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Law LIBRARY
CORNELL LAw SCHOOL

 

THE GIFT OF

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Date Fabrnarg..2.2,. 194.

   
Wiihi

3 1924 022 817 875
RAILROAD CORPORATIONS

IN THE

STATE OF NEW YORK.

GENERAL RAILROAD LAWS OF NEW YORK

WITH

DECISIONS AND FORMS.

Constitutional and Statutory Provisions

AFFECTING

‘STEAM, STREET SURFACE, “ RAPID TRANSIT,” CABLE,

ELECTRIC, AND OTHER RAILROADS,

AS FOUND IN
Tur New York STATE CONSTITUTION, THE GENERAL CORPORATION
Law, THE Stock Corporation Law, THE RaitroaD Law,
THE CONDEMNATION Law, THE STATUTORY CONSTRUC-
TION Law, THE GENERAL MunicipaL Law, THE
PENAL CopE, AND VARIOUS STATUTES, IN-

CLUDING CORPORATION Tax Laws

WITH

Decisions, Cross References and Forms.

ALSO

Decisions under the “ Town Bonding” Acts.

ss
BY EDWARD H.\WELLS,

Counselor at Law.

BANKS & BROTHERS,
NEW YORK. ALBANY.
1893.
BS 344%

COPYRIGHT
1892
BY EDWARD H. WELLSe

 

 

PRESS OF
L, C. Cuitps & Son,
UTICA, N.Y.

—
AMENDMENTS OF 1893 and 1894:
(Ghanges of importance indicated in ttalics.)

General Corp. Law.

pp.
23, § 12, am’d by L. 1894, ch. 400. Not applicable to RR.’s.
27, $18, am’d by L. 1894, ch. 136. Td.

Stock Corp. Law.

PP.

75, § 33, added by L. 1893, ch. 688. Id.

84, § 44, am’d by L. 1894, ch. 346, Td.

85, § 45, am’d by L. 1898, ch.700. “A majority” substituted for “two-thirds.”

86, § 46, am’d by L. 1893, ch. 700. Id.

100, § 56, added by Li. 1898, ch. 196. Increase or reduction of number of shares,
R. R. Law.

Pp.

115, § 5, am’d by L. 1893, ch. 483. Hatension of time for construction,

127, § 8, see Public Lands Law, (L. 1894, ch. 317,) Art. 5.

1387, § 16, am’d by L. 1893, ch. 316.

143, § 21, am’d by L. 1894, ch, 648. Electric Light Co.'s may construct R. R.’s
an cities.

210, § 75, am’d by L. 1893, ch. 546. Made applicable to leases.

212, § 78, am’d by L. 1893, ch. 483. Verbal changes, possibly important.

Street R. R.’s.

pp.

221, § 90, am'd by L. 1898, ch. 484. Street Ratlroads and EHautensions.

222, § 91, am’d by L. 1898, ch. 434, also by L. 1894, ch. 723. Allows the ex-
ecution of consents before subscribing
witnesses ; and omtts the provision for
the consent of property owners on the
opposite side of a public square.

224, § 92, am’d by L. 1893, ch. 434. Consent of municipal authorities.

227, § 98, am’d by L. 1893, ch. 434. Teme for construction.

236, § 99, am’d by L. 1898, ch. 484.

288, § 102, am’d ny L. 1893, ch. 434, also by L. 1894, ch. 698. Hatension over
bridges; guaranty of bonds of other
street railroad corporations.

Railroad Commission.

Pp:
294, § 172, added by L. 1894, ch. 452. Prizes for amprovements in ratlway ma-
chinery and appliances.

Condemnation Law,

Pp-
317, § 8374, am’d by L. 1894, ch. 475. Abandonment of condemnation proceed-
"ings only by order of court, on notice,

Town Bonds.

so, § 2, am’d by L. 1893. ch. 349. Amendment not applicable.

333, § 7, am’d by L. 1893, chs. 122 and 466 New bonds for invalid bonds.

336, § 12, am’d by L. 1893, ch. 466. “Until May 18, 1899” omitted, and * treas-
urer”’ substituted for * clerk.”

340, § 16, am’d by L, 1898, ch. 490.

341, § 17, am’d by L. 1898, ch. 466. Lrror in original corrected.

247 & L. 1892, ch. 380, rep’l’d by L. 1898, chs, 122 and 466,
Stat. Const. Law.
PP-
354, § 27, am’d by L. 1894, ch. 447.
356, § 82, am’d by L. 1894, ch. 448, Section remodeled and should be consulted.

Penal Code.
pp.
859, Insert § 154 of Penal Code.
363, § 383, am’d by L, 1898, ch. 692. —
364, § 413, am’d by L. 1893, ch. 692.
365, § 415 a, added by L. 1893, ch. 692. Ferry rates to be posted,
§ 416, am’d by L. 1893, ch. 692.
371, $483 a, added by L. 1893, ch. 692. Lights upon swing bridges.
372, § 447 a, added by L. 1893, ch. 692. Insecure scaffolding.
384, § 611, Sub. 4, am’d by L. 1893, ch. 692.

c. Crim. Pro.

Pp-
397, § 56, Sub. 9, am’d by L. 1898, chs. 150 and 570.

Taxation.

Pp.
423, § 11, am’d by L. 1894, ch. 562. wempts interstate business from taxation.

Mise. R. R. Acts.

pp-
435, L, 1834, ch. 276, § 17, rep’i’d by L. 1894, ch. 338. (Canal Law,) § 182. See
§ 25 of same.

438, Insert L. 1851, ch. 821, married women voting at elections.

448, L. 1878, ch. 134, rep’l’d by L. 1893, ch. 382.

456, L. 1885, ch. 288, §§ 8, 25-29, rep’l’d by L. 1893, ch. 382, $7, am’d by L.
. 1893, ch. 684, also by L. 1894, ch. 420.

464, L. 1886, ch. 329, rep’l’d by L. 1898, ch. 661.

465, Insert L. 1888, ch. 256, as am’d by L. 1894, ch. 518. Prohibits the use of

certain parks and streets in N. ¥. city
by R. &.’s.

478, (top,) See L. 1892, ch. 686,571. Laying out streets outside of city limits
across lands held for depot purposes.
478, Insert L, 1893, ch. 225. Bridge Companies may lay tracks.
«46 6 Gh} 288. Amended certificates of Incorporation,
© @ «ch, 882, $8 107 and 113. Extinquishment of fires in forest
preserve.
See Code Civil Pro., §§ 2411-2417, as am’d by L. 1893, ch. 266, §§ 2413
and 2415, am’d by L. 1894, ch. 264. Change of name. ‘
Insert L. 1898, ch. 548. Brakes on freight trains.
cf ch, 544, Automatic couplers on freight cars.
ch. 661, § 23. Remains transported in sealed caskets,
oe ech. 716. Monopolies.
1894, ch. 811. Bridge corporations over Niagara River,
se «ch. 838, § 25. Railroads near canals,
“ch. 755. Barbed wire division fences.

Mise. St. R. R. Acts.
PP.
475, §§ 1, 2 and 3, am’d by L. 1893. ch. 717. Weekly payment of wages.
476, lu. 1891, ch. 4 (Rapid Transit Act) is extensively amended by L. 1894, ch
752; § 4 is also am’d by L. 1894, ch. 528.
509, Insert L. 1893, ch. 289. Intersection of- street railroads with steam, et
railroads. ren
See L, 1893, chs. 128, 588 and 589. Forbidding construction of R. Rs 6
certain streets. ; oe
Insert L. 1893, ch. 679 Legaliziny certain branches of street
tersections with steam R. R’s.
Insert L. 1894, ch. 743, Fares on Man, Ry. Co. and connecting lines,

oe Ty oe

railroads ; in.
PREFACE.

 

The general laws’ of the state of New York upon the
subject of railroads have not been gathered into complete
and accessible form in recent yéars. This volume is de-
signed to contain all laws which are strictly speaking
applicable to railroads, accompanied by the adjudications
of the courts, aiding in their application and construction.
Such a collection is necessarily supplemented by the pro-
visions of the Constitution, and decisions under the “town
bonding acts,” so called, are added. The text of these acts
has been omitted by reason of their repeal. The provision
of law for the retirement of these bonds is the subject
of active litigation at the present time,

The preparation of this work was well advanced before
the adoption of the recent Statutory Revision. Many
changes: were radical, but in the main the former statutes
were only re-enacted and consolidated. This being the
fact, an examination of any question arising under the
Revision would almost necessarily involve a reference to
the former statute and the decisions bearing upon it.
Notes following each section call attention to the super-
seded railroad laws, and the decisions under each law are
‘separately stated so far as it is possible to do so. The
amendments of each statute superseded are indicated
so that it is possible by the aid of the statutes to refer each
decision to the law as it then stood, and a history of the
Railroad Law is furnished to the student and practitioner.

Many provisions were by the Revision made applicable
to railroads which were not formerly so, and it became nec-
essary to examine the decisions under those statutes,
Such decisions are not indicated as made under specific
railroad laws. It is believed that this arrangement will
furnish the material for a satisfactory examination of ques-
tions arising under the Revision.

The amendments of 1892 were of great importance, and
it is believed that the railroad law has now assumed a
permanent form, which justifies the publication of this
volume.

Its preparation has involved an examination of the
greater portion of the corporation laws of this state, and
it is confidently believed that the result will be found use-
ful in the solution of questions relating to corporations
generally in the state of New York. Only provisions
not applicable to railroads are omitted.

Recent decisions in Negligence Cases are to be found
at the end of the volume.

It is with great pleasure that I acknowledge the aid
and counsel of Mr. Ira A. Place, of the New York Bar,
in the preparation of this work.

EDWARD H. WELLS

Utica, N. Y., Dec., 1892.
TABLE OF CONTENTS.

 

Preface,
Table of Cases, - -

CHAPTER I.

III
XVII

Provisions of the Constitution Affecting Railroad Corporations.

Creation of Corporations—Debts of corporations—Private
or local bills—State aid—Municipal aid—Private prop-
erty taken for public use—Due process of law—Com-
pensation—Compensation, how ascertained,

CHAPTER II.
The General Corporation Law.

Short title—Classification of corporations—Definitions—
Qualification of incorporators—Filing and recording
certificates of incorporation—Corporations of same
name prohibited—Amended and supplemental certifi-
cates—Lost or destroyed certificates—Certificate and
other papers as evidence—Prohibition of other than
statutory powers—Grant of general powers—Limita-
tion of amount of property—Acquisition of additional
real property—Acquisition of property in other states
—Certificate of authority of a foreign corporation—
Proof to be filed before granting certificate—Acquisi-
tion of real property in this state by foreign corpora-
tions—The same, upon judicial sales—Prohibition of
‘banking powers—Qualifications of members as voters
—Proxies—Challenges—Effect of failure to elect di-
rectors—Special elections of directors—Powers of
supreme court respecting elections—Stay of proceed-
ings in actions collusively brought—Quorum of di-
rectors—Directors as trustees on dissolution—Exten-
sion of corporate existence—Conflicting laws—Con-
struction—Schedule of laws repealed,

PAGE’

14-46'
VI. ConTENTS.

CHAPTER III.

The Stock Corporation Law—General Powers and ‘Reorganization:

Title of act—Power to borrow money and mortgage prop-
erty—Reorganization; plan or agreement; sale of
propetty ; receiver, and suits against him ; assent of
stockholders—Combinations prohibited, 47-59

CHAPTER IV.

The Stock Corporation Law—Directors and Officers-

Directors—Change of number of directors—Void acts—

_ Liability for unauthorized dividends—Liability for

unauthorized debts and over issue of bonds—Liabil-

ity for loans to stockholders—Transfers of stock by

stockholder indebted to the corporation—Officers—

Inspectors and their oaths—Books to be kept—Liabil-

ity of officer for false certificate, &c.—Alteration or
extension of business, ; ; : : 60-75

CHAPTER V.

The Stock Corporation Law—Stock and Stockholders...

Issue and transfers of stock—Subscriptions to stock—Con-
sideration for issue of stock and bonds—Payment ot
stock subscriptions—Increase or reduction of capital
stock — Preferred and common _ stock — Prohibited
transfers to officers and stockholders—Stockholders,
rights on foreclosure—Lost certificates of ‘stock—Fi-
nancial statement to stockholders—Exhibition of
books by transfer agents of foreign corporations—
Liabilities of stockholders—Limitation of stockhold-
ers’ liability, ; ; : ‘ : , 76-100.

CHAPTER VI.

The Railroad Law—Organization and General Powers.

Title of act—Incorporation—Supplemental certificate—
Additional powers—Survey—Acquisition of real prop-
erty—Construction of road—Intersection of streams,
highways, plank roads, turnpikes and canals—Inter-
section of other railroads—Buildings and stations—
CONTENTS. VII

Transportation of persons and property--Time and
manner of transportation—Purchase of lands and
stock in other states—Power to borrow money, issue
bonds and mortgage property—When corporate pow-
ers to cease—Location of route—Acquisition of title
to real property—-Railroads through public lands—
Railroads through Indian lands--Railroads through
Chatauqua Assembly grounds-—Intersection of high-
ways, additional land for—_Intersection of other rail-
roads—-Change of route, grade on termini—Construc-
tion of part of line in another state-—-Two roads hav-
ing the same location—Tunnel railroads—Railroads
in foreign countries—Additional corporate powers
of such railroads—Location of principal office—Pri-
vate railroad—When electric light and power com-
pany may become a railroad corporation—Certain
railroads may operate in summer only—Fare, . . 101-143

CHAPTER VII.
The Railroad Law—Construction, Operation and Management.

Liability of corporation to employes of contractor—
Weight of rail—Fences, farm-crossings and cattle-
guards—Sign-boards and flagmen at crossings——No-
tice of starting trains; no preferences—Accommoda-
tion of connecting roads--Locomotives must stop at
grade crossings—Rates of fare—Legislature may alter
or reduce fare—Penalty for excessive fare—Passen-
ger refusing to pay fare may be ejected—Sleeping
and parlor cars—Employes—Must wear badges——
Checks for baggage—Injuries to baggage—Unclaimed
freight and baggage—Connecting steamboat lines—
Rights and liabilities as common carriers—As car-
riers of passengers—Injuries to passengers—Injuries
to trespassers and third parties—Rights and liabili-
ties as carriers of freight—Switches and safety
appliances—Other . safeguards—Use of stoves and
furnaces prohibited—Canada thistles to be cut—Rid-
ing on platform— Walking along track—Ferries—Op-
eration in winter—Mails—Annual report—Railway
police—Requisites to exercise of power of future rail-
road corporations, ‘ : ‘ : - 144-202
VIII. ConrTENTS.

CHAPTER VIII.
The Railroad Law—Consolidation, Lease, Sale and Reorganization.

Consolidation of corporations owning continuous lines—
Joint agreement—Consent of stockholders—New cor-
poration—Creditors’ rights—Assessment of property
of new corporation—Consent of municipal authori-
ties—Foreclosure of mortgages on consolidated roads
partly within the state—Leases and contracts—
Lessees may acquire stock of lessor—Consolidation
and lease of parallel lines—Mortgagee may purchase
on foreclosure—Certificates of stock issued after fore-
closure in certain cases—Liabilities of reorganized
corporations to extend road, é i . 203-219

CHAPTER IX.
The Railroad Law—Street Surface Raildroads.

General provision—Consent of property owners and local
authorities—Consent of local authorities, how pro-
‘ettred—Condition of consent, sale of franchise—Pro-
ceedings if property owners do not consent—Percen-
tage of gross receipts to be paid to cities and vil-
lages—Extension of route over rivers—Use of tracks
of other roads—Repair of streets; rate of speed; re-
moval of ice and snow—Within what time road to be
built—Motive power—Rate of fare—Construction of
road in street where other road is built--Abandon-
ment of part of route—Contracting corporations to
carry for one fare—Effect of dissolution of charter on
consents—Failure to complete road—When sand may
be used on tracks—Construction upon public grounds
or parks—Center-bearing rails prohibited—Right to
cross substituted bridge, : é 5 . 220-246

CHAPTER X.
The Railroad Law—Rapid Transit Railroads.

Application for railway; Commissioners—Oath and bond
of commissioners—First meeting of commissioners—
Determination of necessity of railroad—Adoption of

:* plans, &c.—Appraisal of damages and deposit of
money as security—Compensation to abutting owners
CoNTENTS. IX,

—Actions at law—Actions in equity—Certificate of in-
‘corporation—Organization—Commissioners to deliver
certificate—Powers—Crossing of horse railroad track—
Where route coincides with another route—Commis-
sioners to transfer plans, &c—Report of commission-

ers; Confirmation thereof—Pay of commissioners—

Quorum, term of office, removals and vacancies—
Abandonment or change of route—Increased de-

posit—Trains to come to a full stop, &¢«—Gates—Pen-

alty for violation of article—Sections to be posted—

Extention of time, ; : , ‘ . 247-280

CHAPTER XI.
The Railroad Law—The Board of Railroad Commissioners,

Appointment and term of office—Suspension—Secretary
and marshal—Additional officers—Oath of office—
Principal office and meetings— Quorum—General pow-
ers and duties—Reports of railroad corporations—In-
vestigation of accidents—Recommendations when
law has been violated—Recommendations when re-
pairs or other changes necessary—Legal effect of rec-
ommendations—Corporations must furnish necessary
information—Attendance of witnesses and their
fees—-Fees to be charged and collected—Annual re-
port—Certified copies of papers to be evidence—
Acts prohibited—Salaries and expenses—Total annual
expense to be borne by railroads—Application of
article, . : : é . : : ‘ . 281-294

CHAPTER XII.

The Condemnation Law.

‘Title—Definitions, parties—-Proceedings—Petition—No-
tice of presentation and service—Service, how made—
Guardians, attorney for absent defendant—Appear-
ance; service of papers—Answer—Verification—
Trial of issues and decision—Amendment of pro-
ceedings—Judgment; commissioners—Duty of com-
missioners; report; compensation—Confirmation of
report; rehearing; final order; deposit of award —Of-
fer to purchase; acceptance of same; costs and allow-
lowances—Compensation awarded docketed as a judg-
ment; writ of assistance—Abandonment of proceed-
Xs CONTENTS.

ings by plaintiff—Appeal from final order—Appeal
from judgment in favor of defendant—New ap-

praisal—Adverse claimants to compensation—Court
may authorize plaintiff to remain in possession;
stay—Entry into possession after answer on deposit—
Notice of pendency of proceedings—Orders to carry
proceedings into effect—Repeal—When to take ef-
fect, : ‘ : ‘ : . 295-325

CHAPTER XIII
The General Municipal Law—Municipal Aid Bonds.

Preliminary note—Decisions under local statutes—The
general municipal law—Title and use of terms—Lim-
itation of indebtedness—Payment of municipa
bonds—Validity of proceedings for issue of munici-
pal aid bonds—Actions for cancellation—Funding
of bonded debts—Issuance of municipal bonds—Reg-
istry of same—Conversion of coupon into registered
bonds—Defects, not invalidating municipal bonds—
Municipal taxes on railroads payable tocounty treas-
urer—Abolition of office of railroad commissioners—
Appointment of railroad commissioners—Oath and
undertaking—Exchange or sale of railroad stock or
bonds—Annual report of commissioners and payment.
of bonds—Accounts and loans by commissioners— Re-
issue of lost or destroyed bonds—Payment of judg-
ments against municipal corporations—Liability for
damages by mobs and riots—Repeal—When to take
effect—Schedule of laws repealed—Miscellaneous
acts—Bonds of supervisors—Transfer of powers of
railroad commissioners to supervisors—Bond—Com-
pensation of supervisors—Issue of new bonds, . 326-348

CHAPTER XIV.

The Statutory Construction Law.

Title; application—Definitions and use of terms—Prop-
erty—Real property—Personal property—Person—
Judge—Gender; number; tense—Heretofore; here-
after; now—Last; preceding; next; following—Seal—
Oath; affidavit; swear—Acknowledge, acknowledge-
ment—Bond; undertaking—Choose; elect; appoint—
ConrTENTS.

Board composed of one person—Meeting; quorum;
powers of majority—Service of notice on body or

board—County clerk; register—Village—State; terri-

tory—Day; mode of computing days; night time—
Standard time—Effect of repealing statutes—Exist-
ing laws included in revision—Effect of revision upon
laws passed at the same session or before revision
takes effect—Alteration of titles and head-notes—
Laws repealed—Time of taking effect—Schedule of

XI

laws repealed, . : : ‘ . . . - 349-35

CHAPTER XV.
The Penal Code—The Code of Criminal Procedure.

' Tue Pena Cope.

Peace officers, who eligible as; arrests without authority;

race tracks—Conspiracy defined—What conspiracies
punishable—Coercion of employes to enter into agree-
ment not to join labor organizations— Manslaughter

in second degree—Negligent use of machinery; man- ,

slaughter—Liability of persons in charge of steam
engines; manslaughter—Punishment of manslaughter
in second degree—Use of force or violence, when not
unlawful—Mailing, carrying obscene print, etc.—
Unauthorized pressure of steam—Mismanagement of
steam boilers—Carriers refusing to receive and carry
passengers—Protecting civil and public rights—“‘ Pub-
lic nuisance ”’ defined—Maintaining a nuisance a mis-
demeanor — Keeping and unauthorized use of ex-
plosives; shipment of same—Negligently managing
and refusing to extinguish fires—Ferries—Unlawful
offers to railroad commissioners or their employes—
Misconduct of railroad commissioners and of their
employes —Persons unable to read not to act or be em-
ployed as engineers—Misconduct of officals and em-
ployes on elevated railroads—Intoxication or other
misconduct of employes—Signals at crossings—Plac-
ing other cars in trains with passenger cars—Plat-
forms and heating apparatus of passenger cars—
Guard posts; automatic couplers—Officers of railroad
companies to be uniformed—-Riding on freight cars—
Exposing person affected by a contagious disease ina
public place—False rumors to affect the market price
XI. ConrtTENTS.

of stocks, bonds, &c.—Interfering with navigation—
Riot defined—Punishment of riot—Unlawful assem-
blies—Remaining at place of riot or unlawful meet-
ing—Refusing to assist in arresting rioter—Arson in
first degree—Arson, second degree—Arson, third de-
gree—Burglary, third degree—“ Building” defined—
Unlawfully entering building—Forgery in first de-
gree—Forgery, second degree—Forgery in third de-
gree—Forging passage tickets--Officer selling or
issuing false certificate of stock—Falsely indicating
person as corporate officer--Terms “forge,” &c., de-
fined—Larceny—Grand larceny in first degree—Id.,
second degree—Petit larceny—Larceny of passenger
ticket—Frauds in organization of corporations——
Fraudulent issue of stock—Frauds in procuring or-
ganization or increase of capital stock—Misconduct of
directors of stock corporations—Frauds in preparing
accounts—Misconduct of officers and directors of
stock corporations—Misconduct of officers and em-
pioyes of corporations—Misconduct of corporate elec-
‘tions—Presumption of knowledge of directors—
Unauthorized sales of tickets; conspiracy; offices for;
authorized sales—Sales of passenger tickets to emi-
_grants—‘ Company” defined—Fictitious bills of lad-
‘ing, &c.—Duplicate receipts—Sale of property re-
-ceived for transportation—“Not negotiable’—Injuries
to tracks, &c.—Damaging building by explosion—Al-
tering signals—Injury to property; to telegraph line—
Affixing advertisement to land—Endangering life by
placing explosives near building—Interfering with
cars, brakes, &c.—Improper care of animals—Defini-
tions—Disorderly conduct on cars, &c. s 358-393

Tue Cope oF CRIMINAL PROCEDURE.

Jurisdiction of courts of special sessions--Crime com.
mitted on railroad train—Plea of guilty—Summons
.—Examination—Certificate of magistrate and re.
turn—Indictment—Bringing an indicted corpora.
tion into court—Collecting fine upon conviction, 397-40
_ConTENTS. ° XIII

CHAPTER XVI.
Taxation.

Property subject to taxation—‘*Land” defined—Lands,
where taxed—Property of corporations, where taxed——
Rule of valuation—Tax, how collected; receivers—
Tax on capital—-Statement to assessors—The same, to
comptroller— Penalty-—-Suit therefor—Companies,
how assessed—Taxes to be stated and collected—Duty
of supervisors —Collector— How paid ——Collection;
remedies—Taxes returned as unpaid—Tax on cap-
ital—Tax for school district purposes—Apportion-
ment—Statement by clerk of board of supervisors to
county treasurer—Payment of taxes to county treas-
urer—Proceedings in case of non-payment--Payment
to collector—Tax on franchise and business—State-
ment to comptroller—Certificate of valuation of stock,
appeals—Comptroller to add ten per cent. in case of
failure to make report—Proviso—Annual tax, how
computed—When payable—Tax on railroads, sleep- .
ing car companies, &c.; rate—When payable; report;
ten per cent. to be added in case of neglect—-Exempt
from taxation for state purposes—Tax, application
of—Basis of tax—Failure to pay—Examination of
books, &c., by comptroller—Examination of witnesses;
contempt—Settlement and adjustment of accounts by
comptroller—Interest—Notice of settlement—Review
by certiorari—Comptroller may issue warrant for col-
lection—Revision and readjustment—Review by cer-
tiorari—Payment of school taxes by railroad compa-
nies—Tax on organization—Application of tax—Re-
covery of delinquent taxes—Commutation of highway
taxes, . : . ‘ i ‘ ; ‘ ‘ . 401-434

MISCELLANEOUS ACTS.

Railroads Generally.

Railroads near and across canals—Consent of commission
ers to crossing of highways— Unclaimed trunks and
baggage—Cemetery lands—Construction of roads and
streets across tracks—Penalty—Fares to immigrants
XIV. ConrTENTS.

—Penalty—Arrest of offender—Railroads in the city
of New York—Chattel mortgages—Liens on railroad
bridges and trestles—Bonds, how rendered non-nego-
tiable—Liens for labor on rolling stock, track, &c.,
enforcement, priority and discharge—Personal liabil-
ity of stockholders—Sale of abandoned canal for rail
road purposes—Infectious and contagious diseases or
animals—Companies may change time of holding
elections—Corporations owning canals may construct
railroads—Oils to be used in cars—Receivers of cor-
porations—Receivers in foreclosure actions—Condi-
tional sale, lease or loan of rolling stock and equip-
ment—Property to vest in receiver—Contracts for
conditional sale of personal property to be filed—
Forest lands not to be leased or taken—Forest lands,
precautions against fire—Locomotives to be furnished
with arrangements for preventing escape of fire—
Wages of employes preferred—Tramps— Winding up
of corporations, dissolved by legislature—Transporta-
tion of remains of person dying of contagious disease
--Milk cans—Extra fare; rebate ticket--Cash pay-
ment of wages—Construction of railroads on county
roads-—Railroads not to hold stock in navigation com-
panies—Pipe line crossings--Actions to sustain the
rights of the public in highways—Change of gauge—
Railroad commissioners may compel lighting and ven-
tilation of tunnels—State engineer to file reports with
railroad commissioners—Transportation of game and
certain fish—Licenses by comptroller to common car-
riers—Employment of persons addicted to intoxica-
tion—Hours of labor; compensation for extra service,

435-473

MISCELLANEOUS ACTS.
Street, ‘‘Rapid Transit,” etc., Railroads.

Processions and parades on streets—Hours of labor—
Weekly payment of wages—Plank-road and turnpike
companies may lay down rails—Rapid transit in cities
of over 1,000,000 inhabitants—Rapid transit commis-
ioners—Oath—First meeting of board; by-laws; rules;
quorum, &c.—Determination; general plank consents;
CONTENTS, XV.

‘parks and streets—Consents, supreme court commis-
sioners—Plans; abandonment before sale—Sale of
franchise; forfeiture; term of franchise—Resale at ex-
piration of term—Offices and officers—Appropriation
for board—Formation of corporations—Election of
first directors; by-laws—Certificate of organization;
~payment of percentage of subscription to stock—
Modification of plans—Principal office and taxation;
exemption—Directors; vacancies; qualifications—Pay-
ment of subscriptions for stock—Liability of stock-
holders—Stock and its transter—Increase or reduction
of stock—Liability of holders in a representative
capacity—Liability of corporation to employes of con-
tractors—Acquisition of title to real estate—Powers—
Employes to wear badges—Carrying the mails—Ejec-
tion of passengers refusing to pay fare—Accommoda-
‘tions for the conveyance of freight and passengers—
Intoxication of employes—Willful injury to property
Dissolution by legislature—Connections and exten-
sions—Removal of street railroad tracks—Construc-
tion of act—New York city—Repeal—Bridge compa-
nies may build elevated railways in lieu of bridge
approaches—Abandonment of part of route of elevated
railways—Madison avenue—Railways in and near
public parks—Constructed by municipal authorities—
Expense of construction—Agreement for construc-
tion—Income—Motive power—New York city—Bonds
—Extension and branches of street surface railroads,

474-509

GENERAL RULES IN NEGLIGENCE CASES.

Negligence generally—Action by married woman—Two
causes—Other similar accidents—Concurring negli-
gence—Negligence out of the state—Duties of persons
injured—Time tables—Failure to exercise the best
judgment-—-Contributory negligence--Evidence—-Pov-
erty of plaintiff—Physician’s evidence—Photograph
—Other similar accidents—Declarations after the in-
jury — Negligence and contributory negligence —
Street railroads—Injury to person crossing the street
—Jnjury to passengers—Damage by fire—Employes—
Safe place—Suitable tools and apparatus—Suitable
XVL CONTENTS,

tules and regulations—Competent fellow servants
and superintendents—Duty to unskilled workman
and minor employe—Suitable number of employes on
trains—Time table—Agreement not to claim dam-
ages—Negligence of co-employes—Injuries to chil-
dren—Injuries at crossings—Accidents at crossings
where gates have been provided, . 510-524.

FORMS, 525 to end.
INDEX TO FORMS.
INDEX.
TABLE OF CASES.

A.

Abbott v. Johnstown, Gloversvills & K.
Horse R. R. Co., 152, 214, 216.

Abendroth v. Man. Ry. Co., 9, 258.
~ Abel v. D, & H. Can. Co., 518, 519.

Ackerson v. Bd. of Suprvs. of Niagara

: Co., 338, 339.
Adirondack & St. L. R BR, Co.,in re, v.
DeCamp, 297, 322, 323.

Adams v. Mills, 99.

Adams v. Sar. & Wash. R. R. Co., 110.

maa N.Y.C.& H.R, R. R. Co.,

Hina Ins. Co. v. Wheeler, 188, 189, 190,

191.

Agate v. Sands, 97.

Aikin v. Wasson, 96.

Aiken v. Westcott, 169.

Ainley v. Man. Ry. Co., 176.

Akersloot v. 2d Av. R. R. Co., 178, 515.

Albany N.R. R Co, v. Brownell, 316,

9.

Albany N. R, R. Co. v. Cramer, 306, 312.
' Albany N. R. R. Co. v. Lansing, 308,
= 309.

Alberti v. N. Y., L. E. & W. RB. R. Co.,

178, 511, 513.

Alden v. N. Y. C. R. BR. Co., 174,

Alexander v Greene, 187.

alg eee v. Roch. City & B. R. R. Co.,

15.

Alger v. N. Y. E. R, R. Co., 268.

Allen v. Clark, 98.

pe Forty-second St. R. R. Co., 5,

3.

Allen v. Utica, I, & Elmira R. R. Co.,
313.

Alvord v. Syr. Sav. Bk., 826.

American Bank Note Co, v. Met. El. Ry.
Co., 259, —

American Bank Note Co. v. N. Y. El.
R. RB Co., 259, 260, 261, 262, 268.

‘American Rap. Tel. Co. v. Hess, 199.

Anderson v. Roch., L. & N. F. BR. R.
Co., 126, 316.

Andersou v, Speers, 67.

Andrew v. Vanderbilt, 66.

Angel v. Town of Hume, 329, 337.

Appel v. Buff., N. Y. & Phil. R. R. Co.,

517.
Archer v, N. Y., N.H.& H. R. BR. Co.,
176. »

Armfield v. Town of Solon, 337.

Arnold v. Del. & H. Can. Co., 518, 521.

Arnold v. Hudson R. BR. R. Co., 9.

Ashley v. Godwin, 74.

2

 

Astor v. The Arcade Ry. Co., %.

Astor v. The Mayor, &c., of N. Y., 13.

Atcherson v. Troy & Boston R. R. Co.,
146.

Atkinson v. Rochester P. Co., 89.

Atlantic Ave. El. R. R. Co., in re, 267.

Attica, Bank of, in re, 19.

Auerbach v. N. Y. 0. & H.R. R. RB. Co.,

163.
Austin v. St. Is. R. T. R. BR. Co., 368.
Avery v. N. Y.C. & H.R. R. RB. Co.,
114,
B.

Babcock v. L. S. & M.S. RB. BR. Co., 188.

Babeock v. Schuylkill & L. V. R. RB.
Co., 84.

Bach v. N. Y. El. R. R. Co, 261.

Bailey v. Lansing, 388, 357.

Baker v. Man. Ry. Co., 178.

Balch v. N. Y. & O. Midland R, R. Co.,
146.

Bank of Batavia v. N. Y., L. E. & W.
R. BR. Co., 185.

Bank of Chenango v. Brown, 1.

Barker v. Coflin, 162.

Barker v. N. Y. C. RB. RB. Co., 164,

Barney v. Burnstenbinder, 183.

Barney v. Oyster Bay, &c., Steamboat
Co., 155.

Barnum v, Bd. of Suprv’s of Sullivan Co.,
338.

Barr v. N. Y., L. BE. & W.R. R. Co.,
83, 215.

Barry N.Y. C. & H. R.R. R. Co.,
368.

Barse v. H. N. & P. N.G. RB. R. Co.,
468.

Bartlett v. Drew, 66.

Bartlett v. N. Y. & So. Brooklyn F. &
S. T. Co., 164.

Bateman v. N. Y. C. & H. B. R. BR. Co.,
176.

sine vy. Spuyten Duyyil & P. M. R, R.

o., 111.

Beach v. Smith, 80.

Bealv. N. Y. 0. & H. BR. B. R. Co., 40,
316.

Beardsley v. Johnson, 32, 62, 64, 96.

Beardsley v. Ontario Bank, 50, 448.

Beattys v. Town of Solon, 105, 106.

Becker v. Met. El. Ry. Co., 262.

Beebe v. Ayres, 162.

Belger v. Dinsmore, 186.

Bellman y. N. Y. C.& H. BR. R. BR, Co., |
175. 4

Belmont v, Erie Ry. Co., 87. .
XVIII. TABLE

Benedict v. W. U. Tel. Co., 22.
Benjamin v. Elmira, J. & C. R. R. Co.,
50.

Benzing v. Steinway & Sons, 516.

Bennett v. N. Y.C. & H.R. R. R. Co.,
162.

Benson v. N. J. R. R. & T. Co., 177.

Benson v. The Mayor, 9.

Berrigan v. N. Y., L. E, & W. RB. R. Co.,
519.

Beveridge v. N. Y. E. R. R, Co., 62, 66,
216, 217.

Biddlecome v. Newton, 3383, 338.

Biglin, in re, v. Friendship Assn., 91.

Billings v. Trask, 68.

Billings v. Robinson, 84.

Binghamton vy. Bing. & P. D. Ry. Co,
235

Binns v. Williams, 89.
Birmingham v. Roch., C. & B. R. R.

Co., 173.
N. Y. C. R. R. Co., 155, 176,

Bissell v.
177.

Black v. Brooklyn C. R. R. Co., 178.

Black R. & M. RK. R. Co., in re, v. Barn-
ard, 309, 310.

Black River & Utica R. R. Co. v. Barn-
ard, 105.

Black R. & Utica R R. Co. v. Clarke, 80.

Blackstock v. N. Y. & Erie R. R. Co.,
186.

Blain v. Taylor, 152.

Blair v. Erie Ry. Co., 176.

Blake v. Griswold, 73

Bliven v. Hudson R. R. R. Co., 185.

Bloodgood v. Mohawk & Hudson R. R.
Co., 10, 11, 108.

Bloomfield, &c , Gas Light Co. v. Calkins,
313.

Blossom v. Dodd, 187.

Board of St. Opening, in re, v. St. J’s
Cemetery Assn., 110, 438.

Boardman v. L. S.& M.S. R. RB. Co., 204.

Bohm v. Met. El. Ry. Co., 258, 259, 260,
261, 262.

Boice v. Hudson R. R. R. Co, 162.

Bonnell v. Griswold, 73.

Booth v. Boston & Alb. R. R. Co., 520.

Booth v. R, W. & O. T. Ry. Co., 110.

Borden v. D., L. & W. R. R. Co., 514,

Boston & Albany R. R. Co . in re, 109.

Boston & Albany R. R. Co., in re, v.
Greenbush, 126, 439.

Boston, Hoos. T. & W. Ry. Co., in re,
120, 297, 310.

Boston, Hoos. T. & W. Ry. Co.,in re, v.
Troy & B. R. R. Co., 112, 121, 182,
309, 320.

Boston, Hoos. T. & W. Ry. Co., in re, v.
Turnbull, 319.

Bostwick v. Balt. & O. R. R. Co., 187.

Boutwel! v. Townsend, 96.

Boyce v. Man. Ry. Co., 176.

OF CASES.

oe N.Y., L. BE. & W. RK. R. Co.,

150.

Brace v. N. Y. C. R. R. Co., 149.

Brackett v. Griswold, 73.

Bradford E. & os a vy. N. Y., L.
BE. & W. RB. R. Co., 59.

Bradley v. B., N.Y. & E.R. R. Co., 149,
152.

Brady v. Man. Ry. Co., 511, 514.

fae vy. Renss. & Sar. R. R. Co., 150,
151.

Braem v. Merchants’ Nat. Bk., 90.

Brand v. Godwin, 74.

Brassell v. N. Y.C.& H. R. R.R,C.,
178.

Bray v. Farwell, 84.

Breen v. N. Y.C. & H. BR. R.R. Co.,
174, 178.

Brennan v. Gordon, 420. _

Brewer v. N. Y., L. HE. & W. RR. Co.,
176, 177, 199.

Brick v. Roch., N. Y. & P. R. R. Co., 517,
521.

Brickell v. N. Y. Cc. & H. R. R. R. Co.,
522.

Bridges v. Suprvs. of Sullivan Co., 338.

Broadway Surface R. R. Co., in re, 280,
231

Broadway Underground Ry. Co.,in re,
139,

Brooklyn Cent. & J. R. R. Co. v. Brook-
lyn City R. R. Co. 240.

Brooklyn Cent. R. R. Co. v. Brooklyn
Cy. R. R. Co., 105, 240.

Brooklyn Crosstown R. R. Co. v. Brook-
lyn City R. R. Co., 215.

Brooklyn El, R. R. Co., in re, (65 Hun,)
309, 310.

Brooklyn El. R. R. Co., in re, (125 N. Y.)
112, 116, 117.

Brooklyn Park Commr’s v, Armstrong,

10.

Brooklyn Steam Tr. Co. v. Brooklyn,
116, 117, 270.

Brooklyn, Winfield & Newtown R. R. Co.,
in re, (75 N. Y.) 5, 116.

Brooklyn, Winfield & Newtown R, &. Co.,
in re,v. Broadway R. R. Co. of
Brooklyn, (72 N. Y.) 116, 117, 302.

Brooklyn, Winfield & Newtown R. R, Co.
in re, v.'Grand St. & N. R. R. Co of
Brooklyn, (81 N. Y.) 116, 117, 215.

Brooks v. Dick, 57.

Brooks v. N. Y.& E, R. R. Co. 149, 150.

eee N.Y. 0. R. R. Co., 178, 174,

Brown v. Smith, 97,

Pe v. Town of Greenwich, 337,

Brush v. Man. Ry. Co., 258, 260.

Hoey v. N.Y.C.& ALR. BR. R, Oo.,

Buck v. Webb, 165.

 
TABLE OF CASES.

’

Buckley v. Gutta Percha & R, M. Co.,

Buel v. N. Y. C. R. R. Co., 196.

‘Buffalo & Jamestown R. R. Co. v. Fal-
coner, 8, 332.

Buffalo & Jamestown R. R. KR. Co. v.
Gifford, 80.

Buffalo & Jamestown R. R. Co., in re, v.
Commissioners of Collins, 8, 332.
ee Y. City R.'R. Co. v. Brain-

ar
Buffalo &N.Y. City R. R. Co. v. Dudley,
3.

8

-Buffalo & Pittsburg R. R. Co. v. Hatch,
21, 105, 106.

‘Buffalo & State Line R. R. Co. v. Rey-
nolds, 303.

Buffalo & State Line R. R. Co. v. Super-
visiors of Erie, 403.

Buffalo, Corning & N. Y. R. RB. Co. v.
Pottle, 185.

Buffalo Hast Side R. R. Co. v. Buffalo
St. R. R. Co., 160.

Buffalo, N. Y. & Phil. R R. Co., in re,
v. McIntosh, 306, 312

Buffalo Stone & C. Co. v. D., L. & W.
R. R. Co., 148, 149.

Buffett: v. Troy & B. BR. RB. Co., 175, 179.

Bulkley v. Whitcomb, 97.

Burnell v. N.Y. C. R. BR. Co., 169.

Burke v. Witherbee, 517.

Burr v. Wilcox, 98.

Burrall v. Bushwick R. R. Co., 79

Burrows v. Erie Ry. Co. 179.

Burt, receiver, v. Farrar, 105.

Burtis v. Buffalo & St. Line BR. R. Co.
182.

Bushby v. N. Y., L. E & W. R. R. Co.,
518,

Butler v. Smalley, 73.

Butler v. Townsend, 516.

ee N. Y.C. & H. BR. R. R. Co.,

6

Byrnes v. N. Y., L. E. & W. RB. R. Co.,

518, 521.

C.

Cagwin v. Town of Hancock, 326.

Calboun.v. Delhi & Mid. R. R. Co., 328,
329,. 382.

Calhoun v. Millard, 330, 381.

can & A.R. R. & T. Co. v. Belknap,
1

-Cameron v. Havemeyer, 58.

Cameron v. N. Y. & M. V. Water Co.,
58, 205, 355.

' Qampbell v. American Zylonite Co., 87.

‘Canandaigua &N.F.R.R. Co. v. Payne,
309.

Canfield v. Baltimore & Ohio R. B. Co.,

187.
Card v. Man. Ry. Co., 279.

XIX,

Carpenter v. B. & Alb. R. R. Co., 179,
199.

Carpenter v. N. Y.,N. H.& H.R. R.
Co., 166, 175, 176, 180.

corner v. Oswego & Syracuse R. R.
Y0., 10

Carroll N. Y.&N. H.R. RB. Co., 178,
195,

Carroll v. Staten Is, R. R. Co., 174.

many, v. Cleveland & Toledo R. R. ee
155.

Catlin v. Adirondack R. R. Co., 185.

Cayuga Lake R. R. Co. v. Kyle, 105.

Central City Sav. Bk. v. Walker, 38.

Central Crosstown R. R. Co. v. Twenty-
third St. R. R. Co., 213.

Central R. BR. of L. I., in re, 1338.

Central Trust Co. v. N. Y. City &N.R.
R. Co., 88, 420, 452.

ee Mining Co. v. State of New York,
2

. Chambers v. Lewis, 67.

Chandler v. Hoag, 74.

Chandler v. Town of Attica, 329, 334. .

Chapman v. Chumar, 99.

Chapman v. Gates, 11.

Chapman vy. Utica & B. R. BR. RB. Co.,
14

146.

oo C. & A, R. R. Co. v. Gibbes,
29

Chase v. N. Y. C. R. R. Co., 161.

Chase v. Jamestown St. Ry. ’Co., 173.

Chemical Nat. Bk. v. Colwell, 62, 78.

Cherry Creek , Town of, v. Becker, 8, 330,
332.

Chipman v. Palmer, 511.

Christensen v. Eno. 83.

Chrystal v. Troy & Boston R. R. Co., 528.

Church of the Atonement, in re, 19.

Church, in re application of, 4.

Claflin v. Drake, 98.

Clark v. Highth Ave. R. R. Co., 195. -

Clark v. N.Y., L. E. & W. R. RB. Co.,
164, 181.

Clark, in re, v. Sheldon, 338, 339.

Clarke v Rochester & Syracuse R. R.
Co., 181, 183.

Clarke v. R., Lock. & N. F. R. R. Co.,
148, 149, 150.

C: ee v. N.J. _ Steamboat Co., 174,
175

Clussman v. L. I. R. R. Co., 176.

Cochran v. Amer. Opera Co., 97.

Cochran v. Wiechers, 96.

Cole v. Millerton Iron Co., 58, 78, 90,
205, 453.

Colegrove v. N.Y. & H.R. R. Co., 180,
19

Coleman v. Second Ave R. R. Co., 181.

Colgate v. Penn. Co., 184, 185.

Collender v. Dinsmore, 186.

 

Coman v, Lakey, 51.
XxX.

Commercial Bank of Buffalo v. Kort-
right, 79.

Commercial Un. As. Co. v. Smith, 19.

Conant v. VanSchaick, 96.

Condict v. Grand Trunk Ry. Co., 187,
188, 190.

Coney Isl. & B. R. R. Co., in re, v. Rid-
ley, 120.

Conger v. Hudson R. R. R. Co., 182.

Conger v. N. Y., W. S. & B. Ry. Co.,
113.

Conklin v. N. Y., O. & W. Ry. Co., 129.

Conkling v. Man. Ry. Co., 263.

Connolly v. The Knickerbocker Ice Co.,

197.

Cook v. N. Y. C. & H. R. BR. R. Co., 368,
516.

Cook v. L. I. R. R. Co., 178.

Cooper v. Town of Thompson, 826.

Coppins v. N. Y. C. & H. R. R. R. Co.,
519, 521. (

Corcoran v. D., L. & W. R. BR. Co., 518,
“521. :

Corbett v. Twenty-third St. Ry. Co.,
175, 238.

ne N. Y.C. & H.R. RB. R, Co.,
368.

Cornell v. N. Y. E. R. R. Co., 263. °

Cortland & Homer H. R. R. Co., in re, v.
S., B. & N. Y. R. R. Co., 5, 11, 121,
182, 133.

Corwin v. N. Y. & E. R. R. Co., 150,
151, 152.

Costikyan v. R., W. &O. R. R. Co., 196

Cott v. Lewiston R. R. Co., 130.

Cowdry v. Town of Caneadea, 329.

Cragin v. N.Y. C. R. R. Co., 188, 187.

Craig v. Rochester City & Brighton R.
R. Co., 10.

Craig v. Town of Andes, 329, 330, 332,
837

Graig Medicine Co. v. Merchants’ Bank,
2

Craighead v. Brooklyn Crosstown R. R.
Co., 181, 515.

Crawford, Executor, in re. 444,

Crawford v. Met. E. Ry. Co., 261.

Crawford v. N. Y.C.& H.R. R. R. Co.,
149.

Cregan v. Marsion, 518.

Crist v. Erie Ry. Co., 516.

Crowley v. Panama R. R. Co., 141.

Crowner v. Watertown & R. R. R. Co..
316, 321.

Crowninshield v. Supervisors of Cayuga

Cullen v. D. & H. Can. Co., 368.

Cumming v. Brooklyn C. R. R. Co., 367.

Cummings v. N. Y. & O. Midland R. R.
Co., 146.

Currier v. N. Y., W. S. & B. Ry. Co.,
638, 81.

TABLE OF CASES.

‘Curtis v. Avon, G. & Mt, M. R. RB. Co.,
169.

Curtis v. D., L. & W. R. BR. Co., 169,
191.

Cushman v. Thayer Mfg. (o., 79.

Cutting v. Damerel, 84.

Cuykendall v. Corning, 98.

Cuykendall v. Douglass, 85.

D.

Dale v. D.. L, & W. BR. R. Co., 178.

Daniels v. Staten Island R. T. Co., 154.

Davis v. Cayuga & Susq. R. R. Co., 168.

Davis v. Lakiah Valley R. R. Co., 176,
179.

Davis v. Mayor, &c., of N. Y., 224.

Day v. Ogdensburg & Lake Champ. R.
R. Co., 116, 218, 215.

Dean v. Biggs, 50.

Dean v. DeWolf, 99.

Dean v. Met, El, Ry. Co., 258.

Deansville Cemetery Assn., in re, 10.

DeBetz Petition, 57.

Decker v. Gardner, 50, 452.

Del. & Hudson Canal Co., v. Whitehall,

439.

Del. & Hudson Caual Co.,in re, (69 N.
Y.) 319, 321,

Del. & Hudson Canal Co., in re, (3 W.
D.) 148.

DeLong v. D., L. & W. R. R. Co., 165,

Demarest v. Flack, 26.

Deming v. Puleston, 32.

pee N. Y.C.& H. BR. R. R. Co.,
163.

Desdoity, in re, 36.

DeVau v. Penn. & N. Y. C. & RR.
Co., 518.

Dexter v. S., B. & N. Y. R. R. Co., 148.

Diamond Brick Co. v. N. Y. C. & H. R,
R. R. Co., 158.

Diamond Mateh Co. v. Roeber, 58.

Dickens v. N. Y. C. R. R. Co., 178,

Dickson v Mayer, 89.

Dillaye v. N. Y. C. R. R. Co., 176.

eee v.N. Y., N. H. & H.R, R.Co.,
169.

Ditchett v. Spuy. Duyv. & P. M. R. R.
Co., 152, 153.

pe Brooklyn City & N. R. RB. Co.,
235.

Dobiecki v, Sharp, 176.

Dodge v. County of Platte, 326.

Dolan v. Newburgh, D. & C. R. R. Co.,
148, 152,

Donnegan v. Erhardt, 151.

Dee N. J. St. Navigation Co., 186,

Douglass v. Ireland, 97.

Doyle v. Man. Ry. Co., 261, 262.

ies v. Pres., &e.,D. & H, Can. Co.

 
TABLE OF CASES,

Draper v. Town of Springport, 826.
Drizoot a oe Bradley & Cary M’f’g.
0., 69.
Drucker vy. Man. Ry, Co., 261, 262.
Duanesburgh, Town of, v. Jenkins, 326.
a N.Y. & H. R. BR. Co., 150, 151,
Duncomb v. N. Y., Hous. & N. RB. BR. Co.,
Dunn v, N. Haven Steamboat Co., 166.
Dunphy v. Erie Ry. Co., 163.
49, 52, 80.
Durant v. Abenbroth, 81.
Dutcher v. Imp. & Tr. Bank, 89.
Dutchess & Columbia R. R. Co. v. Mab-
vett, 104.
Dutenhofer v. Adirondack Ry. Co., 54.
Dwight v. E., C. & N. R. R. Co., 515.
Dwinelle v. N. Y. C. & H. R. R. Co.,
165.
Dye v. D., L. & W. BR. R. Co., 514.
Dyer v. Erie Ry. Co., 368, 522.

E.

East River Bridge & C. I. S. T. ©o., in
re, 253.

Eaton v. D., L. & W. R. BR. Co., 176.

Eaton v. Erie Ry. Co., 367.

Edgerton v. N. Y. & H. R. RB. Oo., 175.

eee v.N. Y. C0. & H.R. RB. R. Co.,
129.

Ellicottville, &c., Plank Rd. Co. v. Buf.
& PR. R. Co,, 111, 131.

Elliott v. N. ¥. C.& H.R. R. R. Co.,-

(33 St. Rep.) 177.

Hiliott v. N. Y. C. & H. R. BR. R. Co.,
(63 Hun,) 163.

Hillis v. N. Y., L. E. & W.R. R. Co.,
518, 520.

Ellis v. Willard, 186. .

Ellsworth v. St. Louis, A. & T. H. R,
R. Co., 49.

Elmore vy. Sands, 162.

Elwell v. Grand St. & New. R. R. Co.,

50.

Emp. Liab. As. Corp. v. Emp. Liab.
Ins. Co., 19.

English v. D, & H. C, Co., 168.

er N. Y. City R. R. Co. v. Owens,
05.

mee St. Paul, M. & M. R. R. Co.,
169. ;

Everson v. Eddy, 51, 89.

Excelsior Grain Binding Co, v. Stayner,
81.

Excelsior Petroleum Co. v. Lacey, 66.

F.

Wairfax v. N. Y.C.& H.R. R. BR. Co.,
168, 169.

Falconer v. Buffalo & Jamestown R. R.
Co., 8, 331, 332.

 

XXI.

Fanning v. L. I. R. R. Co., 150.

Fanning v. Osborne, 107, 215, 216, 223.

Farmers’ Trust Co, v. Ansonia, 235.

Farmers’ Loan & T. Co. v. F., L. & T.
Co. of Kansas, 19.

Farmers’ Loan & Trust Co, v. Hendrick-
son, 443.

Farnham v. Benedict, 106, 116, 117, 380.

Farnsworth v. Wood, 98. ;

Faulkner v. Hart, 183, 184, 191.

Feeney v. L. I. R. R. Co., 154.

Fenlon v. Dempsey, 72.

Fenner v. Baffalo & State Line R. R.
Co., 184.

Fenton v. Second Ave. R. R. Co., 514.

Ferguson v. (Gill, 74.

Ferris v. Van Buskirk, 149.

Field v. N. Y. C. R. R. Co., 515.

Fifth Ave. Bx. v. Forty-second St. R. R.
Co., 79.

Filbert v. D. & H. Can. Oo., 521.

Filer v. N. Y. C. R. R. Co., 179.

Fink v. Alb. & Susq. R. R. Co., 162, 164.

Finley v. Hudson Elec. Ry. Co., 176.

Finnell v. D., L. & W. R. RB. Co., 517.

Fisher v. Bush, 59, 78.

Fisher v. Metropolitan El. Ry. Co., 213,
214,

Fisher v. N. Y. C. & H. R. R. RB. Co.,
161, 213. ‘

Fisk v. Newton, 185.

Fisk v. Potter, 50.

Fitzgerald v.N. Y. C. & H. R. R. R. Co.,
193

Flanagan v, N.Y. C. & H. R. R. RB. Co.,
156, 178.

Fobes v. R., W. & O. R. R. Co., 11.

Foote v. Town of Hancock, 326.

Ford v. L. S. & Mich. 8. R. R. Co., 518,
519, 521. eS
Forty-second & Grand St. Ferry R. R.
Co v. Thirty-fourth St. R. R. Co.,

4

240. :

Fowler v. Buifalo & Jamestown R. R.
Co., 448. !

Fowler, in re, 10.

Francis v. N. Y. Steam Co. 178,

ee v.N. Y., L. E. & W. RB. R. Co.,

52.

Fredenburg v. North. C. Ry. Co., 516.

French v. McMillan, 93.

Frothingham v. Broadway & Seventh
Av. R. R. Co., 78.

Furman vy. Un.-Pac. R. R. Co., 184.

G.

Gale v. D., L. & W. R. RB. Co,, 162.
Gale v. Troy & Boston R. R. Co., 210.
Gallagher v. Ashley, 96. :
Galway v. Met. El. Ry. Co., 259, 260.
Gamble v. Queens Co, Water Co., 81, 83.
Ganiard v. Roch, C. & B. R. R. Co., 178,
XXIL TABLE OF CASES.

Gates v. State of N. Y., 520. Handy v. Draper, 97, 100.
Germania Fire Ins. Co. v. Memp. & Ch. | Hanrahan v. Man. Ry. Co., 176.

R. R. Co., 186. Hap Vv. Menken o 406

i i a an v. Sage, 97, 100. :

ee So Haglem, BM ee BH, Ob, tenes Ye
Gere v. N. Y. C. & H. RB. R.R. Co., 218. South. Boul. R. R. Co. 107, 355.
Gilbert El. Ry. Co., in re, 5, 251, 252, ' Harpending v. Munson, 52, es ;

255, 269 270. Harper v. Brooklyn El. R. R. Co., 5.

Gilbeat El. Ry. Co., inre, (38 Hun,) 309. | Harris v. Northn. Indiana R. R. Co.,
Gilmore v. City of Utica, 130, 235. / 182. nC
Ginna v. Second Ave. R. R. Co., 195. ' Hart v. Renss. & Saratoga R. R. Co.,

Glenn v. Garth, 81. 189. b

Glidden v. N. Y.C. & H. R. R. R. Co., Bare & oo Re te re, 316,
178. arty v. C, R. R. ids, 5

Glushing v. Sharp, 154, 524. | Benes ee rew ae

Gold v. Clyne, 99. ' Hatch v. ri a

Goldberg ea N. Y.C. & H.R. R. R. Co., | A 8., B. & N.Y. R. BR. Co, 181,
179. 4 468.

Gonzales v. N. Y.& H. R. R. Co., 178.’ Hawkins v. Hoffman, 167, 168.

Good v. Daland, 58. | Hayes v. ems esone & Grand St.

Goodrich v. Dorman, 99. i erry R. R. Co., 196.

Goodrich v. Penn. & N. Y.C. & RK. R. Haye v. N. Y.C. & H. R. R. Co.,
Co., 195. i i

Goodrich v. N. Y. C.& H. R. R. R. Co.,| Hazman v, Hoboken L. & I. Co., 173,
518. ‘Heaney v. Long I. R. R. Co., 528,

Goold v. Chapin, 189. Heard v. City of Brooklyn, 316,

Gottlieb v. N. Y., L. E. & W. R. R. Co., | Hedges v. are . R. Geren
518. . Hegeman v. W. R. R. Corpn. 174.

Gould v. Hudson R. R. R. Co., 127. ‘Henderson v. N. Y. C. R. R. Co., 11,

Gould v. Oneonta, 82, 328, ‘ 309.

Graham v. D. & H. C. Co., 150. Herold v. Met. El. R. R. Co., 259.

Grant v. Penn. & N. Y. C. & R. R.: Herring v. N. Y., L. E. & W. BR. B.Co.,

Co., 510. 452,
Graville v. Man. R. R. Co., 196. Heyman vy. Phil. & Reading R. R. Co.,
Gray v. Man. Ry. Co., 261, 310. 188.
Gray v. Oxnard Bros.’ Co., 58. _ Hibbard v. N. Y. & Erie Ri R. Co., 114,
Gray v. Roch, C. & B. R.R. Co., 181. 162, 163.
Green v. Erie Ry. Co., 178. _Hickenbottam v. D., L. & W. R. R.
Green v. N. Y. UC. R. R. Co., 167. »_, Co., 156, 178.
Greenpoint Sug. Co. v. Whitin, 51. i Higgins v. N. Y. & H. R. R. Co., 196.
Greenwood v. Man. Ry. Co., 262. : Hill v. Knick. El. &c. Co, 90.
Greenwood Lake & P. J. R. R. Co. v. Hill v. Ninth. Ave. R. R. Co., 515.

N. ¥.&G. L. RB. R. Co., 116. | Hill v. Spencer, 99,
Griesa v. Mass. Benefit Assn., 22. “Hill v. Syr.,B. & N. YoR.R. Co., 162,
Griffith v. Greene, 97. : 186.
Griffin v. U. & B. R R. R. Co., 180. . Hills v. Peekskill Sav. Bk. 8. 62, 829, 334,
Griswold v. Met. El. Ry, Co., 12, 259. Hilton v. Thirty-Fourth St. R. R. Co.,
Griswold v. N. Y. C.& H.R. R. R. Co., | 5, 223.

513. 2 Hinckley v. N.Y. C. & H. R. BR. RB. Co.
Grosvenor v. N. Y. C. R. R. Co.. 183. | 186. wate
Guillaume v. Gen. Transp. Co., 186. | Hine v. N. Y. Fl. R. R. Co., 263.

Gurney v. Grand Trunk Ry. of Can., 168. | Hirsch v. N.Y. &G.L. B R. Co., 179,
Guy v. N. Y., 0. & W. Ry. Co., 163. ;Hoag v. N. ¥. C. &H. RRR. Co.,
i 522.
H. ' Hoag v. Town of Greenwich, 337.
Hallahan v. N. Y. L. E. & W. R. R.' Hodge v. N. Y.0. & H.R. R.R. Co,
Co., 178. ) 151.
Hamel v. N. Y. & Brooklyn F. Co., 175. | Hoffman v. N. Y.C. & H. R. R R. Co
Hamilton Ave., Brooklyn, in re, 10. ‘164, 176, 181, 201. ¢
Hamilton v. N. Y. C. R. R. Co., 163. Hogan v. C.P.N. & E.R. RB. R. Co., 181
Hamilton v. Third Ave. R. R. Co., 164, ' Hogan v. Smith, 516. op ts
938, _ Holbrook v. N. J. Zine Co., 79.
Hance v. Cayuga & Susq. R. R. Co., 150. . Holbrook v. U. & Schen. R. R. Co,, 178.
TABLE OF CASES. -

doldridge v. U. & B. R. R. R. Co., 169.

dolmes & Griggs Co. v, Holmes & Wes.
sell Co., 58, 78, 79.

Hollingshead v. Woodward, 100.

Hollister v. Stewart, 50.

a ple v. R., W. & O. R. R. Co.,

183, 187.

dome Ins, Co. v. People, 416.

Hoopes v. Corbin, 57.

Horton v. Town of Thompson, 326.

Horton (J. M.) Ice Cream Co. v. R. R.
Commissioners, 287.

fa v. Brooklyn City R. R. Co.,
196.

Howlett v. N. Y.. W.5.&B. Ry. Co.,
112. \

Hoyle v. Platisburg & Montreal R. R.
Co.,; 50, 443.

Hoyt v. N.Y., L. E. & W.R. RB. Co,
512,

Hudson & Del. Canal Co. v. N. Y. &
Erie R. R. Co., 105.

Hudson R. R. R. Co., v. Outwater, 318.

Hudson R. Tel. Co. v. Watervliet T. &
R. RB. Co., 237.

aan River West Shore R.-R, v. Hay,
De

Huerstel v. N. Y. & H. R. R. Co., 163.

Hughes v. N. Y. El. R. R. Co., 258, 261.

Hughes v. Vermont Cop. M. Co. 79.

Hulbert v. N. Y. C. R. &. Co., 175, 176.

Hungerford v. S.,B. & N. Y. R. RB. Co.,

~ 181,

Hunter v. Cooperstown & S. V. R. R.
Co., 180.

Huntington v. Attrill, 73, 81.

Hussner v. Brooklyn City R. R. Co., 9, 11,
287.

Host N. Y., L. BE. & W. BR. RB. Co.,
152.

Hygeia Water Ice Co. v. N. Y. Hygeia.

- Tee Co., 19.

I.

Irwin v. Town of Ontario, 326.
Isaacson v. N, Y. C. & H. R. R. R. Co.,
167, 169.

J.

Jagger Iron Co, v. ae 100.

Jamaica & B. R. R. Co. v. N.Y. ba
Beach. Ry. Co., 131.5

James v. Cowing, 54,

Janes v. Fitchburg R. R. Co., 210.

Jeaume v. N. Y., Lack. & W. R. R. Oo.,
129.

Jefferson v. N. Y. El. R. R. Co., 261.

Jennings v. Grand Trunk Ry., 186, .187,
188, 190.

Johnson v. Alb. & Susq. R. R. Co., 82.

Johnson v. Hudson RK. BR. R. Co., 160, 356.

Johnson v. N. Y. C. R. R. Co.,. 189,

Johnson v. N, Y., O. & W. Ry. Co., 162.

 

Keating v. N. Y.
: 176

XXIII.

Johnson v. Underhill, 72, 98.
Johnston v. Man. Ry. Co., 260, 263.
Jones v. Norwich & N. Y. T. Co., 169.
Jones v. Seligman, 149. ,

K.

aa | N. Y. El. R. BR. Co., 9, 12, 258,

259.

Kane v. N. Y.,N. H. & H. R R. Co.,
154, 369, 524.

Kearney v. Met. El. Ry. Co., 259, 263.

C.& H.R. BR. R. Co.,

Keating v. N.Y. C. 8. R. Co.} 178.

Keiley v. Mech. & Tr. Bank, 89.

Kelly v. Man. Ry. Co., 176.

Kelly v. N. Y. & Sea Beach R. R. Co.,
180.

KeLieee v. Forty-Second St. R. R. Co.,

eee Mich. Cent. R. R. Co., 163.

Kelsey v. Pfaudler P. Ferm. Co., 72.

Kelver v. N. Y.C. & St. L. R.'R. Co.,
148,

Kennedy v. Chic., R. I. & P. R. R. Co.,
94

Kennedy v. Roch., C. &B. R. R. Co., 514,

Kenney v. N, Y. 0. & H.R. R. R. 00.,
176, 177, 199, 520.

Kenney’ v. Wallace, 110.

Kent v. N. Y. C. R. R. Co., 146.

Kent v. Quicksilver M. Co., "22, 87.

Kern v. DeCastro & D. S. Ref. Co., 517.

Kernochan v.N. Y. El. R. BR. Co., (128
N, Y.) 260, 261, a

Kernochan v. N. 1. R. R, Co., (180

.) 261.

Kerr v. West Sh. R. R. Co., 110, 127,
129.

wees v. Bd. of Suprvs., of Sullivan
Co., 338.

Kilmer v. N. ¥. C. & H.R. B. R. Oo.,
11

Kincaid v. Dwinelle, 100.

King y. Barnes, 79.

King v. Union Iron Co , 89.

Kings Co. El. Ry. Co., in re, (18 Hun,) -
251, 252.

Kings Co. El. Ry. Co., in re, (112 N. Y.)
255.

Kings Co.El. Ry. Co., in re, (41 Hun, and
105 N. Y.) 6, 116, 249, 258, 255, 265.

Kings Co. E]. Ry. Co., in re, (82 N. Y.)
5, 231, 252.

Kings Co. El. Ry. Co.,in re, v. Bryan
308, 309.

ae Go, El, Ry. Co., in re, v. Nathan,

Kinge Go, El. Ry. Co., in re, v. Smith,
308, 309.

Kingsley v. First Nat. Bk. of Bath, 90.

Kingston, in re, Taxpayers of, 1.

%
XXIV, TABLE OF CASES.

Kip v. N. Y. & Har. R. R. Co., 110, 214. | Long L, R. R. Co. v. Silverstone 439.

Kirkland v. Dinsmore, 186. Long I, R. R. Co. in re, 82, 35, 121.

Kirkland v. Kille, 98. Loomis v. Jewett, 164.

Klock v. N. Y. C. & H. R.R. R. Co.,; Lord v. Yonkers Fuel Gus Co., 51.
151. Lorillard v. Clyde, 80.

Knight v. N. Y., L. E. & W. BR. R. Co., | Lovelace v. Doran, 68.
150. Lowery v. Man. Ry. Co., 516.
Knox v. Baldwin, 97. : Lux v. Forty Second St., &c., R. R. Co.,
Korn v. N. Y. El. RB. R. Co., 260. 196.
Kranz v. L. I. Ry. Co., 516. Lyceum, The, v. Ellis, 51.
Lynch v. Met. Kl. Ry. Co., 175, 260.
Lyons v. Erie Ry. Co., 511.
L. Lyons v. Munson, 332,

La Croy v. N. Y., L. E. & W.R.R. Co., Lyons, Town of, v. Chamberlain, 382,

519. 837. ‘
Ladue v. Griffith, 190. M.
Lafflin v. Buff. & S. W. R. RB. Co., 176,
177. Maghee v. Camden & A. R. R. Co., 189,
Lahr v. Met. El. R. R. Co., 9, 258. 191.
Lake O.,Aub. & N. Y. R. R. Co. v. Mason, | Magnin v. Dinsmore, 187.
104, 105. Mahady v. Bushwick R. R. Co., 11.

Jake Ont. Sh. R. R. Co. v. Curtiss, 80. | Mahon v. N. Y. C. R. R. Co., 10.
L.S. & M.S. R. R. Co., in re, v. N. Y.,| Mallory, in re, 401, 404,

L. & W. Ry. Co., 121. Malone Water Works Co., in re, 13.
Lake Superior I. Co. v. Drexel, 97. Man. Lf. Ins. Co. v. Forty-second St.,
Lamb v.Camden & A. R. R & T. Co., &c., R. R. Co., 79.

189, 191. Man, Oil Co. v. Camd. & A. R. R., &e.,
Lane v. N. Y.,L. E. & W. BR. BR. Co, Co., 191.

151. Marks, 1n re, 125.

Langdon vy. N.Y., L. E. & W. R. R.Co., | Martin v. Man. Ry. Co., 268.

114, Martin v. N.Y.C. & H.R. R. R. Co.,
Langlois v. Buff. & Roch. R. R. Co., 151. 162.

Lansing v. Lytle, 338. Martin v. Niagara F. Paper Co., 51.
Latham v. B.. H. T. & W. Ry. Co., 208.| Martin in re v. W. J. Johnston Co.,
Lawrence v. Met. El. R. R. Co., 258. L’td., 72.
Lee v. Man, Ry. Co., 279. Mason v. Brooklyn, C. & N. R. R. Co.,
Leggett v. R., W. & O. BR. R. Co., 150. 105, 121, 224.

. Lehigh V. RB. R. Co. v. Com. of Penn., ; Mason v. Silk Mfg. Co., 98.

 

416. Masterson v. N. Y. C.& H. R.R. R. Co.,
Taben V. KR. R. Co., in re, v. N.Y. C. & | 130.
. KR. R. R. Co., 138. Mathez v. Neidig, 97.
Lehr v. Steinway & H. P. R. R. Co.,| Matteson v. N. Y. C. & H.R. R. BR. Co.,

 

180, 196. 1 169.
Lent v. N, Y. & Mass. Ry. Co., 317. | Mattlage v. N. Y. EL R. R, Co., 261.
Lent v. N. Y. C. & H. R. R. R. Co., 176, ' McCall v. Town of Hancock, 326,

180, 181, 512, McCarragher v. Rogers, 520.
Leonard v. Poole, 58. ‘McClain v. Brooklyn C. R. R. Co,, 181.
Leslie v. Lorillard, 58. i 512, 518.
Levy v. Cohen, 72. | McClave v, Thompson, 67.

Lewis v. N. Y. L. E. & W. R. R. Co.,! McComb v. Barcelona Apt. Assn , 51.
368. | McComb v. Kellogg, 68.
Terden v.N. Y.C.& H.R. R. BR. Co., | McCormick v. Hudson R R. R. Co., 168.

: i | McCosker v. L. I. R. R. Co., 521.
Libman v. Man. Ry. Co., 260. McDonald v. L. I. R. R. Co., 156, 178.
Lighthall M’f’g. Co , in re, 35, 62, 70.

McDonald vy. Mallory, 141.

Little v. Fargo, 182, 186, 187. |McDonald v. Western R. R. Corpn.,
Livingston v, N. Y.C & H.R. R. R.! 189.

Co., 189, 190. McDowall v. Sheehan, 8, 97.
Lockport & B. R. R. Co., in re, v. N. Y,| McElwain v. Erie Ry. Co., 177.

C..& H.R. R. Co., 121, 182, 183, 304. McGean v. Man. Ry. Co., 261.
Long v. N. Y. C. R. R. Co., 186. | McGean vy. Met. El. R. R. Co., 261.
Long I, R. R. Co. v. Brooklyn, 489. , McGovern v. C. V. R. R. Co., 516, 517,

i 519.

 

 
TABLE OF CasEs,

McGuire v. Ogd. & L: C. R. R. Co., 151.

MelIntyre v. N. Y. 0. BR. R. Co., 195.

ee v. N. ¥.C. & H.R. R. RB. Co.,

MeKibben v. Peck, 186.

McKinney v. Jewett, 187. '

McMahon v. Macy, 96.

McNab v. McNab & H. Mfg. Co., 22. 69.

ea v. Roch., N. Y. & P. R. R. Co.,

MePadden v. N. Y. C. K. R. Co., 174.

McQuade v. Man. Ry. Co., 279.

moe v. D., L, & W. RB. R. Co., 517,

Meller v, Atl. Ave. R. R. Co., 178.

Mellen v. Town of Lansing. 326.

Mentz, Town of, v. Cook, 329.

pe Town of, v. Cook,(108 N. Y.),

Merrill v. Grinnell, 167, 16%.

Merritt v. Earle, 182.

Merwin v. Man. Ry. Co., 173.

-Messenger v. Man. Ry. Co., 259, 262.

Met. Bk. v. Van Dyck, 1.

Me at Ry. Co. v. Man. Ry. Co., 213,

Met. El. Ry. Co., in re, (18 N. Y. $.367,)

Met. El. Ry. Co., in re, (13 N.Y. S. 169,)

Met. El. Ry. Co., in re, (7 N. Y. Supp.)

Met, H Ry. Co., in re, (18 St. Rep.) 299,

Met. El. Ry. Co., in re, (12 N. Y. Supp.)
217, 299, 300, 308, 304.

Met. Ei. Ry. Co., in re, (658 Hun, 128 N.
Y.) 311, 319.

Met. El. Ry. Co., in re, v. Bache, 819.

Met. El. R. R. Co., in re, v. Dominick,
124, 299.

Meh Ry. Co., in re, v. Levy, 317,

19. ; .

Met. Tr. Co., in re, v. Mayor of N, Y.
(111 N. Y.) 7, 302.

Met. Transit Co., in re. (45 Hun,) 305.

Met. Trust Co. v. N. Y., L. E. & W. R.

R Co., 59.

Met. Trust Co. v. Tonawanda, V. &C. R.
R. Co., 451.

Metz v. Buff , Corry & P. R. R. Co., 54,

Merete v. Attica & Arcade R. R. Co.,
330.

Michaels v. N. Y. C. R. R. Co., 182, 190.

Middletown v. Rondout & O. R. R. Co.,

213.
Milbank v. N. Y., L. HE. & W. R. R. Co.,
%

8.
Millard v. M. K. & T. R. R. Co., 168.
Willer v. N. Y. & E. R. R. Co., 439.
Willer v. N. Y., L. & W. BR. R. Co., 216.
Willer v. Steam Nav. Co. 182.
Willer v. Town of Berlin, 326.

XXV.

Milliman v. N. Y.C. & H, BR. BR, Co.,
175, 178.

Mills v, Mich. C. R. R. Co., 189, 190.

Mills v. Stewart, 95.

Milner v. N. Y. & N. H. R. RB. Co., 190.

Miner v. N. Y. C. & H.R. R.R. Co.,
316.

Minton v. N. Y. El. R. R. Co., 258.

Mitchell v. Met. El. R. R. Co., 260, 261.

Mitchell v. Strough, 388, 337.

Mohawk & Hudson R. R. Co., in re, 32,

35, 70.

Mohawk Bridge Co. v. Utica & S. R.. R.
Co., 105.

Monell v. North. C. R. R. Co. 185.

Montgomery v. Forbes, 26.

Moore v. Brooklyn C. R. R. Co., 22,:
228, 467, 468.

Moore v.N. Y. El. R. R. Co., 258, 259.

Morgan v. N. Y. & Mass. Ry. Co. 317.

Morgan v. Hud, Riv.O & I. Co, 519.

Morris v. N. Y. C. & H. R. R. BR. Co.,
174,

Morrison v. Erie Ry. Co., 179.

Morrison v. N. Y. & N. H.R. R. Co,
151.

Morrison v. Seventh Ave. R. R. Co., 178.

Mortimer v. Met. El. R. R. Co., 260, 263.

Mosier v. Hilton, 1.

Moss v. Man. Ry. Co., 12.

Moylan v. Second Av. R

. R. Co., 178.
Mulford v. Met. El. R. R. Co., 263. .
Mulligan v, N. Y. & R. B. Ry. Co., 175.
Munch v. N. Y. C. R. R. Co., 151,
Mundorf v. N. Y. E. R. R. Co., 263.
Munger v. Tonawanda R. R. Co., 316.
Munson v. Syr., G. & R. R. Co., 58,

R
C.
215.
Murdock y. Prosp. Pk. & C. I. R. R. Co.,
11

Murray v.N. Y. C. R. RB. Co., 151.
Mynard v. Syr.. B. & N. Y. R. BR. Co.,
182, 188, 187.

N.

Nash v. N. Y. C. & H. R.R. R. Co., 368.

Nash, Admtr., v. N. Y. C.& H.R. R.R:
Co., 368.

Nassau Bank v. Jones, 80.

Nassau Cable Co. in, re, 231.

Nat. Broadway Bk. v. Wessel Metal Co.,
89, 90

Nat. E. Bk. v. Met El. Ry. Co. 259.

National Tube Works v. Gilfillan, 99.

Nebenzahl v. Fargo, 184.

Negus v. City of Brooklyn, 5.

Nellis v. N. Y. C. R. R. Co, 161.

Nellis, A. C. & Co. v. Nellis, 68.

Nelson v. Hudson R. R. R. Co., 188, 186.

Nelson v. Long I. R. R. Ce., 163.

Neubauer v. N. Y., L. E.& W. R. RB.
Co., 521.

 

Nevins v. Bay State Steamboat Co., 168.
XXVI.

Newcomb, in re, 29. 62.

Newman v. Met. E. Ry. Co., 259, 261,
3809, 310.

N. Y. & Alb. R R. Co. v.N. Y.,, Ww. Ss.
& B. Ry. Co., 120, 122.

N. Y. & Boston R. R. Co. v. Godwin, |
120, 121, 124.

N. Y. & Canada R. R. Co.

. R. R. Co, v. Coburn, 320.
. R. R. Co. v. Corey, 297, 312, ;

. R. R. Co., in re, (98 N. Y.)
16, 318, 821.
LR. R. Co., in re, (89 Hun,)

R. R, Co.,in re, v. Kip, 125.
amaica R. R. Co., in re, v.
» 297, 312.

lL. Bridge Co., in re, 7.

mn
ca)

»

re
Bp 9° BP B or
py

—_

1

td cc et 20 4 00 14:
peta
oe iH me

L.
N.
. Co., 157, 215.

pipe Mid. R. R. Co. v. Van
n, 9,8

Midland R. R. Co., in re, 300.

uburban Inv. Co., ‘in re, 350,

mripfss

Os
6.
S

Beha

; W. U. Tel. Co. v. Jewett, 452.

ridge Co., in re, 126, 8038.

. Cable Co. v. Forty-second St., &e.,

R. R. Co, 252, 255.

. Y. Cable Co. v. Mayor, &c., of N. Y.,

12, 107, 108, 118, 249, 251, 255, 265,

268, 355.

N, Y. Cable Ry. Co. v. Chambers St. R.
R. Co., 2, 221, 240, 249. :

N. Y. Cable Ry. Co., in re, (86 Hun,)
258, 255.

N, Y. Cable Ry. Co., in re, (109 N. Y.)
20, 62, 106, ae 265.

N. ¥.. & H.R, R. RB, Co. v. Fraloff,

N.Y.C. & H.R. R. R. Co. v. Stand.
Oil Co , 186.

N. YC. & B. R R. R. Co., in re, (60 N.

ll

oe

a a ee) ae ae ee
prt ye 4

)
N.Y. C.& H. R. R. R. Co., in re, (TIN.

Y.) 21, 125, 127, 186, 300.

N. ¥.C.& H.R. R. RB. Co., in re, (90 N.
Y.), 822.

N. Y. C. & H. R. R. R. Co.,in re, v.
rman 297, een 316, 322, 824.

N. Y. C. & H. R.
aoe Tron Works 302.

N. C. & H.R.

Teeninceane ain

N. Y. C. & H. R. R. R. Co. in re vy,
pone 125.

N. Y. C. & H. R. R. R. Co.,in re, v

S Judge, 309.

N.Y.G. oe HL R. R. R Co. ,in re, v. Met. |
Gas Light Co. (63 N. Y, ) 109, 125.

N. Y. C.& H. R. R. R. Co., in re, v. Met.
Gas Light Co. (6 Hun), 309.

Gunnison, |

Ry. Co, v. N.Y. &N. E.R.

R. Co., in re, v.:

. R. Co.,in re, v.'

TABLE oF CaSES.

N, Y.c. & H. BR. R. R. Co.,in re, v-
Pierce, 298, 309.

-Y.C & H.R. RB. R. Co., inre, v. Rau,
297.

Y.c. & H.R. R. R. Co., in re, v.

Ss , 298.

Y.ORR. Co. v. Marvin, 110, 319..

_C. RB. RB Co., in re, (20 Barb.) 124,

.C.&N. R. RB Co. ’y. Cent. U. Tel.

199.

.C&N. RR. Co., in re, 133.

. District Ry. Co., in re, 7, 107, 139.

. El. R. R. Co., in re, 4, 5, 116, 251,

252, 269.

Yi El, R. R. Co., in re,(8 N. ¥. 8.)

308.

Y. El. R. RB. Co., in re,

217.
Y. El. R. R. Co.,in re,
Hun,) 312.
. Y. El. R. R. Co.,in re,
Hun,) 3138.
. Y. El. R. R. Co., in, re,
Hun,) 821.

2

9

4 son ore Z
gies oni

vy. Clarkson,.

v. Story, (41

Story, (85

Story, (36:
. Y. El. R. R. Co.,in re, Story, (44
Hun.) 321.

. Y., L. & W. Ry. Co.,inre, (102 N. Y.)
1 312.
.Y., L. & W. Ry. Co., inre, (33 Hun, ):
297,
. Y., L. & W. Ry. Co., in re, (26 Hun,y
302.
N. Y., L.& W. Ry. Co., inre, (99 N. Y.)
21, 104, 105, 109, 110, 214, 306.
N. Y., L.& W. Ry. Co., in re, v. Arnot,
309, 320.
N.Y., L. & W. Ry. Co., in re, v. Bennett,
307, 321.
Y., L. & W. Ry. Co., in re, v. Haskin,
309, 310, 320.
is Y., L.& W. Ry. Co., in re, v. June.
Canal & R. R. Co., 809, 310, 319.
N.Y, L. & W. Ry. Co.,in re, v. Long-
well, 308, 312.
N. Y., L.& W. Ry. Co.,in re, v. N. Y., L.
E. & W. ye Co. 20, 182, 188, 185.
.Y.,L.&W.R.R.Co.,inre,v. N.Y. &
Erie Ry. Co., 183.
Y., L. & W. By. Co.,
131, 308.
Y., L. & W. Ry. Co.,in re, v, Wag-
ner, 314.
Yale & W. Ry. Co., in re, v. Wolfe,
Y,L.E. & W. Ry. Co., v. Atl. Ref.
1 Co., 181.
'N.Y.L.E. & W. R. R. Co., in re v. N.
Y. W. Ry. Co. 122,
Noe & W. Ry. Co., in re, v. Pitts.
i E.R. R. Co., 121, 122, 132.
R,
¥.,

aH a

v.

v.

Vv.

Z

1

 

N.

in re, v. Scheu,

r of, v. Dry Dock E. B., &e.
0., 335.
ar of, v. Highth Ave, R. R

L. &
bE
&.N.

ayo
R.C
UN. Y., Ma

Co., 228
TABLE OF CASES.

N. Y., Mayor of, v. N. Y. & H.R. R.
Co., 235,

N. Y¥., Mayor of, v. Second Ave. R. R.
Co., 235.

N. Y., Mayor, &c., of, v. Twenty-third
St. Ry. Co., 2, 216.

N. Ma nts Ex, Bk. v. Met. E. Ry. Co.,

N. ee & W. Ry. Co., in re, v. Chapin,

N. Ys ti S. &B. Ry. Co., in re, (94 N.
N. ¥, Ws S.& B. Ry. Co., in re, (101 N.

-) 11
N. Y., W.S. & B. Ry. Co., inre, v. Bell,
809, 320,
N. Y., W.S. & B. Ry. Co., in re, v. Chrys-
tie, 321.
N. Taw S. & B. Ry. Co.,in re, v. Cosack,

N. Y.,W. S. & B. Ry. Co., inre, v. Dud-
leston, 809, 820.
N. Y.,W. 8. & B. Ry. Co., inre, v. Gen-
nett, 310.
N. Y.,W.5S. & B. Ry. Co., in re, v. Hart,
306, 319.
N. Y.,W. 8. & B. Ry. Co.,in re, v. Le-
Fevre, 320. :
N. Y.,W.S. & B. Ry. Co.,in re, v. Jud-
son, 310.
N. Y.,W.5. & B. Ry. Co., in re, v. Lang,
319, 320.
N. Y ,W.S. & B. Ry. Co., in re, v. New-
burgh & N. W. T. R. Co., 181.
N. Y.,W. S. & B. Ry. Co., inre, v. Suth-
erland, 810, 820. ;
N. Y.,W. S. & B. Ry. Co., in re, v.
Swain, 127.
N. Y.,W. S. & B. Ry. Co.,in re, v.
Thorne, 317, #18.
N.Y..W.S. & B. Ry. Co., in re, v. Town-
send, 306.
N.Y.,W.S. &B. Ry.Co., in re, v. Walsh,
127, 305, 315, 318, 321.
N. Y.,W. 5S. & B, Ry. Co., in re, v. Wat-
son, (64 How.) 297, 298, 302, 317.
N. Y.,W.S. & B. Ry. Co., in re, v. Wat-
son, (18 W. D.) 317. 318.
Niag. Falls & L. O. R. R. Co. v. Hotch-
kiss, 316.
Niag. Falls & W. Ry. Co., in re, (121 N.
Y.) 12.
Niag. Falls & W. Ry. Co., in re, v. De
Veaux College, (108 N. Y.) 10, 120.
Nicholas v. NN, ¥.C.&H. 8. R. RB. Co.,
187.
Nicoll v. N. Y. & EH. BR. R. Co., 110.
Ninth Av. R. R, Co. v. N. Y. El. R. R.
Co., 5, 221.
Nolan v. Brooklyn C. & N. R. RB. Co.,
195, 196.
Nolan v. N. Y., N. H.& H. R. BR. R. Co.,
162.
Nolton v. Western.R. R. Corp. 176, 199.

 

XXVIE- |

Norris v. De Wolf, 98.

North. R. R. Co. v. Page, 162.

North. R. R. Co, v. Miller, 1, 83.

Northrup v. Syr., Bing. & N. Y. R. Re.
Co., 184,

Norton, in re,v. Walkill Valley R. R. Co.,
121, 122.

Norwood & Montreal R. R. Co.,in re,
310.

oO.

at y. N.Y. C.& H.R. BR. RB. Co.,
168,

Odell v.N, Y. C. & H.R. R. RB. Co., 517,

Odell v. N. Y., E. R. BR. Co., 258, 259.

Ogd., Rome & Clayton R. R. Co. v. Frost,
83, 104, 105.

Ogd., Rome & C. R. R. Co., v. Wooley,

80.

Oldenburg v. N. Y. C. & H. R. BR. RL
Co., 154, 524.

Olmstead v. Roch. & C. R. R. Co . 452.

O'Neil v. N. Y. C. & H. BR. RB. R. Co.,.
183.

O’Neill v. N. Y., O. & W. Ry. Co., 515.

Orange Co, Bk. v. Brown, 167.

Orleans v. Platt, 330, 332, 333, 337.

Ormsby v. Vermont Copper Min’g. Co.,.
7

9.
Osborne vy. Jersey City & A. R. R. Co.,

111. :
Oswego, First Nat. Bk. of, v. Town of
Wolcott, 326.
Ottentot v. N. Y., L. & W. R. R. Co.,
129.
Ottinger v. N. Y. El. RR. Co., 263.
Overton v. Olean, 468. ;
Oxford, First Nat. Bk. of, v. Wheeler, 326.

Pp.
Page v. N.Y. C. & H. R. R. R. Co., 156,
164

Pela % N. Y.,N. H. & H.R. R. Co.,

161.

Palmer v. D. & H. Canal Co. 178.

