eee es oh 180 et seq. Actions by for injuries to highway ............ceceeseceeee 195 appropriations from state .......... cece cece cece eet eeee 189, 190 YALA WS se cee racanes'd eiasanaie dnd an brase: dee aneases ote lew Gyaces Sretrgpeleee SAGO eS 183 CLASSES a orrd db iare iaelled hea dip uted teredieualaiotase ea uarenn’s 183 PROVISIONS cise oie shaiice s Sazraks oa gies os eels 9G arbi '6 eereaila Vos 194 reasonableness ........ 1s. aad dren PORE OES Slee Ra Os 184n certificate, see Incorporation .........c ce cece eee ene e eee 192 CODSOLIGATION. ios: seesbed ad énsed 0-4 mies gave Sanale-s Semen e GAS CARO 182 court, jurisdiction OVEr ........c cece cece cere eee eees 181, 187, 189 GERD IGON:. «since ax siviauied dotee bin eva ES aces aS RES oad Ss Wee S Fare 180 GiIT@CtOLrs: 2 si wita ss cvew ss Hew Rees coe e eee Tees vane Baayen 185, 186 ACCOUNTING DY 1... cee cece cere eer e eee ecess te atale a ete 189 COMPCHSAtION ...c ccc cs csc c cer enccerserenccccsseseraes 186 Cuties ees aaines a hades ses ns tiie eeig eS eae nweaws same 185 election: :acsis caches Wears Hawes Suds qaenies adie Ware 185, 194 Interest in business of corporation ..........2ceeeeeees 186 inventory Of PLOPerty ...... ccc cece eee e eect eee ee eeees 189 Jength Of term 1... . cc cece eect e eee eneeee cuetasease’s 188, 194 Ta DUG S: sees 6 eshe 2 boise eo ates Os ee dew tide die Siena Ea savore 185, 186 TLUUIDON: ude ds saws sa seie 9s HH Oe eS SH Mato oa Sg Ss Beahies 185, 186 CHANGING so swcces sew oa Hees ce Hee yee we Ves eee 188 MLOUMCE: oi cc enw se eS Se eatiraes enierew a tiotes OS HET Se ERS 188 GeneRaL InpEx. MEMBERSHIP CORPORATIONS.— (Continued.) Pia General Provisions.—(Continued.) POWEDS ede Siieoew eg Sunea he Gad setae nee hem reeds oman 185 Prohibition On wiswsews Kesar HRs ss ose aased-e OTe ees 186 QUOTUM, 2issius ceiwews sebehs a vewr sa Hee ES Hewes sore Dee 194 TOPOLt DY Woes sha. 2 edeee eed eo ised esata sees 185, 189, 194 extension of corporate DUSINESS ........ cc cece cece ee ee eens 181 INGOFPOLAtOD: cists abe. ses eee Ne ees gas Ore wea S OIE es 181, 192 approval of court ..... Sy a AitelG 2.9 QOS Hs Gide dealers bee eS 5 181 associations of over 5,000 members ........... ea eee 88 193 ANNUAL MECN side sveisissccimmneie.ta eon eis-d meow Oe asda ee o 194 COTtINCAtS. cs. cee ines oben suriene dea Saalon Drwee eet 192 amendment, see Amendment. OfeCt..: saissig ss cee-es ayes s os BENS Te RES eS Hees ee ele as 194 NUMbEer Of PETSONS | x cdickceaiend yi kelde wises CAG a RON Se 192 DUT POSS: iiassesane.d wcsunins. a Worms dat Nene gra olgtien dee anes. gus dusnaeeneee 192, 193 PEIN COTPOTAON, asses cicae Sacer ew sowie a ede s eee pee ees 182 unincorporated association ........... cee cece eee eneees 181 lease of real property ....... cece ccc ec ee reece teen esnes 187 leave Of GOUTE: scsadsndae desde xs sees Kee es Soe T ee 187 WOUTEPTCCESSATY™ ss seccecsic 5 Avsviscnuazacibs’eildy abd sapiytane a exauasaiatenansteuevae anaue 187 WI GCUN ES” yb asic 6a Wives 8 isle WE EKO CS WEE W OES HAO OR 9 Seine BIR 188 Changing time: Of es: oisisiis 0:seajers:e w staics 6:4 wislio inva Sine Ons Bee 188 MCMbeLS. sis wed ess sews eaeek v osivass eeewe ss seeds sew era Mes 184 Oxpulsion. «.ve< ctasGevedewavcs Gee nis Whee Chee sees 184n PTOPENCY ISDS OL we vs sceseis. esse cvecgveseshucneos toe. d gerade anvteees ore Se 184 TCINStALEMENE - iid soe OMe Ciieiee Sas Moe ee Sela i Gabe 184n MOLESALES: OF PTODOLEY: sarc tess: 4. dicuie se size Gerstein 28 a saviapenelig a. @ Shavers: oie gpa d wie 187 leave of court ..........