Palmer v, N. Y.C.& H.R. R. BR. Co.,
154, 524.

Palmer v. Penn. Co., 178, 180.

Palmieri v. Man. Ry. Co. 165, 175.

Pappenheim v. Met. El. R. 'R. Co., 259,
26

0.
Pardee v. Drew, 167, 188.
Parish v. Wheeler, 50.
Parsons v. N. Y. C. & H. R. R. R. Co.,
175, 178, 512.
Patten v. N. Y. El. R. R. Co., 5.
Patten v. U. L. & A. Ins. Assn., 513.
Patterson v. Robinson, 67.
Paulding v. Chrome Steel Co., 51, 89.
Paulitsch v. N. Y. C. & H. R. RB. RB, Co., ,
156.
Payne v. Troy & Boston R. R. Co., 180..
Pease v. D., L. & W. R. R. Co., 164, 175,
Peck v. N. Y. C. & H. R. R. R. Co., 164,
176.
XXVIII.

‘Peckham v. Van Wagenen. 79.

Pelton v. Rens. & Sar. R. R. Co., 184.

Penn v. Buf. & Erie R. R Co., 182.

Peo. v Alb. & Vermont R. R. Co., 22,
218, 215,

Peo. v. Alb. Ins. Co., 417.

Peo. v. Amer. Bell Tel. Co., 419.

Peo. v. Atlantic Ave. R. R. Co., 156,
474,

Peo. v. B.. Hous. T. & W. Ry. Co., 205,
208, 218.

People v. Bowen, 1.

Peo. v. Broadway R. R. Co. of Brooklyn,
117, 156.
People v. Brooklyn F. & C. I. R. R. Co.,
(89 N. Y ) 4, 5, 54, 120, 214, 248.
People v. Brooklyn F. & C. I. R. R, Co.
(12 W.D.) 135.

People v. Clark, 194,

Peo. v. Del & Hud. Can. Co., 419.

Peo. v. Equitable Trust Co., 420.

Peo. v. Fire Association, 422.

People v. Fitchburg R. R. Uo., 205, 488.

People v. Gilon, 235.

‘People v. Hills, 62, 69.

Peo. v. Horn Silver Mining Co., 419.

Peo. v. Home Ins. Co., 416.

People v. Kerr, 11.

People v. L. 1. R. R. Co., 154.

People v.N. Y. C. & H. R. RB. R. Co.,
(74. N. Y.) 129, 130, 131, 467.

People v. N. Y. C. & H.R. R. R. Co.,
(28 Hun,) 114, 156.

People v. N. Y. C. R. R. Co., (13 N. Y.)
367.

People v. N. Y. C. & St. L. R. RB. Co.,
26, 204, 432.

People v. N. Y., L. E. & W. R. R. Co.,
118, 287, 289.

People v. N. Y..N. H. & H.R. R. Co.,
(89 N. Y.) 180.

People v. N. Y., N. H. & H. R. R. Co.,
(55 Hun,) 194.

People v. North. R. Sug. Refg Co., 58

‘People v. O’Brien, Receiver, 2, 3,12, 37,
215, 218, 228, 248, 459.

‘People v. R..W. & O. R. R. Co., 21, 289.

People v. Supervisors of Chautauqua, 4.

People v. Ulster & Del. R. R. Co., 219.

People ex rel. Akin v. Morgan, 326.

People ex rel, Am. Contracting and
Dredging Co. v. Wemple, 420.

People ex rel. Am. Surety Co. v. Camp-
bell, 428, 429.

‘People ex rel. Angel v. Hatch, 331.

People ex rel. Beardsley v. Van Valken-
burgh, 328, 329, 332

People ex rel. Boston, H. T. & W. R. R.
Co. v. Wilder, 403.

People ex rel. Brush M. Co. v. Wemple,
417, 418, 420. 424, 430.

People ex re]. Buffalo & St. L. R. R. Co.
v. Barker, 403, 407.

TABLE OF CASES.

| Peo, ex rel. Butchers’ H, & M. Co. v.
Assessor, 411.

Peo. ex rel. Cent. Pk., &., R. R. Co. v-
Comm’rs., 411.

People ex rel. Clark v. Oliver. 331.

People ex rel. Clauson v. Newburgh, &c.,
P. R. Co., 38, 40.

People ex rel. Commonwealth Ins. Co. v.
Coleman, 401. :

People ex rel. Delafield v. Hughitt, 329,
331, 332.

People ex rel. D. & H. Can. Co. v. Gan-
ley, 403.

People ex rel. D., L. & W.R. R. Co. v.
Reid, 402, 403. ‘

People ex rel. Del. Mar. v. St. Louis &
S. F. Ry. Co., 94. ;

People ex rel. Dunkirk, &c., R. R. Co. v.
Batcheller, 826.

Peo. ex rel. Dunkirk & F. R. R. Co. v.
Assessors, 401, 403.

People ex rel. Eastern Transp. Co. v.
Comm’rs of Taxes, 422

People ex rel. E. & G. V. R. R. Co. v.
Tubbs, 121.

People ex rel. Eden Musee v. Carr, 85.

People ex rel. Edison El. Co. v. Wemple,
(183 N. Y.) 429.

People ex rel. Edison El. I. Co. v.
Wemple, (61 Hun, 129 N. Y.) 417,
418, 420.

People ex rel. Edison El. I. Co. v.
Wemple, (63 Hun,) 417, 423.

Peo, ex rel. Erie Ry. Co. v. Beardsley,
401.

Peo, ex rel, Fairfield Chem. Co. v. Cole-
man, 411,

| People ex rel. Field v. Northern Pac. R.
R. Co., 93.

People ex rel. Fitchburg R. R. Co, v.,
Assessors of Hoosick, 403, 404.
People ex rel. Freeman v. Hulburt, 329.
People ex rel. Green v. Dutch. & Col. R,

R. Co., 109, 180.

People ex rel. Green v. Smith, 328.

People ex rel. Gillies v. Suffern, 33),

People ex rel. Haines v. Smith, 329, 332.

People ex rel, Harriman v. Paton, 94.

People ex rel. Harvey v. Loew, 4, 11.

People ex rel. Hatch v. L.S. & M.S. R,
R. Co , 72, 98.

People ex rel. Hendrick v. Smith, 10.

People ex rel. Hetfield v. Trustees oi
Fort Edward, 8, 326.

People ex rel. Hoag v. Peck, 328, 329.

People ex rel. Irwin v. Sawyer, 331.

People ex rel. Kimball v. B.& A. R. B

Co., 1.

People ex rel. Knickerbocker F. Ins, Co
v. Coleman, 411. .

People ex rel. L. I. R. R. Co., 114,

People ex rel, Manhattan Fire Ins. Co
v. Comm'rs, 406.

 
TABLE OF CASES. ”

People ex.rel, McMillan v. Bd.'of Suprs.
of Cayuga Co., 338,
People ex rel Miller v. Cummings, 32.
People ex rel. N. Y. & Canada R. R Co.
__ v. Barrett, 326.
' People ex rel, N. Y. & Canada R. R. Co.
v. Hutton, 326.
Peo, ex rel. N. Y. & H. R. R. Co. v.
+ Comm’rs, 402, 422.
People ex rel. N. Y. El. L. Co. v.
Squire, 199.
People ex rel. N. Y. Hl. R. R. Co., v.
Comm’rs, 402.
People ex rel. N. Y., LL E. & W. R. RK.
Co. v. Zoller, 403. 404.
People ex rel. N, Y. Phonograph Co. v.
Rice, 204, 432.
People ex rel. N. B. & C. R. BR. Co. v.
: L. & B. R. BR. Co., 121.
‘People ex rel. Ohlen v. N. Y., L. E. &
; W.R. R. Co., 156.

’ People ex reli Panama R. R. Co. v.
Comrs. of Taxes, 141, 401, 411.
People ex rel. Penn. R. R. Co. v. Wem-

“+ ple, 419, 421.
People ex rel. Platt v. Wemple, 419.
People ex rel. Putzel v. Simonson, 35.
People ex rel. Roebling’s Sons Co. v.
Wemple, 420.
People ex rel. Rogers v. Spencer, 328.
‘People ex rel. R., W. & O. R. BR, Co. v.
Smoyer, 403.
People ex rel. R. W. & O. R. BR. Co. v.
Hicks, 404.
People ex rel. Sage v. L. 8S. & M.S. R.
R. Co., 26.
People ex rel. Sayre v. Franklin, 331.
People ex rel. Schaghticoke v. I’. & B.
R. BR. Co., 180.
People ex rel. Schurz v. Cook, 53, 482.
People ex rel. Schuylerville & U. H. R.
R. Co. v. Betts, 321.
People ex rel. Seth Thomas’ Clock Co.
v. Wemple, 420.
People ex rel. Sodus Bay & C. R. R. Co.
v. Cheetham, 405.
People ex rel. South. Cot. Oil Co. v. Wem-
ple, 419.
People ex rel. Stebbins v. Hoe, 253, 265.
People ex rel. Stobo v. Eadie, 72.
People ex rel. Sutton v. Franklin, 329.
People ex rel. Third Ave. R. R. Co. v.
: Newton, 113, 223.
People ex rel. Troy Un, R. R. Co. v.
Carter, 404.
“People ex rel. Twenty-third St. R. R.
Co. v. Comm’rs, 407, 411.
People ex rel, Union Trust Co. v. Cole-
man, 411.
People ex rel. U., Chen. & Cort. R R
Co. v. Hitchcock, 333, 340.
People ex rel, Walker v. Babcock, 156.
People ex rel. West Shore R. R. Co. v.
Adams, 412, 413.

‘People ex rel. West Shore R, R. Co.

 

XXIX.

| People ex rel, West Shore R. R, Co. v..

Pitman, 405.

ve
Toohey, 403.

People ex rel. West Side St. Ry. Co. v.
Barnard, 224. 228,

People ex rel. West. Un. Tel. Co.
Dolan, 403.

People ex rel. Williams v. Haines, 9

People ex rel, Winchester v. Coleman,
405.

People ex rel. Yawger v. Allen, 826.

People ex rel. Youmans v. Wagner, 333.

People’s R, R. Co. v. Syr., B. & N.Y.
R. R. Co., 182.

People’s R. R. Co., in re, 230.

a R. T. Co. v. Dash, 104, 109,.

43.

Perkins v. N. Y. C. R R. Co., 177,

Perkins v. State of New York, 808. .

ae N.Y. C.& H.R. R. R. Co.,
16

Peyton v. N. Y. El. R. RB. Co., 262.
Phelps, v. Town of Lewiston, 326.
Phil. & R. Coal & I. R, Co. v. Hotchkiss,

32,
Philips v. North. R. B., &., Co. 175.

179.

Phillips v. N. Y.C. & H. R. R.R. Co.,.
510, 522. ;

Phenix Warehous’g, Co. v. Badger, 80.

Pier v. Finch, 162.

Pier v. Hanmore, 78, 74.

Pioneer Paper Co., in re, 35.

Pittsb, Carbon Co. Ltd. v, McMillin, 58..

Plass v. Housman, 97.

nian Rich. Y. R. & Ch. R. R. Co.,,
188. ;

Polly v. N. Y. C. R. R. Co., 151.

Polly v. Sar. & Wash. R. RB. Co., 108.

Polhemus v. Fitchburg R. R. Co., 210..

Pond vy. Met. El. R. R. Co., 258, 259.

Poole v. D., L. & W. R. R. Co., 177.

Port Jervis, &c., R. R. Co. v. N. Y., L. E..
& W. R. R. Co., 112.

Porter v. Met. E. R. R. Co., 258.

Porter v. N. Y. C. R. R. Co., 161.

Porter v. N. Y., L. H. & W. R. R. Co.,.
176, 177, 183.

Porth v. Man. Ry. Co., 267.

Post v. West Sh. R. R. Co., 109, 180.

re N. Y. C. & H. BR. RB. R. Co.,.
151.

Potter v. Town of Greenwich, 337.

Poucher v. N. Y. C. R. R. Co.. 177.

Pough. & E. R. R. Co., in re, 308,

Powell v. Myers, 167.

Pratt v. Munson, 54, 90.

Brendegnst v.N. Y.C.&H.R R. RB. Co.,.
152.

Price v. Osw. & Syr. R. RB. Co., 184.

Prosp. Pk. & C, I. R. R. Co. y. William-~
son, 489.

Ve
XXX,

Prospect Pk. & C. I. R. R. Co., in re, (85
v) 9, a Ee Se te dace. =
‘Prospect Pk. ‘I. BR. R. Co., inre, v.
Monahan, (67 N. Y.) 1, 124, 125,
205, 305. :
‘Prospect Pk. &C [. R. R. Co.. inre, v.
‘ Movashary, (18 Hun, ) 309, 320.
Purdy v. Man. Ry. Co., 309.
Purdy v. N. Y. & N. H. R.R, Co., 152.
Purdy v. R, W &O. RB. RB. Co., 520.
Purdy v. Town of Lansing. 326.
Putnam v. Broadway & Seventh Av. R.
R. Co., 175, 176.

Q.
‘Quimby v. Vanderbilt, 189.

R.

Radcliff’s Ex. v. Mayor of Brooklyn, 10.

Randall v. Elwell, 50.

Rankine v. Elliott, 83, 96.

Rapid Transit Com’rs., Bd. of, in re, 477,
480, 482, 483.

Rauenstein v. N. Y., Lack. & W. R. R.
Co., 129. |

“Rawson v. Holland, 189.

Rawson v. Penn. R. R. Co., 167.

Read v. Spaulding, 182.

Reed v. Keese, 32.

Reed v. Met. El. R. R. Co., 260, 268.

Rehler v. W. N. Y. & P. R. R. Co., 149.

Reichel v. N. Y. C. & H. R. R. RB. Co.,
520, 521.

Reining v. N. Y., Lack. & W. BR. R. Co.,
129.

Renss. & Sar. R. R. Co., in re, v. Davis,
21, 125, 314.

Renwick v. N. Y. El. R. BR. Co., 259.

Rettenhouse v. Winch, 52.

Rhinebeck & Conn. R R. Co., in re, v.
Radcliffe, 312, 317, 324.

Rich v. N. Y. El. R. RB. Co., 259.

Rich v. Town of Mentz, 328.

Richards v. Brice, 97.

Richardson v. Buhl, 58.

Ricketts v. B. & O. R. R. Co., 188.

Riordan v. Ocean Steamship Co., 513.

Roberts v.N. Y. kK. R. R. Co., 261, 262.

Robinson vy. Attrill, 67.

Robinson v. Nat. Bk, of New Berne, 79.

Robinson v. N. Y. C. R. R. Co., 522,

ae vy. Oceanic 8. Nav. Co., 141,

il.

Robinson v. Thompson, 67.

Roch, & Gen.V. R. R. Co., in re, v. Beck-
with, 310, 312, 313.

ee Glen Haven R. R. Co., in re,

Heels Syr. R. R. Co. v. Budlong, 309,

Roch, Dist. Tel. Co., in re, 32.

 

‘LABLE OF UASES.

Roch. Elec. Ry., in re, 107, 120, 228, 298.

R, H. & L. ROR. Co. v. N. Y., L. H. &
W. Ry. Co., 122. a

Roch., Horn. & Lack. R. R. Co., in re, v.
Babcock, 109, 304, 305. ,

Roch.. H. & Lack. R. R. Co., in re, v.
Hartshorn, 304, 305.

Rochester, Nunda & Pa. R. R. Co. v.
Cuyler, 332.

Roch. Ry. Co. v. Robinson, 297.

Roch. Sav. Bk. v. Averill, 51.

Rocky Mt. Nat. Bk. v. Bliss, 100.

Rodrian v. N. Y., N. H. & H. RB. R. Co.,
154, 522, 524.

Rogers v. Smith, 8.

Rogers v. Stephens, 331.

R., W. & O. R. R. Co. v. Smith, 404.

R., W. & O. R. R. Co., in re, v. Ont.
Southern R R. Co., 182.

Rondout & Oswego R. R. Co., in re, v.
Deyo, 308, 319.

Root v. Great Western R. R. Co., 181,
182, 188.

Root v. L. I. R. BR. Co., 114.

Rorke v. Thomas, 66.

Ross v. N.Y. C. & H. R. R. R. Co., 175

Roth v. B. & St. Line R. R. Co., 169.

Rounds v. D., L. & W. R. R. Co. 164,
181.

Rowland v, Miln, 185.

Rown v, Christopher & Tenth St, R. R.
Co., 238.

Rumsey v. N. Y. & N. E. R. R. Co., 111,
127. ;

Rumsey v. N. Y.&N. E. R. R. Co., (68
Hun,) 259. :

Ryan v. L,I R. R, Co., 193.

Ryan v. Man. Ry. Co., 177.

Ryder v. Bushwick R. R. Co., 79.

Ss.
Base ys Lake Sh. & M.S. R. BR. Co., 72,
4.

Salter v. U. & B. R. R. RB. Co., 368.

Sampson v. Buf., N. Y. & Phil. &. R. Co.,
(18 Hun,) 444, 445,

Sampson v. Buf., N. Y. & Phil. R. B. Co.,
(2 Hun,) 444,

Sandborn v, Lefferds, 74.

cae v. Eighth Ave. R. R. Co., 168,

Saratoga Elec. Ry. Co., in re, 182, 183.
mene N.Y. C. & H.R. R. R. Co.,
Saxton v. N.Y. Hl. R. R. Co., 262,
chaper v. Brooklyn & L. I. Ry. Co.
104, 109, 224.> ee
ounce v. Andrews, 97.
chermerhorn v. H. R. R. R. Co.
Scheu v. Benedict, 185, raares)
oan C. PN. & E.R. RR, Co.,
TABLE OF CASES.

ree v. Second Ave. R. R. Co., 180,

181.

Schoharie V. R. R. Case, 35.

Schwinger v. Rayniond, 185.

Scipio v. Wright, 326.

Scott v. The Penna. Co., 523.

Seybolt v. N. Y., L. E. & W. BR. R. Co.,
176, 199.

Seymne v. Canandaigua & N. F. R. R.

5

0., 50.
Sheaf v. U. & B. R. R. R. Co., 150.
Sheldon H. B. Co. v. Eickemeyer H. B.
M. Co., 22, 89.
Shellington v. Howland, 98, 100.
Shelton v. Merch. Desp. Transp. Co.,
186, 187.
Shepard v. Buff., N. Y. & EH, R. RB. Co.,

Shepard v. Man. Ry. Co., 260.

Shepard v. N. Y. & E.R. R. Co., 151.

Sheridan El. Light Co. v. Chatham Nat.
Bk., 23, 69.

Sherman v. Hud. R. R. R. Co., 184, 190.

Sherman v, Slayback, 99.

Sherwood v. Met. Kl. Ry. Co., 262.

‘Shiff v. N. Y. C. & H.R. R.R. Co., 187,
190.

Siefke v. Man. Ry. Co., 260.

Silberstein v. Houston, W. St., &c., R. R.
Co., 235.

Simonson, in re, 35.

Simpson v. R., W. & O. R. R. Co., 178.

Sims v. Bonner, 79.

Sistare v. Best. 79.

Sixth Ave. R. R Co. v. Kerr, 10.

Skinner v. Smith, 66.

Slater v. Jewett, 520, 521.

Sloan v. N. Y. E. R. R. Co., 263.

Sloman v. Gt. West. Ry. Co., 168.

Smith v Brit. & N. Am. Packet Co., 1'78.

Smith v. Helmer, 11. .

Smith v. N. Y.& H. R. R. Co., 174.

Smith v. N. Y. & O. M. R. R. Co., 148,
149.

Smith v. N. Y. C. R, R. Co., 176, 177,
182.

Snell v. Roch. Ry. Cows ae

Su aus. ma & C.R. R. Co, v. Hamlin,

Sodus Bay & C. R. R. Co. v. Lapham,
117,

‘Solon, town of, v. a eras Sav.

_ _ Bk, 329, 380, 333, 337,

Soloman v. Man. Ry. Co., 279, 512.

Somerville v. City Ry. Co. of Poughkeep-
sie, 235.

Sommer v. N. Y. Hl. R. RB. Co., 260.

South Beach R. &, Co., in re, 221,

South Brooklyn R. R. & T. Go, ., in re,
Gates, 120.

South. Boul. R. R. Co., in re, (17 N. Y.
Supp.) 259.

South. Boul, RK. B. Co., in re, (128 N. Y.)
821,

 

XXXI.

South, Boul, R. R. Co, in re, v. Spofford’
107, 355.

Spalding, in re, v. Arnold, 338.

Sperb v. Met. Hl. Ry. Co., 258, 259, 260.

Spinner v. N. Y. C. & H. "RR. R. Co.,

- 149,

Split Rock Cable R. Co., in re, 10.

Spooner v. D., L. & W.R. R. Co., 196,
523.

Sprague v. N. Y. C. R. RB. Co., 184.

Springport, town of, v. Teutonia Sav.

k., 326,

Staats v. Hud. R. R. R. Co., 148.

Star Printing Co. v. Andrews, 51.

Starin v. Edson, 22.

ne v. The Mayor, &c., of New York,
97.

Staten I. R. T. Co., in re, 110, 125.

Stat. I. R. T. Co., in re, v. Bechtel, 304.

Staten I. R. T. Co., in re. v. Bodine, 304.

Stat. I. R. T. R. R. Co., in re, v. Hamil-
ton, 318.

Staten 1. R. T. R.R. Co., in re, v. Laz-
zari, 308.

Staten Island Rap. Tr. R. R, Co., in re,
v, Starin, 106.

Steiger v. Erie Ry Co., 186.

Steinmetz v. Met. El. Ry. Co., 258.

Stephens v. Fox, 95.

Sterrs v. N. Y. Hl R. R. Co., 260, 263.

Stevens v, Buf. & N. Y. City’ R. R. Co. ey
50, 443.

Stevens v. N. Y. E. R. R. Co., 9, 258.

Stevens v. Watson, 50.

Bleue v. Brooklyn Cross T, R. R. Co.,
174

Stewart v. Town of ma | 3338, 337.

cg sae N. Y., L, E. & W. RR.

Sindee y. NN Y., L. BE. & W. R. R. Co.,
179,

Stone v. Dry Dock E. B. & BR. R. Co.,
§22.

Stoneman v. Erie Ry. Co., 168, 183.
Storck v. Met El. Ry. Co., 262.

Story v.N. Y. El. RB. R. Co., 9, 258.
Stranahan v. Sea View Ry. Co.. LOR.

‘Strang v. Cook, 380.

Stringham v. Hilton, 517.

ee ee ay ,L. E. & W.R.R. Co.,
51

Strong v. Brooklyn Crosstown R. R. Co.,
66, 85, 87.

Strong v. City of Brooklyn, 316.

Strong, in re, v. Smith, 35.

Stroub v. Man. Ry. Co., 258.

Strough v. Sonere of Jefterson Co., 338,

Stuart v. Palmer, 9.

v. | Sturges v. Vanderbilt, 66.

Suarez v. Man. Ry. Co., 263.

Suburban R. T. R. R. Co. v. ‘City of New
York, an 122, 266.

| Suburban R.T . Co., in re, 252, 255, 298,
XXXII.

Sullivan v. Tioga R. R. Co., 511.

Sutherland v. Olcutt, 66

Sutherland v. Troy & Boston R. R. Co.,
§12, 519.

Sutton v.N. Y.C. & H.R. R. R. Co.,
181.

Swift v. Pac. Mail St. Co., 187, 190.

Swift v. Staten I. R. T. Co., 868.

Syracuse & B. R. R. Co., in re, (4 Hun,)
312, 317.

Syr., Chen, & N. Y. R. RK. Co., in re, 35.

Syracuse, Phcenix & Osw. R. R. Co. v.
Gere, 106.

Syr. Sav. Bk. v. Town of Seneca Falls,
337.

Syracuse, Third Nat. Bk. of, v. Town of
Seneca Falls, 329, 330.

T.

Taber v. D., L. & W. R. BR. Co., 178, 179,

Tallman v. Met. El. R R. Co., 258,

Talmadge v. Renss. & Sar. R. R. Co.,
151, 152.

Tarbell v. North. C. Ry. Co., 163.

Tasker v. Wallace, 80.

Terry v. Flushing, N. 8. & C. R. R. Co.,
16:

63.

Terry v. Jewett, 178, 179.

Terry v. N. Y. C. R. R. Co., 151, 152,

Terry v. N. Y. C. & H. BR. RB. BR. Co.,
316.

Third Ave. R. R. Co., in re, 7, 287.

Thirty-fourth St. R. R. Co., in re, 6, 230,
281, 240.

Thomas v. D., L. & W. R. R. Co., 868.

Thomas v. U. & B. R. R. R. Co., 150,

Thompson v. Erie Ry. Co., 50.

Thompson v. Town of Mamakating, 326.

Thompson v. Man. Ry. Co., 261.

Thompson v.N. Y. C. & H. R. RR.
Co., 368.

Thompson v. Perrine, 326.

Thornton v. Wabash Ry. Co., 54, 90.

Thorpe v. N. Y.C & H. R. R. R. Co.,
164, 165.

Throop v. Hatch Lith. Co., 89.

Tierney v. N. Y.C.& H.R, R. R. Co.,
156, 183.

Timpson v. Man. Ry. Co., 176.

Titus v. Gt. Westn, Turnpike Road, 78.

Tode v. Gross, 58.

Tolman v.S., B. & N. Y. R. R. Co., 518,
522,

Tombs v. Roch. & Syr. R. R. Co., 151.

Tonawanda, &c., R. R. Co. v. N. Y., L.
E. & W. R. R. Co., 59.

Torbett v. Eaton, 73.

Torbett v. Godwin, 74.

Torpey v. Williams, 168,

Tozer v. N. Y.C. & H. R. RR. Co.,
5138.

Townsend v. N. Y.C.& H.R. R. R.Co.,
162, 164.

 

1 ABLE OF UASES.

| Townsend, in re, 10, 13.

Tracy v. Pullman Pal. Car Co., 166, 169.

Tracy v. Troy & B. R. R. Co., 148, 149.

Tracy v. Yates, 98.

Troy & B. R. R. Co, v. Boston, H. T. &
W. Ry. Co., 116, 186, 218, 214.

Troy & Boston R. R, Co. v. Lee, 308,.
309, 319.

Troy & B, R. R.Co. v. North. Turn. Co.,
126.

Troy & Boston R. R. Co. v. Tibbitts, 83,

Troy & Boston R. R. Co. v. Warren, 104,

Troy & Rutland R, R. Co. v. Kerr, 1, 80,
137.

Troy, Mayor of, v. Troy & Lans. R. R.
Co., 235.

Truex v. Erie Ry. Co., 175.

Trustees of Exempt Fireman’s Hund vy.
Roome, 4.

Trustees N. Y. & B. Bdge. Co. .in re, v
Third M. E Church, 311, 315.

Trustees of Presb. Soc. of Waterloo v.
Auburn & R. RR. Co., 10.

Tucker v. Gilman, 98.

eer ON N.Y. C. & H.R. R. RB. Co.,
522.

U.

Uline v. N. Y.C. & H.R. R. RB. Co, 11.

Ulrich v. N. Y.C. & H.R. R. R. Co.,,
165, 177,

Ulster & Del. R. R. Co., in re, v. Gross,
11, 315.

Underhill v. Man. Ry. Co., 260.

Union El, R. R. Co., in re, (8 N. Y.
Supp.,) 299.

ce R. R. Co., in re, (118 N. Y.,).
112.

eae ani R. R. Co., in re, (112 N. Y.,)

Union Ferry Co., in re, 4.

Union Hotel Co. v. Hersee, 80:

mn aaah v. D., L. & W. R. RB. Co.,
114.

United States Cremation Co., in re, 80,

36.

United States Merc, Rep. & Col. Agency,
Ltd., in re, 19,

United States Trust Co. v. N. Y., W.S.
& B. Ry. Co., 452.

Uransky v. Dry Dock, E, B. & B. R. R.
Co,, 510.

Utica, C. & S. V. R. R. Co., in re, v.
Mening, 308.

Vv.

Vail v. Hamilton, 51.

Van Benthuysen v. Cent., N. E, & W-.
R. R. Co., 50.

Van Buskirk v. Roberts, 177.

Van Cott v. Van Brunt, 81, 83, 96.

Vandenburgh v. Broadway Underground,
C. Ry. Co., 82, 36, 62, 64.
TABLE OF CASES.

Vandermulen v. Vandermulen, 316.

Manele water vy. N. Y.& N. E. R. R. Co.,
368.

Van Emburgh v. Baker, 32.

Van a v. N. Y. C. & H. R. R. Co.,
178.

Van Santvoord v. St. John, 188.

Mere Nick v. Hudson R. R. R. Co.,

76.

Van Tassell v. Derrenbacher, 338.

Varnum v. Hart, 89, 90.

Vatable v. N. Y., L. E. & W. &. B. Co.,
54, 57.

Vedder v. Fellows, 114.

Veeder v. Mudgett, 73, 81, 85, 97.

Vick v. N. Y.C. & H. R. R. R.Co., 175.

Victory Web Printing Co, v. Beecher, 98.

Vilas v. Page, 210, 451.

w.

Wademan v. Alb. & Sus. R, R, Co., 148,
149

Wager v. Troy Union R. R. Co., 10.

Wait v. Alb. & Susq. R. R. Co., 188.

Wakefield v. Fargo, 99.

Waiden, in re, 439.

Wallace v. L. I. BR. R. Co., 218.

Wallace & Sons, v. Walsh, 64.

Walton v. Godwin, 74.

Wandell v. Corbin, 178.

Ward v. N. Y.C. B. R. Co. 182, 185.

Ward v. N.Y. C. & H. B. B.R, Oo.,
163.

Ward v. Sea Ins. Co., 32.

Warner v. West’n Transp. Co., 182.

Warren v. Troy & Boston R. BR. Co., 104.

Wash. Cem. v. Prosp. Pk. & OC. I. BR. R.
Co., 316.

Wash. St., &c., R. R. Co., inre, v. S. B.
& N. Y. BR. R. Co., 104, 205.

Wasmer v. D., L. & W. R. B. Co., 180.

Watson v. Godwin, 74.

Watson v. N. Y. C. BR. R. Co., 124,

Waverly Water Works Co., in re, 318.

Wayne, Town of, v. Sherwood, 382.

Weaver v. R.. W. & O. R. BR. Co., 162.

Webb v. R., W. & O. R. B. Co., 515.

Weber v. N. Y. C. & H. R. BR. R. Co.,
368.

Webster v. R., W. & O. R. R. Co.,-178,
180, 195.

Weeks v. Love, 97.

Weeks v. N. Y.,N. H. & H. R. RB. Co.,
176.

Weeks v. Silver Islet C. M. & L. Co., 83.

Weil v. Dry Dock E. B.& B. R.R.Co., 521.

Weinckie v. N. Y. C.& H. R. B. B. Co.,

5.
Welch v. Imp. & Tr. Nat. Bk. 51.
Welch v. Pullm. Pal. Car Co., 166, 169,
Welding v. Wagner, 166.
Wellington v. Cont. Const. & I. Co,, 96.

 

XXXIIT*

Wells v. N. Y.C. R. R. Co., 177.

Wellsborough, Town of, v. N. Y. & Can-
ada R. R. Co., 328.

Wentz v. Erie Ry. Co., 163.

Werfelmann v. Man, Ry. Co., 260.

Werle v. L. I. R. R. Co., 174, 195.

Western R. R. Co. v. Nolan, 404.

Westn. Transp. Co. v. Hoyt, 186.

— am Tel. Co. v. Mayor of N. Y.,

99.

Westervelt v. Gregg, 9.

Westjen v. St. Paul & P. R, R. Co., 50.

Weston v. N. Y. El. R. R. Co., 176.

Wheatland, Town of, v. Taylor, 8.

Wheeler v. Erie Ry. Co., 151.

Wheeler v. Miller, 97.

White v. Syr. & Ut. R. R. Co., 1.

White v. U. & B. R. R. R. Co., 150.

White v. Wood, 55.

Whitford v. Panama R. R. Co., 141.

Whiting v. Town of Potter, 329.

Whitney v. N.Y. & A. R. R. Co., 452.

Whitney Arms. Co. v. Barlow, 99.

Whittaker v. D. & H. Can. Co., 519.

Whittlesey v.. Frantz, 84.

Whitworth v. Erie Ry. Co., 191.

Wibert v. N. Y. & HE. R. R. Co., 156.

Wiles v. Suydam, 96.

Williams v. Brooklyn El. Ry. Co., 258,

260.

Williams v. D., L. & W. R. RB. Co., 517.

Williams v. N. Y. C. R. R. Co., 10, 111.

Williams v. Taylor, 83.

Williams v. Town of Duanesburgh, 326.

Williams v. West. Un. Tel. Co., 66.

Williams v. Vanderbilt, 177.

Willis v. L. 1. R. R. Co., 179, 195.

Wilson v. N. Y.C. & H.R. R. R. Co.,
187,

Wilson v. Town of Caneadea, 329.

Wiwirowski v. L.S.&M.S. R. R. Co.
181, 512, 523.

Wood vy. Suprs. of Monroe Co., 388.

Woodard v. Holl. Med. Co., 99.

Wooden v. W. N. Y. & P. R. R. Co.,
141, 511.

Woodruff v. Erie Ry. Co., 218, 214, 452.

Woodruff v. Jewett, 452.

Woods v. Godwin, 74.

Woolsey v. N. Y. E. R. R. Co., 261, 263.

Wylde v. North. R, R. Co., 179.

Wynn v. C. P. N. & E.R. R.R. Co.,
178, 174, 181, 512.

Y.

Yates v. N.Y. C. & H. R. RB. R. Co., 164,
Yates v. Van DeBogert, 110.
Young v. Godwin, 74.

Z.
Zinn v. N. Jersey Steamboat Co., 183.
CHAPTER I.

ROVISIONS OF THE CONSTITUTION AFFECTING
RAILROAD CORPORATIONS.

Creation of Corporations—Art. VIII, sec. 1.—
Orporations may be formed under general laws; but
tall not be created by special act, except for municipal
irposes, and in cases where, in the judgment of the legis-
ture, the objects of the corporation cannot be attained
ider general laws. All general laws and special acts
issed pursuant to this section may be altered from tire
: time or repealed.

The provision that corporations may be formed under general
ws is merely a direction for the exercise by the legislature of
1 existing authority, and not its creation. ‘Bank of Chenango v.
rown, 26 NV. Y., 467. This provision is permissive, not manda-
ry. Matter of the taxpayers of Kingston, 4o How., 444. A special
:t for incorporation is not unconstitutional by reason of the
sistence of a general law. eople v. Bowen, 21 N. Y., 517. The
gislature has authority, under the constitution, to create a
ulroad corporation by a special act. If, in the gndgment of
ie legislature, the objects of the corporation cannot be attained
ader general laws, then the legislature has the power to create
1e corporation by special act. Mosier v. Hilton, 15 Barb., 657.
.is well settled in this state that whether a special act of incor-
oration is necessary or not, isa matter entirely for the judg-.
ent and discretion of the legislature, and that the courts have
> power to review its action. Metropolitan Bank v. Van Dyck, 27
". Y., 448. Special charters, or special additions to a charter
‘ken under general laws, are not unconstitutional. Jn re Prospect
ark & -Coney Island R. R. Co, 67 N. Y., 372. Under the power
‘served by this section, the legislature may impose upon rail-
iad corporations such additional restrictions and burdens as
e public good requires. The Leople ex rel. Kimball v. Boston &
fhany R. R. Co. 70 N. Y., 569. In the case of a railroad corpora-
on organized under the General Railroad Act of 1848, ch. 140, it
as held, that “the legislature could amend, annul and repeal its
iarter.” Zray & Rutland Railroad Co. v. Kerr, 17 Barb., 603. See
so White v, Syracuse & Utica R. R. Co., 14 td., 560, and Northery
2 1 HE CONSTITUTION.

R. R. Co. v. Miller, ro id., 282. Under the constitution of the
state the legislature has no power to make with any corpora-
tion a contract, either in its charter or in the act incorporating
it, or by any other form of legislation, which can prevent a sub-
sequent legislature from altering, modifying or wholly abro-
gating its charter. The provisions of the constitution in that
regard enter into every special law creating a corporation, and
every general law authorizing such creation, so that the legisla-
tive power to alter, modify, and repeal becomes a part of the
contract made with the corporation as fully as though expressed
in the charter or act of incorporation. If, by any provision of
the charter, it should be declared that the legislature shall
have no power to repeal, modify or alter the charter, that pro-
vision would be nugatory under the constitution of the state,
because in violation thereof, and in its place the courts would
be called upon to substitute and enforce the mandate and con-
tract of the constitution whenever a subsequent legislature
thought proper to act in conformity to its provisions, or when-
ever the question of the validity of the charter should arise in
any form. The acceptance of a.charter, or act of incorporation
by the corporation it creates is, by force of the constitution, an
acceptance of the contract on its part that the legislature shall-
have, and may exercise the power of modification or repeal at
its pleasure. ™M VY. Cable Ry. Co. v. Chambers St. Ry. Co., go Hun,
29. Peoplev. O’Brien, 111 N. Y., 2. Under the power reserved
by this section, and the General Railroad Act, the legislature
is clothed with authority to change and alter the license fee
fixed by a special act. Mayor of N. Y.v. Twenty-third St. Ry. Co.,
113 N.Y., pri.

DECISIONS UNDER 1. R. S., cu. 18, T. 3 § 8.

This provision has the same effect upon corporations subse-
quently created as if re-enacted in each charter. Opin. of Attys.
Gen'l 42, (1832.) See WV. Y. Cable Ry. Co. v. Chambers St. Ry. Co.
40 Hun, 29. 1. 1884, Ch. 252, subjects the charter of a company
organized under it to this provision. People 7. O’Brien, 111
LV. Y., 2.

Decisions UNDER L. 1850, CH. 140, § 48.

‘This section is expressly made a part of the contract between
the State and corporations organized thereunder, and defines
the effect of the exercise of the power of repeal upon the rights
Dests or ConPORATIONS—PRIVATE OR Loca BILts. 3.

of the parties affected thereby. People v O’Brien, 111 N.Y, 2,
53. Ifthe provisions of 3 R.S.Ch. 18, Title 3, § 8, contain any
broader power than this provision they must be deemed to have
been repealed by this section as inconsistent therewith. The
reservations applicable to railroads are therefore contained in
this section. voplev. O'Brien, 111 N. Y.,1, 46. Such a repeal
by the legislature of a charter does not take aw.ty or impair
any remedy against said corporation, its officers and trustees,
for any liability previously incurred. The contract proved be-
tween the corporation and the state was intended to survive the
dissolution of the corporation, and to determine the rights of
parties interested in the property in the event of dissolution.
The contract with the State is found in the provision, “but such
dissolution shall not take away or impair any remedy given
against such corporation, ; ‘ ‘ for any liabil-
ity which shall have been previously incurred.” People v.
O Brien, 171. N. Y., 2.

Debts of Corporations.—Art. VIII, sec. 2.—Dues
from corporations shall be secured by such individual lia-
bility of the corporators and other means as may be pre-
scribed by law.

See. L. 1870, ch. 529. Liens of mechanics on railroad
bridges and trestle-work.

See L. 1875, ch. 392. Liens of railroad employes.

See L. 1885, ch. 376. Wages of employes of all copora-
tions preferred where a receiver is appointed.

See § 54 of the Stock Corporation Law.

See § 30 of the Railroad Law.

it seems, that the word “dues” does not include dues to direct-
ors. McDowall v. Sheehan, 129 NV. Y., 200.

Private or Local Bills.—Art. III, sec. 18.—The leg-
islature shall not pass a private or local bill in any of the
following cases : : ; Granting to.any cor-
poration, association or individual the right to lay down
railroad tracks. Granting to any private corporation, asso-
ciation or individual any ‘exclusive privilege, immunity or
franchise whatever. ‘ The legislature
shall pass general laws. providing for the cases enumerated
in this section, and for all other cases which in its judg-
ment may be provided for by general laws. But no law
4 THE CONSTITUTION.

shall authorize the construction or operation of a street
railroad except upon the condition that the consent of the
owners of one-half in value 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 1s pro-
posed to construct or operate such railroad be first ob-
tained, or in case the consent of such property owners can
not be obtained, the general term 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.

See §§ 91, 94 and 123 of the Railroad Law.

An act is local, within the meaning of the Constitution,
which, in its subject, relates but to a portion of the peo-
ple of the state, or to their property; and may not, either
in its subject, operation or immediate and. necessary re-
sults affect the people of the state or their property
in general. Theword “private” seems.to be employed as ap-
plicable to persons only ; and the word “local” as applicable to
territory only, but both as words signifying a narrowing or re-
stricting of purpose. People v. Supervisors of Chautauqua, 43
NV. Y., zo. A law which relates to persons or things as a class is
general, but one which relates to particular persons or things of
a classis special and private. Jn re NV. Y. Elevated R. R. Co., 70
N.Y., 350. Inre application of Church,92 N. Y.,z, Cases illustrat-
ing the character of privileges and franchises at which the pro-
hibition contained in this provision is aimed, are collated in /x re
Union Ferry Co.,98 N. Y., 739. See Trustees of Exempt Fireman's
Fund v. Roome, 93 N.-Y., 314. Ch. 554 L. 188s, is invalid under this
provision. People ex rel., Harvey et al. v. Loew, 102 N. Y., 471,
The prohibition has no reference to previously existing laws.
People v. Brooklyn, Flatbush and Coney Island R. R. Co., 59 N. Y., 75.
But an act which purports to extend the time within which a
company is required to finish its road and put it in operation
passed after the company had ceased to bea corporation, by
reason of its failure to construct its road within the time lim-
ited by L. 1850, ch. 140, Sec. 47, as amended by L. 1867, ch. 775,
is unconstitutional and void. It is not merely the waiver of a
PRIVATE OR Loca BILLs. 5

forfeiture, but the creation of anew corporation. Jn re Brook-
dyn, Winfield and Newtown R. R. Co.,75 N. Y., 335. See Patten v.
NV. Y. Elevated R. R. Co., 3 Abb. N. C., 306; Ninth Ave. R. R. Co. v.
same jid., 347. Amn act restricting and regulating an existing
right to lay down railroad tracks is not a grant of that right
within the meaning of this clause. Jn re Gilbert Elevated R. R.
Co.,70 N. ¥., 361; Inve N.Y. Elevated R. R. Co.,id., 327 ; People v.
Brooklyn, Flatbush and Coney Island R. R. Co., 89 N. V., 75.

This provision annuls the power to change the location of a
railroad authorized to locate.on certain streets, or on such others
as the common council may name as more suitable, if the com-
pany have elected to take a certain route and the common
council have acquiesced in such location. Megus v. City of Brook-
dyn, 10 Abb. N. C., 180. Under the act authorizing the construc-
tion of the Brooklyn Elevated Railroad,—held, that a change of
route was authorized although the resolution of the municipal |
authorities designating such change was passed after the adop-
tion of this section. Harper v. Brooklyn Elevated R. R.. Co., N. Y.
Daily Reg., Sept. 9, 1885. A provision requiring the consent of
one-half the owners of property on the opposite side of a square
passed by a street railroad does not render the law unconstitu.
tional. Allen v. gand St. R. R. Co., N. Y. Daily Reg., Sept. 9, 1884.
Under L. 1884, ch. 252 and this provision, it is not sufficient to
obtain the consent of the owners of one-half in value of the.
property along the whole route, but the consent of the owners
of onerhali in value of the property bounded upon that portion
_of.each of those streets upon which it is proposed to build the
road, must-be obtained. Ailton v. path St. R. R. Co., 1 How. Pr.,
XN. S., 453. The determination of the commissioners is inopera-
tive until confirmed by the general term. That court has the
power to pass upon the sufficiency of the facts to warrant the
determination. The order confirming the report is discretion-
ary and not reviewable by the court of appeals. Ju re Kings

Qo. Elevated R. R. Co., 82 N. ¥.,95. The consent of the abutting
owner need not be under seal, or convey to the company any
interest he may have in the street or highway. Jn re Cortland
and Homer Horse R. R. Co., 391 Hun, 72; aff'd, 95 N. Y., 663, (but
see §.91 of the Railroad Law.) A-law authorizing the common
council of a city to pass an ordinance discontinuing a portion of
a street to be used asa site for a railroad depot is not in violation
of thisprovision Weinckiev. NV. Y.C.& H.R. R. R. Co., 75 N.Y. Supp.,
689 ; 39 St. Rep., 584; aff'd on opinion below, 737 N.Y, 656. Chapter
6 Tue CoNSTITUTION.

518, L. 1881, providing that the consent of the local authorities
required by the constitution may be made and given by the
mayor and commissioner of city works, is unconstitutional as
attempting to confer upon officers other than those pre-
scribed by the constitution the power to give such con-
sent. Jn re Kings County Elevated Ry. Co., 41 Hun, 425, reversed
zo5 .V. Y., 97, without referring to this point.

The provision of the constitution, neither by express language
nor by implication, abridges the legislative power over the sub-
ject outside of the matters particularly enumerated. Except as
restrained by the constitution the legislative power is untram-
melled. The fact that certain conditions are prescribed upon
which street railroads may be constructed, does not prohibit the
legislature from annexing further conditions not inconsistent
therewith, hence sec. 14 of chap. 252, L. 1884, requiring acompany,
whose route is coincident with that of another road, to obtain the
consent of the latter to the construction of the new road, before it
can proceed to construct and operate it, is constitutional; and
further it does not constitute a delegation of legislative power
to the company whose consent is required. The consent of
another company, in a case where such consent is required, con-
fers no franchise upon the company by whom it is obtained.

It cannot be justly claimed that under the constitution, the
Court, on the application for the appointment of commissioners,
in case the consent of the property owners cannot be obtained,
is vested with any discretion to grant or deny the motion upon
a consideration of the question of the utility or necessity of the
proposed road. The lauguage of the constitution that the
court may appoint, does not confer any discretion upon the
court to appoint or not. The constitution confers upon the
court primarily a mere naked power of appointment, and gives
no power to the court to try, hear or determine in the first in-
stance the question that is to be sent to the commissioners.
The power of the court to pass upon the merits of the applica-
tion, arises only after the commissioners have made their report
and returned the evidencetaken by them. Jn re Thirty-fourth St.
R. R. Co., 102 N. Y., 343.

A railroad intended to be constructed under the tunnelling
act (L. 1880, ch. 582,) may be a ‘‘street railroad” within Art. 3,
sec. 18, and hence that part of the first section of ch. 582, which
substitutes the favorable determination of commissioners when
confirmed by the general term, for the consent of both the
State Aip—Municipar AIp. 4

local authorities and the property owners, is unconstitutional.
Within any fair view of the entire subject, this provision em-
braces every kind of street railroad, surface, elevated or under-
ground, in the existence or non-existence of which the local
authorities and the property owners might have an interest.
Inve. N.Y. District Ry. Co., 107. N. Y., 42. Va. 1889, ch. 531, which
authorizes any street surface railway to operate its road by cable
or other power, with the consent alone of one-half in value of
the abutting owners, is constitutional, at least as to railroads con-
structed before the constitutional provision went into operation.
dure Third Ave. R. R. Co., 121 N. Y., 537. This prohibition applies
to part of, as well as to acomplete railroad. Jn re Met. Transit
Co. v. the Mayor of N. Y., 111 N. V., 588. Anact giving authority
to a corporation, organized for the transmission of letters, pack-
ages and merchandise, by means of pneumatic tubes, to provide
for the transportation of passengers in said tubes, as it author-
izes the construction of an underground railway by the original
corporation, is violative of this provision, and unconstitutional.
Astor v. the Arcade Ry. Co., 113 N. Y. 93. WL. 1885, ch. 392, giving
authority to build a bridge for railway, carriage and foot pas-
sengers, over the East River, is in violation of this provision
‘and unconstitutional. Ju re N. V.& L. I. Bridge Co., 21 St. Repr.,
858; aff'd 54 Hun, goo Repealing legislation which would dis-
pense with the existing requirements of consent by the prop-
erty owners would be as unconstitutional as afirmative legisla-
tion. Schaperv. Brooklyn & L.I. Cable Ry. Co., 4 St. Rep., 860. See
124 N. VY. 63o.

State Aid.—-Art. VIII, sec. 10.—Neither the credit
nor the money of the state shall be given or loaned to or
in aid of any association, corporation or private undertak-
ing. This section shall not, however, prevent the legis-
lature from making such provision for the education and
support of the blind, the deaf and dumb, and juvenile de-
linquents, as to it may seem proper. Nor shall it apply to
any fund or property now held, or which may hereafter
be held by the state for educational purposes.

Municipal Aid.—Art, VIII. sec. 11.—No county,
city, town or village shall hereafter give any money or
property, or loan its money or credit to or in aid of any
individual, association or corporation, or become directly

\
8 THE ConsTITUTION.

or indirectly the owner of stock in, or bonds of, any asso-
ciation or corporation; nor shall any such county, city,
town or village be allowed to incur any indebtedness except
for county, city, town or village purposes.

(Amended in 1884 by the addition of a clause not affecting
railroad companies.)

See chapter on Municipal Aid Bonds, (the General Munici-
pal Law.)

The prohibition contained in this section does not oper-
ate retrospectively. ogersv. Smith, 5 Hun, 475. This section, in
legal effect, repealed and annulled all acts of the Legislature re-
lating to the bonding of towns for railroad purposes, except so
far as they relate to existing contracts actually made and in
force when it went into effect. Ju re Buffalo & Jamestown R. R.
Co. v. Commissioners, &¢., 5 Hun, 485. When it went into effect
all action by towns, not then finished, towards the issue of bonds
in aid of any corporation, at once fell to the ground; unless.
there had by operation of law, or in pursuance of some author-
ized and valid agreement, been created a right to have such .ac-
tion perfected by the issuing ofbonds. Falconerv. Buffalo& James-
town R. R. Co., 69 N. Y., gor. Buffalo& Jamestown R, R. Cov. Fal-
coner, 103 U.S.,821. See People ex rel. Hetfield v. Trustees,70 N. Y.,
28. When bonds were signedand delivered 77 escrow under the
terms of a valid contract, upon the faith of which the company
acted in building the road, the bonds were not invalidated by
the fact that they were not delivered to the railroad company
until after this section took effect. Zownof Cherry Creech v. Becker,
123 NV. Y., 267.

L. 1878, ch. 75, is constitutional. It did not author-
ize the incurring of an indebtedness, but the payment
of an acknowledged debt. The constitution does not de-
prive municipalities of the right to compromise a claim which
they dispute, but which in the end they deem it wise and pru-
dent to acknowledge in part and pay as acknowledged; and
which might by judicial decision but for the compromise be-
come a charge upon them to itsfull extent. Wills v. The Peekshill
Savings Bank, ror N. Y., 490. WL. 1876,Ch. 66 is unconstitutional
under this provision. Zown of Wheatland v. Taylor, 29 Hun, 71
-
i

;
PrIvATE PRoperty TAKEN FoR Pustic Use. 9

Private Property Taken for Public Use—Due
Process of Law—Compensation—Art. I, sec. 6.—
No person shall . . . be deprived of life, liberty or
property without due process of law; nor shall private
property be taken for public use without just compensation.

See § 4, Sub. 2, and §§ 7, and 125 of the Railroad Law, also
the Condemnation Law.

“Due process of law” means, in due course of legal pro-
ceedings, according to those rules and forms which have
been established for the protection of private rights. Westervelt
v. Gregg, 12 NV. Y, 209. But it need not be a legal proceeding ac-
cording to the course of the common law; nor must there be
personal notice to the party: whose property is in question.
Happy v. Mosher, 48 N. Y., 373. .The Legislature may prescribe
the kind of notice and the mode in which it shall be given, but
it can not dispense with all notice. Stwart v. Palmer,74 N. V., 183.
An act of the Legislature is not, of itself, due process of law. Jd.
See V. Y.&° 0. Midland R. R. Co. v. Van Horn, 57 N. Y., 473. Gen-
erally stated, “due process of law” requires an orderly proceed-
ing, adapted tothe nature of the case, in which the owner has
an opportunity to be heard, and to defend, enforce and protect
his rights. Stuart v. Palmer, (above.) The clause in Sec. 18,
ch: 140, L. 1850, providing that “the second report shall be final
and conclusive,” does not deny to the land-owner due process of :
law. Matter of Prospect Park and Coney Island R. R. Co., 85 N. Y.,
489. Aneasement is property. People ex rel. Williams v. Haines.
49 N. Y., 587; Arnold v. Hudson River R. R., Co. 55 N. V., 662. Story
vy. N.Y. Elev. R. R. Co.,90 N.V., 122; Lahr v.-Metrop. El. R. R. Co.,
10g N. -Y., 268; Hussner v. Brooklyn City R. R. Co., 114. N. Y., 433.
It is immaterial whether or not the abutting owner has any interest
in the fee of the street. Adendroth v. Man. Ry. Co., 122 N. Y., 7.;
Stevens v. N. Y. Elevated R. R. Co.,8 N.Y. Supp., 313 5 29 St. Rep,
3g6t ; 57 Super., Ct. 416. As to streets laid out under the Dutch
Regime see Kane v. N.Y. Elev. R. R. Co., 125 N. Y., 164. The fact
that the title to the fee of the opposite half of the street is nom-
inally in private persons against whom the abutting owner has
acquired a prescriptive right, does not affect the abutting
owner’s right to damages, the railroad not claiming under the
grantees of the fee. Kanev. NV. Y. Elev. R. R. Co., 125 N. Y., 164.
(See cases cited under the Railroad Law §125.) Fran.
chises of a corporation are property. Benson v. The Mayor,
&c., 10 Barb., 234. It belongs to the legislature and not to the
10 TuHE CONSTITUTION.

courts to determine whether the public benefit will justify the
taking of private property for public use. Bloodgood v. M ohawk
and Hudson River R. R. Co., 18 Wend., 9; Buffalo & N.Y. City R. R.
Co. v. Brainard,g N. V., 100; People ex rel. Hendrick v. Smith, az td.,
595; Inve Peter Townsend, 39 td. 171; In re Fowler et al., 53 td., 60.
And also how much and what interest shall be taken. The
Brooklyn Park Com. v. Armstrong, 45 N. Y.,. 234. An easement,
merely, or a partial interest, or the right to the temporary or
permanent use of property, as well as the entire estate and in-
terest, may be acquired. Sixth Avenue R. R. Co. v. Kerr, 72 N Vi
333. But the question whether the use is public or private is a
judicial one, to be determined by the courts; the grant by the
legislature of the right to take, is not conclusive evidence that
the use is a public one. Jz re Deansville Cemetery Asso'n, 06 N. Y.,
569 ; In re. Niagara Falls and Whirlpool Ry. Co., 108 N. Y., 375;
In re. Split Rock Cable R. Co. 128 N. Y., 408. The taking of

private property by a railroad company for its roadway is a tak-
* ing for “ public use.” Bloodgood v. Mohawk & Hudson River R. R.
Co, 18 Wend, 9 ; Buffalo & N. Y. City R.R. Co. v. Brainard, 9
WV. Y., roo, but see /n re. Niagara Falls & Whirlpool Ry. Co., 108
N. Y., 375. The legislature may by a general act providing for
the creation of an indefinite number of railroad companies, dele-
gate to such companies the power to take private property nec-
essary for their use. 9 WV. Y., 200 supra. The “taking” must.
be an actual physical appropriation. Radcliff’s Executors v. The
Mayor, &c., of Brooklyn,g N. V., 195. A franchise is “taken”
within the meaning of this provision when the owner is de-
prived of the power or means of exercising it; but it is not
“taken” when its emoluments are merely diminished by an im-
provement which does not destroy or impair such power or
means. Jn re. Hamilton Avenue, Brooklyn, 14 Barb. 405. Anappro-
priation of a street or highway for the purposes of a railroad to
be operated by steam is an additional burden and easement, and
is a taking of the property of the owner of the fee, for which
compensation must be made. Trustees of Presbyterian Soctety in
Waterloo v. the Auburn & Rochester R. R. Co, 3 fill, 567; Williams
wv. Y.C. RR. Co, 16. N. Y., 97; Carpenter v. Oswego & Syracuse
R. RK. Co., 24 id., 655; Mahonv. N. Y.C.R. R. Co., td., 658; Wager v.
the Troy Union R. R. Co., 25 id., 526. So, also, is such an appropri-
ation for the purpose of a horse railroad. Craig v. Rochester, &c.,
R. R. Co., 399 NV. Y., goa. But if the city or other municipality
owns the fee of the street or highway the legislature may
\
%, .
PrivaTE Property: TAKEN FoR Pustic Use. II

authorize steam or horse railroads to be laid on the surface
thereof, and neither the abutting owners nor the municipality
will be entitled to compensation. People v. Kerr,27 N. Y. 188;
Kellinger v. Forty-seeond St., &e., R. R. Co. 50 N. Y., 209. Mahady v.
Bushwick R. R. Co., 91 N. Y., 148; Fobes v. R., W.& O. R. R. Co., 121
N.Y., 505. A law under which the right of eminent ddémain is
exercised must provide a certain and adequate remedy by which
the individual can obtain compensation without unreasonable
delay. Bloodgood v. Mohawk & Hudson River R.R. Co., 18 Wend., 9.
But it is not necessary that the assessment and payment of such
compensation be made a condition precedent to an entry upon
and occupation of the premises. Smith v. Helmer, 7 Barb., 416;
Chapman et al. v. Gates, 54 N. V., 132. An order confirming
the report of the commissioners of ‘appraisal is not repugnant
to this provision, because instead of directing the compensation
for the land to be paid to the party claiming to be the owner,
it directs the deposit thereof in bank subject to the order of the
court. Jn re. N.Y.C.& H.R. R.R. Co, 60 N.Y, 116. Quaere,
whether the expense of taking private property can ever be
charged against the person whose property is taken. / re. Ulster
& Delaware R. R. Co. v. Gross, 31 Hun, 83. Costs upon an appeal
taken by the company from an order confirming the report of
commissioners can not be so charged. Jn re New York, West
Shore & Buffalo Railway Co.,94 N. Y., 287. In proceedings to fix
‘the points and manner of a railroad crossing where there
is no evidence bearing upon the amount of compensa-
tion, and the litigation had been determined and persistent,
on the one side to secure, and the other to prevent a crossing,
it is within the proper exercise of the discretion of the court
to impose the costs on the contesting company, and it is not a
violation of the constitutional right of that company. Jz re.
Cortland & Homer Horse R. R. Co. v. Syracuse, Binghamton & N. Y.
R. R. Co, 98 N. Y., 336. Ch. 554, L. 1885, is unconstitutional
under this provision. People ex rel. Harvey et al. v. Loew, 102 N.
V., 477. Remedies of land-owners for the unauthorized construc-
tion of railroads are considered in Ulinev. N.Y.C.& A. R. R.
R.Co., 10t N.V.,98; In re N.V,WS.& B. Ry. Co, 201 N.Y,
-685 ; Hendersonv. N. YC. R. R. Co, 78 N. V., 423 ; Hussner v.
B’kiyn. City R. R. Co., 114 N. V., 433, and Murdock v. Prospect Pk &
C. I. R. R. Co, 73 N. V.,579. See last case for effect of a parol
license to construct a railroad. The right of action is a personal
asset, accruing to the owner and passing to the personal repre-
12 THE CONSTITUTION.

sentatives, not to thedevisee. Griswold 7. Met. El. Ky. Co., 122 NV.
Y.,z02. Noise is an element of damage inanactionatlaw. Aave
o. WV. Y. BL R.R. Co. 125 N. ¥., 164, Moss v. Man, Ry. Co, 35
St. Rep, 798; 13 N. Y. Supp., 46. (See cases cited under the
Railroad Law § 125.)

Where it is sought to take the property of an individual under
powers granted to a corporation to be formed in a particular
manner, this provision requires that the powers granted be
strictly pursued, and all the prescribed conditions be performed.
It is not sufficient that it be a corporation de facto. It must be
acorporation de jure. When the power is conferred upon a corpo-
ration duly formed, it will not be defeated simply because the
corporation has done or omitted some act which may cause a
forfeiture of its rights and franchises. WV. Y. Cable Co. v7. Mayor,
&ce., of N. Y., 104g N. Y¥., 1,47. The rights of a land-owner are
not waived by failure to appeal from a decision that the purpose
was public; consent to the selection of a commissioner and liti-
gation of questions of value. A motion may afterwards be
made to set aside the entire proceedings, the Court of Appeals
having in the mean time decided in another similar proceeding,
that the railway in question is a mere private enterprise. /n re
Niagara Falls & WR. Co.,121 N. Y., 379. A street railroad com-
pany takes through its grant from the city, of the right to con-
struct and operate its road in the city street, a fee, vesting the
grantee with an interest in the street in perpetuity to the ex-
tent necessary for a street railroad. Such’a grant vests a cor-
poration with “property” which cannot be taken away by a
repealing act. People v. O'Brien, 111 N. Y., 7.

Compensation—How Ascertained.—Art I, Sec. 7.
—When private property shall be taken for any public
use, the compensation to be made therefor, when such
compensation is not made by the state, shall be ascertained
by a jury or by not less than three commissioners ap-

pointed by a court of record, as shall be prescribed by
law. ‘ ‘ :

See § 3369 of the Condemnation Law.

There is nothing in this section which requires the concur-
rence of all three of the commissioners, and in the absence of
any express provision on the subject, it is not to be presumed
that any intention existed so to provide. Where a majority
ComPEeNnsaTION—How ASCERTAINED. | | 13
act and all are notified, it is sufficient, andthe proceeding is.
valid. Astor v. The Mayor, &c., of N. Y.,62.N. Y., 580, Anact au-
thorizing the appointment of commissioners to determine the
compensation for injuries theretofore sustained is unconstitu-
tional. A party cannot so be deprived of atrial byjury. /x re
Townsend, 399 N. Y., 177. An act (L. 1857, ch. 156, § 12) which
provides that on an’ appeal from the award of commissioners
appointed to ascertain the amount of compensation for private
property taken for public use, the court may increase or dimin-
ish the amount of the award, violates this provision and is uncon-

stitutional. Jn re Malone Water Works Co.,15 N.Y. Supp., 649 ; 38
St. Rep., 95.
CHAPTER II.

THE GENERAL CORPORATION LAW. |

»  L, 1892, CHap. 687. *

AN ACT to amend the General Corporation Law, (L. 1890, Chap. £63.)

The general corporation law is amended to read as fol-
lows, to take effect immediately :
CHAPTER XXXV OF THE GENERAL LAWS.

SECTION 1.

Omar AM bw dN

If.
12.

13.
14.
15.
16.
17.

18.

19.
20,

21.

22:
23:

24.

25.

Tue GENERAL Corporation Law.

Short title.

. Classification of corporations.
. Definitions.
. Qualifications of incorporators.

Filing and recording certificates of incorporation.
Corporations of the same name prohibited.

. Amended and supplemental certificates.

. Lost or destroyed certificates.

. Certificate and other papers as evidence.

. Prohibition of other than statutory powers.

Grant of general powers.

Limitation of amount of property of a non-stock
corporation.

Acquisition of additional real property.

Acquisition of property in other states.

Certificate of authority of a foreign corporation.

Proof to be filed before granting certificate. .

Acquisition of real property in this state by certain
foreign corporations.

Acquisition by foreign corporations of real property

in this state upon judicial sales.

Prohibition of banking powers.

Qualification of members as voters.

Proxies.

Challenges.

Effect of failure to elect directors.

Mode of calling special election of directors.

Mode of conducting special election of directors.
SHORT TITLE—CLASSIFICATION OF CORPORATIONS. 15

26. Qualification of voters and canvass of votes at special
elections.

27. Powers of supreme court respecting elections.

28, Stay of proceedings in actions collusively brought.

29. Quorum of directors and power uf majority.

30. Directors as trustees in case of dissolution.

31. Forfeiture for non-user.

32. Extension of corporate existence.

33. Conflicting corporate laws.

34. Laws repealed.

35. Saving clause.

36. Construction.

37. Law revived.

Section 1. Short Title.—Thischapter shall be known
as the general corporation law.

Former section one unchanged.

§ 2. Classification of Corporations.—A corpora-
tion shall be either,

1. A municipal corporation,

2. A stock corporation,

3. A non-stock corporation, or
4. A mixed corporation.

A stock corporation shall be either,

1. A monied corporation,
2. A transportation corporation, or
3. A business corporation.

A non-stock corporation shall be either,

. A religious corporation, or
2. A membership corporation.

A mixed corporation shall be either,

1. A cemetery corporation,

2. A library corporation,

. A co-operative corporation,

. A board of trade corporation, or

. An agricultural and horticultural corporation,

tin & ob
a6 Tue GENERAL CorpoRATION Law.

A transportation corporation shall be either,

1. A railroad corporation, or
2. A transportation corporation other than a rail-

road corporation,

A membership corporation shall include benevolent
orders and fire and soldiers’ monument corporations.

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,

New. (Added by Laws 1892, ch. 687.)

§ 3. Definitions.—A municipal corporation includes a
county, town, school district, village and city and any other
territorial division of the state established by law with
powers of local government.

A stock corporation is a corporation having capital stock
divided into shares.

A mixed corporation is a corporation which may or may
not have capital stock at its option.

A monied corporation is a corporation formed under or
subject to the banking or the insurance law.

A domestic corporation is a corporation incorporated by
or under the laws of the state or colony of New York.
Every corporation, which is not a domestic corporation, is
a foreign corporation.

The term, directors, when used in relation to corpora-
tions, 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 re-
quired by law to be filed, to effect the incorporation of a
corporation, including a certified copy of an Original certi-
te of incorporation filed for such purpose in pursuance
of law.

The term, member of a corporation, shall include every
person having a right to vote at a meeting of a corpora-
INCORPORATORS— FILING CERTIFICATES. 17

tion for the election of directors, other than a person hav-
ing a right to vote only upon a proxy.

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. The office of
a stock corporation shall be in the county, town or city in
which its business is principally carried on.

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.

The term, corporate law or laws, when used in any law
forming a part of the revision of the general laws of the
state of which this chapter is a part, means the general
laws of the state relating to corporations included in such
revision.

(As am’d by Laws 1892, ch. 687.)

fe
Former Section 2.

$4. Qualification of incorporators.—A certifi-
cate of incorporation must be executed by natural per-
sons, who must be of full age, and at least two-thirds of
them must be citizens of the United States and a majority
of them residents of this state.

This section shall not apply to a corporation formed by
the re-incorporation or consolidation of existing corpora-
tions, or to the reorganization of a corporation upon the
sale of the property and franchises of a previously existing
corporation or otherwise.

New. (Added by Laws 1892, ch. 687.)

§5. Filing and recording certificates of in-
corporation.—Every certificate of incorporation and
amended or supplemental certificate hereafter executed,
except of a religious, cemetery, monied, municipal or fire
department corporation, 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 certi-
fied 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 certifi--

B
18 Tue GENERAL CorporaTION Law.

cate or amended or supplemental certificate shall be
filed and similarly recorded 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 corpo-
ration, 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 diréct.

All taxes required by law to be paid before or upon in-
corporation and the fees for filing and recording such cer-
tificate must be paid before filing. No corporation shall
exercise any corporate powers or privileges until such taxes
and fees have been paid.

(As am'd by Laws 1892, ch. 687.)

Former Section 3. The amendment of 1892 provides that certificates of incor-
poration, ‘‘ except of a religious, cemetery, monied, municipal or fire department
corporation ” shall be filed in the office of the Secretary of State, and a certified
copy thereof, or a duplicate original shall be filed in the office of the county clerk
of the county. The words “ or upon” are inserted in the clause requiring the pay-
ment of taxes before filing.

. 1850, ch. 140, § 1.
. 1866, ch. 697, § 1.
. 1875, ch. 606, § 9.
. 1881, ch. 468, § 2.
. 1884, ch. 252, § 1.

Rees et it

$6. Corporations of the same name prohib-
ited.—No certificate of incorporation of a proposed cor-
poration having the same name as an existing domestic
corporation, or a name so nearly resembling it as to be
calculated to deceive, shall be filed or recorded in any office
for the purpose of effecting its incorporation.

A corporation formed by the re-incorporation,re-organiza-
tion 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.

(As am’d by Laws 1892, ch. 687.)

Former Sec. 4. The words “a corporation formed by the re-incorporation, re-
organization, or consolidation of other cor ions” i
2 . : othe: porations ” are substituted for the words
a new or re-organized corporation.”
AMENDED AND SUPPLEMENTAL CERTIFICATES. io."

See Commercial Union As. Co. v. Smith, 2.N. Y. Supp., 296; 18 St.
Rep, 157. Inve U.S. Mercantile Reporting and Collecting Agency, Lim-
ted, 115 N.Y. 176. Farmers’ Loan & Trust Co.v. Farmers’, Loan &
Trust Co. of Kansas, 21 Abb. N. C., 104. Inthe Matter of The Church
of the Atonement, Hoffman Ecc. Law, 197. Employers’ Liability As-
surance Corporation v. Employers’ Liability Ins. Co., 61 Hun, 552; In
re Bank of Attica, 12 N. Y. Supp., 648; 35 St. Rep., 708. Hygeia Water
Lee Co. v. N.Y. Hygeia Ice Co. 19 N. Y. Supp., 602; 47 St. Rep. 71.

An injunction will not issue restraining the use of a corporate
name fendente lite. C ommercial Union As. Co. v. Smith, 2 N. V.Supp.,
296; 18 St. Rep., 151.

\

$7. 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 acknowledgment thereof shall
be defective, the corporators or directors of the corpora-
tion may make and file an amended certificate correcting
such informality or defect or striking out such unauthor-
ized matter ; and the certificate amended shall be deemed
to be amended accordingly 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 bea 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 proceed-
ing, or to any rights previously accrued.
20 THE GENERAL CorporaTION Law.

(As am’d by Laws 1892, ch. 687.)

Former section 5. The amendment of 1892 permits the amendment of an
amended and supplemental certificate in addition to the original if ‘‘ any informality
exist, or if any such certificate contain any matter not authorized by law,” or if the
proof or acknowledgment is defective. The supreme court may amend the certifi-
cate if it fails to express the true object and purpose of the corporation.

L. 1881, ch. 468, § 11.
L. 1870, ch. 135, §§ 1, 2.

DECISIONS UNDER L. 1870, CH. 135.

It seems that this statute is designed to enable’ companies to
remedy patent omissions which make the certificate imperfect on
its face. Jnre N. Y., Lack. & West. R. R. Co.v. N. Y., Lake Erie
& MWest. R. R. Co,25 Hun, 556. This act does not apply to the
rapid transit act. (L. 1875, ch. 606.) Jn re N.Y. Cable Ry. Co,
og N. Y., 32. (See § 126 of the Railroad Law.)

$8 Lost or destroyed certificates.—If either of
the certificates of incorporation shall be lost or destroyed
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 am’d by Laws 1892, ch. 687.)

Former section 6. The amendment of 1892 changed the title and omitted the
word ‘‘ duplicate ” from the first clause of the section.

$9. Certificate and other papers as evidence.
——The certificates of incorporation of any corporation duly
filed shall be presumptive evidence of its incorporation, and
any amended certificate or other paper duly filed relating to
the incorporation of any corporation, or its existence or
management, and containing facts required by law to be
stated therein, shall be presumptive evidence of the exist-
ence of such facts,

Former Sec. 7. The amendment of 1892 changed the title.
L. 1850, ch. 140, § 3.
L. 1875, ch. 606, § 9.
L. 1881, ch. 468, § 3.
PROHIBITION OF OTHER THAN STATUTORY POWERS. 21

Decisions UnpeEr L, 1850, Cu. 140, § 3.

It seems, that this section dispenses with the necessity in
the first instance of proof of the genuineness of the signatures or
of the authority of agents executing the articles for principals,
€ven when the incorporation is expressly denied in proceeding
to acquire lands. Ju re N. Y., Lack. & W. Ry. Co. 99 N. Y., 12.
The certificate is evidence of the filing and recording and of the
time when these acts were done. Buffalo & Pittsburgh R. R. Co.
wv, Hatch., 20 N. Y., 157, 161.

$10, Prohibition of other than statutory
powers.—No corporation shall possess or exercise any
corporate powers not expressly given by law or not neces-
sary to the exercise of the powers so given.

(As am’d by Laws 1892, ch. 687.)

Former Sec.9, The amendment of 1892, omits the words “‘in addition to the
powers herein enumerated, and those expressly given in the law under which it
is or shall be incorporated,” formerly placed at the beginning of the section. Ver-
bal changes are made in the remainder of the section. ;

1R.S.,, ch. 18, T. 3, § 3.

DECISIONS BEARING ON LR. S., Cu. 18, Tir. 3, § 3.

A railroad company cannot engage, in the manufacture of
articles, nor in a general storage or warehouse business in re-
Spect to property not designed for transportation over its road.
But it may lease its shops and warehouses to others who may
Serve both it and third persons. (7866) Opin. of Att'y Gen'l, 355.
A railroad company may maintain piers or wharves in connec-
tion with the transfer and delivery of freight. /m re NV. V C.
& H.R.R.R. Co, 77 N. Y.,248. A railroad company can not
acquire lands for speculation or sale or to prevent interference
by competing lines or methods of transportation, or in aid of
collateral enterprises remotely connected with the running or
operating of the road, although they may increase its revenue
and business. Rensselaer & Saratoga R. R. Co. v. Davis, 43 N. Y.,
137. Where a railroad company owns by consolidation, two
lines of road and can substantially accommodate the people of
the state by operating one line between the same points, and
can abandon the other line without any serious detriment toany
considerable number of people, it can not be compelled by man-
damus at the instance of the Attorney General of the state:to
operate both lines at a great sacrifice of money. People v. Rome,
22 Tue GENERAL CorPoRATION Law.

W. & O. R.R. Co., 103 N. Y., 95. Arailroad company which has
completed its road between the “rmini named in its charter or
articles forfeits its franchise by abandoning or ceasing to oper-
ate a part of the route. The remedy is by mandamus or indict-
ment, or at the election of the state by a proceeding to annul
the corporation. A specific performance cannot be enforced in
equity. People v. Albany & Vermont R. R. Co., 24 N. Y., 261.
The remedy for abandonment is considered in Afoore v. Brooklyn
City R. R. Co. 108 N. Y.,98 A corporation cannot avail itself
of the defense of w/tra vires unless it is pleaded. Griesa v. Mass.
Benefit Assn. 30 N. E., 1146 ; 44 St. Rep., 931 ; 133 N.Y. 619. A
stockholder who has assented to the acts which are witra vires
can not complain. McNab v. McNab & Harlin Mfg. Co., 62 Hun,
18; aff'd on opinion below, 133 N. Y., 687. Acts of a corporation
which are not per se illegal or malum prohibitum, but which are
ultra vires, affecting, however, only the interest of the stockhold-
ers, may be made good by the assent of the stockholders, so that
strangers to them dealing in good faith with the corporation,
will be protected in a reliance on those acts. Kent v. Quicksilver
Mining Co.,78 N. V., 159; Sheldon Hat Blocking Co. v. Eickemeyer
Hat Blocking M. Co., 90 N. Y., 607.

In general no private citizen has the power to question, by re-
sorting to legal proceedings, the action of a corporation as being
ultra vires, where he has no other interest therein, than any
other citizen. Such power was not conferred upon a citizen of
a municipality by Laws of 1881, ch. 531. Starin v. Edson, 112
N. Y., 206.

The right of two telegraph companies incorporated under the
laws of this state, to make a pooling contract, was considered in
Benedict v. Western Union Telegraph Co., 9 Abb. N. C., 214.

$11. Grant of general powers.—Every corpora-
tion as such has power, though not specified in the law
under which it is incorporated :

1. To have succession for the period specified in its
certificate of incorporation or hy law, and perpetually
when no period is specified.

2. To havea common seal, and alter the same at
pleasure,

3. To acquire by grant, gift, purchase, devise or be-
quest, to hold and to dispose of such property as the purposes
GENERAL Powers, 23

of the corporation shall require, subject to such limitations
as may be prescribed by law.

4. To appoint such officers and agents as its business
shall require, and to fix their compensation, and

5. To make by-laws, not inconsistent with any existing
law, for the management of its property, the regulation of
its affairs, and the transfer of its stock, if it has any. Such
by-laws may also fix the amount of stock, which must be
represented at -meetings of the stockholders in order to
constitute a quorum, unless otherwise provided by law.
By-laws duly adopted at a meeting of the members of the
corporation shall control the action of its directors.

No by-law regulating the election of directors or officers
shall be valid unless published for at least two weeks in a
newspaper in the.county where the election is to be held,
and at least thirty days before such election.

Subdivisions four and five of this section shall not apply
to municipal corporations.

(As am’d by Laws 1892, ch. 687.)

Former Sec. 83 The amendment of 1892 is as follows: The words “to hold”
are inserted in subdivision 3, and the clause ‘‘subject to such limitations as may
be prescribed by law” is substituted for the expression ‘‘not exceeding the
amount limited by law.’” In the fourth subdivision the word “fix” is substituted
for the words, ‘‘allow them asuitable.” That part of the fifth subdivision after the
words “transfer of its stock,” is new.

1R.S., ch. 18, T. 3, § 1.
1R.S., ch. 18, T. 4, $6.

See preceding section and cases cited.

Under the provision of the R.S. corresponding to subdivision

. 4, it was held, that the directors might select an executive com-

mittee and invest it with power to transact the business of the

company during the interval between the meetings of its board.

Such committge may delegate to one of its number power to do-
ministerial acts, such as endorsing checks payable to the cor-

poration and receiving the money thereon. Sheridan Electric

Light Co. v. Chatham National Bank, 127 N. Y., 517.

$12. Limitations of amount of property of a
non-stock corporation.—A corporation not having
capital stock may take and hold property not exceeding’ in
value three million dollars, or the yearly income derived
from which shall not exceed five hundred thousand dol-
24 Tue GENERAL CorporaTIon Law.

lars, notwithstanding the provisions of any general or
special act heretofore passed or certificate of incorpora-
tion affecting such corporation. ;

In computing the value of such property, no increase In
value arising otherwise than from improvements made
thereon shall be taken into account.

(Added by Laws 1892, ch. 687.)
L. 1890, ch. 497.

$13. Acquisition of additional real property.—
When any corporation shall have sold or conveyed any
part of its real property, the supreme court may, not-
withstanding any restriction of a general or special law,
authorize it to purchase and hold from time to time other
real property, upon satisfactory proof that the value of the
property so purchased does not exceed the value of the
property so sold and conveyed within the three years next
preceding the application.

(As am’d by Laws 1892, ch. 687.)

Former Sec. ro. By the amendment of 1892 the words “‘ real property ” are sub-
stituted for the words ‘‘real estate ’ and ‘‘iands” wherever occurring in the sec-
tion, and the words ‘notwithstanding any restriction of a general or special
law ” are inserted.

L. 1882, ch, 290.

$14. Acquisition of property in other states.—
Any domestic corporation transacting business in other
states or foreign countries may acquire and dispose of such
property as shall be requisite for such corporation in the
convenient transaction of its business.

(As am’d by Laws 1892, ch. 687.)

Former Sec. 11. By the amendment of 1892 the words ‘‘dispose of” are sub-
stituted for the word ‘‘ convey” and the word ‘‘ property” is substituted for the
words ‘‘ real property therein and such personal property.”

L.-1872, ch. 146.

§ 15.—Certificate of authority of a foreign cor-
poration.—No foreign stock corporation other than a
monied corporation, shall do business in this state without
having first procured from the secretary of state a certifi-
cate that it has complied with all the requirements of law
‘ ‘ll
ForEIGN CORPORATIONS. 25

to authorize it to do business in this state, and that the
business of the corporation to be carried on in this state is
such as may be lawfully carried on by a corporation in-
corporated under the laws of this state for such or similar
business, or, if more than one kind of business, by two or
more corporations so incorporated for such kinds of busi-
ness respectively. The secretary of state shall deliver such
certificate to every such corporation so complying with
the requirements of law. No such corporation now doing
business in this state-shall do business herein after De-
cember 31, 1892, without having procured such certificate
from the secretary of state, but any lawful contract previ-
ously made by the corporation may be performed and en-
forced within the state subsequent to such date. No
foreign stock corporation doing business in this state with-
out such certificate shall maintain any action in this state |
upon any contract made by it in this state until it shall
have procured such certificate.
(Added by L. 1892, ch. 687.)

.There is no reason for a domestic policy that should exclude
from recognition by our courts foreign corporations generally.
‘When foreign corporations come in our state to do business they
must conform to our laws relating to foreign corporations and
comply with the terms laid down by us as conditions of allow-
ing them to transact business here. The” policy of the state
may exclude them, and that policy may be clearly established
by a reference to the general legislation of a state. There is
none such in the laws of this state. Ifin any particular case it
is thought by those interested in the matter that the business
can be done in our own state and by our own citizens with
greater facility ‘under the form of a foreign corporation than
under that of a domestic one, there is no public policy which
forbids its transaction under that form.

The supervision of a foreign corporation by this state may
easily be exercised by imposing terms as a condition of permit-
ting it to do business here. The absence of any such terms in
our legislation forms no reason for refusing to recognize the
corporation. The power rests with the legislature to say
whether any, andif so what terms shall be imposed upon such
corporations as a condition of granting them permission to do |
business here. Those terms can only be imposed by the legis-
lature. It can only be claimed that we may go behind the cer-
26 Tue GENERAL CorpoRATION Law.

tificate of incorporation or charter of a foreign corporation for
the purpose of inquiring under what circumstances and for
what purpose outside of the charter it was incorporated, on the
ground that the charter was obtained in fraud or evasion of the
laws of the state which granted it or for the purpose of evading the
provisions of our own laws. Demarest v. Flack, 128 N. ¥., 205.
But see, where the incorporation under the laws of another
state was claimed to be for the purpose of evading the tax laws.
of the state where the incorporators resided and to avoid per-
sonal responsibility. Montgomery v. Forbes, 148 Mass., 249.

A corporation formed by the consolidation of a domestic and
foreign corporation is a domestic corporation. Peo. ex rel Sage
v. LS. & M.S. R.R. Co. 70 N. Y. 220; People v. N. Y., Ch. & St.
L. R. R. Co., 129 N.Y. 474.

$16. Proofto be filed before granting certifi-
cate.—Before granting such certificate the secretary of
state shall require every such foreign corporation to file in
his office a sworn copy of its charter or certificate of in-
corporation, and a statement under its corporate seal, par-
ticularly setting forth the business or objects of the cor-
poration which it is engaged in carrying on, or which it
proposes to carry on, within the state, and a place within
the state which is to be its principal place of business, and
designating, in the manner prescribed in the Code of
Civil Procedure, a person upon whom process against the
corporation may be served within the state.

The person so designated must have an office or place of
business at the place where such corporation is to have its
principal place of business within the state. Such desig-
nation shall continue in force until revoked by an instru-
ment in writing designating in like manner some other
person upon whom process against the corporation may be
served in this state.

If the person so designated dies, or removes from the
place where the corporation has its principal place of busi-
ness within the state, and the corporation does not within
thirty days after such death or removal, designate in like
manner another person upon whom process against it may
be served within the state, the secretary of state may re-
voke the authority of the corporation to do business with-
FoREIGN CoRPORATIONS. ; 27

in the state, and process against the corporation in an
action upon any liability incurred within this state before
such revocation may, after such death or removal and be-
fore another designation is made, be served upon the sec- '
retary of state, At the time of such service the plaintiff
shall pay to the secretary of state two dollars, to be in-
cluded in his taxable costs and disbusements, and the sec-
retaty of state shall forthwith mail a copy of such notice
to such corporation, if its address or the address of any
officer thereof is known to him.

(Added by Laws 1892, ch. 687.)

§ 17. Acquisition of real property in this state
by certain foreign corporations.—Any foreign cor-.
poration created under the laws of the United States, or
of any state or territory thereof, and doing business in this.
state, may acquire such real property in this state as may
be necessary for its corporate purposes in the transaction of
its business in this state, and convey the same by deed or
otherwise in the same manner as a domestic corporation.

(As am’d by Laws 1892, ch. 687.)

Former sec. 12. By the amendment of 1892, the words ‘‘ created under the
laws of the United States or of any state or territory thereof” are inserted.

L. 1887, ch. 450.

$18. Acquisition by foreign corporations of
real property in this state upon judicial sales.
—Any foreign corporation may purchase at a sale upon
_ the foreclosure of any mortgage held by it, or upon any
judgment or decree for debts due it, or upon any settle-
ment to secure such debts, any real property within this.
state covered by or subject to such mortgage, judgment,
decree or settlement, and hold the same for not exceeding
five years from the date of such purchase, and convey it
by deed or otherwise, in the same manner as a domestic
corporation.

(As am’d by Laws 1892, ch. 687.)

Former sec. 13. By the amendment of 1892, the words “real property” are
substituted for the words ‘‘ lands lying.”

L. 1877, ch. 158.

~
28 Tue GENERAL CorporaTION Law.

§ 19. Prohibition of banking powers,—Nocorpora-
tion except a corporation formed under or subject to the
banking laws, shall by any implication or construction be
deemed to possess the power of carrying on the business of
discounting bills, notes or other evidences of debt, of re-
ceiving deposits, of buying gold or silver bullion or foreign
coins, or buying and selling bills of exchange, or shall issue
bills, notes or other evidences of debt for circulation as
money.

(As am’d by Laws 1892, ch. 687.)

Former sec. 14. The amendment of 1892, limits the exception to corporations
formed under or subject to the banking laws.

1R.S., ch. 18, T. 3,. § 4.

$20. Qualification of members as voters.—At
every election of directors and meeting of the members of
any corporation, every member who is notin default in
the payment of his subscriptions upon his stock or dis-
qualified by the by-laws, shall be entitled to one vote, if a
non-stock corporation, and, if a stock corporation, to one
vote for every share of stock held by him for ten days
immediately preceding the election or meeting.

Every pledgor of stock standing in his name on the
books of the corporation shall be deemed the owner thereof
for the purposes of this section.

The certificate of incorporation of any stock corporation
may provide that at all elections of directors of such corpo-
ration, each stockholder shall be entitled to as many votes
as shall equal the number of his shares of stock multiplied
by the number of directors to be elected, and that he may
cast all of such votes for a single director or may distribute
them among the number to be voted for, or any two or
more of them as he may see fit, which right, when exer-
cised, shall be termed cumulative voting. The stockholders
of a corporation heretofore formed, who, by the provisions
of laws existing on April 30, 1891, were entitled to the
exercise of such right, may hereafter exercise such right
according to the provisions of this section.

No person shall vote or issue a proxy to vote at any
meeting. of the stockholders or bondholders, or both, of a
QUALIFICATION OF MEMBERS AS VOTERS. 29

stock corporation, upon any stock or bonds which have
not been owned by him for at least ten days next preced-
ing such meeting, notwithstanding such stock or bonds
may stand in his name on the books of the corporation.

No member of a corporation shall sell his vote or issue
a proxy to vote to any person for any sum of money or
anything of value.

The books and papers containing the record of member-
ship of the corporation shall be produced at any meeting
of its members upon the request of any member. If the right
to vote at any such meeting shall be challenged, the in-
spectors of election, or other persons presiding thereat,
shall require such books, if they can be had, to be produced
as evidence of the right of the person challenged to vote
at such meeting, and all persons who may appear from
such books to be members of the corporation may vote at
such meeting in person or by proxy, subject to the pro-
visions of this chapter.

‘

(As am’d by Laws 1892, ch. 687.)

Former sec. 54 0f Stock Corporation Law, in part. The amendment of 1892 con
sists in the insertion of the words “ or disqualified by the by-laws” in the first sen-
tence of the section. To entitle the stockholder to vote, he must have_ held the
stock for ‘‘ten days” instead of ‘‘ thirty.” The provision permitting the pledgor
to vote, and the provision for cumulative voting are new. The provision formerly
forbidding voting upon any stock or bonds which are notin his possession or
under his control is omitted.

L. 1850, ch. 140, § 5.

L. 1880, ch. 510, § 2.

L. 1875, ch. 611, § 26.
1R.S.,, ch. 18, T. 4, § 6.
L. 1881, ch. 468, § 10.

DEcISION UNDER L, 1850, CH. 140, § 5.

See Zn re Newcomb, 18 N. Y. Supp., 16; 42 St. Rep., 442.

DECISION UNDER L. 1880, Cu. 510, § 2.

The sale of an option ‘reserving the right to vote does not de-
prive the stockholder of the right to vote. The stock is still in
his possession or control. /a re Newcomb,18 N. Y. Supp., 16; 42 St.

Rep., 442.

~
30 Tue GENERAL CorporaTion Law.

$21. Proxies.—Every member of a corporation ex-
cept a religious corporation, entitled to vote at any meet-
ing thereof may so vote by proxy. ;

No officer, clerk, teller or book-keeper of a corporation
formed under or subject to the banking law shall act as
proxy for any stockholder at any meeting of any such cor-
poration.

Every proxy must be executed in writing by the mem-
ber himself, or by his duly authorized attorney. No proxy
hereafter made shall be valid after the expiration of eleven
months from the date of its execution unless the member
executing it shall have specified therein the length of time
it is to continue in force, which shall be for some limited
period. Every proxy shall be revocable at the pleasure of
the person executing it; buta corporation having no capi-
tal stock may prescribe in its by-laws the persons who may
act as proxies for members, and the length of time for
which proxies may be executed.

(As am’d by Laws 1892, ch. 687.)

Former section 54 of Stock Corporation Law, in part. The amendment of 1892
adds the provision relating to corporations formed under the banking Jaw, and
permits the execution of a proxy by a ‘duly authorized attorney” of the stock-
holder.

Proxies which referred to the election as “a new election of
directors” were held sufficient, although they merely stated the
year and month in which it was to be held, the day not having
been determined when they were signed. Jn re. U. S. Cremation

Co. 18 N. Y. Supp., 905 ; 46 St. Rep., 135.

§ 22, Challenges,—Every member of a corporation
offering to vote at any election or meeting of the corpo-
ration shall, if required by an inspector of election or other
officer presiding at such election or meeting, or by any
other member present, take and subscribe the following
oath : “I do solemnly swear that in voting at this election
I have not, either directly, indirectly or impliedly, re-
ceived any promise or any sum of money, or anything of
value to influence the giving of my vote or votes at this
meeting or asa consideration therefor.”

If it is a stock corporation, the oath so taken and sub-
scribed shall contain the following additional provision :
CHALLENGES—FaILureE To Execr Directors. er

“That I have not sold or otherwise disposed of my in-
terest in or title to any shares of stock or bonds in respect
to which I offer to vote at this election, but that all such
shares or bonds are still owned by me.”

Any person offering to vote as proxy for any other per-
son shall present his proxy and, if so required, take and
subscribe the following oath :

‘‘I do solemnly swear that I have not, either directly,
indirectly or impliedly, given any promise or any sum of
money or anything of value to induce the giving of a proxy
to me to vote at this election, or received any promise or
any sum of money or anything of value to influence the
giving of my vote at this meeting, or as a consideration
therefor.”

If a stock corporation, the oath so taken and subscribed
shall contain the following additional provision:

‘‘ And that the title to the stocks and bonds upon which
I now offer to vote is, to the best of my knowledge and
belief, truly and in good faith vested in the persons in
whose names they now stand.”

The inspectors or persons presiding at the election may
administer such oath, and all such oaths and proxies shall
be filed in the office of the corporation.

(As am’d by Laws 1892, ch. 687.)

Former section 54 of Stock Corporation’Law, in part. The amendment of 1892
‘changed the form of an oath of a stockholder by omitting the provision that the
“shares and bonds are still in my possession or subject to my control,” and also the
form of oath for a person offering to vote as proxy by omitting the words ‘‘and that
such person still retains control of the same,” and adds to that oath the provision
that the person has not ‘‘ received any promise,” &c.

§ 23. Effect of failure to elect directors.—If the,
directors shall not be elected on the day designated in the
by-laws, or by law, the corporation shall not for that reason
be dissolved ; but every director shall continue to hold his
office and discharge his duties until his successor has been
elected.

(As am’d by Laws 1892, ch. 687.)
Former Sec. 18. The amendment of 1892 omits the words ‘‘but the election
may be held on any other day when a meeting for that purpose may be called pur+
suant to the provisions of this chapter.”

1 R.S., ch. 18, T. 4, § 8.
92 THe GENERAL Corporation Law.

Decisions UNDER 1 R. S., Cu. 18, T. 4, $8.

A company having been organized under the General R. R.
Act, the directors first chosen failed to adopt by-laws prescribing
the times and places of choosing directors, held, that the election
should have been held upon the recurrence of the day on
which the first election was held, if that be a legal day ; also held,
that the election not being had within sixty days after it should
have been had, this statute regulation as to the persons entitled
to vote, was nevertheless binding upon the stockholders and
should determine their right to vote. Vandenburgh v. Broadway
Underground Connecting Ry. Co., 29 Hun, 348.

Decisions UnpER 1 R.S., Cu. 18, T. 4, § 6.

If the articles of incorporation or the by-laws do not provide
as to the manner of voting at stockholders’ meetings the
voting is governed by this section, by which each stockholder
is entitled to vote on each share of stock held by him. Jz re
Rochester District Telegraph Co., go Hun, 172, Where the charter
of an incorporated company declared that the election of
directors should be conducted in the manner prescribed by the
by-laws and the by-laws fix a time and place and require a no-
tice of the same to be given, but omit to specify the length of
notice and mode of giving it, notice must be given for the time
and in the manner prescribed in this section. Jn re Long Island
R.R. Co., 19 Wend. 37. Directors can not vote at a meeting of
the board by proxy. Craig Medicine Co. v. Merchants’ Bank, 59
Hun, 561. See In re Mohawk & Hudson R. R. Co., 19 Wend., 135.

Directors holding over until their successors are appointed
are directors de jure and if they act, de facto. Beardsley v. Johns-
son, 121 N. Y., 224; Reed v. Keese, 60 Mv. Y., 626 ; Deming v-
Puleston, 55 N. Y., 655 ; Phila. & Read. C. & I. Co. v. Hotchkiss,
$2 N.Y, 471.

See Ward v. Sea Ins. Co., 7 Paige Ch., 294.

Under the provision of the manufacturing act that acts of
directors shall be valid and binding as against such company
until their successors shall be elected, it was held, that directors
were not bound to hold over unless they chose to do so. Van
Emburgh v. Baker, 81 N. Y., 46.

See People ex rel. Miller v. Cummings, 72 N. Y., 433.
SPEcIAL ELEcTiIons OF DIRECTORS. 33

§ 24. Mode of calling special election of direct-
ors.—lIf the election has not been held on the day so des-
ignated, the directors shall forthwith call a meeting of the
members of the corporation for the purpose of electing di-
rectors, of which meeting notice shall be given in the same
manner as of the annual meeting for the election of di-
rectors. en

If such meeting shall not be so 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 pur-
pose 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 publication of notice
of the annual meeting, and by serving upon each member,
either personally or by mail, directed to him at his last
known post-office address, a copy of such notice at least
twe weeks before the meeting.

(As am’d by Laws 1892, ch. 687.)

Former secs. 53 and 55 of Stock Corporation Law, in part. By the amendment of
1892, the provision that the directors shall calla meeting ‘‘within sixty days im-
mediately thereafter” is changed to ‘‘ forthwith,” and if such meeting is not called
within one month, any stockholder may call such meeting by giving the notice
specified in the amended section. By the tormer sec, 55 of the Stock Corporation Law,
only those having the right to vote on the day the election should have been held,
could participate in the election called by the directors.

§ 25. Mode of conducting special elections of
directors.—Such meeting shall be -held at the office of
the corporation, or if it has none, at the place in this state
where its principal business has been transacted, or if access
to such office or place is denied or can not be had, at some
other place in the city, village or town where such office or
place is or was located.

At such meeting the members attending shall constitute
a quorum. They may elect inspectors of elections and di-
rectors and adopt by-laws providing for future annual meet-
ings and election of directors, if the corporation has no
such by-laws, and transact any other business which may

Cc
34 THE GENERAL Corporation Law.

be transacted at an annual meeting of the members of the
corporation.
(As am’d by Laws 1892, ch. 687.)

Former sec. 53, of Stock Corporation Law, in part. The amendment of 1892
added the words, ‘‘or cannot be had.”

$26. Qualification of voters and canvass of votes
at special elections.—In the absence at such meeting
of the books of the corporation showing who are members
thereof, each person, before voting, shall present his sworn
statement setting forth that he is a member of the corpora-
tion; and if a stock corporation, the number of shares of
stock owned by him and standing in his name on the
books of the corporation, and, if known to him, the whole
number of shares of stock of the corporation outstanding.
On filing such statement, he may vote as a member of the
corporation ; and if a stock corporation, he may vote on
the shares of stock appearing in such’ statement to be
owned by him and standing in his name on the books of
the corporation.

The inspectors shall return and file such statements, with
a certificate of the result of the election, verified by them,
in the office of the clerk of the county in which such
election is held, and the persons so elected shall be the di-
rectors of the corporation,

(As am’d by Laws 1892, ch. 687.)
Former sec. 53 of Stock Corporation Law, in part. The amendment of 1892

omitted the words “at the time when the election should have been held” occur-
ting after the word ‘‘outstanding.”

§ 27. Powers of supreme court respecting elec-
tions. The supreme court shall, upon the application of
any person or corporation aggrieved by or complaining of
any election of any corporation, or any proceeding, act or
matter touching the same, upon notice thereof to the ad-
verse party, or to those to be affected thereby, forthwith
and in a summary way, hear the affidavits, proofs and al-
legations of the parties, or otherwise inquire into the mat-
ters or causes of complaint, and establish the election or
order a new election, or make such order and give such re-
lief as right and justice may require.

(As am’d by Laws 1892, ch. 687.)
,

Powers or SupREME Court RESPECTING ELECTIONS. 35

Former sec. 15. The amendment of 1892 omitted the words “and may in its
discretion order issues to be made up in such a manner and form as it may direct
to try the respective rights of the parties touching the matters complained of.”

1R.S., ch. 18, T. 4, 85.

Decisions Unper 1 R.S., Cu. 18, T. 4, § 5.
See Code of Civil Procedure, § § 1948-1956.

The corporation must be a party and is entitled to notice of
the proceedings. Jn re Pioneer Paper Co., 36 How., 102. Proof
may be oral or by affidavit. Jd, rog. In re Simonson, 27 Abb. N.
C., 422. The court may go behind the entries in the transfer
books to determine whether a transfer appearing thereon was a
sale or a pledge. Jn re Strong v. Smith, 15 Hun, 222; aff'd 80 N.
Y., 637. Only some person whose rights have been infringed,
and who is justly entitled to complain, may institute the pro-
ceedings. Quere: Whether in order to compel an election, an
illegal election must be complained of and set aside. Jn re
Syracuse, Chenango and N. VY. R. R. Co., 91 N. ¥., 7. This method
of testing the legality of anelection and that under the Code,
brought by the Attorney General, are exclusive of all other
methods. Hudson River West Shore R. R. Co. v. Hay, 14 Abb. N. S.,
zor. The provision requiring notice “to the adverse party or to
those who are to be affected ” does not render it necessary that
all the stockholders should be notified. The notice is sufficient
if given to the persons who claim to be elected and the corpora-
tion. Schoharie Valley R. R. Case, 12 Abb. N. S., 394. All the per-
sons complaining should be named and the irregularities com-
plained of set out. Parties having notice of an election are not
entitled to absent themselves and then appeal tothe court on a
mere formal defect, which would have been corrected on sug-
gestion. Jn re Mohawk & Hudson R. R. Co., 19 Wend., 135. It
seems, that application under this section should be made
either by one of the stockholders or any person aggrieved. The
trustees as a body can not by vote of a majority direct the insti-
tution of such a proceeding. The objections upon which the
proceedings are instituted should be taken at the time of the
election. Jn re Lighthall Manufacturing Co., 47 Hun, 258. In case
votes, erroneously rejected by the inspectors, would, if received,
have elected a certain ticket, the’only remedy is to set aside the
election ; the court has no power to declare such ticket elected.
In re Long Island R. R. Co. 19 Wend., 37. People ex rel. Putzel v.
Simonson, 61 Hun, 338. But in case a ticket is elected by votes
36 THE GENERAL CorporaTION Law.

erroneously received, the court has power to set aside the elec-
tion of such ticket and to declare elected the ticket which
would have been elected but for the votes so received. /m the
matter of Desdoity, 1 Wend. 98; Vandenburgh v. Broadway Under-
ground Connecting Ry. Co., 29 Hun, 348. Upon petition by persons
voting for only seven directors, held, that the ticket was not
void because it did not contain thirteen names. That no stock-
holder was bound to vote for any larger number of persons than
he chose. That any number of persons who might receive a
majority of the lawful votes were elected, although there was a
failure to elect the full number required bylaw. Vandenburgh v.
Broadway Underground Connecting Ry. Co., 29 Hun, 348. The re-
fusal of a sufficient number of votes. of the holders of proxies,
which referred to the election as ‘‘a new election of directors,”
although they merely stated the year and month when it was to
be held, the day not having been determined when they were
signed, is ground for setting aside the election and ordering a
new one. /ure U.S. Cremation Co. 18 N. VY. Supp., 905; 46 St.

Rep., 135.

§ 28. Stay of proceedings in actions collusively
brought.—lIf an action is brought against a corporation
by the procurement or default of its directors, or any of
them, to enforce any claim or obligation declared void by
law, or to which the corporation has a valid defense, and
such action is in the interest or for the benefit of any di-
rector, and the corporation has by his connivance made
default in such action, or consented to the validity of such
claim or obligation, any member of the corporation may
apply to the supreme court, upon affidavit, setting forth
the facts for a stay of proceedings in such action, and on
proof of the facts in such further manner and upon such
notice as the court may direct, it may stay such proceedings
or set aside and vacate the same, or grant such other relief
as may seem proper, and which will not injuriously affect
an innocent party, who, without notice of such wrong-
doing and for a valuable consideration, has acquired rights
under such proceedings.

(As am’d by Laws 1892, ch. 687.)

Former sec. 16. The words “or default” were inserted by the amendment of
1892.
L, 1885, ch. 489, § 2.
i

Quorum or Drrectors—Directors on DIssoLUTION. 37

._ $29. Quorum of directors and powers of ma-
Jority.—T he affairs of every corporation shall be managed
by its board of directors, at least two of whom shall be resi-
dents of this state. Unless otherwise provided by law a
majority of the board of directors of a corporation at a
meeting duly assembled shall be necessary to constitute a
quorum for the transaction of business, and the act of.a
majority of the directors present at a meeting at which a
quorum Is present shail be the act of the board of directors.
Subject to the by-laws, if any, adopted by the members of
a corporation, the directors may make necessary by-laws of
the corporation.

(As am’d by Laws 1892, ch. 687.)

Former sec. 17, The provision that ‘‘two of the directors shall be resideats of
‘this state” is added by the amendment or 1892. Also’ the provision that the di-
‘rectors may make by-laws. The former section declared that the act of the
majority “shall be valid as a corporate act.” The present section provides that
“*the act of a majority of the directors present at a meeting at which a quorum is
present shall be the act of the board of directors.”

1R.S., ch. 18, T. 3, § 6.

§ 30. Directors as trustees in case of dissolu-
tion.—Upon the dissolution of any corporation its direct-
ors, unless other persons shall be appointed by the legis-
lature, or by some court .of competent jurisdiction, shall
be the trustees of its creditors, stockholders or members,
and shall have full power to settle its affairs, collect and
pay outstanding debts, and divide among the persons en-
titled thereto the money and other property remaining
after payment of debts and necessary expenses.

Such trustees shall have authority to sue for and re-
cover the debts and property of the corporation, by their
name as such trustees, and shall jointly and severally be
personally liable to its creditors, stockholders or members,
to the extent of its property and effects that shall com
into their hands.

1R.58., ch. 18, T. 3, §§9, 10.

Where a corporation is dissolved by statute its trustees then
in office become vested with the title to its property under these
provisions as trustees for creditors and stockholders. People v.
O’Brien, 171 N.Y... Upon the expiration of the charter of a
38 Tue GENERAL CorporaTION Law.

plank road company, land purchased by it in fee for the road,
vests in the directors, as trustees for the creditors and stock-
holders. People ex rel. Clauson v. Newburgh, &c., Plank Road Co.,
86 N.Y, 1. See Central City Savings Bank v. Walker, 66 N. Y.,

424.
$31. Forfeiture for non-user.

Not applicable to railroads.

§ 32. Extension of corporate existence.—Any
domestic corporation at any time within three years before
the expiration thereof, may extend the term of its exist-
ence beyond the time specified in its original certificate of
incorporation, or by law, or in any certificate of extension
of corporate existence, by the consent of the stockholders
owning two-thirds in amount of its capital stock, if not a
stock corporation, by the consent of two-thirds of its mem-
bers, in and by a certificate signed and acknowledged by
them and filed in the offices in which the original certif-
cates of its incorporation were filed, if at all, and, if not,
then in the offices where certificates of incorporation are
now required by law to be filed, and the officers with
whom the same may be filed shall thereupon record them
in the books kept in their respective offices for the record
of such certificates, and make a memorandum of such
record in the margin of the original certificate in such
book, if any, and thereupon the time of existence of such
corporation shall be extended, as designated in such cer-
tificate, for a term not exceeding the term for which it
was incorporated in the first instance. If the term of ex-
istence of any domestic corporation shall have ex-
pired and it shall be made satisfactorily to appear to the
supreme court that such corporation was legally organ-
ized pursuant to any law of this state, and that through
mistake it shall have issued its bonds payable at a date be-
yond the date fixed in its charter or certificate of incor-
poration for the expiration of its corporate existence, and
such bonds shall be unmatured and unpaid, the supreme
court may, upon the application of any person interested
and upon such notice to such other parties as the court
may require, by order, authorize the filing and recording
i

EXTENSION OF CORPORATE EXISTENCE. 39

' of a certificate reviving the existence of such corporation,
upon such conditions and with such’limitations as such or-
der shall specify, and extending such corporate existence
fora term not exceeding the term for which it was origi-
nally incorporated. Upon filing and recording such certifi-
cate in the same manner as certificates of extension of cor-
porate existence duly issued before the expiration of the
existence of a domestic. corporation is authorized by law
to be filéd and recorded, such corporate existence shall be
revived and extended in pursuance of the terms of such
order, but such revival and extension shall not affect any
litigation commenced after such expiration and pending at
the time of such revival.

If a corporation formed under or subject to the banking
law, such certificate shall not be filed or recorded unless it
shall have endorsed thereon the written approval of the
superintendent of banks; or, if an insurance corporation,
unless it shall have endorsed thereon the written approval
of the superintendent of insurance ; and, if a turnpike or
bridge corporation, it shall not be filed unless it shall have
indorsed thereon or annexed thereto a certified copy of a
resolution of the board of supervisors of each county in
which such turnpike or bridge is located, approving of and
authorizing such extension.

Every corporation extending its corporate existence un-
der this chapter or under any general law of the state shall
thereafter be subject tothe provisions of this chapter and
of such general law, notwithstanding any special provisions
in its charter, and shall thereafter be deemed to be incor-
porated under the general laws of the state relating to the
incorporation of a corporation for the purpose of carrying
on the business in which it is engaged, and shall be subject
to the provisions of such laws.

(As am’d by Laws 1892, ch. 687.)

Former sec. 22. All the latter part of the section beginning with the word's
*«Tf the term of existence of any domestic corporation shall have expired, and it
shall be made satisfactorily to appear to the supreme court,” is new.

L. 1866, ch. 697, § 5.

L. 1867, ch. 937.
See 1 R. 5S, 156, § § 2—5.
40 THE GENERAL CorporaTION Law.

As to the effect of extension of corporate existence upon
the title to lands taken by eminent domain for the use of a cor-
poration, see Beal v. N. V.C. & H.R. RR. Co, gr Hun, 172, aff'd
119 NV. Y., 635. As to the application of a former act, using the
expression “existing corporations,” see, People ex rel. Clauson v:
Newburgh & S. Plank Road Co., 86 N. Y., 7.

§$ 33. Conflicting corporate laws.—lIf in any cor-
porate law there is or shall be any provision in conflict
with any provisions of this chapter or of the Stock Corpo-
ration Law, the provisions so conflicting shall prevail, and
the provision of this chapter or of the Stock Corporation
Law with which it conflicts shall not apply in such a case.
If in any such law there is or shall be a provision relating
to a matter embraced in this chapter or in the Stock Corpo-
ration Law, but not in conflict with it, such provision in
such other law shall be deemed to be in addition to the
provision in this chapter or in the Stock Corporation Law
relating to the same subject-matter, and both provisions
shall, in such case, be applicable.

New. (Added by Laws 1892, ch. 687.)

$ 34. Laws repealed.—Of the laws enumerated in the
schedule hereto annexed, that portion specified in the last
column is repealed. Such repeal shall not revive a law re-
pealed by any law hereby repealed, but shall include all
!aws amendatory of the laws hereby repealed.

Former sec. 23.

See Statutory Construction Law.

$35. Saving clause.—The repeal of a law or any
part of it specified in the annexed schedule shall not affect
or impair any act done, or right accruing, accrued or ac-
quired, or liability, penalty, forfeiture or punishment. in-
curred prior to May 1, 1891, under or by virtue of any law
so repealed, but the same may be asserted, enforced, prose-
cuted or inflicted, as fully and to the same extent as if such
law had not been repealed. All actions and proceedings,
civil or criminal, commenced under or by virtue of the
laws so repealed, and pending on April 30, 1891, may be
Laws REPEALED—CONSTRUCTION. 4I

prosecuted and defended to final effect in the same manner
as they might under the laws then existing, unless it shall
be otherwise specially provided by law.

Former sec. 24.

§$ 36. Construction.—The provisions of this chapter,
and of the Stock Corporation Law, the Railroad Law, the
‘Transportation Corporations Law, and the Business Corpora-
tions Law, so far as they are substantially the same as those
of laws existing on April 30, 1891, shall be construed as a
continuation of such laws modified or amended according
to the language employed in this chapter, or in the Stock
Corporation Law, the Railroad Law,the Transportation Cor-
porations Law, or the Business Corporations Law, and not as
new enactments.

References in laws not repealed to provisions of laws in-
corporated jnto the general laws hereinbefore enumerated
and repealed, shall be construed as applying to the pro-
visions so incorporated.

Nothing in this chapter or in the other general laws

hereinbefore specified shall be construed to amend or re-
peal any provision of the Criminal or Penal Code or to
impair any right or liability which any existing corporation,
its officers, directors, stockholders or creditors may have or
be subject to or which any such corporation, other than a
railroad corporation, had or was subject to on April 30, 1891,
by virtue of any special act of the legislature creating such
corporation or creating or defining any such right or lia-
bility,.unless such special act is repealed by this chapter.

(As am'd by Laws 1892, ch. 687.)

The last part of the section beginning with the words, ‘‘ or to impair any right or
liability” is new.
See Statutory Construction Law.
$37. Law revived.

Not applicable to railroads.
42 THE GENERAL CorporaTIon Law,

SCHEDULE OF Laws REPEALED.

 

 

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TOG Big oe ae tsar ens 372s ee eee en All. || 186r.... 0.2... TAQ td devices All
PS 53 scteey. oy wisi IG Bhar ater Geuaca aes AMD || $862, geese s LI OGrcrgeie aise All
SCHEDULE OF Laws REPEALED. 43

 

 

- LAWS OF Chapter Sections || LAWS OF Chapter Sections
1861........, QR ee Wedaina seas All. | 1869......... ODF: bs wianmeies All.
186r.....0.., 2 Bineda te wide ate All. || 1870......... T2Av wie dee we All
1862........,. BOB ors she cries aha All. |) 1870......... 135) co aueh es All.
1802) 60.224, BAS es as ee ke All. || 1870......... BOD a Sai waa biases All
1862........, Ae Dice eed ay All. || 1870........ BAB sceiv amare ae All
18602. cee: ABS vac cassie All. | 1870......... BOS cei wiineeers All
1862......... HA Qi so ce sce All. |} 1870......... PTS dat stents Ghote All.
1862......... BET Discos bis essai All. || 1871......... OF ace esieiwe sis All
186033 eee bees OB et sehen All. || 1871......... AST cxedeedees All
F863 occ ecs cin DRACO deride All Wt 899 ses gates BBG esepoicdslacened All
£803 oc caress 340 is ews wy srs All. || 1871......... BOO ica betel Genes All
1864......... SU ed es apeind All. | 1871......... O67 viaccess All
T8645 sew ises 4 BS Tes ieee AML fl £892 occ cees 666 wei gpg es All
1864......... BLT iecan consis we All. ] 1872r......... OOF oie eis arerers All
1864......... BO 2 raw Sase aes AML D897 ceca ee ee 883 ccew wes es All
1865 sous eee BSA ope acd ccna ergs 0s All. | 1872......... eee Al.
$865 eee wee BAO cae es All. | 1872......... B28 apse soaien oe All
P8663 sscress 307 a eee warden All. |] 1872......... LG slo-aceicc picts All
1865......... OO esis ie catenins All. |] 1872......... BAS ca Lacthevteis All
1865......... FOO 6 wiscatveteace All. | 1872......... 2818 eucen wage es All
1866......... PRs ais Stee All. | 1872......... 280s yea een All
1866......... 250 iss seme en Alls. || 187250 o8eea2% BUA ceed sie siete All
1866 25 eaergas B22 ei Seseae wats All. || 1872......... A260 os deeds All
1866 s3s ses aee RUD ane ben vacnies AD, P87 85a satiane ates 09693 abu ke eee All
1866......... GF aces ieee ade Me AM. |} 1872 0. we sae OTT sce eee ae All
1866 33. siea ee FS Oia ase ie seca All. || 1872......... 910 sscorvas eins All
1866......... TOO 6 ated ows wie All. || 1872......... 980 bas Hewat ee All.
1866......... B38 oa ahs oie ete All. |} 1872... ....820.. All except 20.
1809 sescce ns y E2 vs endeuaens All |} 1872......... $20 seed fe dears All.
TSOF ois suerecenn AO ss iheahs ee ty Alle 2B 72) oe iieeine.s SAS cases wax oe All
1867........ BAB sociis ieee: 8 All. || 1873......... TS Ue shecrseonre tes oe All
1867........ BAR ors Wiaceeee AML, |) 9893 oi:6 9 iceee PRD sc -catatdader bi dos All
P8095 si wee oe AL ocean cee oe All. |] 1873......... ABB 2d :c a kiial eodshee AlL.
18607 a-aeas wees AB Oise snieatne oo All: || 1873.4 swan ose MAO o5 cial oe fuses All
1867 esc seas & SOQ: sce eee s All. |} 1873 .0200005% 409 ons ecw rene All.
BBG aig osce dns ie PG adhd etka wou All. || 1873......... 616 cxkee dase All
TSOP weal ce eiews 906 wisiciedla ea AUD | P87 Zee cae PEO scl ik oR aie bas AlL.
BS OF oceans 037 cee oteeeis All. |] 1873......... FBG scsi iecbse ance All
1807 ce sewivs 6 900. cee cies ee AMM, |] 1893 pce cee aes BLA hosted hacen All
18672 wesw ies O74w sew nace ge All |) 1894 swe ae bee FO apse seanecocs All
1868........ 253 bes dow xe Alls || 189483 <apweaee DAS cls ace wasn All
1868....... BQO wisrscca eens All. |} 1874......... es eee All
1868........ 57 sce wae All. || T8974. i ecec as QAO va weiss All
1868......... OL gas weretveg ia All. || 1874......... 288 siaiinein All
TSO v2 ~ see. 6 2B Avocet diteteh ates All. |] 1874......... FIC oe eieeeataneis All
1869........- BBD sss asarpelee All. || 1875......... Bes seca All.
1869.......+. G05 ve cease es Alle 18952005464. 5 Oa se sheet All
1869........- FOG in: ete airs 8 Alls || 1875 c¢ sae ae B8eceee be wes All
1869......... BAA és: sis secaeln ee 38 All. | 1875......... TOS. sau sees All.
44
LAWS OF Chapter Sections
TOF Giscsaer tenia TE See ciaiels guelecets All
TS 7G ste. ae ewe TlQs aves e wees All
1875 ccs onsen TBO. teccncct. aor All
DOG a cocalisiss ases BiG Qhainxstscnertoanes All
BIG serarsnaesiese TOS a eaehradals All
18 7G se a mae BOO re icaiencias wise All
TB] Ss ssch. wgvere Ce eee eee All
TOP ce pininmae BOS ns eencexte All
1375 vasoveaewe AAG cio shete se aves All
TB 7G: acsiecieg ae BLObse saris Gialsvs All
TOFS ses seed 5 8 Oi aces fonts eesti All
DSS oistcidennigns BOB se sires siaane All.
TTS ocean asada G06 sie siensrara ices All.
EO Oi dagratiers wi Of Less ccaaves All
TO7 Oui cers ews Dose taceses miele All
1876 one eee TGS s ccsiuetedeteea aes All
TBI Giese lectonis TOO race wise All
TOTO Sigs exaraais B28 Oi. a sic ansscen All
T8700 sacsaage BB Sic apereneats All
TOT Os cimngtorsane By Bro weir era! All
TO Gis seie ioe avis ALS sc mses ee All
TB 7 Osage easan ASG xe secss estes All
187G i pivervotey anaes BAG ccc hseicoears All
DOT Fx eam terevelse LOG taizdciiscereasascghs All
OFF ss ai, an saubice EG Of Mian All
TOF iS ec sanisuy TOAK aanocawes All
ESI igs adit wcay Tb cS vee. aiole All
TOF ectin gare DOA Ks seh emters a All
TO Foose Sie a de 206+. 5 eaters All
TOT ise ee ofl dG SUA ie testes ec cctienese All
BBB cae te OIE ya: yakeuch sation All
DO 7B rca sishsene DO) ese teeonera ss All
(sy ke BO) ep icanreig a All
1878......... ZOD. srpsscawrtiodoia All
DBF Bhs anaes PU ous we ware All
T3798 oe ween 2OT.» wasicrears ese All
TS 7S: ices cine 2OB amen ares All
TOT Oig-o18 anes B1O wwe chsw teens All
TOTO corse ise BEA a teisoe tide All
F878 oes aw wrdrics SOA ienness i aaate All
F890 cose 2 css BT AN sew ltka a? ene All
W87Q set % canis BD She cecadacewe aig are All
PSIG sien sarkad BQO sorsese: Suro All
TST Gi oscceerseckda 20 3e.c-viieen martes All
1879 woes ce eive Z0Ols eo cirewusanee All
T87 Qian cn aies BU meee t All
DS 7. Osicersiat een ate 303 twee e eons All
1870 cevacxe ne BOS sb ecole avait All
T8979 eam mews AUS baci ntecetucanecdss All

 

 

 

.

THE GENERAL CorporATION Law.

LAWS OF Chapter Sections
PS] Quer scewcawee AAG) sserchlacsenaceioes All
TS 7.0 iiecsns reese HAT ee ceechiaviee uiearanie All
T8970 seen sees GOB eae ticcdg ih ates si All
L879 soavvcans SOS sie way daa All
TS 7Q io. oes eesseus GIP icc kese a eee All
TSO icoww awe BA Mscdenectvect eepcous All
EB8O seas eucrers go Bick waanes ae seer ane All
T880.02% vee es OSes tacence wanes All
W880 6e8e ees é OOsskdue cde All
1880........- Qdisaw vay cave All
T8806 6 6 aioe ens PU cas tces atesa All.
TSSO ee cise gases TBP ca coy cstacidsaness All.
T1880... .60808 DG Goeestxtiartandtie All.
188050 esies ex TS 2iceuiseeeakad All
T8805 ¥y0e4 ee TOT yeceeternreteatl All
TO8O sitiriioraccia.ed 223 cman wail All
1880......... BOG casa ianeitlee sonst All
TOB8Oig seis a aon BA Dasa casa tnserate All
ESSO) sisi e oaiais BISA ivashinsmnctelshtenth All
TSS O' a sic insslarss BOB esa sieve ward All
TB8Onecaw eres BO icatarameicapateate All
1880...60088% ZAG cenee aes All
T886 ceees ieceaes AUG astral as Miclexns All
T8800... ete Blaze aoshel neon All
1886 Loe caccw BBA cscs eine se aia All
TSSObiosaretecie ss BlOparnaa oan All
1880 oe es os wee ST Gases ead All
S80 eas vcees SS 2ivacns een uns All
TSB Oe ieisecs drei ees GSB eas eaves All
1880......... BO Sh ase Biecemrabnatuas All
TOS Les acco sesersens ¢ Be ccaiunctrasatsn All
PSST caters BO sow airs Gate All
1881 ON gs ssh sete a All
TOS Lye waar DE Tore woe tet All
TOOT erases L4G an ase aes All
1881......... DN) ccsiashncermea ster All.
TEST wo esciess as BIRD seats lass Sida All.
PSST cevcwiGsuais POG aceciasiaenti All.
TE8 Tiwi BGG aciisacnqery All
TSS Ts 6 ay yeas BUT nave aie sae. All
SSL eo ece ewes BEG nme snawes All
WSL ccwnwsas s BOT sie kag aes All
TOOT iecccessisicaie BRT oud dacenaaece% All
TS8T oecesi eck es BBO rianccdsaalatuts All
PSST oars: gaan Bib ha sesenseray ious All
TSS Ta coeisenee R00 ce eaa weurne All
[8ST ose eacias AQ 2)ais voce wales All
TS Sila pateraiatc AOA es oa Seda oe All
SCHEDULE OF Laws REPEALED. 45

 

 

LAWS OF Chapter Sections || LAWS OF Chapter Sections
188r........, BITC seo cathacues wrens All. || 1884......... B86 5 oie ssiariin a All.
DOB Te ies eo seas Cy All. |) 1884......... BOTs xe cee sis All
TOS Tis oc caecee a ASG ic sieved ink All. |] 1884......... Bed Diwsidg 3 ees ceen All
TBST cos a ana se DSL cis aue eau All.) 1884. 0.6 :020% AZo ons seo tints ert All
T88Ee big i er 580 ex aeaeees All. || 1884......... AZO siaiarardeinase All
PSST exsist 649.6 seeds All. || 1884........ BAT on vn preset tae All
1881......... 650...... All. |} 1884......... BAR ct dela Saat All
BOSE asain oui ie GIA sive slava'e: daata & All. || 1885......... BAe caveat ane All
iio) tae eee B86 sce. stare ganas All. |} 1885......... D2 ya ast ak ad All
1982 sig oh weer UT Aas tad tates eich Se All. |) 1885........ TAT ea raisacnecns All
1332 vareaor aan Seu cca eure All. || 1885....0.05; DRO ois cinenid All
1882. e204 005 T40isn ememseie All. || 1885..0..... DPT wiaace ina mevad All
FBS! ise aus aie DIB osc ie vcnaieslens All. |} 1885......... BOG wistatedetaasoe All
1882......... BO Oiava arcana? All. || 1885......... BOO owpesin cane All
TOO 2 eicndee i isi BQO ea nieei ase All. || 1885......... WDB sis ith cartes lave All
V88.2 pests neie sts BOO siessuacag aie ad All. |} 1885......... R23 ce cecns ee ay All
1882 c.eccmens 800s. aussie es All. || 1885........ A8Qaes acces All
1882......... BAO eos mons All..|| T8895 sacs cewes AOS ins iaiie serie anipc All
TSB 2rccosssewuaiees BIS Bio cna sear cote All. || 1885......... BGG eanswtelatinetes All
1882........ BOF asnicaeietiacian All. | 1885........ GAO ceded aegehacs All
TOS 2 ios Wicatwiaie OIG sais aha Sie All. |} 1885......... BA Olsssesciit acacater oa All
TS83s000 Sex < AO seri sex svarann.cxs All. || 1886......... OG cavewwtcases All
T8835. 2a canes ee eee All. || 1886......... U82eccscaaa ss All
TOSBi ee scsiecaves LOD iene tiaee All. | 1886......... By Vega a fathead ot All
1883......... Bi soi asd aca’ vais All. || 1886......... BD Ds cco ns aaarsietaed All
TOO 3 cciariereinas BBB io cs Gua tois wearer All. || 1886......... BOD ashe aenenge aus All
TSS Fis sien gas ieee Beis nice kei All. | 1886......... BOD ocoiagcicin se All
1883... 665 806% 23S scence All. | 1886......... Al Siow eas All
T8830 eos. rane tos As aa dae se All. |) 1886......... 5O0 wees ces All
1883......... 2B cx iiss tee B03 All. || 1886......... Bib Lede xe vie et All
BOSS). sseo wget IRONS cicep cube eisaocs All. |} 1886,........ BOs saxamsaae All.
1883 os geese BOT iin sare All. || 1886........ 586. ee All
1833 sxe ai were ce BOT caviar ware All. || 1886......... BOB cicusiiiuetaiaraps All
BB83 eco edhe es 982 cs oe ose All. || 1886......... GOT ae ganlunine All
1883 ooo aesacecsue’s 284 vine creases All. | 1886......... GOS tae eeige aie All
TS S39 oo cine ser dievore e BBO te ioc in iio ors All. || 1886 ........ O38 Ariss neces All
F883 ee aenes IB Pcie vie sSiaria secs All. || 1886......... 642 sa sacene steers All
1883 wcceieeass ZO Bianca seus wie’ All. || 1887......... AGOca vw nee ae All
1883 seas cewne BOO wee ones All. || 1887........ 486 we ceeee wx All
1883.......4- BBD oreo ovidice gers All. |] 1887......... 1-12 1 one neRr ge All
1883 oi sccciee ASBinx cvs amin All. | 1887......... FOr alsnteereierain All
T8839 sore coie craters AQT iaie eae RS Alle. || 0889 voenecad eae TO Si ing gavin ot All
1884......-.. TAG seas nese All. |] 1887......... O28 orscsca asters All
1884........ EO Biss sts neous aigers All. || 1887......... Fhe ets nang a8 All
1884......... DOS ine:igngicgnarieie ote All. || 1888......... TBO a2 vex wees All
TSS is cose diecen 5% DOR cure utinshors All. |} 1888........ BOG velsnie ener All
1884.......- BE Ba a's a aie ens All. | 1888......... BB eicekean All
1884.....-.. QO F sceievizrzaiais All. || 1888......... BBO isssioesheraragtt All
TESA ire aia eses BOT si scccioiine We All, |] 1888......... BOA ss eles esteciss All
46 THE GENERAL CorporaTion Law.

LAWS OF Chapter Sections |) LAWS OF Chapter Sections
1888........ BAG s Mame deete cia All. |) 1889......... GB. ako Gare All
1888......... AO2 2 se ateg oes All. || 1889......... CUy eee All
B888 oe cies cee Gelig Die ceetoasasears All. |} 1890......... 23ni waa w es All
F888 cae e ee ws GUA aacieccne ec All: || 1890......... OShsietae dies late All
TSOSi oe baa 540 sweet All. |) 1890......... TL G i cnekeligy a stave All
PS BB oc cae wis dats BOO ura amcnron All. || 1890......... TO Sie ceetiees All
880 os ate tae ona BF Asas-ttesions aie All. |: £890i¢. 8602494 ZO 2 tee wise ae ous All
TS8O nner aces ® WOnis ms wats All. || 1890......... ATG ics eae All
1889......... WB oa. ci ete we ee All. || 1890......... BOT oro adtoe hee All
1889......... BS Oss csavasaistvintsde All. | 1890......... BSS aleve’ ye: tuale All
1889......... DAR sits akdrnisn le All. || 1890......... AGI a iisnpirina oie All
T8806 occ scigis oe DB Tc coiieig teas akg All. |) 1890......... 505 sins gases All
1889. gsecsews BBB sts ain tessa All. |) 1890......... SOSecscsx esas All
TS8Q eae is ate 360 ins wisies saan All. || 1890......... IBS is i acs aadleas wha All
1889 .520 6650 420s. 5085 eur ¥ All. || r891......... GIFs Sauk oie ap ate awd All
1889 dans-se-cvs GIG sw se es ices All. | 1891......... DBF crc alent All
1889......... 2 Ay. ste aes tani All. || 1892......... ie cals sages All
1889......... Ig iL taste antes All.

 

 
CHAPTER III.

‘THE STOCK CORPORATION LAW—GENERAL POWERS
AND REORGANIZATION,

L. 1892, CHap. 688.

i

AN ACT to amend the Stock Corporation Law. (L. 1890, ch. 564.)

The Stock Corporation Law is amended to read as
follows, to take effect immediately :

CHAPTER XXXVI OF THE GENERAL LAWS.
Tue Stock CorPoraTION Law.

ARTICLE 1. General powers ; reorganization.. (§§ 1-7.)
z. Directors and officers; their election, duties and
liabilities. (§ § 20-32.)
3. Stock; stockholders, their rights and liabilities.
($§ 40-55.)
ARTICLE I.
GENERAL PoweErRS; REORGANIZATION.

Section 1. Short title, and application of chapter.

2. Power to borrow money and mortgage property.

3. Reorganization upon sale of corporate property and
franchises. .

4. Contents of plan or agreement.

5. Sale of property ; possession of receiver and suits
against him.

6. Assent of stockholders to plan of readjustment.

7. Combinations prohibited.

Section 1. Short title and application of chap-
ter.—This chapter shall be known as the Stock Corpo-
ration Law, but article one shall not apply to monied
corporations.

(As am’d by Laws 1892, ch. 688.)

Former section 1. The amendment of 1892 consists in the insertion of the
words “ article one.”
48 Tue Stock CorporaTIon Law.

$2, Power to borrow money and mortgage
property.—In addition to the powers conferred by the
general corporation law, every stock corporation shall
have power to borrow money or contract debts, when nec-
-essary for the transaction of its business, or for the exer-
cise of its corporate rights, privileges or franchises, or for
any other lawful purpose of its incorporation ; and 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 con-
tracted for the purposes herein specified; and the amount
of the obligations issued and outstanding at any one time
secured by such mortgages, excepting mortgages given as a
consideration for the purchase of realestate, and mortgages
authorized by contracts made prior to May first, eighteen
hundred and ninety-one, shall not exceed the amount of
its paid up capital stock, or an amount equal to two-
thirds of the value of its corporate property at the time of
issuing the obligations secured by such mortgages, in case
such two-thirds value shall be more than the amount of
such paid up capital stock. No such mortgages, except
purchase-money mortgages, shall be issued without the
consent of the stockholders owning at least two-thirds of
of* the stock of the corporation, which consent shall be
in writing and shall be filed and recorded in the office of
the clerk or register of the county where it has its princi-
pal place of business, or shall be given by vote at a
special meeting of the stockholders called for that pur-
pose ; and a certificate of the vote at such meeting, signed
and sworn to by the chairman and secretary of such meet-
ing, shall be filed and recorded as aforesaid. When au-
thorized by such consent, the directors, under such regu-
lations as they may adopt, may confer on the holder of
any debt or obligation secured by such mortgage the right
to convert the principal thereof, after two and not more
than twelve years from the date of the mortgage, into stock
of the corporation ; and if the capital stock shall not be
sufficient to meet the conversion when made, the stock-
holders shall, in the manner herein provided, authorize an
increase of capital stock sufficient for that purpose.

(As am’d by Laws 1892, ch. 688.)

*So in the original.
+

Power To Borrow Money anp MortcaGE Property. 49

Former sec. 2. This section was also amended by ch. 337, Laws 1892. The
amendment of ch. 337 consists in the addition of a provision-that the consent
to mortgage may be given at a special meeting of the stockholders, a certifi-
cate of which is to be filed and recorded. The amendment of ch. 688 made
verbal changes in the section, and omitted the words ‘‘ in person or by proxy,”
The amendment of ch. 337 excepted ‘‘ mortgages authorized by contracts made
prior to the time that the act shall take effect,” and the amendment of ch. 688 ex-
cepts only those authorized by contracts made prior to May 1st, 1891. The text
of the first amendment (ch. 337) is omitted from this volume.

L. 1850, ch. 140, § 28, sub. 10. (Am’d by L. 1880, ch. 133, and
L. 1887, ch. 724.)
L. 1875, ch. 606, § 26, sub. 6.

L. 1864, ch. 517, §2. (Am’d by L. 1871, ch. 481, and L. 1878,
ch. 163.)

See § 4, sub. 10, of the Railroad Law.

See L. 1868, ch. 779. When not necessary to file mortgages
as chattel mortgages.

See L. 1871, ch. 84; L. 1873, ch. 595. Railroad bonds, how
made non-negotiable.

See L. 1883, ch. 383, and L. 1884, ch. 315, §2. Conditional
sales or leases of personal property.

See L. 1891, ch. 267. Bonding for change of gauge.

Decisions UNDER L. 1850, Cu. 140, § 28, Sus. to.

A railroad corporation has a general power to make contracts
and to borrow money and persons dealing in securities issued by
it may, in the absence of notice to the contrary, assume that re-
strictions upon this power have not been violated. W/sworth v.
St. Louis, Alton & Terre Haute R. R. Co, 98 N. Y., 553. A rail-
road company has the right to pledge its bonds as security for
a precedent debt, if the same was contracted in the process of
borrowing money for the construction or operation of its rail-
road. The terms of this provision do not require that the bor-
rowing and issuing of the bonds should be simultaneous acts.
The former may naturally and properly precede the latter.
There is no valid reason why a company may not dispose of its
bonds by way of pledge as well as sale, and in the absence of
proof that the proceeds of the loan were, with the knowledge of
both parties, to be applied to some purpose not authorized by the
statute permitting their issue, they may beused as a pledge to
secure an indebtedness already existing. Duncomb v. N. Y.,,
Housatonic & Northern R. R. Co., 84 N. Y., rg0.

D
50 THE Stock CorproraTIon Law.

The rolling stock of a railroad company is personal property,
and does not pass under a mortgage of its real estate. ovle v.
Plattsburgh & Montreal R. R. Co.,54.N. V’., 314 5 Randall v. Elwell,
52N.V., 521; Stevens v. Buffalo N.Y. City R. R. Co., 34 Barb.,
590 ; Beardsley v. Ontario Bank, id. 619. Asto what has been held
to be covered by particular mortgages, see Deanz. Biggs, 25 Hun,
122; Parish v. Wheeler, 22 N. Y., 494.

The company may include in a mortgage property thereafter
acquired. Stevens v. IWatson, 4g Abb. Ct. Ap. Det. 302, Sey-
mour v. Canandaigua & N. F. R. R. Co. 25 Barb., 284; Benjamin
a. Elmira, J. & CR. R. Co. 49 Barb. agz. The lien of such a
mortgage on after-acquired property is superior to a vendor's
lien, the vendor having been an agent of the company, and the
mortgage having been recorded in the county in which his land
was situated. Fisk v. Potter, 2 Abb. Ct. Ap. Dec. 138. Vf after
such a mortgage is given, the route of the road is changed, the
new route will be covered by the mortgage. Elwell v. Grand St.
& Newtown R. R. Co., 67 Barb., 83, 85, n. The improper diver-
sion of after-acquired property, covered by a mortgage includ-
ing in its terms after-acquired property, will be restrained at
the instance of holders of the bonds secured by the mortgage.
Westjen v. St. Paul & Pacific R. R. Co, 4 Hun, 529. A mortgage
made by a company “to consolidate its funded debt, obtain the
money and material necessary for perfecting its line of railway,
enlarging its capacities and extending its facilities,” is for a
proper purpose under this section. Thompson v. Erie R. R. Co.,
42 How., 68.

ft seems, that an agreement made on the purchase of rights
of way, to pay therefor in bonds of the purchasing corporation,
secured by a mortgage on its property, is within the implied if
not within the express powers of a railroad company. A¢unson
v. Syracuse, G.& C. R. R. Co., 103 N. Y., 58 The trustees in a
railroad mortgage have no right, without the consent of the
holders of the bonds secured by the mortgage, to waive default in
the payment of principal or interest. Aollisterv. Stewart, rzr NV.
V., 64g. A holder of bonds may foreclose upon the refusal of
the trustee to foreclose after default. Van Benthuysen v. Cent.
N. EL& WR, R. Co, 17 N.Y. Supp, 709; 45 N. VY. St. Rep, 16.
The duties and liabilities of a receiver pendente lite, in an action
to foreclose a railroad mortgage, are defined in Decker v. Gardner,
24 N.Y. 334.
Power TO Borrow Money AND MortGAGE PROPERTY. 51

As to what debts may be secured, see Lord'v. Yonkers Fuel Gas
Co, 99.N. Y., 547; Martin. Niagara Falls Paper Co., 122 N. Y.,
165, and when to officers of the corporation itself, [Velch v. Im-
porters and Traders’ Nat. Bk., 122 N. Y., 177.

The term “franchises, privileges, rights and liberties,” does
not include patent rights, licenses, easements or privileges ac-
quired by the company after its incorporation. Lord v. Vonkers
Fuel Gas Co. tor N. Y., 614. As to what may be mortgaged
under a general assent, see Star Printing Co. v. Andrews, 9 NV. Y.
Supp., 791 3 34 St. Rep., 188.

As to the form of, the assent that should be given’ by the
stockholders, see Greenpoint Sugar Co. v. Whitin, 69 N. V., 328;
Lord v. Yonkers Fuel Gas Co.,99 N. Y., 547. This power is vested
in the stockholders who represent two-thirds of the actual stock.
Greenpoint Sugar Co. v. Whitin, 69 N. Y., 328. It is not an ob-
jection to the validity of the assent that some of the shares have
not been paid in full, or that no payments have been made,
or only in cash or work, and certificates have not been issued to
stockholders. McComb v. Barcelena Ap. Assn., 31. E., 613; 45 St.
Rep., 784. TheLyceumv. Ellis, 57 Supr. Ct. 532. Where part of the
stock is owned by the corporation,it can not give the assent itself to
make up the requisite two-thirds. Vail v. Hamilton, 8 N. V., 453.
The assent may be given afterwards where there are no inter-
vening rights. Greenpoint Sugar Co. v. Whitin, 69 N. Y., 328;
Roch, Sav. BR. v. Averill, 96 N. Y., 467; Martin v. Niagara Falls
Paper Co., 122 NV. Y., 165. Consent and mortgage filed and re-
corded. simultaneously. Welch v. Importers & T. Nat. Bk., 122 N.
Y., 177; Everson v. Eddy, 12 N.Y. Supp., 872; 36 St: Rep., 763. The

" assent is not required in case of a purchase money mortgage.
Coman v. Lakey, 80 N. Y., 345. Nor where the land was conveyed
to the corporation with an agreement that it should give mort-
gages for future advances for improvements and the mortgages
and deeds were executed and delivered contemporaneously.
McComb v. Barcelona Apartment Association, 91 N. E., 613; 45 St. Rep.
7&4. It is at least doubtful whether any but stockholders can
complain that the condition was not complied with. Paulding v.
Chrome Steel Co., 94 N. V., 334. A receiver of the corporation
may maintain an action to set aside a mortgage executed by it
without complying with this provision. Vailz. Hamilton, 85 N.

‘Y., 453-
An officer of a railroad corporation may honestly own its
bonds secured by a mortgage, but he cannot buy the bonds ‘di-
52 Tue Stock CorporaTIon Law.

rectly from the company below par, except at the peril of avoid-
ance by the court upon the application of the corporation. He
can enforce them in the usual and ordinary way. Duncomb v. N.
Y., Hous. & N.R. R. Co. 84.N. Y., 190; 88 N. YV., 1; Harpending v.
Munson, 91 N. V., 650. Amortgage is not invalidated by the fact
that the resolution therefor was adopted by the votes of persons
owning the indebtedness intended to be secured, where it ap-
pears that such indebtedness was a valid and binding one, the
greater part of it being already secured by mortgages, and that
the rate of interest was reduced. ettenhouse v. Winch, 391 N. E.,
622; 133 NV. Y., 678.

$3. Re-organization upon sale of corporate
property and franchises.—When the property and
franchises of any domestic stock corporation 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 at such sale shall acquire title
to the same in the manner prescribed by law, he may as-
sociate with him any number of persons, not less than the
number required by law forthe incorporation of such cor-
poration, a majority of whom shall be citizens and resi-
dents 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 sale possessed by the cor-
poration whose property shall have been so sold, upon
making, acknowledging and filing in the offices where cer-
tificates of incorporation are required by law to be filed, a
certificate in which they shall describe by name and refer-
ence to the law under which it was organized, the corpo-
ration 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,

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 pertaining to each class,
RE-ORGANIZATION. 53

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 address of the directors for the first year.

4. Any plan or agreement, which may have been en-
tered into at or previous to the time of sale, in anticipa-
tion of the formation of the new corporation, and pur-
suant towhich such purchase was made. Such corpora-
tion shall be vested with and be entitled to exercise and
enjoy all the rights, privileges and franchises which at the
time of such sale belonged to, or were vested in the cor-
- poration last owning the property sold, or its receiver,
and shall be subject to all the provisions, duties and liabil- .
ities imposed by law on such corporations.

(Title am’d by Laws 1892, ch. 688.)
. 1850, ch. 140, § 5, (am’d by L. 1873, ch. 710.)
. 1874, ch. 430, §1, (am’d by L. 1876, ch. 446.)
. 1873, ch. 469.
. 1853, Ch. 502.

Cet et es

ee

Decision UNDER L. 1850, Cu. r4o, § 5.

A contract between the owner of the mortgage bonds of one
railroad to foreclose the mortgage and to purchase and convey
the property toa new company, held, not within the terms or
Spirit and intent of this section as amended in 1873. Munson v.
Syracuse, Geneva & Corning R. R. Co., 107 N. Y., 58.

Decisions UNbER L. 1874, Cu. 430, § 1.

The state tax provided by Laws of 1886, ch. 143, must be paid
by the reorganized corporation, and the Secretary of State is pro-
hibited from filing the articles of association until satisfied that
such tax hasbeen paid. The People ex rel. Schurz v. Cook, rro N.
Y., 443. Under this section any number of persons may pur-
chase the property for themselves and organize a new company,
which will possess all the powers, rights, privileges and fran-
chises of the prior corporation, and be subject to the provisions
of the general railroad laws of thestate. Insuch case the rights
of all the stockholders of the prior corporation will be absolutely
barred and cut off by the foreclosure and sale. If, however, the
purchasers buy in pursuance of a plan as mentioned in the sec-
ond section (§ 4 below) for the adjustment of the respective in-
54 THE Stock Corporation Law.

terests therein of the mortgage creditors and stockholders of
the company, then such plan must be embodied in the certificate
to be filed as required in this section. After a foreclosure sale
the only property interest which a stockholder of the old company
has left, is inthe surplus, if any, after satisfying the mortgage
and other preferential claims. All the statute secures to him
is the option to join the new company by a compliance with the
terms of the plan. Stockholders are chargeable with notice of
the general features of any scheme for the re-adjustment of in-
terests as they are embodied in the articles filed for the or-
ganization of a new company. Vatadle v. N. Y., Lake Erie &
Vest. R. R. Co.,96 N. Y., 99. See also Thornton v. Wabash Ry.
Co., 81 N. Y., 462; Prattv. Munson, 84 N. Y., 582, 587. LL. 1853,
ch. 502, §2 was repealed by implication by L. 1854, ch. 282,
amending L. 1850, ch. 140, $5, and by this act. Pratt v. Munson,
(above) ; Vatablev. NV. Y., L. Erie & Mest. R. R. Co., (above.) None
of the acts relating to the purchaser at foreclosure prevents a
transfer or sale to a corporation already existing and capable
under the law of its creation of holding the property and exer-
cising the franchises which passed to the purchaser by the mort-
gage sale. The People v. Brooklyn, Flatbush & Coney Island Ry. Co., 89
N.Y.,75. The legal entity of the corporation does not pass to the
purchasers so that they thereby become the corporators constitut-
ing the corporation and stockholders therein. Metz v. Buffalo,
Corry & Pittsburgh R. R. Co.,58 N. Y., 6r. A trustee authorized
to purchase on foreclosure and to take measures to organize a
new company for the benefit of the bondholders is not justified
in offering the property for sale at public auction and selling it
to a company whose property was much greater than that
covered by the mortgage, and its membership much greater in
number than the bondholders. Such a company is not the or-
ganization provided for by the mortgage, although a majority
of the bondholders had gone into it, and had determined that it
was “for their use and benefit” that the mortgaged property
should be thus transferred. /amesv. Cowing, 82 N. Y., 449. See
Dutenhofer v. Adirondack Ry. Co.,14 N.Y. Supp., 558; 38 St. Rep.,
710.

$ 4. Contents of plan or agreement.—At or pre-
vious to the sale the purchasers thereat, or the persons for
whom the purchase is to be made, may enter into a plan
or agreement, for or in anticipation of the readjustment of
RE-ORGANIZATION. 55

\
the respective interests therein of the mortgage creditors
and stockholders of the corporation owning such property
and franchises at the time of sale, and for the representa-
tation of such interests of creditors and stockholders in the
bonds or stock of the new corporation to be formed, and
may therein regulate voting by the holders of the preferred _
and common stock at any meeting of the «stockholders,
and 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 man-
ner, for such period, and upon such conditions, as
shall be therein described. Such plan or agreement
must contain suitable provision for the bondholders
voting by proxy and must not be inconsistent with
the laws of the state and shall be binding upon the corpo-
ration, until changed as therein provided, or as otherwise
provided by law. The new corporation when duly organ-
ized, pursuant to such plan or agreement and to the pro-
visions of law, may issue its bonds and stock in conformity
with the provisions of such plan or agreement, and may at
any time within six months after its organization, com-
promise, settle or assume the payment 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 respect to the payment of dividends in favor of any por-
tion of its capital. stock and may divide its stock into
classes, but the capital stock of the new corporation shall
not exceed in theaggregate, the maximum amount of stock
mentioned in the certificate of incorporation, nor shall the
bonds issued by it exceed in the aggregate the amount
which a corporation is authorized by the provisions of this
article to issue.

e
Former section 4 unchanged.

L. 1874, ch. 430, § 1, and § 2 tosub.1. (§ 2 am’d by L. 1876, ch,
446.)

L. 1880, ch. 155.

See White v. Wood, 729 NV. Y., 527.
56 Tue Stock Corporation Law.

$5. 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 nonpayment 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 pos-
session 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 proceed-
ing shall be commenced against such receiver unless
founded on willful 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 re-
ceiver, for which he may not be sued, and to the same ex-
tent as the receiver, but for this section would be or re-
main liable, or to the same extent that the new corporation
would be, had it done or omitted the actscomplained of.

Former section 5 unchanged.

L. 1874, ch. 430, § 2, sub’s 1, 2 and-3. (§ 2 am'd by L. 1876, ch.
446.)

$6. Stockholders may assent to plan of re-
adjustment.—Every stockholder in any corporation, the
franchises and property whereof shall have been thus sold,
may assent to the plan of readjustment and reorganization
of interests pursuant to which such franchises and property
shall have been purchased at any time within six months
after the organization of the new corporation, and by com-
plying with the terms and conditions of such plan become
entitled to his pro rata benefits therein. The commission-
ers, 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 reorganiza-
ae

/

RE-ORGANIZATION—COoMBINATIONS PROHIBITED. 57

tion 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, corpo-
rate authorities or other proper officers may assign, trans-
fer 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.

(As am’d by Laws 1892, ch. 688.)

The amendment of 1892 omits the words “at par” occurring after the words “ by
them respectively held.”

L. 1874, ch. 430, § § 3 and 4.
Decisions UnDER L. 1874, CH. 430, §§ 3 AND 4.

Notwithstanding the formation of the plan of reorganization,
the foreclosure becomes absolute against the corporation and
all its rights and all the proprietary interests of the stockhold-
ers are absolutely barred and cut off. The plan has reference
only to the new corporation to be formed and to interests there-
in. Vatablev. N. Y., Lake Erie & West. R. R.Co.,96N.YV.,49. The
statute will not justify any discrimination which jeopardizes
the rights or interests of those who may withhold their appro-
bation. DeBets’s Petition,g Abb. N. C., 246. It is a condition
precedent that the stockholder must signify his assent to the
plan within six months. He forfeits no property if he fails to

\-do so, he loses simply aright to acquire an interest in proper-
ty. Equity can notrelieve him. Stockholders must be charged
with knowledge of the law securing to them the right, to assent
to the plan within the six months. Vatablev. N. Y., Lake Erie &
West. R. R.Co., (above.) See Hoopes v. Corbin, r N.Y. St. Rep., 212 ;
Brooks v. Dick, 17 N.Y. Supp., 259 5 43 St. Rep., 37.

§ 7. Combinations prohibited.—No stock corpo-
‘ ration 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 neces-
sary of life.
(As am’d by Laws 1892, ch. 688.)
Former sec. 2 The amendment of 1892 consists in the insertion of the words

“¢or person for the creation of a monopoly for the unlawful restraint of trade or,’’
_and the words ‘‘in any necessary of life.” ‘
58 Tue Stock CorporaTION Law.

It seems, that a party may legally purchase the trade and
business of another for the very purpose of preventing compe-
tition, and the validity of the contract, if supported by a consid-
eration, will depend upon its reasonableness as between the par-
ties. Zhe Diamond Match Co. v. Roeber, 106 N. Y.,473. But see
Richardson v. Buhl, (Mich.) 43 N. W. Rep., 1102 ; Tode v. Gross, 127
NV. Y., 480. It isaviolation of law for corporations to enter
into a partnership. When a corporation commits itself to a
trust agreement by which, at the command of a master outside
of itself, it has been required to cease from its usual business for
the purpose of so far lessening the market supply of its product
as to prevent what is termed “over-production,” it has perverted
its privileges and abused its powers. People v. North River Sugar
Refining Co., 121 N. Y., 582. An agreement by which a business
rival is removed whose competition might be deemed danger-
ous to the success or maintenance of the business of a corpora-
tion, not excluding all competition, is not objectionable on the
ground that it restrains competition. Leslie v. Lorillard, 110 N.
Y., 579. A combination to advance the price of an article of
food is unlawful. Leonard v. Poole,r1g N. Y.,377. Anassociation
of corporations to use a patented article, none of them being re-
sponsible for the debts of the others and there being no com-
munity of profits and losses, is not unlawful. Goodv. Daland, 121
N.Y, 7.

As tothe enforcement of contractsof a trust, see Pittsburgh
Carbon Co., (Limited) v. McMillin, 119 N. Y.,46. The purchase of
all the stock of another corporation, with the assent of the
stockholders of the latter, is not forbidden, and the consolidation
of corporations engaged in the same general line of business is
not against public policy. Cameron v. N.Y. & M.V. later Co.,
62 Hun, 269; aff'd on other grounds, 133 N. V., 336; Holmes &
Griggs Mfg. Co. v. Holes & Wessel M. Co., 127 N. Y., 252.

As to rights of certificate holders where a trust has been de-
clared invalid, see Cameron v. Havemeyer, 12 N. Y. Supp., 1265
25 Abb. N. C., 438. The earnings and assets of a trust belong to
the certificate holders and not to the corporations in return for
whose stock such certificates were issued. Gray v. Oxnard Bros.
Co., 59 Hun, 387. A transfer by a corporation of all its property
and effects, which has the effect of terminating its regular busi-
ness and is made and accepted by the transferee for that pur-
pose, is illegal as against its creditors. A consolidation can only
be effected under the permission and safeguards of the statute.
Cole v. Millerton I. Co., 133 N. Y., 164.
CoMBINATIONS PROHIBITED. 59

An agreement by the terms of which one company agrees to
deliver to the other for transportation all the freight and pas-
sengers that it can lawfully control or influence, destined to
points that can be reached by way of the- latter road or its
connections, and use its influence to support the interest
and business of the latter, so far as it can with proper regard to
its own interest, was held valid, and not vitiated by a further pro-
vision by which the second company agreed to make good any
deficiency in the net earnings of the former, and to meet the in-
terest on its bonded indebtedness, with pledge of a majority of
stock assecurity. Tonawanda Valley, &c., R.R. Co.v. N.Y., L. E
& W.R.R Co., 42 Hun, 496. But the case was reversed in the
court of appeals on the ground that such an agreement could
not be specifically enforced, the court not being agreed upon the
question of the validity of the contract. 727 WV. Y., 640, 316;
Bradford E.&C.R. R. Co.v. N.Y. L. £.& W. R. R. Co, 123 N-
Y., 3716. See also Metropolitan Trust Co.v. N.Y. L.E.& WR R.
Co., 45 Hun, &4. An agreement between stockholders of a rail-
road company not to sell, assign, pledge or give power of attor-

_ ney to vote, or agree to sell the stock respectively owned by the

' parties, without the concurrent consent of all, is void on its face.
Fisher v. Bush, 35 Hun, 641.
CHAPTER IV.

THE STOCK CORPORATION LAW—DIRECTORS AND
OFFICERS.

ARTICLE II.
Directors AnD Orricers; THEIR ELECTION, DUTIES AND LIABILITIES.

SECTION 20. Directors.

21. Change of number of directors.

22. When acts of directors void.

23. Liability of directors for making unauthorized divi-
dends.

24. Liability of directors for contracting unauthorized
debts and over issue of bonds.

25. Liability of directors for loans to stockholders.

26. Transfers of stock by stockholders indebted to cor-
poration.

27. Officers.

28. Inspectors and their oath.

29. Books to be kept.

30. Annual report.

31. Liability of officers for false certificates, reports or
public notices.

32. Alteration or extension of business.

§$ 20. Directors.—The directors of every stock corpo-
ration shall be chosen from the stockholders at the time
and place fixed by the by-laws of the corporation by a
plurality of the votes of the stockholders voting at such
election. Vacancies in the board of directors shall be
filled in the manner prescribed in the by-laws, and if a di-
rector shall cease to be a stockholder his office shall become
vacant. Notice of the time and place of holding any elec-
tion of directors shall be given by publication thereof, at
least once in each week for two successive weeks immedi-
ately 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. Policy
holders of an insurance corporation shall be eligible to
DIRECTORS. 61

election as directors. At least one-fourth in number of the-

directors of every stock corporation shall be elected
annually.

(As am’d by Laws 1892, ch. 688.)

Former section 20. The amendment of 1892 omits the requirement that a ma-
jority of the directors shall be citizens of this state, and that they shall be chosen
annually and provides for their election by a ‘‘ plurality ” instead of a ‘‘majority ”
of the votes of the stockholders voting at the election. Publication of the notice
of the time and place of holding the election must be made for “‘ two ” successive
weeks instead of ‘‘four.” The last two sentences are new.

tR.S., T. 4,87.

L. 1850, ch. 140,§ 5. (Am’d by L. 1854, ch. 282, § 1, and L.
1873, ch. 710.)

L. 1875, ch. 586, § 1.

L. 1875, ch. 606, § 10.

L. 1881, ch. 468, §§ 4 and ro.

See L. 1881, ch. 317.

See General Corporation law, § 29.

DECISIONS UNDER L. 1850, Cu. 140, § 5.

This section requries that a board of directors be chosen an-.
nually, and that the board first chosen should adopt by-laws
prescribing the manner of such election. If there be no by-law
fixing a date for an election, such election is to be held upon the
recurrence in the following year of the day on which the first
election was held, if that be alegal day; the corporation is
not dissolved by such a failure to meet and elect and adopt such
a by-law. The directors may still properly call a meeting for:
these purposes. The provisions of 1 R. S., 604, sec. 8, as to elec-
tion of directors where such election has not been held on the
appointed day, apply in such acase. If the election be not held
within sixty days, after the failure to hold the annual meeting,
still no shares can be voted on except by persons having the
right to vote on the day when the election should have been
held. The court may declare which board of directors is law-
fully chosen, and adjudge that they be the lawful directors.
The stockholders need not vote for thirteen directors, they may
vote for any less number if they choose, and any number of per-
sons receiving a majority of the lawful votes were elected, even
if less than thirteen. In this case the road being not more than
fifteen miles long, a majority having voted for seven directors,
this operated to reduce the number of directors from thirteen
62 Tue Stock CorporaTIon Law.

to seven, pursuant to L. 1864, ch. 582, sec. 3. Vandenburgh v.
Broadway Underground Connecting Ry. Co., 29 Hun, 348. A law au-
thorizing a city as owner of stock in a railroad to appoint,
through its common council, a portion of the board of directors
of the company, does not authorize the election of any person
not a stockholder and qualified under this section. eof/e v.
Hills, 1 Lans., 202. The election of a person not qualified does
not make him even a de facto director. Jn re Newcomb, 18 N.Y.
‘Supp., 16; 42 St. Rep., 442. A director who sells his stock and is
thereafter superseded at a special stockholders’ meeting held pur-
suant to notice, ceased to be a director de jure or de facto, though
by-laws provided that directors shall be elected at the regular
annual meeting. Beardsley v. Johnson, r2z N. Y., 224. When stock
is parted with he ceases to be director. Chemical National Bank,
u, Colwell, 1372 N.Y.,250. The directors have authority to make
any contract which the law permits a corporation to make, for
example a lease of a railroad, without the authorization of the
stockholders. Beveridge v. N. Y. Elev. R. R. Co., 112 N.Y, 1, (but
see sec. 78 of the Railroad Act.) ;

Decisions UNDER L. 1875, Cu. 606, § ro.

The directors have no implied power to make articles of asso-
ciation, and as a logical consequence none for the making by
them of any amended certificate of incorporation. Jn re WV. Y.
Cable Ry. Co., 109 N. Y., 32.

Provisions in statutes and by-laws requiring the election of
the directors to be had on a specified day are regarded as
directory, and the election, if not held on the regular day, may
be held atalater day, and the directors then chosen will be
directors dejure. Beardsley v. Johnson, 121 N. Y., 224.

Under the provision in the manufacturing act “that the elec-
tion shall be made by such of the stockholders as shill attend
for that purpose, either in person or by proxy,’ the trustees are
not at liberty to restrict such right by by-laws so as to limit the
right to exercise proxies to persons who are stockholders.
Matter of Lighthall Manf. Co., 47 Hun, 258. Where the same per-
sons are in control of a railroad company and another corpora-
tion,a contract made through their instrumentality with the
latter for the construction and equipment of the road is pre-
sumptively fraudulent, and the railroad company may, at its
election, treat it as void and repudiate it. The directors par-
CHANGE oF NuMBER oF Directors. 63

ticipating are liable for the injury sustained by the railroad
company. If by the contract the construction company is to re-
ceive stock and bonds to a specified amount, but is not actually
bound to build the railway, but merely to apply the proceeds of
the stock and bonds as far as they will go in that direction,
with the right.to keep any surplus asa profit, it creates nothing
more than an agency or trust to receive and apply the proceeds
for the benefit of the railroad company, and if this is a mere
plan to evade a statute that the stock shall not be issued except
at par in money or moneys’ worth, then the contract is absolute-
ly void. Currierv. N.Y... W. S.& B. RR. Co., 35 Hun, 355.

$21. Change of number of directors.—The num-
ber of directors of any stock corporation may be increased
or reduced, but not above the maximum nor below the
minimum number prescribed by law, when the stockhold-
ers owning a majority of the stock of the corporation shall
so determine, at a meeting to be held at the usual place of
meeting of the directors, 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 cor-
poration 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.
If a corporation formed under or subject to the banking
law, the consent of the superintendent of banks, and if an
insurance corporation, the consent of the superintendent
of insurance, shall be first obtained to such increase or re-
duction of,the number of directors.

(As am’d by Laws 1892, ch. 688.)

The amendment of 1892 substitutes “two weeks’ notice” for thirty days’ no. |
tice. Service by mail at the ‘last known” post office address of each stockholder
is sufficient. The provision for filing proof of service of the notice is new. The
dast sentence relating to banking and insurance corporations is new.

L. 1879, ch. 395.
L. 1864, ch. 582, §3. (Am’d by L. 1883, ch. 46.)
L, 1891, ch. 57.
64 Tue Stock Corporation Law.

Decisions UNDER L. 1864, Cu. 582, § 3.

The act of a majority of the stockholders in voting a ticket
containing the names of but seven persons operates to reduce
the number of directors in pursuance of this section. Vanden-
burgh v. Broadway Underground Connecting R. R. Co., 29 Hun, 348.
-A provision in a railway company’s articles of association, that
the total length of the road “and its branches” shall be thirty-
five miles, is not evidence that its main route exceeds fifteen
miles, and inthe absence of other proof a reduction of the num-
ber of directors under this statute will be presumed to be reg-
ular. Beardsley v. Johnson, 121 N. Y., 224.

The validity of the reduction of the number of trustees of a
corporation can not be assailed collaterally in an action by a
creditor to enforce a corporate debt. Wallace & Sons v. Walsh,
z25 N. Y., 25. So held, although no certificate of the reduction
was filed as required by the statute. Jz.

§ 22. When acts of directors void.—When the
directors of any corporation for the first year of its corpo-
rate 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,
or of any officer, or attorney, or counsel appointed by them,
and every such liability or obligatiof shall be held to be
fraudulent and void.

Former section 22, unchanged.

L. 1885, ch. 489, § 1.

§ 23. Liability of directors for making unauthor-
ized dividends.—The directors of a stock corporation
shall not make dividends, except from the surplus profits
arising from the business of such corporation; nor divide,
withdraw or in any way pay to the stockholders, 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
Lianitity or Direcrors—UNAUTHORIZED DiviDENDs, 65

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 Jarge 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 the capital of
such corporation so divided, withdrawn, paid out or reduced.
But this section shall not prevent a division and distribu-
tion of the assets of any such corporation remaining after
the payment of all its debts and liabilities upon the disso-
lution of such corporation or the expiration of its charter.

(As am’d by Laws 1892, ch. 688.)

The provision declaring when the capital stock shall be deemed impaired is
omitted by the amendment of 1892. The clause relating to the payment of divi-
dends not made from surplus profits is remodelled, omitting the words ‘‘ nor when
sits capital stock is, or will be impaired thereby.” The word “ capital” is substi-
tuted for ‘‘ property and assets” in the clause forbidding the corporation to divide
or withdraw, or pay to its stockholders any portion of the same. The provision
as to how the vote shall be taken, and that the minutes shall be open for inspection
is omitted. The word “personally” is omitted from the last clause fixing the
liability of directors. That liability is declared to be to the corporation and to its
creditors ‘‘ to the full amount of the capital of such corporation so divided, with-
drawn, paid out or reduced.” The last sentence is new.

1R.S., ch. 18, T. 4, § 2.
L. 1848, ch. 40, § 13, and L. 1875, ch. 611, § 19.

See Penal Code, § 594.

DEcISIONS UNDER 1 R.&., ch. 18, T. 4, § 2.

The provisions of this section are not repealed by L. 1878, ch.
264. The prohibition contained in this section against any com-
pany reducing its capital stock without the consent of the Leg-
islature, was inserted for the reason that by reducing its amount,
the actual capital which the company might have in excess ot
the reduced amount, would be liberated and cease to be capital
stock, and a division of it would escape the prohibition against
dividing capital stock. To authorize a distribution among the
stockholders of a sum equal to the difference between the
amount originally named as capital and the reduced amount
fixed by the vote of the stockholders, (where a reduction has
been made,) it should appear that the capital fully paid in has
not been impaired ; and if it has been impaired it should appear
that the corporation still has on hand actual capital available

E
66 Tue Stock CorporaTIon Law.

for the payment of debts, exceeding the amount to which it has
reduced its capital, and if it has, the excess only should be dis-
tributed. The provision of this section prohibiting a corpora-
tion from depleting its capital stock by payment to stockholders,
does not apply, as the actual capital in excess of the 1educed
amount ceases to be capital stock. Strong v. Brooklyn Crosstown
RR. Co, 637 N. Fi o20.

The term “capital stock ’ means the property of the corpora-
tion contributed by the stockholders or otherwise obtained, to
the extent required by its charter, When the property exceeds
that limit the excess is surplus and may be divided either in
money or property, or a dividend of shares, provided an increase
of the share capitat has been lawfully authorized. Wildams v,
The Western Union Telegraph Co., 93 N. Y., 162; Beveridge v. N.Y.
Elev. R. R. Co., 112 N. Y., 1, 27. A corporation has no implied
power to increase or diminish its capital stock, and can only do
so when and as authorized by statute. Sutherland v. Olcott, 95 N+
Y.,93. The policy of the prohibition requires that it should be
applied as well to a reduction of nominal as well as of actual
capital. Jd. See Skinner v. Smith, 56 Hun, 437; aff'd in Court of Ap-
peals Oct. 2, 1892.

This provision is penal and a clear case must be established,
but the substance of the provision, not the mere form, is the
test. Rorke v. Thomas, 56 N. Y.,559. Under the corresponding
provision of the manufacturing act it was held that an action
could not be maintained by the corporation itself against trus-
tees for declaring such a dividend. Zxcelstor Petroleum Co. v.
Lacey, 63 N. Y., 422. The trustees are not liable for costs of the
judgment against the company. orke v. Thomas, 56 N. Y., 559.
A creditor's suit to reach the funds of a corporation paid out to
stockholders before dissolution by expiration of its charter, can
not be maintained without a valid judgment and execition
against the corporation or its successors, or without first ex-
hausting the creditor’s remedies against the property remaining
in the hands of the corporation, or received by its trustees on
its dissolution. Sturges v. Vanderbilt,77 N. Y., 384; Andrew v.
Vanderbilt, 37 Hun, 468; Bartlettv. Drew, 57 N. Y., 587; Hastings
v. Drew, 76. N. Y, 9.

$24. Liability of directors for unauthorized
debts and over-issue of bonds.—No stock corporation,
except a monied corporation, shall create any debt, if
thereby its total indebtedness not secured by mortgage
LiaBitity oF Directors—UNAUTHORIZED DEsTs.. 67

shall exceed the amount of its paid-up capital stock, and
the directors creating or consenting to the creation of any
such debt shall be personally liable therefor to the cred-
itors of the corporation. If bonds or other obligations of
ithe corporation, secured by mortgage, are issued in excess
of the amount authorized by law, or in violation of law,
the directors voting for such over-issue, or unlawful issue,
shall be personally liable to the holders of the bonds or
other obligations illegally issued for the amount held by
them, and to all persons sustaining damage by such illegal
issues for any damage caused thereby.

(As am’d by Laws 1892, ch. 688.)

Former sec. 24. By the amendment of 1892 the words ‘‘except a monied cor-
poration” are inserted, and the words “any debt, if thereby its total indebtedness
not secured by mortgage shall exceed ” are substituted for the words ‘‘any debt
mot secured by mortgage in excess of.” :

1R.S., ch. 18, T. 4, § 3.
L. 1848, ch. 40, § 23.
L, 1875, ch. 611, § 22.

The liability under this section is joint and not several. Mc-
Clave v. Thompson, 36 Hun, 365. A debt owing to a director for
advances made by him can not be included in order to make the
amount of the debts of the corporation for which the directors
areliable. McClave v. Thompson, 36 Hun, 365; Robinson v. Thomp-
son, 20 N.Y. W. Dig., 557.

In such an action it is sufficient to state the amount of such
capital and to give the amounts of the claims which are out-
standing, and it is not necessary that the debts should be due.
Where an apparent claim is not real, that fact should be set up
by answer. Robinson v. Attrill, 66 How.,z2z. The excess of in-
debtedness must be equal to or exceed the amount of plaintiff’s
debt. Chambers v. Lewis, 28 N. Y., 454. The action must be
brought by all the creditors, or by one in behalf of himself and
all the others, and each can recover only such a proportion of
the excess of the debts over the amount of the capital stock, as
his debt bears to the whole amount of the company’s debts.
Anderson v. Speers, 21 Hun, 568. As to what constitutes assent
see Patterson v. Robinson, 36 Hun, 622; 37 Hun, 341; 116 N. Y., 193.

For a peculiar case upon the question whether the debt did
or did not exist see Patterson v. Robinson, 116 N. Y., 193.
68 Tue Stock Corporation Law.

The liability under this section is contractual and not penal,
and survives the death of the trustee. McComb 7. Kellogg, 16 St.
Repr., 16. As tothe necessary allegations under this section see
Lovelace v. Doran, 15 N. VY. Supp., 278; go St. Rep , 53. ;

$25. Liability of directors for loans to stock-
holders.—No loan of moneys shall be made by any stock
corporation, except a monied 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 installment 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 stock-
holder to withdraw any part of the money paid in by him
on his stock. In case of the violation of any pro-
vision of this section, the officers or directors mak-
ing 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.

(As am’d by Laws 1892, ch. 688.)

The amendment of 1892 excepted monied corporations.
L. 1848, ch. 40, § 14. ‘
L. 1875, ch. 611, § 20.
1R.S., ch. 18, T. 4, § 2.

The trustees have no power to ratify such a loan, and hence
their action in selling securities given as collateral for such a
loan will not bar an action for the balance due by the stockhold-
er, as funds of the corporation unlawfully converted by
him. A.C. Wellis Co. v. Nellis, 62 Hun, 67. It must be an actual
loan, in fact as well asin form. Billings 7. Trask, 30 Hun, 314.

ile Transfers of stock by stockholder in-
debted to corporation.—If a stockholder shall be in-
debted to the corporation, the directors may refuse to con-
sent to a transfer of his stock until such indebtedness is
Loans To STOCKHOLDERS—OFFICERS. 69

paid, provided a copy of this section is written or printed
upon the certificate of stock.

Former sec, 26 unchanged.

In the absence of such a provision the corporation has no lien
which it can enforce and has noauthority to make a by-law con-
taining a similar provision. Driscoll v. The West., Bradley and
Cary Mf’g Co, 59 N. Y., 96.

§ 27. Officers.—The directors of a stock corporation
may appoint from their number a president, and may ap-
point a secretary, treasurer, and other officers, agents and
employes, 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 require any such officer, agent or em-
ploye 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 appointmentas its officers,

(As am’d by Laws 1892, ch. 688.)

Former section 27. The amendment of 1892 omitted the requirement that the
secretary and treasurer should be stockholders. The last sentence relating to in-
surance corporations is new.

L. 1850, ch. 140, § 6.
L. 1875, ch. 606, § 10.
L, 1881, ch. 468, § 4.

DECISIONS UNDER L, 1850, Cu. 140, § 6.

This section authorizes but does not imperatively require the
appointment of a secretary and treasurer. People v. Hills, 1
Lans., 202. An action in the nature of guo warranto-does not -lie.
against such an officer /d. An executive committee may be
appointed by the directors to transact its business during the
interval of the meetings of the board. Such committee may
delegate to one of its number power to do ministerial acts,
Sheridan E. L. Co. v. Chatham Nat. Bk., 127 N. Y., 517. Directors
control the rate of dividend and the amount of surplus retained.
When they own nearly all the stock and are also officers, they
may vote to increase their salaries where each refrains from
voting on the proposition to increase his own. McNab v. McNab
«» Harlin Co., 62 Hun, 18; aff'd on opinion below, 133 N.Y., 687.
70° Tue Stock CorporaTIoN Law.

$ 28. Inspectors and their oath.—The inspectors
of election of every stock corporation shall be appointed
in the manner prescribed in the by-laws, but the inspectors
of the first election of directors and of all previous meet-
ings of the stockholders shall be appointed by the board of
directors named in the certificate of incorporation. No
director or officer of a monied corporation shall be eligible
to election or appointment as inspector. Each inspector
shall be entitled to a reasonable compensation for his ser-
vices, 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 in-
spector 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 in-
spector at such meeting with strict impartiality, and accord-
‘ing 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 meet-
ing shall be held, with a certificate of the result of the vote
taken thereat.

(As am’d by Laws 1892, ch. 688.)

Former section 28, The provision, relating to monied corporations is new. Also
the provision for compensation of inspectors and for filling vacancies. :

1R.S., ch. 18, T. 4, § 7.
L. 1850, ch. 140, § 5.

L. 1880, ch. 510, § 1.

L. 1881, ch. 468, § 10.

See Jn re Mohawk & Hudson R. R. Co.,19 Wend., 135. The use
of the word “inspectors” requires that there shall be more than
one. Jn re Lighthall M'fg Co., 47 Hun, 258.

§ 29. Books to be kept.—Every stock corporation
shall keep at its office correct books of account 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 re-
spectively became the owners thereof, and the amount paid
thereon. The stock-book of every such corporation shall
Inspectors oF ELtection—Booxs To BE Kept. 71

be open daily, during business hours, for the inspection of
its stockholders and judgment creditors, who may make ex-
tracts 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 according to the provisions of this
chapter, until it shall have been entered in such book as
required by this section, by an entry showing from and to
whom transferred. Such latter book shall be presumptive
evidence of the facts therein so stated in favor of the
plaintiff, in any action or proceeding against such corpora-
tion or any of its officers, directors or stockholders.
Every corporation that shall neglect or refuse 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 ex-
hibit the same, or allow them to be inspected and extracts
taken therefrom as provided in this section, the corpora-
tion 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 there-
from.

(As ain’d by Laws 1892, ch. 688.)

Former sec. 29. By the amendment of 1892 the duty of keeping books is im-
posed on the corporation. The former section provided that the directors should
keep books of account and the treasurer or secretary keep a stock book. The
provision that the stock book should show who have been stockholders within six
years is omitted, and the stock book only is now required to be open daily for in-
spection to stockholders and judgment creditors, (‘‘ representatives,” omitted.)
The word “ willfully ” is inserted in the provision fixing the liability of officers or
agents for neglecting or refusing to make entries in the books or to exhibit the
same.

1R.S., ch. 18, T. 4, § 1.
L. 1848, ch. 40, § 25.
L. 1875, ch. 611, §§ 16 and 17.

Decisions UNDER 1 R.S., Cu. 18, T.4, §1.

A domestic railroad corporation is subject to this provision.
This statute does not deprive the stockholders of a corporation
of the right to examine its transfer books for proper purposes
72 THE Stock Corporation Law.

and on proper occasions at other times, and a proceeding by
mandamus may be invoked for the purpose of enforcing such
right. The granting of the writ is discretionary, and when the
general term has held that such discretion has been properly ex-
ercised in refusing the writ, the court of appeals will not review
the order. Sage v. Lake Shore & Michigan Southern RR. Co. 70 N.
V., 220; People ex rel. Hatch v. Lake Shore & Michigan Southern R. R.
Co., 11 Hun, 1. See People ex rel. Stobo v. Eadie, 63 Hun, 320; aff'd
on opinion below, , 133 N. Y., 573.

As to what is sufficient evidence to support a recovery in an
action to recover a penalty under this section, see Kedsey v.
Pfaudler Process Fermentation Co.20St.Rep., 53333 N.Y Supp.,723. Asto >
what isa sufficient complaint,see Levy v. Cohen, 18 N.Y. Supp., 1555 45
St. Rep., 278. Proper affidavits to raise an issue in mandamus pro-
ceedings, Jn re Martinv. Wm. J. Johnston Co. (Limited) 25 Abb. N.C,
350; 62 Hun, 557; aff'd on opinion below, 133 N. Y.,692. Ina proceed-
ing to punish for contempt for disobedience to an order to
produce certain’ books which the corporation by law is required
to keep, there is a presumption that such books have been kept.
Fenton v. Dempsey, 50 Hun, 131, see also 7 NV. Y. Supp., 4355; 26 St
Rep., 243. This section does not affect the validity of an assign-
ment of stock actually made as between vendor and vendee, al-
though the stock has not been transferred upon the books of
the company. /ohnsonv. Underhill, 52 N. V., 203.