-+. eee. @isecs Hing Nes MEG eEUNeene $a 187 VOtO N6CESSATY asco sso awews cases deaewe as ew Sas Mmm ESD 187 Officers, prohibitions ON ......... cece ee eee creer eect enone 186 POLICE ST: oes see a ryan ees ayaa a Weare ew ey Silane sd ero savedelie We eanesasace 190-192 APPOUM CI CNG: ss iors era ete a os eianayere Gi cotta view ee ayes oe er din locale tetevers wie aie 190 Compensation. sucies sews esieuns ciee os olsen Sodas sa rae e ae 14 To take by gift or devise ......... ccc cece ccc cece eens eens 14 PROPERTY. Acquisition by foreign corporation ........ ccc ccc cece ese e neces 24 Non-stock corporation’s right to hold ............cccceeeeeeeees 16 Right of corporation to hold ......... ccc ccc eee ceccecceeeecerves 16 Sale of ......... ere ee pee mecewies Paatece avevatensicue, 40-42 POU CIOD ooo susie ea acepssd Foss) eG Gc ees se Ew see we Leeiatath obsivioy 40 hearing ......... wig ig Pais salete'oe-evsuavels w-ateilels is Stas waieie Ss Gee Y 41 OPAC aes e signee i Gisiates aisha grea eatens-o'e rater a 8 a wie we we a a eS 41 General InpEx. PROPERTY.— (Continued.) sans Sale of, right of insolvent corporation ............eseeeeeeeeeee 41 Service “of notice cs isiwe sss ndet sees dawew cewek prtaees 42 PVACCE saeicssccan sca veees eHow ees eee eos HG Cone eee Hew Res 42 SGWESEPALION - 2 5.5.c.c:ciiiciecnuchaleik a sities 3 Spdiie se nieaan OS serene DER RRSE 47 PROXY. See Vote. PUBLIC SERVICE COMMISSION. Liability of stagecoach corporations tO ..........ccee eee eeeeees 281 SERLUTS cc. aw acess aig iw setae alalge Sie ye wicials wate aie ee Oran tienes 491 et seq. PURSES. PUTA CEB eas x eaeed cs ergs calarS uc die csaiescavwseiee bdo ernucte: bavtegse ROU aA ES MES. LST 252 Q. QUORUM. Of iGireCtors) eines viene see sew ae oes Hees HOE cows e ees 30, 30n, 31in QUORUM AND MAJORITY. See General Construction Law ........cc ccc c cece eee e cece eens 610 R. RACES. See Membership Corporations .......... cc cee cee cec cee cecceeeee 252 RACING COMMISSION. See Membership CorporationS .........c cece cece cece cee neee 258, 254 RAPID TRANSIT ACT. Statute: vend occ saws ca eteiw oc wee es GORE ee Kee See es Oe eee 447 et seq. RAILROADS. Acquisition of property ......... cece eee eet e eee cee ree eeene 335, 340 by condemnation: sch oaveude cu ganie ened ox« see 'es Sone eds 835, 340 by grant: or gift vcs sex cc cwpew 0 2 avs os owvars Veer owned ies ies 335 purchase outside state ........ cc cece cece e erect eee eee enes 336 ANNUAL TODOTE «2 sarsssis-edpivad Wiad tha SP ota Se ee ei 8G Aremsete aE Ga 37% AUtomAtic: COUPLES 2 ics 'e cigisie ieee Sa are le Hermes as Winey ee ed Cea ae 366, 442 Badges On CMPlOVEES ie vie siciee ve ssieinss sites eee ce eee deans 362 Bageage: x:scartacneves weesia Wee ates Sake Rs 4 MERE RS 862, 363, 365 DICY CLES: AS 05 dig coca leceriopsad ecsg eiteveees av s9 econ isices canidec cca eae oe eee a8 341 Maps and profile .......ce ccc ecee eter scence eeneees 338, 339, 340n Notice to OCCUPANES ..... cece cece cee e cece eee e cette eeees 338 Objections to location ....... ce cece ee eee eee nett ee eee eens 338 Width, -cscidy odnocds tees eee M4 SES peeMeG ise ted teehee teas 335 Safety devices at intersections ..... bia anid Sys fecateeiedio ts enone sds osteoma ae as 356 Sale: QUards ess dew veneer e ov noses eimawae's Wee e454 aes s So wieelg dG 366-370 Signals: acc vad year ese ag cas We sed ited a Hee Le eee eee E Ha Nite 366 Sleeping and parlor CATS ....... cece ee cece enter eee e eee teenes 360 Stock book by foreign railroads ........ cece cee eee eee eeeeees 137 793 GENERAL INDEX. RAILROADS.— ( Continued.) ee Stoves, use of, prohibited ........... cece eee e teen eee e ee cenes 370 SETCCIS? o.oo eels Wa oe ESA OM Ra a Hoda Te eae wear 378, 380, 381, 384 construction of line over or under ............ cece eens 378, 380 CXPCNSC seeks snnew ses peeve Se Ls EROS tees egw 381, 384 highway bridges over railroads .............eceeeeeececnee 381 Street railways, see, also, Street Railways ..........cceceeees wee 897 Substituted lines in cases of eminent domain ................005 350 Switehes’ v4 sev seca or siiowtelvsquies CeisGN Haeey clea Boe es ouleee ts 366 Termination of corporate POWErS ....... ec cece eee e een enees ». 887 Terminus, Change Of si sii ssec cc siaw ee avee seeaee be wees es suiaw ee 344 ME LCKICUS)* «2.5:5.8 sev oreiis a5 Seoendssesve acaseuedcs bvdceea toda caueie Soe ovig-cnaeah eye watuelaentee 360, 364 ejection for failure to Procure .......... cece eee eee eeenee 360 for connecting steamboats ......... cece cece eee cette 364 Tools 1M PASSENEET CATS a sceies sarseces obs acsiele 6 osited eee siete ew aiereiel es 366 Trabsportation: 2006 6. once os slew vc eee Vee Wee Mae BROS EO BOR 335, 336, 354 compensation for. acsacwiisrsssiaes sven ta saawse ian oe eee 335, 336 notice of starting trains ........ ccc ccc cece eee e nee eeee 354 PE CLETED CES), io isitsaincs ssctnsiersd ehoiale aaa eccin awl eile ws beers Nie 354, 355n Regulation of time and Manner ........ cece cece reer ecceceaee 336 Tunnel Railroads: sees saws sexed 6 oaewe 2 eanee sawesad Se aanee 346 Unclaimed freight and baggage ...........ceee eee c cece cece ees 363 Wages, DAYMCNE Of 5 sais es sacows 6 eaicis ve aesiew ow aise v5 08 442, 448, 445 Who may build railroad ........ ccc ccc cee ce ee ee ete eens 349 Winter, certain road not operated during ......... cc ccc cence eee 372 RECEIVER. ACCOUNTS; ‘DY c.55 n06.cs04 Wai td eu come tenia anaes ae 89 PAN)” oe bores pee eke asia senescence sa, shane oe atguayensy o'e @aero ra wlew-are 89 Nearing” eviseas ssisitern veces) alee e soaked eeseae ss waewes 89 NOUCe: saves ves secubaess RON eds ade ea deed sedeeae dee 89 TOLONOM CEE: 5 acciscie! oa sabetnd: Sides Sesaar eB evarbpo ties Ghee eke 4 anaeee Oo aun es 89 in action to dissolve moneyed corporation ..............05- 60, 61 Accounts to ‘be Kept) sisecos sigs oe cine ve aie aa wine sa edlea Sieedates 83 Allowance of set:offS siss.es seseeecaies os nisee ce siies so siena v4 Sees 86, 87 Appointment of, of corporate property ........ ccc cece eee eens 95 Bill. Of ‘Sal6- DY) scsseosodaeseles Fa WSSs tek CAS ae ieee 18 Commissions of ........... 255 cas Gu decnene ce'4 apade b-@Aurox trasaeaasty anand seh syvauaad ie 91 Compromise of debts DY ...... cece ces cece een cece eter eeeeereee 19 Conversion of property into Money .......... ccc ce cece eee ceoees 83 Court's control, Of s20.2 acces os ceeds cameos aaine eco sees a nee es 91 Creditors’ meeting to be called by ............ cece cece eee eeee 85 BA JOULDIMEN US? «ayes 65s oy asssaics aaxarionsencessycus al be paca yank evalevdaa a. acerwesnawe oie d 85 PTOCECMIN ES: Ab shane yore eis cele Wa eioie vie ernest ee ay we 85, 86 Deposit Of TUMGS: « é iisioad is sees. s wmewGies eee tv eeis o44 Gwe se Wente sce 98 Disbursements: by x60 +s ise. ces ves ves slew oes yee os ead ee chews 86, 91 Distribution of assets Dy ........... eee eee eee eee ee eeeee 87, 88 OPEER is. ejacie cca bingo ned i Sa obabiics Sey aeSeas eee angus d aa aeste awarerd iors 87 SUTDLUS 5 se sace's wists b, Sse eyes 5 else ig wrakene eg Gagne Sie sielgie ere WeaLetele ors 88°: GeneraL Inpex. RECEIVER.— ( Continued.) thers Employment of counsel .......... ee ee er eee 59 Expenses of ........ ashy aie aualie 2 2G yaueys oie Hittide dota We choy Aaa anreve thu Ovi 91 Failure of creditor to file claim ................. sia siberian, OBL In action to dissolve moneyed corporation .............. wae 57, 58 In annulment proceedings ........... ccc cece cece eect teen ceees 56 In voluntary dissolution proceedings, see Dissolution. Notice of appointment ............ cece eee ee Seasbse Sia wtcialoatav sate 84 DUDILCAEI ON 235 Sic ee eects sc cpsiiete re: Merete se wade 3 o's acts wis dali ewes 84 to Whom given ...... ccc cece cree cee ceeee stinies ds euanelingen sve «.-. 84, 85 Oath cies sce case eC eee ee Sas Osos ee eee sevens. TT Order discharging ....... Si dcetscbed s tecavauaea as ncoteaniecec conave ei aienesee eaieiase » 91 Payment of debts .......... pie das ia iho Stmialcased ou suetauie As SVGue auB Za) cyobage roared dave 85 OTUED oie ees ccatiess wiguier axiom nceaaTs mise ahiauslareca adh iva ld cainieracs 87 Penalty for concealing property from ............ CRS S wie ses 85 Penalties recoverable by ..ssssis dese caveaciccvecsseeaseswaees . 87 Permanent, in dissolution proceedings .............e.seeeee vee = BL appointment ........ eine ich Lv So aiatis 3a Dpaesla sat aVavanieve cu: avinbshleshvel wlansueeeress 51, 52 QULLIES: ia cea eleccies eis Ga Deeiiers oe aaa eae eee weak ee oe 51 liabilities ...........6.8. audisoala scla sates stataoele cs Seat aware s aig die 51 Powers Of .........0ee08 OE SEE CANT SO ROR Te ERO ee Ew Ra HOLE 78 Tr SOMEP Al oie anes a dude dws Benard aeauames SSA CREASE SORE EE ES 78 to employ counsel ..........0e.eeeees a ais a bcleqionts: esac deans ene voreiate 81 execute CONVEYANCES ..... ec eee eee c eee e rece ee cnes 18 hold real property ........c.eeeeeeee a hacguisha oe aeaieteele serene 82 recover stock subscriptions ..... jee La CERY Ee WORE Caw s 83 settle controversies ............eseeeee oi eee awe SS Gea es 80 BITE} POCOIV OL apse oy cssasionacg ae stlinscin 13: a:ieus co ia. ce ptaltaute be. Botaaie Ree © Soe OSE U7 BULVIVOES. sa sen ee ewe Su caplet co wee age ddied wana ee 7 temporary receiver in dissolution proceedings .......... 51 Privaté sales DY és. caress weds oa wees coated e's raven as aeinele ce mee sos 83 Recovery of assetS DY ....-. sc see c cece eceeceeeeeees we wleate 79 et seq. COUTES sare-aaraiitepeavajous Se. wuereus: ecszeravs med saiecehanececareren se Satine Serene ae 79 TOLICO® ca eseaiw ave ajar Geol ean arene ea DEaAA Ne Haus srivarsten buen oan 79 settlement of controversies ........ cece cece rece e te eeee 80° witnesses, see Witnesses. Refunding consideration of subsisting contracts ........... ais hae 86 Relief against defaults of, in voluntary dissolution proceedings... 71 Removal Of ase oi sige ce sense see's al cA cepus ie evevuia ne oahanecn a sertnanenai alsa ... 90, 97 Application by attorney-gemeral ........--++eeeeeeee Sudan eb eCatS 97 Renunciation by ............. SERS Wee SSR aap es A ewes 90 RREPOrtS:~ DY. sisie cceteeleie se, aeiee ace scenes a weed {i kale eee ARES Eee 4 eats 83, 84 to be served on attorney-general ........-. cece eee ere eeeee 83 neglect’ to file 2 ci sewwcviaes se seuss cacy ea EEL ee eee oe. «©84 Security s....cacisam sakes see si Saag cate later era's eae aie heals ohea ers V7 Temporary receiver in dissolution proceedings ...........+- . 50, 50n Title in, to corporate Property .......e cee ee cence eee eeee cavex 16 Transfer to, of corporate assetS ..... 0... cece cere eee et eeeeee 76, 85 “VACANCY ...ecseaeeee cele edaiere a aeuis sacdheudiewmaeoaeaes scheeaaiOeave 90 Generat InpEx. PAGH REDEMPTION. From mortgage sale by receiver ........cee cece cree cette ee nneee 78 REFEREE. Final accounting by receiver ......... cee c ee ee cece eect eee eeene 89 In proceedings to recover assetS .......... ‘aad Raandeed Gases 79, 80, 81 In voluntary dissolution proceedings .......