$30. Annual report.
This section is not applicable to railroad corporations.

31. 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 repre-
sentation, 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 corpora-
tion upon the faith of any such certificate, report, notice
or any material representation therein tothe amount of the
debt contracted upon the faith thereof if not paid when
due, or of the damage sustained by any purchaser of or
1
i

LIABILITIES OF OrFICERS—FALSE REPoRTS. 73

subscriber to its stock upon the faith thereof. The liabil-
ity 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 communi-
_cated either directly or indirectly to the person so becom-
“ing a creditor or stockholder and he became such creditor
or stockholder upon the faith thereof. No action can be
maintained for a cause of action created by this section un-
less 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 corporation,

{As am’'d by Laws 1892, ch. 688.)

Former sec. 31. Entirely remodelled. The liability is now declared to be “to
any person who has become a creditor or stockholder . . upon the faith of any
such certificate,” &c., and is limited to the amount of the debt contracted or the
damage sustained, and actions must be brought within two years.

L. 1848, ch. 4o, § 15.
L. 1875, ch. 611, § 21.

It is not necessary to show knowledge on the part of the
officer at the time of the signing; proof that the writing is un-
true “in any material representation” is sufficient. Huntington
v. Attrill, 118 N. Y., 365; Torbett v. Eaton, 113 N. V., 623; 49 Hun,
209. A cause of action under this section doesnot survive the
death of the creditor. Brackett v. Griswold, 107 Ni Y., 425; ot of
either party, Blake v. Griswold, 104. N. V., 6137. Astoa false cer-
tificate that the amount of the capital stock was fully paid, see
Hatch v. Attrill, 118 N. Y., 383; Huntington v. same, (above. ) Un-
der the general manufacturing act a finding that a report
omitted from the aggregate of indebtedness certain liabilities
of the company, known to the defendant, was held not to be

’ equivalent to a finding that the report was false in a material
representation and known to be so, as required by that act. But-
ler v. Smalley, ror N. Y., 71. Where part of the capital stock had
been issued for property, a report representing the capital stock
as all paid in, was held to be false under the general manufac-
turing act, which then provided that nothing but money should
be considered as payment. Pier v. Hanmore, 86 N. Y., 95; Bon-
nell v. Griswold, 80 N. V., 128; 89.N. Y.,122. The action is local
and must be brought in the county where the report is made
and filed. Veeder v. Baker, 83 N. Y., 756. The names of stock-
holders and the amount actually paid in, were required to be
74 THE Stock CorporaTION Law.

stated in an annual report. Held, that a report containing the
names of two persons as stockholders, and stating the amount
of their stock as actually paid in, when in fact such persons
were not stockholders at all, is false in a material representa-
tion. Brand v. Godwin, §& N. Y. Supp., 339; 29 St. Rep.. 1435 15
Daly 456. But see Walton v. Godwin, 58 Hun, 87.

Under the liability imposed by the general manufacturing act
for failure to file a report, it was held, that the fact that the
creditor was also a stockholder did not deprive him of his
remedy against the trustees, there being nothing to show, that
he was in any manner personally liable for the debts of the com-
pany. Sandborn v. Lefferds, 58 N. V., 179.

The liability extends only to the officers who sign the false
report. Pier v. Hanmore, 86 N. Y., 95.

A trustee was held not liable for a debt incurred after he
had resigned as trustee, and before his resignation was accepted.
Chandler v. Hoag, 2 Hun, 613; aff’d 63 N. Y., 62g. Anofficeris not
liable for a debt contracted before the filing of the false report.
Torbett v. Godwin, 62 Hun, 4o7; Watsonv. Same, 17 N. Y. Supp., 51;
42 St. Rep., 329; Young v. Godwin, 19 N. Y. Supp., 656; 46 St. R. 934;

‘ Woods v. Godwin, 19 N.Y. Supp., 658; 46 St. R.937; Ashley v. Godwin,
fd. Astowhat evidence is properin behalf of the defendant as to
value of patents, for which paid up stock had been issued, where
the plaintiff had introduced evidence showing the patent to be |
worthless, and that no work had been done under it, see Ferguson
v. Gill, 64 Hun, 28g. Acreditor is not estopped by the fact that he
knew the certificate was false. /d. (But see amendment of 1892.)
A surviving partner may recover for a debt due his firm. Al-
though renewal notes are given after the filing of the false re-
port, the “debt” is still within the terms of the statute. /d.

§$ 32. Alteration or extension of business,—Any
stock corporation heretofore or hereafter organized under
any general or special law of this state may extend or alter
its business and powers so as to include any purposes and
powers which at the time of such extension may have been
conferred by law upon corporations engaged in a business
of the same general character, or which might be included
in the certificate of incorporation of a corporation organiz-
ing under any general law of this state for a business of the
same general character, by filing in the manner provided
ALTERATION OR EXTENSION OF BUSINESS. 75.

for the original certificate of incorporation an amended
certificate, executed by a majority of its directors, stating
the extension of business and powers and rights proposed,
and that the same has been duly authorized by a vote of
stockholders representing at least three-fifths of the capital
stock, at a meeting of the stockholders called for the pur-
pose in the manner provided in section forty-five 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 Laws 1892, ch. 688.)
CHAPTER V.

THE STOCK CORPORATION LAW—STOCK AND STOCK-
HOLDERS.

ARTICLE III.

Stock ; STOCKHOLDERS, THEIR RiGHTS AND LiABILITIES.

Section 4o. Issue and transfers of stock.

41. Subscriptions to stock.

42. Consideration for issue of stock and bonds.

43. Time of payment of subscriptions to stock.

44. Increase or reduction of capital stock.

45. Notice of meeting to increase or reduce capital stock.

46. Conduct of such meeting ; certificate of increase or
reduction.

47. Preferred and common stock.

48. Prohibited transfers to officers or stockholders.

49. Payment by stockholders of mortgage debt pend-
ing foreclosure.

50. Application to court to order issue of new in place
of lost certificate of stock.

51. Order of court upon such application.

52. Financial statement to stockholders.

53. Exhibition of books by transfer agent of foreign
corporation.

54. Liabilities of stockholders.

55. Limitation of stockholder’s liability.

§ 40. Issue and transfers of stock.—The stock of
every stock corporation shall be represented by certificates
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
share shall be transferable until all previous calls thereon
shall have been fully paid in.

Any stock corporation, domestic or foreign, now exist-
ing or hereafter organized, except monied corporations,
may purchase, acquire, hold and dispose of the stocks,
‘bonds and other evidences of indebtedness of any corpo-
IssUE AND TRANSFERS OF STOCK. 77

ration, domestic or foreign, and issue in exchange therefor
its stock, bonds or other 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 supplementary 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 opera-
tion of works necessary or useful in the business of such
stock corporation, or in which or in connection with which
the manufactured 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 stockholders therein and the corporation hold- |
ing such stock shall possess and exercise in respect thereof,
all the rights, powers and privileges of individual owners
or holders of such stock.

Any stock corporation may, in pursuance of a unani-
mous 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 corporation 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 en-
gaged in the same general line of business.

(As am’d by Laws 1892, ch. 688.)

Former Sec. 40. This section is entirely remodelled. Certificates of stock
may now be signed by the “ president or vice president and secretary or treasurer.”
In place of the former limitation upon using its funds for the purchase of stock of
its own or any other corporation, a general provision is substituted allowing it to
‘purchase, acquire, hold and dispose” of such stock and issue in exchange there-
for its stock, &c., if authorized so to do by its certificate of incofporation, or if the
78 THE Stock Corporation Law.

corporations are engagedin similar business. The section also permits the
guarantee of the bonds of any other domestic corporation, engaged in the same
general line of business.

L. 1850, ch. r4o, § 8.

L. 1875, ch. 606, § 13.

L. 1881, ch. 468, § 12.

L. 1872, ch. 146. (Am’d by L. 1875,ch. 119,and L. 1883, ch.

361.)
DECISIONS UNDER L, 1850, Cu. 140, § 8.

' The same rule as to owning stock in other companies applies
to railroad corporations not formed under this act or the
act of 1848. But the company actually holding such stock
may receive dividends upon it, and has the right to sell the
stock. If, however, the company holding it attempts to vote on
it, an injunction will lie at the instance of a stockholder in the
company, the stock of which isso held. Milbank v. N. Y., L. £.
& W.R.R. Co., 64 How., 20. This section is not violated by a
transfer to a company of the stock of another company as a
gift. Even if this were not so and such transfer was made in
pursuance of a contract between the parties which had been
performed by the grantee company, the officers of that company
could not plead uitra vires in a suit brought by the stockholders
of their company against them to charge them with the misap-
propriation of the proceeds of certain bonds. Frothingham v.
Broadway & 7th Ave. R. R. Co., 9 Civ. Pro. Rep., 304.

A private corporation may, with the consent of its stockhold-
ers, sell all its property to another corporation, and take stock
in the latter company in payment therefor. Holmes & Griggs
Mfg. Co. v. Holmes & Wessel M. Co, 127 N. Y., 252, But
see Cole v. Millerton I. Co., 133 N. VY. 164.

Delivery of thecertificate may be sufficient transfer of stock, al-
though the transfer is not noted on the books of the company.
Chemical National Bank v. Colwell, 132 N. Y., 250. An agreement be-
tween stockholders not to sell,assign,pledge or give power of attor-
ney to vote, or agree to sell the stock respectively owned by the
parties without the concurrent consent of all, is void on its face.
Fisher v. Bush, 35 Hun, 641. Under asimilar provision in the by-laws
of acorporation as to certificates of stock, it was held that the
president and treasurer were authorized to issue certificates to
themselves in the same manner as to other stockholders. TZvtus
v, President, &c., Great W. Turnpike Road, 61 N. Y., 237, The cor-
SUBSCRIPTIONS TO STOCK. 79

poration is bound by the representation of its secretary that the
stock is genuine, 52 Av. B’k v. gad St. & C. R. R. Co, 17 N.Y;
Supp., 826; 44 St. Rep., 379, but not by such a representation by
its president to secure an individual loan. Manhattan Life Ins.
Co. v. gad St, &c., R. R. Co, 19 N. Y. Supp., 90; 46 St. Rep., 130.
A corporation is entitled to recover the purchase price of stock
in another corporation sold by it, although the original acquisi-
tion of such stock may have been illegal; and the corporation is
bound by its contract made in reference to such stock. Svstare
v. Best, 88 N. Y., 527; Holmes & Griggs Co.v. Holmes & Wessell Co.,
53 Hun, 52; 127 N. Y., 252.

The remedies of a stockholder who is denied recognition as
such by the company, are considered in Cushman v. Thayer Manf.
Co., 76 N. Y., 365; Commercial Bank of Buffalo v. Kortright, 22
Wend., 348; Hughes v. The Vermont Copper Mining Co. 72 N. Y., 207;
Robinson v. National Bank of New Berne, 95 N. VY. 637; King v.
Barnes, 113 N. Y., 476; Burrall v. Bushwick R. R. Co..75 N. V., 217;
Holbrook v. The N. J. Zine Co. 57 N. V., 616; Ormsby v. Vermont
Copper Mining Co., 50N. Y.,623; Peckhamv. VanWagenen, 83} N. Y.,
40; Ryder v. Bushwick R.R.Co., 32 St. Rep., 1105; 10N.Y. Supp., 748;
af’d 31 N. £., 251; 45 St. Rep. 388; Sims v. Bonner, 16 N. Y.
Supp., 801; 42 St. Rep., I4.

§ 41. 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 subscriber, whose sub-
scription 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.

(As am’d by Laws 1892, ch. 688.)

Former Section 41. The amendment of 1892 consists in the insertion of the
words, ‘‘ whose subscription, is payable in money,” and the substitution of the
word “cash” in the following clause of the section for the word “ money.”

L, 1850, ch. 140, § 4.
80 Tue Stock Corporation Law.

DECISIONS UNDER L, 1850, Cu. 140, § 4.

Subscriptions for stock, other than organization subscriptions, .
may be made before the organization of the company, provided
the ten per cent. thereon is paid on a proper call thereafter. It
seems, that it was not intended by this section to prescribe a
fixed statutory method of making subscriptions. Buffalo &
Jamestown R. R. Co. v. Gifford, 87 N. Y., 29g. A subscription made
after incorporation is not valid or binding until at least ten per
cent. of the amount has been paid; nor can such a subscription
be made valid by a subsequent statute. M. VY. & Oswego M. R.
R.Co.v. VanHorn, 57 N.Y., 473; seealso Troy & Rutland R. R.Co.2.
Kerr, 17 Barb., 587. But actual payment of, ten per cent. at any
period after subscription with intent to complete the subscrip-
tion, satisfies the statute, and such payment may be made in
services rendered the company. Beach v. Smith, 30 N. Y., 116 ;
Black River & Utica R. R. Co. v. Clarke, 25 N. Y.,208. Payment of
a subscription in patent rights of unascertained value is nota
payment “in money” within the meaning of this section. Tas-
ker v. Wallace, 6 Daly, 364. Notes having been given for the ten
per cent. and payment of the notes afterwards enforced at the
suit of a third party it was held to be payment within this sec-
tion. Ogdensburgh, Clayton & Rome R. R. Co.v. Wooley, 2 Keyes, 118.

A banking association chartered under the laws of this state
has no power to subscribe for the stock of a railroad corporation.
The Nassau Bank v. Jones, 95 N. Y., 115. :

Subscriptions to stock are not invalidated by an authorized
legislative amendment to the charter. The Union Hotel Co. v.
Hersee,79 N. Y., 454. An agreement between parties about to
form a corporation is not invalid because the capital stock is to
be represented by property which they severally contribute, at
a valuation agreed upon between themselves. Lorillard v. Clyde,
86 N. Y., 384.

Bonds taken as a bonus ona stock subscription by the direc-
tors are not valid. Duncomb v. NV. Y., Hous. & N. RR. Co, 8&4
iV. Y., 190.

A signature to the certificate of incorporation and placing
opposite thereto the number of shares to be taken, isa sufficient
subscription for stock. Phenix Warehousing Co. v. Badger, 67 N.
Y., 294. The corporation must be named as a party to the
agreement of subscription for shares. Lake Ontario Shore R. R.
Co. v. Curtiss, 80 N. Y., 219. The giving of a check for the ten
CONSIDERATION FOR Issuz oF STocK AND Bonps. 81

per cent. of the subscription, which check was countermanded
before presentment, is not a sufficient payment in cash to con-
stitute the person making it a subscriber. Excelsior Grain Bina-
ing Co. v. Stayner, 25 Hun, 91. See Durant v. Abendroth, 69 N. V.,
148. Liability for stock subscriptions arises from contract, not by
operation of law. No one can be made a stockholder without
his consent, express or implied. Glenn v. Garth, 133 N. V., 18.

§ 42. 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 purposes of such corporation. No
such stock shall be issued for less than its par value.

No such bonds shall be issued for less than the fair mar-
ket value thereof.

(As am’d by Laws 1892, ch. 688.)

The last two sentences are new.
L. 1875, ch. 611, § 14.

A debt due to the stockholder was applied upon his subscrip-
tion to the capital stock. It was held that this was a payment
“in money.” Veeder v. Mudgett, 95 N. V., 295.

The “fair value” contemplated by the statute is that which
the property had at the time of the sale. It could not be de.
pendent upon subsequent success or failure of the investment,
further than such result may have been in contemplation at
the time of the sale. It is a question for the jury, and they are
not required to give the defendant the benefit of all reasonable
doubts. Huntington v. Attrill, 118 N. Y., 365. The stock must be
issued at its par value, not its actual value, in payment for prop-
erty. Gamble v. Queens Co. Water Co,, 123 NV. Y., 92. See Van Cott
v. Van Brunt, 82 N. V., 535; Currier v.N. VW. S. & BR. Y.

Co., 35 Hun, 355.

§ 43. Time of payment of subscriptions to
stock.—Subscriptions to the capital stock of a corpora-
tion shall be paid at such times and in such installments as
the board of directors may by resolution require. If de-
fault shall be made in the payment of any installment as re-
quired by such resolution, the board may declare the stock and
all previous payments thereon forfeited for the use of the

F
82 THE Stock Corporation Law.

corporation, after the expiration of sixty Jays 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 so, his
stock and all previous payments thereon will be forfeited
for the use of the corporation.

Such stock, if forfeited, may be reissued or subscriptions
therefor may be received as in the case of stock not issued
or subscribed for. If not sold for its par value or sub-
scribed 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 capital
stock is reduced below the minimum required by law, the
capital stock shall be increased to the required amount
within three months thereafter or an action may be
brought or proceedings instituted to close up the business
of the corporation as in the case of an insolvent corpora-
tion. If a receiver of the assets of the corporation has
been appointed, all unpaid subscriptions to the stock shall
be paid at such times and in such installments as the re-
ceiver or the court may direct.

(As am’d by Laws 1892, ch. 688.)

Former section 43. The last part of the sectionis new, commencing with the
words ‘‘ such stock, if forfeited, may be re-issued,” &c.
L. 1850, ch. 140, § 7.
L. 1875, ch. 606, $11.
L. 1881, ch. 468, § 8.

DECISIONS UNDER L, 1850, Cu. 140, § 7.

Where one has successfully interposed the defence of the
statute of limitations toan action upon some of the installments,
on his subscription, he cannot enforce the issue of stock to him
although he pay all the installments not outlawed. Johnson ».
Albany & Susquehanna R. R. Co., 54 N. Y, 416. A party failing to
pay as required by the terms of his subscription is chargeable
with interest from the time of the default, and cannot compel
the company to issue the stock until not only the principal but
the interest is paid. Gould v. Oneonta,7z N. Y., 298. Upon the
granting of an order of sequestration and for the appointment
PAYMENT OF SUBSCRIPTIONS To STOCK. 83

of a receiver of an insolvent railroad corporation, 'the right of
action for unpaid subscriptions vests in him, anda judgment
creditor bringing an action under sec. 10 of the General Rail-
road Act after such order was granted but,before the appoint-
ment of the receiver under it was perfected, will be restrained
from prosecuting such action. Rankine v. Lilliott, 16 N. Y., 377.

The remedy by forfeiture is merely cumulative and does not
prevent an action for the installments until the remedy by for-
feiture is resorted to. Ogdensburgh, Rome & Clayton R. R..Co. v.

frost, 21 Barb., 541 ; Troy & Boston R.R. Co.v. Tibbitts, r8 Barb.,

297 ; Buffalo & N.Y. City R. R. Co.v. Dudley, 14 N. V., 336;
Northern R. R. Co. v. Miller, 10 Barb., 260.

The liability of the shareholder to pay for stock does not
arise out of his relation, but depends upon his contract, express
or implied, or upon some statute, and in the absence of
either of these grounds of liability a person to whom shares have
been issued as a gratuity, does not by accepting them make
-himself liable to pay the nominal face of the shares as upon a
subscription or contract. Christensen v. £no, 106 N. Y.,97. See
Central Trust Co. v. N. VY. City & Northern R. R. Co., 10 Abds.
NV. C., 382.

A subscription for treasury stock payable in such installments
as the Board of Trustees may call for, for the purposes of the bust-
ness, cannot be called for until the business requires it, and the
statute of limitations does not begin to run until the calls are
made. Willams v. Taylor, 120 N. V., 244.

After a forfeiture the corporation and the other stockholders
acquire vested rights in the forfeited stock, and an officer of the
corporation cannot extend the time of payment, and the stock-
holder’s willingness to pay isimmaterial. Weeks v. Silver Islet C.
M. & L. Co., 54]. & 8.1; afd, 120 N. Y., 620, In cases where
stock has been transferred as fully paid, in good faith, to pay a
contractor to build the road, the certificate does not render the
holder liable to pay for the stock. Van Cott v. Van Brunt, 82 N.
Y., 535. The stock and bonds may be so transferred to a con-
tractor for building the road; and when the stockholders and
contractors are the same persons, the fact that the company’s
directors were interested in the work of construction, will not
authorize a third person to complain, where all the stockholders
participated and acquiesced therein. Barrv. N.Y, Z. £.& W.
R. R. Co., 125 N.Y. 263. See Gamble v. Queens Co. Water Co., 123
84 THE Stock Corporation Law.

NV. Y.,9z. The effect of a release of one of the subscribers from
his obligation to pay for the stock was considered in [Vhitdlesey
au. Frantz, 74 N. V., 456.

A shareholder who in a valid and effectual manner has made
an absolute transfer in good faith of his stock to another person,
is released thereby from further liability upon calls for the pay-
ment of the stock. In the case of an original subscriber for
stock, the corporation may make a valid agreement with him
for the substitution of a new debtor upon his assigning his
stock with the consent of the company. Sillings v. Robinson, 94
NV. Y., 415; Cutting v. Damerel, 88 N. Y., gio.

In the absence of a provision in the charter authorizing the
company to proceed to business and to levy assessments upon
a partial filling upof its capital and before the entire stock jis
subscribed for, an assessment cannot be levied upon the sub-
scribers. Bray v. Farwell, 81 N. Y., 600. After payment of ten
per cent. of the subscription the company was consolidated with
another corporation and an agreement was made by which the
stockholders were to receive consolidated in place of the original
stock, such a stockholder in the original company, in the absence
of evidence that he has paid more on his stock, cannot com-
pel the consolidated company to issue to him full paid stock on
account of his subscription to the original company. In the
absence of a demand in the pleadings or otherwise for the issue
of stock to the extent of the ten per cent. paid by him, judgment
tor the defendant is proper. Babcock v. Schuylkill and L. V. RR.
Co., 133 NV. Y., 420.

$3 44. Increase or reduction of capital stock.—
Any domestic corporation may increase or reduce its capi-
tal stock in the manner herein provided, but not above the
maximum or below the minimum amount, if any, pre-
scribed by law. If increased, the holders of the additional
stock issued shall be subject to the same liabilities with
respect 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 amount of its reduced capi-
tal. unless an insurance corporation, in which case the
amount of its debts and liabilities shall not exceed the
amount of its reduced capital and other assets. The owner
of any stock shall not be relieved from any liability exist-
INCREASE OR REDUCTION OF CAPITAL STOCK. 85

ing prior to the reduction of the capital stock of any stock
corporation.
(As am’d by Laws 1892, ch. 688.)

Former section 44. The amendment of 1892 consists in the insertion of the
words ‘‘ but not above the maximum or below the minimum amount, if any, pre-
scribed by law,” and also of the insertion of the provision relating to insurance
corporations. :

. 1850, ch. 140, § 9. (Am’d L, 1880, ch. 133, and L. 1889,ch.426.):
. 1875, ch. 606, § 25.

. 1878, ch. 264, § 1.

. 1881, ch. 468, § rr.

Gi ibe

DEcISIONS UNDER L. 1878, CH. 264, § 1.

There is no provision for returning any portion of the actual
capital held by the company to its stockholders. (So held prior
to amendment of Sec. 3 by L. 1882, ch. 308.) The reduction
which the act had in view was the reduction of the nominal
eapital to an amount which would correspond with its actual
value, rather than a withdrawal and distribution of actual capi-
tal. Strong v. Brooklyn Cross Town R. R. Co., 93 N. Y., 426; People
ex rel. Eden Musee A. Co. v. Carr, 36 Hun, 488. As to the liability
of original stockholders who have complied with the statute,
when an increase is made, see Veeder v. Mudgett,95 N. V., 295.
See Cuykendall v. Douglass, 19 Hun, 577.

$ 45. Notice of meeting to increase or reduce
capital stock.—Every such increase or reduction must
be authorized by a vote of the stockholders owning at least
two-thirds of the stock of the corporation, taken at a
meeting of the stockholders specially called for that pur-
pose. Notice of the meeting, stating the time, place and
object, and the amount of the increase or reduction pro-
posed, signed by a majority of the directors, 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 personally served upon or duly mailed to
each stockholder or member at his last known post-office
address at least three weeks before the meeting.

(As am’d by Laws 1892, ch. 688.)

Former section 45. The amendment of 1892 consists in changing the time of
publication from ‘‘ three ” to ‘‘two’' successive weeks, and of the insertion of the
words ‘last known” in the last clause of the section.

L. 1850, ch. 140, § 9. (See sec. 44 for amendments.)
L. 1878, ch. 264, § 2.
86 Tue Stock CorporaTion Law.

§ 46. Conduct of such meeting; certificate of
increase or reduction.—TIf, at the time and place speci-
fied in the notice, the stockholders shall appear in person
or by proxy, in numbers representing at least two-thirds 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 num-
ber of votes shall be given in favor of such increase or re-
duction, a certificate of the proceedings, showing a com-
pliance with the provisions of this chapter, the amount of
capital actually paid in, the whole amount of debts and liabili-
ties of the corporation, and the amount of the increased or
reduced capital stock, shall be made, signed, verified and ac-
knowledged 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 corpo-
ration, or a monied corporation, such certificate 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 debts
and liabilities, and in case of the increase, or reduction of
the capital <tock of a railroad corporation, or a monied cor-
poration, the certificate shall have indorsed thereon the
approval of the board of railroad commissioners, if a rail-
road corporation ; of the superintendent of banks, if a cor-
poration formed under or subject to the banking law; and
of the superintendent of insurance, if an insurance corpo-
ration.

‘When the certificate herein provided for has been filed,
the capital stock of such corporation shall be increased or
reduced, as the case may be, to the amount specified in
such certificate. The proceedings of the meeting at which
such increase or reduction is voted, shall be entered upon
the minutes of the corporation. If the capital stock is re-
duced, the amount of capital over and above the amount of
the reduced capital shall be returned to the stockholders
pro rata at such times and in such manner as the directors
shall detertnine.

(As am'd by Laws 1892, ch. 688.)
PREFERRED AND ComMMON STOcK. 87

Former section 46, By the amendment of 1892, provision is made for the in-
crease or reduction of the capital stock of monied corporations. The former
Statute provided in the case of other corporations than railroads, that the
‘comptroller should certify that the ‘‘ actual market value of the stock before reduc-
tion was less than its par value.” This clause is omitted by the amendment.

L. 1850, ch. 140, § 9. (See sec. 44 for amendments.)
L, 1878, ch. 264, § 3. (Am’d by L. 1882, ch. 308.)

DECISION UNDER L. 1850, Cu. 140, § 9.

Increase of capital stock is the act of the stockholders as dis-
tinguished from the directors. Belmontv. Erie Ry. Co.,52 Barb., 671-

‘

Decision UNDER L. 1878, Cu. 264, § 3.
The filing of the certificate of itself operates to reduce the

amount of thecapital stock. Strong v. Brooklyn Cross Town R. R.
Co.,93 NV. Y., 426.

$ 47. Preferred and common stock.—Every do-
mestic stock corporation may have preferred and common
stock, and different classes of preferred stock, if the certifi-
cate of incorporation so provides or by the unanimous con-
sent of the stockholders, and may, upon the written request
of the holder 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, share for share,
or upon such other valuation as may have been agreed
upon in the scheme for the organization of such corpora-
tion, or the issue of such preferred stock, but the total
amount of such capital stock shall not be increased thereby.

(As ath’d by Laws 1892, ch. 688.)

Former section 47. By the amendment of 1892 corporations may have pre
ferred and common stock, if the certificate of incorporation so provides, or by the
unanimous consent of all the stockholders.

L, 1880, ch. 225.
The power to issue preferred stock is considered in Keni v. The
Quicksilver Mining Co, 78 N. Y., 159, and Campbell v. American Zy-
lonite Co., 122 N. Y., 455.

§ 48. Prohibited transfers to officers or stock-
holders.—No. corporation which shall have refused to
pay any of its notes or other obligations when due, in law-
ful money of the United States, nor any of its officers or
88 THE Stock Corporation Law.

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 con-
veyance, assignment or transfer of any property of any
such corporation by it or by any officer, director or stock-
holder thereof, nor any payment made, judgment suffered,
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.

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 transfer or as-
signment or other act done in violation of the foregoing
provisions of this section shall be void.

No conveyance, assignment or transfer of any property
of a corporation formed under or subject 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 a previous resolution of its board of
directors, 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 pay-
ments 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 vio-
late or be concerned in violating any provision of this sec-
tion, shall be personally liable to the creditors and stock-
holders of the corporation of which he shall be director or
an officer to the full extent of any loss they may respect-
ively sustain by such violation.

(As am’d by Laws 1892, ch. 688.)
TRANSFERS TO OFFICERS OR STOCKHOLDERS. 89.

This section is entirely remodelled by the amendment of 1892. The words ‘‘or
upon any other consideration than the full value of the property paid in cash ” are
\nserted and all of the section after the first paragraph is substantially new. Di-
Tectors and officers are liable to creditors and stockholders ‘‘to the full extent of
‘any loss they may respectively sustain ” by violation of this provision.

iR. 5, ch, 18, P.4 $4,

(Note. This section of the Revised Statutes was repealed by L. 1882, ch. 402,
‘sec. I, sub. 39. The latter was amended by L. 1884, ch. 434, by leaving out from
the enumerated sections of the R. S., repealed by that act, the above sec. 4.)

Decisions UnDER 1 R. S., Cu. 18, T. 4, § 4.

In order to constitute a violation of this provision the act
‘must have been done because of existing or anticipated insol-
vency. It is not enough that insolvency and the act co-
exist. Paulding v. Chrome Steel Co, 94 N. Y., 334. It must
appear that the corporation is insolvent. verson v. Eddy, 12
N.Y. Supp., 872; 36 St. Rep. 763. A corporation may permit
the creditor to take hostile proceedings and allow those who
are most ‘vigilant, to obtain a preference. This is not a viola-
tion of this section. Varnum v. Hart, 119 N. Y., ror; but not so
in the case of a director who is also a creditor, although in hos-
tility to the corporation. TZyroop v. Hatch Lithographic Co., 125 N.
Y., 530. It is necessary to show active procurement by some
‘officer of the corporation. Dickson v. Mayer, 26 Abb. N. C., 257;
375 St. Rep., 482; 12 N. Y. Supp., 652. Té the creditor acted in
good faith he will be protected for advances to take up encum-
brances. King v. Union Iron Co., 33 St. Rep., 545; 14 N.Y. Supp,
603. An offer of judgment followed by a purchase by the cred-
itor in sequestration proceedings at less than value, was held
invalid in ational Broadway Bank v. Wessel Metal Co., 59 Hun, 470.
The effect of a chattel mortgage followed by a bill of sale was
considered in Kedley v. Mechanics’ and Traders’ Bank, 39 St. Rep.,
438; 15 N.Y. Supp., 173. See Dutcher v. Imp. & Trad. Bk. 59 WN.
Y., 5; Atkinson v. Rochester P. Co., 114 NV. V., 268.

It seems, that stockholders may not seek to avoid transfers
made in violation of this section. The doctrine of equitable
estoppel is applicable to them. Zhe Sheldon Hat Blocking Co. v.
The Eichemeyer Hat Blocking Co., 90 N. Y., 607. A transfer toa
stockholder for value, though out of its a¢customed line of busi-
ness, with a view to promoting the interest of the company and
to render it more profitable and advantageous to its stockhold-
ers, is not within the prohibition of this section. Binns v.
go Tue Stock Corporation Law.

Williams, 88 N. Y.,660. A corporation can not offer judgment
under circumstances which bring it within this section. ings-
ley v. The First National Bank of Bath, 31 Hun, 329; see also
National Broadway Bank v. Wessell Metal Co., 59 Hun 470; Var-
num v. Hart, 119 N. Y., 101; Braemov. Merchants’ Nat. Bk. 127 N,
Y., 508. The remedy must be sought in equity when the pro-
ceeds of a sale have been paid overto the creditor. Jd. A for-
eign corporation is not subject to this provision, and an attach-
ment by a director was sutained. Ail v. Knickerbocker Electric
Light & P.Co., 18 N.Y. Supp., 813; 45 St. Rep, 76x. The prohi-
bition extends to any transfer where the parties know that the
effect will be to make the corporation unable to pay its debts.
Cole v. Millerton I. Co., 133 N. Y., 164.

$49. Payment by stockholders of mortgage
debt pending foreclosure.— Whenever default shall be
made by any corporation in the payment of principal or
interest of any of its bonds, secured by mortgage or deed
of trust of its property, any stockholder may at any time
during the pendency of the foreclosure of such mortgage
or deed of trust and before the sale thereunder pay to the
mortgagees or grantees in such mortgage or deed, for the
use and benefit of the holders of such bonds, a sum equal
to such proportion of the amount due and secured to be
paid by such mortgage or deed, as his stock in such cor-
poration shall bear to its whole capital stock, and on mak- |
ing such payment he shall to the extent thereof become

and be interested in such mortgage or deed and protected
thereby.

Former sec. 49. The title is changed by the new act.

L. 1853, ch. 502.

See Pratt v. Munson, 84 N. Y., 582; Harpending v. Munson, or N.
Y., 650; Thornton v. Wabash Ry. Co., 81 N. Y.,462. An action in
equity can not be maintained by a stockholder against a director
owning bonds of a company secured by mortgage, who has be-
come the purchaser on foreclosure for the purpose of impressing
a trust upon the property for the benefit of the stockholders be-
cause of fraudulent conduct on the part of the director in pro-
curing the default which caused the foreclosure at least with-

out paying or offering to pay to him the amount of the bond.
‘Harpending v. Munson, 91 N. Y., 650.
Lost CERTIFICATES OF STOCK. 9!

_ $50. 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 corporation
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 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. Uponthe presenta-
tion 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 presi-
dent or other head of the corporation, or on the secretary
or treasurer thereof, personally, at least ten days before the
time for showing cause.

(As am’d by Laws 1892, ch. 688.)

Former sec. 50. The amendment of 1892 consists in the insertion of the words
“‘orin which the principal business office of the corporation is located.”

L, 1873, ch. 151, §1.

In order to give the court jurisdiction to grant an order under
this section it must be proved that the petitioner is the owner
of the shares. Jn re Biglinv. Friendship Assn., 46 Hun, 223.

$51. Order of court upon such applicgation.—
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
92 Tue Stock Corporation Law.

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 should 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 num-
‘ber 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 indern-
nify any person other than the petitioner who shall there-
after be found to be the lawful owner of the certificate lost
or destroyed ; 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 cértificates alleged to have been lost or destroyed shall
have recourse to such indemnity, and the corporation shall
be discharged from all liability to such person upon com-
pliance with such order; and ohedience to the order may
be enforced by attachment against the officer or officers
of the corporation on proof of his or their refusal to com-
ply with it.
Former sec. 51. The title is changed by amend ment of 1892.

L. 1873, ch. 151, $2.

$ 52. Financial statement to stockholders,—
Stockholders owning five per centum of the capital stock
of any corpororation other than a monied 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 presenting 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 busi-
ness 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 application, for good cause shown,
FINANCIAL STATEMENT TO STOCKHOLDERS. 93:

extend the time for making and delivering 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.

(As am’d by Laws 1892, ch. 688.)

Former section 52. The amendment of 1892 consists in the insertion of the-
words ‘‘ other than a monied corporation,” also the words the ‘‘ chief fiscal ‘officer
thereof.” The time within which the statement is to be prepared is changed
from “twenty” to ‘‘ thirty” days, and a copy must be kept on file ‘‘twelve’™
months instead of ‘‘six,” and only one such may be required ina year. The time
may be extended by the supreme court or a justice thereof.

L. 1848, ch. 40, §.27, (added by L. 1854, ch. 201, and amended.
by L. 1862, ch. 472.)

A statement in detail of the assets and liabilities is sufficient
without containing an account of all the business transactions
of the company. Srench v. McMillan, 43 Hun, 189.

§ 53. Exhibition of books by transfer agent of
foreign corporation.—The transfer agent in this state
of any foreign corporation, whether such agent shall be a
corporation or or a natural person, shall, at all times.
during the usual hours of transacting business, exhibit to
any stockholder of such corporation, when required by
him, the transfer book, and a list of the stockholders thereof,
if in his power to do so, and for every violation of the pro-.
visions of this section, such agent or any officer or clerk of
such agent, shall forfeit the sum of two hundred and fifty
dollars, to be recovered by the person to whom such re-.
fusal was made.

(As am’d by Laws 1892, ch. 688.)

Former section 56.

L. 1842, ch. 165, §§ 1 and 2.

- Decisions UnpDER L. 1842, Cu. 165.

This statute is only applicable to transfer agents. The duties.
thereby created are not put upon the corporations or the officers.
of the corporations which they represent. People ex rel. Hatch v.
Lake Shore & Mich. South. R. R. Co., 11 Hun, 1; People ex rel. Field
O4 THE Stock Corporation Law.

v. Northern Pacific R. R.Co., 50 Supr. Ct., 456. Itis the absolute
duty of such agents to exhibit at all reasonable times during
the usual business hours to any stockholders when required the
transfer book and a list of the stockholders, if in his power so to
do. A demand for the exhibition of the “stock book” is not
sufficient asa demand for the transfer book. Kennedy v. Chic.,
Rock Isl.& Pac. R. R. Co., 14 Abb. N. C., 326. The court has a
right to order a reference to take proof on matters upon which
it desires better information before proceeding. People ex rel.
Del Mar v. St. Louis & San Franctsco Ry. Co., 44 Hun, 552. The
transfer agent can not object to exhibit the transfer books
on the ground that the applicant’s motives are hostile to the
corporation. People ex rel. Harriman v. Paton, 20 Abb. N. C., 172.

$54. Liabilities of stockholders.—The | stock-
holders of every stock corporation shall, jointly and sever-
ally, be personally liable to its creditors to an amount
equal to the amount of the stock held by them re-
spectively, 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. The stockholders of every stock corporation shali,
jointly and severally be personally liable for all debts due
and owing to any of its laborers, servants or employes
other than contractors, for services performed by them for
such ‘corporation. Before such laborer, servant or em-
ploye shall charge such stockholder for such services, he
shall give him notice in writing within thirty days after the
termination of such services that he intends to hold him
liable, and shall commence an action therefor within thirty
days after the return of an execution unsatisfied against
the corporation upon a judgment recovered against it for
services. 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
LIABILITIES OF STOCKHOLDERS. 95

as the testator or intestate, or the ward, or person inter-
ested 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, adminis-
trator, guardian or trustee voluntarily invested the trust
funds in such stocks, in which case he shall be personally
liable asa stockholder.

(As am’d by Laws 1892, ch. 688.)

Former section 57. The amendment of 182 consists in the substitution of the.
‘words “ every debt of the corporation” for the words ‘all debts and contracts
‘made by the corporation.” The liability formerly was ‘‘ until the whole amount
-of its capital stock shall have been paid in and a certificate thereof . . shall,
thave been filed and recorded,” &c. By the amendment the liability is ‘‘ until the
whole amount of its capital stock issued and outstanding at the time such debt
‘was incurred shall have been fully paid.”

L. 1850, ch. 140, §§ roand 11. (§10,am’d by L. 1854, ch
. 282.)

L. 1875, ch. 606, § § 12 and 15.

L. 1848, ch. 40, §§ 10, 11, 16 and 18.

L. 1875, ch. 611, §§ 23 and 37.

See L. 1875, ch. 392, $8.

Decisions Unper L. 1850, Cu. 140, § ro.

In an action ag tinst a stockholder of a railroad corporation by
a creditor thereof, under this section, the record of a judgment
against the corporation is competent evidence of plaintiff’s
status as a creditor, and of the amount due him. The effect of
this provision is not to impose any penalty or original liability
upon the stockholder, but simply to confer upon the creditor of
the corporation a right to pursue, for the satisfaction of his
claim, the indebtedness of the stockholder to the corporation
for his unpaid subscription. The creditor claims through the
corporation, and if he shows that he is a creditor by evidence
binding and conclusive against it, the evidence is competent
against the stockholder. Stephens v. Fox, 8&7 N. Y., 373. One
whose shares of stock have been forfeited by the company for
non-payment of calls is not a stockholder within the meaning of
this section so as to render him liable to a creditor of the com-
pany for the amount unpaid on the forfeited stock, although the
debt was contracted by the company before the stock was for-
feited. Mills v. Stewart, 41 N. Y., 384. A judgment creditor of
the corporation will be restrained from prosecuting an actien
96 THE Stock Corporation Law.

against a stockholder under this section, commenced by him
after an order of sequestration and for the appointment of a re-
ceiver of the corporation has been made, but before the ap-
pointment of the receiver under it has been perfected. Rankine
v. Elliott, 16 N. Y..377. This section is not applicable where the
stock has been disposed of by the company, in good faith and
without fraud, to a contractor for building the road. Van Cott v.
Van Brunt, 82 N. Y., 535, 542. A claim based upon this provision
is extinguished by the subsequent payment to the corporation
of the amount payable by the stockholder on his stock. IVell-
ington v. Continental C. & I. Co, 52 Hun, go8. The stockholder
when sued may defend upon the ground that the original judg-
ment against the corporation is a nullity by reason of defective
service of the summons. Beardsley v. Johnson, 121 N. Y., 224.
A contractor for the construction of a part of a railroad is not
a laborer or servant within this section. Azken v. Wasson, 24
NV. Y., 482. A laborer who has done work for a contractor is not
entitled to recover of a stockholder who has paid for his stock
in full, under this section. Gallagher v. Ashley, 26 Barb, 143;
Boutwell v. Townsend, 37 Id. 205. In an action by a laborer to.
charge a stockholder, the mere proof that a judgment has been
obtained and an execution issued and returned unsatisfied, is
not enough. The plaintiff must also prove the nature of the
debt and that it is within the terms of this section. Conant v.
Van Schaick, 24 Barb., 87; McMahon v. Macy, 51 N. ¥., 155. This
case also holds that “laborers and servants ” include all persons
employed in the service of the company whether as engineers,
master mechanics or conductors who have not distinctive ap-
pellations such as officers or agents of the company.

DECISIONS UNDER L, 1850, Cu. 140, § 11.

In an action by a creditor against a stockholder to enforce the
liability imposed by section ro of the act, parol evidence is com-
petent to show that the defendant holds the stock as collateral
security only, although by an assignment absolute in form.
McMahon v. Macy, 57 N. Y., 155. The liability imposed by this
section is not penal and survives the death of the stockholder
and continues against his executors. Cochran v. Wiechers, 119 N.
Y., 399. See Wiles v, Suydam, 6g N. Y., 1737. The creditor has
his election whether to bring such an action against the indi-
vidual stockholder, or to bring an action in equity, and have an
accounting between all the stockholders and all the creditors,.
when the rights of each can be ascertained and protected. If,
LraBILITIES OF STOCKHOLDERS. 97
i

however, the stockholder is himself a creditor of the corpora-
tion to an amount equal to his stock, and his debt is one for
which the stockholders are individually liable, such fact consti-
tutes a defence. Mathez v. Neidig,72 N. Y., 100; Agate v. Sands,
73 NV. V., 620. See, Young v. Brice, 3 N.Y. Sipp., 123; 18 St. Rep,
945, also Wheeler v. Miller, 90 N. Y., 353. The equities how-
ever must be equal. Bulkley v. Whitcomb,z2z N. Y., 107. Pay-
ment to another creditor after suit brought, see Richards v. Brice,
22 St. Rep., 289.

If an equity action is brought, the actions of individual stock-
holders may be restrained. Cochran v. Amer. Opera Co., 20 Abb,
NV. C., 114, see 119 N. Y., 3909.

A certificate which is signed and acknowledged, but not sworn
to, is insufficient. Hardman v. Sage, 124 N. Y., 25. It is not
enough that the stock shall have been paid in full, the certificate
must have been recorded. Plass v. Housman, 2 N. Y. Supp., 235;
17 St. Rep., 671. The certificate is not conclusive as to the: pay-
ment. Veeder v. Mudgett, 95 N. Y., 295.

As to the liability where the stock is increased, see Veeder v.
Mudgett, 95 N. V., 295; Griffith v. Greene, 129 N. Y., 317. The
liability with respect to increased stock only attaches to
holders of that stoek. /d. The stockholder’s liability under
this section is limited to the amount of his stock with interest
from the time of the commencement of the action against him.
Handy v. Draper, 89 N. V., 334.

Where part of the stock is issued in payment for property, it
is a question for the jury whether it was issued in good faith, or
simply as a scheme to evade the statute. Lake Superior [ron Co:
v. Drexel, 90 N. Y., 87; Brown v. Smith, 80 N. V., 650, aff’g 13 Hun,
408; Douglass v. Ireland, 73 N. Y., 100; Schenck v. Andrews, 57 N.
Y., 733. lt seems, that if the creditor is a firm, one member of
which is a trustee of the corporation and a stockholder, the firm
cannot maintain an action under this ‘section against another
stockholder. Knox v. Baldwin, 80 N. Y., 6ro. The right of a
creditor is a several right and not a joint right in the creditors
generally, Weeks v. Love, 50 N. Y., 568. The term “creditors”
does not include directors to whom the company is indebted for
salaries. McDowall v. Sheehan, 129 N. Y., 200.

A transfer in the form required by the statute, viz: by entry:
upon the stock book of the company, is necessary in order to.
relieve the stockholder from his liability under this section,

G.
98 THE Stock CorporaTion Law.

Shellington v. Howland, 53 N. V., 371; Tucker v. Gilman, 121 N. Y.,
18. Both are primarily liable to creditors, and each liable to
the other in accordance with general legal rules. /ohnson wv
Underhill, 52 N. Y., 207. As to who is a stockholder when the
stock is held by another person for the benefit of the real stock-
holder, see Burr v. Wilcox, 22 N. Y., 55z. The action is not re-
ferable against the objection of defendant. Claftin v. Drake, 38
Hun, 144g. A stockholder is not liable for debts contracted
before he became a stockholder. Tracy v. Yates, 18 Barb., 752.
The fact that the defendant has paid his stock in full does not
relieve him from liability. Wheeler v. Miller, go N. Y., 35.3.

The liability is directly to the creditors who have complied
with the required condition. There is no statutory provision
by which the rights of such creditors are vested in a receiver of
the corporation. Farnsworth v. Wood,gz N. Y., 308 The ap-
pointment of a receiver does not affect the right of the creditors
to proceed against the stockholders under this section. An or-
der restraining creditors from enforcing their claims by obtain-
ing judgment and issuing execution should be modified in so
far as it prevents them from obtaining judgment and issuing ex-
ecution as a pre-requisite to enforce the individual liability of
stockholders. JAlasonv. NV. Y. Silk Manf. Co. 27 Hun, 307. See
Kincaid v. Dwinelle, 59 N. Y.. 548 An assessment upon the
stockholders by a receiver based upon the entire indebtedness
of the company is illegaland can not be enforced by action
against them. Cuykendall v. Corning, 88 N. Y., 129.

ft seems, that bonds issued by a manufacturing corporation and
to the knowledge of the holder diverted from the purpose for
‘which they were authorized, are not in the hands of such holder
a debt against the company for which the trustees may be held
liable for failure to filean annual report. Kirkland v. Kille, 99
NV. Y., 390. Under the same section (12) of the manufacturing
act it was held that a judgment for costs, recovered against a
company in an action for trespass brought by it, was a debt for
which the trustee might be held liable. A//en v. Clark, 108 N. Y.,
269. Causes of action for breach of contract or matters inci-
dental thereto which may be defended are not existing debts
within section 12. Victory Web Printing, &c., Co. v. Beecher, 26
Hun, 45, aff'd without passing upon this point, 97 N. V., 651. A
gift of bonds does not create a debt for which a trustee could be
held liable for a failure to filethe annual report. Morris v. De-
Wolf, 12 Hun, 666; aff'd 76 NV. Y., 597. Under the same pro-
4

LIABILITIES OF STOCKHOLDERS, -99

\

' vision it was held that trustees were not liable for an indebted-

ness imposed upon the corporation by fraud or improper. prac-

tices of the creditor. Adamsv. Mills, 60 N. Y.,533. The liability

does not extend to an executory obligation. Whitney Arms Co.
v. Barlow, 68 N. V., 34. See also Sherman v. Slayback, 58 Hun,
255; Gold v. Clyne, 58 Hun, 419, aff'd by Courtof Appeals, Oct. 2, 1892.
As to the necessary facts to warrant a recovery, see Wat. Tube
Works v. Gilfillan, 124 N. Y., 302.

As to the meaning of the words “servant and laborer” see
Hill v. Spencer, 61 N. Y., 274; Dean v. DeWolf, 16 Hun, 186; aff'd
82 NV. Y., 626.

In an action to establish the liability of a stockholder to an
employee, it was held as between the stockholder and creditors,
the fact that he held the certificate of stock and the books of
the company disclosed this fact, constituted him a stockholder
within the section. A book-keeper employed at a yearly salary
acting as general manager of the company is not: such a laborer
as is entitled to the benefit of this section. Wakefield v: Fargo,
go NV. Y., 213. A book-keeper was held to be a “servant” en-

‘titled to the protection of the corresponding section of the gen-

eral manufacturing act. Chapman v. Chumar,7 N. VY. Supp., 230;
26 St. Rep., 473. Under an allegation that the stock had not
been fully paid in, it may be shown that the. property in pay-

-ment for which all the capital stock was issued was not equal in

value to the amount of such stock. Goodrich v. Dorman, 14 N.
V. Supp., 879; 38 St. Rep., 198. It is not necessary in a complaint
to negative the defensive matter that the debt was not to be
paid within one year, etc. (Seenextsection.) Woodardv. Holland
Medicine Co., 15 N.Y. Supp., 128; 39 St. R., 471.

§ 55. Limitation of stockholder’s liability.—No
action shall be brought against a stockholder for any debt
of the corporation until judgment therefor has been recov-
ered against the corporation, and an execution thereon has
been returned unsatisfied in whole or in part; and the
amount due on such execution shall be the amount recov-
erable 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 after the debt
100 THE Stock Corporation Law.

becomes due; and no action shall be brought against a
stockholder after he shall have ceased to be a stockholder,
for any debt of the corporation, unless brought within two
years from the time he shall have ceased to be a stock-
helder.

Former section 58. The title was changed by the amendment of 1892.

L. 1848, ch. 40, § 24.
L. 1875, ch. 611, § 25.

If the creditor is prevented from obtaining judgment by injunc-
tion or other paramount authority, this requirement may be dis-
pensed with. Skellington v. Howland, 53 N.Y., 371; Kincaid v, Dwinelle,
59N. Y., 551; Hardman v. Sage,124 N.Y.,25. A proceeding in rem
affecting only property of the corporation attached and execu-
tion against that property is not a compliance with this section.
Nor is the recovery of a judgment or issuing of an execution in
another state. Rocky Mountain Nat. Bk v. Bliss, 89 N. Y., 338.
The statute of limitations does not begin to run in favor of a
stockholder until after the return of execution against the cor-
poration. Handy v. Draper, 89 N. Y. 334. See also Kincaid v.
Dwinelle, 59 N. Y., 548.

The two year limitation for the bringing of an action against .
the company runs from the time the debt first became due. A
renewal by the company does not continue the stockholder’s
liability. Jagger Iron Co.v. Walker, 76 N. Y., 522; Hardman v.
Sage, 124 N. Y., 25. Under the provision that “no action shall
be brought against the stockholder after he shall have ceased to
be astockholder . . . unless brought within two years from
the time he shall have ceased to be a stockholder” if a final
judgment of dissolution divests the interests of the stockholders
the time limited begins torun from the date of the entry of
such judgment. Hollingshead v. Woodward, 107 N. Y., 96.
CHAPTER VI. .

THE RAILROAD LAW—ORGANIZATION AND GEN.
ERAL POWERS.

L. 1890, Cuar. 565,

AN AUT in relation to railroads, constituting chapter thirty-nine of the general
laws.

CHAPTER XXXIX OF THE GENERAL LAWS.

- THE Rattroap Law.

ARTICLE 1. Organization; general. powers; location (§§ 1-21.)
2, Construction ; operation ; management (§ § 30-59.)
3. Consolidation ; lease ; sale; reorganization (§ § 70-
83.)
4. Street surface railroads (§ § 90-110.)
5. Other railroads in cities and counties (§ § 120-142.)
6. Board of railroad commissioners (§ § 150-171.)

ARTICLE I.
OrGaANIzATION, GENERAL Powers, Location.

Secrion 1, Short title.
2. Incorporation.
3. Supplemental certificate.
4. Additional powers conferred:
Entry upon lands for purpose of survey.
Acquisition of real property.
Construction of road.
Intersection of streams, highways, plank- -
roads, turnpikes and canals.
Intersection of other railroads.
Buildings and stations.
Transportation of persons and property.
Time and manner of transportation.
g. Purchase of landsand stock in other states.
5. When corporate powers to cease.
6. Location of route.
7. Acquisition of title to real property.

BOS»

eS Ot
102 THE RaiLroap Law.

8. Railroads through public lands.
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 countries.

18. Additional corporate powers of such road.

19. Location of principal office of such road.

20. Individual, joint-stock association or other corpora-
tion may lay down and maintain railroad tracks
in certain cases. ‘

21. When electric light and power corporation may be-
come a railroad corporation.

Secrion 1. Short title.—This chapter shall be
known as the railroad law.

§ 2. Incorporation.—Fifteen or more persons may
become a corporation, for the purpose of building, main-
taining and operating a railroad, or of maintaining and
operating a railroad already built, not owned by a rail-
road corporation, or for both purposes, by executing,
acknowledging and filing a certificate, in which shall be
stated:

1. 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-guage road, when it
orc not be less than three thousand dollars for every such
mile. ;
SHORT TITLE—INCORPORATION, —- 103

- 7. The number of shares into which the capital stock is
to be divided.

8. If the capital stock is to consist of common and pre-
ferred stock, the amount of each class and the rights and
privileges of the latter over the former.

g. The names and post-office addresses of the directors
of the corporation, not less than nine, who shall manage
its affairs for the first year.

10. The place where its principal office is to be located.

Un If a street surface railroad, the names and descrip-
tion 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 incorporation.

13. The name and post-office address of each subscriber
to the certificate and the number of shares of stock he
agrees to take,

Such certificate shall have endorsed thereon, or annexea
thereto, to be taken as a part thereof, an affidavit of at least
three of such directors, 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 inthe certificate, and that it is in-
tended 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 subscribed, and there shall be
annexed to the certificate of incorporation and as a part
thereof the certificate of the railroad commissioners show-
ing the organization of the corporation for the purposes
mentioned in the certificate.

The filing of every certificate, where the amount of stock
required by this section has not been in good faith sub-
scribed and paid in cash, shall be void.

(As am'd by Laws 1892, ch. 676.)

Subdivision 11 was added by the amendment of 1892. The statute now requires
that ten per cent. of the minimum amount of capital stock shall be paid in.
104 THE RatLroapD Law.

The provision relating to the affidavit of directors of a railroad corporation speci-
fied in article five of this act, is new in form, (see sec. 128,) and the provision for
a certificate by the railroad commissioners is also added by the amendment of 1392.

L. 1850, ch. 140, §§ 1 and 2.

L, 1866, ch. 697, § 1.

L. 1871, ch. 560,§ 5. (Am’d by L. 1872, ch. 81, L. 1877, ch’
103, and L. 1879, ch. 293.)

L. 1875, ch. 606, § 9.

L. 1881, ch. 468, $$1 and 2.

L. 1884, ch. 252, § 1.

See § 59 of this act.

DECISIONS UNDER L. 1850, Cu. 140, § 1.

Corporations for transporting freight or passengers by horse
power over railroads in the streets of cities in this state, except
New York City, may be formed under this act, 7a re Washn. St.
A.& P.R.R. Cov. S. B.& N.Y. R. R. Co, 115 N. Y., 442. This
act confers no authority to construct an elevated railroad in the
streets of acity. Schaper v. Brooklyn & L. I. Cable Ry, Co., 124 N.
Y., 630; People's Rapid Transit Co. 7. Dash, 125 N. Y.,93. A signa-
ture to an incomplete paper wanting in some substantial require-
ment, with no delegation of authority to supply the defect, does
not bind the signer without consent on his part to the comple-
tion of the instrument. Dutchess & Columbia R. R. Co. v. Mabbett,
58N.Y., 397. Execution of the articles of association by duly
authorized agents of the incorporators is sufficient. J/atter of
N.Y., Lack. & W. R. R. Co,99 N. Y.. 22. A subscription made
by a partner in a partnership name, if authorized, is a compli-
ance with the statute. Ogdensburg, Rome, &c., R. R. Co. v. Frost,
2r Barb. 541. Ina case in which the corporation was organized
under L. 1848, ch. 140, it was held that a subscription by one of
several heirs, “estate of N. W., too shares, $10,000,” was not
binding either on himself or his co-heirs, not being in compli-
ance with the similar section of that act. Troy & Boston R. R.
Co. v. Warren, 18 Barb., 310.

Where the articles of association filed with the secretary of
state consist of separate instruments, exact copies of each other,
each being signed by a different portion of the incorporators,
the several papers are to be regarded as one instrument. Lake
Ontario A. & N.Y. R. R. Co. v. Mason, 16 N. Y., 451; see Sodus
Bay and Corning R. R. Co. v. Hamlin, 24 Hun, 390. But a sub-
scriber is not bound by his subscription, unless the copy of the
INCORPORATION. 105
articles with his signature is filed pursuant to the statute.
Erie & N.Y. City R. R. Co. v. Owen, 32 Barb., 616.

One of the termini was located by the company at an eligible
point in Brooklyn, under its charter, and the particular location
was adhered to for some years; held, that the company was
concluded by its acts. Brooklyn Central R. R. Co. v. Brooklyn C ity
R. R. Co., 32 Barb., 358. See Hudson & Delaware Canal Co. v. N.
Y. & Erie R. R. Co. 9 Paige, 3723. As tothe force and effect of
the word “at” used in articles of association in reference to a
town, see Mason v. Brooklyn City & Newtown R. R. Co. 35 Barbs
373; Mohawk Bridge Co. v. Utica & Schenectady R. R. Co., 6 Paige,
554. The articles having stated the termini of the road and that
the length was about 300 miles, held, that this was sufficient.
Matter of N.Y, Lack. & W.R. R. Co., 35 Hun, 220; af'do9 N. Y.,
72. The statute requires only such an approximate estimate of the
length of the proposed road as may be made in good faith with-
out an actual survey and location. Buffalo & Pittsburgh R. R.
Co. v. Hatch,20 N. V., 157. Itis no defense to an action to re-
cover the auheetiption of an original incorporator that the ar-
ticles were defective, in not stating definitely the zermini of the
road, or the counties through which it passed, the road having
been put in operation and the company recognized by an act
of the legislature. Cayuga Lake R. R. Co. v. Kyle, 64 N. Y., 185.
The corporation is not formed and does not become a legal
body until all the requirements of the statute have been com-
plied with, and the articles of association filed in the office of
the secretary of state. Burt, Recezver, &., v. Farrar,.24 Barb,
4sré. Irregularities in the proceedings required by law to be
taken in organization may be cured by aspecial act of the legis-
lature recognizing the existence of the corporation. Black
River & Utica R. R. Co.v. Barnard, 31 Barb., 258.

DECISIONS UNDER L, 1850, Cu. 140, § 2.

It is not necessary that ten per cent. be paid on each subscrip-
tion. Itis sufficient if the cash payments, by whomsoever made,
amount in the aggregate to ten per cent. on $1,000.00 per mile.
Lake Ontario, Auburn & N.Y. R.R. Co. v. Mason, 16 N. VY, 451.
See also Ogdensburgh, Rome & Clayton R. R.Co. v. Frost, 21 Barb.,
542; Beattys v. Town of Solon,64 Hun, 120. Payment by a check
drawn upon and certified by a national bank, which then held
tunds belonging to the subscriber sufficient in amount to pay
the check is a payment “in cash” within the terms of this sec-
106 Tue RarLroapD Law.

tion. Jdfatter of Staten [sland R. T.R. R. Co.v. Starin, 37 Hun, 422.
A check given for the ten per cent. cash payment required by
this section, though given on the assurance of the person who
procured the subscription, but without authority from the
directors, that it need not be paid, is a valid payment of the
ten per cent. required, and the payment of the check may be
enforced by the company after incorporation. Syracuse, Phenix
& Oswego R. R. Co.v. Gere, 4 Hun, 392. Anagreement between
a person soliciting subscriptions to the stock of a proposed
railroad company that the cash payment need not be made, is
void and does not affect the validity of the incorporation when
the company was not apartyto the agreement. Beattys v. Town
of Solon, 64 Hun, 120, The affidavit of three directors that.
$84,100 00 had been in good faith subscribed to the capital
stock, and that ten per cent. had been paidin cash on said sub-
scriptions, annexed to andreferring to the articles of associa-
tion which stated the termini of the road, and that its length
was about seventy-five miles, was held to be a sufficient com-
pliance with this section in Buffalo & Pittsburgh R. R. Co. v.
Hatch, 20 N. Y., 757. The mere filing of articles of association
does not constitute a corporation de jure. There must be a per-
formance of the conditions precedent, 7. ¢, a stock subscription
of at least $1,000 per mile of the proposed road and a payment
thereon of 1o percent. in good faith and in cash. Farnham v.
Benedict, 107 N. Y., 759.

Decision UNDER L. 1866, Cu. 697, § 1.

A stationary engine is not a locomotive engine and does not,
according to general understanding, use locomotive steam,
hence L. 1871, ch. 609, does not prevent a corporation organized
under this act from crossing “Ocean Parkway.” Stranahan v.
Sea View Ry. Co., 84N. V., 308.

DECISION UNDER L. 1875, Cu. 606, § 9.

After the commissioners have completed the articles of asso-
ciation and delivered the certificate in attempted compliance
with the act, they can not reconvene and amend or reform
either articles or certificate. The delivery of the certificates
terminates their duties and ends their office. Jn re WV. Y. Cable

ky. Co., 109 N. Y., 32.
DEcIsIONS UNDER L. 1884, Cu. 252, §1.

The right to construct and operate a street railway isa fran-
chise which must have its source in the sovereign power.
SUPPLEMENTAL CERTIFICATE—ADDITIONAL PowERS. 107 |

The franchise must be granted for public not private purposes,
or at least the grant must be based upon public considerations..
The construction and maintenance of a street railway by any
individual or association of individuals without legislative au-
thority isa public nuisance and subjects those maintaining it
toa private action in favor of any person sustaining special in-
jury therefrom. Fanning v. Osborne, 102 N. Y., gaz. A street
railway company organized under this act has power to con-
demn private property for the purpose of its organization. Jz
re Rochester Elec. Ry. Co., 123 NV. Y., 351. Butamap must be filed
in compliance with sec. 22 of the generalrailroadact. Jnre Roch.
ELRy. Co.,123 N. Y., 957, (but see § 6 of this act.) An underground
street railroad cannot be constructed under the authority of this.
act. Jn re N.Y District Ry. Co., 107 N. Y., g2. Before the passage
of this act street railways on the surface to be operated by any
other power than animal could be constructed and operated under
the Rapid Transit Act. Zn reN.Y. Cable Co. v. Mayor of N. Y., 104
4N.Y.,z, This act does not repeal any law forbidding the laying
of street railroads upon particular streets or in particular locali-
ties. Harlem Bridge M. & F. R. R. Co.v. Southern B. R. R. Co., 24 W.
Dig., 491; 41 Hun, 553. ~See In re Southern Boul'd R. R. Co., v. Spof-
ford, 58 Hun, 479, see 128-N. V., 93; 43 St. Rep., 611; 17 N. Y.
Supp., 828.

§ 3. Supplemental certificate.—If the names and
places of residence of the directors of the corporation 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 supplemental 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.

L. 1872, ch. 829.

$ 4. Additional powers conferred.—Subject to
the limitations and requirements of this chapter, every rail-
road corporation, in addition to the powers given by the:
General and Stock Corporation Laws, shall have power :

L. 1850, ch. 140, § 28.
L. 1875, ch. 606, § 26.
108 THE RaitroaD Law.

t. Entry upon lands for purposes of survey.—
To cause the necessary examination and survey for its pro-
posed 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 any lands or waters, sub-
ject to liability to the owner for all damages done.

L. 1850, ch. 140, § 28, sub. 1.
" See § 59 of this act.
"Decisions unDER L. 1850, CH. 140, § 28, sub, 1.

This provision is constitutional. Polly v. Saratoga & Washing-
ton R. R. Co., 9 Barb., 449; Bloodgood v. Mohawk & Hudson R. R.
Co., 18 Wend., 16.

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, mainte-
nance and accommodation of its railroad; and to acquire
by condemnation such real estate and property as may be
necessary for such construction, maintenance and accom-
modation in.the manner provided by law, but the real
property acquired by condemnation shall be held and used
only for the purposes of the corporation during the con-
tinuance of the corporate existence. .

(As am’d by Laws 1892, ch. 676.)

L. 1850, ch. rgo, § 13 and § 28, subs. 2 and 3.
L. 1875, ch. 606, § 17 and § 26, subs. 1 and 2.

See Condemnation Law.

DECISIONS UNDER L. 1850, CH. 140, § 13.

The company, in order to exercise the right of eminent do-
main, must be a corporation de jure. It is not sufficient that it
be a corporation de facto, In re New York Cable Co. v. Mayor, &¢.,
of N. Y., 104 N. Y., 7,43. A charter under this act does not au-
thorize proceedings to acquire land for the purposes of an ele-
vated railroad fifteen miles long passing through the centre of
solid blocks of buildings in the city of New York upon which
express trains may run, the road to be constructed in the form
of a two story viaduct, the first being fifty feet wide and about
Sixty feet above the street level, and the second being above the
AcQUISITION OF REAL PROPERTY. 109°

first, twenty-two feet wide on top and seventy-five feet above
the street, each having two tracks and consisting mainly of
brick arches, through the blocks and crossing the streets by steel
bridges. Jn re People’s Rap. Tr. Co. v. Dash, 125 N. Y., 93; Scha-
ber v. Brooklyn & L. I. Cable Ry. Co., 124 N. V, 630. Conde.
tion proceedings can not be cnstivated for’ dands for the con-
struction of a place for the storage of boats of passengers vis-
iting a water resort on the line of its road, nor for the purpose
of draining an adjacent tract, where drains can be constructed -
over its own lands, or for the purpose of opening a highway
from its road to a hotel one-third of a mile distant. /u re Roch.
& Glen Haven R. R. Co., 12 N. Y. Supp., 566; appeal dismissed 128 N.
Y., 6zz. The power delegated by this section is general, to’
acquire title to “any real estate required for the purposes of the
incorporation ;” but this does not prima facie or presumptively,
include property already in public use under the sanction of the
law. Jnve Boston & Albany R. R. Co., 53 N.Y. 574. The right
of a company to appropriate land is a vested right in the land
and not a mere privilege to acquire an interest, and the legisla-
ture may not defeat it before its exercise except by a clear and
unequivocal devotion of the lands to another public use. Syd.
urban Rapid Transit Co. v. City of New York, 128 N. Y., 510. The
title to lands of private corporations may be acquired. Jz
re N.Y. C.& AR. R. R. Co. v. Met. Gas Light Co., 63 N. V.,-326.
The test as to whether the land is held by a corporation for a
public use or not, appears to be, not what the corporation does or.
may choose to do, but what under the law it must do, and
whether a public trust is impressed upon it. Jn re N.Y, L. &
W. Ry. Co., 99 N. Y., 22. Wands held by a corporation, but not
used for, or necessary to a public purpose, but simply as a pro-
prietor and for any private purpose to which they may be law-
fully applied, may be condemned, «. g., lands leased to a railroad
company for the purpose of laying a branch track for the benefit
of a private individual. Jn re Roch. Horn.& Lack. R. R. Co. v.
Babcock, r10 N. Y., 119. Lands necessary for the purpose of
enabling the company to restore a street or highway to its for-
mer state, or to such state as not unnecessarily to have impaired
its usefulness, as required by sec. 28, sub. 5 of the general act of
1850, is land “required for the purposes of its incorporation.”
People ex'rel. Green v. Dutchess & Columbia R. R. Co., 58 N. V., 152.
See Post v. West Shore R. R. Oo., 123 N. Y., 580, Land may be
acquired for the prospective, as well as the present uses of the
company, provided its necessities for such use in the immediate
i110 THe RariLtroap Law.

future are established beyond reasonable doubt. Jn re Staten
Island Rapid Transit Co., 103 N.Y.,a5z. The fact that the con-
demnation will inure largely to the benefit of a foreign railroad
corporation makes no difference. /d. Lands under the waters
of a navigable river, though owned by private individuals, may
be condemned for the use of arailroad. Kerr v. West Shore R.
R. Co, 127 N. Y., 269. The leasing of a railroad pending the
proceedings to condemn, will not affect the proceedings. Azp >.
N.Y. & Harlem R. R. Co., 67 N. Y., 227. Nor does the fact that
the company has leased its road to a foreign corporation for the
full period of its corporate life, deprive it of the right to main-
tain these proceedings. Jnre N.Y, L.&W. Ry. Co., 99 N. Y, 22.
The special proceedings (see V. VY. C2. &. Co. v. Marvin, 12 N.
Y., 276,) prescribed by this act must be strictly pursued. Adams
uv. Saratoga & Washington R. R. Co, 10 N. Y., 328 Real property
acquired by a railroad by condemnation, cannot be appropriated
for another public use, without a clear and unequivocal statute
conferring special authority to doso. Jn re Board of Street Opening
wv. St. John's Cemetery Assn., 1.337 N. Y., 329.

DECISIONS UNDER L, 1850, Cu. 140, § 28, Sus. 3.

Under a similar provision in the charter of the Mohawk and
Hudson railroad company, by a deed purporting to convey a
fee, the company was held to acquire title in fee. When the
land was no longer necessary for the purposes of the corpora-
tion, the company had a right to sell and convey it. Yates v.
Van DeBogert, 56 N. Y., 526. See also Nicollv. N. VY. & Erie R.
R.Co., 12 N. Y., 121; Kenney v. Wallace, 24 Hun, 478.

3. Construction of road —To lay out its road
not exceeding six rods in width, and to construct 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 road, upon making compensation therefor.

L. 1850, ch. 140, § 28, sub. 4. So Yun. Hos,

The company is responsible for direct injuries to adjoining
property caused by the work of excavating and blastitig in the
construction ofitsroad. Boothv.R, W. & O. T. R. Co, 17 N.
Y. Supp., 336; 44 St. Rep., 9.
i

CONSTRUCTION. III

4. Intersection of streams, highways, plank-
roads, turnpikes and canals.—To construct its road
across, along or upon any stream, watercourse, highway,
plank-road, turnpike, or across any of the canals of the
State, which the route of its road shall intersect or touch,

L. 1850, ch. 140, § 28, sub. 5. (Am’d by L. 1864, ch. 582, L.
1880, ch. 133, and L. 1887, ch. 724.)

See L. 1835, ch. 300, and L. 1890, ch. 568, (the highway law,)
§ 15, as to powers of highway commissioners.

The new act removes the exception forbidding the obstruction
of any navigable stream or lake. The passage of this act could
‘not divest the patentees under a prior grant from the state of
any previously acquired rights. Rumseyv. NN. V.& N. FE. RR.
Co., 130 N. Y., 88. See 133 N.Y, 79.

Decisions UNDER L. 1850, CH. 140, § 28, Sus. 5.

This statute grants only the right which the public has in
the stream of water, watercourse, street, highway, plank-road,
turnpike or canal,and does not attempt to grant any right to
violate private property without the consent of the owner. £/-
licottville, &c., Plank Road Co. v. Buffalo & P. R. R. Co., 20 Barb., 644.
See Williams v. N. Y.C. R.R. Co., 16N.Y.,97. The construction
tobe given to the words “upon and along,’ in the amendment
of 1864, was considered in Osborne v. Jersey City & Albany Ry. Co.,
27 Hun, 589. ‘Two justices were sitting, both of whom wrote
opinions. One holds that wherever the railroad is constructed
upon the surface of the highway, it is “upon and along” so
much of the highway as is occupied by it, and that to construct
any grade crossing upon the highway, either the consent of the
commissioners or an order‘of the supreme court must first be
obtained ; the other, “that while arailroad may be constructed
across a highway without the permission of the court, it can not
without such leave, be constructed upon and along the same.”
See Baxter v, Spuyten Duyvil & P.M. R. R. Co., 61 Barb., 428.

5. Intersection of other railroads.—To cross,
intersect, join, or unite its railroad with any other railroad
before constructed, at any point on its route and upon
the ground of such other railroad corporation, with the
112 Tue Raitroap Law.

necessary turnouts, sidings, switches and other conven-
iences in furtherance of the objects of its connections.

(As am’d by Laws 1892, ch. 676.)

L. 1850, ch. 140, §28, sub, 6. (Am’d by L. 1872, ch. 350, L.
1880, ch. 583, and L. 1887, ch. 724.) ,

L. 1875, ch. 606, § 26, sub. 3.

See sec. 12 of this act.

DECISIONS UNDER L. 1850, Cu. 140, § 28, Sup. 6.

The right so provided for is an interest in lands, and can only
be created by a written instrument. A parol agreement will
not beenforced. Port Jervis, &c., R. R. Cov. N. V., L. E.& W.
R. R. Co., 732 N. Y., 439.

It seems, that this section does not authorize the invasion of
lands or buildings already appropriated to railroad uses, which
in their nature require an exclusive occupation, or which would
be materially impaired by subjecting the land to the new use;
and also that the right to object to such invasion is not for-
feited by an omission to apply within the statutory time for a
change of location. But objections to the proposed points of
crossing on the ground that they interfere with such lands are
not properly raised on application for the appointment of com-
missioners ; they are matters to be considered by the commission-
ers. Jnve B.H.T7.& W. Ry. Co.v. T.& BR. R. Co, 79 N. V., 64.
The receiver of a railroad corporation has not the power, with-
out an order of the court, to grant the privilege of crossing the
railroad of such corporation, especially at a different grade.
The right granted is a right of property even though the com:
pany represented by the receiver does not own the fee. In such
acase the crossing may be enjoined at the suit of a stockholder.
Howlettv. N. V., W. S. & B, Ry. Co., 14 Abb. N. C., 328.

DEcIsIONS UNDER L. 1875, Cu. 606, § 26, Sus 3.

This section applies to a connection between twa independent
routes of the samecorporation. Railroads have power to take
such real estate as may be required to effect the connection be-
tweenthem. Jn re Union Elev. R. R. Co., 113 N. Y., 275. In re
Brooklyn Elev. R. R. Co., 32 St. Rep., 1065; aff'd 125 N.V., 434.
BUILDINGS AND STATIONS—TRANSPORTATION. 113

6. Buildings and stations.—To erect and maintain
all necessary and convenient buildings, stations, fixtures
and machinery for the accommodation and use of its pas-
sengers, freight and business,

(As am’d by Laws 1892, ch. 676.)
L, 1850, ch. 140, § 28, sub. 8. (Am’d by L. 1887, ch. 724.)

DECISIONS UNDER L. 1850, CH. 140, § 28, Sup. 8.

_ This section does not impose an obligation to provide ware-
houses for freight offered or depots for passengers awaiting
‘transportation. Peoplev. VN. V., LE & W.R.R Co, 104 N.Y,
5S. :
As to specific performance of a contract to make a station at

a particular place, see Conger v. N. V., W.S. & B. Ry. Co., 120 N.
Y., 20. ‘

f

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 chapter and to receive compensation
therefor.

L. 1850, ch. 140, § 28, sub. 7. (Am’d by L. 1880, ch. 133.)
L. 1875, ch. 606, § 26, sub. 4.

DECISIONS UNDER L. 1850, Cu. 140, § 28, sub. 7.

This section cotifers no power upon a street railroad company
to construct the necessary structure for a cable road, and does
not authorize it to operate the same. People ex rel. Third Ave. R.
R. Co. v. Newton, 112 N. Y., 396, (but see § 100 of this act.)

DECISIONS UNDER L. 1875, CH. 606, § 26, sub. 4.

No horse railroad could be organized under that act. ™. Y.
Cable Co. v. The Mayor, &c., of New York, 104 N. Y., 1, 74.

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.

L. 1850, ch. 140, § 28, sub. 9. (Am’d by L. 1880, ch. 133.)
Hy
114 THE RarLroap Law.

See L. 1855, ch. 474, secs. 1-5; Penal Code, sec. 626, sub. 1,
as to rate of fare for immigrants.

DECISIONS UNDER L, 1850, Cu. 140, § 28, SUB. 9.

This subdivision can not be so construed as to justify a
general or partial suspension of the duty of receiving
and transporting freight. Feoplev. NV. Y.C& ARR. R. Co,
28 Hun, 543. But this provision vests the company with
discretion respecting the mode of exercising its franchises,
and so long as its operations are not suspended and its
duties are not unperformed the courts will not interfere, espec-
ially on the application of a private individual, to regulate the
exercise of its discretion. Pople ex rei, Long Island R. R. Co!, 31
Hun, 125. Railroads have the right and it is their duty to make
rules and regulations for the management of their business. A
regulation which required that a gateman should be stationed
at a particular place and that no person should enter unless he
had a ticket and his train was about to leave, is a reasonable
and proper one; also a regulation-that trunks and articles com-
mitted to their care shall be checked. <Averyv.N. Y.C.& H.R.
k. R. Co., 121 N. ¥., 32. A regulation made by the company re-
quiring passengers to exhibit their tickets when required by the
conductor and directing the ejection from its cars of those who
refuse todo so, is a reasonable and proper regulation. Hidbard v. |
N.Y. & Erie R. R. Co, 15 N. Y., 455. See also Vedder v. Fellows,
20 V. Y.,726. When freight has been carried for a long course
of years at the schedule price, the shipper making no objection
to the resonableness of the charge, he must be deemed to have
assented to the charge as reasonable, and to have voluntarily
waived any objection thereto ; at least the receipt of the freight
by the company has no element of extortion, and an action is
not maintainable to recover back any portion thereof. Xi//mer
uN. Y.C.& H.R. R. R. Co. 100 N. Y., 395. The company
should not be permitted to unreasonably or unjustly discrimi-
nate against individuals to the injury of their business where
the conditions are equal. All the facts and circumstances must
be taken into consideration, This raises a question of fact
which must ordinarily be determined by the trial court. Root
DL, LR. &. Co., 114 NV. Y., 300. As to necessary allegations in
an action based on unjust discrimination, see Langdon v. N. Y.,
LE.& W.R.R. Co, 58 Hun, 122. As to what is a basis for
telief by mandamus against unjust discrimination under the
Inter-State Commerce Act, see United States v. D., L. & W. R.R.
Co., go Fed. R., ror.
PURCHASE OF LANDS AND STOCK IN OTHER STATES. 135

9. Purchase of lands and stock in other states.
—To acquire and dispose of any reai property in any other
state through which any part of its railroad is operated,
and stock in any foreign corporation owning lands in
another state for the purpose of securing for such railroad |
corporation in this state a permanent supply of fuel for
its use, and stock of corporations in this state, formed for
the purpose of erecting union railway depots.

L, 1875, ch. 586, §2.
L. 1882, ch. 273, § 2.

10. Power to borrow money, issue bonds and
mortgage property.—From time to time to borrow such
sums of. money as may be necessary for completing and
finishing or operating its railroad and to issue and dispose
of its bonds for any amount so borrowed, and to mortgage
its property and franchises to secure the payment of any
debts contracted by the company for the purposes aforesaid.

(Added by Laws 1892, ch. 676.) i
See Stock Corporation Law, section 2.

§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 con-
struction of its road and expend thereon ten per cent. 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 power shall cease.

_ 1846, ch. 155. Annet pre 1893,
1850, ch. 140, § 47. (Am'd by L. 1864, ch. 582). ——S
1867, ch. 775.
. 1875, ch. 598. (Am’d by L. 1879, ch. 350.)
1881, ch. 338.
. 1882, ch. 405.
1888, ch. 549, § I.
. 1891, ch. 287.

Pree eee

DECISIONS UNDER L, 1850, Cu. 140, § 47.
Under this section as modified by L. 1867, ch. 775, the exist-
ence of the corporation is determined by the omission to com-
ply with either of the prescribed conditions ; and the omission

4
116 a3 TuHeE RariLtroapD Law.

to begin the construction and to expend the ten per cent. of the
capital within the five years is as fatal as a failure to finish the
road within ten years. It needs no action or judicial proceed-
ing to declare and complete a forfeiture of the charter and loss
of corporate powers suffered under this section. /n re Brooklyn,
Winfield & Newtown R. R. Co, 72.N. Y.,245. The legislature can
not waive a forfeiture under this section by a special act with-
out violating section eighteen, article three of the Constitution.
ld; 75 N.V., 335. Seealsoinre NV. Y. Elev. R. R. Co, 70 N.Y,
327; Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y., 524; Inre
Brooklyn, Winfield & Newtown R. R. Co, 8 N. Y., 69; Troy &
Boston R. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N.Y., 107; In re
Kings Co. El. R. R. Co., 105 N. V.,97; Dayv. Ogd. &. L.C. RR.
Co., 107 N. Y.,229; Farnham v. Benedict, 107 N. Y., 159. Where a
charter provided that upon failure to commence or complete
the road-as therein provided the company ‘‘is to forfeit the
rights acquired by it under this act,” a cause of forfeiture does
not per se divest 'the company of the franchise. /n re Brooklyn
Elev. Ry. Co., 125 N. V., 434. A grant from a company which
had not begun the construction of its road within five years
after its articles of association were filed, was,considered in
Greenwood Lake & P. J. R. R.Co.v. N.V.& GL. RR. Co, 8 N.
Y. Supp., 26; 28 St. Rep., 739; aff'd by Court of Appeals Oct. 2, 7892.

DECISIONS UNDER L, 1867, CH. 775.

Where a corporation leases a portion of the route covered by
its franchise to another corporation, with the right to lay tracks
thereon, not for the purpose of constructing the road of the
lessor, but toenable the lessee to complete its own road, the
tracks when built, not to belong to the lessor or to be operated
by it, but to be constructed at the expense of and to be operated
and maintained for the use of the lessee exclusively, this is not
such a user by the lessor as is contemplated by its charter and
in determining whether the powers of the lessor have ceased by
reason of failure to comply with this provision, the construction
and expenditure by the lessee upon the portion of the route so
demised can not be taken into consideration. A corporation
can not comply with the provision without the expenditure re-
quired, by granting to another company the privilege of laying
tracks over such portion of its route as the othercompany may
desire to use. A reservation insuch a lease of a right in the
lessor to run cars over a portion of the tracks laid by the lessee
on payment of asum specified for such use, does not avail to
7 1
ForFEITURE—LocaTION OF Roure. 117

give the lessor the benefit of the expenditure by the, lessee. /u
re Brooklyn, Winfield & Newtown R. R. Co. v. Grand St. & Newtown
R. R. Co. of Brooklyn, 81 N.Y., 69. As to effect of failure to com-
ply with this provision on municipal aid bonds issued under L.
1869, ch. 907, see Farnham v. Benedict, 107 N Y., 159; and upon an
action for a stock subscription, see Sodus Bay & Corning R. R.
Co. v. Lapham, 43 Hun, 314. See In re Brooklyn El. Ry. Co., 125 N.
V., 434. .
DECISIONS UNDER L. 1875, Cx. 598.

This statute does not apply to any road which was not in de-
fault at the time it took effect. Jn re Brooklyn, Winfield & New-
town R. R. Co. v. Broadway R. R. Co. of Brooklyn, 72 N. Y., 245;
Brooklyn Steam Transit Co. v. City of Brooklyn, 78 N. Y., 524. The
amendatory act seems to be entirely prospective in its operation
and to relate only to corporations not in default at the time of
its passage, which might need the extended time tocomply with
the limitations contained in their charters. Brooklyn Steam
Transit Co. v. City of Brooklyn (above.) This act only applies toa
default in failing to complete the road within ten years and not
to those companies whose rights had become extinct by reason
of their omission to begin construction within the period lim-
ited by statute. Farnham v. Benedict, 107 N. V.,159. This statute
does not apply to a company which has willfully and inten-
tionally failed to'construct its road when able to do so. People
uv. Broadway R. R. Co. of Brooklyn, 126 N.Y., 429. A foreclosure and
sale of the road works a forfeiture of its right to construct and
operate a road thereafter, except as such right is vested in a
purchaser, and consequently the company can not claim the
‘benefit of the provisions of this act. Sodus Bay and Corning R. R.
Co. v. Lapham, 43 Hun, 314.

§ 6. Location of route,—Every railroad corpora-
tion, except a street surface railroad corporation and an
elevated railway corporation, before constructing any part
of its road in any county named in its certificate of incor-
poration, or instituting any proceedings for the condemna-
tion 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 corporation, 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
118 Tue Rartroap Law.

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 or profile were filed, and that such
route passes over the lands of such occupants. Any such
occupant or the owner of the land aggrieved by the pro-
posed location, may, within fifteen days after receiving
such notice, give ten days’ written notice to such corpora-
tion and to the owners or occupants of the 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 ex-
amine the route.

The petition shall state the objections to the route desig-
nated, shall designate the route to which it is proposed to
alter the same, and shall be accompanied 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, commissioners to examine the route pro-
posed by the corporation, and the route to which it is pro-
posed 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 all parties and the public, including the owners or
occupants of lands upon the proposed alterations; but no
alteration of the route shall be made except by the concur-
rence of the commissioner who is a practical 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 determina-
tion, 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
Location or Route. 11g

the supreme court from the decision of the commission-
ers, 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 af-
firm 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 reasonable and nec-
essary expenses, to be paid by the persons who applied for
their appointment. If the route of the road, as desig-
nated 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 until after the expiration of fifteen days from the
service by it of the notice required by this section. Every
such corporation shall transmit to the board of railroad
commissioners the following maps, profiles 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 de-
termined by measurements to be taken after the comple-
tion of the road.

Whenever any part of the road iscompleted 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 opera-
tion; 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 com-
pleted. 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 commissioners, so far as
it may relate to the location in such county, to be filed in
the office of the county clerk.

(As am’d by Laws 1892, ch. 676.)
120 Tue Ratvtroap Law.

By the amendment of 1892, street surface railroads and elevated railways are

excepted from the requirement that maps be filed. The provision forbidding a

‘ corporation from instituting condemnation proceedings “‘ until after the final de-

termination of all applications that may be made for a change of route in such

county” is omitted. Directions'are made_respecting the map to be filed with the
railroad commissioners.

L. 1838, ch. 161.
L. 1850, ch. 140, § § 22 and 45. (§ 22,am’d by Laws 1871, ch. 560.)

DECISIONS, UNDER L, 1850, Cu. 140, § 22.

The preliminary survey under section 28 (Railroad Law, § 4) must
be made, and the notice under section 22 (Railroad Law, § 6) must
be given before the application for commissioners of appraisal
can bemade. Ja re NV. VY. & Boston R. R. Co.v. Godwin, 62 Barb.,
85. And such notice must be served on all occupants affected.
Inve Niagara Falls & W. Ry. Co.v. DeVeaux College, 46 Hun, 94;
aff'd 108 N. V., 375.