-... cece eee ween wees 69 REINCORPORATION. Foreign moneyed corporations .........ccec ee ee rece cen eceees 22, 23 Of membership corporations .............. sidbadoana sdraehelG a eieioeetee 182 RELIGIOUS CORPORATIONS. Statute: ccicawsccneae ss cee es vee os sewed sae os Hew Cae 6 rete 625 REORGANIZATION. Of business corporationS ....... ccc cece cece eee se en neeeees 167 BERS haar oaitttaai a: eeatinnavars Gensuyie aretanneisce pra ceieietee a choqee Sabres Beeuane s 168n Stock corporations ....cccsiasucicsese csi evateseewceueweeews 120 DIAN iaceed st ieaw oss Ria s sedan canes acess Maes basa ee 121 REPORT. Annual, by stock corporation ......... cece cece e cee e eens 138, 1389 PalSlty Ob; «hie. vis'e cis othe ts ser enter eco scenes reeraneasis's gamer eidneG's aCe AS 139 RESOLUTIONS. NGCESSILY OF. tiencceilcns sical oc ciewin $26 Saisie sie en oh Braise a aeevas-e 4 Be 3in Ss. SAVINGS BANKS. Not subject to voluntary dissolution ............ cece eee ecees 65, 71 SEAL. 14, 15n POWE? tOCAGODE: sccsan echelon Savane MRE eas oeean leone 14, 15n £0: GltOr asics caccaieiitelene cies leis Bie G vies gue d's SE Ee Ola MES 14, 15n What 19-2 ssn 254 sie so sel bes eee Loe bees amas «ence edi 617 SUPREME COURT. See Courts. SEQUESTRATION. Of corporate Property . os sses ceoiea eas Sees eereus ci searissadeeas 47 SERVICE OF PROCESS. Designation of person to be served ........ccecececcvceeccuses 22, 701 by foreign corporation ....... ccc eee eee c cece cree cucenees 22, 701 On domestic corporation ........cecceccsscsscccccsccvccccecsas 695 On foreign corporation ........ ccc cece cece eee cee eees 695, 696, 701 who “managing agent” .......... cece cece cece eee aeee 696n On railroads, express, insurance and telegraph companies ....703, 704 Order for voluntary dissolution .............. 2... c cc ceceeeceaees 67 SHIELD. Of policeman appointed by membership corporation ............. 192 796 GENERAL INDEX. SLEEPING AND PARLOR CARS. oe See Railroads. SOCIETIES FOR PREVENTION OF CRUELTY. See Membership Corporations ...........ccccccccceccceececes 218-220 SOLDIERS’ MONUMENT CORPORATIONS. See Membership Corporations ...............- aisgitel eta sin oltre 228-231 SOLDIERS’ AND SAILORS’ ASSOCIATIONS. See Membership Corporations ..... Std Reese Sa dlate a wlaele Bad res 228-281 SPECIAL FRANCHISE. See Taxes STAGE-COACH CORPORATIONS. See Transportation Corporations. STOCK. CALS) io ecsicsss 6 Seaedd cube! os aiaaiclint earauale dy Sana aielieerel ee Red PS aa Seems 145 on partly paid stock ........ ccc eee cence acces neuee 149, 150 Cortificites: of! eyes onsdals Saials-a Saw e co reese eer es dees beak 141 by whom issued sii sie desis ocaiewes cadiace Foe 8a ooinw 88s acai 141 COMI V ORY” (Sciisiect ie cchcealerc scoteied vide ao Gaeea ie AS. BSS Seo Obace ee- aI E 141n TIC BOLIADUTEY 2 32d0, sieiveselwvelevine doeuvesseinwiats sane ee Aa 141, 1441n, 142n 5 PAYMICNE Of CALIS OW «ic ies ceiere essere decisive oa wscars 04 ESO a MOLES 144 reissuance when original lost ............ccceescecaene 156-158 Beal ON «35.5 cca s case cass ae ahe eeaeedie ase La gece cece 141 COMMON: ‘StOCk e525 51554 ictlals as aysyasesd ov eliv'e sez ae bles se oom ayeuerobe:ecananvsme-aeabapace 150 Tricrease:of Capital: i465 seschscsuceeeeensiviee Polen ee. eeereaieseaewe oa oe 150, 151 CORtINCALG 5 eaiuuuea aude wwe oe 6G wade ee Gas aa sa es sence 152, 153 meeting for DUTPOSE ww ss asics saee eee se os Mew ees Weed eS « 151 CONGUCHOL sis sacddeie erie eee be tidea teas ve citme ts 152, 153 ESSE) OE? » ci 5:c5jsisestes oS sasiseblis%e faatavd Guero uedty we witwsal doe, Svbiwant sO uoxauala eal asin edo one e 141 