A railroad already constructed and in existence having been
sold under foreclosure to an individual, and by him conveyed
to an existing company formed under this act, ¢¢ seems, that it is
not necessary for the purchasing ay to file the map speci-
fied by this section. People v. Brooklyn F.& C.L. R. R. Co., 89 N.
Y.,75. A law authorizing a railroad company to construct and
operate its road from one point through designated streets to a
specified point is a practical location by the legislature, and dis-
penses with the necessity of notice of the location by the com-
pany. Jn re Coney Island & B.R. R. Co. v. Ridley, 12: Hun, 451.
The map required to be filed is sufficient if it shows the align-
ment and profile, without showing all the connections, turnouts
and switches. /d. A map on which is laid down only one
line showing the general course of the railroad, without indi-
cating whether it is an exterior, a center, or any other certain
line, is not sufficient. V. VY. & Boston R. R. Co. uv. Godwin, 12 Abb.,
N.S. 27; in re Boston, H. T. & W. Ry. Co. ro Abb. N. C.,,
ro4; N. Y. & Albany R. R. Cov. N. VY. W. S. & B. Ry. Co.,
11 Abb, N.C. 386. Tf a street railroad takes proceedings to
condemn land it must file a map in compliance with this section,
in re Rochester Electric Ry. Co., 123 N. Y., 351, (but see amendment
of 1892, above.) Additional land necessary for cuttings and em-
bankments need not be shown on the map. Jn re South Brooklyn
RR. & T. Co. v. Gates, 50 Hun, go5. A map filed of a part of the
road only, would not control or modify the charter of the com-
pany. It could not work a change in the ¢ermini or an abandon-
-LocaTion or Route. 121

mént of a portion of the road. Mason v. Brooklyn City & N:R.
#. Co., 35 Barb., 373.

It is necessary that the notice be given to actual occupants
only of the land over which the route is designated. It is not
necessary to give the notice to occupants of land, no part of
which is covered by the route designated, but which may be re-
quired for the purposes of the incorporation of the company.
Inve N. Y., Lath. & W. Ry. Co. v. Scheu. 33 Hun, 148; aff'd 98 N.
Y., 664. A notice signed “James M. Milne, secretary of the
Cortland and Homer Horse Railroad Company,” is notice by the
company, and is sufficient. J re Cortland & H. H.R. R. Co. v.
Syracuse, B.& N.Y. R. R. Co., 31 Hun, 72 ; aff'd 95 N. Y., 663.
The notice must be givenand the fitteen days must have expired
before commissioners of appraisal can be appointed in con-
demnation proceedings. /zre NV. Y. & Boston R. R. Co. v. God-
win, 12 Abb. N. S., 21.

The ten days’ notice to be given by the aggrieved occupant or
owner must be served personally, no other mode of service being
specified. Quaere, whether in a case where personal service is
impracticable, the court would have power under the seventh
subdivision of section 14 of the act of 1850 to direct service to be
made in some other mode. People ex.rel. NV. B.& C. R. R. Co. v.
L.& B.R. R. Co., 73 Hun, 211. The service of the notice of location
and of the filing of the map by the company on all occupants
and owners entitled thereto, is a prerequisite to the appointment
of commissioners to examine the proposed route. The statute
contemplates but one commission in a county. Jd. in re Norton
v. Walkill Valley R. R. Co., 63 Barb.,77; in re Long Island R. R. Co.,
45 N. Y., 364; People exrel. E.& G.V. R.R. Co. v. Tubbs, 49 N. Y.,
350. The provisions of this section in regard to the location of
the road and the right of the property owners to object to such
location are not applicable to the matter of crossing existing
railroad tracks, or any object attainable under subdivision six
of section 28 of the act of 1850; (Sec. 12 of the Railroad Law.)
Inve B. H. T.& W. Ry. Cov. T.& B.R.R. Co. 79 N. Y., 645 in
ve NV. Y., Lake Erie & W.R.R. Co. v. Pittsh., L. & N. EL RR. Co., |
110 N. Y., 374; Ininre Lake Shore& Mich. S.R. R. Co.v. N. Y., Lack.
& W. Ry. Co., 89 N. Y., 442, doubt is expressed as to whether an
existing company whose track is crossed by the proposed route
of another company as located by the filing of its map, can apply
for the appointment of commissioners under this section. But
see in re Lockport & B. R. R. Co.v.N. V.C.& H.R. R.R. Co., 77
122 Tue RaiLtroap Law.

NV. YV., 557, 561; in re N. V., Lake Evie & W. R. Ri Cov. N.Y,
Lack. & W. Ry. Co., 99 N. Y., 3988; Inve N.Y., Lake Erie W.R.
R. Co. v. Pittsh., Lack. & N. E. R. R, Co. 110 N. Y., 374. All that
is to be done by the justice of the supreme court is to see that
there is sufficient cause for the appointment of commissioners.
He is not to try the matter on its merits. orton v. Walkill V.
R. R. Co, 6r Barb., 476. Asto whether the order made by the
general term upon an appeal from the decision of the commis-
sioners appointed under this section, is in any case appealable
to the court of appeals, Quaere. in re N. Y., Lake Erie W. RR.

Cov. MV. Y., Lack. & W. Ry. Co., 99 N. V., 388.

When a corporation has filed the map and given the requisite
notice and no chahge of route is made, it has acquired the right
to construct and operate a railroad upon that line, exclusive in
that respect as to all other railroad corporations and free from
the interference of any party, and it may prevent infringement
of its rights by injunction. och., Horn. & Lacka. R. R. Co. v. N.
Y., Lake Erie & West. R. R. Co. 110 N. Y., 128; see N. Y.& Albany
RR. Cov. N.Y. WS. & B. R. R. Co., 11 Abb. N. C., 386; Subur-
ban Rapid T. R.R. Co. v. The Mayor, &c , of New York, 128 N.Y., 510.°

$7. Acquisition of title to real property.—All
real property, required by any railroad corporation for the
purpose of its incorporation, shall be deemed to be re-
quired fora public use. If the corporation is unable to
agree for the purchase of any real property, or of any
right, interest or easement therein, required for such pur-
pose, or if the owner thereof shall be incapable 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 condemna-
tion. It shall also have such right in the following
cases : ‘

t. Where title to real property has been acquired, or at-
tempted 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.
ACQUISITION OF TITLE TO REAL PRopERTY. 123,

3. Where it shall require any further rights to lands or
the use of lands for switches, turnouts, or for filling any
structures of its road, or for constructing, widening or
completing 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 rea-
sonably 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 rail-
road 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 right to take and
convey water from any spring, pond, creek or river to such
railroad, for the uses and purposes thereof, together with
the right 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 he rendered liable to injury thereby.

Waters commonly used for domestic, agricultural or
manufacturing purposes, shall not be taken by condem-
nation to such an extent as to injuriously interfere with
such use in future. No railroad corporation 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 corporation, without appropriating or affecting
any lands owned or held‘for depots or gravel beds.

(As am’d by Laws 1892, ch. 676.)
“
“ Acquired” changed to ‘‘ required” in first sentence by the amendmentof 1892.
L. 1847, ch. 272, $3.
L. 1847, ch. 404, §§ 2 and 3.
L. 1850, ch. 140, §§ 13, 21 and 26. (§ 21 am’d by L. 1869, ch.
237, L. 1877, ch. 224, and L. 1881, ch. 649.)
L. 1851, ch. 19, § 3. (Am’d by L. 1853, ch. 53.)
124 Tue RarLroap Law.

L. 1854, ch. 282,§ 4. (Am’d by L. 1879, ch. 541, and L. 1882,
ch. 82.) ,

L. 1871, ch. 560, $6. (Am’d by L. 1877,ch. 103, L. 1879, ch.
293, and L. 1883, ch. 384.)

L. 1875, ch. 606, §§ 18 and 24. (§ 18am’d by L. 1888, ch. 514,
see sec. 3.) ;

See sec. 4, sub. 2, of this act.

Decisions UNDER L. 1847, Cu. 272, § 3.

This section provides for a case where a railroad company
shall not have acquired a valid and sufficient title to any land
upon which they have constructed their track, or where the title
has been or shall hereafter be rendered invalid by reason of any
mortgage, judgment or other lien. Jn re V. Y. CR. R. Co., 20
Barb. 419, 428. This act does not imply that an outstanding
judgment affecting the interest of an owner who had been com-
pensated is recognized by the legislature as a defect in the title.
Its provisions afford a remedy to the railroad company in cases
where land obtained by conveyance from an owner was subject
to liens under which title had been subsequently perfected, and
the title of the company was thus rendered invalid, and also in
cases where, in proceedings for condemnation, some owner had
been omitted. Watsonv. N.Y. C. R. R. Co. 47 N. Y., 157, 165.

DECISIONS UNDER L. 1850, Cu. 140, § 13.

This section requires that an attempt be made to agree with
the owner fora purchase, and it only gives the right to proceed
in invitum When such an attempt has proved a failure. WV. VY. &
Boston R. R. Co.v. Godwin, 12 Abb. N.S, 217. But it does not mean
that it must be impossible to buy the right of way at any price,
however large; it means that the owner must be either unwil-
ling to sell at all, or willing to sell only at a price which in the.
judgment of the agents of the corporation is excessive. Jn re
Prospect Park & C. I. R. R. Co., 67 N. V, 372. As to what is a

sufficient effort to purchase, see iz re Met. El. Ry. Co., v. Dominick,
55 Hun 198.

Decisions UNDER L. 1850, Cu. 140, § 21.

The existence of a mortgage which is a lien upon the land is
one of the defects contemplated in this section. The company is
not obliged to wait until the premises are sold under a decree of
foreclosure. are NV. Y. C.R. R. Co, 20 Barb, gro. ‘The fact
that the company has constructed and commenced operating its
ACQUISITION OF TITLE TO REAL Property. 125
» %

road, relying upon a title subsequently found to be defective, is
no objection to proceedings on its part, under this section, to
perfect its title to lands sooccupied. Juve Pros. Park & C.J. R.
LR. Co. v. Moynahan, 67 N. Y., o7z. It cannot be said that the “ pur-
poses of its incorporation” are accomplished when the company
has constructed and put in operation a road with two tracks.
Land for additional tracks may be acquired although the road
would be more than six rods in width. Inve NV. V.C& #4. R.
R. R. Co.v. Johnson, 67 Barb., 26. A foreign corporation is entitled
to the benefits of this provision. Jn re Marks, ON.Y. Supp., 105; 25
St. Rep., 502. Ithas been held that under this section, as amended

by the act of 1869, lands for passenger depots, convenient and.

proper places for the storing and keeping of cars and locomo-
tives not in use ; for the receipt and delivery of freight, and for
the safe and secure keeping of property between the time of
its receipt and dispatch, or after its arrival and discharge and
before its removal by the owner or consignee; lands for the
construction of proper tracks and curves to enable trains with
convenience and dispatch, and without danger, to approach the
station, cattle yards, depot, elevator and other structures of the
company upon its water front, and lands to render these im-
portant auxiliaries effective, useful and advantageous for the
shipment and discharge of freight ; and land under water for
piers and wharves may be acquired. /m reN. Y.& H.R. R.
Co. v. Kip, 46 N. ¥., 546; InreN. V.C.&@H.R.R. Co. v. Met.
Gas Light Co., 67 N. Y., 326; Inre N.Y. C& AR. R. R. Co, 77
NV. Y., 248. Land for prospective as well as present’ uses may
be acquired. Ju re Staten Island Rap. Tr. Co., 103 N. Y., 252.
Lands can not be taken for the purpose of speculation or sale,
or to prevent competing lines or methods of transportation, or
in aid of collateral enterprises remotely connected with the run-
ning or operation of the road, although they may increase its
revenues and business. Jn re Rens. & Saratoga R. R. Co. v. Davis,
43 NV. Y., 137. So, it seems, of lands upon which to erect a manu-
factory of cars or dwellings for operatives. /nreN. V.& H.R,
R. Co. v. Kip, 46N.V., 546. Prior tothe amendment of 1881 it
was held that lands outside the limits of its way could not be
taken by a company for the purpose of removing earth, timber,
rock or material therefrom for the building of its road. Jn re
. WV. Y. & Canada R. R. Co. v. Gunnison, 3 T.& C., 632.
126 Tue Raitroap Law.

é
DECISIONS UNDER L. 1850, Cu. 140, § 26.

The trusts meant by this section are private and individual
trusts and not public trusts or property held by public corpora-
tions for publicuse. Jz re Boston & Albany R. R. Co. v. Village of
Greenbush, 53 N. Y., 574, limiting Anderson v. Rochester, &¢., R. R.
Co.,9 How., 553. ‘The provisions of this section are for the benefit
of the trustee and the infant or idiot owner of the land, and are
not compulsory upon the railroad company, compulsory pro-
ceedings by the company are provided for by L. 1857, ch. 444,
82. Inve N.Y. Bridge Co., 67 Barb. 295.

DEcISIONS UNDER L. 1851, Cu. 19, § 3.

It was the intention or the legislature to apply all the pro-
visions of the act of 1850 relating to obtaining title to land to
the corporations mentionedinthissection. TZroy & Boston R. R.
Co. v. Northern Turnpike Co., 16 Barb., roo.

§ 8. Railroads through public lands.—The com-
missioners 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 Con-
course lands on Coney Island, which may be required for
the purposes of its road on such terms as may be agreed
on by them; or such corporation may acquire title thereto
by condemnation ; and the county or town officers having
charge of any land belonging to any county or town, re-
quired for such corporation for the purpose of its road,
may grant such land to the corporation for such compen-
sation as may be agreed upon.

L, 1850, ch. 140, § 25. (Am’d by L. 1886, ch. 601.)
L. 1881, ch. 148.

DECISIONS UNDER L. 1850, CH. 140, § 25.

Although under the acts of the legislature granting land
under the water of the Hudson river to the city of New York,
it is held in trust for the uses therein mentioned, and can not
be appropriated for any purpose inconsistent with such use and
the rights of the public in the waters, it does not follow that
such rights are invaded by the appropriation of the land under
water for railroad purposes. It is entirely consistent with the
objects of the grant that great railroad enterprises should be
permitted to enjoy the privileges which were intended to be con-

é
“RarLroaps THRouGH Pusiic Lanps. 127

ferred for public benefit. Zn re N.Y. C.& H.R.R.R.Co.,77 N.Y,
248; inre N. Y., W. S.& B. Ry. Co.v. Walsh, 89 N. Y., 453, affirm-
ing 27 Hun, 57. Where land under water is taken wader this sec-
tion, no notice need be given to the owner of the upland. He
has no interest in the land under water without a grant. The
power given by statute to the commissioners of the land office,
must be deemed to be modified by this section. Ju re WV. Y., W.
S. & B. Ry. Co. v. Swain, 29 Hun, 269; see Gould v. Hudson R. R. R,
Co.,6N. Y., 523. This includes power to grant lands under
water for the erection of docks necessary to the transaction of
the company’s business. Jz re V. Y.C.& H.R. RB. R. Co. ,77 NV.
V., 248; Rumsey v. N. V.& N. E.R. R. Co., 114. N. V., 423; z30 NV.
Y., 88; 133 NV. V.,79. Fora case holding that a railroad com-
pany using land onthe shore line for its road bed, is not a “pro-
prietor of adjacent lands,” within 1 R. &., 208, § 67, see Rum-
seyv. N.V.& N. E.R. R. Co. 114 N. Y., 423; 130 N. V., 88; 133
NV. Y.,79; see Kerr v. West Shore R. R. Co. 127 N. Y., 269.

$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 rail-
road, and such contract shall not be valid or effectual un-
til it shall be ratified by the county court of the county
where the land shall be situated.

L, 1836, ch. 316, §§ 1 and 2.

See Code of Procedure, §30, sub. 11; L. 1880, ch. 245, § 3,
sub. 6.

§ 10. Railroads through Chautauqua assembly
grounds.—No railroad corporation shall build, construct
or operate any railroad in, upon, over or through the
grounds, lands or premises owned by the Chautauqua as-
sembly corporation in the town and county of Chautau-
qua, without the written consent of a majority of the
board of trustees of such assembly corporation.

L. 1886, ch. 403.
!

128 Tue RariLtroap Law.

$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 vil-
lage, without the order of the supreme court of the dis-
‘ trict in which such highway or street is situated, made at
a special term thereof, after at least ten days written no-
tice 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 corpo-
ration which shall build its road along, across or upon any
stream, watercourse, street, highway, plankroad or turn-
pike, which the route of its road shall intersect 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 usefulness, 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 em-
bankment or cutting shall make a change in the line of
such highway, turnpike or plankroad desirable, with a view
to a more easy ascent or descent, it may construct such
highway, turnpike or plankroad, on such new line as its
directors may select, and may take additional lands there-
for 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 corporation shall pay all damages sus-
tained by any turnpike or plankroad corporation in conse-
quence of its crossing or occupation of any turnpike or
plankroad, and in case of inability to agree upon the
amount of such damages it may acquire the right to such

crossing or occupation by condemnation.
L. 1850, ch. 140, §§ 24-and 28, sub.5. (Am’d by L. 1864, ch,

582, L. 1880, ch. 133 and L. 1887, ch. 724.)

T +Qee nh rn Rae
INTERSECTION OF HicHwavys, 129

See L. 1835, ch. 300. Consent of highway commissioners.
See L. 1853, ch. 62. Highways may be laid out across track.
See L. 1890, ch. 568, §15. Highway commissioners may bring
action to enforce rights of the public in highways.

DECISIONS UNDER L. 1850, Cu. 140, § 24.

The election as to the manner of crossing is, as a general rule,
with the company, and when exercised in good faith, is not re-
viewable. Jt seems, however, that where it would be impractica-
ble to restore the highway to any degree of usefulness by a
particular mode of crossing, that mode would not be permitted.
Peoplev. N. V.C.& H.R. RR. Co. 74 N. Y., 302. This section
requires compensation to be made only when additional lands
have been taken. A cutting was bridged at a height sufficient
for the passage of trains, and approaches were made’by a gradual
lifting of the roadway toreach the bridge level, within the original
lines of the roadway, the only alteration effected being a change of
grade. Held, that the plaintiff's fee to the centre of the ‘high-
‘way was not subjected to a new or different use involving a
new or additional compensation, but it remained as the public
highway originally laid out in everything but its grade. Conk-
lino. N. Y.,0.& W. Ry. Co., 102 N. Y., 107; Rauenstein v. N. Y.,
Lack, & W. R. R. Co., 24 N. £., 1020; 31 St. Rep. 911; 120 N.Y,
661; 19 N.Y. Supp., 833; 47 St. Rep., 139; Ottentot v. Same, 23 N. E.
169; 28 St. Rep., 483; 119 N. Y., 603, but see Reining v. Same, 17
N.Y. Supp., 238; 35 St. Rep. 731; Jeaume v. Same, 13 N.Y. Supp,
249; 35 St. Rep., 674; (two last cases aff'd 128 N. Y., 157, 623.) The
cases establish the rule that a change in the grade of a street for
railroad uses which prevents the use of the roadway fer street
purposes and cuts off the abutting owner’s access to his property
gives him a right of action for damages whether he does or does
not own the fee of the street even when the city commissioners,
under authority of an act of the legislature, have discontinued
that portion ofthe street. Zgererv. N. V.C.& H. R.R. R. Co., 230
N. Y., 108. This section only applies to navigable streams and
where arailroad cuts off access to plaintiff’s dock in acertain bay
of a river, he can not compel it to build a drawbridge when such
bay is not navigable in the sense of being of public utility.
Kerr v. West Shore R. R. Co., 127 N. Y., 269. When under the au-
thority conferred by this act, a railroad company carries ahigh-
way over its tracks by a bridge, it is its duty not only to proper-
ly make the approaches to the bridge, but also to keep them in
suitable repair. Peoplev.N. V.C.& H.R. RR. Co, 74 N.Y,

I F
130 THE RarLroap Law.

jo2. It is for the company inthe first instance to determine the
method of restoration. If the highway is removed in whole or
in part, the corporation may acquire by purchase or condemna-
tion the lands necessary for the restored highway, and when
reconstructed it becomes the legal highway. Post v. West Shore:
R. R. Co., 123 N. V., 580. (This case should be consulted as to the
effect of a covenant in a deed to reconstruct a highway in a new
location, the highway commissioners objecting to same.) This
obligation on the part of the company continues so long as it has
the right to use and enjoy its franchise. Mere abandonment
and disuse of the track will not relieve it. Peopleex rel. Schaghti-
coke uv. Troy & Boston R. R. Co., 37 How., 427; aff'd 6 Alb. L. J., 174.

The company is bound not only to restore a stream which it

diverts to its former state of usefulness as nearly as practicable,

but to continue ‘and preserve it inthat state as long as it con-

tinues to divert the water from its natural channel. Co#t v.

Lewiston R. R. Co., 36 N. V., arg. The duty to restore the high-

way does not require a company, whenever a municipal corpora-

tion shall pave or repave the street, to conform its repairs to
the absolute direction and requirements of the municipality.

Gilmore v. the City of Utica, r21 N. Y., 561; 131 N. Y., 26. A rail-

road company is not relieved from the duties imposed by this

‘section by reason of the fact that a street railway company

whose road runs along the highway is obligated to keep the

highway between the rails of its track in repair. Masterson 1.

N.Y.C. & H.R. R.R. Co. 84 N. VY. 247. Upon the question

whether the highway has, been restored to usefulness the ques-

tion of the grade of the railroad is not a proper element of in-

quiry. Peoplev.N.V.C.& ALR. R. R. Co, 74 N. Y., 302. In

proceedings by mandamus to compel a company to fulfill its

obligation to restore, the court, in the writ, may and should

point out in what respect the company has failed, and direct it

particularly what it must doso as not to fail again. People ex
rel. Green v. Dutchess & Columbia R.R. Co., 58 N. Y., 152. Whether

the duty to restore has been performed or not, may be a question
for the jury. Wasmerv. Del. Lack. & W.R. R. Co., 80 N. Y., 212;
Paynev. Troy & Boston R. R. Co., 83 N. Y., 572. If the railroad

crosses the highway below grade, and the company carries the

highway over its track by means of a bridge, the construction
of a bridge of less width than the highway is not, per se, a
nuisance. So held under a similar statute. People v. N. Y.,N.
H. & H.R. R. Co., 89 N. Y., 266.

The remedy of the public for non-compliance with this sec-
tion is by indictment or mandamus or under ch. 2«c, L. 1845.
INTERSECTION OF OTHER RAILROADS. rat

(L. 1890, ch. 568, § 15. Peoplev. NV. V.C.& AR. RR. Co, 74 N.
Y., 302. The duty is a continuous one. If by an increase of
business on the highways, the facilities first provided become
inadequate, the company must make such changes as are
reasonably mecessary to provide for the needs of the public.
Hatch v. S., B. & N. VR. R. Co., 50 Hun, 64.

DECISIONS UNDER L. 1851, Cu. 19, § 4.

Payment of damages must be made before the land of the
turnpike or plank-road company can be entered upon. /amaica
& B.R.R. Co.v. N. ¥.& Manhattan Beach Ry. Co., 25 Hun, 585;
Ellicottuille& G.V.P. R. Co.v. Buffalo & Pittsburgh R.R. Co., 20 Barb,
644. Under this section and the provisions of the general act,
a railroad company may construct a new road connecting with
the unaltered portions of the turnpike road, to take the place of
that occupied by the railroad. lure NV. Y., W. S. & B. Ry. Co. v.
Newburgh & N. W T. R.Co., 28 Hun, 472.

$12. Intersection of other railroads.—Every
railroad corporation, whose road is or shall be intersected
by any new railroad, shall unite with the corporation own-
ing such new railroad in forming the necessary intersec-
tions and connections, and grant the requisite facilities
therefor. If the two corporations can not agree upon the
amount of compensation to be made therefor or upon the
line or lines, grade or grades, points or manner of such in-
tersections and connections, the same shall be ascertained
and determined by commissioners, one of whom must be 4
practical civil engineer and surveyor, to be appointed by
the court, as is provided in the condemnation law. Such
commissioners may determine whether the crossing or
crossings of any railroad before constructed shall be be-
neath, at, or above the existing grade of such railroad, and
upon the route designated upon the map of the corpora-
tion seeking the crossing or otherwise. All railroad cor-
porations whose roads are or shall hereafter be so crossed,

' intersected or joined, shall receive from each other and for-
ward to their destination all goods, merchandise and other
property intended for points on their respective roads, with
the same dispatch as, and at a rate of freight not exceed:
ing the local tariff rate charged for similar goods, mer-
132 Tue RarLroaD Law.

chandise and other property, received at or-forwarded from
the same point for individuals and other corporations.
(As am’d by Laws 1892, ch. 676.)
L. 1850, ch. 140, § 28, sub. 6. (Am’d by L. 1872, ch. 350, L.
1880, ch. 583, and L. 1887, ch. 724.)
L. 1875, ch. 606, § 26, sub. 3.

v

DECISIONS UNDER L. 1850, CH. 140, § 28, Sus. 6.

A street surface railroad must comply with this provision at
its point of crossing over a steam railroad. People’s R. R. Co. v.
Syracuse, B., & N.Y. R. R. Co., 22 Abb, N. C., 4273 and the peti-
tion must show that it has complied with L. 1884, ch. 252, sec. 3,
in obtaining the consents of the property owners and local
authorities. Jn re Saratoga Elec. R. R. Co., 58 Hun, 287. ‘There
must be an attempt and failure to agree. This must be alleged
in the petition for the appointment of commissioners. In the
absence of such an allegation, there is no jurisdiction. Jn re
B., H. T.& W. Ry. Cov. T.& BR. R. Co, 79 N. Y., 69. Tf this
allegation is denied, it must be proved by the petitioner. /n re
Lockport & Buffalo R. R. Co.v. N. Y.C.& H.R. R. R. Co, 77 NV.
Y., 557. But if is not put in issue, it need not be proved. Jn re
B., H. T. & W. Ry. Cov. T.& B.R. R. Co, 79 N. Y., 64. An ex-
press vote of the directors is not necessary to show failure to
agree. Jn re Cortland H. H. R.R. Co. v. Syracuse, B.& N.Y.
R. R. Co., 91 Hun, 72; affirmed 95 N. Y., 663. An agreement fora
crossing is a bar to a proceeding under this section, even if in-
termediate the agreement and the proceedings, both roads had
been sold under foreclosure of mortgages prior in date to the
agreement. JnreR., IV.& O. &. R. Co. v. Ontario Southern R. R.
Co., 16 Hun, 445. It seems, that the Court might very properly
refuse to entertain proceedings for the appointment of commis-
sioners under this provision until after proceedings to change
the point of crossing, under section 22 of the act of 1850, (§ 6 of
Railroad Law,) had been terminated. Jn re NV. Y., Lach. & W.
Ry. Co.v. N. Y., Lake Erie & W.R. R. Co. 88 N. Y., 279. As to
railroad crossings this section is exclusive. /nre NV. Y., L. £. &
WR. R. Co. v. Pittsburgh, Lack. & N. E.R. R. Co., 110 N. Y., 374

A defect in the verification of the petition is not a jurisdic-
tionaldefect. Inve BH. T. & W. Ry. Cov. T.& B.R. R. Co,
79 NV. Y.,64. The petition must state that the petitioner is a
corporation ; that the route of its road aslaid down by it crosses
the other road ; that it desires to cross or intersect such road,
INTERSECTIONS OF RAILROADS—CHANGE OF ROUTE. 133

specifying the place; and that the two corporations “can not
agree upon the amount of compensation to be made therefor or
the points and manner of such crossings and intersections.” It
is not necessary to state allthe matters which are required by
section fourteen of the act of 1850, to be stated in the petition
where the proceeding is to acquire title to lands for the construc-
tion of the road. Jn re Lockport & B. R. R. Co.v. N. Y.C. & Hi.
RR. R. Co. 77 N.Y. 557. It is not necessary to show or allege
that the map provided for by section twenty-two of the act of

1850 has been filed. Jn re M Y.C. & N.R.R. Co. N.Y. Daily”

keg., Sept. 20, 7880. An order appointing commissioners affects
a substantial right within § 1356 of the code. Jn re Saratoga
Elec. Ry. Co., 58 Hun, 287.

The question of the point of crossing may be tried before the
commission and is subject to review. Jn re Lehigh Val. Ry. Co.,
v. NN. V.C.& H.R. R.R. Co. 93 N. Y., 639. The commissioners
should determine all such particulars respecting the manner of
crossing as would ordinarily be provided for by the contract be-
tween the companies, and not only such as pertain to the inter-
est of the companies, but such as relate to the public safety, such
as questions in reference to the precedence of trains on the re-
spective roads, or in reference tothe employment of a flagman.
The compensation should include all actual and direct damages
occasioned by the taking of the land for the purpose of, and re-
sulting from its being used as, arailroad at the crossing. /m re
Lockport & B.R. R. Co.v. N. V.C.& H.R. R. R. Co., 19 Hun, 38.
See Jn re Central R. R. of Long Island, 1 T. & C., gr9. Tf no
evidence is given on the question of damages, an allowance of
nominal damages will not, as matter of law, be deemed inade-
quate. Jn re Cortland & H. H, R. R. Co.v. S., 2. & NM. VR. RCo.
98 N. Y, 336. The determination of the commissioners should
be definite and certain. Jnre N. Y., Lach, & W. Ry. Co. v. BN.
V.& Erie R. R. Co., 35 Hun, 232.

A proceeding under this section is a special proceeding, and
costs are in the discretion of the court. Jn re Cortland & H. H.
R. R. Co., 98 N. V., 336. Areport cannot be appealed from in
fragments so that the benefits may be retained and the protec-
tion be withdrawn. lure MV. YL. & W.Ry.Co.v. NV LE &

WR. R. Co., 44 Hun, 275.

§13. Change of route, grade or terminus.—
Every railroad corporation, except elevated railway cor-
porations, may, by a vote of two-thirds of all its directors,
alter or change the route or any part of the route of its
134 Tue RaiLroaD Law.

road or its termini, or locate such route, or any part there-
of, or its termini, in a county adjoining any county named
in its certificate of incorporation, if it shall appear to them
that the line can be improved thereby, upon making and
filing in the clerk’s office of the proper county a survey,
‘map and certificate of such alteration or change. If the
same is made after the corporation hascommenced grading
the original route, compensation shall be made to all per-
sons 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 of any railroad be so changed in any town,
county or municipal corporation, 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 or municipal corporation, unless such
terminus, after the change, will remain in the same _ village
or city as theretofore. No alteration of the route of any
railroad after its construction shall be made, or new line or
route of road laid out or established, 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 con-
structed or located, whereby communication might be had
with any incorporated city of the state, may amend its cer-
tificate of incorporation so as to terminate its road at the
point of its intersection with any railroad subsequently
located: to intersect it, and thereby, by itself or its con-
nections, afford communication with such city, with the
consent of the stockholders owning two-thirds of the
stock of the corporation. Any railroad corporation may,
by a vote of its directors, change the grade of any part of
its road, except in the city of Buffalo, in such manner as
it may deem necessary to avoid accidents and to facilitate
the use of such road; and it may by such vote alter the
grade of its road, for 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 anv canal or canal feeder exeent in the
4
\ : i

CHANGE OF RouTsE, GRADE. OR TERMINUS. 135

city of Buffalo. The superintendent of public works shall
have a general and supervisory power over that part of any
railroad which passes over, or approaches within ten rods
of any canal or 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, improvements 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 extend such new line and con-
nect 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 am’d by Laws 1892, ch. 676.)
By the amendment of 1892, the word ‘‘domestic” was omitted from the first

line, and elevated railway corporations were excepted from the operation of the
section.

L. 1847, ch. 272, § 4.

. 1847, ch. 404, § 1.

. 1850, ch. 140, § 23, (am’d by L. 1876, ch. 77, and L. 1886,
ch. 634.) : , ‘

. 1854, ch. 282, § 17.

. 1855, ch. 478.

. 1871, ch. 560, § 2.

Pee oon

See L. 1834, ch. 276. \

DEcIsIONS UNDER L. 1850, CH. 140, § 23.

As to what constitutes a valid exercise of the authority con-
ferred upon the directors by this section, see iz re WV. Y., Lack.
& W. Ry. Co.v. NV. V., Lake Evie & W.R. R. Co, 88 N.Y, 279.
As to whether the exercise of this power will release previous
subscribers for stock who have not consented to the change, see
Buffalo, Corning & N.Y. R. R. Co. v. Pottle, 23 Barb., 21. The de-
termination of the directors to alter. or change the route, as
authorized by this section, can not be reviewed by the courts

«without proof of facts impeaching the good faith of the direc-
tors in the exercise of their discretion. People v. Brooklyn F. &
C. I. R. R. Co. 12 Week. Dig.,375. The fact that a company seeks
to acquire land for additional and increased facilities for the
136 5 THE RaiLroap. Law.

transaction of business connected with its railroad, and although
these facilities are demanded for railroad purposes at the end
of its route, and very much enlarge the area of territory neces-
sary for tracks and other conveniences, can not be considered
as the location and establishment of a new terminus within the
provisions of the section. Jnre NN. YV.C.& A. R. RR. Co, 77
NV. Y., 248. ,

§ 14. Construction of part of line in another.
state.—Any railroad corporation, whose proposed rail-
road 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 adjoining state ; and the
sections of its road within this state shall be deemed a con-
nected line, according to the certificate of incorporation,
and the directors may reduce the capital stock of the cor-
poration to such amount as may be deemed proper, but not
less than ten thousand dollars’ per mile for the number of
miles of road to be actually constructed in this state.

L, 1851, ch. 19, § 2.

$15. Two roads having the same location.—

If two railroad corporations for a portion of their respec-
tive lines embrace the same location of line, or if their lines
connect, or are tributary to each other, such corporations
may by agreement provide 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 manner and terms
upon which the business thereon shall be performed, and
the corporation that is not toconstruct the part of the line
which is common to both, may amend its certificate of in-
corporation, and terminate its line at the point of intersec-
tion, and may reduce its capital to a sum not less than ten
thousand dollars for each mile of road proposed to be con-
structed in such amended certificate.

L. 1851, ch. 19, § 1.

L. 1854, ch. 282, § 13.

L. 1872, ch. 843, § 2.

Decision UNDER L. 1854, Cu. 282, $13.

See Troy& Boston R. R. Co.v. B., H. T. & W. Ry. Co., 86 N. Y.,
107.
\
TuNNEL RaILroaps. 137

DEcIsION UNDER L. 1851, Cu. 19, § 1.

The fact that a railroad company has shortened its line and
reduced its capital stock under this provision does not release a
subscriber to the stock from payment of his subscription.
Troy & Rutland R. R. Co. v. Kerr, 17 Barb., 58r.

* §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 hundred and fifty, and the acts amendatory there-
of, and supplementary thereto, it shall be necessary or’
proper to build it or any part of it underground, or to tun-
nel or bridge any river or waters, such corporation 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 purposes 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 connecting the same with
another, and to acquire, in the manner provided by law,
such lands or rights or easements in lands along its route,
upon, over or beneath the surface thereof as may be nec-
essary 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 tun-
nel the same, such tunnel shall be so built and at all timnes
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 condition as soon as can be done, except so
far as may be actually required for ventilation of the tun-
nel beneath the same or access thereto. Such road or any
part of it may be built within the limits of any city or in-
corporated 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 construct-
ing the same underneath 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,
!

138 THE RaiLroap Law.

road or public, place, and the consent of the board of trus-
tees of the village, by a resolution adopted at a regular
meeting and entered on the records of the board, or of the
proper authorities of the city having control of such
streets, roads or publicplaces. If the consent of such prop-
erty owners can not be obtained, the general term of the
supreme court in the district in which said city or village or
any part thereof is situated, may upon application appoint
three commissioners, who shall determine, after a hearing
of all parties interested, whether such railroad ought to be
built underneath such streets, roads or public places, or
any of them, and in what manner 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 cor-
porations constructing their road under this section shall
be subject to all the provisions 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 connecting
roads, the railroad corporations owning such roads 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 rail-
road authorized by this section through any city or incor-
porated 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 depart-
ment or corporation having charge thereof, so as not to in-
terfere with such work. In all cases the use 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
Tuwnet R, R.’s—RatLroaps In Foreicn Countries. 139

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 con-
structed hereuhder 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
apply to the county of Kings nor shall operate to revive
any charter or franchise heretofore granted by or in the
city of Brooklyn,

(As am’d by Laws 1892, chs. 676 and 702.)

The amendment of 1892, ch. 702, consists in the insertion of the words ‘‘ includ-
ing corporations organized under ch. 140 of the Laws of 1850,” &c. The last clause
limiting the operation of the section, is also new.

L. 1880, ch. 582, § § 1, 3 and 4.

DEcIsIONS UNDER L. 1880, CH. 582.

On application to the general term it must be shown affirma-
tively by a statement of the facts what application, to which
consent has been refused, has been made, and to whom, and
that the persons to whom application was made are in fact own-
ers of at least one-half of the property bounded on the proposed
railroad. Jn re Broadway Underground Ry. Co,, 23 Hun, 693. As
applied to arailroad confined within the limits of a city, and
proposed to be built exclusively under the surface of the street
thereof, the provision that the determination of the “commis-
sioners may be taken in lieu of the consent of said authorities ”
is unconstitutional and invalid. Possibly the act may stand as
an authority for the construction of an underground street rail-
way upon the condition of the consent of the city authorities
and the owners of half of abutting value, and rejecting all the
provisions for the appointment of commissioners whose order
shall be a substitute. Jure WV. Y. District Ry. Co., 107 N. Y., 42.

§ 17. Railroads in foreign countries.—A railroad
corporation may be formed under this chapter for the pur-
pose of constructing, maintaining and operating in any
foreign country a railroad for public use in the transporta-
tion of persons and property, or for the purpose of main-
taining and operating therein any railroad already con-
structed, in whole or in part, for the like public use, and of
constructing, maintaining and operating, in connection
140 THE Raitroap Law.
therewith, telegraph lines and lines of steamboats or sail-
ing vessels. Any corporation formed for the construction
and operation of a railroad by stationary power. may con-
struct, operate and maintain 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 manner
and to the same extent as would be necessary within the
United States.

(As am’d by Laws 1892, ch. 676.)

L. 1866, ch. 697, § 4.

L. 1881, ch. 468, § 1.

~~

§ 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 examina-
tions and surveys for its proposed railroad, telegraph lines,
and lines of steamboats and sailing vessels, and in acquir-
ing from foreign countries. nations or governments, the
grants, concessions and privileges herein authorized.

2. To take and receive from foreign countries, nations
and governments, such grants, concessions or privileges,
for the construction, acquisition, maintenance and opera-
tion of railroads, telegraph lines and vessels, as may be
consistent with the purposes of the corporation, 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, na-
tion or government, or as may be annexed to such grants
or concessions.

3. To construct, acquire, maintain and operate the
lines of railroad, telegraph and shipping provided for by
its certificate of incorporation, and to take and hold by
purchase or by voluntary grant such real estate and other
property in foreign countries as may be necessary and con-
venient for the construction, maintenance and accommo-
dation of such lines, and to sell, convey, mortgage or
lease such real estate or other property; and to acquire by
purchase or otherwise any railroad or lines of telegraph
constructed or in process of construction in any foreign
RAILROADS IN FoREIGN COUNTRIES, {41

country, and any grants, concessions, franchises, rights,
privileges and immunities relating thereto, and to mort-
gage or sell and convey the same, or any part of its prop-
erty 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 corpora-
tion, 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 tothe laws of the place or
country where the same are situated.

5. To acquire and use such real estate and other prop-
erty 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 shali not exceed the sum of one million dollars.

L, 1881, ch. 468, §5.

DEcIsIONS UNDER L. 1881, ch. 468, § 5.

Such a railroad company is not liable to an action brought by
an executor or administrator for negligence in causing the
death of a decedent. The injury must occur in this state.
Whitford v. Panama R. R. Co., 23 N. Y., 465; Crowley v. Same, 30
Barb., 99. But see Woodenv. W.N. V.& P. R.R.Co., 126 N.Y,
10; McDonald v. Mallory,77 N. Y.,546; astoa foreign corpora-
tion see Robinson v. Oceanic Steam Nav. Co., 112 N. Y., 315.

DeEcIsIONS UNDER L. 1881, Cu. 468, § 13.

Quaere, whether this section was intended to abrogate the gen-
eral rule prescribed for the taxation of corporations by L. 1857,
ch. 456. Zhe People ex rel. Panama R. R. Co. v. Commissioners of
Taxes, 104 NV. Y., 240.

§ 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
rad THE RaiLroap Law.

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 corpora-
tion.

(As am’d by Laws 1892, ch. 676.)

L. 1881, ch. 468, § 9.

i

§ 20. Individual, joint stock association, or
other corporation may lay down and maintain
railroad tracks in certain cases.—Any individual,
joint stock association or corporation, engaged in any law-
ful 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 busi-
ness, and to connect any place of business owned by them
with the track of any railroad corporation, and render
such place of business more accessible to the public, upon
obtaining the written consent of the owners of all the lands
bounded on 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, appoint three commissioners, who
shall determine, after a hearing of all parties in-
terested, whether such railroad ought to be con-
structed or operated, and the amount of damages, if any,
to be paid to such property owners, and their determina-
tion 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 inter-
fere 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. :

L. 1880, ch. 267.
L. 1882, ch. 140.
Private RaltRoaDS—ELECTRIC LicHt CoMPANIES, 143
_$21. When electric light and power corpora-
tion may become a railroad corporation.— When
all the stockholders of any domestic electric light and
power company incorporated under a general law, having
not less than five stockholders and actually carrying on
business in this state, shall execute and file in the offices
in which its original certificates of incorporation are filed
an amended certificate of incorporation complying in
every other respect than as to the number of signers and
directors, who shall_be not less than five, with the provis-
ions of the railroad law, and in which certificate the cor-
porate name of such corporation shall be amended by .
adding before the word “company” in its corporate name
the words ‘‘and railroad,” such corporation shall have the
right to build, maintain and operate by electricity as a
motive power a railroad not exceeding twenty miles in
length, and not a street surface railroad, and such corpora-
tion shall otherwise be subject to all the provisions of this
chapter and have all the powers, rights and privileges con-
ferred by it upon railroad corporations.
This section shall not apply to any railroad now located
in whole or in part or hereafter to be so located in any
city of the state.

(Added by Laws 1892, ch. 676.) \
L. 1890, ch. 416.

$21. Certain railroads may operate in summer
only; fare.—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 conven-
ience of summer sojourners need not operate its road _be-
yond 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 collect fare for transporting each passenger, to-
gether with ordinary baggage, if any, not to exceed fifteen
cents for each mile and fraction thereof.

_ (Added by Laws 1892, ch. 700.)
See section 55 of this act.
CHAPTER VII.

THE RAILROAD LAW—CONSTRUCTION, OPERATION

AND MANAGEMENT.
ARTICLE II.

CONSTRUCTION, OPERATION AND MANAGEMENT.

SECTION 30.
31.
32.
33
34.
35:
36.
Bi.
38.
39:
40.
41.
42.
43.
44.
45.
46.
a7
48.
49.

50.

51.
52.
53:
54-

Liability of corporation to employes of contractor.
Weight of rail.
Fences, farm-crossings and cattle-guards.
Sign-boards and flagmen at crossings.
Notice of starting trains; no preferences.
Accommodation of connecting roads.
Locomotives must stop at grade crossings.
Rates of fare.
Legislature may alter or reduce fare..
Penalty for excessive fare.
Passengers refusing to pay fare may be ejected.
Extra fare for sleeping car.
Persons employed as drivers and conductors.
Conductors and employes must wear badges.
Checks for baggage.
Penalties for injury to baggage.
Unclaimed freight and baggage.
Tickets and checks for connecting steamboats.
Rights and liabilities as common carriers,
Duties imposed:

1. Switches.

2. Warning signals.

3. Guard posts.

4. Automatic couplers.

5. Automatic or other safety brake.
6, Tools in passenger cars.

7. Water.

Railroad commissioners may approve other safe-
guards.

Use of stoves or furnaces prohibited.

Canada thistles to be cut.

Riding on platform; walking along track.

Corporations may establish ferries.
CorporaTION LiaABLE TO EMPLOVES OF CONTRACTOR. 145

55. Certain railroads may cease operations in winter.

56. Mails.

57. Corporations must make annual report.

‘58. When conductors and brakemen may be police-
men.

59. Requisites to exercise of powers of future railroad
corporations. .

&%

SEcTION 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 construction of any
part of its road, for ninety or any less number of days’
labor performed by him in constructing such road, if with-
in 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 con-
tain a statement of the month and particular days upon
which the Jabor was performed and for which it was unpaid,
the price per day, the amount due, the name of the con-
tractor from whom due, and the section upon which per-
formed, and shall be.signed by the laborer or his attorney
and verified by him to the effect that of his own knowl-
edge 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 suitable age or discretion ; and if the
corporation has no such agent, engineer or superintendent,
or in case he can not be found and has no place of busi-
ness open, service may in like manner be made on any offi-
cer or director of the corporation. :

L. 1850, ch. 140, § 12, (am’d by L. 1871, ch, 669.)

L. 1875, ch. 606, § 16. ;

See L. 1875, ch. 392, § 8.

See L. 1830, ch. 529. Lien extended to bridges and trestles.

See L. 1875, ch. 392. Lien of employes for labor.
See L. 1885, ch. 376. Wages of employes preferred upon:
the appointment of a receiver.
146 Tue RaiLroap Law.

DECISIONS UNDER L. 1850, CH. 140, § 12.

Theterm “contractor,” as used in this section, is not restricte€
to one who contracts with the railroad company. The liability
extends to laborers employed by a sub-contractor. Kent v. NV.
YV.C.R. R. Co., 12 N. V.,628. This statute should be confined
strictly to claims for personal labor rendered by the claimant
himself. No recovery can be had for the labor of claimant's
teams, nor for that of his hired servant. Aicherson v. Troy & Bos.
ton R. R. Co., 1 Abb. Ct. Ap. Dec. 13; Cummings v. N. Y.& O. Mid.
land R. R. Co., 1 Lans., 68; Balch v. Same, 6 N. Y., 527. A con-
tract for a specific sum as wages for the day or month is not
necessary. Animplied contract to pay what the labor is worth
is sufficient. The notice is served in time if it is within twenty
days after the completion of the number of days labor for which
the pay is claimed. The notice may be served either on the
chief engineer or on the assistant engineer immediately in
ae of the work. Chapman v. Utica & B.R.R.R. Co., 4 Lans,,
96.

$31. Weight of rail.—The rail used in the con-
struction 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 ten feet to the mile or under,
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.

L. 1847, ch. 272, §5.

L, 1850, ch. 140,§ 27. (Am’d by L. 1862, ch. 449, and L. 1871,
ch. 669.)

L, 1871, ch. 560, §6. (Am’d by L. 1877, ch. 103, L. 1879, ch.
293, and L. 1883, ch. 384)

$32. Fences, farm-crossings and cattle-guards.
-—Every railroad corporation, and any lessee or other person
in possession of its road, shall, before the lines of its road
are opened for use, and so soon as it has acquired the
wight of way for its roadway erect and thereafter maintain
fences on the sides of its road of height and strength suf-
Fences, FaRM-CRossINGs AND CATTLE-GUARDS. 147
‘ /

_ ficient to prevent cattle, horses, sheep and hogs from go-

ing upon its road from the adjacent lands with farm cross-
ings and openings with gates- therein at such farm cross-
ings whenever and wherever reasonably necessary for the
use of the owners 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 willfully done. A sufficient post and

wire fence of requisite height shall be deemed a lawful.

fence within the provision of this section, but barbed’ wire
shall not be used in its construction.

No railroad need be fenced, when not necessary to pre-
vent 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 rail-
road 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. Incase of any neglect or dispute the supreme
court may by mandamus or other appropriate proceedings,
compel the same, and also fix the point or location of any.
such crossing.

(As am’d by L. 1891, ch. 367, and L. 1892, ch. 676.)
148 Tue Rartroap Law.

The provisions for. crossings for the transportation of logs, &c., in timber or
forest lands and for mandamus proceedings are new.
L. 1850, ch. 140, § 44.
L. 1854, ch. 282, § § 8 and 9.
L. 1864, ch. 582, § 2.

DECISIONS UNDER L. 1850, Cu. 140, § 44.

The statute is general and applies to cases where lands are
purchased as well as to those where they are acquired by the
power of eminent domain. The owner has power to waive or
release this obligation, but a conveyance in fee of aright of way
does not have this effect. Smith v. N. Y.& Oswego Midland R. R.
Co., 63 N. Y., 58; Wademan v, Albany & Susg. R. R. Co, 514 N.Y,
568; Clarke v. Roch., Lock.& N. F. R.R. Co. 18 Barb., 350. In re-
gard to the application of this section to companies formed un-
der prior acts, see Jn re D. & H.C. Co, 3 WW. D., 232; appeal dis-
missed, 69 N. Y., 209; Staats v. Hudson R. R. R. Co., ¢ Abb. Ct. Ap.
Dec., 287. See Schermerhornv. Hudson R.R. R. Co., 38 N. Y., 103.
Railroad companies for whose use a railroad is constructed by a
company formed for that purpose, but which runs no trains of
its own, are liable for failureto comply with the requirements
of this section. TZyracyv. Troy & Boston R. R. Co., 398 N. Y., 433.
The fact that the train itself was operated by another company
having the right torun upon the defendant’s road, does not re-
lease it from liability. Dolanv. Newburgh, D.& C. R. R. Co., 120
N.Y, 577. The fact that the lands of another railroad inter-
vene on one side does not prevent the plaintiff from being
within the statute as ‘ proprietor of lands adjoining such rail-
road.” Buffalo Stone and Cement Co. v. D, L. & W.R. R. Co,
130 N. Y., 152. The owner of land adjoining on but one side
has a right to a crossing. /¢d And it is not a defence that
the land on both sides of defendant’s track is occupied by
the tracks of other companies. Kelver v. N. Y., Chicago & St
Louis R. R. Co., 126 N. Y., 365. The fact that the defendant is
a foreign corporation, and a lessee, does not exempt it
from the obligation imposed by this section, nor does the fact
that the land has been condemned and damages paid. The
duty is not to the owner as an individual, but to him as the
owner of the farm benefited by the crossings. Buffalo Stone
and Cement Co.v.D.,L.& W. R. R. Co., 7370 N. Y., 752. It is not
to be limited to crossings for agricultural purposes solely, but it

includes crossings to remove the natural products of the land.
Ld.
Fences, Farm-Crossincs AND CaTTLE-GUARDS. 149

The general and primary duty imposed is to maintain fences
along the sides of the track. The provision for openings, gates
or bars is an exception therefrom, or a permission in a given
‘case, to wit, for the use of the proprietor of adjoining lands.
No exception is made or permission given for gates, etc., for the
use of the railroad company or its customers, or the public gen-
erally. Against every one but a proprietor of adjoining lands
a fence must be kept up, or that which will serve the purpose of
one, which a gate or bars willdo when kept closed. If the com-

- pany permitsa gate at a farm crossing to be so used as not toserve
the purpose of a fence, it is guilty of negligence. Spinner v.
N.Y.C.& H. R.R. R. Co., 67 N.V., 753. It is the right of the
company, not of the land owner, todetermine the location of the
crossing. But in the exercise of this right, the interest of
neither party is alone to be regarded. Looking to all the cir-
cumstances, the location should be suitable and convenient.
Wademan v. Albany & Susg. R R. Co., 51 N. V., 568; Buffalo Stone
and Cement Co. v. D., L. & W. R. R. Co, 730 N.Y, 7152. The
statute as to cattle-guards and farm crossings applies as well in
villages as to country highways. Bracev.N. Y.C.R. R. Co., 27
NV. Y., 269; Clarkev. RL& N. FL R. RR. Co. 18 Barb., 350. A
railroad company whose track runs through the streets of a
city is bound to fence the vacant lots fronting thereon. Craw-
foray. N. Y. C.& H.R. R:R. Co., 18 Hun. 108. The fact that the
railroad crossing is at or near a depot, and that to make a cattle
guard there would inconvenience the company, will not excuse
non-compliance with the statute. Tracy.v. Troy & Boston RK. R.
Co., 38 N. Y., 433; Bradley v. Buffalo, N.Y. & Erie R. R. Co.,34 N.
Y., 427. Cattle-guards need not be constructed at farm cross-
ings, only at road crossings. Brooks v. NV. Y. & Erie R. R. Co., 13
Barb., 594. A Virginiarail fence is a proper “fence” within
this section. Ferris v. Van Buskirk, 18 Barb. 397. As to barbed
wire fence see amendment of 1891 (above,) also Rehler v. West.
N.V.& P.R.R.Co,8 N.Y. Supp., 286; 28 St. Rep., 311. As to
height of fence see Leydenv. VN. V.C.& H, &. &. R. Co. 55 Hun,
II. .

An action in equity may be maintained by the adjoining
owner to compel the erection of necessary and suitable fences
and farm crossings. _ The question of the propriety of the cross-
ing is one of fact for the court. Wadenan v. Albany & Susq. R. £.
Lo., 51 N. Y., 568; Jones v. Seligman, &1 NV. .Y,, 790. Also an action
to recover damages for breach of duty. Smith v. N. Y.& Oswego

i
150 Tue RarLtroap Law.

Mid. R. R. Co., 63 N. Y.,58; Thomas v. Utica & Black R. R. R.Co.,.
97 NV. Y.,245; Clarke v. Roch., Lock. & N. F. R. R. Co, 18 Roark. gin.
Such an action is not an action for “injuries to real property,”
but is an action upon “contract,” within the meaning of section
484 of the Code of Civil Procedure, it being for the breach of
an implied contract to perform a statutory liability. Zhomas v.
Utica & Black R. R. R.Co.,97 N. Y., 245. The land owner is not
restricted by the statute to damages caused by killing or injury
ing cattle, horses or other animals by the engines or agents of
the company.’ He may recover in a common law action all the
damages which he may have sustained by reason of the neglect
of duty imposed upon the corporation. Leggettv. R., W. & O. RK.
RR. Co., 41 Hun, So.

It is only before the requisite fences and cattle-guards are
duly made, or while they are not properly maintained, that a
railroad company and its agents are made liable by this section
for all damages done by their agents or engines to cattle, horses
or other animals thereon, notwithstanding the negligence of
the owner co-operates in producing the damages. After such
fences and. guards are duly made and maintained, the corpora-
tion is not liable for any such damages unless negligently or
willfully done; and then the person sustaining such damages
by reason of the negligence of the corporation cannot recover
if his own negligence in any way concurs in producing the dam-
ages. Hance v. Cayuga & Susg. RR. Co., 26 N. Y., 428; Brady v.
Rensselaer & Saratoga R. R. Co., 1 Hun, 378; Duffy v. N.Y. & Har-
lem R. R. Co., 2 Hilt., 496; Cormtvas NY. & Erie R.R. Co., 13 N.Y,
42; White v. ‘Uiien & Black R. R. R. Co., 15 Hun, 333; Shean, Same,
27.&C.,, 388; Fanning v. Long Island R. R. Co., id., 585; Boyle v.
N.Y., Lake Erie & W.R. R. Co., 39 Hun, 177. The liability ex-
tends to cattle, horses and animals of other than adjoining own-
ers. Corwinv. N. VY. & Erie R. R. Co., 13 N. Y., 42. But in such
cases the damage must be done by hie engines or agents of the
corporation. The liability, as to third parties, does not extend
to injuries which the cattle may do to themselves by straying
on the track. Knightv. N. V..L.£.&@ W.R.R.Co, 99 N. V., 25;
see Graham v. Del. & Hud. C. Co., 46 Hun, 3986. Tf a gate in a
fence adjoining a railroad is left open by the proprietor of the
adjoining lands, a third person whose cattle pass through such
gaté and are injured can not recover the damages from the com-
pany. Brooks v. N. V. & Erie R. R. Co., 13 Barb. 594.

The company is not liable for aeiarias done at a time when
the fence is temporarily out of repair, without fault or negli-
4

FENcEs, FaRM-CrosSINGs AND CaTTLE-GUARDS, 151
‘gence in any manner imputable to the company. Murray v. NV.
VY. CR. R. Co., 4 Keyes, 274; 3 Abb. Ct. Ap. Dec., 339; see Brady v.
Rensselaer & Saratoga R. R. Co., 1 Hun, 378. Actual or vortstruc-
Hive notice of a temporary defect must be shown, and a neglect
of the company to repair it within a reasonable time. The bur-
den of proof to establish negligence is upon the plaintiff.
Wheeler v. Erie Ry. Co., 2 7. & C., 634; Hodge v. N.V.C.&@ H.R.
R. Be Co., 27 Hun, 394; Munch v. N. Y.C. R. R. Co.,.29 Barb., 647;
Morrison v. N. V.& N. H.R. R. Co., 32 Barb., 568; see Lane v. NV.
Y,, Lake Evie W.R. R.Co.,23 W. D., 267. Soalso of bars at cross-
ings. Hungerford v. S. B. & N.Y. R. R. Co., 46 Hun, 339,
ag’d 127 N.Y, 647. As to what is evidence of constructive
notice, and what evidence is sufficient to justify a submission to
the jury of the question whether plaintiff’s horse, which was
killed, escaped through defendant’s fence to the track, see Mc-
Guire v. Ogdensburgh & L.C. R.R. Co. 18 N. Y. Supp, 313; 44 St.
Rep., I48. Upon the question of a company’s liability for dam-
ages done to cattle of an adjoining owner who has knowledge
of the defects complained of, see Polly v. NV. Y. C. R. R. Co., 16
N. Y., 476; Stimpson v. N. V., Lake Evie & W.R. R. Co., 13 W.D.,
132. A company is not liable to its own tenants on adjoining
land owned by it for injuries caused by neglect of this pro- .
vision. Potterv. NV V.C& H.R. RR. Co., 60 Hun, 373; but see
Klock v. N. V.C. & H.R. R. R. Co. 62 Hun, 291, where it was

held liable, although it owned the adjoining land.

If the adjoining landowner has covenanted toerect and main-
tain the ‘fence, and has failed to do so, it is a defence to the
company as against such adjoining landowner and those claim-
ing under him, but not as against third parties. Duffy v. WV. Y.
& Harlem R. R. Co., 2 Hilt. 496; Corwinv. N. Y, & Erie R. R. Co.,
13 N. Y., 42; Talmadge v. Rens. & Sar. R. R. Co. 13 Barb., 493;
Tombs v. Roch. & Syracuse R. R. Co, 18 Barb., 583; Terry v, N. ¥,
CR. R. Co., 22 Barb. 574. But see the remarks of: Peckham,
J.,in Shepard v. N.Y. & Erie R. R. Co., 35 N. V., 64r.

This statute imposes the absolute duty upon a railroad com-
pany to fence its tracks, not only to protect the life of animals,
but also to protect human beings upon railroad trains. The
sole consequence of the omission of the statutory duty is not

‘specified and was not intended to be specified in the statute.
The corporation is responsible therefore for injuries both to
passengers and employes caused by its failure to comply with
this statute. Donnegan v. Erhardt, 119 N. Y., 468. See Langlois x.
152 THE RartLroapD Law.

Buf. & Roch. R. R. Co., 19 Barb. 364,370. This provision does
not require a company to indemnify the owner of a team who
has voluntarily driven it on the lands of the company and has
‘negligently permitted it to escape upon the track in front of a
moving train. Dolan v. Newburgh, D. & CR. R. Co, 120 N.Y,
571.

DEcISIONS UNDER L, 1854, Cu. 282, § 8.

The provisions of this section apply to a foreign corporation.
Purdyv. N. V.& N.H.R.R.Co., 61 N.Y., 3953. The fact that the
road crossing is near a depot, and that cattle-guards at such cross-
ing might inconvenience the company and the public, will not
excuse the company from complying with the positive require-
ment of the statute. Bradley v. Buffalo, N. V.& Erie R. R. Co,
34 NV. Y., 427; but see Ayattv. N. VL. £. 2° WR. R. Co., 64
fun, 542. This statute has no application to fences for the pro-
tection of persons passing near a railroad. Détchett v. Spuy. Duyv.
& P.M. R.R. Co, 67 N. Y., 425; Prendegastv. N. Y.C.& HRLR.
R.Co., 58 N. V., 652. The death of the animal must be the re-
sult of its being struck by the engine, and not of its jumping off
the track on the engine’s approach. The necessity of fencing
ata particular point is a question of law for the court. Ayattv,
N.Y, L£.& WR. R. Co., 64 Hun, 542. An opening may be
necessary for access to station platforms, &c. /d.

DECISIONS UNDER L. 1854, Cu. 282, § 9.

The agreement on the part of the landowner specified in
this section is a covenant running with the land, and is an en-
cumbrance within the meaning of a covenant to convey “free
from all encumbrances.” Blain v. Taylor, Ig Abb., 228. Such an
agreement does not relieve the company of its liabilities, under
section eight of this act, asto third parties. See Corwinv. N. Y.
& Erie R.R. Co. 13N. Y., 42; Shepard v. Buffalo, N. V.& Erie R.
R. Co., 35 N. Y., 642; Talmadge v. Rensselaer & Saratoga R. R. Co.,
13 Barb., 493; Terryv. N. Y.C. R.R. Co., 22 Td., 574; Duffy v. N.
Y. & Harlem R. R. Co., 2 Hilt., 496.

DECISIONS UNDER L. 1864, CH. 582, § 2.

This section does not confer power to lease, but applies only
when that power has been conferred. <Abdott v. Johnstown,
Gloversville and Kingsboro Horse R. R. Co.,80 N. Y., 27, After a
lessor has parted with the control and possession of the road and
its appurtenances, it is not responsible for any nuisance which
\

Stcn Boarps AND FLAGMEN aT CROSSINGS. : 53°

did not exist prior to such parting with the possession and con-
trol. Ditchett v. Spuyten Duyvil & Port Morris R. R. Co, 67 N. V.,
425. Itisthe duty of the owner of the land to close the gate
after using it. Diamond Brick Co.v. N. V.C.& H. R.R.R. Co., 7
NV. Y. Supp., 868; 28 St. Rep., 95; 58 Hun, 396.

-

_ $33. Sign boards and flagmen at crossings.—
Every railroad corporation shall cause boards to be
placed, well supported and constantly maintained across
each traveled public road or street, where the same is
crossed by its road at grade. They shall be elevated so
as not to obstruct travel, and to be easily seen by travel-
ers; ,and on each side shall be painted in capital letters,
each at least nine inches in length and of suitable width,
the words: “Railroad crossing; look out for the cars;”
but such boards need not be put up in cities and villages,
unless required by the officers having charge of the streets.
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 cor-
“ poration owning or operating such railroad, refuses, upon
request of the local authorities 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 re-
specting the same as it deems proper. Whenever the
crossings by a railroad at grade of the streets, highways,
turnpikes, plank-roads, or traveled ways of any village or
city, having a population by the last state or federal
enumeration of less than fifty thousand, 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.

(As am’d by Laws 1892, ch. 676.)
154 Tue RaiLroap Law.

The limitation imposed upon local authorities in villages or cities of less tham
50,000 inhabitants is changed by the amendment of 1892 from ‘‘thirty” to
“forty” miles an hour.

L. 1850, ch. 140, § 4o.
L. 1884, ch.. 439, §'3. (Am’d by L. 1889, ch. 242.)

DEcISIONS UNDER L. 1884, CH. 439, § 3.

As to the amendment of 1889, see Haywood v. N.Y.C.& H.R. R-.
R. Co., 13 N.Y. Supp., 177; 35 St. Rep. 145, aff'd 128 N. V., 596. The
rules in negligence cases at crossings where gates are erected are
stated in Glushing v. Sharp, 96 N. Y., 676; Palmer v. N. Y.C.& H-
R. RR. Co., 112 N. Y., 234; Oldenburg v. N.V.C.& H.R. R.R. Co.,
124 N.Y., 414; Rodrianv. N.Y.,N. H.& H.R. R.Co., 125 N.Y., 526;
Kanev. N. Y..N. H.& H.R. R. Co, 132 N. Y., 760. As to in-
jury by the gates, see Feeney v. Long J. R. R. Co, 116 N.Y.
375. No duty is imposed by a request toerect gates until an
order is obtained pursuant to this section, and no negligence
can be imputed by reason of an omission to comply with the re-
quest. Daniels v. Staten I. R. T. Co., 125 N. Y., go7. This provi-
sion is not unconstitutional, as a delegation of legislative power
to the judges; an indictment may be found against the company
for violation of this section. People v. L. I.,R. R. Co., ie Hun,
gi2. Aff’d by Courk of Appeals, Oct. 2, 1892.

§$ 34. Notice of starting trains ; no preferences.
—FEvery 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 suffi-
cient accommodations for the transportation of all passen-
gers 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 dis-
charging 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 sta-
tion established by any railroad corporation for the recep-:
tion or delivery of passengers or property, or both, shall be
discontinued without the consent of the board of railroad
commissioners first had and obtained. No preference for
the transaction of the business of a common carrier upon
,

Notice or STartinG TRAINS—NOo PREFERENCES, 1 55

its Cars, or in its depots or buildings, or upon its grounds,
shall be granted by any railroad corporation to any one of
two or more persons, associations or corporations compet-
ing in the same business, or in the business of transporting
_property for themselves or others. Any such station in an
incorporated village shall have the same name as the vil-
lage ;-if any road shall have more than one such station in
any such village, the station nearest the geographical cen-
tre thereof shall have such name. ;

(As am’d by Laws 1892, ch. 676.)

The amendment of 1892 added the provision forbidding the discontinuance of a
Station without the consent of the board of railroad commissioners, The provi-
sion forbidding preference is limited to the business of acommon carrier. The
last clause providing for the names of stations is new.

L. 1847, ch. 222. :
L. 1850, ch. 140, § 36, (am’d by L. 1867, ch. 49.)
L. 1875, ch. 606, § 30. 5

A preference in the transaction of the business of a common
carrier could formerly be granted at least where the defendant
was itself interested in the business. Barney v. Oyster Bay, & cx
Steamboat Co., 67 N. Y., zor.

Decision UNDER L. 1847, CH. 222.

This act was passed to facilitate and compel such arrange-
ments where the facilities contemplated were not voluntarily
granted. The act regards such arrangements as within the
chartered limits of power and as calculated to promote the pub-
lic objects of the incorporation. It is not an enabling but a reg-
ulating act. Cary v. Cleveland & Toledo R. R, Co., 29 Barb., 57.

DECISIONS UNDER L. 1850, Cu. 140, § 36.

The object of this section’ was to bring railroad companies
within the general principle applicable to common carriers
with stich variation as the nature of the business requires. It
was not any part of that object toadd to their general responsi-
bility as carriers, or to deprive them of the power which they
possessed prior to its passage of making contracts in regard to
such responsibility. Bissell v. NM. V. CR. RCo, 25 NL Y., 442°
Notwithstanding the provisions of this section, a company is
not liable for damage occasioned by delay caused by an unusual
quantity of freight being delivered to it which was forwarded
without preference in the order of its receipt, where its road is.
156 Tue RatLroapD Law.

in good order, well equipped, and it runs as many trains as it
can with safety. Wibertv.N. V. & Erie R. R. Co.,12 N. Y., 245.
Butin Tterneyv. NN. Y.C.& H.R. R. R. Co, 76 N. Y., 305, it is said
that if the company has not the means of transportation, it is
its duty to refuse toreceive the goods.

If the company gives such published notice of the running of
its trains, and such special notice in the cars, of the necessity of
changing cars at any particular station, that every traveler of
ordinary intelligence, by the use of reasonable care and caution,
would obtain all the requisite information as to the route to be
traveled and the cars to be taken at intermediate points, it dis-
charges its whole duty in this respect. Pagev. V. V. C. R. &.
Co., 6 Duer, 523.

A company may be compelled by mandamus, in an action
brought by the people by their attorney general, to exercise its
duty asa common carrier of freight and passengers. People v.
N.V.C& H.R. R.R. Co. 28 Hun, 543. But the remedy ofa
party aggrieved by the wrongful refusal of a company to re-
ceive and transport his goods, is by an action at law to recover
the damages sustained thereby. Mandamus will not lie. People
ex rel. Ohlenv. N. V., Lake Erie W.R. R.Co., 22 Hun, 533; Peo-
ple ex vel. Walker v. Babcock, 16 Hun, 313.

The sale of a railroad ticket at a ticket office before the ar-
tival of a train or when it is at the station, does not give to the
purchaser a specific right to take that particular train, so that it
must be held long enough for such passenger to go upon it.
Paulitsch v. N. V.C. & H.R. R.R.Co.,102 N. Y., 28. The pas-
senger who presents himself at a station in time and is known
by the conductor to be an intending passenger on that train, is
entitled to a reasonable time to get aboard thetrain. Hickenbot.
tumv. DL. WR. R.Co., 122 N. Y., 772. A train should stop
at a station long enough to enable all passengers, whether en-
cumbered with packages or not, to leave the train in safety.
Flanagan v. N.Y., N. H.& H.R. R.Co., 29 St. Rep, 543; 8 N.Y.
Supp., 7445 aff'd 125 N. ¥., 773; McDonald v. Long Isiand R. R.Co.,
116 N. Y., 546. -A neglect to start and run trains at regular
intervals for five successive days in violation of this section is
not ground for a forfeiture of its corporate powers. Under
sec. 1785 of the Code of Civil Procedure, a year’s non-user is
necessary. People v. Atlantic Ave. R. R. Co., 125 N. Y., 5137. See
People v. Broadway R. R. Co. of Brooklyn, 126 N. Y., 29.
ACCOMMODATION OF ConNnEcTING Roaps. 157

$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 im-
partially afford to each of such connecting or intersecting
roads equal terms of accommodation, privileges and _facil-
ities in the transportation of cars, passengers, baggage and
freight over and upon its roads, and over and upon their
roads, and equal facilities in the interchange and use of pas-
senger, baggage, freight and other cars required to accom-
modate the business of each road, and in furnishing
passage tickets to passengers who may desire to make ‘a -
continuous trip over any part of its roads and either of
such connecting roads. The board of railroad commis-
sloners may, upon application of the corporation owning or
operating 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, accommodations and facilities to such connect-
ing or intetsecting roads as may be required to accommo-
date the business of each road, and the terms and condi-
tions 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. .

L. 1850, ch. 140, § 36.
L. 1847, ch. 222.

See § 12 of this act.

For a case involving the question of discrimination under the

Interstate Commerce Act, see WV. Y. & Worth, Ry. Co. v. N. VY&
NE. R. R.Co., 50 Fed. Rep.; 867.

§ 36. Locomotives must stop at grade cross-
‘ings.—All trains and locomotives on railroads crossing
each other at grade shall come to a full stop before cross-
ing, not less than two hundred 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

\
158 Tue RatLroap Law.

at the crossing. If the corporations can not 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 railroad commissioners may, after hearing,
upon the application of either corporation, 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 cross-
ing. The full stop and crossing on signal shall not be re-
quired in depot yards, or the approaches thereto, if the
crossing roads are under lease or subject to the same man-
agement 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, violating any of such provi-
sions or rules shall be liable to a penalty of five hundred
dollars. No railroad corporation, or any officer, agent or
employe thereof, shall stop its 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.

L. 1884, ch. 439, § 5.

$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 exceeding 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 elevation 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
RaTEs oF Fare. 159

into cogs on the railway, and the length of road does not
exceed four miles.

2. If aroad, 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 hun-
dred 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 exceeding three hundred feet to
the mile, within a distance of two miles, five cents for each
one: hundred feet of elevation; and where it overcomes an
elevation of more than one thousand feet, within a dis-
tance 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,

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. 5

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 rail-
road 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
160 Tue RaiLroap Law.

by law to be charged by each existing corporation thereon
previously to such consolidation.

(As am’d by Laws 1892, ch. 676.)

The amendment of 1892 limits the baggage allowed a passenger to not exceed-
ing 150 pounds in weight. Subdivision 2 was formerly limited to narrow-guage
roads. Subdivision 5 permits the compamy to charge for each fraction of a mile
at a rate of three cents, “ with a right toa minimum single fare of not less than
five cents.”

Sub. 1; L. 1866, ch. 697, § 3; L. 1884, ch. 422, § 2.

Sub. 2; L. 1871, ch. 560, § 6, (am’d by L. 1879, ch. 293, and L.
1883, ch. 384;) L. 1883, ch. 386, § 1.

Sub. 3; L. 1887, ch. 536, § 1.

Sub. 4; L. 1881, ch. 470.

Sub. 5; L. 1850, ch. 140, § 28, sub. 9, (am’d by L. 1880, ch. 133.)

End. L. 1869, ch. 917, § § 3 and 7.

See § 21 of this act, (added by L. 1892, ch. 700.)

DECISION UNDER L. 1850, Cu. 140, § 28, SuB. 9.

Before the amendment of 1880, it was held that a company ex-
isting at the time of the passage of this act and which was en-
titled by its charter to a rate of fare for the carriage of passen-
gers less than that prescribed by this subdivision is authorized
to increase its rate to a sum not exceeding that thus prescribed.
Johnson v. Hudson R. R. R. Co. 49 N. YV., 455.

§$ 38. Legislature may alter or reduce fare.—
The legislature may, when any such railroad shall be
opened 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 commis-
sioners, 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 cent.
upon the capital of the corporation actually expended.

L. 1850, ch. 140, § 33.

See Buffalo East Side R. R. Co. v. Buffalo St. R. R. Co, 111 N. Y¥y.
132.
PENnatty For Askinc oX& RECEIVING EXCESSIVE Fare. 161

$39. Penalty for excessive fare.—Any railroad
corporation, which shall ask or receive more than the law-
ful rate of fare, unless such overcharge was made through
inadvertence or mistake, not amounting to‘gross negli-
gence, 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 with-
in one year after the cause of action accrued.

L. 1857, ch. 185. (Am/’d by L. 1886, ch. 415.)
See L. 1889, ch. 38.

Decisions UNDER L. 1857, CH. 185.

But one penalty can be recovered for all acts committed prior
to the commencement of the action. The penalty may be're-
covered by a party who has paid the excessive fare when riding
for the purpose of obtaininga penalty. Fisherv.N.V.C. & &.
R. R.R. Co., 46. N. V., 644. The penalty is incurred if the con-
ductor illegally requires the payment of five cents additional
fare because the passenger has noticket. Chasev. V. Y. C. R.
R. Co., 26 N. Y., 523; Nellisv. Same, 30 N. Y., 505; Porter v. Same,
34 Barb., 353. See Palmv.N. Y.,N.H. & A. RR. Co., 58 Supr.,
502; 17.N. Y. Supp. 471: 42 St. Rep. 219. In this case a spur
had been built on land owned by the company, and was only
used during races. It was held that the penalty was not in-
curred by an additional charge thereon.

§ 4o. 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 stop-
ping place, or near any dwelling house, as the conductor may
elect.

L. 1850, ch. 140, § 35.
L. 1875, ch. 606, § 29.

See Penal Code, sec. 223, sub. 5.

DECISIONS UNDER L, 1850, Cu. 140, § 35.

The company may require that tickets be produced or surren-
dered during the journey whenever required by the conductor,
and a passenger refusing to comply with such regulations may

fe
162 Tue RaiLroaD ‘Law.

be ejected. Hibbard v. N.Y. & Erie R. R. Co, 15 N. Y., 455;
Northern R. R. Co. v. Page, 22 Barb. 130. The fact that the pas-
senger has paid the fare to the ticket agent before entering the
cars, would not excuse the non-production of aticket. The con-
ductor is not bound to take the word of the passenger or of
third persons as tothe payment. Weaver v. Rome, W.& O. RR.
Co, 3 T.& C, 270. The wrongful act of one conductor upon,
one train in taking up and failing to return a passenger’s ticket
for a point beyond the destination of such train, does not au-
thorize the passenger to proceed upon another train, with
another conductor, beyond the destination of the first train,
without producing a ticket or paying fare. Townsend v. N.Y. C.
& H.R. R. R. Co., 56 N. Y., 295. A passenger for a way station
who takes an express train which does not stop at such station,
may be ejected for non-payment of extra fare to the station
where the train does stop. Finkz. Albany & Susg. R. R. Co., 4 Lans.,
147. Upon plaintiff’s refusal to pay the full fare, including the
extra charge when fare was paid on the train, the train was
stopped within about six rods of adwelling house, and he was
told to get off, which he did, and no force was used. edd, that
there was no questionfor thejury. Johnson v. N. Y., Ontario&®
West. Ry. Co., 74 W. D., 495.

The company may prescribe the trains on which a ticket shall
‘be good. Such limitation is not waived by statements of ticket
agents or acts of door-keepers. Molanv. N.Y... N.H.& H. R.R.
R. Co., gr N.Y. Sup., (J. & S.,) 547. But see Martinv. N.Y. C.
& H.R. R.R. Co, 1 N. VY. St. Rep., 738. So, also,a company own-
ing and operating two routes of unequal length between two
points, may prescribe the route on which a ticket shall be good.
Bennett v. N.Y. C.& H.R. RR. Co., 69 N. Y., 594; Adwin v. Same,
60 Barb., 590. Aticket upon which is printed “good for this
date only,” the date being stamped upon the ticket, must be
used on that date. If presented later, the passenger, on refusing
to pay fare, may be ejected. Elmore v. Sands, 54 N. Y., 512; Boice
v. Hudson R. R. R. Co.,61 Barb., 611; Barker v. Coftin, 31 id., 556; Gale
v. D., L.& W.R.R. Co. 7 Hun, 670. But the words “good this
trip only,” upon a ticket, do not limit its use to any particular
day, or to any specific train. Pier v. Finch, 24 Barb. 514. If the
ticket provides that it is “to be used within three days from
date,” and that it is “good for a continuous trip only,” it must
be used within the time specified and the trip must be continu-
ous. Barker v. Coflin, 31 Barb. 556; Beebev. Ayres, 28 Barb.,275,; Hill
PassENGER REFUSING TO Pay Fare MAY BE EJECTED. 163

‘v. Syracuse, B. & N.Y. R. R. Co., 63 N. Y., ror. See Elliott v. N.Y. C,
& HR. RR. Co., 53 Hun, 78. Evenif the ticket has'no limitation
in regard tothe continuity of the passage, it does not confer
“upon the holder the right to leave the train after once com-
“mencing his journey and afterwards to continue it on another
train on the same road. Kelsey v. Michigan Central R. R. Co, 28
Hun., 460; Terry v. Flushing, N.S.& C. R. R. Co, 13 Hun, 359;
Denny v. N. V.C.& H.R. RR. Co., 5 Daly, 50; Dunphy v. Erie Ry.
Co. 42.N. VY. Sup., (10 J. & S.,) 128; Hamiltonv. N. V. C. R. R.
Co., 51 N.Y.,100. See Wardv.N.Y.C.& H.R. R. R. Co, 56
Hun, 268. A passenger may stop over if he acts on the assur-
ance of the conductor that he may doso. Tarbell v.N.C. Ry.
Co., 24 Hun, 51. But if the holder of a continuous passage
ticket which is good only if used within a specified time beging
his passage upon the road on account of which it is issued with-
‘in the time specified the ticket is “used” within the meaning of
the contract, although it may not be possible to completé the
passage within the time specified. The ejection of a passenger
in such a case, after the expiration of the time specified, the
passage on such road having been continuous, is wrongful.
Auerbach v.N. Y.C. & H.R. R. R.Co., 89 N. Y., 28%. Such limi-,
tation isnot waived by the checking of the holder’s baggage
and the punching of the ticket by the baggage master. Wentz 2.
Erie Ry. Co., 3 Hun, 241. ,

A company has no right to eject from a train a passenger in
the rightful possession of a passage ticket, on the ground that
he passed through the wrong entrance to reach the train,
Huerstelv. N.Y. & Harlem R. R. Co., 1 City Ct., 734. A passenger
who is lawfully on a train and has paid his fare, has the right to |
protect himself against any attempt to remove him. If in
consequence of his resistance extraordinary force becomes nec-
essary and is used to remove him, and he is injured thereby, the
company is liable. Znglish v. Del. & Hudson Canal Co., 66 N. Y.,
‘454; Sanford v. Eighth Av. R. R. Co., 23. N. V., 343. Lt seems, that
if a train is stopped for the sole purpose of ejecting a passen-
ger, he is not entitled, on offering to pay his fare, to insist on
‘continuing his trip. But where the stop is at a regular stopping
place, it would be the duty of the conductor to accept the fare
and not eject him, if offered by him or by others on his behalf,
O'Brien v. N. V. C. & H. R.R.R. Co, 80 N. Y., 236: Hibbard v.
N.Y. & Erie R. R. Co. 15 N. V.,455. See Melson v. Long Island
RR. Co.,7 Hun, 140; Guyv, N. Y., 0. & W. Ry. Co, 30 Hun, 399
164 Tue RatLtroap Law.

This, however, would not be so even at a regular stopping place
if the offer to pay fare was made after force had been required
and applied to remove the passenger. Pease v.D., Lack. & Mest.
R.R. Co., 101 N. Y., 367. Vf allthe seats in the ordinary carsare
occupied, a passenger is justified in passing into a drawing
room car and taking aseat until seats in the ordinary cars are
provided. Therailroad company in such acase is liable for in-
juries caused by the porter of the drawing-room car in attempt-
ing to eject the passenger from thedrawing-room car for non-
payment of the extra charge made” for passage in that car.
Thorpe v. N. V.C.& H.R. R. RCo, 76 N. ¥., go2. Tf the con-
ductor acting within the general scope of his employment and
authority, abuses his authority, and actsin a reckless and illegal
manner, in removing a trespasser from a train, causing injury,

the company is liable. Aoffmanv. N.Y. C.& H.R. R. R.Co., 87
N.Y., 25; Rounds iv. D., Lack.& West. R. R. Co. 64 N. Y., 1293
Clark uv. N. Y., Lake Erie & IW R. R. R.Co., go Hun, 605. See Peck
v. VN. Y.C.& .R. R. R. Co.,70 N. V., 587. The mere failure of

a passenger to pay his fare does not of itself relieve the com-
pany from its duties to him asa passenger. Burtletiv. N.Y. &
So. Brooklyn F. & S. T. Co., 57 Supr. Ct. 348. Where the place at

which a passenger was ejected was twenty-five or thirty rods
distant from the nearest dwelling house, upon another highway,
it could not be said as a matter of law that, within the contem-
plation of this section, it was zear adwelling house. The ques-

tion was properly submitted to the jury. Loomis 7. Jewett, 35
lun, 313.

If exemplary damages are claimed, the evidence of the con-
ductor to his belief as to his duty in ejecting a passenger is
competent on the question of damages. But it would not be if
only compensatory damages were claimed. Vates 7. V. V.C.&
H.R. R.R. Co. 67 N. Y., 100. See also Barkerv. N. ¥.C. R. R.
Co., 24 N. Y., 599, and Page 7. Same, 6 Duer, 523. If the servants of
the company act in good faith in ejecting a passenger, under a
mistake of fact, or for the non-production of a ticket, the fare
having been paid in fact, the company is liable for compensa-
tory but not for exemplary damages. Hamilton v. Third Ave R.
R. C0.,53 N. V., 255 Townsendi. N. VY. C.& AR. RR. Co., 56 N.
Y., 295; Yatesv.N. Y.C. &. H.R. R. R. Co., 67 N. Y., roo; Fink
v. Albany & Susg. R. R. Co., 4 Lans., 147.
SLEEPING AND Partor Cars. 165

$41. Sleeping and parlor cars.—Any railroad cor-
poration may contract with any person, association or cor-
poration for the hauling by the special or regular trains of
said railroad corporation, the parlor, drawing-room or
sleeping car or cars of such person, association or corpora-
tion, in which extra accommodations shall be furnished,
for which said person, association or corporation furnish-
ing 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 ex-
tra accommodation, in addition to the fare and charges now
allowed by law for the carriage and transportation of pas-
sengers and property in the ordinary cars of said railroad
corporation. But said railroad corporation so contracting
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.

(As am’d by Laws 1892, ch. 676.) (

By the amendment of 1892 the section is entirely remodelled, and a “reason-
able compensation ” is allowed for the extra accommodation of sleeping and par-
lor cars.

L. 1858, ch. 125.

The purchase of a ticket for a seat in a drawing-room car
does not have the effect of annulling or varying a contract made
by the purchaser with the railroad company, upon the accept-
ance of-a free pass, exempting the company from liability for
injuries to his person or property. Uvrichv.N.Y.C. & H. R. R.
R. Co., 108 N.Y., 80. A passenger having lost his ticket entitling
him to a seat, produced a note to that effect from the ticket
agent, but was ejected from the car; the company operating
the cars were held liable. Buck v. Webb, 58 Hun, 18. In regard
to the right of passengers, when all the seats in the ordinary
cars of a train are occupied, to take seats in a drawing-room car
until seats in the other cars are vacated, see Thorpe v. N.Y. C. &
H.R. R. R. Co.,76 N. Y., 402. See DeLong 1. D., L.& W.R.R. Co., 37
Hun, 282. The servants in charge of such cars are to be regarded, in
tespect to their dealings with passengers, as the servants of the
railroad company, and it is responsible for their acts to the same
extent as if they were employed by it. Thorpev. MN. V.C.& .Z.
RR. R. Co.,76 N. Y., 402; Dwinellev. N. Y.C.& AR. R. R. Co.,
z20N Y., 117; Palmieri v. Man. Ry. Co., 133 N. V., 267. See the
166 Tue RarLtroap Law.

following cases in regard to the liability of drawing-room and.
sleeping carcompanies for the baggage and parcels of passen-
gers. Welch v. Pullman Palace Car Co., 1 Sheld., 457; 16 Abb. Pr,,.
N. S., 352; Tracy v. Same, 67 How., 154; Welding v. Wagner, 6 W.
D., 262, 1 City Court, 66. See asto the liability for money stolen
from a passenger, the company not having provided a suffi--
cient number of employes, for protection, Carpenter v. WV. Y., N.
HT. & H.R. R. Co., 124 N. Y., 53; Dunny. New Haven Steamboat Co.,,
58 Hun, gOT.

$42. Persons employed as drivers and con-
ductors.—Any railroad corporation may employ any in-
habitant of the state, of the age of twenty-one years, not
addicted to the use of intoxicating liquors, as a car-driver
or conductor, or in any other capacity, if fit and competent
therefor.

L. 1865, ch. 246.
See L. 1892, ch. gor, § 39.

$ 43. Conductors and employes must wear
badges.—Every conductor and employe of a railroad cor-
poration 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 conductor
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 pas-
senger, his baggage or property.

(As am’d by Laws 1892, ch. 676.)

L. 1850, ch. 140, $ 30.
L. 1875, ch. 606, § 27.

$ 44. Checks for baggage.—A check made of some
proper metallic substance of convenient size and form,
plainly stamped with numbers, and furnished with a con-
yenient strap or other appendage forattaching to baggage,
shall be affixed to every piece or parcel of baggage when.
taken for transportation for a passenger by the agent or
EmpLoyes—CHuEcks FoR BAGGAGE. 167
4

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 deliver-
ing 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 conductor in charge of the train. Such
baggage shall be delivered, without unnecessary delay, to
the passenger or any person 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 bag-
gage on the train, of not less than thirty minntes, upon
presentation 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.

(As am’d by Laws 1892, ch. 676.)

By the amendment of 1892, baggage may be removed at any regular intermedi-
ate stopping place, ‘‘ upon notice to the baggage master in charge of baggage on the
train, of not less than thirty minutes.”

L. 1847, ch. 272, § 6.
L, 1850, ch. 140, §- 37.

Decisions UNDER L. 1850, CH. 140, § 37.

In regard to the general liability of a common carrier for a
passenger’s baggage received by it, see Orange County Bank v.
Brown, 9 Wend., 85; Camden & Amboy R. R. & T. Co. v. Belknap, 21
wd, 354; Pardee v. Drew, 25 id., 459; Powell v. Myers, 26 id. 592.
The liability for a passenger’s baggage is as an insurer, the same
as for freight. Merrill v. Grinnell, 30 N. Y., 594. A contract to
carry the ordinary baggage of the passenger is implied from the
usual course of the business; and the price paid for fare is con-
sidered as including a compensation for carrying the baggage.
Hawkins v. Hoffman, 6 Hill, 586; Isaacsonv. N.Y. C.& H.R. RR.
Co. 94 N. Y., 278. Arailroad ticket is intended as a voucher or
token, and a notice upon it as to the terms upon which baggage
is carried, does not limit the company’s liability unless knowl-
edge of it is brought home to the passenger. Rawson v. Peng.
R. R. Co., 48 N.Y, 272. See as to liability for baggage lost on a
connecting steamboat line, over which, however, a ticket was
not purchased, Green v. MV. Y.C. R. R.Co., 12 Abb. N. S., 473.
168 Tue RaiLroap Law.

Baggage embraces such articles as a traveler usually carries
with him, whether from necessity, convenience or amusement,
reference being had to his pecuniary circumstances, taste,
habits, and the particular journey he is taking. Merrill v. Grin-
nell, 30 N. Y., 594. Some of the articles which have been held
to be baggage in particular cases are: a proper sum of money
for traveling expenses, /d.; Fairfaxv. N.Y. C&A. RR. R. Co,
73 N. Y., 167; a gold watch, McCormichv. H.R. R. R. Co, 4k
D.S., (N.Y. C. P,) 181; such jewelry as is ordinarily worn about
the person, Zorpey 7. Williams, 3 Daly, 162; tools used by the pas-
senger in his trade, Davis 7. Cavuga & Susquehanna R. R. Co., 10
flow. Pr., 330; old family laces of the value of ten thousand dol-
lars, the passenger being a lady of rank and wealth traveling
for pleasure, VVC & ARR. R. Co.7. Fraloff, 100 U. S., 24;
new clothes and material for clothing for the passenger and his
family, Dexter v. Syracuse, B. & N. VY. R. R. Co., 42 N. Y., 326. But
merchandise, Pardee v. Drew, 25 Wend. 459; samples of merchan-
dise, Hawkins v. Hoffman, 6 Hill, 586; Gurney v. Grand Trunk Rail-
way of Canada, 14 N.Y. Supp., 921; 37 St. Rep., 155; presents for
friends, masonic regalia, &c., Mevins 7. Bay State Steamboat Co., 4
Bosw., 225; Dexter v. Syracuse, B. & N. VY. R. R. Co., 42 N. Y., 326,
are not baggage. If a company receives the trunk of a passen-
ger after being advised that it contains articles other than ordi-
nary baggage, and charges and receives for its transportation,
because of extra weight, a sum in addition to the ordinary fare,
it will be liable for such articles as well as for the ordinary bag-
gage, in case of failure to deliver. Perlevu.N. Y C&A. RR. R.
R. Co., 65 N. Y., 374; Sloman v. Great IWVest. Rv. Co., 67 N. V., 208;
Stoneman v. Erie Ry. Co. 52 N. Y., 429; Millardv. M.K.& TR. R.
Co, 86 N. Y., 44t.

Courts may take judicial notice of the system of checking
baggage by railroad companies, and of the general practice, in
case of through passengers having tickets for an entire route
over roads owned and operated by separate but connecting
lines, for the first company to check the baggage to its final des-
tination, and to deliver it at the end of its route to the next suc-
ceeding carrier, and so on until it reaches the possession of the
last carrier. It is within the apparent authority of a baggage
master so to check baggage, and where he receives it and
agrees to check it through by a particular, route, the company is
bound, although in fact he had no authority to check it by that
route; at least it is a question of fact fora jury. If in fact the
BAGGAGE. 169

baggage master checks the baggage by a different route and it
is delivered to another carrier, contrary to the agreement, the
‘company will remain liable as insurer for any injury or loss oc-
‘curring on the route to which the baggage is diverted. Jsaacson
UNV. C& ALR. R. R.Co., 94 N. V., 278; Estes v. St. Paul, M. &
MM. R. RB. Co, 7 N.Y. Supp, 863; 27 St. Rep, 594. In case of a
through check, the first company only acts as agent for the con-
necting carrier. Delivery to the connecting carrier releases it
from liability. Bunnell v. N.Y. C. R.R. Co, 45 N. Y., 184. Téa
connecting carrier receives and forwards baggage which is not
checked over its line, it is at least liable as warehouseman, if
not ascarrier. Fairfaxu N.Y. C.& H. R.R.R. Co.,73N. Y., 167.
The object of the check is to enable the passenger to identify
his baggage. It does not embody the contract of carriage.
Isaacson v. N.Y. C.& H.R. R. R. Co, 94 N. Y., 278.-

When a reasonable time has elapsed to enable the owner to
claim his baggage, after its arrival at destination, the responsi-
bility as carrier ceases, and a modified liability, like that
of a warehouseman, supervenes. Matteson v. N.Y. C.& A. R.
R.R. Co, 76 N. Y., 981; see Curtis v. D,, L. & W.R. R.Co., 74 N.
Y., 116; Burnell v. N. V.C. R. R. Co., 45 N. V., 184; Dininny v. N.
Y,, V.H.& H.R. R. Co. 49 N. Y., 546; Roth v. Buf. and State Line
R. R. Co.,34N. V., 548; Holdridge v. Utica & Black River R. R. Co.,
56 Barb.zor; Jones v. Norwich & N.Y. Transp. Co., 50 Barb., 1935
Curtis v. Avon, Geneseo& Mt. Morris R. R. Co., 49 Barb., 148.

A contract to deliver baggage is governed by the law of the
place of delivery. Curtis v. D., L.& W. R. R. Co, 74 N.Y,
IIO.

As to the liability of palace car companies, see [elch v. Pull-
man Pal. Car Co., 16 Abb. N. S., 352; Tracy v. Same, 67 How. Pr.,
154, and cases cited under § 41 of thisact. As to what is a suffi-
cient delivery to a baggage express company, see Azkin v. West-
cott, 123 N. Y., 303.

§ 45. Penalties for injuries to baggage.—Any
person, whose duty it is for or on behalf of the common
carrier to handle, remove, or care for the baggage of pas-
sengers, who shall recklessly or willfully injure or destroy
any trunk, valise, box, bag, package or parcel, while load-
ing, unloading, transporting, delivering or storing the
same, or any railroad corporation, which shall knowingly
170 Tue Rartroap Law.

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 handling thereof, shall pay to the party in-
jured thereby the sum of fifty dollars, in addition to such,
damages.

L. 1884, ch. 439, § 7.

$46. Unclaimed freight and baggage.—Every
railroad or other transportation corporation, doing business
in this state, which shall have unclaimed freight or bag--
gage, not perishable, in its possession for the period of one
year, may sell the same at public auction, after giving no-
tice to that effect, once a week for not less than four weeks. |
in a newspaper published in the county where the freight
or baggage remains unclaimed, and in a newspaper
published in the county where the sale is to be had,
and in a newspaper published in the city of New
York, which notice shall contain, as near as _ practicable, a
description of such freight or baggage, the place and time
when left, and the name of the owner, if known. A copy
of such notice shall be posted in a conspicuous place at
each depot or station, where any portion of such freight.
or baggage remains unclaimed, at least four weeks before
such sale, and a copy thereof shall be served on the comp-
troller of the state, at least two weeks before such sale.
If the name and residence of the owner of any such prop-:
erty is known to, or can beascertained by, the corporation,
it shall forthwith serve a copy of such notice upon such.
owner by mail. Perishable freight or baggage may be sold
without notice, as soon as it can be, upon the best terins
that can be obtained. All money arising from the sale of
such freight or baggage, after deducting therefrom charges.
and expenses for transportation, storage, advertising, com-
missions for selling the property, and any amount previ-
ously paid for its loss or non-delivery, shall be deposited,.
by the corporation making such sale, with a report thereof
and proofs of advertisement, if any, and if none, proofs.
that the property was perishable, 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 persons en-
titled to receive the same.

(As am'd bv Laws 1802. ch. 676.)
UNcLAIMED FREIGHT AND BaGGaAGE—STEAMBOATS: 17T

The provision Tequiring notice to the owner, if known, was added by the:
amendment of 1892. :

L. 1854, ch. 282, §§ 10, 11 and 12.
L. 1857, ch. 444, §§ 3 and 4. (§ 3 am’d by L, 1884, ch. 444).

See L. 1837, ch. 300,

$47. Tickets and checks for connecting steam-:
boats.—The proprietors of any line of steamboats,
terminating or stopping for passengers at any place where
a railroad corporation has a depot or station, may furnish
tickets and baggage checks to such corporation 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 ap-
plying therefor, and shall account 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 railroad corpora-
tion 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 corpo--
tation at any such place, and such proprietors shall sell
such tickets and deliver a duplicate of one of suchchecks to-
any such passenger applying therefor, and shall account
for and pay over to such corporation all moneys re-
ceived by them for the sale of such tickets. No greater
rate of fare shall be charged by any railroad corpora-
tion 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 connec-
tion 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 oyer its line, than is charged to travelers for the
same distance whose trip ends at the place where connec-
tion 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 cor-
172 THE RarLroap Law.

poration at whose instance or for whose benefit such trans-
fer is made. Every railroad corporation and the proprie-
tors 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 pas-
senger 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 dol-
lars for each day it shall so neglect or refuse ; and the pro-
prietors 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 neglect 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 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 de-
liver such freight to such proprietors or their agent with
the bill of charges thereon due such railroad corporation,
for the payment of which charges the proprietor or pro- —
prietors of such steamboat line shall be responsible, and
shall account 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 its 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 destina-
tion 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 steamboat or
steamboats have a landing, to any such railroad corpora-
tion, for transportation over its road or any part thereof,
shall be transported by such corporation to its place of
RIGHTS AND LIABILITIES AS COMMON CARRIERS. 173.

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.

L. 1868, ch. 573.

$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 cor-
porations 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
transnorted by it to any place on the line of a connecting
road ; and if it shall become liable to pay any sum by rea-
son 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.

(As am’d by Laws 1892, ch. 676.)
L. 1847, ch. 270, § 9.

LIABILITIES OF RAILROADS AS CARRIERS OF PASSENGERS.

See cases cited under §§ 34, 35, 37, 39, 49, 41 and 44 of this
act.

The company is bound to exercise all the care and skill which
-human prudence and foresight can suggest to secure the safety
of the trains in regard to the machinery, appliances and appa-
ratus. Brownv. N. Y.C.R. R. Co. 34.N. Y¥., 404; Smithv. British
& N. A. Packet Co. 86 N. Y., 408; Hazman v. Hoboken Land and Im-
provement Co., 50 N. V., 533 Taber v. D., L.& W.R. R. Co. 71 NV.
Y., 489; Merwin v. Man. Ry. Co., 48 Hun, 608; aff’d 113 N. Y.,
659; Palmer v. Del. & Hud. Can. Co., 120 N. V., 770; but see where
the dangerous condition is caused by the elements, Palmer v.
Penna. Co., 111 N. Y., 488. The same rule applies to street rail-
roads, Wynn & Cent. Pk. N.& £. &. R. R. Co. 133 N. V., 5755
Chase v. Jamestown St. Ry. Co., 38 St. Rep, 9545 15 N. V. Supp., 355
aff’d without opinion, 133 N. Y., 619; and to injuries caused by a
public bridge used by them, Birmingham v. Roch. City & B. RR.
Co., 59 Hun, 583; 18 N.Y. Supp, 649; 45 St. Rep., 724. The im

f
174 THE RaiLroap Law.

position by statute of certain precautions does not relieve the
company of the obligation to take precautions not enumerated.
Brownv. N. Y.C. R. R. Co., 34 N. Y., goa. Carriers of passengers
are not insurers, yet the law requires that they shall furnish a
‘sufficient car. They are liable for injuries sustained by the
breaking of an axle by reason of a latent defect not discoverable
by the most vigilant external examination, if it could have been
discovered in process of manufacture by men skilled in such
business. Hegeman v. W. R. R. Corpn., 13 N. V.,9,; Aldenv. N. Y.
C.R. R. Co, 26 N.Y. ro2. But see Wynn a. C. PRN & ER. R.
R. Co., 133 N. V., 575. It is a question for the jury, whether
upon the evidence a company is guilty of negligence in not
ascertaining the utility of and adopting a safety device already
in use on other roads. Hegemanv. W. R. R. Corpn., 13 N. V., 9;
Smithv.N. Y.& H. R. R.Co., 19 N.Y., 127. This duty exists inde-
pendently of contract. Carroll v. Staten I. R. R. Co., 58 N. Y., 126.

The company is bound to furnish a safe and secure place to
ride, and comfortable accommodations for the convenience of
passengers. Werle v. L.J. Rk. Rk. Co, 98 N. Y.,650. There must be
reasonable evidence of negligence, but when the thing causing
the injury is shown to be under the control of the defendant, and
the accident is such as in the ordinary course of business would
not happen if reasonable care were used, it affords in the absence
of explanation by the defendant, sufficient evidence that the acci-
dent arose from want of care on its part. Breenv. N. V.C.& 4X.
R. R. R. Co, 109 N. Y., 297.

When no human prudence could have guarded against the
accident, and it could not reasonably have been anticipated,
the company is not liable. Mf/cPadden v.N. Y.C. R. R. Co., 44.N.
Y., 478; Cleveland v. N. J. Steamboat Co., 125 N. Y., 299; Wynn v.
CPLN.& ERR. R. Co, 133 N. V., 575.

In case of an injury caused by the falling of an article placed
by a passenger in a rack over the seats, reasonable care is suffi-
cient to avoid the responsibility for accidents so happening.
Morrisv. N.V.C. & H.R. R.R. Co., 106 N. Y., 678.

‘The company is responsible for the willful misconduct of its
servants in assaulting a passenger, while engaged in perform-
ing a duty which the carrier owes to passengers. Stewart v.
Brooklyn Crosstown R. R. Co, 90 N. V., 588. (See § 41 and cases
cited.) It has no right to detain and imprison a passenger until
he produces or payshis fare. Itmay be liable for false imprison-
Ricuts anp LiasiLiries aS CARRIERS OF PASSENGERS. 175

ment. Lynch v. Met. El. R. R. Co. 90 N. Y.,77; Hamel v. N.Y. &
Brooklyn F. Co., 6 N. Y. Supp, l02; 25 St. Rep., 153; aff'd 125 N_Y.,
707; also for Sonascnes words spoken, Palmieri v. Man. Ry. Co.,
133 NV. Y., 261; but see Mulliganv. N. V. & Rockaway Beach Ry.
Co., 129 N. Y., 506; Corbett v. 23d St. Ry. Co., 42 Hun, 587.

A sleeping car company is charged with the duty of carefully
and continuously watching the interior of the car while berths
are occupied by sleepers, and to exercise vigilance in protect-
ing them from robbery. Carpenterv. N. V..N.H. & H.R. R.Co.,
124 NV. Y., 53.

Carriers of passengers are not required unconditionally to
-accept all persons who offer themselves for transportation and
‘tender fare. They may decline to receive or carry those who
refuse to conform to their reasonable rules, after knowledge of
the same, or may after such refusal lawfully eject those who
have .been received. feasev. D. L.& W. R.R. Co, ror N. Y.,
367. The passenger does not tose his character as such by
alighting from the cars at a regular station, although he has

not yet arrived at the terminus of his journey. He must exer-
cise the care and caution required of prudent persons under
the circumstances, but if he is injured by the omission of the
servants of the company to obey rules adapted for the protec-
‘tion of persons in that situation, itis liable. ursonsv. N.Y. C.
-» H. R.R. R. Co., 113 N. V., 355. Anemploye who divests him-
self of his character as a servant and becomes a paying passen-
ger, acquires the rights ofa passenger. fossu.M.V.C& H.R.
R: R. Co., 5 Hun, 488; aff'd 74.N. V., 617; but it is not so if he
-is carried free as part of the contract of service. Vick v. N.Y.
C.& H.R. R. R. Co, 95 N. Y., 267. An intoxicated man has a
right to be a passenger so long as he keeps quiet and does not
interfere with others. Millimanv. N. V.C. & H.R. R. R. Ca,
66 N. Y., 642; Putnam v, Broadway and 7th Ave. R. R. C0, 55 N. Y.,
ros, It is only necessary that the person be on the train by
consent. Aticketis not necessary, Mulbert v. V. Y.C. R.R. Co., go
NV. Y., 145; Bellmanyv. N. Y.C.& H.R. R. R. Co, 42 Hun, 130;
aff'd 122.N. Y., 671; Edgertonv. N.VY.& H.R. R. Co, 399 N.Y,
227; Buffett v. Troy & B. R. R. Co. go N. V., 168; Truex v. Erie Ry.
Co., 4 Lans., 198; Clevelandv. N. J. Steamboat Co., 08 N. V., 306.
See Philips v. North, R. R., of N. Y. 62 Hun, 233. But a person who
‘is invited by a conductor without authority and contrary to the
tegulations of the company, to ride on a train which is not in-
tended for passengers, without paying his fare, is not a pas-
176 Tuer RaiLroapD Law.

senger. Eatonv. D.,L.& W. R. R. Co, 57 N. Y., 382. So a boy
invited by a motorman to ride free as compensation for opening a.
switchisnotapassenger. Finleyv. Hudson Elec. Ry. Co., 64 Hun, 373-
A drover paying freight on cattle, but himself riding free, is not
strictly a gratuitous passenger. Smilhv. N.Y. C. R. R. Co, 29
Barb., 132; afd 24 N. V., 222; Bissell v. Same, 25 N. Y., 442; Porter
v. N.Y, LE. & WR. R. Co, 59 Hun, 177; aff'd 129 N. Y., 624.
A mail agentisa passenger. Voltonv. WR. R. Corpn., 15 N.Y,
444; Seyboltv. N.V., Lake Evie W. RR. Co. 95 N. Y., 562; also
an express agent, Blair v. Erie Ry. Co., 66 N. Y., 3913; Kenney v. N.
V.C@&@H.R.R. Co, 125 N. V., 422; Brewerv. N. V,L&. & W.
R.R. Co. 124 N. Y., 59.

The carrier is bound to exercise the utmost vigilance in main-
taining order and protecting passengers from violence. Weeks
vu. N.YV.,N.H.& AR. R. Co, 72 N. Y., 50; Putnam v. Broadway
and 7th Ave R. R. Co.,55 N. Y., 708 ; but is not liable for valuable se-
curities carried personally by the passenger without the car-
rier’s consent and stolen by force from him while on defendant’s
train. Weeksv.N.Y.,N.A.& H.R. R.Co,72 N.Y., 50, but seeas
to sleeping car companies, Carpenterv. NV. V.,N. H.,& H. R. R.
Co.,124 NV. Y., 53, and cases cited under § 41 of this act.

A car may be set apart for ladies. Pechv. MY.C.& A. RR.
R. Co., 70 N. Y., 587.

The space for entering or leaving the cars, stations, platforms,
etc., must be kept in a safe condition. AHulbertv. NV. Y.C. R. R.
Co., go NV. Y., 145; Van Schaick v. Hudson R. R. R. Co., 43 N. Y.,
527; Hoffman v. N.Y. C.> H.R. R.R.C0.,75 N. Y.,605; Dillayev.
NYCRR. Co., 56 Barb. 30; Westonv. N.Y. El. R. R. Co., 73
N.Y., 595; Clussmanv, L. I. R. R. Co., 9 Hun, 618; aff'd 77 N.Y,
606, Dobiechiv. Sharp, 88 N. V., 203; Archer v. N. Y., N. Hav., ete.,
R. R. Co., 106 N. Y., 589; Boyce v. Man. Ry. Co, 118 N.Y,
314, Ainley v. Man. Ry. Co., 47 Hun, 206; Hanrahanv. Man. Ry. Co. 53
Hun, 420, aff'd 130 N. Y., 658; Bateman v. N.Y. C & AR.
R. R. Co., 47 Hun, 429; Timpson v. Man. Ry. Co., 52 Hun, 459; Lent
v. NL V.C& HR. R. R. Co., 120 N. Y., 467; also where the train
is accustomed to stop, although there is no station. Keating v.
N.Y.C.& H.R. R. &. Co, 49 N. Y., 673; (see as to stopping at a
railroad crossing, Davis v. LZ. V. R. R. Co., 64 Hun, 492;) but the
obligation is simply to exercise ordinary care in view of the
dangers attending the use. Laffin v. Buff. & S. W. R. R. Co., 106
NV. Y., 136; Kelly v. Man. Ry. Co, 112 N. Y., 443, Hanrahan
Ricuts anp LiaBiLirTiEs As CARRIERS OF PASSENGERS. 177

v. Man. Ry. Co.,, 53 Hun, 420; aff'd 130 N. YV., 658; Ryan
v. Man. Ry. Co., 121 N.'Y., 726. It is not the duty of a com-
pany to furnish a person to aid a passenger in alighting from
the cars. Laffin v. Buffalo & S. W. R. R. Co. 106 N. Y., 136.

A railroad company cannot by contract exempt itself from
liability for damage resulting from its own willful misconduct or
recklessness which is equivalent thereto. Perkins v. N. V.C. R.
R.\Co., 24 N. Y., 796. Acceptance of a ticket bearing the in-
dorsement that the person “accepting this ticket” agrees that
the company shall not be liable for certain losses constitutes a
contract on the part of the passenger with the company, quali-
fying the common law liability. The passenger will be pre-
sumed to have known the contents of the ticket at the time of a
acceptance. Wellsv. NV. V.C. R. R. Co. 24 N. V., 181; Perkins v.
N.Y. C. R. R. Co., 24 N. Y., 196. The company may by ex-
press contract limit its liability for the negligence of its servants.
Kenney v. N. V.C.& H.R. R. R. Co.,:125 N. Y., 422; Smithy. Ni,
C. R. R. Co, 24 N. Y., 222; Bissell v. N. V.C.R. R. Co, 25 N.Y,
442; Poucherv. N. Y.C. R. R. Co. 49 N. Y., 263; but a stipulation
waiving all claims for personal damages does not include in-
juries by the negligence of the company’s servants. AfcE/wain
v. Erie Ry. Co., 21 W. D,, 21. Taking and paying for a seat ina
drawing room car by a passenger traveling on a pass, does not
avoid a stipulation in the pass exempting the company from
liability for injuries. Ulrichv. N.Y.C. & ALR. R. R. Co, 108
N.Y., 80. As to the effect of a contract limiting liability sate
with an express company upon the rights of its employees as
passengers, see Kenney v. NV. VY. C.& H.R. R. R. Co., 125 N.Y., 422;
Brewer v. N. V.,L. E. & W. R. R. Co, 124 N. ¥., 59; also with a
telegraph company. Elliottv.N. V.C. & H. R. RR. Co., 33 St.
Rep., 861; 11 N.Y. Supp., 691; see also Porterv. N.Y, L. E. & W.
R. R. Co. 59 Hun, 177; aff'd 129 N. Y., 624.

A contract may be made for conveyance over connecting
roads or omnibus lines. Williams v. Vanderbilt, 28 N. Y., 217. A
separate ticket was held to be insufficient evidence of such a
contract. Zvolev. D., L.& W. R. R. Co, 35 Hun, 20:

1

The carrier may be liable for unreasonable delay. VanBus-
kirk v. Roberts, 31 N. Y., 66z. See as torate of damages, Benson
uN. J. RR. & T. Co, 9 Bosw'. 412.

f
178 THE RatLroap Law.

InjuRIES TO PASSENGERSFOR WHICH RAILROAD COMPANIES HAVE
BEEN HELD LiABLE,

For fracture of elbow when the train was passing a car stand-
ing on an adjoining track, or some projection. Holbrookv. Utica &
Schen. R. R. Co., 12 N. Y., 236; Breenv. N. Y.C.&@ AR. R. R. Co.,
109 N. Y., 297; Albertiv. N. V,L. Ee WR. RCo, 118 N_Y,
77. See Hallahanv. N. Y.,L. £.& W. R. R. Co., 102 N. Y., 194;
Dale v. D., L. & WR. R. Co. 73 N. Y., 468; as to liability of a third
party maintaining the adjoining structure, see Francis vu. N.Y.
Steam Co., 114 N. V., 380.

For injury caused by the sudden starting of a train while pas-
sengers are alighting or entering the cars. Keating v. N. Y.C.
R. R.Co., 3 Lans., 469; aff'd 49 N. Y., 673; Hickenbottam v. D., L. &
W.R. R. Co. 122 N. ¥., 91; Medler v, Atlantic Ave. R. R. Co., 36 St.
Rep., 89; 12 N.Y. Supp. 930; aff'd 126 N. Y., 669; Sauter v. N.
V.C.@&@ HAR. R. R. Co, 66 N.Y. 50; Millimanv. N.Y. C& H.
R.R.R. Co., 66 N. V., 642; Glidden v. N. VC. & H.R. R.R. Co,
20 W Dz, 313; Black v. Brooklyn City R. R. Co., 108 N. Y., 640;
Simpson v. R., IV & O. R. R. Co. 48 Hun, 113; Ganiard v. Roch.
City & B. R. R. Co., 50 Hun, 22; Baker v. Man. Ry. Co, 118 N. Y.,
533; McDonald v. L. I. R. R. Co. 116 N. Y.,546; Flanaganv. N. Y.,
N.H.& H.R. R.Co., 29 St. Rep., 543; 8 N.Y. Supp., 744; aff'd
125 N. Y., 773; Akersloot v. 2d Ave. R. R. Co., 131 N. Y., 599; Morri-
son v. 7th Ave. R. R. Co.,130 N. Y.,166. Also for injuries to a per-
son entering a car, the conductor having cried “ all aboard.”
Cook v. L. 1. R. R. Co. 19 N. Y., Supp. 648; 47 St. Rep. 200; not so
when the injury was caused by another vehicle passing. Moylan
v. 2d Ave. R. R. Co., 728 N. Y., 583.

For injuries to a passenger while in the baggage car, that
fact not contributing to the injury, Carroll v. N. Y., VN. H. & A.
R. R.Co., 1 Duer, 571; Webster v. R.. W. & O. R. R. Co. 115 N.
Y., £72.

For injuries to a passenger leaving the train on the side
towards a station, no warning being given, who is injured by a
train on the track between his train and the station. The rules
respecting travelers on highways crossing tracks do not apply.
Gonzalesv. NV. Y.& H.R. R. Co, (Ct. Ap.) 39 How , 407; Dickens v,
N.Y.C.R. R. Co., 1 Abb. Ct. Ap. D., 504; 1 Keyes, 23; Green v.
Erie Ry. Co., 11 Hun, 333; Terry v. Jewett, 78 N. V., 338; Brassell v.
N.YV.C& H.R. R.R. Co. 84 N. V., 241; Parsons v.N. V.C. &
H.R.R.R. Co., 113 N. Y., 355; Van Ostranv. N. V.C.& H.R. R.
R. Co., 35 Hun, 590; Wandell v. Corbin, 38 Hun, 391; also to one
&

Ricuts anp Lrapititres as CARRIERS OF PASSENGERS. 179

entering atrainasabove. Terryv. Jewett, 78 N.Y. 338; Hirschv. N.
V.& GL. R.R. Co., ON. YV. Supp, 162; 25 St. Rep., 156; aff'd 125
4. Y.,707. But see Goldberg v. N.Y. C. & H.R. R. R. Co., 133
NV. ¥., 562, for an injury caused by a train on another track
on the opposite side from the depot.

For injuries caused by the sudden stoppage of the train.
Wylde v. Nor. R. R. Co. 53 N. ¥., 156.

For injuries caused by the act of the engineer in running
against obstacles under the opinion that he could knock them
out of the way. Willis v. Long I. R. R. Co., 34 N. Y., 670.

For injnries caused by the moving of cars in an unusual man-
ner, viz: making a running switch, Brown v. NV. Y.C. R. RCo.,
32 N. Y., 597.

For injuries to one in a vehicle employed to gather passen-
gers, Buffett v. Troy & Boston R. R. Co., 40 N. Y., 168.

For injuries where a train had run past a station and a pas-
senger attempting to alight is thrown from the train by a sud-
den jerk of the train, starting back to the station, Zaserv. D., L.
& WR. R. Co.,71 N. Y., 489; (but see where the train stopped but
not at a station and the passenger left the train, Davis v. L.V.R.R,
Co., 64 Hun, 492;) also where the train failed to stop atastation
where it was advertised to stop, and the passenger was told by
a trainman to get off and did so while the train was in motion,
Filer v. N. VC. R. R. Co. 49 N. Y., 47; 59 N.V., 351; 08 N. Y.,
124; Bucherv. N. V.C.& H.R. R. R..Co.,98 N. Y., 128; but see
Burrows v. Erie Ry. Co.,63 N.Y., 556, and Morrisonv. Erie Ry. Co., 56
NV. Y., 702, where the rule was held not to apply, in cases where
the train had stopped but started up before the passenger at-
tempted to alight, if the person injured knew of the rule of the
company forbidding getting off a train in motion, and was not
directed to make the attempt by an employe.

For injuries to a passenger struck by a mail bag thrown from
the train by the employes of a postal car, Carpenterv. B. & A.
Rk. R. Co., 97 N. V., 494:

For injury toa passenger upon the train of another company
passing by license of defendant over its road, caused by the de-

‘fective condition of a switch or negligence of defendant’s

servants in its management, Stodderv. NV. Y.,LE.& W. RK. R.
Co., 50 Hun, 221; affdrar N. Y., 655, the lessee is generally
solely responsible, Philips v. North R. R., of N. J. 62 Hun, 233.

'
180 Tue RaitroaD Law.

For injuries caused by a collision with a freight car left un-
secured on a side track, moved by the wind upon the main
track, Websterv. R.. Wi& O. RR. Co. 115 N. Y., 172.

For injuries where the car was carrying more passengers than
it could contain, by reason of which a passenger, giving up his
seat to another, is forced off from the platform while trying to
ride there, Lehr v. Steinway and H. P. R. R. Co., 118 N. YV., 556.

For injuries in passing from one car to another which had just
been attached or attempted to be attached, but in fact had re-
ceded, by reason of which the passenger fell between the cars,
the conductor calling out “all aboard” as the cars touched,
Lent v. N. Y.C.& H.R. R. R. Co., 120 N. Y., 467.

For injuries caused by a collision at a railroad crossing,
Schneider v. 2nd Ave. R. R. Co., 133 N. Y., 583, also between two
trains of different railroads going in the same direction over
the same track, Colegrove v. N.Y.& H.R. R. Co. et al., 6 Duer, 382.

A company was held liable for loss of money stolen from a
passenger in a sleeping car, where the force of employes was
insufficient. Carpenter v. V. V.. N. H.& H.R. R. Co, 124. N.Y,
53; also for damages caused by the neglect of its ticket agent to
properly stamp the destination upon a coupon to be used on a
connecting line, by reason of which the passenger is unable to
ride upon such line. Grifinv. Utica & B.R. R. R. Co., 41 Hun,

448.

INJURIES TO PASSENGERS FOR WHICH RAILROAD COMPANIES HAVE
BEEN HELD Not LIABLE.

For injuries caused by the catching of a curtain hook in the
passenger’s clothing, by which she lost her balance and fell to
the ground, Kelly v. NV. Y. & Sea Beach R. R. Co., 109 N. Y., 44.

For injuries caused by not immediately and continuously re-
moving snow and ice from the platform of a car attached to a
train traveling in the night during a continuous storm, until
the company had an opportunity to remove it, especially where
a passenger does not take hold of the hand-rails, Palmer v.
Penna. Co., 111 NV. Y., 488.

For an injury to a man sui juris who attempts to board a train
running at the rate of four to six miles an hour, even when di-
rected by the conductor to “jump on,” Hunter v. Cooperstown &
S.V.R.R. Co., 172 N. Y., 971; 126 N.Y., 78.
i

Ricuts AND LIABILITIES AS CARRIERS OF PASSENGERS. 18!

For ah injury to a passenger in an open street car who steps
on a side step for the purpose of changing his seat without rea-

sonable cause or necessity, or request that the car be stopped,

Coleman v. 2d Avenue R. R. Co., 114 N.Y, 609; Craighead v, Brooklyn.
Crosstown R. R. Co., 123 NV. y, gor. In the latter case the passen-
ger was passing along the step and was struck by a car on the
adjoining track; see also Gray v. Rochester C. & B. R. R. Co., 61
Hun, 212.

For an injury caused by the breaking of a brake chain prop-:
erly inspected, Wynn v. C. P..N.& E.R. R. R. Co, 133 N.'V.,
575: : :

Where an employe is confronted with a sudden emergency,
the failure to exercise the best judgment the case renders pos-
sible, does not establish lack of: care and skill on his part.
Wynn v. C. P.. Ni & E.R. RR. Co. 133 N.Y. 575. The test of
contributory iuegligentes is not always found in the failure to
exercise the best judgment or use the wisest precaution. What
would under some circumstances be a want of reasonable ‘care,
might not be such in others. Zentv. NV. Y.C.& H.R. RR. Co,
120. N: Y., 467; McClain v. Brooklyn City R. R. Co., 116 N. Y., 459.
The evidence bearing on the question is not sufficient if it.
points as much toward negligence as toits absence. Wiwirow-
shiv. L. S.& M. S.R. R. Co., 124 N. Y., 420.

LiaBILity For INJURIES TO TRESPASSERS AND THIRD ParRTIEs.

A’ company is liable for an intentional, wanton or reckless in-
jury to a trespasser, and for unnecessary force used in ejecting
him from a train. Hoffmanv. N.Y.C.& A. R. R. R. Co, 87 N.
Y., 25; Suttonv. NN. Y.C.& H.R. R. R. Co. 66 N. Y., 243; Rounds
v. D., L. & W.R.R. Co.,64 N.Y., 129; Clark v. N.V.,L.E.& W.
R. R. Co., 40 Hun, 605; aff'd 113 N. Y., 670; Hogan v. C. Pk, N.&
E. Riv. R. R. Co., 124 N. V., 647. But toa stranger with whites it
has no relations, and to whom it owes no duty, it is not bound
to active diligence to guard him from damage, or in any way to

avoid the consequences of his negligence. M.Y,,Z.£.2 WR.
R. Co. v. Atlantic Refining Co., 129 N. V., 597. See Schneider v. Sec-
ond Avenue R. R. Co., 133 N. V., 583.

LIABILITIES OF RAILROADS, AS CARRIERS OF FREIGHT. DEcIsIQNS

UNDER L. 1847, Cu. 270 § 9.

I. Genera CoNSTRUCTION OF THE SECTION.

The first provision of this section is purely declaratory. oot |
v. The Great Western R. R. Co. 45 N. Y., 532. Independently of

‘
182 THE RarLroap Law.
any statute, railroad companies are common carriers of .goods.
Wood's Railway Law, p. 1571.

The second provision of the section does not impose the lia-
bility mentioned for the delivery of freight at a place on a con-
necting road upon any company unless there be an agreement
on its part, express or implied, to transport the freight beyond
the terminus of its own road. Itis a mere legislative authoriz-
ation of suchan agreement ; and it applies as well when one or
more of the connecting roads are without the state as where all
are within it. Rootv. The Great Western R. R. Co. 45 N. Y., 352;
Smith v. N. Y.C. R. R. Co., 43, Barb., 225; af'dar N. V., 620; Bur-
usv. Buffalo & State Line R. R. Co., 24 N.Y.,269. The second and
third provisions of this section apply to the road first receiving
the freight only, not to intermediate roads. Root v. The Great
Western R. R. Co., 45 N. V., 352.

II. RiGHTs AND LIABILITIES OF RAILROAD COMPANIES AS COMMON
CARRIERS UNDER THE FIRST PROVISION OF THE SECTION.

They are insurers of the freight received by them to’be car-
ried against all casualties, except those which arise solely either
from the act of God, public enemies, the fault of the party, or
the inherent qualities or propensities of the freight itself.
Wood's Railway Law, p. 1574; Mynard v. Syracuse, Binghamton &
N.Y. R. R. Co. 71 N. Y., 180; Clarke v. Rochester & Syracuse R. R.
Co. 14 N.Y, 570; Pennv. Buffalo & Erie R. R. Co., 49 N. Y., 204;
Conger v. Hudson R. R. R. Co.. 6 Duer, 375; Warner, v. Western
Transportation Co. 5 Robt, 490. The‘ act of- God,” or vis drvina,
must be the sole and immediate cause of the injury. The act
or negligence of man must not contribute to it. Michaels v. N.
V.C. R. RB. Co., 390 N.V., 564; Read v. Spauluing, id., 630; Merritt v.
Earle,29 N. Y., 115. Destruction by fire unless occasioned by
lightning does not fall within thisexception. Miler v. Steam Nav-
tigation Co., 10 N. Y., 431, In theabsence of any special contract,
the law implies an agreement upon the part of a common car-
rier to transport freight within a reasonable time. Ward v. N.
V. CR. R. Co.,47 N.Y.,29. See Harris v. Northern Indiana R. R.
Co., 20 V. Y,232. But delay beyond what would under ordinary
circumstances be a reasonable time may be excused. 'Geismer v.
Lake Shore Mich. South. Ry, Co., 102 N. Y., 563; Little v. Fargo, 43
Hun. 233.

There is an implied duty on the part of the shipper of goods
of a dangerous character to give the carriers notice of their
Ricuts anD LIABILITIES AS CARRIERS OF FREIGHT. 183

dangerous nature, and the omission to perform that duty is an
act of negligence which renders the shipper liable for the con-
sequences. Barney v. Burnstenbinder, 64 Barb., 212.

‘The liability of carriers of animals is modified only so far as
the cause of damage for which recompense is sought is a conse-
quence of the conduct or propensities of the animals under-
taken to be carried. In other respects, the common law respon-
sibilities of the carrier will attach. Mynard v. Syracuse, Bingham-
ton & N.Y. R.R. Co.,71 N. Y., 180; Holsapple v. Rome, Wat. & Ogd.
R. R. C086 N. Y., 275; Penn. v, Buffalo & Erie R. R. Co. 49 N. V.,
204; Clarke v. Rochester & Syracuse R. R. Co, 14 N. Y., 570, Cragin v.
N.Y. C. RR. Co. 54 N. Y., 61; Heyman v. Phila. & Read. R. R. Co.,
22 J. & S., 758. See as to liability to an attendant traveling
under a drover’s pass, Porter v. N. V,L.E.& W. R. R. Co, 59
Hun, 177, aff’ @129 N. Y., 624.

‘The liability of the carrier attaches only from the time when
he accepts the goods to be carried. The goods must be actually
delivered to him or to some person authorized to act in his be-
half, and to complete the delivery of the goods to the carrier; it
is essential that the property be placed in a position to be cared
for, and under the control of the carrier or his agent, with his
knowledge and consent. Grosvenorv. The N: VY. C. R. R. Co.,.39
N. V.,, 34; Nelson v. Hudson R. R. R. Co., 48 N. Y., 498. Tf the
goods are delivered to the carrier to await further orders from
the shipper before shipment, the carrier while they are so in
his custody, is only liable as warehouseman. O'Weilv. NV. Y.C.
& H. R.R.R., 60 N. Y., 738. A carrier who might.refuse to
transport freight, but does not do so, is liable to the same ex-
tent as if no ground of refusal existed. Stoneman v. Erie Ry. Co.,
1 Sheld., 286; 52 N.Y., 429; see Tierney v. N.Y. C.& H. R.R. R.
Co., 76N. V., 305. ;
The liability of the carrier as such continues until he has de-
livered or offered to deliver the goods to the consignee, or done
what the law esteems equivalent to a delivery. Zinn v. New
Jersey Steamboat Co., 49 N. Y., 442; Faulkner v. Hart, 2 N. Y., 413.
A railroad company is not held to a delivery of goods to the
consignee at any place other than at its railroad station. Zinn
v. N. J. Steamboat Co., 99 N. Y., 442. Tf the consignee is present
upon the arrival of the goods at the place of destination, he
must take them without unreasonable delay. If he is not pres-
ent, but lives at or in the immediate vicinity of the place of de-
livery, the carrier must notify him of their arrival, and he then

x
184 Tue RarLroap Law.

has a reasonable time in which to remove them. If he is ab-
sent, unknown, or cannot be found, the carrier can place them
in its freight house, and, if the consignee does not call for them
in a reasonable time, the liability as a common carrier ceases
and that of a warehouseman is substituted. Fenner v. Buffalo &
State Line R. R. Co. 44. N. Y., 505, see Northrup v. Syracuse, B.& N.
VY. R. R. Co, 2 Trans. App., 183. Vf the bill of lading does not
specify what shall be done with the goods upon their arrival,
the company has the option to retain them in the car or to re-
move the goods from the car and place them in the warehouse,
and in either case the liability of the defendant as a common
carrier ceases after the consignee has a reasonable time to call
for and remove them. Draper v. Pres., &¢., D. & H. Canal Co., 118
WV. Y., 718. But the carrier is bound to make due’effort to find
and notify the consignee. Until he does that his liability con-
tinues. Sherman v. Hudson R, R. R. Co., 64 N. Y., 254, Faulkner v.
Hart, 82 N. V., 413; Sprague v. N.Y. C. RR. Co, 52 N. Y., 637;
Pelton v. Rensselaer & Saratoga R. R. Co, 54 N. Y., 21g. Tf the resi-
dence of the consignee is not known to the carrier it is the duty
of the consignee, before the arrival of the freight, to give such
information as will enable the carrier to give the requisite no-
tice. Pelton v. Rensselaer & Saratoga R. R. Co., 54 N. Y., 214. It is
the duty of the consignee, after notice of the arrival of property
for him, at once and with diligence, to act upon the notice, to
seek delivery and continue until delivery is complete; and the
question as to what is reasonable time for him to remove the
goods after receiving notice of their arrival, where there is no
dispute as to the facts, is a question of law for the court.
Hedges v. Hudson R. R. R. Co., 49 N. Y., 223.

A carrier who without requiring evidence of identity, de-
livers to a stranger applying therefor goods consigned to a'
fictitious firm is liable to the consignor for their value, although
the stranger ordered them and they are shipped in compliance
with his order. Price v. Oswego & Syracuse R. R. Co. 50 N.
Y., 273, Nebenzahl v. Fargo, 22 St. Rep., 231; 3 N. Y. Supp., 929.
It is the duty of the carrier to ascertain whether a bill of lad.
ing was delivered to the shipper, and if so, toretain the property
until demanded by one claiming under that title, and to deliver
in accordance with it; if delivery is made without, he runs the
tisk of showing a delivery in accordance-with its directions.
Furman v. Union Pacific R. R. Co., 106 N. Y., 579; Colgate v. The
Penn. Co., 102 N. Y.,120. Acarrier corporation is liable upon a
Ricuts anp LIABILITIES AS CARRIERS OF FREIGHT. 185

bill of lading issued in its name by an agent having authority
to issue bills on receipt of property for transportation to one
who, ‘Upon transfer by the shipper upon the faith of the bill
has, in good faith, discounted a draft drawn upon the consignee,
although no property was in fact deliveredtothecarrier. Bank
of Batavia v. New York, Lake Erie & W.R.R.Co., 106 N. VY 195.

If the consignee is dead, absent, or refuses to receive, or is
not knowa and can not after due efforts are made, be found,
the carrier may discharge himself from further responsibility
by placing the goods.in store with some responsible third per-
son in that business, at the place of delivery, for and on account
of the owner. Fisk v. Newton, 1 Denio, 45. But he can not
abandon them or expose them to injury. Scheu v. Benedict, 116
N. ¥., 520, A common carrier is exonerated from his obligation
to his bailor, where the property of the latter is taken from the
carrier by due legal process, provided the carrier immediately
notifies him of such taking. Blhven v. Hudson R. R. R.'Co., 36 N.
Y., 403. See Rowland v. Miln, 2 Hilt. 150.

' The liability for non-delivery of goods may be enforced by
‘an action in either of the forms formerly known as assumpsit or
tort. Catlin v. Adirondack R. R. R. Co., 11 Abb. N. C., 377. A de-
livery to the wrong person, to one not entitled to the possession,
is a conversion, and this is so even if the act is done by mistake
and without a bad intent. Colgate v. The Penn. Co., 102 N. Y., 120.
Where a carrier performs his contract to transport and deliver
goods a payment of the freight or a submission to judgment
therefor does not preclude the owner of the goods from recover-
ing damages for injuries thereto while ex route; he may pay the
freight and sue for the damages, or set up his damages by way
of counterclaim in an action to recover the freight or he may
bring across-action. Schwinger v. Raymond, 83 NV. Y,, 192. See
Monell v. Northern Central R. R. Co., 16 Hun, 585, as to the effect of
a receipt for the goods by the consignee upon such damages. If
the carrier negligently omits to transport merchandise within a
reasonable time, and the market value thereof falls, the measure
of damages is the difference in its value at the time and place it
ought to have been delivered and at the time of its actual de-
livery. Wardv. N. Y.C. &.R. Co. 47 N. Y., 29.

To entitle a carrier who has contracted to transport goods and
to deliver them to the consignee, to freight, acomplete delivery
must be made; a carriage of the goods in safety to the place of
186 Tue RaiLtroap Law.

lelivery is not sufficient. /estern Transportation Co. v. Hoyt, 69
WV. Y., 270. As to when the carrier may recover his freight pro
rata itineris, see McKibben v. Peck, 39 N. Y., 262. Vf the owner de-
mand and receive his goods at an intermediate point, he is liable
tothecarrier for full freight. Z/lisv. Willard, 9 N. Y., 529. Un-
der a contract containing a clause exempting the carrier from
liability for loss by fire, but which made the freight payable on
delivery at the shippers’ warehouse, the contract being to load,
transport and unload, Ae/d, the goods having been destroyed by
fire while on the carrier’s barges lying at the dock of the ship-
per’s warehouse, that no recovery could be had for the freight on
the goods destroyed. VW. Y.C.&H. R. R. Co, v. Standard Ol
Co., 87 N. Y., 486.

Arailroad company is responsible for damages resulting from
its delay to transport freight in the usual time, which was caused
by a great number of its servants suddenly and wrongfully re-
fusing to work. Blackstock v. New York & Erie R. R. Co., 20 N.
Y., 48. See Steiger v. Erie Ry. Co, 5 Hun., 345. But if they offer
violence and cause forcible obstruction to its business, the com-
pany is not responsible. Geismer v. Lake Shore & Mich. South. Ry.
Co., 102 NV. Y., 563; Little v. Fargo, 43 Hun, 233.

A common carrier may limit his liability by express agree-
ment in the form of a special acceptance of the goods to be
transported. Dorr v. New Jersey Steam Navigation Co. 71 N. Y.,
485: Nelson v. Hudson R. R. R.Co, 48 N. Y., g98 Where, upon
delivery of goods to a carrier for transportation, and before
shipment, a bill of lading ora receipt is delivered to the shipper
and received by him without objection, he is chargeable with
notice of its contents and is bound by its terms; prior parol
negotiations can not be resorted to to vary them. AZ v. Syra-
cuse, BL& N.Y. R.R. Co., 73 N. Y., 352; Germania Fire Ins. Co. v.
Memphis & Charleston R. R. Co. 72 N.Y., 90; Kirkland uv. Dinsmore,
62 NV. Y., 177, Shelton v. Merchants’ Dispatch Trans. Co. 59 N-Y.,
258; Hinckleyz. N.Y. C. & HR. R.R. Co., 56 N. Y., 429, Collen-
der v. Dinsmore, 55 N. Y., 200; Belger v. Same, 51 N. V., 166, Long
a. N.Y.C.R.R. Co. 50 N. Y., 76. But see where the person
who received the receipt was not the agent of the shipper, /en-
nings v. Grand Trunk Ry., 127 N. Y., 438. But if the goods have
actually been shipped under an oral contract, the subsequent
receipt of a bill of lading and neglect of the shipper to point out
errors therein, do not preclude him from showing the oral
contract. Guillaume v. General Transportation Co., 100 N. V., 4915
Rigurs and LiaBILitTies AS CARRIERS OF FREIGHT. 187

Swift v. Pacific Mail Steamship Co., 106 N. Y., 206 ; Bostwick v. Balt.
& Ohio R. R. Co., 45 N_Y., ae Ship y , ¥ C. & H.R. R.
Co., 16 Hun, 278; aff’ @5r NV. Y., 638 But if the goods are shipped
without. oral contract and in accordance with a custom known to
shippers, bills of lading are afterwards delivered and accepted,
the shipper is bound bytheircontents. Skelton v. Merchant's Disp.
Trans. Co., 59 N. V., 258; Little v. Farco,43 Hun, 233. The carrier’s
common leg ability cannot be limited by a mere notice Blos-
som v. Dodd, 43 N. V., 264; Dorr v. WV. J. Steam Navigation Co. 11
N.Y, 485. A common carrier may stipulate for exemption from
liability for losses occurring through his own negligence or that
of his servants ; but his contract will not be construed to contain
such an exemption, unless it be so expressly agreed. Magnin v.
Dinsmore, 56 N. Y., 168 ; Wilson v. N. Y.C. & H.R. R. R. Co., 97
N.Y, 7 Alesender v. Greene, 7 Hill, 533; in case of delay see
fonntags v., Grand Trunk Ry., 127 N. V., 438. lf general words in
such a contract x may operate without including the negligence
of the carrier or his servants, it will not be presumed that they
were intended to include it ; every presumption is against such
an intention, and the Bontnaet will not be construed as exempt-
ing from liability for negligence, unless it is expressed in
unequivocal terms. A/ynard v. Syracuse, B. & N.Y. R. RICo., 77
N. Y., 180, Holsapple v. Rome, Watertown, &c., R. R. Co., 86 N.Y,
275; Nicholas v. N. Y.C.& H. R. R. R. Co., 89 N. Y., 370; see
Cragin v. N. Y.C. R. R. Co., 51 N. Y., 6r. A contract exempting
the company from all claims for any damage or injury “from
whatsoever cause arising’’ does not include a loss arising from
the carrier’s negligence. Mynard v. Syracuse, B.& N.Y. R. R.
Co.,7z NV. Y., 760. Under a contract providing that the property
is taller “at the owner’s risk,” the carrier is nevertheless bound
to exercise reasonable care and prudence in its transportation,
and to exercise a reasoable degree of diligence in forwarding it to
itsdestination. Canfield v. Baltimore & Ohio R.R. Co.,93 N. Y., 532.
‘A clause in a contract exempting the carrier from loss by fire,
does not exonerate it where the loss is the result of the
\carrier’s negligence in not forwarding the goods promptly,
‘the fire occurring during the delay. Condict v. Grand Trunk Ry.
Co., 54.N. Y., 500. Under a provision in a bill of lading that the
carrier is not to be liable while the property is at a station
“awaiting delivery,” its liability remains until notice is given
to the consignee and the expiration of a reasonable time for its
removal. McKinney v. Jewett, go NV. Y., 267. Where by the bill

\
8 Tue Raitroap Law.

lading the carrier is exempted from loss by fire, unless the
ne is proved to have occurred from the fraud or gross negli-
ace of the company, its agents and servants, the burden is
on a party seeking to recover for such a loss to show that the
2 resulted from one of the causes specified. Platt v. Richmond,
rk River and Chesapeake R. R. Co., 108 N. V., 358. It seems that
tatute of a state forbidding limitations of the common law
bility has no effect upon a contract made in that state, with
company in another state, for transportation in the latter
ite. Ld.

[. WHat Is SUFFICIENT TO ESTABLISH SUCH AN AGREEMENT ON
THE PART OF A RAILROAD COMPANY AS WILL FIX UPON
IT THE LIABILITY DECLARED BY THE SECOND PROVISION
OF THIS SECTION.

The mere fact that the freight is marked for a place beyond

; own road does not establish such an agreement. oot »v.

‘eat Western R. R. Co. 45 N. Y., 524; Van Santvoord v. St. John,

Hill, 757. Nor the fact that in the description of the goods in

e contract for transportation, the marks showing the ultimate

‘stination are given. Babcockv. L. S.& M.S. R.R. Co, 49 N.Y,

z. In the absence of proof of authority to contract as agent

r connecting lines, a railroad company which receives the en-,
te charges for transporting freight to places on such lines, is
-esumed to contract for the whole distance on its own account.

maicty. Grand Trunk Ry. Co., 4 Lans., 106; aff'd 54N.Y., 500.

‘here the shipper applied to the general freight agent of the
pany for through rates, it was held to be a contract to de-
ver at destination. Jennings v. Grand Trunk Ry., 127 N. Y., 438.
There the company first receiving the freight contracts for its
‘ansportation over its own road, and for the delivery thereof
» another carrier to be forwarded over connecting lines to its
Itimate destination, the fact that the contract fixes the price
or the entire carriage, does not make the contract a through
ontract so as toentitle the succeeding or connecting carriers to
ae benefit of exceptions. from ‘liability contained in the con-
ract. &£ina Insurance Co.v. Wheeler, 49 N. Y., 616; see Ricketts v.
'alt. & Ohio R. R. Co., 59 N. Y., 637. A freight agent must have
xpress authority to bind the road by such a contract, unless
he making of such contracts has become an established business
f the road by the custom of those having general authority in
ts management. Hait v. Alb. & Susg. R. R. Co., 5 Lans., 475.
Ricuts anp LiaBILities aS CARRIERS OF FREIGHT. 189

IV. Ricurs anD LIABILITIES OF A COMPANY FIRST RECIVING
FREIGHT DESTINED FOR A PLACE BEYOND THE TERMINUS
OF ITS OWN ROAD, NO AGREEMENT TO: TRANSPORT BE-
YOND THE TERMINUS OF ITS OWN ROAD HAVING BEEN
MADE.

Such freight so received must be delivered or tendered to the
next connecting carrier, and after notice to such’ connecting.
carrier of the arrival and readiness of the freight for delivery,
a reasonable time for taking it away must elapse before the first
company can relieve itself of its liability as a common carrier.
Rawson v. Holland, 59 N. Y., 611; Mills v. Mich. Cent. R. 'R. Co. 45
WV. Y., 622; McDonald v. Western R. R. Corp., 34 N.Y. 497; see
Livingston v. N.Y. C. & H. R.R.R. Co. 76 N. Y., 631, and Atna Ins.
Co.v. Wheeler, 49 N.Y., 616, McKayv.N.V.0.&H. R. R. R. Co., 50 Hun,

563. Tf the connecting carrier refuses or neglects to receive the
freight, the first carrier may store it in a warehouse and so re-
lieve itself of its liability asa common carrier, and substitute
the liability of a warehouseman. Rawson v. Holland, 59 NV. V.,
6zz. After due notice to the connecting carrier, and request to
receive the freight, the lapse of a reasonable time, and neglect
or failure on the part of the connecting carrier to receive the
freight, the first carrier, in order to exonerate himself, must
either store the freight in a warehouse, where there is oppor-
tunity to do so, or in some other way clearly indicate his re-
nunciation of the relation of garrier. Goold v. Chapin, 20 NV. Y.,
259. If instructions as to the connecting route are given by the
shipper to the first carrier, they must be observed. ‘Johnson v.
N.V.C.R.R.Co., 337 N.Y.,6r0. Under a provision in a contract
with the company first receiving the freight giving that com-
pany the tight to contract with the connecting carriers, the
same exemptions as are in its own contract may be made, but it
can not bind the shipper to any stipulations not embraced in
the original contract. Lambv. Camden & Amboy R. R.& T. Co,
46 N. Y., 271.

V. RiGHTS AND LIABILITIES OF A COMPANY FIRST RECEIVING

FREIGHT DESTINED FOR A PLACE BEYOND THE TERMINUS,
OF ITS OWN ROAD, AN AGREEMENT TO TRANSPORT BEYOND
THE TERMINUS OF ITS OWN ROAD TO THE PLACE OF DES-
TINATION HAVING BEEN MADE.

A railroad company may bind itself by such an agreement.

Hart vu. The Rensselaer & Saratoga R. R. Co., 8 N. Y., 375 Quimby v.
Vanderbilt, 77 N. Y., 306; Maghee v. Camden & Amboy R. R. Co., 45
190 Tue RarLroap Law.

N. Y., 514; Milnerv' N.Y. & New Haven R. R. Co., 53 N. Y., 363;
Swift v. Pacific Mail Steamship Co. 106 N. Y., 206, and it is then
liable for the negligence of the connecting road. Jennings v.
Grand Trunk Ry., 127 N. Y., 438 The freight must be de-
livered in accordance with the agreement, and an increase in
the-charges of the connecting road will not excuse delay. Con-
dict v. The Grand Trunk Ry. Co.,4 Lans., 106; aff'd 54N. Y., 500.
Where a transportation line consisting of several connecting
carriers, of which defendant was one, makes a through contract,
but the bill of lading provides that the responsibility of the
several companies shall terminate on the delivery of the freight
to the connecting company, a company having so delivered the
freight, is not liable for any subsequent injury to the goods.
Shiffv. N. V.C.& H.R. R. R. Co. 16 Hun; 278, aff'd 81 N. V., 638.

s

VI. RIGHTS AND LIABILITIES OF INTERMEDIATE OR CONNECTING
COMPANIES, NO AGREEMENT TO TRANSPORT BEYOND THE
TERMINUS OF ITS OWN ROAD HAVING BEEN MADE BY THE
COMPANY FIRST RECEIVING THE FREIGHT.

The liability of each successive company in the line of trans-
portation begins when the freight is received by it from the pre-
ceding company, or whenever the preceding company has duly
observed the uniform course of business. A custom of waiting
for a billof back charges will not excuse delay. Michaels v. WN.
V.C. R.R. Co, 30 N. Y., 564; Ladue v. Griffith, 25 N. V., 368;
Livingston v. N.Y. C. & H.R: R. R. Co, 76 N. Y., 637. Two car-
riers having at their point of connection a warehouse used in
common for the transfer of freight from one line to the other,
the expenses of handling being paid in common,a delivery at
such warehouse by one carrier of freight destined to pass over
the line of the other, with notice to the latter of its arrival and
ultimate destination, places it in the possession of the latter and
imposes upon him the duties and liabilities of acommon carrier
in relation thereto. -Zina Insurance Co. v. Wheeler 49 N. Y., 616.
None of the connecting roads can be said to be an agent of the
owner of the freight; each is exercising an independent em-
ployment, and is a contractor with the owner, the contractor be-
ing either express or such as the law implies; each is responsi-
ble for its own negligence, and while the owner may lose by the
negligence by either he can in no proper sense be made respon-
sible for such negligence. Sherman v. Hudson R. R. R. Co., 64 NV.
Y., 254. As to the effect of a provision of the charter of the
Mich. Cent. R. R. upon this liability, see Mis v. Mich. Cent. R.
R.Co., 45 N. Y., 622.
RiIGHTs AND LIABILITIES AS CARRIERS OF FREIGHT. IOI

VII. RicHTs AND LIABILITIES OF INTERMEDIATE OR CONNECTING
COMPANIES, AN AGREEMENT TO TRANSPORT BEYOND THE
TERMINUS OF ITS OWN ROAD HAVING BEEN MADE BY THE
COMPANY FIRST RECEIVING THE FREIGHT.
; All such agreements made by the first carrier inure to the
benefit of the intermediate or connecting carriers. Maghee v.
Camden & Amboy R. R.& T. Co. 45 N. V., 514. See Lamb v. Same,
49 NV. Y., 271; Manhattan Oil Co. v. Same, 54 N. V., 197; ina In-
suranee Co.v. Wheeler, 49 N. Y., 616; Faulkner v. Hart, 82 N. Y.,
422; Whitworth v. The Erie Ry. Co., 87 N. Y., 413. And if the con-
necting carrier accepts the goods to be carried, a direction hav-
ing been given by the owner to the first carrier to carry them
in a particular way, or by a specified route, he is bound to obey
such direction, and if he does otherwise he becomes an insurer
and can not avail himself of any exception in the contract.
Magheev. Camden & Amboy R. R. & T. Co. 45 N. VY. 51g. The
liability of the connecting carrier beyond this state under a
contract made here, is determined by the law of this state, and
is not governed by the decisions of the sister state. Faulkner v.
Hart, 82 N. Y., 422. See Curtis v. Delaware, Lack. & West. R. R.
Co., 74 N. Y., rr6.

‘$ 49. Switches; warning signals; guard posts;
automatic couplers; automatic or other safety
brake ; tools in passenger car; water.—It shall be
the duty of every railroad corporation operating its road
by steam:

1. To lay, in the construction of new and in the re-
newal of existing switcheS, upon freight or passenger main
line tracks, switches on the principle of either the so-called
Tyler, Wharton, Lorenze, or split-point switch, or some
other kind of safety switch, which shall prevent the derail-
ment of a train, when such switch is misplaced or a switch
interlocked with distant signals.

2. Toerect and thereafter maintain such suitable warn-
ing signals at ever road, bridge, or structure which crosses
the railroad above the tracks, where such warning signals
may be necessary, for the protection of employes on top of
cars from injury.

3. To place guard-posts in the prolongation of the line

o 3 ‘ #
of bridge trusses so that in case of derailment, the posts,
192 Tue RaiLroap Law.

and not the bridge trusses, shall receive the blow of the
derailed locomotive or car.

4. To use upon every new freight car, built or pur-
chased for use, couplers which can be coupled and un-
coupled 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 transpor-
tation 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 passen-
ger train owned or regularly used upon a railroad, with
one set of tools, consisting of an axe, sledge-hammer,
crow-bar and handsaw, to be properly placed so as to be
easily removed.

To provide, in each passenger car, ee 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, constantly supplied
with cool water.

Every corporation, person or persons, operating such
railroad, and violating any of the provisions of this sec-
tion, except subdivision 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 subdi-
vision of thissection every such corporation shall be liable
to a penalty of twenty-five dollars for each offense.

Sub. 1; L. 1884, ch. 439, § 1. \ :
Sub. 2; .Id, § 2.

Sub. 3; L. 1887, ch. 616, § 2.

Sub. 4; L. 1884, ch. 439, § 4.

Sub. 5; Id., §6.

Sub. 6; Id., § 8.

Sub. 7; L. 1864, ch. 582, § 3, (first part.)
SAFETY APPLIANCES—STOVES. 193

DECISIONS UNDER L. 1884, Cu. 439, § 2.

Neglect of this provision does not necessarily render a com-
pany liable for injuries to a brakeman who knew the location of
the bridge, had passed under it at other times, and had been
cautioned against it. Mitegerald v.N. VY. C.& H.R. RR. Co.,
59 Hun, 225; Ryanv. L. I. R. R. Co., 51 Hun, 607 ; see 124 N. Y., 654.

; :

_ $50 Railroad commissoners may approve
other safeguards.—The board of railroad commission-
ers 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 required
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.

L. 1887, ch. 616, § 4.

\

51. Useof 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, excepting foreign railroad corporations, incorpo-
rated without the jurisdiction 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, and 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 retained to be used oniy
when the car is standing still, and no stove or furnace shall
be used in any dining-room car, except for cooking pur-
poses, and of a pattern and kind to be approved by the
railroad commissioners. Any person or corporation, vio-
lating any of the provisions of this section, shall be liable
toa’ penalty of one thousand dollars, and to the further

M
194 Tue RaiLroap Law.

penalty of one hundred dollars for each and every day
during which such violation shall continue. :

L. 1887, ch. 616, § § 1 and 3, (§ 1 am’d by L. 1888, ch. 189, and
L. 1889, ch. 76; § 3 am’d by L. 1890, ch. 421; § 5 is re-
pealed.)

DECISIONS UNDER L. 1887, Cu. 616.

This act is not objectionable as imposing a duty on an inani-
mate object. Peoplev. Clark, 14 N.Y. Supp., 642; 8 N.Y. Crim. R., 169,
This act appliesto all railroad companies doing business in this
state having fifty miles and upwards of road in use, though not
all within the state. It does not conflict with any Federal re
striction on inter-statecommerce. Peoplev. V.Y., N. H.& HR.
R. Co., 55 Hun, 409; aff'd 123 N. Y., 635. Directors who person-
ally participate in the commission of the offence are subject to
indictment. People v. Clark, 14.N. Y. Supp., 642; 8 N.Y. Crim. R.,

169, £79.

§ 52. Canada thistlesto 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 once between the fifteenth day of August and
the twenty-fifth day of August. If any such corporation
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 expense 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.

L. 1847, ch. roo, §§ 3 and 4, (am’d by L. 1881, ch. 296.)

$53. Riding on platform; walking along track.
—No railroad corporation shall be liable for any injury to
any passenger 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
Ripinc on PLatrorm; WaLkinG ALONG TRACK. 195,

train, if there shall be at the time sufficient room for the
proper accommodation of the passenger inside such pas-
senger cars. 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 for-
feit to the people of the state the sum of ten dollars, and
pay all damages sustained thereby to the party ag-
grieved.

(As am’d by Laws 1892, ch. 676.) _

The provision imposing a fine for leading or driving a horse or other animal
upon arailroad track other than at cngasinge was added by the amendment of
1892.

L. 1850, ch. 140, § § 46 and 44.
L. 1878, ch. 261.
L. 1880, ch. 585.

See Penal Code, § 426. Riding on engines or freight or wood
cars, without permission, a misdemeanor.

DECISIONS UNDER L. 1850, Cu. 140, § 46.

Independent of the provisions of this section, it is not negii-
gence fer se for a passenger to stand on the front platform of a
moving car. Volan v. Brooklyn City & N. R.R. Co., 87 N.Y, 63;
Werle v. Long Island R. R. Co., 98 N. K%, 650; Ginna v. Second Ave. R.
R. Co., 67 N. V., 596; Clarkv. Eighth oe R. R. Co., 36 N. Y., 135;
Willis v. Long Island R. R. Co., 394 N. Y., 670; Colegrove v. NV. &

_ Harlem R. R. Co., 6 Duer, 382; aff'd 20 N. Y., 492; Goodrich v. Penn.

&e&NYC®& R. R. Co., 29 Hun, 50. So also, in regard to a
passenger riding in a baggage car. Webster v: Rome, Watertown
& O.R. R. Co, 115 N. Y., 712; Carroll v. N.Y. & New Haven R.
R. Co., 1 Duer, 577. It is not the duty of a passenger to pass
from one car to another in search of a seat while the cars are in
rapid motion; but if he is injured while doing so, in pursuance
of directions given by a servant of the company in charge of
the train, the company will be liable. Willis v. Long Island R. R.
Co., 34 N.Y., 670; McIntyre v. N. VY. C. R. R. Co., 97 N.Y., 287. A
196 THE RaILroap Law.

passenger seeing a collision imminent, and who in attempting
to leave the train is injured while on the platform, is not stand-
ing or riding upon the platform in violation of the regulations
of the company posted up pursuant tothe provisions of this sec-
tion. Bue v. VN. Y.C. R. R. Co. 34 N. Y., 314. Tf the notices
were duly posted, and sufficient room furnished inside the cars,
the mere fact that the conductor did not object to the passen-
ger’s standing on the platform, will not justify the presumption
that the company assented so as to waive the protection given
to it by this section. Higgins v. N.Y. & Harlem R. R. Co., 2 Bosw.,
132.

in regard to the application of this section to the cars of a horse
railroad, see Lux v. Forty-second St, &¢., R. R. Co., 46 Super. Ct,
(J. & S.,) 448; Lehr v. Steinway & H. WR. R. Co, 118 N. Y., 556;
Hayes v. Forty-second St. & G, St. Ferry R. R. Co. 97 N. Y., 259
Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y., 63; Hourney
v. Bhiyn City R. R. Co. 7 N.Y. Supp., 602; 27 St. Rep., 49; aff'd 130 N.
Y., 6gz. A passengeris not released from the duty of leaving the
platform and going inside the car, when there is standing room
only, so held, of passenger cars on elevated railroads. Gravillev.
Manhattan R. R. Co., 105 N. Y., 525.

Injury to passenger when on platform while passing from
smoking car to another car, Costikyan v. R., W.& O. R. R. Co., 58
Hun, 590; aff’d without opinion, 128 N. Y., 633.

DEcIsIONS UNDER L. 1850, CH. 140, § 44.

A person who steps upon the track in the humane effort to
save young children from danger is not a trespasser. Spooner
v. D., L.& WR. R. Co. 115 N. YV., 22.

DECISION UNDER L. 1880, Cu. 585.

This act was repealed by Laws 1892, ch. 687. The act pro-
vided that no minor child, not being a passenger, shall be
allowed upon the platform or steps of a railroad car drawn by
steam, orofany ... . street car, etc. It also provided
for a fine for parents or guardians who should permit such child
to ride or play as above, and it was made tHe duty of constables
and policemen to arrest a child violating the provisions of the
act. It was held under that act :

Although a violation of this statute may be proved as a fact for
the consideration of the jury, such violation does not, for all
purposes, necessarily establish negligence. It certainly is not a
FERRIES—RAILROADS IN WINTER. 197

defence in an action against another party to recover damages
tor negligence, that the minor child was violating this provision.
‘Connolly v. The Knickerbocker Ice Co., 114 N. V., 104.

§ 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 other-
wise, 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.

(As am'd by Laws 1892, ch. 676.)
The limitation that the objective point shall not be more than ten miles from the

terminus of the railroad, is omitted by the amendatory act of 1892. '

L. 1884, ch. 193.

DECISION UNDER L. 1884, CH. 193.

It was intended ~by this statute that any railroad company
‘having a road with a terminus at the harbor of New York
should be empowered to reach the city by maintaining a ferry
from that terminus to any other point not more than ten miles
distant from this terminus. It does not confer authority to
lease a ferry distinct and independent from the terminus of the
railroad. Starin v. the Mayor of N. V.,42 Hun, 549, reversed without
considering this point in 112 N. Y., 206.

§55. Certain railroads may cease operation in
winter.—The directors of any railroad corporation oper-
ating a railroad, constructed and used principally for
transporting lumber or ores, during the summer months,
or for summer travel, may, by a resolution duly passed at
a meeting thereof, apply to the board of railroad commis-
sioners 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 suspen-
sion and the date of the reopening thereof; and such board
may, in their discretion, make an order granting the appli-
cation wholly or in part,and thereupon such railroad cor-
poration shall be relieved of the duty of operating its road
during the period specified i in the order. A copy of such
198 Tue Rariroap Law.

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.

L. 1886, ch 605.
See sec. 21 0f this‘act. (Added by L. 1892, ch. 700.)

$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 railroad commissioners shall fix the prices, terms
and conditions therefor, after giving the corporation
reasonable opportunity to be heard. Such price shall not
be less for carrying such mails in the regular passenger
trains than the amount which such corporation would re-
ceive as height on a like weight of merchandise transpor-
ted 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 fur-
nish 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 herein provided.

Every railroad corporation refusing or neglecting to
comply with any provision of this section shall forfeit to
the people of the state one hundred dollars for every day
such neglect or refusal continues, _

(As am’d by Laws 1892, ch. 676.)

The last sentence was added by the amendment of 1892.
L. 1846, ch. 215, § 17.
L. 1850, ch. 140, § 34.
L. 1875, ch. 606, § 28.

(See L. 1845, ch. 149, §1.) Railroads required to contract
for carrying the U.S. mail.
Maits—ANNUAL REPorRT. 199

A railroad company owes the same degree of care to the
clerks and mail agents riding in the postal car in charge of the
mails, as it does to passengers riding on the train. Seydolt v. VV.
Y., Lake Erie & West. R. R. Co. 95 N.Y., 562; Nolton v. Western
Ry. Co., 15 N.Y., 444; and to express messengers, Kenney v. WV.
V.C.&@ AR. Rk. R. Co, 125 N. Y., 422; Brewers, N.Y. L. EL &
W.R. R. Co., 124 N.Y., 59. A railroad company is liable for in-
juries to a passenger who, while standing on a platform of a
station for the purpose of taking atrain which was approaching,
is injured by being struck by a mail bag thrown from the postal
car by a government mail clerk. Carpenter v. Boston & Albany R.
R. Co., 97 N. Y.,494. The rights of a telegraph company under
the statutes of the United States, authorizing it to occupy with
its poles and wires any post-road, to maintain its wires on the
structure of an elevated railroad, as effected by the statutes of
this state requiring wiresin large cities to be placed under-
ground, are considered in Western Union Telegraph Co.v. Mayor,
&c., of New Vork, 38 Federal Rep., 552. See also People ex rel. N.
Y. Elec. L. Co. v. Squire, 107 N. V.. 593; 145 U.S., 175; and Ameri-
can Rap. Tel. Co. v. Hess, 125 N.Y. 641. The roadway of a rail-
road company is not included in the term “public roads,” as
used in the statutes of this state, allowing telegraph companies
to erect fixtures upon them. JW. V. City & WN. R. R. Co. v.. Central
Union Tel. Co., 21 Hun, 261.

857. Corporations must make annual report.—
Every person or corporation owning, leasing, operating or
in possession of a railroad, wholly or partly, in this state,
shall make an annual report to the board of railroad com-
missioners of its operations for the year ending with June
thirtieth, and of its condition 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
corporation which shall neglect to make any such report, or
200 ‘Tuer Raitroap Law.

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 hundred and fifty dollars, and
an additional penalty of twenty-five dollars 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.

(As am’d by Laws 1892, ch. 676.)

This section is entirely remodeled by the amendment of 1892. Annual reports
are now made on or before September first for the year ending with June thittieth.
L. 1850, ch. 140, §§ 31 and 32. (§ 31 am’d by L. 1880, ch. 575,
and L. 1890, ch. 98; § 32 am’d by L. 1867, ch. 906, §3 and

L. 1890, ch. 98.)

L. 1867, ch. 906, § 2.

L. 1869, ch. 844, § 1.

§ 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 pow-
ers of a policeman in cities and villages, for the preserva-
tion of order and of the public peace, and the arrest of all
persons committing offenses upon the land or property of
the corporation owning or operating such railroad; and he
may also appoint, on the application of any such corpora-
tion or of any steamboat company, such additional police-
men, designated by it, as he may deem proper, at any.
station, who shall have the same powers, but not more than
one at any one station. Every such policeman shall,
within fifteen days after receiving his commission, and be-
fore entering upon the duties of his office, take and sub-
scribe the constitutional oath of office, and file it with his
commission in the office of the secretary of state, who shall
thereupon transmit to the county clerk of each county in
which such policeman is authorized to act, a certificate,
under his hand and official seal, setting forth the appoint-
ment and the filing of the commission and oath, which cer-
tificate shall be filed by the county clerk. Every such
policeman shall, when on duty wear a metallic shield with
PoLicE—Future RaiLroaD CoRPoRATIONS. 201
/

the words ‘Railway police,” or ‘ Steamboat police,”
as the case may.be, and the name of the corpora-
tion for which appointed inscribed thereon, which
shall always be worn in plain view, except when
employed as a detective. The compensation of every
such policeman shail be such as may be agreed upon be-
tween him and the corporation for which he is appointed,
and shall be paid by the corporation. When any corpora-
tion shall no longer require the services of any such police-
man, they may file notice to that effect in the several offi-
ces in which notice of his appointment was originally filed,
and thereupon such appointment shall cease and be at an
end.

L. 1863, ch. 346. (Am’d by L. 1866, ch. 259, and L. 1875, ch. 193.)
L. 1880, ch. 223. (§ 2 repealed by L. 1886, ch. 593.)

The conductor of, or a brakeman upon a passenger train has
authority to remove, in a lawful manner, a trespasser upon the
platform of acar. Such authority is implied and is incident to
his position. Hoffmanv. NV. Y.C.& H.R. R. R. Co, 87 N. Y., 25.

§ 59. Requisites to exercise of powers of fu-
ture railroad corporations.—No railroad corporation
hereafter formed under the laws of this state shall exercise
the powers conferred by law upon such corporations 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 necessity require the con-
struction of said railroad as proposed in said articles of as-
sociation, The foregoing certificate shall be applied for
within six months after the completion of the three weeks’
publication hereinbefore provided for. If a 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 refus-
ing said certificate the board shall have a right to permit

t
202 THE RaitroaD Law.

errors, omissions or defects to be supplied and corrected.
After a refusal to grant such certificate the board shall cer-
. tify a copy of all maps and papers on file in its office and
of the findings of the board when so requested by the di-
rectors aforesaid. Such directors may thereupon present
the same to a general term, of the supreme court of the de-
partment within which said road is proposed in whole or
in part to be constructed, and said general terin shall have
power, in its discretion, to order said board, for reasons
stated, to issue said certificate, and it shall be issued accord-
ingly. Such certificate shall be filed in the office of the sec-
retary of state, anda copy thereof, certified to be a copy by
the secretary of state, or his deputy, shall be evidence of
the facts therein stated. Nothing in this section shall
prevent any such railroad corporation from causing such
examinations and surveys for its proposed railroad to be
made as may be necessary to the selection of the most ad-
vantageous 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 dam-
ages which shall be done thereto. This section shall not
apply to street railroads,

(Added by Laws 1892, ch. 676.)
CHAPTER VIII.

THE RAILROAD LAW—CONSOLIDATION, LEASE, SALE
AND REORGANIZATION.

ARTICLE III.
ConsoLipaTION, 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
stockholders.
72. Newcorporation. —
73. Creditors’ rights not to be impaired.
74. Assessment of property of new corporation.
75. Stock of municipal corporation, how represented.
76. Foreclosure of mortgages made by consolidated
railroads partly in the state.
77. Powers of corporation of other states.
f 78. Lease of road, —
79. Lessees of railroad may acquire stock therein.
80. Consolidation and lease of parallellines prohibited.
81. Mortgagee may purchase at foreclosure sale.
82. Certificates of stock may be issued after foreclos-
, ure 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 consoli-
date its capital stock, franchises, and property with the
capital stock, franchises and property of any other railroad,
tunnel or bridge corporation or 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, when-
204 THE RarLroaD Law.

ever the two or more railroads of the companies or corpo-
rations 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 con-
nected 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 constructed, and operate the same, subject to all
provisions of law applicable 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 16 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 pas-
sengers 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-sur-
face road exceeds five miles in length.

(As am’d by Laws 1892, ch. 676.)

By the amendment of 1892, “two or more” railroads are allowed to consolidate.
The words ‘‘ or other” are inserted in the first clause. The word “tunnel” is
inserted several times in the first part of the section, and the word ‘‘bridge” in
the last sentence of the section.

. 1869, ch. 917,§ 1. (Am’d by L. 1881, ch: 685.)
. 1875, ch. 108. (Am'd by L. 1883, ch. 387.)

. 1875, ch. 256, §§ t and 2.

. 1880, ch. 502, § 2.

Seo

DEcIsiIons UNDER L. 1869, CH. 917, § 1.

The corporation tax (L. 1886, ch. 143) must be paid on consoli-
dation of two domestic companies, each of which has previously
paid this tax. People ex rel. N. Y. Phonograph Co. v. Rice, 57 Hun,
486, aff'd 128 N. Y., 591; (but see amendment of 1892.) A corpo-
ration organized under this act by the consolidation of various
foreign and domestic railroad companies is a domestic, not a
foreign corporation. Jn re Sage v. Lake Shore & Michigan South-
ern R. R. Co., 70 N. Y., 220, Boardmanv. Same, 84.N. ¥., 157. The
consent of the legislature of the foreign state is requisite to its
accomplishment, and whether the result would be a new corpo-
ration de jure is a mooted question. The organization tax need
not be paid. People v. N. Y.C. & St. L. R. R. Co., 129 'N. Y., 474;
\

CoNnSsoLIDATION—JOINT AGREEMENT. 205

People. v, Fitchburg R. R. Co. Id., 654. Im the case of a special
statute giving power to one particular corporation, to consoli-
date with any other like corporation, whatever other company
it selects for a union and finds willing to join it, the other com-
pany, although not named in the statute, gets power from the
statute to unite with that company which the statute names. /xz
ve Prospect Park & Coney Island R. R. Co., 67 N. V., 371.

Two or more lines or routes can not be continuous without
being connected, but the mere fact of connection does not in
the technical or statutory sense form acontinuous line. The
phrase “form a continuous line of railroad with each other”
means a line or route extending and continuing in substantially
the same general direction connecting two principal points.
Unimportant branches of either road would not interfere with i
consolidation. The consolidated line must form one instead of
two or more lines of railroad. The amendment of 1881 does not
authorize the consolidation of all non-competing roads which
touch or cross each other. People v. Boston, Hoosac Tunnel & West.
Ry. Co., 12 Abb. N. C., 230.

DECISIONS UNDER L. 1875, CH. 108.

This act applies where the lines are located, but wholly un-
constructed. . People v. Boston, Hoosac Tunnel & West: Ry. Co., 12
Abb. N. C., 230. Street railroads may consolidate under this
provision. It repeals by implication L, 1869, ch. 917, §7. Jn
reWash. St. A. & P.R. R. Cov. S. B.& N.Y. RR. Co, 115 N. Y.,
442.

7 i ‘ \
Proceedings for a consolidation, previously begun, may be

completed. The enactment of a new statute does not affect
them. Cameron v. N.Y. & Mt. Vernon Water Co., 133 N. V., 336.
A consolidation can only be effected under the permission and
safeguards of the statutes. Colev. Millerton I. Co., 133 N. V., 164.

§ 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 consol-
idate may enter into a joint agreement, under the corpor-
ate seal of each corporation, for the consolidation of such
corporations, and prescribing the terms and conditions
206 Tue Raitroap Law.

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 cor-

oration, 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 consol-
idation of such corporations, But inno case shall the cap-
ital stock of the corporation formed by such consolidation
exceed the sum of the capital stock of the corporations
so consolidated, at the par value thereof. Nor shall any
bonds or other evidences of debt be issued as a considera-
tion for, or in connection with, such consolidation.

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 re-
corded and endorsed upon said lease or agreement, signify
their assent thereto, it shall be deemed and taken as the
adoption of such agreement by and on behalf of such cor-
poration, and the original or certified copy thereof shall be
filed as hereinafter provided. 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 pro-
vided, such agreement shall be submitted to the stockholders
of each of such corporations at a meeting thereof called
separately for the purpose of taking the same into con-
sideration. Due notice of the time and place of holding
such meeting, and the object 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 hold-
ing such meeting, and also by a general notice published
at least once a week for four weeks successively in some
CoNSOLIDATION—CoNSENT OF STOCKHOLDERS. 207

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 sec-
retary 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 corporations,
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.

(As am’d by Laws 1892, ch. 676.)

That part of subdivision 2, allowing a consent in writing acknowledged as a*
deed, is added by the amendment of 1892. The words “‘ of the stockholders own-
ing at least two-thirds of the stock of each corporation present and voting in per-
son or by proxy,” are substituted for the words “‘ of at least two-thirds of all the
stockholders, and owning at least two-thirds of all the stock.”

L. 1869, ch. 917, §§ 2and3. (§ 2 am’d by L. 1873, ch. 352,
and L. 1880, ch. 94.)
L. 1880, ch. 55.

Decisions UNDER L. 1869, Cu. 917, §§ 2 AND 3.

The provision “nor, shall any bonds or other ‘evidences of
debt be issued as a consideration for or in connection with this
consolidation” is intended to provide for-the equalization of the
values of the constituents by means of stock, to be issued pur-
suant to the terms of the consolidation agreement, and not by
bonds issued to either constituent, or for the benefit of the
stockholders of either; also to secure the submission of the
joint agreement (setting forth the terms of consolidation) to the
unbiased judgment of. the stockholders to be by them ratified
or rejected, upon the intrinsic merits of the plan, uninfluenced
by collateral considerations. It may be that the issue of bonds
in good faith to pay the just debts of a solvent constituent, is |

1
208 Tue Rartroap Law.

not prohibited. (See next section.) But where apart from this
consideration bonds are issued and used for the avowed purpose
of raising money wherewith to pay the assenting stockholders
par for their stock, as a consideration for their assent, without
which they refused to assent, it would still be a violation of
this provision. The provision that the stock of the consoli-
dated company shall not exceed the sum of the capital stock of
the constituent companies at the par value thereof must be
strictly construed and fully complied with. People v. Boston,
Hoosac Tunnel & West. Ry. Co., 12 Abb. N.C. 230. If an attempt to
consolidate is made which is illegal, the constituent compa-
nies remain as actors or participators in the association which
operates the railroad, and are liable severally for negligence in
operating the road. Latham v. Boston, Hoosac Tunnel & West. Ry.
Co., 38 Hun, 265.

§ 72. New corporation —Upon the consummation
of such act of consolidation all the rights, privileges, ex-
emptions, 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 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, or of the laws of this
state and other states, to issue its bonds for the purpose of
~

CoNnsoOLIDATION—CrEpIToRS’ RIGHTS. 209

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 corpora-
tions so consolidated was organized, and secure the
same by a mortgage upon its real or personal prop-
erty, 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.
(As am’d by L. 1891, ch. 362.)

The last part of the section beginning with the words, ‘‘And it shall be lawful

for any railroad company,” was added by the amendment of 1891.

L. 1869, ch. 917, § 4.

§ 73. Creditors’ rights not to be impaired.—
The rights of all creditors of, and all liens upon the prop-
erty of, either of such corporations, parties to such agree-
ment and act, shall be preserved unimpaired, and the re-
spective corporations shall be deemed to continue in ex-
istence to preserve the same, and all debts and liabilities
incurred by either of such corporations shall thenceforth
attach to such new corporation, and be enforced against it
and its property to the same extent as if incurred or con-
tracted by it. No actions or proceedings in which either
of such corporations is a party shall abate or be discon-
tinued by such agreement and act of consolidation, but may
be conducted to final judgment in the names of such cor-
porations, or such new corporation may be, by order of the
court, on motion substituted as a party.

L. 1869, ch. 917, § 5.
DEcISIONS UNDER L. 1869, CH. 917, § 5.

The liability of one of the consolidated companies to an action
for interest accruing on its bonds is not removed by the act of
consolidation, but is in terms preserved by this provision. It

N
210 Tue Raitroap Law.

is not necessary to resort to the new corporation alone or to:
foreclosure of the mortgage for default of payment of interest
Gale v. Troy & Boston R. R. Co, 51 Hun, 470; Janes v
Fitchburg Ry. Co., 50 Hun, 310. The effect of this provi.
sion is to confine the property lien to the property owned prio:
to the consolidation by the company giving it. This provision
does not affect the remedy against the new corporation on the
bond or debt. Polhemus v. Fitchburg R. R. Co., 123 N. Y., 502; see
Vilas v. Page, 106 N. Y., 511. ;

§ 74. Assessment of property of new corpora-
tion.—The real estate of such new corporations, situate
within this state, 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 railroad corporations is
or may be taxed and assessed, and such proportion 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.

L. 1869, ch. 917, § 6.

$75. Stock of municipal corporation, how rep-
resented.—At any meeting of the stockholders of any
railroad corporation to consider any agreement or proposi-
tion to consolidate, the commissioners or other officers of
any municipal corporation holding or having charge of any
of the capital stock of such railroad corporation shall rep-
resent such municipal corporation, and may act and vote in
person or by proxy on all matters relating to such consol-
idation in the same manner as individual stockholders.