CONSIDERATION 65 wiisu ceases oeeanie us ieate Ware ee ieee oC atone 145 partly paid istoGk: 0 acne eaisiens ade ee eew do hoaK eteled 6 ds Re 149 payment of property or debts ......... cece cece cree eee neee 145 TODOLG a5 painisnciene Siete dee, dae huala vce feesazce. asa eins beds anstause Gaderer at 145 Number of shares, certificate as to, to be given sheriff ...... ‘aes 699 PAP’ WAMMG eos seivesee) eyes ig che Sowiaeniecana ee Hanes s sides ae Bias SON Sane 153 CHEN An: ele suwed s saddes ws Rie eeeelagwis wie gas exten ea aaahim ee 153 Partly paid. stock séessi sid 426 sae veceee secede sswseaes wee ees 149, 150 Preéferréd: stock: ...ccs.nc2csde oss tan eeGe ca eei sei melt eawed ssa wie 150 Purchase of, of other corporations .........-.c. ec eee ence eens 142 AMOUNE. sce ceiseaanwasvdaa tees Weitbninja yall Sirb ide mah dake aA fea anaheee 148n Officers: aS. GITCCIOTS: scesiec ede ed Haws see sods eR Ese 142 purpose of purchase: .i.cswcsiaserssacs see cwawcacewncs neues 143n Recovery on subscription for, upon dissolution ................ 538, 538n Reduction of capital 2.0... cece cece cee cece erence ee enees 150, 151 COREL CALS es2csiei e556 assess exeyarale: oS ailalnng, 60, buna acon eiada laces aveuondl dua: ians 152, 153 MeCtINE LOL PULPOSE® «i5:aiis.s6' sis ayes oie ecg sian sa diane be ersjieiels GOVE Bins eee 151 CONAUCH Ol saeid Hawes ses cc gag wees ee ees oreudoie 152, 153 797 Gengran Inpex. . PAGE STOCK.— (Continued.) Subscriptions t6) .......0.00 5. e406 esses iesaa dese sae Mona Antiane esas 143 WA VMS ES 2 a) oceseioie tates dt iteuseanisvacaanarinoicue-s ancien ee eieem ear nee 148, 144n Gefawlt? IN ess cian eka ie Moke eee oe eee ne 144 time: Of 6 ise paaes'e's Gieidee eSsiaines eiiclisto e's epalcts a ierna hie aays 144 Taxation of, see Taxes. Transfers). .-.4c..5 veachew vscniee oe ace eae SI RRERNG KER SRES 141 DPAVMOENS! OF GEDCB icccices sisisise.is ie savesece aveceyatauevere: oyalteute-e dlenaus srecaleuese-e 156n PLeLETeNntial ac iacumaad wed escrow oe Sees eearenh aye Saree aeeenee 155n to officer or stockhalder, prohibited ......... 2.00... 00 008 158, 153n STOCK BOOK. See Stock Corporations ........... cece cece eee cece teens 133, 134, 137 STOCK CORPORATIONS. Alteration: of busimess: i. sce sos cis e's cieaw eee eragiwe s dewws Helse es 127 Annual: report) sisssceadscawna ys caeasss dresece ewes ciewe s 42 138, 139 Contents: as cc catieyereaaw secs the dawes adie demure Fa Scie 139 PAISIEY. OFF a 3cadis, sash deythoiate 5G aeanees ee UReauese ears aaiareiayavonse S:c¥evsedene 139, 140 report of stock issued for property or debts ...............4 145 when to be made ........... cece eee ees swilglaie: ats iniie 4-3 W Reaiee 139 Books of account to be kept ........... ccc eee cee eens soe 133, 134 Change of place of business ..............0eeeee ae awaG 244 Hews 123 . Combinations prohibited ................. A aae a Sea fetes wiacedevananeers 124 Definition of ................ Rugraichiteteeraieyaeeeses ins voiigy ae “aka ayhaiennce ayardanitetd 2 DISSOlUtION: Of; ese saetetyy Sete crepeidicie da Globee woe aecherdiai sag 72, 73, 74 before beginning business ............0 cece eee aaa si ace eh aries 72 before expiration of time limit .............. o84 Hawes Saree ¥ 72 Extension of business ........... 0. cece eee eee net eeteacees 127 False reports, certificates or notices ...... iaarre acodsvans de uatea ives mucins. | LO) limitation of actions ...............eeeeee ua Wavia 2 RNAV SATIN Ee 140 Liability of stockholders for debts of .......... ccc cece eeeee aes 146 to laborers, servants, employees .........