L. 1875, ch. 256, § 3.

5 Te Foreclosure of mortgages made by con-
solidated railroads partly in the state.—Whenever
a railroad corporation whose line of road lies partly in this
‘state and partly in another state or states, shall have been
created by the consolidation of a railroad corporation of
this state with a railroad corporation or corporations of
another state or states, and shall have executed a mortgage
FORECLOSURE OF MORTGAGES ON CERTAIN LINES. 211

upon its entire line of railroad, and a sale of the entire line
ef 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 in which the
greater part of such line of railroad may be situated, upon
the confirmation of such judgment or decree, and of the
sale made thereunder, bythe supreme court of this state
in the judicial district in which some part of such line of
road is situated; such sale shall operate to pass title to the
purchaser 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 un-
der which such sale is had, had been made by a court of
competent jurisdiction of this state. Such judgment or
decree and sale may be so confirmed in any action now °
pending, orthat may hereafter be brought in the supreme
court, for the foreclosure of such mortgage or in aid of an
action for that purpose pending in such other state, if it
shall appear that such confirmation is for the interest of
the public and of the parties, due and lawful provision be-
ing made for and in respect of any liens upon that part of
the line of road or other property sold situate in this state,
and for such costs, expenses and charges as may appear
to be just and lawful. Ifa receiver of the entire line of
such railroad shall have been, or may hereafter be ap-
pointed by such court of competent jurisdiction of the state
in which the greater part of the line of railroad is situated,
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.

L, 1879, ch. 505, §1.

§ 77. Powers of corporations of other states.—
A railroad corporation created under the laws of the state
in which the greater part of the line of such railroad may
be situated, for the purpose of taking title to and operating
the entire liné of railroad, so sold as provided in the pre-
ceding section, with its franchises and appurtenances, the
judgment, decree and sale having been duly confirmed and
approved, as therein provided, may hold, possess and
operate that part of the line of such railroad lying in this
212 Tue Raitroap Law.

state, and shall have all the rights and. franchises thereto-
fore possessed by the corporation executing the mortgage
under which such sale was made, and such as noware or may
hereafter be conferred upon railroad corporations organized
under the laws of 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 im-
posed by law upon railroad corporations of this state, pro-
vided that an exemplified copy of the certificate of incor-
poration under and by virtue of which such corporation is
created, and of the judgment or decree under which the
entire line of railroad was sold, and a certified copy of the
order or judgment or decree of confirmation and approval
required by the preceding section, 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 located.

L. 1879, ch. 505, § 2.

§$ 78—Lease of road.—Any railroad corporation or
any corporation Owning or operating any railroad or rail-
road 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 théreafter use the same in
such manner and for such time as may be prescribed in
such contract. Such contract may provide for the ex-
change or guarantee 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
a vote of the stockholders owning at least two-thirds of
the stock of each corporation present and voting in person
or by proxy at a meeting thereof, 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
successively, in some newspaper printed in the city, town or
LEASES AND CONTRACTS. 213

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 vote 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 contract shall be executed by the corpora-
tions, 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. Nothing in
this section shall apply to any lease in existence prior to
May 1, 1891.
(As am’d by Laws 1892, ch. 676.)

The provision requiring the consent of the stockholders is limited to a lease
by the amendment of 1892. The last sentences are new, providing how such con-
tracts shall be executed and limiting its effect to leases made since May Ist, 1891.

. 1839, ch, 218.

. 1880, ch. 349.

. 1884, ch. 252, § 1 ‘
_ 1885, ch. 305. (§ 3 am’d by L. 1889, ch. 532.)

Pee

DECISIONS UNDER L, 1839, CH. 218.

Under this act one railroad company has power to lease its
road and franchise to another railroad company. ‘Gere v. WV. Y.
C.& H.R. RR. Co., 19 Abb. N.C. 193; Fisher v. Metrop. El. R. R.
Co., 94 Hun, 433; Woodruff v. Erie Ry. Co.,93 N. Y.,609; Troy &
Boston R. R. Co: v. Boston, Hoosac Tunnel & West.. Ry. Co.,86N. Y.,
107,117; People v. Albany & Vermont R. R. Co, 77 N.Y., 2325
_ Fisher v. N. Y. Central & H. R. R. R.Co., 46 N. V., 644; Middletown
v. Rondout & Oswego R. R. Co., 12 Abb. N. S., 276; 43 How., 481, 144;
Central Crosstown R. R. Co. v. Twenty-third St. R. R. Co., 54 How.,
168; Metrop. El. Ry. Co.v, Manhattan Ry. Co., 14 Abb, N. C, 103, 249;
it Daly, 373; Day vu. Ogdensburgh & Lake Champlain R. R. Cox ro7 NV.
_Y., 229. But not to an individual, although sucha lease is not mai-
um in se, nor malum prohibitum, nor is it void as against public
policy ; and a lessee under such a lease is estopped from question-
214 THE RarLroaD Law.

ing its validity in an action to recover the stipulated rent.
Quaere, as to whether it is w/tra vires. Abbott v. Johnstown, Glovers-
ville & Kingsboro Horse R. R. Co., 80 N.Y., 27; Woodruff v. Erie Ry.
Co. (above.)

A lease of its road by one company, organized under the
general railroad act, to another company under an agreement
which imposes no obligation upon the lessee to use the road,
makes no contract for its use, and does not contemplate its use
or operation, but the abandonment of its use, is not a contract
for “use” authorized by this act, and is void. Troy & Boston R.
ke. Co. v. Boston, Hoosac Tunnel & West. Ry. Co.. 86 N. Y., 107.

Having executed and delivered a lease of its railroad, under
the authority of this act, andthe lessee having taken possession
of the leasehold property and operated it as its sole proprietor,
the lessor company cannot be held liable to a passenger for in-
juries sustained by him by reason of the negligence or wrongful
acts of the lessee’s servants. The lessee in such a case will be
liable for injuries so caused. Fisher v. Metrop. El. R. R. Co., 34
Hun., 433. But if the lease is unauthorized, the lessor company
will be liable for injuries caused by the negligence of those
operating the road. Adbottv. Johnstown, &c., R. R.Co., 80 N. Y., 27-

Section 18, Art. 3 of ‘the Constitution does not affect this ac
and does not forbid acontract under it, by a railroad company,
which has acquired the right and has constructed and put in
operation its railroad in the streets of a city, authorizing the use
of its railroad in such streets by another company without first
obtaining the prescribed consents. People v. Brooklyn, Flatbush &
Coney Island R. R. Co., 89 N.Y.,75. The fact that a railroad com-
pany has leased its road to another company for the full period
of its corporate life does not deprive it of the right to acquire
title to land for its corporate uses by proceedings a invitum ; nor
is it material in this respect that the lessee is a foreign corpo-
tation. Matter of the N. Y., Lackawanna & West. Ry. Co., 99 N.
Y., 12; see also Kipv. N.Y. & Harlem R. R. Co. 67 N. Y., 227.
A lease of a railroad for the term of 999 years, or so long as the
lessee company shall continue to exist as a corporation and be
capable of exercising all the functions stipulated on its behalf,
is not terminated by the appointment of receivers of the,prop-
erty of the lessee company under Sec. 1788 of the Code of Civil
Procedure, pending an action brought by the attorney general
for the dissolution of the lessee company upon the ground of
insolvency. WV. Y. El. &. R. Co. v. Manhattan Ry. Co., 63 Fow.,
LrasEs AND ConTRACTS. 215

44, An action having been brought by the attorney general
to vacate the charter of a lessor railroad company, the lessee
company has such an interest in the subject of the action and
in the real estate to be affected by the judgment, as to entitle it,
under sec, 452 of the Code of Civil Procedure, upon application
for that purpose, to be made a party defendant. People v. Albany
& Vermont R. R.Co.. 77 N. Y., 232.

The lessor may be a foreign corporation unless the law-mak-
ing power of the foreign state forbids. Dayv. Ogdensburgh & Lake
Champlain R. R. Co., 107 N. Y., 129. Whether the lessee pays the
rent in money or its own bonds or promises, or by discharging an
obligation of the lessor, is immaterial. Jd. Quaere: Whethera
lease is valid which leases a portion of the route covered by the
lessor’s franchise with the right to lay tracks thereon, not for
the purpose of constructing the road of the lessor, but to enable
the lessee to complete its own road, the tracks when built not
to belong to the lessor, or to be operated by it, but to be con-
structed at the expense of, and to be operated and maintained
for the use of the lessee exclusively. Ju re Brooklyn, Winfield & -
Newtown R. R. Co.,81 N.Y.,69. Astreet railroad can not be leased
to an individual to be operated by him as private property.
Fanning v. Osborne, 102 N. Y., 44i.

An agreement between two companies by which each is al-
lowed to run its cars over the line of the other, vests no right in
either company which could be assigned or leased. Brooklyn
Crosstown R. R. Co. v. Brooklyn City R. R. Co., 51 Hun, 600. Where
the same persons are directors of the lessor and lessee compa-
nies, the lease is voidable, not void. Barry. VN. V.,,Ll.£.& W.
R. R. Co., 125 N. Y., 263; see Munson v. Syracuse, &¢., R.R. Co., 103
NV. Y., 58. This act was not repealed as to street railroads by
the proviso of § 15 of the street railroad act. Traffic contracts
between two companies for the partial use of their respective
lines are authorized by this act. Such contracts are not in
terms or effect leases, and do not surrender possession or con-
trol of the road by its original owners. People v. O’Brien, rrz NV,
Y.,7. Under the interstate commerce act it is held that a mere
contract for the interchange of traffic does not release the of-
fending company from the inhibition of that statute. The
effect of such a contract could not be to make the one line a
mere’extension of the other. VM Y& XW. Ry. Coa.v. N.V.& N
E.R. R. Co., 50 Fed. Rep., 867. The concurrence of the stock-
holders was formerly unnecessary; such lease could be made
216 THE RaiILRroapD Law.

by the directors. Beveridge v. N.Y. Elev. R. R. Co., 112 N. Y., 2.
See Met. El. Ry. Co. v. Man. Ry. Co., 14 Abb. N.C, 103, 251; (but
see above section.)

A lessee company taking the place of the lessor company as
to its charter powers and rights, necessarily takes its place as
to charter obligations and duties, and may be compelled to pay
a license fee imposed upon the lessor, although no such obliga-
tion was assumed in the lease, or imposed by the act allowing
the lease. Mayor of N. V.v. Twenty-third St. Ry. Co., 113 N. Y., 311.
The lessor is not liable for the torts or negligence of the lessee,
even in work properly chargeable to the lessor as construction.
Miller v. N. Y., Lack. & W. R. R. Co. 125 N. Y., 118 A friendly
suit to determine the validity of a lease cannot be maintained.
Ogdensburgh & L. C. R. R. Co. v. Vermont & Canada R. R. Co., 4 Hun,
712; 6 T.&C., 488, see also 67 N. Y., 176.

DEcIsIONS UNDER L. 1884, CH. 252, §15.

A lease to an individual, or a contract which is in effect a
transfer of the franchises of a street railroad company as a
common carrier over a portion of its route, to an individual for
the purposes of his private business, is invalid. Fanning v. Os-
_ borne, 102 N.Y. 4ag1; Abbottv. Johnstown, Gloversville and Kingsboro
forse R. R. Co., 80 N. Y., 27.

§ 79. Lessees of railroad may acquire stock
therein.—Any railroad corporation created by the laws
of this state, or its successors, being the lessee of the road
of any other railroad corporation, 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 corpo-
rations;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 surrendered or transferred, and a
LEAsES—SuRRENDER OF STOCK—ParRALLEL LINES. 217

certificate thereof filed in the office of the secretary of
state, under the commen seal of the corporation to whom
such surrender or transfer shall haveybeen made, the es-
tate, property, rights, privileges and franchises of the cor-
poration whose stock shall have been so surrendered or
transferred, shall thereupon vest in and be held and en-
joyed by the corporation, to whom such surrender or
transfer shall have been mate, 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 corporation, to whom such sur-
render 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 cred-
itors and of any stockholder not surrendering or transfer-
ring his stock, shall not be affected thereby.

L. 1855, ch. 302, § 1.
L. 1867, ch. 254. (Amd by L. 1879, ch. 503.)

DECISIONS UNDER L. 1867, Cu. 254.

Compliance with this section does not abate condemnation
proceedings instituted before the transfer of the stock. ln re
Met. El. Ry. Co., 12. N. Y. Supp., 506. The company transferring
does not lose its corporate existence, nor its right to continue
or to authorize its transferee to continue condemnation proceed-
ings. Inre N.Y. El. R. R. Co. v. Clarkson, 17 N.Y. Supp., 778; 43
St. Rep., 651; aff'd 133 N. Y., 690.

See Beveridge v. N. V. E.R. R. Co., 112 N.Y., 7, 28.

§ 80. Consolidation and lease of parallel lines
prohibited.—No railroad corporation or corporations
owning or operating railroads whose roads run on parallel.
or competing lines, except street surface railroad corpora-
tions, shall merge or consolidate, or enter into any con-
tract 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.

(As am’d by Laws 1892, ch. 676.)
218 Tue RaiLroaD Law.

The amendment of 1892 excepted street ‘surface railroads, and the provision
allowing such consolidation by the consent of the board of railroad commissioners
is new.

L. 1869, ch. 917, §'9.
L. 1884, ch. 252, § 15.

DECISIONS UNDER L. 1869, CH. 917, §9.

It is not necessary that lines should be parallel in a mathe-
matical sense to bring them within the prohibition of this sec-
tion. This section does not refer only to constructed roads.
Competing roads are those which are rivals in business. vople
v. Boston, Hoosac Tunnel & West. R. R. Co., 12 Abb, N. C., 230; see
Wallace v. Long Island R. R. Co., 12 Hun, 460.

DECISION UNDER L. 1884, Cu. 252, § 15.

This provision does not, when the lines are parallel for a por-
tion of their route, preclude the companies from making traffic
contracts for the partial use of their respective routes, beyond
the line of parallelism. Such contracts are not in terms or
effect leases and do not surrender possession or control of the
road by its original owner. This provision did not repeal chap-
ter 218 of the Laws of 1839. eoplev. O’ Brien, rz N.Y, 2.

$81. Mortgagee may purchase at foreclosure
sale.—Any mortgagee of the property and franchises of
any railroad corporation may become the purchaser of the
same at any sale thereof under the mortgage, upon fore-
closure 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 therewith
for the period of six months, and convey the same to any
railroad corporation.

L. 1857, ch. 444, § 1.

§ 82. Certificates of stock may be issued after
foreclosure in certain cases.—If any person or cor-
poration shall be entitled to certificates of stock subscribed
to and paid for in any railroad corporation whose property
and franchises have been sold under mortgage foreclosure,
and such certificates have not been issued before foreclos-
ure, the officers of the corporation shall, at any time within
six months after the foreclosure sale issue and deliver to
REORGANIZED CORPORATIONS. 219

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.

L. 1880, ch. 5, §§ x and 2.

§ 83. Liabilities of reorganized railroad cor-
porations.—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 required 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 commissioners 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 certificate, which
certificate shall be irreversible by such board, such corpo-
ration 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 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 proceedings whatever.
This section shall not authorize the abandonment of any
portion of a railroad which has been constructed and ope-
rated, or apply to Kings county.

L. 1874, ch. 430,85. (Added by L. 1889, ch. 236.)

DEcisIONS UNDER L. 1874, CH. 430, § 5.

In an action to forfeit a railroad company’s charter, issue be-
ing joined before the passage of this act, it was held, that defend-
ant should be allowed to file a supplemental answer, setting up
this act in defence. People v. Ulster & D. R. R. Co., 8 N. VY. Supp.,
149; 28 St. Rep., 19. This amendment is constitutional. The
action of the railroad commissioners in making such a certifi-
cate cannot be reviewed by the courts. fd. 58 Hun, 266; aff'd
128 NV. Y., 240.
CHAPTER IX.

THE RAILROAD LAW—STREET SURFACE RAIL-

SECTION 90.
gI.
92.
93:

94.
95.

96.

97-
98.

99.

roo,
Io.
102,

103.
104.

105.
106,
107.

108.

109.
IIo,

ROADS.
ARTICLE IV.

STREET SURFACE RAILROADS.

Street surface railroads; general provision.

Consent of property owners and local authorities.

Consent of local authorities; how procured.

Condition upon which consent shall be given;
sale of franchise at public auction.

Proceedings if property owners do not consent. .,

Percentage of gross receipts to be paid in cities or
villages; report of officers.

Extension of route over rivers; terminus in other
counties; when property owners withhold
consent; supreme court may appoint commis-
sioners.

Use of tracks of other roads.

Repair of streets; rate of speed; removal of ice
and snow.

Within what time road to be built.

Motive power.

Rate of fare.

Construction of road in streets where other road
is built.

Abandonment of part of route.

Contracting corporations to carry for one fare;
penalty.

Effect of dissolution.of charter as to consents.

Corporate rights saved in case of failure to com-
plete road; right to operate branches; condi-
tions; former consent ratified; limitations.

When sand may be used on tracks.

Road not to be constructed upon ground occu-
pied by public buildings or in public parks.

Center-bearing rails prohibited.

Right to cross bridge substituted for bridge
crossed for five years.
STREET SURFACE RAILROADS. 221

$90. Street surface railroad; general pro-
vision.—A corporation organized since May 6, 1884, for
the purpose of building and operating or extending a street
surface railroad or any of its branches, for public use in
the conveyance of persons and property in cars for com-
pensation, upon and along any street, avenue, road or
highway, in any city, town or village, or in any two or
more civil divisions of the state, must comply with the
provisions of this article. A street surface railroad corpo-
ration may file in each of the offices in which its certifi-
cates of incorporation are filed, a statement of the names
and descriptions of the streets, roads and highways in
which it is proposed to extend its road. Upon filing such
statement such corporation shall, except as otherwise pre-
scribed by law, have the same power and privileges to
extend, construct, operate and maintain its road in such
streets, roads and highways as it acquired by its incorpora-
tion to construct, operate and maintain its road in the
streets, roads and highways named in its certificate of in-
corporation.

(As am’d by Laws 1892, ch. 676.)

By the amendment of 1892 the words ‘‘since May 6, 1884,” were inserted.
The provision for the extension of the road is new.

L, 1884, ch. 252, § 1.

See Laws 1892, ch. 604, as to the extension of railroads organ-
ized under ch. 252, Laws of 1884.

DEcISIONS UNDER L, 1884, CH. 252, §1.

A street railroad proceeding under the authority of section
13 of the general railroad act, can only condemn land for the
purposes of a street railroad. Itcan not locate its route through
or along private property. Ju re South Beach R. R. Co. 119 XN.
Y.,zaz. The grant of the right to lay down a surface road does
not preclude. the legislature from subsequently granting to
other persons the right to build an elevated road directly over
the surface road. Zhe Winth Avenue R. R. Co. v. The New York
Elevated R. R. Co., 3 Abb. N. C., 347. The legislature had power to
pass the act of 1884, even though by so doing it altered the
terms of the charter of a company theretofore granted. MW. V.
Cable Ry. Co. v. Chambers St. and Grand St. Ferry R. R. Co., 40 Hun, 29.
222 Tue Raitroap Law—StTREET SURFACE RAILROADS.

$91. Consent of property owners and local au-
thorities.—Such railroad shall not be built, extended or
operated, unless the consent in writing, acknowledged as
are deeds entitled to be recorded, of the owners of one-half
in value of the property bounded on, and also the consent
of the local authorities having control of that portion of a
street or highway upon which it is proposed to build or oper-
ate such railroad shall have been first obtained. In cities
the common council, acting subject to the power now pos-
sessed by the mayor to veto ordinances; in villages the
board of trustees, and in towns the town board shall be
the local authorities referred to; if in any city the ex-
clusive control of any street, avenue or other property,
which is to be used or occupied by any such railroad, is
vested in any other authority, the consent of such au-
thority shall be also first obtained. The value of the prop-
erty 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 author-
ities shall have given their consent, except property owned
by such city, village or town, the value of which shall be
ascertained and determined by making jthe 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 ad-
jacent property on the same street or highway; and the
consent of the local authorities shall operate as the con-
sent of such city, village or town as the owners of such
property. But where such railroad runs through a street
or avenue, bounded on one side by a public square or
park, the consent of one-half of the property owners on
the other side of such street or avenue and opposite to
such square or park shall also be first obtained.

(As am’d by Laws of 1892, ch. 676.)

The word ‘‘ municipal” is changed to “local” to conform the section to the
constitutional provision. The words ‘‘assessment roll of the city, ‘
completed last before the local authorities shall have given their consent” are
substituted for the words ‘last completed assessment roll of the city,” etc.

L. 1884, ch. 252,°§§ 3 and 4.
L. 1854, ch. 140, § 1.
ConsENT OF PRopERTY OWNERS AND AUTHORITIES. 223

DECISIONS UNDER L. 1884, CH. 252, § 3.

The right obtained from the municipal authorities is in fee,
vesting the grantee with an interest in the street in perpetuity
to the extent necessary for a street railroad. People v. O’Brien,
z11N. Y.,z. ‘The court should not order the consent of proper-
ty owners to be filed. <Alenv. Forty-Second St., etc., R. R. Co., N.
Y. Daily Reg., Sept. 9,1884. It is necessary to have the consent
of the owners of one-half in value of the property bounded on
each street or portion of a street upon which it is proposed to
construct a railroad, and not merely the consent of the owners
of one-half in value of the property bounded upon the whole of
the route over which it is proposed to build the- road. Ailton v.
jath St. R. R. Co. 1 How. N. S., 453. A consent to a railroad in a
street operated by horse power carries with it the right to con-
nect passenger stations or depot yards or stables with the street
railroad. Moore v. Brooklyn City R. R. Co., 31 Hun, 90. As to who
are the “local authorities ” in a town when a turnpike company
has acquired a right to the use and control of a public highway,
see In re Rochester Elec. Ry. Co., 123 N.V., 351. Quaere: Whether
the legislature has power to authorize the construction of a
horse or steam surface railroad upon a street or highway, where
the fee of the street remains in an original owner, without mak-
ing compensation to a purchaser from such owner of a lot abut-
ting on the street or highway, and whose premises by the terms
of the deed are bounded thereon. Fanning v. Osborne, 102 N.Y.,
441i.

DECISIONS UNDER L. 1884, Cu. 252, § 4.

The provision in case of a street bounded on one side by a
public square does not tender the act unconstitutional. Con-
sents should be filed. Allen v. Forty-second St, &c., R. R. Co.,
N.Y. Daily Reg., Sept. 9, 1884.

Decisions UNDER L. 1854, Cu. 140, § 1.

This statute is to be considered as an amendment of the gen-
eral railroad act applicable to the railroads specified therein.
Its provisions are applicable to a railroad which by its charter
operated its road “subject only to the provision of the general
railroad act of this state, with its amendments.” City of V. VY. v.
Eighth Ave. R. R. Co, 118 N. Y., 38. This statute confers
no power upon a street railroad company to construct the
necessary structure for a cable road and does not authorize
it to operate the same. Jeople ex rel. Third Avenue R. R,
224 THE RatLroap Law—StTRrEET SuRFACE RAILROADS.

R. Co. uv. Newton, 112 N. Y., 396, see Schaper v. The Brooklyn & L.
I. Cable Ry. Co., 4 St. Rep., 860; aff'd 124 N. V., 630; Mason v. Brook-
lyn City & N. R. R. Co., 35 Barb., 373; Davis v. Mayor, &¢., of N. Y.,
14. N. Y., 506, 520.

$92. Consent of local authorities ; how pro-
cured.---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 considered, which no-
tice shall be published daily in any city for at least four-
teen 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 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 com-
plied with, and shall be filed in the office of the clerk of
the county in which such railroad is located.

(As am’d by Laws 1892, ch. 676.)

The word ‘‘municipal” changed to ‘‘local” and permission given for the
publication inone newspaper in places where there is only one.
L. 1884, ch. 252, § 4.
L. 1854, ch. 140, § 2.

See Feople ex rel. West Side Street Railway Co. v. Barnard, 110
N. Y., 548. Z

§ 93. Condition upon which consent shall be
given; sale of franchise at public auction.—The
consent of the local authorities, in cities containing twelve
hundred and fifty thousand inhabitants or more, according
to the last federal census or state enumeration, must con-
tain the condition that the right, franchise and privilege of
using any street, 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 corporation, with a bond or under-
taking in such form and amount and with such conditions
~

SALE OF FrancuisE aT Pusiic AUCTION. 225

and sureties as may be required and approved by the comp-
troller or other chief fiscal officer of the city for the (ulfill-
ment of such agreement and for the commencement and
completion of its railroad within the times hereinafter de-
signated, according to the plan or plans, and on the route
or routes fixed for its construction. Whenever such con-
sent shall provide for the sale at public auction of the right .
to construct and operate a branch or extension of an ex-
isting railroad such consent shall provide that but one
fare shall be exacted for passage over such
branch or extension and over the line of road which
shall have applied therefor, and, further, that if such right
shall be purchased by any corporation other than the ap-
plicant, 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 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 whole value thereof as the length of
such extension or branch shall bear to the entire length of
its road. The bidder to whom such right, franchise “and
privilege may be sold must be a duly incorporated rail-
road corporation of this state, organized to construct, main-
tain 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 comp-
troller 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 and

oO
226 THE RaILroaD Law—StTREET SURFACE RAILROADS.

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 apply-
ing for the consent, if it shall not be the successful bidder,
the necessary expenses incurred by such corporation prior
to the sale pursuant to requirement and direction of the
local authorities, within twenty days after such sale and
upon the certificate of the comptroller or other officer con-
ducting the same as to the sum or amount to be paid.
Notice of the time and 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 rail-
road will be given, must be published by such authorities
for at least three successive weeks, and in any city having
two or more daily newspapers, at least three times a
week in two of such papers to be designated by the.
mayor, and in any city where two daily newspapers are not
published, at least once a week in a newspaper published
therein to be designated by the mayor. The comptroller
or other chief fiscal officer of the city shall attend and
conduct such sale and may twice adjourn the same, but
not more than four weeks in all, and shall cancel any bid
if the bidder shall not have furnished adequate security en-
titling 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 shall at ail 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 re
fusal of the corporation operating or using such railroad
to pay the rental or percentage of gross earnings agreed
upon, and after notice of not less than sixty days to pay
the same, the local authorities interested therein may ap-
ply 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 defence, for judgment de-
claring 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
SALE OF FRANCHISE AT Pusiic AUCTION. 227
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 ex-.
isting on, said railroads at the time such forfeiture may
have been declared. All consents hereafter given by the
local authorities shall cease and determine at the expira-
tion of two years thereafter, and every such consent here-
tofore given to a corporation incorporated under chapter
two hundred and fifty-two of the laws of eighteen hundred
and eighty-four for the purpose of constructing and oper-
ating a street surface railroad only wholly south of the
Harlem river shall continue until June thirty, eighteen
hundred and ninety-three, when it shall cease, unless prior
thereto the consent of a sufficient number of the property
owners or the order of the general term in lieu thereof
shall have been first obtained, and the provisions of this
section shall apply to all applications for such consents,
made under any statute either before or after the passage
of this chapter, and not finally acted upon at the time
of its passage. Whenever it shall be desired to
unite two street surface railroad routes at some
point not over one-half mile from such_ respective
lines or routes, and establish by the construction of such
connection a new route for public travel, and the corpora-
tion or corporations owning or using such railroads shall
consent to operate such connection as a part of a continu-
ous route for one fare, and it shall appear to the local au-'
thorities that such connection can not be operated as an
independent railroad without inconvenience to the public,
but that it is to the public advantage that the same
should be operated as a continuous line or route with ex-
isting ‘railroads, or whenever, for the purpose of connect-
ing 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 corporation,
no sale of such franchise shall be made as provided in this
section, but any consent of the local authorities for the
construction and operation of such connection, extension
or branch shall provide that the corporation or corpora-
tions operating such connection, extension or branch shall
pay into the treasury of said city annually the percentage
provided for extensions or branches in section ninety-five
228 Tur RaiLtroap Law—STREET SURFACE RAILROADS.

of this chapter, for the purposes, at the times, in the man-
ner and upon the conditions set forth in such section.
‘Nothing herein contained shall be construed as applying to
or affecting or modifying the terms of a certain contract
bearing date January 1, 1892, entered into hy and between
the city of Buffalo and the various street surface railroad
corporations therein named in such contract.

(As am’d by Laws 1892, ch. 676.)

This section was also amended by ch. 306 of the Laws of 1892, but it was not
deemed necessary to insert the text of that amendment in this volume, as it is not
substantially different from the foregoing except that the last sentence of the sec-
tion as given above is not found in the amendment by ch. 306.

L. 1886, ch. 65, §§1 and 2,as am’d by L. 1886, ch. 642. (§1
am’d by L, 1889, ch. 564; § 2 am’d by L. 1887, ch. 622, and L. 1889,
ch. 281. See L. 1888, ch. 549, § 4.)

L. 1884, ch. 252, § 4.

DECISIONS UNDER L. 1886, CH. 65, § 1.

It seems that the municipal authorities have the absolute
power to grant or withhold their consent to the construction of
street railways, and they may impose any condition, however
onerous or difficult to perform, which seems to them to be
proper, as the terms upon which their consent will be given.
But in the notice of sale provided for, the condition which they
impose must be specified, and no other condition can be inserted
therein and none other can be exacted or imposed by the officer
conducting the sale. People ex rel. West Side Street Railway Co, v.
Barnard, 110 N. ¥., 548.

$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 cor-
poration 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 ap-
pointment of three commissioners to determine whether
such railroad ought to be constructed and operated. No-
tice of such application must, at least ten days prior there-
to, be served, personally, upon each non-consenting prop-
erty owner by delivering the same to the person to whom
such property is assessed upon such assessment-roll or by
duly mailing the same, properly folded and directed, to
PROCEEDINGS IF OWNERS Do Not CONSENT. 229

such property owner at his post-office address with the
postage prepaid thereon. If the person upon whom serv-
ice is to be made is unknown, or his residence and _post-
office address are unknown and cannot by reasonable dili-
gence 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 succes-
sive weeks. Upon due proof of service of such notice
the court to which the application is made shall- ap-
point 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 com-
missioners 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 ex-
tend 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 commissioners shall
each receive ten dollars for each day spent in the perform-
ance of their duties and their necessary expenses and dis-
bursements, which shall be paid by the corporation apply-
ing for their appointment,

(As am’d by Laws 1892, ch. 676.)

he amendment of 1892 consists of the addition of the words ‘‘confirmed by
said court.”

L, 1884, ch. 252, § 4.
DEcisions UNDER L. 1884, Cu. 252, § 4.

Upon application for the appointment of commissioners where
the consent of the requisite number of property owners can not
be obtained, the court is not vested with any discretion to grant
230 THE RAILroaD LAw—STREET SurFACE RAILROADS.

or deny the motion upona consideration of the question of the
utility or necessity of the proposed road; nor hasit the power
to deny the application because of the failure of the applicant to
secure the requisite consent of another company. Inability to
obtain the consent of property holders is the only prerequisite
to the application. Where a case is presented the court is
bound to exercise the power conferred upon it, which is a mere
naked power of appointment, and #/ seems, the question whether
the proposed road ought to be constructed is to be determined
in the first instance by the commissioners, and the power of the
court to pass upon it arises only after they have made their re-
port and returned the evidence taken by them. Ja ve Thirty-
Fourth St. R. R.Co., ro2 N. Y., 343. It is not necessary to state
that the consent of the local authorities has been filed in the
clerk’s office as acondition precedent to the application for the
appointment of commissioners. /¢ seems, that application for
the appointment of commissioners might precede the giving of
any consent by the local authorities. Zn re People’s'R. R. Co., 172
N. Y.,578. The application may beas toone street or any num-
ber less than all, and it need not appear that the consent of the
property owners on all other streets had been obtained. Several
applications may be made. /d. It is sufficient if the petition
shows the total valuation of the property on the portion of each
of the streets mentioned along which the company proposes to
construct its road, it appearing therefrom that the refusals to
consent represented more than one-half of the total valuation.
In re People's R. R. Co., 112 N. Y.,5&4. The statute does not pre-
scribe the order 1n which the several consents shall be obtained.
If, however, it should be made to appear on such application
that an insurmountable difficulty stood in the way of the con-
struction and operation of the road of the petitioner, and not a
mere present obstacle to the exercise of the franchise, the court
would not be bound to grant the application. Jn re Thirty-
Fourth St. R. R. Co., 102 N. V.,3437. The consent of the local au-
thorities may be procured either before or after that of the
property owners, or before or after the application to the court.
Ln ve Broadway Surface R. R. Co., 34 Hun, gig. Itis sufficient to
sustain an application to the court, that the affidavits show
what efforts were made and that the consent of the property
owners“ can not be obtained,”” The reasons for the refusal need
not be given. Inability to find the owner, his absence from
PROCEEDINGS IF OWNERS DO NoT CONSENT. 231:

the country, his infancy or insanity or other disability, are as
proper to be considered as his actual refusal. /d.

DEcISIONS UNDER L. 1884, CH. 252, $5.

The requirement of notice enables property owners to appear
onthe hearing and oppose the application on the ground that
the petitioner is not in a situation to make it, and also to be
heard in respect to the selection of commissioners. Jn re Thirty-
Fourth St. R. R. Co., 102. N. Y., 343. Service on those property
owners only whose names appear upon the assessment roll is
sufficient. Occupants or lessees whose names do not appear on
the assessment roll are not entitled to notice. Jn re Broadway
Surface R. R. Co., 34 Hun, 414.

Decisions UNDER L. 1884, CH. 252, § 6.

If the commissioners report that the road should not be con-
structed, the general term has no power in the absence of proof
of fraud or manifest irregularity, to send the case back for a
further hearing or to appoint new commissioners to rehear the
matter. If it appear -that they have refused to hear the parties
or to take any evidence, or if the report is such as to show
fraud or irregularity, the general term may send:the matter
back for a further hearing, but an erroneous ruling by the com-
missioners in excluding testimony or in admitting immaterial
or even incompetent or hearsay evidence will not warrant it in
so doing. Itis like atown meeting or legislative committee
not bound to regard rules of evidence strictly. Their eyes and
judgment after viewing the ground may furnish a basis for
their determination. Jn re Nassau Cable Co., 36 Hun, 272; see In
re. Kings Co. Elevated Ry. Co., 82 N. V., 95.

$95. Percentage of gross receipts to be paid
in cities or villages; report of officers.—Every cor-
poration building or operating a railroad or branch or ex-
tension thereof, under the provisions of this article, or of
chapter 252 of the laws of 1884, within any city of the
state having a population 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 railroad annually, on
November first, pay into the treasury of the city in which
its road is located, to the credit of the sinking fund there-
of, three per cent. of its gross receipts for and during the
232 THE RarLroap Law—StTrREET SURFACE RAILROADS.

year ending September thirtieth next preceding; and after
the expiration of such five years, make a like annual pay-
ment into the treasury of the city to the credit of the same
fund, of five per cent. of its gross receipts. If a street sur-
face railroad corporation existing and operating any such
railroad in any such city on May 6, 1884, shall have there-
after 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 construction, operation or extension of
a railroad under the provision of this article, the payment
annually of such percentage of gross receipts, not exceed-
ing 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 here-
tofore provided. The corporation failing to pay such per-
centage 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 November first in each year, make a verified re-
port to the comptroller or chief fiscal officer of the city of
the gross amount of its receipts for the year ending Sep-
tember 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 ascertaing 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 attor-
ney-general, shall cease and determine.

(As am’d by Laws 1892, ch. 676.)
EXTENSION oF Route IN CERTAIN CASES. “233

By the amendment of 1892 the words “ or branch orextension thereof” were in-

‘ serted in the first clause of the section, and the application of the section was lim-
ited to cities having a population of over 1,200,000 in place of 250,000. The
words ‘‘the whole gross receipts” are substituted for the words “the whole value
thereof.” :

L. 1884, ch. 252, § 8.

§ 96. Extension of route over rivers; terminus
in other counties ; when property owners with-
hold consent supreme court may appoint commis-
sioners.—Any street railroad except in the counties of
New York or Kings, now 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 .the Hudson
river over and by any bridge now or hereafter constructed
under the provisions of any law of this state, may so ex-
tend 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 road is now
located and in operation. Upon first obtaining the con-
sent of such bridge company or its lessees, and 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 astreet or highway

“upon which it is proposed 'to construct or operate such rail-
road, or in case the consent of such property owners can not
be obtained the general term of the supreme court/in the
district in which it is proposed to be constructed may, upon
application, appoint three commissioners who shall deter-
mine, 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.

L. 1880, ch. 415, §§ 1 and 2.

$97. Useoftracks 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
\

234 THE RaILroap Law—STREET SurFacE RAILROADS.

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 which are run and operated in like manner with
the necessary connections 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 tracksto be so run upon,
intersected and used; and in case such corporations can
not agree upon the amount of such compensation, the same
shall be ascertained and determined in the manner pre-
scribed in the condemnation law.

L. 1882, ch. 349, §§1, 2and 3.

§ 98. Repair of streets; rate of speed; re-
moval of ice and snow.—Every street surface railroad
corporation so long as it shall continue 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 por-
tion of such street, avenue or public place between its
tracks, the rails of its tracks, and two feet in width out-
side 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 cor-
poration, 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 in
terests or convenience of the public may require. A cor-
poration whose agents or servants willfully or negligently
violate such an ordinance or regulation, shall be liable to
such city or village for a penalty not exceeding five hun-
dred dollars to be specified in such ordinance or regula-
tion.

(As am’d by Laws 1892, ch. 676.)
L. 1884; ch. 252, § 9.
cr PPD

Repairs OF STREETS—SNow AND Ice. 235

DECISIONS UNDER L, 1884, CH. 252, g 9.

. See Mayor, &c., of Troy v. Troy & Lansingburgh R. R.Co., 3 Lans ,

270; 49 NV. Y., 657. While a railroad company would have the

right to remove the snow from its tracks, it could not lawfully

cause an obstruction which would interfere with the safe pass-

ing and repassing of persons traveling upon the road. Dixon v.

Brooklyn City & Newtown R. R. Co. 100 N. Y., 170; Somerville v.°
City R. Co. of Poughkeepsie, 17 N. Y. Supp., 719; 43 St. Rep., 425.

No duty rests upon a street railroad company to foot passen-
gers across its tracks, to keep the street between its tracks free
from snow and ice. Silberstein v. Houston, W. St. and P. F. R. R.
Co., 1177 NV. Y.,.293. The reasonableness of an ordinance requir-
ing street cars to be run at stated intervals during the night
may be challenged in defence to a suit for a violation of such
ordinance. Mayor, &c., of N. Y.v. Dry Dock E. B., &c., RR.
Co., 133 N. Y., tog. The question of reasonableness is not con-
trolled by considerations of expense to the company. /d.
Where a company had no authority to change the construction
of the pavement between the rails of its track at a point where
the city had left a depression for a surface drain to a graded
opening into a sewer, the company is not liable for an injury to
ahorse caused by stepping into the depression. Swell v. Roch.
Ry. Co., 64 Hun, 476.

REPAVING.

This provision as to pavements is not binding upon a com-
pany organized under this act which is operating as lessee the
road of a company previously organized under the general rail-
road act. Gilmore v. The City of Utica, 721 N. Y., 561; 131 N. Y.,

.26, As tothe assessment of street railroads for part of the ex-

pense of repaving under the provisions of the N. Y. City con-
solidation act, see People v. Gilon, 126 N.Y., 147; The Mayor of N.
Yiu. NV. & H.R. R. Co, 19 N.Y. Supp., 67; 46 St. Rep, 349;
see also Binghamton v. Binghamton & P. D. Ry. Co., 61 Hun, 479;
and Farmers, &c., Trust Co. v. Ansonia, 61 Conn., 76. A contract by
which a company covenanted “to pave the streets in and about
the rails” of the road “and to keep the same in repair,” binds
the company to pave and keep in repair so much of the space
between the tracks as was disturbed in the original construction
of the road. Where the defendant after due notice failed to
put a street in repair, the measure of damages for breach of the
covenant is the sum expended by the city in making such re-
pairs. Mayor of N. V.v. 2d Ave. R. R. Co, 102 N.Y, 572.
236 THE RatLtroap LAW—STREET SuRFACE RAILROADS.

$99. Within what time road to be built.—In

case any such corporation shall not commence the con-,
struction of its road, or of any extension thereof. within
one year after it has obtained the consent of the local au-
thorities and property owners, or the determination of the
general term as herein required, and shall not complete the
same within three years after obtaining such consents, its
rights, privileges and franchises shall cease and determine.
If the performance of any such act, within such time, 1s
prevented by legal proceeding, such court may also extend
such time during the time that performance is so pre-
vented. The time for compliance with the requirements
of this section by a street surface railroad corporation in-
corporated for the purpose of constructing a street surface
railroad only, wholly south of the Harlem river and in
cities of over twelve hundred thousand inhabitants and
which has heretofore obtained such consents is hereby ex-
tended until June 30th, 1893.

(As am’d by Laws 1892, ch. 676.)

L. 1884, ch. 252, § 10.

L. 1891, ch. 287.

See §5 of this act and cases cited.

$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 may be approved 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 can not be obtained, the determination of
three disinterested commissioners, appointed by the gen-
eral term of the supreme court of the department in which
such railroad is located, in favor of such motive power,
confirmed by the court, shall be taken in lieu of the con-
sent of the property owners. The consent of the property
owners shall be obtained and the proceedings for the ap-
pointment and the determination of the commissioners
and the confirmation of their report shall be conducted in
the manner prescribed in sections ninety-one and ninety-
four of this article, so far as the same can properly be

madaanniianhla thaeata
\

CHANGE oF MotTIvE Power. a7

Any railroad corporation making a change in its motive
power under this section may make any changes in the
construction of its road or road bed or other property ren-
dered necessary by the change in its motive power.

(As am’d by Laws 1892, ch. 676.)
The last sentence was added by amendment of 1892.
L. 1873, ch. 432, §1.
L. 1884, ch. 252,§12. (As am’d by L. 1889, ch. 531.)«

See Hussner vu. Brooklyn City R. R. Co. 114 N. Y., 433.

DECISIONS UNDER L. 1884, Cu. 252, § 12.

A street surface railway constructed before art. 3, sec. 18, of
the constitution went into operation may be changed into a
cable railway without the consent of the commissioner of pub.
lic works. A mandamus will issue to compel him to give a permit
therefor. Jn re Third Avenue R. R. Co., 121 N. Y., 536. The ef-
fect produced by the operation of a single-trolley street railroad
upon a telephone system using the earth fora return circuit,

_ was considered in Hudson River Tel. Co. v. Watervliet Turnpike &
&. R. Co., and it was held that neither company has an exclusive
privilege to use what is called the groynded or earth circuit,
even where the telephone company had prior occupation. 56

| Hun, 67; appeal dismissed rar N. V., 397; 6x Hun, 140, rev'd in

Ct. of Appeals, Oct. 1, 1892.

§ ror. Rate of fare.—No corporation constructing
and operating a railroad under the provisions of this article,
or of chapter 252 of the laws of 1884, shall charge any
passenger 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. This sec-
tion shall not apply to any part of any road constructed
prior to May 6, 1884, and then in operation, unless the cor-
poration owning the same shall have acquired the right to
extend such road, or to construct branches thereof under
238 THe RaILtroaD Law—STREET SURFACE RAILROADS.

such chapter, or shall acquire such right under the pro-
visions 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.

(As‘m’d by Laws 1892, ch. 676.)

The amendment of 1892 restricts the provision requiring that only one fare shall
be charged to the limits of an incorporated city or village.

L. 1884, ch. 252, § 1

A car stopped for some reason and a passenger was trans-
ferred to another car. Upon refusal to repay his fare he was
ejected by the conductor, who honestly supposed that the fare
had not been paid. No unnecessary force was used and the
passenger sustained no material injury. Held, he was entitled
to compensatory but not to exemplary damages. Hamilton v.
Third Ave. R. R. Co., 53 N. Y., 25. Non-payment or over-pay-
ment of fare. Hamilton v. Third Ave. R. R. Co., 53 N. V., 25; Cor-
bett v. Twenty third St. Ry. Co., 42 Hun, 587; 114 N. Y., 579; Rown v,
Christopher & Tenth St. R. R. Co., 34 Hun, 471, Sanford v. 8th Ave.
R. R. Co., 23 N. Y., 343.

$102. Construction of road in street where
other road is built.—No street surface railroad corpo-
ration shall construct, extend or operate 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 con-
structed, except for necessary crossings or, in cities, villages
and towns of less than 1,250,000 inhabitants, over any
bridge, without first obtaining the consent of the corpora-
tion owning and maintaining the same, except that any
street surface railroad company may use the tracks of an-
other street surface railroad company for a distance not ex-
ceeding one thousand feet, and in cities, villages and towns
of less than 1,250,000 inhabitants shall have the right to
lay its tracks upon and run over and use any bridge used
wholly of 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 por-
CoNSTRUCTION IN STREET WITH ANOTHER Roab. 239

tions of a line to be constructed as an independent railroad,
or to connect said railroad with a ferry, and that the public
convenience requires the same, in which event the right to
such use shall only be given for a compensation to an ex-
tent and in a manner to be ascertained and determined by
commissioners to be appointed by the courts as is provided
in the condemnation law, or by the board of railroad com-
missioneys in cases where the corporations interested shall”
unite in a request for such board to act. Such commis-
sioners in determining the compensation to be paid for the
use bv one corporation of the tracks of another, shall con-
sider and allow for the use of tracks and 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 its 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
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 street sur-

face railroad corporation whose road is wholly or partly in
the same city.

(As am’d by Laws 1892, ch. 676.)

The provision for extending street railroads over foot bridges in cities of less
than 1,250,000 inhabitants is new.

This section was also amended by ch. 306 of the Laws of 1892,
to read as follows :

$102. Construction of road in street along or
across where other road is built.—No street surface
railroad corporation shall construct, extend ‘or operate 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,
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, whenever the court upon an application
240 THE RatLroap LAW—STREET SuRFACE RAILROADS.

for commissioners shall be satisfied that such use is actually:
necessary to connect main portions of a line to be con-
structed as an independent railroad, or to connect said
railroad with a ferry, and that the public convenience re-
quires the same, in which event the right to such use shall
only be given for a compensation to an extent and in a
manner to be ascertained and determined by commis-
sioners to be appointed by the courts as is provided in the
condemnation law, or by the board of railroad commis-
sioners in cases where the corporations interested shall
unite in a request for such board to act. Such commis-
sioners in determining the compensation to be paid for
the use by one corporation of the tracks of another, shall
consider and allow for the use of tracks and for all injury
and damage to the corporation whose tracks may be so
used.
L. 1884, ch. 252, $14.
DEcIsIONS UNDER L. 1884, ch. 252, § 14.

This provision is not a delegation of legislative power to the
company whose consent is required, and is constitutional and
valid. Jn re Thirty-fourth St. R. R. Co., 102 NM. Y., 37437. Where
requisite as to part of the route, the consent of the companies
having coincident routes must be obtained before any right to
proceed with the construction of the road, or any part thereof,
can be exercised. It stands on the same basis as the consénts
of the local authorities and property owners. If consent is not
obtained, the statute prescribes no alternative or substitute. Jd.
This section does not prohibit the construction of a street sur-
face railroad upon a street in which another company may
have claimed the right to construct a railroad, which at the
time has neither, in whole orin part, been constructed. M. Y.
Cable Ry. Co. v. The Chambers St. & Grand St. Ferry R. R. Co., 40
Hun,29. The phrase “ portion of any street” includes not merely
the space occupied by the tracks but the space on each side of
and between the tracks (in fact the whole width of the street)
along the whole line of the track. Forty-second & Grand St.
Ferry R. R. Co. v. Thirty-fourth St. R. R. Co. 52 J. & S., 252; 102
NV. Y., 691. See Brooklyn Central R. R. Co. v. Brooklyn City R. R.
Co., 32 Barb., 358. A horse railroad track may cross another
similar track, and the company using the latter track can not
complain as long as it is not impeded or interrupted in running
its cars. Brooklyn Cent. & Jamaica R. R. Co.v, Brooklyn City R. R.. I
Co., 33 Barb., 420.
ABANDONMENT OF Part oF Route.’ 241

$ 103. Abandonment of part of route.—Any
street surface railroad corporation which is the lessee or
lessor, or both, or which has the right to use the route or
portion of the route of another.such corporation pursuant
to a lease or agreement lawfully entered into with it, may
declare any portion of its own route which it may deem no
longer necessary for the successful operation of its road
and convenience of the public in consequence of such
lease or contract, 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 conducted in the same manner as required by
law for meetings of stockholders 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 cor-
poration, upon such declaration. Such declaration shall
then be submitted to the board of railroad commissioners
for its approval, and if approved by’such board, such ap-
proval shall be indorsed thereon 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, such portion of the route designated
in the declaration shall be deemed to be abandoned.

New. (Inserted by Laws 1892, ch. 676, in place of former section
103.)
L. 1885, ch. 305, § 3. (Am’d by L. 1889, ch. 532:)

$104. Contracting corporations to carry for
one fare; penalty.—Every such corporation entering
into such contract shall carry 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 pas-
senger. Every such corporation shall upon demand, and
without extra charge, give to each passenger paying one
single fare a transfer, entitling such passenger to one con-

P
242 THE RaiLroap Law—STREET SURFACE RAILROADS.

tinuous trip to any point or portion of any railroad em-
braced in such contract, to the end that the public con-
venience may be promoted by the operation of the railroads
embraced in such contract substantially as a single rail-
road with a single rate of fare. For every refusal tocom- .
ply with the requirements or this section the corporation
so refusing shall forfeit fifty dollars to the aggrieved
party. The provisions of this section shali only apply to
railroads wholly within the limitsof any one incorporated
city or village.
(As am’d by Laws 1892, ch. 676.)

Former section 105. The amendment of 1892 limited the application of this
section to railroads ‘‘ wholly within the limits of any one incorporated city or
village.”

L. 1885, ch. 305, § 4.

$105. Effect of dissolution of charter astocon-
sents.—Whenever any street surface railroad corporation
shall have been dissolved or annulled, or its charter re-
pealed by an act of the legislature, the consent of owners
of property bounded on, and the consent of the local authori-
ties having the control of that portion of a street or high-
way upon which the railroad of such corporation shall have
been theretofore constructed and operated, and the order
of the general term confirming the report of any commis-
sioner that such railroad ought to be constructed or op-
erated, 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 dissolu-
tion, 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 juris-
-diction 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 enjoyment and use of
such consents and orders, and of each thereof, and of all
the powers, privileges and benefits therein or thereby
-

“ ErFect oF DissoLUTION—FAILURE TOCOMPLETE. 243

created, in like manner as if such purchaser had been origi-
nally 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.

(As am’d by Laws 1892, ch. 676.)
Former section 106. ig

L. 1886, ch. 271, §§ 1, 2 and 3.

See People v. O’Brien, 111 N. Y., 2.

§ 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 railroad corporation, which has completed a rail-
road 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 portion of
its railroad continuously for a period of five years last past,

-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 cor-
poration shall have the right to operate any extentions*
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 extentions* and branches were
designated in its certificate of incorporation. But every

such street railroad corporation is authorized to operate

such railroad and any extention* or branches thereof, upon
condition that it has 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
244 THE RaiLtroap LAw—STREET SuRFACE RAILROADS.

or highways included in the route of such railroad, or anv
extention* or branches thereof. to the construction and
operation of the same, or in case the consent of such prop-
erty owners can not be obtained, the general term of the
supreme court of the department in which such railroad or
any extension or branch thereof is located, may, upon ap
plication, 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 de-
termination, confirmed by the court, may be taken in lieu
of the consent of the property owners. All consents here-
tofore given, or grants made by local authorities having
the control of the portion of any street, avenue or high-
way included in the route of such railroad, or any exten-
sions or branches thereof, to any such street surface rail-
road corporation, are hereby ratified and confirmed and de-
clared valid. This section shall be applicable to any such
corporation in any town, city or village having less than
twenty thousand inhabitants which has completed any por-
tion of its road upon the route designated in its certificate
of incorporation within the time required by law for the
completion of its road. 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 conferred upon
any street surface railroad corporation by any law of this
state; nor any pending litigation; nor shall it impair ex-
isting rights, privileges or franchises of any street surface
railroad corporation.
*So in the original.

(As am’d by Laws 1892, ch. 676.)

Former section 107, By the amendment of 1892, the completed portion of the
railroad must have been operated fora period of five years, and the section is made
applicable to railroads in towns, cities or villages of less than 20,000 inhabitants.

L. 1888, ch. 549, §§ 1, 2, 3,4 and 5. (§ 4 am’d by L. 1890, ch.
543, which see.)
L. 1891, ch. 287.

§$ 107, When sand may be used on tracks.—The
owner or operator of any street surface railroad in cities of
this state having a population of five hundred thousand or
more, may place upon the space between the rails of such
4

SAND ON TRACKS—CONSTRUCTION. 245
road, sand in sufficient quantites and no more to prevent
the horses traveling thereon from slipping.

(As am’d by L. 1892, ch. 676.)

Former section 108,

Section 108 was am’d by ch. 460, Law 1892, to read as follows :

§ 108. When sand may be used on tracks.—
After the passage of this it it shall be lawful for the
owner or operator of any horse or surface street railroad in
the cities of this state having a population of five hundred
thousand or more to place upon the spaces between the |
tracks of said road, and on the tracks and grades on said
railroad at any time between the first of November and the
first of April of each year, sand in sufficient limited quan-
tities to prevent the horses traveling thereon from slipping.

L, 1888, ch. 560.

$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 tunnels to be approved
by the local authorities having control of such parks.

(As am’d by Laws 1892, ch. 676.)

Former section tog. Section fog of the Railroad Law was specially repealed
by the first clause of Laws 1892, ch. 676.

L, 1884, ch. 252, $17

\

$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 “cen-
ter-bearing” approved by the local authorities. Such
‘grooved or other rail shall be of such shape and so haid 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 re-
paving streets, as distinguished from the authorization of
' \

246 THE RalLroaD Law—STREET SURFACE RAILROADS,

such paving, repairing and re-paving, is by law vested in
any local authority other than the common council of such
city, such other local authority shall be the local authority
referred to in this section.

New. (Added by Laws 1892, ch. 676.)

, $110. Right to cross bridge substituted for a
bridge crossed for five years.—Should any street sur-
face 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 com-
pany 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 con-
venient operation of its cars and public convenience may
require.
New. (Added by Laws 1892, ch. 676.)
CHAPTER X.

THE RAILROAD LAW—RAPID TRANSIT RAILROADS.

ARTICLE V.

OTHER RAILROADS IN CITIES AND COUNTIES.

SECTION 120.
I2T,
122.
123.
124.

125.
. 126,

127.
128.

129.
130.
131.
132.
133.

134.
135.

136.

137.
138.
139.
140.
14I.
142.

Application for railway ; commissioners.
Oath and bond of commissioners.

First meeting of commissioners.

Determination of necessity of railroad and route.

Adoption of plans and terms upon which road
shall be built.

Appraisal of damages and deposit of money as se-
curity.

Shall prepare certificate of incorporation ; proviso
as to forfeiture.

Organization.

Commissioners to deliver certificate ; affidavit of
directors.

Powers. .

Crossing of horse railroad track.

Where route coincides with another route.

Commissioners ; to transfer plans, et cetera.

Commissioners to file reports; confirmation
thereof.

Pay of commissioners.

Quorum ; term of office ; removal; vacancies in
board of commissioners.

Abandonment or change of route; new commis-

. sioners ; their power and proceedings.

Increased deposits ; when and how required.

Trains to come to full stop, etc.

Gates.

Penalty for violation of this article.

Sections to be printed and posted.

Extension of time.

$120. Application for railway ; commissioners.
—Upon the application of at least fifty reputable house-
holders and taxpayers of any county or city, verified upon
oath before a justice of the supreme court, that there is
248 Tue RaitroaD Law—RapipD TRANSIT RAILROADS.

need in said county or city of a steam railway in the
streets, avenues and public places thereof for the transpor-
tation of passengers, mails or freight, the board of super-
visors of such county may, within thirty days thereafter
by resolution, 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 ap-
plication of a like number of householders and taxpayers
of the city to the mayor thereof, such mayor may, within
thirty days thereafter, indorse upon the application his ap-
proval and direction that it may be presented to the su-
preme 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 pre-
sentation of such application so approved and authorized
to a special term of the supreme court, held in the district
where such railway is to be built, or some part thereof, the
court may appoint five commissioners, resident, of the city
if the railway is to be built wholly within the city and of
the county, if it isto be built wholly or partly outside of
the limits of a city, to determine the necessity of such rail-
road, the route thereof, the time within which and the con-
ditions upon which it shall be constructed, the damages to
the property owners along the line thereof and all the mat-
ters lawfully submitted to them, and discharge the duties
imposed upon them by law.

L. 1875, ch. 606, § 1.

See L. 1891, ch. 4, as to ‘railroads in cities having over
1,000,000 inhabitants.

DECISIONS UNDER L. 1875, Cu. 606, § 40.

A railroad may acquire by contract or otherwise the right to
operate a railroad along or upon city streets and avenues with-
out of necessity complying with the terms and conditions of this
act. The act of 1850 is still in force as to railroads running
“over, under, through or across ” streets, avenues and places,
notwithstanding the passage of this act. Zhe People v. Brooklyn,
Flatbush & Coney Island Ry. Co., 89 N. Y., 75, 86. The meaning of
this section is that none of the provisions of this act shall apply
APPLICATION FOR RalLWAY—COMMISSIONERS. 249

to any surface railroad company already organized at the time
of the passage of the act under any general or special act, nor
to the operation of any surface railroad constructed before the
passage of theact. WV. Y. Cable Co.v. Mayor of New Vork, 1og N..
YV., 2, 22.

DEcIsIons UNDER, L. 1875, Cu. 606, § 1.

This act authorized the construction of railroads on the sur-
face to be operated by any power otherthananimal. The “gen-
eral surface act’ does not interfere with the rights of any such
road organized before its passage. Ju re NW. Y. Cable Company v.
The Mayor, &c., of New York, 104. N. Y.,1. This act does not pro-
hibit the construction of another street surface railway upon the
surface of any street over, under or through which the right to
construct a railway might, under its provisions, be acquired.
NV. Y. Cable Ry. Co.v. Chambers St. & Grand St. Ferry R. R. Co., go
Hun, 29. It is sufficient if the application be verified by one of
the subscribers only. ‘Verified upon oath” before a supreme
court judge means proven by a witness upon oath before him,
to have been really signed by the persons whose names are
thereto appended. Jn re Kings Co. Elev. R. R. Co., 105 N. Y., 97.

$121. Oath and bond of commissioners.—With-
inten days after his appointment and before entering upon
the discharge of any of the duties of his office, each com-
missioner 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 to 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.

L. 1875, ch. 606, § 2.

$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.

L. 1875, ch. 606, § 3.
250 THE RaiLtroaD Law—Rapip TRANSIT RAILROADS.

$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 shail have the exclu-
sive power to locate such route, over, under, through or
across the streets, avenues, places or lands in such county
or city, and to provide for the connection 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 por-
tion of astreet 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 ob-
tained, the determination of three commissioners ap-
pointed 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 prop-
erty owners. No such railway shall be located in or upon
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 au-
thorized 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 por-
tions of Grand, Classon and Franklin avenues and Dowl-
ing 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
SUPREME CourRT CoMMISSIONERS. 25%

constructed across such excepted streets, avenues and
places at their intersection only with other streets, avenues
and places,

(As am’d by Laws 1892, ch. 676.)

L. 1875, ch. 606, § 4. (Am’d by L. 1880, ch. g17and L. 1881,
ch. 485.)

See Constitution, Art. 3, § 18.

DECISIONS UNDER L. 1875, Cu. 606, § 4.

Neither the constitution nor this section require notice to the
property owners of the application for the appointment of the
supreme court commissioners. It was not a proceeding to take
property. It was clearly intended that no notice should be re-
quired, as no hearing of the parties interested is given. Jn re
N.Y. Elevated R. R. Co., 70 N.V., 727, 356. Personal notice of the
hearing before such commissioners is not required to be given
to the property owners. The method of giving notice is left to
be prescribed by the court. A notice by publication and post-
ing held sufficient. The proofs may be by affidavit. Rapid
transit commissioners determined on two routes and author-
ized construction in several different ways. (See VW. Y.
Cable Co.v. Mayor of N. V.,104 N. V.,1: In re Kings Co. Elev. ky.
Co, 18 Hun, 378.) Supreme court commissioners determined in
favor of one of the routes and confined the construction to one
of the methods so authorized. Held; that the former decision
was proper so long as a complete road upon some route was
left. So also they might decide what connections with
ferries and depots ought or ought not to be made. The
latter decision was not an excess of authority, but if so
property owners could not complain. They are to determine
whether the road, upon the route designated, ought to be con-
structed or operated; it isno part of their duty to review the
determination of the rapid transit commissioners as to the feasi-
bility of the route. The sixty day limitation only applies to the
rapid transit commissioners. /¢. The constitutional condition
of consent of local authorities and property owners or certificate
of supreme court commissioners has no application to a corpo-
ration already possessing the right to lay down railroad tracks
ona designated route by a previous charter. Jn re Gilvert Ele-
vated Ry. Co. 70 N. Y. 361, 372. The mayor’s vommissioners
might adopt the plan of a surface road prior to the passage of
chap. 252, L. 1884. Ju re N.Y. Cable Co. v. The Mayor, 104g. N. Y.,7
252° Tue Raitroap Law—Rapip TRansIT RAILROADS.

The determination of the Supreme Court commissioners is
inoperative until conhrmed by the generalterm. The general
term has not a mere formal function. It has the power and it is
its duty to review the whole case, and to pass upon the suf-
ficiency of the facts and circumstances to warrant the determina-
tion of thecommissioners. Jure Kings Co. Elevated Ry. Co., 2 NV.
V., 95. A company whose projected routes have been located by
the rapid transit commissioners, but which has not obtained the
consent of property owners nor of the local authorities, nor the
determination of the commissioners appointed by the Supreme
Court is not entitled to enjoin the construction of a rival or
competing road. WV. Y. Cable Co. v. Forty-second St., &c., R. R. Co.,
N.Y. Daily Reg., Oct. 73,1884. The legislature had power to de-
termine the route and the form of structure and make regula-
tions for the running of trains, but there is no rule which for-
bids the legislature from referring these questions to a subor-
dinate tribunal. Jx re Gilbert Elevated Ry. Co.,70 N. V., 374; Inve
NV. Y. Elevated Ry. Co. 70 N. Y.,327. The company may make
the application for the appointment of the supreme court com-
missioners. Jnre Kings Co. Elev. Ry. Co.,18 Hun, 378. The con-
sents of the property owners and local authorities are not re-
quired to be obtained until after the laying out and determining
of the route. The commissioners need not give precise direc-
tions as to the location of the line upon the ground. It is suf-
ficient if the general direction is given together with deflections
and curves, from which it could be ascertained where the line
was to be laid. Jn re Suburban Rapid Transit Co., 38 Hun, 553.
The jurisdiction of the general term to appoint commissioners
to determine whether a proposed railway ought to be constructed
depends upon a refusal of the property owners toconsent. The
property owners and local authorities, when applied to for their
consent, must have offered to them as a necessary prerequisite
to an intelligent judgment, plans which leave no essential or
material portions to the discretion of the company’s directors,
In re N.Y. Cable Ry. Co., 109 N. Y., 32. It was competent for the
legislature to provide for such a tribunal, as a part of or an in-
cident to its delegation to the corporation of the power to exer-
cise the right of eminent domain. This provision is constitu-
tional. Personal notice of a hearing is not prescribed by the °
law, nor is itnecessary by implication. The judgment of the
general term constructively involves the establishment of the
due incorporation of the company and legal capacity, there hav-
ing been an opportunity to raise that question, and in that re-
Abortion oF Pians, Etc. 253

spect judicially estopped the abutting owners from ever after-
wards raising the question. Jn re Union Elev. R. R. Co., 112 NV. Y.,
6z. Asto the sufficiency of a statement of inability to obtain
the consent of property owners on application for appointment

of supreme court commissioners, see /x re V. Y. Cable Ry. Co., 36:
Hun, 355. A report of supreme court commissioners will not be

confirmed by the general term until some provision has been

made by which the abutting owners shall be compensated for
the damages they may sustain by reason of the construction and

operation of the railroad. Jn re Hast River Bridge & Coney Island
Steam Transit Co., 26 Hun, apo. Rapid transit commissioners

have power to.organize buta single corporation to operate all

the railways whose construction they may authorize. Theycan

not organize a separate corporation to operate each of such rail-

ways. People ex rel. Stebbins v. Hoe, 20 Hun, 26. Neither the com-

pany when organized nor the common council could add to or

take away from the terms or conditions before provided and

imposed by the commissioners as to any matter within the cog-

nizance of the commissioners, or provided for by the legislature.

As to whether the common council can qualify their consent by

such other reasonable restriction as they think necessary,

Quaere. The power to recall a consent given by the local au-

thorities or to annul. it for non-fulfillment of a condition subse-

quent is not given by the act. Jn re Kings Co. Elev. R. R. Co., 105

NV. Y., 97.

§ 124. Adoption of plans, and terms upon
which road shall be built—The commissioners by
such public notice, and under such conditions, and with
such inducements as they may prescribe, shall invite a sub-
mission of plans for the construction and operation of such
railway, 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, turnouts, 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 au-
thorities, and after hearing 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
254 THe RatLroaD Law—Rapip TRANSIT RAILROADS.

the local authorities by the corporation formed for the pur-
pose of constructing, maintaining and operating such rail-
way for public use in the conveyance of persons and prop-
erty, for the use and occupation by the corporation of the
streets, avenues and highways in and upon which its rail-

way isto be constructed, and the time when such railway, or
a portion thereof, shall be constructed and ready for opera-_
tion, 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 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 subscribing
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 authorities may consent to the construction
and operation of such railway upon one or more of such
routes, or parts thereof ; and the commissioners shall have
power to change and readopt routes and plans for the con-
struction 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 construction or operation of the
railway, upon the routes and plans adopted, unless such
changes are made therein.

(As am’d by Laws 1892, ch. 676.)

The provision for compensation to the local authorities is added by the amend-
ment of 1892; also the provision allowing the commissioners to select two or more
routes, and giving them power to change and readopt routes after they have been
submitted to the local authorities.

L. 1875, ch. 606, §§5 and 6. (§6am’d by L. 1882, ch. 393.
The amended section did not apply to New York or
Westchester counties, L. 1882, ch. 393, §5; nor to
Kings county, L. 1886, ch. 551.)

Decisions UNDER L. 1875, CH. 606, § 5.

It is essential that the commissioners shall determine whether
the contemplated road shall be an underground or overground -
road, and a failure on their part to determine this question is
fatal. The distinguishing feature of the act is that the com-
ADOPTION OF PLans, Etc. 255

pany to be organized is not left at liberty to decide for them-
selves upon the plan of construction, but that subject was placed
under the exclusive control of the commissioners, in addition to
the exclusive power to locate the route or routes. As far as
reasonably practicable, the plans adopted by the commissioners
should disclose to what extent the streets are to be encroached
upon, and the property abutting thereon affected, and the means
-of transportation to be used. It should not be left to the com-
pany to select which of different specified routes it may or may
not complete, without any reference tothe interest of the public
and without the action of the company being subject to revision
or control. WV. Y. Cable Co.v. Mayor of N.Y., 10g4N. Y.,1. Matter
of Gilbert Elev. Ry. Co., 70 N. V., 374. In re N.Y. Cable Ry. Co., 36
Hun, 3955. As to the sufficiency of plans adopted by the com-
missioners, see Jz re Kings Co. Elev, Ry. Co., 112 N. Y., 47.

DECISIONS UNDER L, 1875, Cu. 606, § 6.

The intent of this act isto limit the corporation in respect
only to time during which it is possible for it to prosecute the
work, excluding the time when legal barriers exist to such pros-
ecution. Where, therefore, atime was specified within which
each of several different routes should be completed, but it was
provided that the time should begin to run from the date of ob-
taining the requisite consent of property owners and of the lo-
cal authorities, or from the date of the order of confirmation of
the report of commissioners; and further that time unavoidably
consumed by the pendency of legal proceedings or the interfer-
ence of public authorities, or the omission to open and grade.
streets, should not be deemed a part of the time limited.
Held, that this was a substantial compliance with the act. ™. Y.
Cable Co. v. The Mayor of New York, rog N. V., 4. See MV. Y. Cable
Co. us. Forty-second St., &¢., R. R. Co., N.Y. Daithi Reg., Oct. 3, 1884;
In re Suburban Rapid T: pianstl Co., 38 Hun, 553; Matter of Gilbert
Elev. R. R. Co.,70 N. Y., 374. Thetime during which, without
fault on their part, the company have no legal ability to com-
mence or carry on the work, may be excluded. Jn re Kings Co,
Elev. R. R. Co., 05 N. Y.,97.

A neglect of the commissioners to fix the time within which
certain routes might be completed gives the company no right
or franchise in those routes, but does not affect the incorpora-
tion of the company, the time within which certain other speci-
fied routes are to be completed being properly depig nates In
re Kings Co. Elev. R. R. Co., 105 N.Y., 97.
256 THE RatLroaD Law—Rapip TrRansIT RAILROADS.

§ 125. Appraisal of damages and deposit of
money as security.—The commissioners shall, within
one hundred and ten days after their organization, ascer-
tain 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 high-
ways, upon which it is proposed to construct and operate
such railway to be caused by the construction and opera-
tion thereof. For that purpose they shall view the several
parcelsof real property so bounded, and shall appraise sepa-
rately 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 -per-
sons 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 railway is to be con-
structed, 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 per-
son or party interested therein, and the aggregate sum of
the amounts so appraised and determined by them shall be
the aggregate pecuniary damage required to be ascertained
and determined as above provided. Nocorporation 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 ascertained
and determined by the commissioners to be the aggregate
pecuniary damage to such property within the city, or
within the 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
APPRAISAL OF DAMAGES AND DeposiT OF MONEY. 257

of money or securities herein required the bond of the cor-
poration, with two or more sureties, to 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 commissioners, 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 cor-
poration shall also, at the same time, deposit with such
trust company or with the county treasurer, as the com-
missioners 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 ot the supreme court, of the determination of three
commissioners in lieu thereof, and in the case of a corpora-
tion 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 arti-
cle, shall have made their report, then such corporation
shall be deemed not to have accepted the franchises
granted. Where the commissioners shall fix and deter-
mine different periods of time within which different sec-
tions of such railway shall be constructed and ready for
operation, they shall ascertain, determine and report sep-
arately 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 securi-
ties 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.
(As am’d by Laws 1892, ch. 676.)
Q
258 Tue Rattroap Law—Rapip TRANSIT RAILROADS.

The provison for a bond in lieu of a deposit was added \by the amendment of
1892.
L. 1875, ch. 606, § 17, and § § 42-44. (§ § 42-44 added by L.
1882, ch. 393; §§ 42-44 were not applicable to Kings, New York
or Westchester counties. L. 1882, ch. 593, §5, and L. 1886,ch. 551.)

ELEVATED RAILROADS—COMPENSATION TO ABUTTING OWNERS.

An injunction may be granted to prevent construction with-
out having condemned the interest of the abutting owner in the
land. Stroub v. Man. Ry. Co., 14 N.Y. Supp., 773. 15 N.Y. Supp,
135; 39 St. Rep. 378. The right of abutting owners to compen-
sation and their remedies for unlawful occupation and appropri-
ation of the easements of light, air and access are established by
thefollowingcases: Svoryv. NV. Y. Elevated R. R. Co.,90 N. Y., 122;
Lahr v. Met. El. Ry. Co., rog N. V., 268. It is immaterial whether
or not plaintiff owns any interest in the fee of the street.
Stevensv. NV. Y. £. R. R. Co, 8 N.Y. Supp., 313; 29 St. Rep., 361;
Abendroth v. Man. Ry, Co.. 122 N. Y., 1; Williams v. Brooklyn El. R.
R. Co. 126 .N. Y., 96. As to streets laid out under the Dutch
regime, see Kane v. V. Y. Elev. R. R. Co., 125 N. Y., 164.

tr. ACTIONS AT LAW.

In a common law action only such temporary damages as have
been sustained up to the time of the commencement of the ac-
tion may be recovered. ond v. Met. E. Ry. Co., 112 N. Y., 186;
Tallman v. Met. E. Ry. Co., 121 N. ¥., 119. Unless the parties
agree upon a different rule of damages, Zahr v. Met. E. Ry. Co,
rog N. Y., 270; Porter v. The Met. E. Ry. Co, 120 N. Y., 284. The
question is how much has the usable or rental value been
diminished. TZallmanv, Met. E. Ry. Co, 121 N. Y., 119; see Law-
rence v. Met. El. Ry. Co., 126 N. Y., 483; but where the road has
benefited the abutting property and increased its value, or
when the road has not prevented the natural increase in value,
there is no damage. Bohmv. Met. El. Ry. Co., 129 N.Y., 576; Odell v.
VY. E.R. R.Co., 130 N.Y., 690, Brush v. Man. Ry. Co., 17 N.Y. Supp.,
540; 44 St. Rep., 111; Sperb v. Met. El. Ry. Co., 61 Hun, 539, Steinmetz v.
Met. El. Ry. Co., 18 N.Y. Supp. 209. The plaintiff must stand or fall
where the title is put in issue, by the title he had at the time of
the commencement of the action. Dean v. Met. E. Ry. Co., 119 N.
Y.,540; see Hughes v. NV. Y. BE. R. R. Co., 130 N.Y., 14, Minton v. N.
Y. El. R. R. Co., 1390 N.Y, 332. While the jury may award in-
terest it is error to charge that they must do so. Moorev. N. Y
El. R. R. Co.,1726 NV. Y., 677. The abutting owners are entitled to.
CoMPENSATION TO ABUTTING OWNERS. 259

recover for consequential damages arising from the operation
of the road, such as the noise of the trains, &c. Kane v. WV. Y.
El. R. R. Co, 125 N. Y., 164; but see in the case of an equitable
action, American Bank Note Co.v. N. Y. £1. R. R. Co., 129 N.Y., 252;
Messenger v. Manhattan Ry. Co., 129 N. Y., 502. It affects rental
value and not fee value. Jd. Sperd v. Met. El. Ry. Co., 6r Hun,
539. The company is liable for an invasion of privacy of the
occupant of a building, where it has the effect to reduce the
rental value. Moore v. N. Y. E.R. R. Co, 130 N. Y., 527. No
damage can be allowed for injuries to plaintiff’s personal prop-
erty. American Bank Note Co.v. Met. El. Ry. Co., 63 Hun, 506. The
right to recover for past injury does not pass to a devisee.
Griswold v. Met. E. Ry. Co., 122 N. Y., 102. An award of damages
in condemnation proceedings and payment of same does not
affect the right to recover for past damages. Renwick v. N.Y.
El. R. R. Co, 15 N.Y. Supp, 149; 39 St. Rep., 381; Rumsey
v. N.V.& N. E. R. R. Co., 63 Hun, 200; Rev'd on other grounds,
133 NV. Y., 79; see In re South. Boul. R. R. Co, 17 N. Y.
Supp., 828; 43 St. Rep. 611, The easements can not be con-
sidered as property separate and distinct from the land to which
they are appurtenant, and the damages are those which the land
sustains because of the loss of the easements. In estimating
the damages the benefits from the railroad must be considered.
Newman v. Met. E. Ry. Co. 118 N. Y., 678; see as to actions in
equity, Bohm v. Met. El. Ry. Co., 129 N.Y., 576; Odell v..N. VE.
R. R. Co., 130 N. Y.,690. The existence of the peculiar benefit can-
not be presumed as matter of law. It must be proved; it is only an
element of damages. Kearney v. Met. Kil. Ky. Co, 129 N. Y., 76;
Herold v. Met. El. Ry. Co., 37 St. Rep., 896; 13 N. Y. Supp., 610; 129
NV. Y., 676. Damages to one piece may be offset by benefits to

another piece belonging to the same owner. Auchv. N.Y. El. R.
R.Co., 14 N. VY. Supp., 167.

2... ACTIONS IN EQUITY.

In an equitable action the plaintiff may be awarded damages
for past loss of rentals, and an injunction may be granted re-
straining the further operation of the road unless the defendant
pay acertain sum equal to the amount of depreciation in value
of the property, as for a permanent appropriation. Pond v. Met.
&, Ry. Co., 112 N.Y, 189, N.Y. Nat. E. Bh. v. Met. E. Ry. Co.,
108 N. Y., 660; Galway v. Met. El. Ry. Co., 128 N. Y., 132; Pap-
penheim v. Met. El. Ry. Co., 128 N. V., 436. The allowance of
damages is to be deemed a substitute for condemnation pro-
260 THE RartLtroapD LAaw—Rapip TRANSIT RAILROADS.

ceedings, and only such damages may be awarded as would be
given in condemnation proceedings. Am. Lk. Note Co.v. N. Y.
El. R. R. Co. 129 N. Y., 252; Bohm v. Met. El. Ry. Co., 129 N. V.,
576; but not past damages to plaintiff’s grantor, although as-
signed tohim. Siefke v. Man. Ry. Co., 74 N.Y. Supp., 763; 39 St.
Rep., 355; Sommer v. N.Y. El. R. R. Co., 60 Hun, 148; see Sperb v, Met.
El. Ry. Co., 16 N.Y. Supp., 392; 17 N.Y. Supp., 469; 61 Hun, 539.
The defendant is not entitled to have the question of past
damages passed upon by a jury. Lynch v. Met. El. Ry. Co., 129 N.
NV., 274; but see Libmann v. Man. Ry. Co., 59 Hun, 428; Sommer v.
N.Y. EL R. R. Co., 60 Hun, 148; Johnston v, Man. Ry. Co., gr St.
Rep., 682. The provision of Section 970 of the Code of Civil Pro-
cedure, as amended by Chapter 208 of the Laws of 1891, does not
apply to actions of a purely equitable nature, but merely widens
the right to a jury trial in those cases to which said section was
previously applicable. An order directing the framing of a
question for a jury trial reciting that the defendants were en-
titled, as a matter of right, to the same, was erroneous. Such
order is discretionary. Shepard v. Man. Ry. Co. 131 N. Y., 215.
The amendment of 1891 (above) is constitutional. Underhill »,
Man. Ry. Co., 18 N. Y. Supp., 43. See last case as to procedure.
Damages for diminution of rental value during the construc-
tion of theroadarerecoverable. Walliams v. Brooklyn El. R. R.Co.,
126 N.Y., 96. The ten year statute of limitations is not ap-
plicable where there is a continuing trespass. Galway v. Met.
El. Ry. Co., 128 N. Y., 732. As toadverse possession by a rairoad,
see Am. Bk. Note Co.v. N. Y. El. R. R. Co, 129 N.Y,
252. Delay and acquiescence do not waive rights. Brush
v. Man. Ry. Co., 26 Abb. N.C. 73; 13.N. Y. Supp. 908 Where land
was purchased and buildings erected after construction of the
railroad, see Pappenheim v. Met. E. Ry. Co., 128 N. Y., 436; Sterryv.
N.Y. E.R. R. Co., 129 N. Y., 619; Am. Bk. Note Co. v. N.Y. El.
R. Rk. Co, 13 N.Y. Supp, 626; 37 St. Rep. 885; 129 N.Y,
252; Werfelmann v. Man. Ry. Co, 11 N. VY. Supp, 66; 32 St.
kep., 682; 95 St. Rep., 936; 31 N. E., 639, Kornv. N.Y. Elev. R.
R. Co, 15 N.Y. Supp., 10; 39 St. Rep., 322. As to proper parties
in an equitable action, see Shepard v. Man, Ry. Co., 117 N. Y., 442.
Executors as parties, Kernochan v. N.Y. El. R. R. Co., 128 N.Y,
559. Executors, ina case where the will is afterwards set aside, see
Mitchell v. Met. El. Ry. Co., 31 N. E., 260; 43 St. Rep., 476; trus.
tees as parties, Mortimer v. Met. El. Ry. Co., 129 N. Y., 81, the as-
sent and concurrence of life tenants may be required, Reedv. Met.
CoMPENSATION TO ABUTTING OwNERS.' 261

Fl. Ry. Co, 18 N.Y. Supp., 811; 45 St. Rep. 330. A tenant for life.
cannot maintain an action without making those interested in
the fee parties. Bach v.V.Y. El. R. R. Co., 60 Hun, 128; a remain-
der-man may maintain the action for the damages to the fee,
Thompson v. Man. ky. Co., 130 N. Y., 360. The question of non-
‘ownership of the fee of the street by the landowner cannot be
raised for the first time on appeal. Drucker v. Man. Ry. Co.,
706 N. Y., 157. Pending an equity action the plaintiff conveyed
the property, reserving in the deed all damages to the ease-
ments, held, that he was still entitled to maintain it. McGean v.
Met. El. ky. Co., 133 N.'Y., 609. The defendant may be concluded
from questioning plaintiff’s title, by condemnation proceedings
set up in the answer, and instituted by it against the plain-
tiff. Hughes v. N. Y. E.R. R. Co, 130 N. Y., 14. An
awning running from plaintiff’s building and resting on the
‘timbers of an elevated railroad is no abandonment of the ease-
ments of light and air. Mattlagev. N.Y. El. R. R. Co, 11 N.Y.
Supp., 482; 33 St. Rep. 918; 44 St. Rep. 28. Counsel fees
in a former action as]damages, see la; gg St. Rep. 28.
As to the proper measure of damages based on the rental
value as affected by the presence of the railroad, see Drucker v.
Man. Ry. Co., 106 N. Y., 157; McGean v. Man. Ry. Co., 117 N. Y.,
219; Newman v. The Met. E&Ry. Co., 118 N. Y., 618; Bohmv. Met.
El. Ry. Co., 129 N. Y., 576. But where the plaintiff is a corpora-
tion in occupation of its own premises, see Am. Bank Note Co. v. NV.
Y. Elev. R. R. Co., 13.N. Y. Supp., 626; 37 St. Rep., 885; 129 N. Y., 252.
It seems that a question calling for the opinion of a witness as to
what would have been a fair rental value of the property if the
railroad had not been built, is incompetent. McGean v. Man. Ry.
Co., 117 NV. Y., 219; Crawford v. Met. E. Ry. Co.,120 N. Y., 624;
Roberts v. N. Y. E.R. R. Co. 128 N. Y., 455; Doyle v. Man. Ry. Co.,
128 N, Y., 488; Kernochanv. N. V. E. R. R. Co., 130 N. Y., 651; but
see as to form of objection, Jefferson v. NV. Y. El. R. R. Co., 132 NV.
V., 483; see also Gray v. Man. Ry, Co., 128 N. V., 499, where the
question related to what uses the property might have been put
to, the general objection of incompetency is not enough, it
should be that it is inadmissible. <Kernochan v. N.Y. El. R. R.
Co., 128. N. V., 559; or not the proper rule of damages, see Woolsey v.
N.Y. El. R. R. Co, 390 N. LE., 387; 43 St. Rep., 474; Mitchell v. Met.
El. Ry. Co., 1372 N. Y., 552. Evidence of increase or decrease of
rents inthe immediate vicinity is competent. Not so of in-
-crease or decrease of value of the property as an investment
262 THe RartroaD Law—Rapip TRANSIT RAILROADS.

apart from the effect of the railroad upon the property. Sher-
wood v. Met. El. Ry. Co., 36 St. Rep., 195; 12 N.Y. Supp., 852; aff'd
128 N. Y., 624. Evidence that property on the side streets had
increased in value to a greater proportional extent than lands
on the avenue upon which the railroad was located, is not suff-
cient upon which to base a finding of damages. Bohm v. Met.
El. R.R.Co., 129 N. Y., 576: But such evidence is admissible in
behalf of the plaintiff, and may be considered in connection
with other evidence upon the question of damages. Becker v,
Met. El. Ry. Co., 131 N.Y., 509, Storck v. Met. El. Ry. Co., 131 N. Y.,
514. A request by the defendant to charge that since the year
in which the road was constructed there had been a general
rise in the value of the real estate situated on the street, and
that “this increase in value is largely attributable to the ex-
istence of the defendant’s railroad,” was properly refused. If
the same had been established by uncontradicted evidence,
such facts were immaterial if the evidence in the case was suffi-
cient to warrant a finding of damages. Storckv. Met. El. Ry. Co,
(above.) If the evidence justifies the inference that al-
though the rental value of the abutting property has enhanced
since the construction of the railroad, yet, that the increase has
not been as great as it would have been if the railroad had not
been constructed, compensation may be awarded and the
amount fixed. Storck v, Met. El. Ry. Co. 7131 N. Y., 514; Peyton v.
N.Y. El. R. R. Co. 62 Hun, 536. As to loss of business, see
Drucker v. Man. Ry. Co. 106 N. Y., 1637; but the admission of
evidence that generally the railroad is not a benefit to the
business of the street is harmless error. Saxton v. N. ¥. El.
R. R. Co, 19 N.Y. Supp., 746; 44 St. Rep., 832. See as to proper
limits of expert evidence, Roberts v. V. Y. EB. R. R. Co., 128 N.
Y., 455; Doyle v. Man. ky. Co, 128 N.Y., 488. The objection
should be as indicated in Mortimer.v. Met. El. Ry. Co., 129 N. Y.,
éz. An agreed rent, while not conclusive, is admissible to show
rental value, so a lease, the stipulated rent being paid. Green-
woodv. Man. Ry. Co., 19 N.Y. Supp., 702; 46 St. Rep., 908. Smokeand
gases, ashes and cinders, affect and impair the easement ot air.
The structure itself and the passage of cars lessen the
easement of light. The drippings of oil and water, and
possibly the frequent columns interfere with convenience
of access. These are elements of damage even though neces-
sary concomitants of the construction and operation of the
toad, Drucker v. Man. Ry. Co., 106 N. Y., 164; but see as to
noise, Am. Bk. Note Co.v. N. V. E.R. R. Co., 129 N. Y., 252; Mes-
COMPENSATION TO ABUTTING OWNERS. 263

senger v. Manhattan Ry. Co., 129, NV. Y.,502; as to possibility of fire,
see Mundorf v. N.Y. E. RR. Co., 62 Hun, 465. The lessor of prem-
ises is the proper party to maintain the action where the same
were leased after the railroad isconstructed. Kernochanv. NV. Y.
El. R. R. Co., 128 N. V., 559; Hinev. N. Y. El. R. R. Co, 128 N. Y.,
S713 Mortimer a, Met. E. Ry. Co., 129 N. Y., 81; Sterry v. N.Y. El.
R. R. Co., 129 N. Y., 619; but the lessee, if leased before construc-
tion, Koapieg v. Mel. El. Ry. Co., 129 N. Y.,76. The effect of a
lease on the right to an ieiageun was also considered in Of
tinger v. NV. Y. Elev. Ry. Co., 15 N.Y. Supp., 18 and 224; 39 St. Rep.,
339; Cornell v. N.Y. El. R. R.Co., 13 N.Y. Supp. 511; 37 St. Rep.,
624; Johnston v. Man. Ry. Co., 14 N.Y. Supp., 897° 39 St. Rep., 227;
Mulford v. Met. El. Ry. Co., 12 N. Y. Supp., 929; 36 St. Rep.,
51, Conkling v. Man. Ry Co., 12 N. Y., Supp., 846; 36 St. Rep., 124;
where the property was leased after the action was brought, see
Ottinger v. N.Y. El. R. R. Co. 39 St. Rep., 339; 15 N.Y. Supp., 18;
Suarez v. Man. Ry. Co. 15 N.Y. Supp., 222; 39 St. Rep , 549; Alger
v. N.Y. E.R. R. Co, 15 N.Y. Supp., 960; 40 St. Rep., 229. What
may be enjoined, and the effects of a finding of damages for the
appropriation of the easements, upon subsequent trespasses, is
considered in Suarez v. Man. Ry. Co, 15 N. Y. Supp., 222; 39 St.
Rep., 549. The fee damages should not exceed the compensation
to which the lot owner would be entitled were the proceeding
one forcondemnation. Am. Bk. Note Co.v. N. Y.£. R. R. Co., 129
N.Y., 252. The shutting out of light by the erection of a
station, not in front of plaintiff’s premises, is an element of dam-
ages, (The platform extended across the front of plaintiff's
premises.) Kearney v. Met. El. Ry. Co., 37 St. Rep., 892; 13 N.Y,
Supp., 608; aff'd 129 N. V.,76. Where there is amortgage on the
property, and the defendant asks to have provision made for a
release of same on payment of the fee damages, it is error to
deny it. Woolseyv. NM. Y. E.R. R. Co, 30 N. E., 3875 43 St, Rep.,
474; 31 N.E., 891s 47 St. Rep., 633; see Reed v. Met. El. ky. Co.,
18 N.Y. Supp. S11; 45 St. Rep. 330. Damages for the ease-
ments appropriated may be recovered, although the rental
value has not decreased. The proximity of a station can not
be assumed as an advantage for which the railroad should be
allowed. Sloanv. NV. VY. El. R. R. Co.,637 Hun, 300. Loss of rental
not allowed during time building was being renovated and recon-
structed. Martin v. Man. Ry. Co., 63 Hun, 350. Offersto purchase
property before erection of elevated railroad, are not competent
evidence of value. Hine v. NV. Y. El. R. R. Co, 132 N. Y., 477.
264 THE Rartroap Law—Rapip TRANSIT RAILROADS.