+-..4. seta se see 147, 148 notice of liability .................... ee ae MRE EAS eee 147 when action to be commene¢ed .............- eeieed wveee 148 Tamitation of ability: oo .cccs. scsi Gc aaide soe tise dad Geese dae Syarew 148, 149 debts not payable within two years ........ acora an eelaye Si Sale tees 149 judgment and execution against corporation condition precedent 6 cisccseseae teweds seuwewioenwe steed os Moun kat 149 POWEIS: cc vcuctea passed sis tees oe a Rae oe eee os Sige Seale SS, maser 114 to DOFTOW MONEY .... cece cece eee c eee c ee eneenevens 114, 115n to mortgage .........ecceeeeees mu esara teat.’ ..114, 115n, 116n, 117n to guarantee bonds of other corporations ......... sg auetaecik we oukts 119 Purchase of stock of other corporations ..... WOR CEALOR ECs ROR Ee SH 142 Reorganizauon, ii csc8ssosee bb talaes waGas ae awaeee atkedeeke 120 DIAN: sosensieis Sehaies menses oe he aia Sates sha 5 Miscaus Oaradaaie le acres 124, 123 Report to annual meeting .........-. 0... cece eee aig Wace le Rehsiate ena ares 185 Sale-of property Of 2. sse8 ces cew ce eda ee leceie es ee eee a eeigute n wet 22) 126 rights of non-consenting stockholders ....... eee sete Ras 126 Statute acca acadeiins ceed 2c stews 34 sew 14 Wed to Mae eee ee 113 GeneRaL Inprx. STOCK CORPORATIONS.—(Continued.) oe Steck book to he kept ..... 00. cece ccc ceca rece ccccteueees 134, 137 domestic corporation .............ce008 Shed etna aierere case 184 CONLENLS oii, aie hid eimaidie dad Sek cure dw eis vise wiotoaie wee aeaaans 134 effect of failure to keep ............ seve rene sestcuvess 184 inspection by stockholders ..... i deewS sade eS 134, 185n, 186n memoranda by stockholders ...........0008 Svasecase ler tyes 1360 purpose of imspection ........c.cccece pe cece enencce «oes 1850 what books open ............000. dines: aceione acai ahtelere eee. 1840 foreign corporation ..........ccccceceuce deaitela de earns. 44 mee . 187 Contents wes vasewssaeae ss we aes at se SERe Le widbiest tadax 137 inspection, es. sedis oc eases cos LG6 AG easeae meets are shebiors 137 Memoranda ...........20.- shbauaitve Noe sdees eave voeee LSM POMALOY o.sre dats eeu eoreteietd g Comins Ss seiaie exis de eioy eeecee esl 87, 1880 when open .... Pdeoheees eee dew asniireasonexwes couse UBT where to be Kept csi vcseciceenssaseesseeecven eeee e187, 1870 Validating mortgage by ............... oeceetsdvnverencecsacss 118 STOCKHOLDERS. As parties to creditor's action 1... ... cece cece cece cece ce meneee 52 As witnesses, see Witnesses. Directors of stock corporation as requfred to be .......... epics 128 Financial statement to ........ cc cece cece eee cccceeeesenees 158, 159n extension of time to furnish ............ceeeeeenncecens 158, 159n penalty for neglect to furnish ........ 0... cc cee ccc ceeeveeee 159 Inspection of stock book ..........scseeveees 134, 185n, 186n, 137, 138n Levy on interest of, in Corporation ....... 0c. ccc cece cence eee nees 699 Liability of directors of stock corporation for making loans to..... 132 Liability as, of adminfstrator, executor, guardian, efc. ......... 148 Liability of, for debts of stock corporation ............-ceeeeeee 146 to laborers, servarits, employees ....... cece cece seen eeeee 147, 148 notice of Tiability ....... 0... cee eee BeOS ORS ee 147 when action to be commenced .........ccccereeccecsecs 148 Limitation of Mabilfty 2.2.0.0... .. ccc cee cece twee eee e ne eees .148, 149 debts not payable within two years .........-.cscceeeeeeeee 149 judgment and execution against corporation condition precedent: .iscw ccsedessvnws oe etedw secwes s asiwe eee eaine 149 Of forefgn corporations, Tiabilities of ......... cence cece eee eeee 159 Petition by, for voluntary dissolution ...... lead Rintalee 8 s/ayanaid Res avenaie 64, 65 Political contributions Dy ......... cece cece rene ce cece ce veneer 35 Qualification, as VOtETS ....... cc ccc cece cece eect eee eeresesees 24, 25n Rights of, not consenting to sale of property of stock corporation. 126 Separate action against ....... ccc cece cece eect eee eeee ee eerens 52 Transfer of stock by, indebted to corporation ...... paiaain iver aan 141 Voting by proxy, see Vote. STOCK SUBSCRIPTIONS. Power of receiver to recover ........... Sida Bis Gadie «Waa es aattansere SS 83 Recovery on, upon dissolution of corporation 2... 6.6... e eee eee 58 See, also, Stock. 799 GeneraL INDEX. PAGE STREETS. Construction of telegraph or telephone lines over or under... 304, 305n Through cemetery Jams: .. ccs ci sedis ie see je dee sige Pie wielded esi oe 215 Use of, by turnpike or plank road corporation ............eese0es 309 See, also, Highways. STREET RAILWAYS. Abandonment of part Of route ........ cece eee c eee eee eee eae 414 Acquisition of Property ...... ccc cece cc eee esc e eee neeseeeas 398-400 Bridges, crossing of ....... $A RW CORRES COS RIS Mew oe KOE ES 421 Center-bearing rails prohibited ............ ccc cence eee een eeee 421 Condemmation of property ....... ccc cece eee ence ence eee enes 398 Consents to comstruction ........ ccc cece ec cee eer ete e eens 398, 400, 401 procedure when property owners refuse to give ............. 405 Construction of road, center-bearing rails ..............e sees 421 CONSCD tS, 2 2ic6.5.510.4)00:6. o's eA 60-4 Seas SSE SRS 398, 400, 401, 405 CYOBSI NS: DTIA LOS: 65. acspacsica.ca.c ava aise Wie celcsdies o txavduery levers wadecds a. guaseieradcave 421 in street, where other road built ........... cee eee e eee eeee 413 over public lands: wes sscccsveseniese's ewes seis eee ele soo 420 within: what: time soi csc iadeiees oe.sioie oe sew e cenaeaed 3e 410, 411 Tights in case of failure ....... ccc eect eee cere eee eees 418 Dissolution, effects on CONSENS ........ cece cree cee eee ee cenees 418 PATO «sch nicl de Geese Sw Saeed hee Rio alert Oe RR ae eae omede Meus oR obe 412 Collection Of ......... cc cece ene Baie eusccle ts recavaiasa ie javatevare maven nieds 412 CODUMUOUS CLIP: cccces ov cine-o'e sieaens owe a So asa we wT RRe ss 412, 4138n PONAlty®: i cvsedsis sea see Seek Seaiseee ee eee Shae 412 contracting JineSijecs ss casis 6 sew dee tees s weed cs era ee eee 415 ONG LATO «3 xéewis-s c Mew Nia Seed eek aes oe RR Es eR se 415, 417n DONAMY ik cde cece a neta Seewe iMate tains a 415, 417n tYANSLODS: 2 donne cas atinsg ccnndees sheds 415n, 416n, 417n PALO OL aire aria isk di viesavesere bie Geoene Gib Sided Stdige, eagle eg wemiaie’s 412 TOLW AON ass sissed ve o ceiers os Hee dies Hey Soelsleae ee ee SG i 412 Gross receipts, payment of part to municipal treasury ........... 406 Motive poWer <.ds0c.aceedscusasts teres stems oe eee sees 2S 411 GIVBTA BO: OLF ees syendiei ga dentate hea aca are ala eies veemaaa ares era G4 Godin odie uae’ 411. Municipal authorities ........... ccc cece ee teen tent e eee eeene 398-405 consent to construction of line ..................... 398, 404-405 Conditions tO: seis sneae ceimws es nirens esr s sa wee nes we 401-405 HOW procured sis ci sssees coviwss see eis viowes daa s aces 400 Salt, Use: Of On Palla esses. gene sca ec ee Sesiese is 8b odses Gresievhlane sad Bieuedd dye eres 420 Saiid, use Of On, PAIS ai sce cessecaicie bk.e sete eae ip talle esa. evepe te: seo oc net eaveree se 420 Steam railways in streets .......... cece eee eee ee eee en eeees 425-440 application. for sins ciswess cates osiee seemed ew ehe es Vea es 425 Commissioners! 2