§ 126. Shall prepare certificate of incorpora-
tion; proviso as to forfeiture.—The commissioners
shall prepare an appropriate certificate of incorporation 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 com-
pleted within the time and upon the conditions therein
provided; and the commissioners shall thereupon and
within one hundred and twenty days after their organiza-
tion cause a suitable book of subscription to the capital
stock of such 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 cor-
poration with respect to that portion of its route which
such corporation 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 cer-
tificate of incorporation, or as to which the time for com-
pletion shall not have expired, notwithstanding anything
to the contrary in its certificate of incorporation.

L. 1875; ch. 606, §7. (Am’d by L. 1882, ch. 393. The section
as amended did not apply to New York or Westchester
counties, L. 1882, ch. 393, sec. 5, nor to Kings Co., L. 1886,
ch. 551.)

DECISIONS UNDER L. 1875, Cu. 606, § 7.

In the counties of New York, (Kings) and Westchester a rapid
transit company is obliged to obligate itself to construct a/ the
roads mentioned in its articles of association under the penalty
ofa transfer of all its franchises to the supervisors of the county.
Articles of association of a New York company instead of pro-
viding for the release and forfeiture to the supervisors of the
county of the rights and franchises acquired by the corporation

\
ORGANIZATION. 265

in case the proposed railways were not completed in time, pro-
vided that in case the several portions of such railways were
not completed each within the time limited, the rights and
franchises “for and as to any portion of such railway or rail-
ways not so completed” shall be released and forfeited. Held,
that this was a material departure from the requirements of the
act. The forfeiture is not declared by any provision of law.
The requirement is that the articles of association shall contain
a provision to that effect and that provision can not be disre-
garded. WV. VY. Cable Co.v. The Mayor, &c., of New York, 104 N. Y.,1.
Non-performance of the condition as to completion of the road
within the time limited by the commissioners does not of itself
work a forfeiture. Jn re Kings Co. Elev. R. R. Co., 105 N. Y., 97.
For an example of a failure of the commissioners to comply
with the provisions of this section in not providing for a release
and forfeiture to the supervisors of the county of all the rights
and franchises of the company in case of failure to complete
the railways in the proposed time, see Jz re WV. V. Cable Ry. Co.,
og N. Y., 32. Only a single corporation can be formed by the
commissioners to operate all the railways whose construction
they may authorize. People ex rel. Stebbins v. Hoe, 20 Hun, 26.

$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 by
the commissioners to be constructed, shall have been sub-
scribed by not less than fifteen persons, and the fixed per-
centage 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 subcribers 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 number and amount of such subscribers may
elect persons, of a number to be theretofore determined by
the commissioners not less than nine, who shall be direc-
tors for one year of the corporation formed for the pur-
poses of constructing and operating such railway.

L. 1875, ch. 606, § 8.

§ 128. Commissioners to deliver certificate ;
affidavit of directors.—Within ten days after the elec-
tion of such directors the commissioners shall deliver to
266 THE RarILroap Law—RapripD TRANSIT RAILROADS.

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 five days after the reception by them of such certifi-
cates, three of the directors so elected shall make affidavit
in duplicate that the full amount of stock has been sub-
scribed in good faith to construct, maintain and operate
the railway or railways in such certificate of incorporation
mentioned, and such directors shall file such affidavits and
certificate in the office of the secretary of state, and a du-
plicate of the same in the office of the clerk of the county
wherein such railway shall be located; and thereupon the
persons who have so subscribed such certificate of incorpo-
ration and all persons who shall become stockholders in
such corporation shall be a corporation by the name spect-
fied in such certificate, and be subject to the duties, liabili-
ties and restrictions of such corporations.

L. 1875, ch. 606, § 9.

The rights acquired by such a corporation in the route se-
lected, are vested and indefeasible and alien is impressed on
the lands which ripens into a title through purchase or con-
demnation. Suburban Rapid Transit R. R. Co.v. The Mayor, &¢., of
New York, 128 N. Y., 510.

§$ 129. Powers.—Every such corporation shall have
power, in addition to the powers conferred by the General
and Stock Corporation Laws and by subdivisions 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. Toenter upon and underneath the several streets, ave-
nues and public places and lands designated by the com-
missioners, 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 railway 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
Powers. 267
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 surface of the 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 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
department or authority shall be avoided; and the use of
the streets, avenues, places and lands designated by the
commissioners and the right of way through the same for
the purpose of a railway, as herein authorized, shall be con-
sidered and is hereby declared to be a public use, consist-
ert 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
occcupancy 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 or in part upon the surface of any street or
highway under the provisions of this article.

L. 1875, ch. 606, § 26, subs. 4 and 5.
L. 1884, ch. 252, § 16

. Note.—The reference to section 8 apparently should have
been to section 4.

A change from a surface steam railroad to an elevated rail-
way was considered in Matter of Atlantic Ave. El. R. R. Co., 35 St.
Rep., 974; 12 N.Y. Supp, 228. The authority to construct and
maintain stations under the Rapid Transit Act was considered
in Porth v. Man. Ry, Co., 58 Supr., 366; aff’ din Ct. of Ap., Oct. 2, 1892.
268 THe Raritroap Law—Rapip TRANSIT RAILROADS.

DECcIsION UNDER L. 1884, Cu. 252, § 16.

This section only prohibits the construction of roads by com-
panies thereafter organized under the Rapid Transit Act, and
was not intended to prohibit any company, theretofore organ-
ized and then existing, from exercising the corporate right and
authority, which it had acquired, to proceed with the construc-
tion of its road in accordance with its articles of association
which had been framed by the commissioners, and which con-
stituted its charter, on complying with the conditions as to con-
sents. A corporation having its articles of association framed,
its stock subscribed and its capital in part paid in, having
elected a board of directors and filed the certificate of incorpo-
ration, is an existing company not affected by this provision. JV.
Y. Cable Co. v. Mayor of N. Y., 104 N. Y., 1, 15, 77.

§ 130. Crossing of horse railroad track.—Whep-
ever the route selected by the commissioners for the con-
struction of such railway shall intersect, cross or coincide
with anv horse railway track occupying the surface of the
street or avenues, such railway corporation is hereby au-
thorized 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 pre-
vious to the construction of such railroad. All such re-
movals and restorations shall be made at the proper cost
and charges of such corporation, but no authority is herein
given to any such corporation to use the tracks of any
horse railway.

L. 1875, ch. 606, § 35.

$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 rail-
way, and it has not forfeited its charter or failed to com-
ply with the provisions thereof, requiring the construction
WuereE RouTE CoINncIDES WITH ANOTHER ROUTE. 269

of a road or roads within the time therein prescribed, such
corporation shall have the like power to construct and ope-
rate such railway upon the fulfillment of the like require-
ments and conditions imposed by the commissioners as a
corporation specially formed under this article, and the
commissioners may fix and determine the route or routes
by which any elevated steam railway now in actual opera-
tion may connect with 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 to 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 im-
posed by this article, it shall possess all the powers con-
ferred by section 129 of this article, and when any con-
necting route or routes shall be so designated, such ele-
vated 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.
(As Am'd by Laws 1892, ch. 676.)
L. 1875, ch. 606, § 36.

DeEcIsIONS UNDER L. 1875, Cu. 606, § 36.

The provision of this section allowing existing corporations,
whose route or routes coincide with those determined upon by
the commissioners, to construct and operate its railway thereon
upon fulfillment of the requirements of the act is not violative
of the constitution, art. 3, sec. 18. It only restricted or regu-
lated an existing right to lay down railroad tracks. It is not
necessary that the routes designated by the commissioners
should coincide with all the routes of an existing corporation.

If any of the routes coincide the corporation may build thereon.

The authority is coéxtensive with the coincidence of the routes.
In re Gilbert Elevated Ry. Co., 70 N. V., 361; Inve N. Y. Elevated R.
R. Co., 70 N. Y., 327.. The constitutional condition of consent or
certificate incorporated into the fourth section is not a “re-
quirement” or “condition” imposed by the commissioners, and
such condition has no application to a corporation possessing
270 THE RaILroapD Law—Rapip TRANSIT RAILROADS.

the right to lay down railroad tracks on a designated route by
acharter obtained previous to the passage of this act. /a re
Gilbert El. Ry. Co.,70 N. Y., 361. There must be a coincidence
of route. This section does not of itself amend or modify the
charter of a prior organized company. It only gives the com-
pany power to proceed under that act. If it chooses not to pro-
ceed, the act has no application. The company seeking to avail
itself of this provision must be a valid subsisting corporation,
with the right and power to build its road when it seeks to avail
itself of the act. Brooklyn Steam Transit Co. v. City of Brooklyn, 78

N.Y., 524.

$132. Commissioners to transfer plans, etc.—
Within one month after such corporation shall have been
formed and organized in the manner hereinbefore pro-
vided, 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 collected 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.

L. 1875, ch. 606, § 37.

§ 133. Commissioners to file report; confirma-
tion thereof.—The commissioners shall within one hun-
dred and forty days after their appointment, make a re-
port to a special term of the supreme court of the depart-
ment 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 ofthe person or persons appearing by the cer-
tificate of the clerk or register of the county, to have the
Report oF CoMMISSIONERS. 271

title thereto from the records in his office, and a specific
description of each parcel of property with reasonable
certainty. The testimony, if ‘any, taken by the commis-
sioners as to the amount of such damage, shall accompany
their report. Within thirty days after filing and record-
ing its certificate of incorporation, the corporation author-
ized 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 take the motion; and thereafter the proceedings
shall be conducted in the manner prescribed in the con-
demnation law. Before constructing and operating its rail-
way infront of any real property bounded upon any street,
avenue or public place wherein the corporation is
authorized by the certificate and report of the com-
missioners to construct and operate its road, such cor-
poration 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 ascer-
tained, 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 provisions 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 damages and costs if any. If a bond
shall have been executed in lieu of such deposit, the court
may order the sureties in such bond to pay the damages so
fixed and ascertained, and in default thereof may cause
them to be proceeded against and punished as for a con-
tempt of court,

(As am’d by Laws 1892, ch. 676.)
The last sentence is new.
L. 1875, ch. 606, §§21, and 45-49. (§§45-49 added by L,
1882, ch. 393. §§45-49 were not applicable to New

York, Kings or Westchester counties. L. 1882, ch. 393,
§5, and L. 1886, ch. 551.)
272 THE Raitroap Law—Rapip Transit RAILROADS.

§ 134. Pay of commissioners.—Each of the com.
missioners shall be paid for his services at the rate of ten
dollars per day for each day of actual service as
such commissioner, and all expenses necessarily in-
curred 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 com-
missioners shall receive no salary, and shall cause to be re-
turned to the subscribers for such stock the amounts paid
in by them, after deducting therefrom the necessary ex-
penses incurred by the commissioners, but the time, if any,
unavoidably consumed by the pendency of legal proceed-
ings shall not be deemed a part of any period of time lim-
ited by this article.

L. 1875, ch. 606, § 38.

§ 135. Quorum; term of office; removal; va-
cancies in board of commissioners.—A majority of
the members of any board of commissioners appointed
under this article shall be a quorum for the transaction of
any business or the performance of any duty or function,
or the exercise of any power, conferred or enjoined upon
them. Any commissioner may be removed for cause at
any time by the power appointing him, but no commis-
sioner shall be removed without due notice and an oppor-
tunity 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, resigna-
tion or removal from office of any commissioner the va-
cancy 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 resignation, and a certificate
of every such appointment shall be filed as hereinbefore re-
quired. Except as otherwise provided by law, the terms
of office of the commissioners shall determine and expire
with the performance of their functions as herein above
prescribed.

L. 1875, ch. 606, § 39. (Am’d by L. 1888, ch. 514, § 2.)
ABANDONMENT OR CHANGE OF ROUTE. 273

§ 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, deter-
mined and located for such railway by a board of commis-
sioners, may at any time apply for authority to abandon
any portion of the route upon which the railway shall not
have been theretofore constructed 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 corpora-
tion 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 any 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 commis-
sioners may be appointed pursuant to such an application
as hereinafter provided, who shall be residents of the
county or city and who shall have full power as herein pro-
vided. 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 application, indorse thereon their
or his approval and direction that it may be presented to
the supreme court in the manner provided in section 120
of this article, and such court may thereupon appoint such
commissioners. 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 sec-
tion 121 of this article ; and if any one so appointed shalk
not comply with this requirement, he shall be deemed to.
have declined to accept such appointment, and to have-
made a vacancy which the appointing power shall fill by-
another appointment as herin* provided. Within fifteen;

* So in the original.
R
274. THE RatLroap LAaw—Rapip TRansiT RAILROADS.

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 author-
ity conferred by law upon commissioners appointed, or
authorized to be appointed under this article. Before pro-
ceeding 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 authorized to be
abandoned, or should be changed and relocated with or
without extension or extensions. If the board shall deter-
mine 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 application. If the
board shall determine that an abandonment of any portion
of the route should be allowed, or that any change in or
extension 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 ex-
tension of the remainder of the route or of any part there-
of, 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 suc-
cessor thereof shall thereafter have any authority, by rea-
son of any thing 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
toute so changed, shall be reconstructed and ready for ope-
ABANDONMENT OR CHANGE OF ROUTE. 275
ration. If the railway on any portion of the route not by
the board changed or allowed to be abandoned, shall not
have been theretofore constructed and made ready for opera-
tion, the board may extend, and fix and determine anew
the time within which such railway shall be completed, but
such extension of tiine 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 por-
tion 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 re-
port in writing in accordance with the determination so
amade, 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 corporation 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 respect 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 constructed 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 com-
missioners heretofore appointed, to be to the mayor, alder-
men 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 county 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
276 THE Raitroap Law—Rapip TRANSIT RAILROADS.

location of each and all the routes, with or without the ex-
tension or extensions, as fixed, determined 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 tobe 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 office of the clerk of the
county wherein such railway shall be located; and there-
upon the corporation making such application, its succes-
sors or assigns, is and shall be authorized to construct,
maintain and operate a steam railway for the transporta-
tion 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 highway 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 con-
sent of the property owners. Such corporation is and the
successors and assigns thereof shall be authorized to main-
tain and operate all the railroads and the appurtenances
thereof by it or them theretofore constructed upon any por-
tion 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 de-
termined anew, and thereafter to maintain and operate, the
railway and the appurtenances, upon so much of the route
or routes theretofore fixed, determined and located as shall
not have been so authorized and required to be abandoned,
and with the same rights and effect, in all respects, as if
such extended period of time had been originally fixed and
’
ABANDONMENT OF CHANGE OF Route. 277

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 condi-
tions 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 ap-
ply to the railway herein authorized to be constructed and
operated upon the route or routes as so changed, fixed,
determined and located, 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 deter-
mine the aggregate pecuniary damages arising from
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 prop-
erty 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 report required by section 133, and thereupon
the same proceedings shall be had as are provided for in
such last named section. Each commissioner shall be paid
for his services at the rate of ten dollars per day for each
‘day of actual services as such commissioner, and all reason-
able expenses incurred by him in or about any of the mat-
ters referred to such board, to be paid by the corporation
making the application 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 arailway 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 Harlem river, or where
278 THE RarLtroap Law—Rapip TRANSIT RAILROADS.

a railway might not by law be constructed, or was not by
law authorized to be bya board of commissioners located
on the 5th day of June, 1888.

(As am’d by Laws 1892, ch. 676.)
L. 1875, ch. 606, § 39. (Am’d by L. 1888, ch. 514, § 2.)
L. 1888, ch. 514, § 3.

See L. 1891, ch. 294.

§$ 137. Increased deposit, when and how re-
quired.—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 com-
pany with whom they may be deposited, fall below their -
actual value at the time of deposit, the county treasurer or
trust company shall call upon such railway corporation to
substitute therefor other securities equivalent at their par
or market value to the amount in lieu of which the securi-
ties 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 securities first above referred to were deposited.

L. 1875, ch. 606, § 50. (Added by L. 1883, ch. 393. Not ap-
plicable to New York, Kings or Westchester counties.
L. 1882, ch. 393, § 5, and L. 1886, ch. 551.)

§ 138. Trains to come to full stop, etc.—All
trains upon elevated railroads shall come to a full stop
before 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 man-
ifested his or her intention to so depart by moving toward
or upon the platform of any car; nor until every passenger
upon the platform or station at which such train has stopped,
and desiring to board or enter such cars, shali have actually
boarded or entered the same, but no person shall be _per-
mitted to enter or board any train after due notice from an
authorized employe of such corporation that such train is
full and that no more passengers can be then received.

L. 1881, ch. 399, § 1.
Gates—PENALTY FOR VIOLATION OF THIS ARTICLE. 279

DECISIONS UNDER L. 1881, Cu. 399, § 1.

There is nothing in the statute which regulates the time when
the guard should shut the gate, or the contingency upon which
it should be shut. Lee v. Man. Ry. Co. 53 Supr. Ct., 260; see Card
v. Manhattan Ry. Co., 103 N. V.; 670; Solomon v. Man. Ry. Co., T0Z
NV. Y., 437; McQuade v. Man. Ry. Co., 53 N.Y. Supr., gt.

§ 139. Gates.—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 pre-
vent their swinging and obstructing passengers in their
egress from or ingress to such cars; and every such gate
shall be kept closed while the car is in motion; and when
the car has stopped and a gate has been opened, the car
shall not start until such gate is again firmly closed.

L. 1881, ch. 399, § 2.

$ 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 corporation, 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 hundred
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 pro-
ceeding is had, at such time, as the board of supervisors or
board of aldermen in any such county shall direct. Noth-
_ ing in this section shall relieve elevated railroad corporations
from any liability under which they may now be held by
existing laws for damages to persons or property.

(As am’d by Laws 1892, ch. 676.)

The word ‘‘ persons” inserted in the last sentence.

L. 1881, ch. 399, § § 3 and 4.
280 THE Raitroap Law—RapipD TRANSIT RAILROADS,

$ 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 hundred and thirty-nine and one hundred and forty to
be printed conspicuously and. posted in the depots or sta-
tions and in each car belonging to them.

L. 1881, ch. 399, § 5.

$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 oper-
‘ating an elevated railroad shall be deemed to have been
duly incorporated notwithstanding any failure on the part
of commissioners to insert in its articles of association pro-
visions complying with statutory requirements relative to
such articles.

(Added by Laws 1892, ch. 676.)
CHAPTER XI.

THE RAILROAD LAW—THE BOARD OF RAILROAD

COMMISSIONERS.
ARTICLE VI.

THE Boarp or RaiLtRoap COMMISSIONERS.

SECTION 150.

151.
152.

193-

154.

155.

156.

157.
158.

159.
160.
161.
162.

163.

164.

165.

166,
167.
168.

169.

170.
171.

Appointment and term of office of railroad com-
missioners.

Suspension from office.

Secretary and marshal of board.

Additional officers; their duties.

Oath of office; eligibility of officers of board.

Principal office and meetings of board.

Quorum of board.

General powers and duties of board.

Reports of railroad corporations.

Investigation of accidents.

Recommendation of board where law has been
violated.

Recommendations of board when repairs or other
changes are necessary.

Legal effect of recommendation and action of the
board.

Corporation must furnish necessary information.

Attendance of witnesses and their fees.

Fees to be charged and collected by the board.

Annual report of board. .

Certified copies of papers filed to be evidence.

Acts prohibited.

Salaries and expenses of members and officers of
the board.

Total annual expense to be borne by railroads.

Application of this article.

§ 150. Appointment and term of office of rail-
road commissioners.—There shall continue to be a
board of railroad commissioners, consisting of three com-
petent persons, one of whom shall be experienced in rail-
road business, appointed by the governor, by and with the
282 THe RariLtroap LAW—THE RaILROAD COMMISSION.

advice and consent of the senate, each of whom shall hold
office for the term of five years, and until his successor
shall have been appointed and shall have qualified. A
commissioner shall in like manner be appointed upon the
expiration of the term of any commissioner ; and when any
vacancy shall occur in the office of any commissioner, a
commissioner shall in like manner be appointed for the re-
sidue of the term. If the senate shall not be in session
when the vacancy occurs, the governor shall appoint a
commissioner to fill the vacancy, subject to the approval of
the senate when convened.

L. 1882, ch. 353, § 1.

§ 151. Suspension from office.—Any commissioner
may be suspended from office by the governor upon writ-
ten charges preferred. The governor shall report such
suspension and the reasons therefor to the senate at the
beginning of the next ensuing session, and if a majority of
the senate shall approve the action of the governor, such
commissioner shall be removed from office and his office
become vacant.

L. 1882, ch. 353, § 1.

§ 152. Secretary and marshal of board.—The
board shall have a secretary and a marshal who shall be
appointed by it and serve during its pleasure. The secre-
tary shall keep a fulland faithful record of the proceed-
ings of the board, and be the custodian of its records, and
file and preserve at its general office all books, maps, doc-
uments and papers intrusted to his care, and be responsi-
ble to the board for the same. Under the direction of the
board he shall be its chief executive officer, shall have gen-
eral charge of its office, superintend its clerical business,
conduct its correspondence, be the medium of its decisions,
recommendations, orders and bequests, prepare for service
such papers and notices as may be required of him by the
commissioners, and perform such other duties as the board
may prescribe, and he shall have power to administer oaths.
in all cases pertaining to the duties of his office. He shall
have the power to designate from time to time one of the
clerks appointed by the board to act as assistant secretary
OFFICERS OF BoarpD; THEIR DUTIES. 283.

during his absence from the county of Albany, and the
clerk so designated for the time designated shall within
the county of Albany only, possess the powers conferred.
by this section upon the secretary of the board.

(As am’d by L. 1892, ch. 534.)
. he provision for an assistant secretary is new.

L. 1882, ch. 353, § 1. =
L. 1884, ch. 441, § 1. (Am’d by L. 1886, ch. 509.)

§ 153. Additional officers; their duties.—The-
board may also appoint, to serve during its pleasure, the
following officers or any of them: An accountant, who-
shall be thoroughly skilled in railroad accounting, and who-
shall, under the direction of the board, make examinations.
of the books and accounts of railroad and other corpora-
tions, and supervise the quarterly and annual reports made
by the railroad corporations to the board, and collect and
compile railroad statistics, and perform such other duties.
as the board may prescribe. An inspector, who shall be a
civil engineer, skilled in railroad affairs, who shall make
such inspections of railroads and other matters relating”
thereto, as directed by the board, and report to it. |

Such additional clerical force as may be necessary for
‘the transaction of its business.

The board may also employ engineers, accountants and
other experts, whose services they may deem to be of tem-
porary importance in conducting any investigation author-
ized by law. i

(As am’d by L. 1892, ch. 534.)
L. 1884, ch. 441, §§ 2, 3 and 4.
L. 1882, ch. 353, § 12.

§ 154. Oath of office; eligibility of officers of
board.—Each commissioner, and every person appointed
to office by the board, shall, before entering upon the du-
ties of his office, take and subscribe the constitutional oath
of office. No person shall be appointed to or hold the
office of commissioner or be appointed by the board to,.
or hold any office, place or position under it who holds any’
official relation to any railroad corporation, or owns stock.
284 Tue Rattroap Law—THueE RalLroaD ComMISSION.

or bonds therein, or who is in any manner pecuniarily in-.
terested in any firm or corporation having business rela-
tions with any such corporation.

L. 1882, ch. 353, §1.

§ 155. Principal office and meetings of board.
—The principal office of the board shall be at the city -of
Albany, in rooms designated by the capitol commissioners,
and it may have a branch office at the city of New York,
and one at the city of Buffalo; and the board, or a quorum
thereof, shall meet at least once a month during the year
at the office in Albany. The board shall have an official
seal, to be prepared by the secretary of state in accordance
with law, and its offices shall be supplied with necessary
postage, stationery, office furniture and appliances, to be
paid for as other expenses authorized by this article, and
it shall have prepared for it by the state the necessary
books, maps and statistics, incidentally necessary for the
discharge of its duties.

L. 1882, ch. 353, § 2.
L. 1884, ch. 421, § 2.

$156. Quorum of board.—Two of the commission-
ers shall constitute a quorum for the transaction of any
business, or the performance of any duty of the board and
may hold meetings thereof at any time or place within
the state. All examinations or investigations made by
the board may be held and taken by and before any one of
the commissioners or the secretary of the board, by the
order of the board, and the proceedings and decisions of
such single commissioner or secretary, shall be deemed to
be the proceedings and decisions of the board, when ap-
proved and confirmed by it.

(As am’d by Laws 1892, ch. 534.)

The provision allowing the secretary to hold and take examinations and inves-
‘tigations is added by the amendment of 1892.

L. 1882, ch. 353, § 3.

§ 157. General powers and duties of board.—
‘The board shall have power to administer oaths in all
matters relating to its duties, so far as necessary to enable
Powers anp Duties oF Boarp. 285,

it to discharge such duties, shall have general supervision
of all railroads and shall examine the same and keep in-
formed as to their condition, and the manner in which
they are operated for the security and accommodation of
the public and their compliance with the provisions of
their charters and of law. The commissioners or either of
‘them in the performance of their official duties may enter
and remain during business hours in the cars, offices and
depots, and upon the railroads of any railroad corporation
within the state, or doing business therein; and may ex-
amine the books and affairs of any such corporation and
and compel the production of books and papers or copies
thereof, and the board may cause to be subpoenaed wit-
nesses, and if a person duly subpoened fails to obey such
subpoena without reasonable cause, or shall without such
cause refuse to be examined, or to answer a legal or perti-
nent question, or to produce a book or paper which he is
directed by subpoena to bring, or to subscribe his deposi-
tion after it has been correctly reduced to writing, the
‘board may take such proceedings as are authorized by the
Code of Civil Procedure upon the like failure or refusal of
a witness subpoenaed to attend the trial of a civil action
before a court of record or a referee appointed by such
court. The board shall also take testimony upon, and
have a hearing for and against any proposed change of the
law relating to any railroad, or of the general railroad law,
if requested to do so by the legislature, or by the commit-
tee on railroads of the senate or the assembly, or by the
governor, and may take such testimony and have such a
hearing when requested to do so by any railroad corpora-
tion, or incorporated organization representing agricultural
or commercial interests in the state, and shall report their
conclusions in writing to the legislature, committee, gov-
ernor, corporation or organization making such request ;
and shall recommend and draft such bills as will in its
‘judgment protect the people’s interest in and upon the
railroads of this state.

L. 1882, ch. 353, § 4, (part,) and §14. (§14 am’d by L. 1883,
ch. 388.)

Powers or Boar. (See Index “ Railroad Commissioners.”)
See L. 1891, ch. 360. Lighting of tunnels.
286 Tue RaiLroap LAw—THE RAILROAD COMMISSION.

See The Stock Corporation L., § 46. Increase or reduct:
of stock.
«Railroad Law, §6. Maps to be filed.
« Td.$ 35. Accommodation of connecting roads.
38. Reduction of fare by legislature.
50. Approval of safeguards.
51. Use of stoves.
55. Operation of railroads in winter.
57. Annual reports to.
80. Consolidation and lease of parallel lines.
83. Extension of road of reorganized corpo:

tions.
roo. Change of motive power on street railroac
102. Construction of road in street where oth

road is built.

)

x

CRO Mn M Mm ump wn vy

$158. Reports of railroad corporations.—T!
‘board shall prescribe the form of the report required |
the railroad law to be made by railroad corporations, ar
may from time to time make such changes and additio1
in such form, giving to the corporation six months notic
before the expiration of any fiscal year, of any changes «
-additions which would require any alteration in the methc
-or form of keeping their accounts, and on or before Se
tember fifteenth in each year, shall furnish a blank fori
for such report. When the report of any corporation
defective, or believed to be erroneous, the board shall n:
tify the corporation to amend the same within thirty day
The originals of the reports, subscribed and sworn to :
prescribed by law, shall be preserved in the office of tl
board.
L. 1882, ch. 353, § ro.
L. 1850, ch. 140, § 31. (Am’d by L. 1880, ch. 575, and L. 189
ch. 98.)

§ 159. Investigation of accidents.—The boar
‘shall investigate the cause of any accident on any railroa
resulting in loss of life or injury to persons, which in the
judgment shall require investigation, and include the r
sult thereof in their annual report to the legislature. B:
fore making any such examination or investigation, or an
investigation or examination under this article, reasonab!
notice shall be given to the corporation, person or persor
INVESTIGATIONS— RECOMMENDATIONS. 287

conducting and managing such railroad of the time and
place of commencing the same. The general superintend-
ent or manager of every railroad shall inform the board of
any such accident immediately after its occurrence. If the
examination of the books and affairs of the corporation,
or of witnesses in its employ, shall be necessary in the
course of any examination or investigation into its affairs,
the board, or a commissioner thereof, shall sit for such pur-
pose in the city or town of this state where the principal
business office of the corporation is situated if requested so
to do by the corporation; but the board may require
-copies of books and papers, or abstracts thereof, to be sent
to them to any part of this state.

L. 1882, ch. 353, $4.

The statute does not confer on individuals a clear legal right,
enforceable by mandamus, to have the commissioners make
any particular examination of any particular question at any
‘particular time, unless it may be as to accidents; and the court
will not control their discretion as to making investigations,
especially where their refusal is on the ground that they have
already sufficiently examined the subject. 7. MW. Horton Ice
Cream Co. vs. R. R. Commissioners, N. VY. Datly Register, Nov. 20, 1884.

§ 160. Recommendations of board, where law
thas been violated.—lIf, in the judgment of the. board,
it shall appear that any railroad corporation has violated
any constitutional provision or law, or neglects in any
respect to complv with the terms of the law by which it
was created, or unjustly discriminates in its charges for
services, or usurps any authority not granted by law, or
refuses to comply with the provisions of any law, or with
any recommendation of the board, it shall give notice
thereof in writing to the corporation, and if the violation,
neglect or refusal is continued after such notice, the board
may forthwith present the matter to the attorney-general,
who shall take such proceedings thereon as may be neces-
sary for the protection of the public interests.

L, 1882, ch. 353, $5.
See /. M. Horton Ice Cream Co.v. R. R, Comrs., N.Y. Daily Reg.

Nov. 20, 1884. As to the powers of the railroad commission
ander the act, see People v. N.V.,L.£E.& W.R.R. Co. 104 N Y., 58.
288 “LHE RAILROAD LAW—1HE KAILROAD VCOMMISSION.

§161. Recommendations of board, when repairs
or other changes are necessary.—If in the judgment of
the board, after a careful personal examination of the same, it
shall appear that repairs are necessary upon any railroad in
the state, or that any addition to the rolling stock, or any
addition to or change of the station or station-houses, or
that additional terminal facilities shall be afforded, or that
any change of the rates of fare for transporting freight or
passengers or in the mode of operating the road or con-
ducting its business, is reasonable and expedient in order
to promote the security, convenience and accommodation
of the public, the board shall give notice and information
in writing to the corporation of the improvements and
changes which they deem to be proper, and shall give such
corporation an opportunity for a full hearing thereof, and
if the corporation refuses or neglects to make such repairs,
improvements and changes, within a reasonable time after
such information and hearing, and fails to satisfy the board
that no action is required to be taken by it, the board shall
fix the time within which the same shall be made, which
time it may extend. It shall be the duty of the corpora-
tion, person or persons owning or operating the railroad to
comply with such decisions and recommendations of the
board as are just and reasonable. If it fails to de so the
board shall present the facts in the case to the attorney-
general for his consideration and action, and shall also
report them in its annual or in a special report to the legis-
lature.

L. 1882, ch. 353, § 6.

162, Legal effect of recommendations and
action of the board.—No examination, request or ad-
vice of the board, nor any investigation or report made by
it, shall have the effect to inpair in any manner or degree
the legal rights, duties or obligations of any railroad cor-
poration, or its legal liabilities for the consequence of its
acts, or of the neglect or mismanagement of any of its
agents or employes. The supreme court at special term
shall have power in its discretion, in all cases of decisions
and recommendations by the board which are just and
reasonable to compel compliance therewith by mandamus,
subject to appeal to the general term and the court of ap-
‘

Corrorations Must FurnisH INFORMATION. 289
\
peals, and upon such appeal, the general term and the
court of appeals may review and reverse upon the facts as
well as the law.

(As am’d by Laws 1892, ch. 676.)

The provision making, the findings of the board presumptive evidence of the
facts in certain actions and declaring that the recommendations of the board shall
be deemed prima facia just and reasbnable, is omitted by the amendment of 1892.

L. 1882, ch. 353, § 8.
DECISIONS UNDER L, 1882, Cu. 353, § 6.

The commissioners may properly determine that a new and
enlarged building for passengers and freight should be erected,
but having heard and decided they can dono more. The stat-
ute recognizes the necessity for a tribunal to adjust conflicting
interests between the people and thecorporation. It hasclothed
it with judicial power to hear and determine upon notice ques-
tions arising between these parties, but there it stops. Its pro-
ceedings amount to nothing more than an inquest for informa-
tion. There is no law by which a court can carry into effect
their decision. The attorney-general is given no new power.
He may consider the result of the investigation, but he must
look further for his right of action. People v. NV. Y., Lake Erie &
West. R. R. Co., 104 N. Y.,58 The decision of the board has no
binding orconclusive authority. Its decision is advisory or rec-
ommendatory, and the company is at liberty to obey or disobey
it. It was a sufficient justification for the application by the
attorney-general for a writ of mandamus, and if the court had a
discretion to withhold or grant the writ, it might properly have
influencé in the exercise of that discretion. But a writ may
only issue by the attorney-general on behalf of the people to
subserve a public interest and to protect a public right. People
v. Rome, Watertown & Ogdensburgh R. R. Co., 103 NV. Y., 95.

§ 163. Corporations must furnish necessary in-
formation.—Every railroad corporation shall, on request,
furnish the board any necessary information required by
them concerning the rates of fare for transporting freight
and passengers upon its road and other roads with which
its business is connected, and the condition, management
and operation of its road, and shall, on request, furnish to
the board copies of all contracts and agreements, leases or
other engagements entered into by it with any person or

Ss
290 4THE RaILroapD Law—THE RAILROAD CoMMISSION,

corporation. The commissioners shall not give publicity
to such information, contracts, agreements, leases or other
engagements, if, in their judgment, the public interests do
not require it, or the welfare and prosperity of railroad
corporations of the state might be thereby injuriously af-
fected.

L. 1882, ch. 353, § 7.

§ 164. Attendance of witnesses and their fees.
—All subpoenas shall be issued by the president of the
board, or by any two members thereof, and may be served
by any person of full age authorized by the board to serve
the same. The fees of witnesses before the board 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 returning from the place where the attend-
ance of the witness is required, and the fees shall be audit-
ed and paid by the comptroller on the certificate of the
secretary of the commission.

L. 1882, ch. 353, § 4.
L. 1884, ch. 441, § 1. (Am'd by L. 1886, ch. 509.)

§ 165. Fees to be charged and collected by the
board.—The board shall charge and collect the following
fees: For copies of papers and records not required to be
certified. or otherwise authenticated by the board, ten cents
for each folio of one hundred words; for certified copies of
official documents filed in its office, fifteen cents for each
folio, and one dollar for every certificate under seal affixed
thereto; for each certified copy of the quarterly report
made by a railroad corporation to the board, fifty cents;
for each certified copy of the annual report of the board,
one dollar and fifty cents; for certified copies of evidence
and proceedings before the board, 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 board in the ordinary course of distribution.
All fees charged and collected by the board belong to the
people of the state, and shall be paid quarterly, accompan-
ied with a detailed statement thereof into the treasury of.
ithe state to the credit of the general fund.

L. 1884, ch. 421, § § 3-6
ANNUAL REport oF Boarp. 291

§ 166. Annual report of board.—The board shall
make an annual report on or before the second Monday
in January in each year, which shall contain :

1. A record of their meetings and an abstract of their
proceedings during the preceding year.

2. The result of any examination or investigation con-
ducted by them.

3. Such statements, facts and explanations as will dis-
close the actual workings of the system of railroad trans-
portation in its bearing upon the business and prosperity —
of the state, and such suggestions as to the general rail-
road policy of the state, of the amendment of its laws, or
the condition, affairs or conduct of any railroad corpora-
tion, as may seem to them appropriate.

4. Drafts of all bills submitted by them to the legisla-
ture and the reasons therefor.

5. Such tables and abstracts of all the reports of all
the railroad corporations as they may deem expedient.

6. A statement in detail of the traveling expenses and
disbursements of the commissioners, their clerks, marshal
and experts.

Five hundred copies of the report with the reports of
the railroad corporations of the state, 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 corporations and other persons
interested therein. .

L. 1882, ch. 353, §§9, 10 and 11.

$167. Certified copies of papers filed to be

evidence —Copies of all official documents filed or de-
posited according to law in the office of the board, certified
by a member of the board or the secretary thereof to be
true copies of the originals under the official, seal of the
board, shall be evidence in like manner as the originals.

L. 1884, ch. 421, §1.

§ 168. Acts prohibited.—No railroad commissioner
shall, directly or indirectly, solicit-or request from, or re-
commend to any railroad corporation, or any officer, attor-
292 THE Rattroap LAaw—THE RalILRoaD ComMISSION.

ney or agent thereof, the appointment of any person to
any place or position nor shall any railroad corporation, its
attorney or agent, offer any place, appointment or position
or other consideration to such commissioners, or either of
them, nor to any clerk or employe of the commissioners
or of the board; neither shall the commissioners or either
of them, nor their secretary, clerks, agents, employes or
experts, accept, receive or request any pass from any rail-
road in this state, for themselves or for any other person,
or any present, gift or gratuity of any kind from any rail-
road corporation; and the request or acceptance by them,
or either of them, of any such place or position, pass,
presents, gifts or other gratuity shall work a forfeiture of
the office of the commissioner or commissioners, secretary,
clerk or clerks, agent or agents, employe or employes, ex-
pert or experts, requesting or accepting the same.

L. 1882, ch. 353, §14. (Am/’d by L. 1883, ch. 388.)

$169. Salaries and expenses of members and
officers of the board.—The annual salary of each com-
missioner shall be eight thousand dollars; of the secretary
six thousand dollars; of the marshal fifteen hundred dol-
lars, of the accountant and of the inspector such sum as
the board may fix, not exceeding three thousand dollars
each; of the clerical force such sums respectively as the
board may fix. -In the discharge of their official duties,
the commissioners, their officers, clerks and all experts and
agents whose services are deemed temporarily of import-
ance, shall be transported over the railroads in this state
free of charge upon passes signed by the secretary of state
and the commissioners shall have reimbursed to them the
necessary traveling expenses and disbursements of them-
selves, their officers, clerks and experts, not exceeding in
the aggregate five hundred dollars per month. All salaries
and disbursements shall be audited and allowed by the
comptroller and paid monthly by the state treasurer upon
the order of the comptroller out of the funds provided
therefor.

(As am’d by L. 1892, ch. 534.)

L. 1882, ch. 353, § 12.
L. 1884, ch. 441, §§ 1-4. (§ 1 am’d by L. 1886, ch. 509.)
ANNUAL EXPENSE BORNE BY RAILROADS. 293

$170. Total annual expense to be borne by
railroads, —The total annual expense of the board author-
ized by law, excepting only rent of offices and the cost of
printing and binding the annual reports of the board as
provided by law, shall not exceed fifty thousand dollars ;
and shall be borne by the several corporations owning or
operating railroads according to their means, to be appor-
tioned by the comptroller who, on or before July first in
each year, shall assess upon each of such corporations its
proportion of such expenses, one-half in proportion to its
net income for the fiscal year next preceding that in which
the assessment is made, and one-half in proportion to the
length of its main road and branches, except that each
corporation whose line of road lies partly within and partly
without the state, shall in respect of its net income be as-
sessed on a part bearing the same proportion to its whole
net income that the line of its road within the state bears
to the whole length of road, and in respect of its main road
and branches shall be assessed only on that part which lies
within the state. Such assessment shall be collected in the
manner provided by law for the collection of taxes upon
corporations.

(As am’d by L. 1892, ch. 534.)

The words ‘‘and the cost of printing and binding the annual reports of the
board ” were inserted by the amendment of 1892.

L. 1882, ch. 353, § 13.

Such a provision is constitutional. It does not “deprive any
person of life, liberty or property without due process of law;
nor deny to any person . . . the equal protection of the
laws.” Charlotte C. & A. R. R. Co. v. Gibbes, 142 U.S. 386.

DECISION UNDER L. 1882, Cu. 353, § 13.

“The length of main track or tracks on roads” means the
length of the road including branches and auxiliary lines not
the aggregate length of all its tracks where it has two or more
parallel tracks between two terminal points. Ju re WV. Y., Ont.
& W.R. R. Co. v. Chapin, 106 N. Y., 265.

.
294 THE RartLroap LAaw—THE RalILroaD ComMMISSION,

$171. Application of this article.—The provisions
of this article shall apply to all railroads within the state,
and the corporations, receivers, trustees, directors or others,
owning or operating the same or any of them, and to all
sleeping and drawing-room car corporations, and to all
other associations, partnerships or corporations engaged in
transporting passengers or freight upon any such railroad
as lessee or otherwise.

L. 1882, ch. 353, § 4.
CHAPTER XII.
THE CONDEMNATION LAW.

L. 1890, Cu. 95.

AN AUT to Amend the Code of Civil Procedure.

CHAPTER TWENTY-THREE OF THE CODE OF CIVIL
PROCEDURE.

SUPPLEMENTAL PRovISIONS.
TITLE I.

PROCEEDINGS FOR THE CONDEMNATION OF REAL PROPERTY.

SECTION 3357. Condemnation law.—This title
shall be known as the condemnation 1:

$ 3358.—Definitions; parties. _The term “ person,”

when used herein, includes a corporation, joint stock asso-
ciation, the state and a political division thereof, as well as
a natural person; the term “real property,” any right,
interest or easement therein or appurtenance 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 pro-
ceedings shall be termed the plaintiff; and the person
against whom the proceeding is brought, the defendant.

§$ 3359. Proceedings.—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. Petition; what to contain.—The proceed-
ing shall be instituted by the presentation of a petition by
the plaintiff to the supreme court setting forth the follow-
ing facts:

1. His name, place of residence, and the business in
which engaged ; 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
296 THE CoNnDEMNATION Law.

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 associations*; if a political division
of the state, the names and places of residence of its prin-
cipal officers ; and if the state, the name and place of resi-
dence of the officer acting in its behalf in the proceeding.

2. A specific description of the property to be con-
demned and its location, by metes and bounds, with reason-
able certainty.

3. The public use for 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 property; 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
the person with whom he resides; if a lunatic, idiot, or
habitual drunkard, the name and place of residence of his
committee or trustee, if he has one; if not, the name and
place of residence of the person 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 attorney ;
if the name or place of residence of any owner can not af-
ter 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. Astatement 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 en-
title him to institute the proceeding.

8. A demand for relief, that it may be adjudgéd that
the public use requires the condemnation of the real prop-
erty described, and that the plaintiff is entitled to take and
hold such property for the public use specified, upon mak-

* So in the original.
PETITION, 297

ing compensation therefor, and that commissioners of ap-
pr -aisal be appointed to ascertain the compensation to be
made to the owners for the property so taken.

L. 1850, ch. 140, §§ 14 and 21. (§ 14 am’d by L. 1889, ch. 78;
§ 21 am’d by L. 1860, ch. 237, L. 1877, ch. 224, and L.,1881,
ch. 649.)

L. 1875, ch. 606, § 18.

See Railroad -Act, § 4, sub. 2, and §§ 6 and 7.

DECISION UNDER § 3360.

An averment in the words of Sub. 7 is anaverment of fact and
not a conclusion of law. It is not necessary to set forth the
facts in detail. The section does not authorize the taking of
property but merely prescribes the method of judicial proced-
ute. Rochester Ry. Co.v. Robinson, 133 N. Y., 493.

DECISIONS UNDER L. 1850, CH. 140, § 14.

Objections to the regularity of the proceedings, such as that
the petition is not properly verified, or that it does not appear
by the petition that the company has not been able to acquire
title to the land described therein, and the reason of such ina-
‘bility, or that it does not contain a sufficient description of such
land, must be taken when the petition is presented to the court
for the appointment of commissioners. It is too late to raise
such objections on motion for confirmation of the commission-
ers’ report. WV. Y.& Erie R. R. Co. v. Corey, 5 How., 177; inre N.

¥. & Jamaica R. R. Co. v. Wilson, 21 How., 4345 inre N.Y, WS.
é& B. Ry. Co. v. Watson, 64 How., 216. Seeinre BH. T.& W. Ry.
Co, 79 N. Y., 64. A general land agent having charge of the
subject of purchasing lands for all the purposes of a tailroad
corporation, is an officer of ‘the corporation, having the right to
verify a petition under this section. ia re WV. Y., Lack.& W.R.
R. Co., 33 Hun, 148, aff'd 98 N. Y., 664 ; in re Adivéndack & St.
Law. R. R. Co. v. De Camp, 133 N. Y., 270. The provision of this
section requiring a description of the real estate which the com-
pany seeks to acquire, is not complied with unless there is such
a description of the land! as will show its location and the boun-
daries thereof. Reference toa deed which on production would
show what land is conveyed, is not a compliance with the stat-
ute, which requires that the description should be contained in
the petition. re N.Y. C.& ARR. R. Co. v. Rau, 70 N. Y.,

t
298 THE ConDEMNATION Law.

zor. A petition stating that the company ‘is a corporation
duly organized under and in pursuance of the laws of the States
of New York and New Jersey,” and which then goes on to state
how and under what laws it is organized, states, in effect,
“that the company is duly incorporated.” im re WV. Y., W.
S. & B. Ry. Co. v. Watson, 64 How., 216, It is enauel if
the petition states in substance that the price asked by
the owners is excessive. It is not necessary to give a
history of the negotiations, or to state the evidence from which
is derived the fact of inability to agree by reason ot an excess-
ive price being asked. in re NV. V.. W.S.& B. Ry. Co. v. Watson,
64 How., 216. Seealso in re Suburban Rapid Transit Co., 38 Hun,
S53:
DEcISIONS UNDER L. 1850, Cu. 140, § 21.

In proceedings taken under this section, as amended, to
acquire additional land, after the company has located and com-
pleted its railroad, it is not necessary to allege in the petition |
all of the facts required to be stated in the original petition in
a proceeding under section 14 of this act, or that a map should
be filed showing the location of the lands to be taken. in re V
V..C.& H.R. R.R. Co.v. Sweeney, 4 Hun, 381. in re Same v, Pierce,
37 Hun, 274; but see in re Rochester Elec. Ry. Co.v. Wilkins, 123 N.
Y.,395z. The petition should disclose the specific purpose to
which it isintended toapply the land. w#reNMYC& AR.
R. R. Co.v. Armstrong, 5 Hun, 86, affirmed on other grounds, 66 N. Y.,
407.

DEcIsions UNDER L. 1875, Cu. 606, § 18.

A petition stated that the petitioner has not been able to
acquire title to said land, and that the reason of such inability
is that the owner thereof refuses to sell the same for any reason-
able compensation, and that the petitioner has not been able to.
agree with the owner or owners of said real estate, or of any
interest therein for the sale of the same to the petitioner. He/d,
that this was a sufficient compliance with the provision requir-
ing the petition to state, “that the company has not been able
to acquire title thereto and the reason of such inability” to give
the court jurisdiction over the proceeding. Upon the hearing
before the court detailed affidavits showing the negotiations
were produced on both sides. The court was empowered under
section 23, to allow any defect in the petition to be amended by
receiving additional affidavits for that purpose. in re Subur-
ban Rapid Transit Co., 38 Hun, 553. It is unnecessary to state in
Notice OF PRESENTATION AND SERVICE OF PETITION. 299

the petition whether itis an easement, or the fee of the abutting:
owners in the street that is sought to betaken. in re Met. El. Ry.

Co.,12.N. Y. Supp.,506. See also ld., 13 N.Y. Supp., 3675 36 St. Rep.,
606. An objection that the petition is uncertain because of its dis-
junctive form in stating that the petitioner is unable to acquire
title because the owner would not sell for a reasonable price or
because the owner could not be found, cannot be raised for the
first time on appeal from an order confirming the award of the
commissioners. iz re Union Elev. Ry. Co, 8 N.Y. Supp., 8135 30
St. Rep., 164. These proceedings may be maintained though the
toad has been already constructed, and the company has been
a trespasser in occupying the lands without compensation. Met.

El. Ry.Co.v. Dominick, 55 Hun, 198; in re Met. El. Ry. Co., 12 N.Y. Supp.,
506; 1d.,18 St. Rep. 134. Apetitionis insufficient which alleges,
on information and belief, that petitioner is unable to agree,
&c., by reason of the owner’s demand for unreasonable compensa-
tion. Met. El. Ry. Co. v. Dominick, 55 Hun, 198; see in re Met. Ll.

Ley. Co., 12 N.Y. Supp., 502. Td., 18 St. Rep., 134; as to what is a proper
description of the property where the road has been constructed
before its presentation, see Met. El. Ry. Co. v. Dominick, 55 Hun,
198; in re Met. El. Ry. Co.,7 N.Y. Supp., 707; in re Met. El. Ry. Co.,
12N.Y. Supp., 506; Id, 18 St. Rep, 73g. As tothe allegation that
“it is the intention of the company in good faith to construct,”
&c., where the road has been already constructed see Met. El. Ry.
Co. v. Dominick, 55 Hun, 198; tn re Met. El. Ry. Co, 12 NM. Y. Supp,
506; Id., 18 St. Rep., 134.

§ 3361. Notice of presentation and service.—
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 portion of it is situated, aad a
copy of the petition and notice must be served upon all
the owners of the property at least eign days prior to its
presentation.

L. 1850, ch. 140, § 14.
L. 1875, ch. 606, § 18.

§ 3362. Service, how made.—Service of the peti-
tion and notice must be made in the same manner 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
300 1HE CONDEMNATION LAW.

and two of title one of chapter five of this act, which re-
late 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 de-
fendant 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 attor-
ney will be sufficient service upon such defendant. Incase
the defendant is an infant of the age of fourteen years or
upwards, a copy of the petition and notice shall also be
served upon his general guardian, if he has one, if not,
upon the person with whom he resides.

L. 1850, ch. 140, § 14, subs. 1-5.
L. 1875, ch. 606, § 18, subs. 1-5, (amended by L. 1888, ch. 514.)
L. 1876, ch. 198.

Decision UNDER L. 1850, Cu. 140, § 14.

The word “residence” is to receive its established and de-
fined meaning. It does not mean the place where the owner
actually was at the time service was made. So held, where the
landowner had a ‘“‘residence”’ in this state but was at the time
of the service in Europe. in re NV. Y. & Oswego Midland R. R.
Co., 40 How., 335.

DEcISIONS UNDER L. 1876, CH. 198.

This section applies only to a case where the land itself is re-
quired by the railroad company for its roadway as authorized
by L. 1854, ch. 282, sec. 4, and where the owners of “adjoining
lands on the line of a street” have the fee and this right is
sought to be extinguished. i re M.V.C.& AR. R.R.Co,77
NV.Y., 248. This section only applies where “land ” required by
a railroad company is contained in or forms part of a street or
avenue in acity or village. This term includes only such real
property as has corporeal existence and does not include incor-
poreal hereditaments. It is therefore not applicable to an ele-
vated railroad. ire Met. E. Ry. Co., 18 St. Rep. 134; Id.,12 N.Y.
Supp., 502.

§ 3363. General guardian to appear; guardian
ad litem; attorney for absent defendant.—lIf a de-
fendant is an infant, idiot, lunatic or habitual drunkard, it
shall be the duty of his general guardian, committee or
InFants, Etc.—APPEARANCES—ANSWER. 301

trustee, if he has one, to appear for him upon the presenta-
tion 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 proof of
service, without further notice, appoint a guardian ad
litem for such defendant, whose duty it shall be to appear
for him and attend to his interests in the proceeding, and,
if deemed necessary to protect his rights, the court may
require a general guardian, committee or trustee, 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.

L. 1850, ch. 140, $14, sub. 5 and § 20.
L. 1875, ch. 606, § 18, sub. 5 and § 23.

§ 3364. Appearance of parties; service of
papers.—The provisions of law and of the rules and prac-
tice of the court, relating to the appearance of parties in
person or by attorney in actions in the supreme court, shall’
apply to the proceeding from and after the service of the
petition, and all subsequent orders, notices and papers may
be served upon the attorney appearing and upona guardian
ad litem in the same manner and with the same effect as
the service of papers in an action in the supreme court may
be made.

§$ 3365. Answer.—Upon presentation of the petition
and notice with proof of service thereof, an owner of the
property may appear and interpose an answer, which must
contain a general or specific denial of each material allega-
tion of the petition controverted by him, or of any knowl-
edge or information thereof sufficient to form a belief, or
a statement of new matter constituting a defence to the
proceeding.

L.-1850, ch. 140,§ 15. (Am’d by L. 1854, ch. 282.)
L. 1875, ch. 606, § 19.
302 THE ConpEemnaTion Law.

DEcISIONS UNDER Li. 1850, CH. 140, § 15.

Upon the motion for the appointment of commissioners, cer-
tain persons not named as parties in the petition having applied
to be made parties thereto upon affidavits which, if true, showed
that they had an interest in the premises, and the court having
required them, asa condition of granting the application, to
agree not to question the regularity of the proceedings or the
right of the petitioner to maintain them, e/d, that it was error
to impose the condition. 7 re NV. Y., Lack. & West. Ry. Co., 26 Hun,
194. As to what objections may be made to the petition upon its
face, as preliminary objections, and be determined on the motion
for appointment of commissioners, and what objections must be
raised by denial of facts in the petition, or by new matter set
up, and disposed of on the trial of the issues thus raised, see ix
ve N. Y., West Shore & B. Ry. Co. v. Watson, 64 How., 216. It is
not a sufficient objection to the condemnation of the land
that the company owns other lands, claimed to be equally
available. inreN.Y.C.& A.R.R. R. Co. v. Charlotte Iron Works,
&N. Y. Supp., 290; 28 St. Rep., 64; afd 121 N. Y., 665. Theinten-
tion of the company in good faith to construct and operate the
road may be put inissue,and if so must be proved. im re Met.
Transit Co. v. Mayor, &¢.,of N. Y., 111 N. Y., 588 A counter
‘affidavit denying any knowledge or information sufficient to
form a belief as to the truth of the averment in the petition of
‘due incorporation, does not deny the averment, and does not put
the petitioner to proof of its incorporation. By this section it
is apparently provided that the landowner, even without filing
.a counter affidavit or answer, may “disprove” any of the facts
alleged in the petition, but the burden is then upon him to
establish the negative. Jd, (but see § 3369.) If by the non-
performance of a condition of its charter which ipse facto and by
the terms of the statute itself works a forfeiture of corporate
tights, that fact may be asserted by the landowner in answer
to the allegation of due incorporation in the petition. ia re
Brooklyn W.& N. Ry. Co. 72 N. Y., 245. See inre Kings Co. Elev.
R. R. Co. vu. Nathan, 105 N. Y., 97, 119.

Decisions UNDER L, 1875, Cu. 606, § 19.

Where property is sought to be condemned for a purpose
which is partly legal and partly illegal, and it cannot be deter-
mined how much of the property is necessary for the purpose
‘that is legal, the proceedings will be dismissed. The fact that
a railroad company seeking to condemn a right of way in a
ANSWER—VERIFICATION—T RIAL. 303

treet, has erected illegal structures, can be taken advantage of
mly by property owners who are affected by such illegal struc-
ures. Where a railroad has been built in a street, without pro-
eedings had to make compensation tothe abutting owners, a
vending suit by such owners against a railroad, to restrain the
naintenance of the road and for damages, is not a bar to pro-
‘eedings by the company to condemn the easements of such
ibutting owners. in re Met. El. Ry.Co., 12 N. Y. Supp., 502, 500.

§ 3366. Verification of petition and answer.—
A petition or answer must be verified, and the provisions
of this act relating to the form and contents of the verifi-
cation of pleadings in courts of record, and the persons
by whom it may be made, shall apply to the verification.

§ 3367. Trial of issues and decision.—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 decis-
ion in writing, or deliver the same to the attorney for the
prevailing party, within twenty days after the final submis-
sion 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 making 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.

L. 1850, ch. 140, § 15.
L. 1875, ch. 606, § 19.

DECISIONS UNDER L. 1850, CH. 140, § 15.

This section puts upon the land-owner the burden of proving,
by legal evidence, that the facts alleged in the petition are not
true. An answer or affidavit is not sufficient for this purpose.
in re N. Y. Bridge Co., 67 Barb., 295; Buf. & State Line R. R. Co. v.
Reynolds, 6 How.,96. But as to the special circumstances lying
within the knowledge of the petitioner, it is put to its proofs, if
304 THE ConDEMNATION Law.

the owner show sufficient cause against the petition. i re A
Y.C.R.R. Co. v. Armstrong, 66 N. Y., 407. If the application i
made under section 21 of L. 1850, ch. 140, as amended, and objec
tions are made by the owner, coupled with a denial of the specia
allegations of the petition respecting the purposes for whicl
the land is required, the burden is upon the petitioner of adduc
ing proof of the special circumstances alleged in support of thi
averment that it requires the land. /d. 1f the petition is pre
sented under section 28, sub. 6, and the answer denies the alle
gation in the petition of failure of the two corporations to agree
the burden is upon the petitioner of proving the facts thus pu
in issue; and without such proof the prayer of the petition cai
not be granted. in re Lockport & Buf. R. R. Co.v. N. V.C.&
R.R.R. Co, 77 N. Y., 557. In condemnation proceedings th
burden is on petitioner to show the necessity for acquiring th:
property, its intention to complete the road, and its endeavor i1
good faith to agree with the property owners; while the burde:
is on the owners as to an issue raised by the answer concernin,
the petitioner’s incorporation. im re Met. El. Ry. Co, 12 N.3
Supp. 506. An allegation in the answer of the land-owner tha
it is not the intention of the company in good faith to construc
the proposed road, raises an issue, and puts the burden of proo
of that fact on the petitioner. ¢x re Staten Island Rapid Transi
Co. v. Bechtel, 20 Week. Dig. 15. No inquiry can be made as to ai
improper issue of stock, if it appears that valid subscriptions t
the extent of one thousand dollars a mile have been made ani
ten per cent.thereon paid incash. 7” re Staten Island Rapid Transi
Co. v. Bodine, 38 Hun, 387. One of the subscribers to the capita
stock of the petitioning company being a corporation, no pre
sumption of want of power can be indulged in the face of ai
actual subscription, followed by more than ten per cent. of pay
ment. Quwuaere, whether the land-owner can raise or try the ques
tion. in re Rochester, Horn. & Lacka. R. R. Co. v. Babcock, 110 N.Y
zg. Objections which might be taken to the petition must b
raised on the application for the appointment of commissioner
or they will be deemed to be waived. i” re Roch., Horn, & Lach
R. R. Co.v. Hartshorn, 7 N.Y. Supp., 279 ; 26 St. Rep., 253.

Decisions UNDER L. 1875, Cu. 606, § 16.

Under the Rapid Transit Act, it is held that although the cas
upon the petition and answer should not be heard on affidavit
and oral evidence should be required for that purpose the ot
jection would be deemed waived when not taken at the hearing
AMENDMENT OF PROCEEDINGS—J UDGMENT. 305

and where it appears that the affidavits were presented upon
both sides. in re Suburban Rapid Transit Company, 98 Hun, 553.

_§ 3368. Amendment of proceedings.—The pro-
visions of title one of chapter eight of this act shall also
apply to proceedings had under this title.

L. 1850, ch. 140, § 20.
L. 1875, ch. 606, § 23.
DECISIONS UNDER L. 1850, CH. 140, § 20.

An amendment of the petition at the commencement of the
hearing at special term, so as to ask for less width of land, does
not make necessary a further attempt at agreement on a price;
at least, where the owners are all represented in court and no
suggestion is made by them of a withdrawal of opposition, or
for a suspension of the proceédings with a view to such an at-
tempt. izre Pros. Park & C.l. &. R. Co. v. Moynahan, 67 N. V.,
3g7z. Inits petition, the company offered to construct a draw-
bridge to give access from the river to the docks of the land-
owners. After an order appointing commissioners had beem
granted upon such petition and appealed from, on the applica-
tion of the company, an order was granted giving it leave to
withdraw the offer and to amend the petition accordingly. Held,
that the court had no power to so amend the petition; that no
such power is given under the provisions of this section, which
is limited to “any defect or informality.” i reMV, WS. &
B. Ry. Co. v. Walsh, 89 N. V., 453. A petition may be amended
by inserting the residences of parties having interests in the
lands. ix re Roch. Horn & Lack. Ry. Co. v. Babcock, 45 Hun, 126;
aff'd on other grounds, 110 N. Y., 119.

See zz re Metropolitan Transit Co., 45 Hun, 159; af? d 111 N.Y,
4588, for an example of an amendment under this section.

The appointment of a receiver of the petitioner and his addi-
tion as a party petitioner does not affect the rights of either
party. invre Roch, H. & Lack. R. R. Co. v. Hartshorn, 26 St. Rep.,

75357 N.Y. Supp., 279.

1

§ 3369. Judgment; commissioners, appoint-.
ment of.—Judgment shall be entered pursuant to the
direction of the court or referee in the decision filed, If
in favor of the defendant, the petition shall be dismissed |
with costs, to be taxed by the clerk at the same rates as-

T
306 THE ConpEMNaTION Law.

are allowed of course to a defendant prevailing in an action
in the supreme court, including the allowances for proceed-
ings 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 be entered, adjudging that
the condemnation of the real property described is neces-
‘sary for the public use, and that the plaintiff is entitled to
‘take and hold the property for the public use specified,
‘upon making compensation therefor, and the court shall
thereupon appoint three disinterested and competent free-.
, holders, residents of the county where the real property or
‘some part of it is situated, or of some adjoining county,
commissioners 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 meet-
ing of the commissioners. If a trial has been had, at least
eight days notice of such appointment must be given to all
defendants who have appeared.

L. 1850, ch. 140, § § 15 and 20.
L. 1875, ch. 606, § 19. 2

Upon the subject of costs see § 3372 and cases cited.

Decisions UNDER L. 1850, Cu. 140, § 15.

If the material allegations of the verified petition are not de-
nied by some counter affidavits, they stand sufficiently proved
for the purpose of making the order appointing commissioners.
inre N.Y, Lack. & West. Ry. Co. 99 N. Y., 72. After the hear-
ing was had and the report made it was ascertained that one of
the commissioners was not a freeholder. One of the parties’
who had consented to his appointment moved to have the re-
port set aside and a new commissioner appointed. It was held
that the right of the objecting party was waived. ia re WV. Y,
WS. & B. Ry, Co. v, Hart, 35 Hun, 575. After the appointment
of a commissioner, his son was appointed station.agent of the
company at the place where the land in question was situated,
held, that the company should have applied at once for another
commissioner after such appointment, and the order of confirm-
ation and report was set aside. in re V. Y., W.S. & B. Ry. Co.
v. Townsend, 36 Hun, 630. See Albany Northern R.R. Co. v. Cramer,
7 How., 164; in re Buffalo, N. Y. & Phil. R. R. Co. v. McIntosh, 32
as _ COMMISSIONERS. 307

a, 289. For a case in which the three commissioners appoint-

had been selected by the parties and named in a written
‘eement made by them in regard to the conveyance of the
:mises sought to be acquired, see iz re WV. Y, Lack. & W. Ry.
v. Bennett, 33 Hun, 639; aff'd 98 N. Y., 447; 40 Hun, 130; rev'd
| NvY., 704.

$ 3370. Duty of commissioners; report ; com-
nsation.—The commissioners shall take and subscribe
2 constitutional oath of office. Any of them may issue
opoenas and administer oaths to witnesses ; a majority of
2m may adjourn the proceeding before them, from time
tine, in their discretion. Whenever they meet, except
appointment of the court or pursuant to adjournment,
sy shall cause at least eight days’ notice of such meeting
be given to the defendants who have appeared, or their
ents or attorneys. They shall view the premises describ-
in the petition, and hear the proofs and allegations of
2 parties, and reduce the testimony taken by them, if
y, to writing, and after the testimony in each case is
ised, they, or a majority of them, all being present, shall,
thout unnecessary delay ascertain and determine the
mpensation which ought justly to be made by the plain-
>to the owners of the property appraised by them ; and.
fixing the amount of such compensation, they shall not
ike any allowance or deduction on account of any real
supposed benefits which the owners may derive from
2 public use, for which the property is to be taken, or
> construction of any proposed improvement connected
th such public use. But in case the plaintiff is a rail-
id corporation and such real property shall belong to
y other railroad corporation, the commissioners on fixing
> amount of such compensation, shall fix the same at its
r value for railroad purposes. They shall make a report
their proceedings to the supreme court with the minutes ,
the testimony taken by them, if any; and they shall
th be entitled to six dollars for services, for every day
‘y are actually engaged in the performance of their du-
s, and their necessary expenses, to be paid’ by the plain-

t. 1850, ch. 140, § 16. (Am’d by L. 1854, ch. 282, L. 1864, ch.
582, and L. 1883, ch. 382.)
L. 1875, ch. 606, § 20.
308 THE ConpemnaTion Law.

DEcIsIonNs UNDER L. 1850, Cu. 140, § 16.

The commissioners must both view the premises and hear the
proofs and allegations of the parties. The one duty is not
less imperative or important than the other. They are
not to be governed exclusively by evidence, but, having.
viewed the premises and heard the proofs and allegations of the
parties, are then to determine, in the free exercise of their own
judgment, the compensation which ought justly to be made.
Troy & Boston R. R. Co. v. Lee, 13 Barb., 169; in re Rondout >
Oswego R. R. Co.v. Deyo, 5 Lans., 298; in re N. Y. Elev. R. R. Co,
29 St. Rep., 190; 8 N.Y. Supp., 707; inre Kings Co. Ll. Ry. Co. t.
Smith; Same v. Bryan, 15 N.Y. Supp., 516, 517; 39 St. Rep., 876; inre
Met. El. Ry. Co., 13 N. Y., Supp. 169; 36 St. Rep., 224. They may
again view the premises after the matter has been submitted to
them. i re WV. Y., Lack. & West. Ry. Co. 0. Scheu, 33 Hun, 148;
aff'd 98 N. Y., 664. It is of no consequence that during a part
of the time while the commissioners were on the premises one
of them was separated from the others, provided each viewed
the premises sufficiently to enable him to judge of the amount
of the damages, and provided that the result arrived at is the
result of their joint deliberations. re NM. Y., Lack, & West.
Ry. Co. v. Longwell, 63 Houw., 265. The commissioners may hear
the proof and allegations of the parties either before or after
viewing the premises in their discretion. A/bany Northern R. R.
Co. v. Lansing, 16 Barb., 68. The commissioners may seek informa-
tion from all available sources, by inquiries prosecuted by them
alone, in the absence of the parties. ‘x re Staten I. R. T. Co. »v.
Lazzari, 47 Hun, 398. See Perkins v. State of New York, 113 N.Y,
660. The party claiming damages is deemed the plaintiff and
has the right to openand close. zz re N. V., Lack. & West. Ry-
Co. v. Scheu, 33 Hun, 148; aff'd 98 N. Y., 664. It is not essential
that knowledge of value should be derived by witnesses from
actual experience in buying and selling, or being present at a
sale, but it is sufficient that it is derived from the opinion of
others in connection with an acquaintance with the locality. iw
re Rondout & Oswego R. R. Co. vs. Deyo, 5 Lans., 298. The proper
inquiry for the commissioners is first, what is the fair market
value of the entire property before the taking, and then what
will be the fair market value of the property not taken, after
the railroad is constructed upon that taken. The difference
will be the amount of compensation to be awarded. inre Utica,
C.& SVR. R. Co. v. Mening, 56 Barb, 456; in re Poughkeepsie

.
ComMISSIONERS. 309

«> Eastern R. R. Co., 63 Bark., 151; in re Prospect Park & Coney I.
R. KR. Co. v. Moynahan, 13 Hun, 345; 16 Hun, 261; Same v. Sheehy, .
24 Hun, 199; inre N. VY. C.& H.R. R. Co.v. Judge, 15 Hun, 63;
in re N. Y., Lack. & West. Ry. Co. v. Haskin, 29 Hun, 1; in re N.
Y., WS. & B. Ry. Co.v, Dudleston, 29 Hun, 609; but see Troy &
Boston R. R. Co. v. Lee, 13 Barb., 169; Canandaigua N. F. R. R.
Co. v. Payne, 16 Barb., 273, Albany Northern R. R. Co. v. Lansing, 16
4arb., 68; Black River & M. R. R. Co.v. Barnard, 9 Hun, 10g; in
re N.Y., Lack, & West. Ry. Co. v. Arnot, 27 Hun, 151; in re N. Y.,
W.S. & B. Ry. Co. v. Bell, 28 Hun, 426; In re Gilbert Elev. Ry. Co.,
JS Hun, 438. The provision that the commissioners shall not
“make any allowance or deduction on account of any real or
Supposed benefits,” &c., applies simply to the land actually
taken, but to ascertain the damages to the residue of the own-
-er’s land not taken, involves necessarily an inquiry into the effect
of the road upon the property, and a consideration of all the
advantages and disadvantages resulting and to result there-
from. Mewmanv. Met. El. Ry, Co.,118 N. Y., 618; in re Brooklyn
Ll. R.R. Co., 55 Hun, 165; Pardy v. Man. El. Ry. Co. 13 N. V. Supp.,
295; as to depreciation caused by noise and vibration, see im re
Kings Co. Elev. Ry. Co.v. Smith; Samev. Bryan, 15 N.V. Supp., 516, 517;
J9 St. Rep., 876. Compensation includes not only the value of
the portion taken, but also the diminution in value of that
from which it is severed. Rochester & Syracuse R. R. Co. v. Bud-
Long, 6 How., 467; Hendersonv. N. V.C. R. R. Co.,78 N.YV., 423; in
re N.Y C& AR. R. R. Co. 0. Met. Gas Light Co., 6 Hun, 149.
But it is not competent for witnesses to express opinions as to
the separate items of damages resulting to the land not taken.
inre N.Y. W S.& B. Ry. Co. v. Dudleston, 29 Hun, 609. It is
proper for the party whose land is taken to show the pur-
pose for which the land had been purchased and for which it
was intended to be used, and how far the taking of a portion of
such land damages the remainder for such purpose. ire WV. Y.
C.& H.R. R.R. Co.v. Met. Gas Light Co.,6 Hun, 149. But the pos-
sibility of such use must must be real and positive, not specula-
tive or imaginary. ire NV. Y., Lack. & West. Ry. Co. v. Junction
Canal & R. R. Co., 27 Hun, 176; distinguishing, 7” re Boston, Hoosac
T. & W. Ry. Co. v. Troy & Boston R. R. Co., 22 Hun, 176, and in re
Black River & M. R. R. Co. v. Barnard, 9 Hun, tog. In regard to
appraisal of leasehold estates, see in re V. V.,.W.S. & B. Ry. Co.
v. Cosack, 35 Hun, 633; Samev. Bell, 28 Hun, 426;in re N.Y.C.&
H.R.R.R. Co. v. Pierce, 35 Hun, 306. The compensation is to
310 THE ConpEMNATION Law.

be determined by the detriment occasioned to the owner of the
land taken and should be neither increased nor diminished by
reason of the fact that the land taken is peculiarly well or ill adapt-
ed to the uses of arailroad. ia re-Boston, Hoosac Tunnel& IV. Ry.
Co., 22 Hun, 176; Black River & M. R. R. Co.v. Barnard, 9 Hun,
og; but see inre NV. Y., Lack. &= WR. R. Co. v. Junction Canal
R.R. Co., 27 Hun, 116. The condition of the premises when the
proceedings are instituted is the proper inquiry; and structures
wrongfully placed upon the lands by the railway company be-
come by that act a part of the land and enter into its value.
But it is the value, not the cost, of such structure that is to be
determined. iv re NV. Y., IV OS. & B. Ry. Co. v. Gennett, 37 Hun,
jgr7. If ties and rails are laid under a license, the owner is not
entitled to the additional value which they give to the land,
in re Norwood & Montreal R. R. Co. 28 W. D., 358; 47 Hun, 489;
McNair v. Roch. N.Y. & Penn. R. R. Co., 38 St. Rep. 271; 14 N.Y.,
Supp. 39. An error committed upon the hearing by the com-
missioners is not cured by a certificate made by them after their
report has been signed and delivered, stating that inestimating
the damages, they did not adopt the erroneous basis. in re WV.
Y., Lack, & West. Ry. Co. v. Haskin, 29 Hun, 1; nor by sucha
statement inserted in their report, iv re VM. V, W.S.& B. Ry.
Co. v. Sutherland, 35 Hun, 260. In case a question arises as to the
correctness of the minutes as returned, the commissioners not
being charged with any bad faith or irregularity, the question
should be settled by the commissioners, in re MV. V., WS &
B. Ry. Co. v. Judson, 33 Hun, 293. This section requires the re-
port to be signed by a majority of the commissioners, but does
not require them all to be together at the signing; nor is there
any rule of law or principle of public policy requiring it. i re
Rochester & Genesee Val. R. R. Co. v. Beckwith, 10 How., 168.

DECISIONS UNDER L. 1875, CH. 606, § 20.

The provision that the commissioners shall not “make any
allowance or deduction on account of any real or supposed ben-
efit,” &c., applies simply to the land actually taken, but to ascer-
tain damages to the residue of the owner’s land, not taken, in-
volves necessarily an inquiry into the effect of the road upon
the property and a consideration of all the advantages and
disadvantages resulting and to result therefrom. Mew-
man v. Met. E. Ry. Co, 118 N. Y., 618; Gray v. Man. El. Ry.
Co, 12 N. Y. Supp, 542; 35 St. Rep, 32; ‘aff'd 128 N. Y,
499; in re Brooklyn E. R. R. Co, 55 Hun, 165. An award
‘

CoNFIRMATION OF ReporT—FINAL ORDER. 318

of damages in an action for unlawful occupation, and seek-
ing an injunction, which determines the value of the ease-
ments, with provision in the judgment that on payment of that
sum a conveyance should be executed is not z¢es edjudicata on the
question of value in a proceeding to acquire title. 7 re Met. E/-
Ry. Co., 58 Hun, 563; appeal dismissed, 128 N. Y., 600; but see mem.,.
which seems to refer to above ruling as an “error.” (See §125
of Railroad Law and cases cited.)

s

§ 3371. Confirmation of report ; rehearing; final
order; deposit of award.—Upon filing the report of
the commissioners, any party may move for its confirma-
tion at a special term, held in the district where the prop-
erty 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 commission-
ers, Or May appoint new commissioners for that purpose,
and the proceedings upon such rehearing shall be con-
ducted 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 prescribed for the confir-
mation of the first report. If the report is confirmed, the
court shall enter a final order in the proceeding, directing
that compensation shall be made to the owners of the
property, pursuant to the determination of the commis-
sioners, and that upon payment 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, pursu-
ant to the direction of the court, shall be deemed a pay-
ment within the provisions of this title.

L, 1850, ch. 140, $17.
L. 1875, ch. 606, § 21.

See Zrustees of N. VY. & B. Bridge Co. v. M. E. Church, 18 N. Y-
' Supp., 257; 45 St. Rep., 615.
gi2 THE ConDEMNATION Law.

DECISIONS UNDER L. 1850, CH. 140, § 17.

Notwithstanding the imperative language of this section,
that the company “shall give notice,” no obligation to give
such notice is imposed upon the company. in re Syracuse B.
R. R. Co., 4 Hun, 311; In ve Rhinebeck & Conn. R. R. Co. v. Radcliffe
67 N. Y., 242.

The court at special or general term has power, in its discre-
tion, to set aside the report on sufficient cause shown, as for
irregularity, fraud, misconduct, or mistake on the part of the
commissioners. inre NV. V.C.@H.R.R. R. Co. v. Cunningham, 5 Hun,
105; appeal dismissed, 64 N. Y.,60; in re N. Y., L.& W. Ry. Co.v. Wolfe,
29 Hun, 602; aff'd 93 N.Y., 385; Roch. & Gen. Val. R. R. Co. v. Beck-
with, 10 How., 168; in re Buf.,.N. Y.& Phil. R. R. Co. v. McIntosh,
32 Hun, 289; or upon the ground that the landowner has been
misled to his prejudice by erroneous information as to his legal
tights, in re N.Y, L.& W. Ry. Co. v. Longwell, 63 How., 265; ot
the landowner having been in default, upon his explaining and
excusing his default, Same v. Wolfe,93 N. Y., 3&5; or upon the
ground that the report does not properly describe the land
proposed to be taken, ure N.Y. & Jamaica R. R. Co. v. Wilson,
21 How. 434; see N.Y. & E.R. R. Co. v. Corey, 5 How., 177; Al-
bany N. R.R. Co. v. Cramer,7 How., 164. It is sufficient cause for
the exercise of this discretion that there has been such irregu.
larity, fraud or mistake on the part of the commissioners as
would authorize the court under its established practice, to set
aside averdict or report ofareferee on motion. inve MY.C.& #.
R.R.R. Co. v. Cunningham, 64 N. Y., 60; in re N.Y. Elev. R. R. Co.0.
Story, az Hun, 502. A “second report’ may also be set aside
upon grounds which would be sufficient to set aside the first.
in ve Frospect Park & Co. I. R. R. Co., 85 N.Y., 489; inre N.Y. Elev.
R.R. Co., gr Hun, 502, in re Buffalo, N. Y. & Phila. R. R. Co. v. Me-
Lntosh, 32 Hun, 289; in re N. Y., Lack. & West. Ry. Co., ro2 N.Y.,
704, 711. Jt seems, that an order setting aside the report may be
made upon a special motion made upon notice for that purpose,
or upon the motion to confirm the report. inre V. V.,, L.& W.
Ry. Co. v. Wolfe, 93 N. ¥., 385. But a motion to remove the com-
missioners is premature if made before the award. (So held in
a case where the commissioners were named in a contract be-
tween the parties.) iu re V. Y., Lack. & W. Ry. Co., ro2 N. Y., 704.
The exercise of this discretion may be questioned and reviewed
at general term, but not in the court of appeals. in ve W. Y.C.
& H.R. R. R. Co. v. Cunningham, 64 N. Y.. 60. But if the order
t

FinaL ORDER—OFFER TO PurcHasE. 313

setting aside the report does not rest in discretion, but involves
a substantial right, an appeal may be had even to the court of
appeals. in re Pros. Fark & C. I. R. R. Co. 85 N. V., 489, 496; inve
IVs Moi? FE, BR. C8, 9S MN. WV 725 FO,

But when the proceedings have been regular, and due notice
of the motion for confirmation has been given, the order of con-
firmation follows as a matter of course. WV. V.& E.R. R. Cov.
Corey, 5 How., 177; in re N.Y. Elev. R. R. Co. v. Story, 35 Hun, 414.
No error ot law, committed by the commissioners in their de-
cision of the merits, or upon the admission or rejection of evi-
dence, can be reviewed or examined on the application to con-
firm their report. Such decision can only be reviewed on ap-
peal from, the appraisal and report. Leochester & Gen. Val. R. R.
Co. uv. Beckwith, 10 How., 168, (but see §3371 above.) The fact
that the commissioners received from the company compensa-
tion for their services beyond the allowance prescribed by the
act, is not sufficient cause for setting aside their report. in re
Staten Ist. R. T. Rk. R. Co. v. Hamilton, 41 Hun, 392.

The service of the notice of motion for confirmation is only a
step in the proceeding,—a matter of practice. Jurisdiction is
obtained by the service of the petition and of the notice of its
presentation, and it is not necessary to show as a matter of juris-
diction, when the proceedings are attacked collaterally, that
the notice of motion for confirmation was given. Allen v. Utica,
IL& E.R. R. Co., 15 Hun, 80. It is said in Bloomfield, &c., Gas
Light Co. v. Calkins, 62 NV. Y., 386, that there is no objection to an
application by the landowner for the confirmation of the re-
port.

(See section above.)

§ 3372. Offer to purchase; acceptance of same;
costs and allowances.—In all cases where the owner is
a resident and not under legal disability 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 can not be given in evi-
dence before the commissioners, or considered by them.
The owner may at the time of the presentation of the peti-
tion, or at any time previously, serve notice in writing of —
the acceptance of plaintiff's offer, and thereupon the plain-
S14 THe ConpEeMNATION Law.

tiff 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 peti-
tion, and take ana hold it for the public use therein speci-
fied. If the offer is not accepted, and the compensation.
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 compensa-
tion awarded shall exceed the amount of the offer with
interest from the time it was made, or if no offer was made,
the ceurt shall, in the final order, direct that the defendant
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 exceed-
ing five per centum upon the amount awarded. The court
shall also direct in the final order what sum shall be paid
to the general 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 interposi-
tion of the unsuccessful defence, 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.
L. 1850, ch. 140, § 16, (part.)
L. 1875, ch. 606, § 20, (part.)

Decisions UNDER L. 1850, Cu. 140, § 16.

In these proceedings the court may, in its discretion, award
costs to any party at the rate allowed for similar services in an
action. in reN. Y., L.& W. Ry. Co. v. Wagner, 26 Hun, 592. But
no extra allowance can be granted. in re R.& S.R.R. Cov.
Proceepincs AFTER FINAL ORDER. 315

Davis, 55 N. Y., 145. The general term has nd power on appeal
by the company from the order of confirmation to award costs
against the owner. inre MV. Y., W. S. & B. Ry. Co. v. Walsh, 94
NV. Y.,287. Quere, as to whether the expenses of taking the land
can ever be charged against the owner. iz re Ulster & D. R. R-
Co. v. Gross, 314 Hun, §3.

§ 3373. Compensation awarded, docketed asa
judgment; writ of assistance. —Upon the entry of
the final order, the same shall be 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 or
expenses of the proceeding, shall be docketed as a judg-
ment against the person who is directed to pay the same,.
and it shall have all the force and effect of a money judg--
ment in an action in the supreme court, and collection.
thereof may be enforced by execution and by the same
proceedings as judgments for the recovery of money in
the supreme court may be enforced under the provisions
of this act. When payment 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
ordér has been served upon the owner, he shall, upon de-
mand of the plaintiff, deliver possession thereof to him,.
and in case possession ‘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 assist-
ance, 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. ,

L. 1850, ch. 140, § 18, (am’d by L. 1876, ch. 198.)
L. 1875, ch. 606, § 22, ,

DECISIONS UNDER § 3373.

The final order was intended to immediately follow the con-
firmation of the report. The entry of such order fixes the date-
from which interest must be computed onthe award. Trustees
of N.Y. & B. Bridge Co.v. M. E. Church, 18 N. Y. Supp, 257 5°
45 St. Rep., 615.
316 Tue ConDEMNATION Law.

DECISIONS UNDER L. 1850, Cu. 140, § 18.

The company does not acquire any greater rights than the
-parties against whom it proceeded possessed. Anderson v. Roch-
ester, L.& N.F.R. R. Co.,9 How., 553. It is said that the company
does not acquire the same unqualified title, and right of disposi-
tion, to the real estate taken for its road and paid for according
to this act, which individuals have in their lands. Albany
Northern R. R. Co. v. Brownell, 24 N. V., 345. Ininre N. Y.& 4.
R.R.R. Co, 98 N. Y., 72, it is said that after the payment or dis-
position of the first award, the landowner has, during the cor-
porate existence of the company, lost all right, estate and inter-
est in the land, as well as the use thereof; and in Crowner v,
Watertown & R. R. R. Co., 9 How., 457, that this is in substance and
-effect a statutory conveyance of the land, wholly divesting the
owner of his title, and vesting it in the company. A proceeding
to acquire lands by condemnation operates when perfected as a
statute transfer of the title to the corporation, and in a legal
sense is a purchase of the land, or an interest in the land, by the
corporation for the price ascertained by the constitutional
method. The interest acquired, whatever its exact legal char-
acter, is scarcely less than a fee. If a technical reversion
remained, the interest is so remote that its value is scarcely
appreciable. Vandermulen v. Vandermulen, 108 N. Y., 1953 see in
ve Hartford & Conn. Western R. R. Co., 65 How., 133.

~

In regard to the estate acquired by these proceedings,
see the following cases for the construction of similar
statutes: Afunger v. Tonawanda R. R.Co, 4 N. Y., 349; Heard v.
The City of Brooklyn, 60 N.Y.,242; Strong v. Same, 68 N.Y. 15
Terry uv. N.V.C.& H.R. R. R. Co., 67 How., 439 ; Beal v. Same, 41
Hun, 172, aff'd r19 N. Y., 635 ; Wash. Cemeteryv. P,P. & CLR. RK.
Co., 08 N. Y., 591; Minerv.N.V.C.& H.R. RR. Co, 123 NvY.,
242. Prior tothe passage of L. 1854, ch. 282, sec. 5, it was held
at special term that the court had no power to award any process
to aid the company in securing to itself the possession and use
of the land acquired under the provisions of this act. Magara
F.& L.O.R. R.Co.v. Hotchkiss, 16 Barb. 270, But whether it
then had such power or not, section 5 of the act of 1854 clearly
confers it. inre NV. V.C.&@ H.R. R R.Co.v. Armstrong, 60 N.
Y., 776. Prior to the amendment of 1876, it was held that after
the confirmation of the report, the landowner was entitled to
have the order and papers filed, and, in default of the payment
or deposit of the award by the company, to a precept for its col-
ABANDONMENT OF PROCEEDINGS, ai7

lection. ix re Rhinebeck & Conn. R. R. Co.v. Radcliffe, 67 N.Y.,.
242.’ This section does not require that the order be recorded in
the book of conveyances, but a recording in the office of the:
county clerk is a sufficient compliance. Morganv. NV. Y.& M.
Ry. Co, 7 N.Y. Supp. 731; 28 St. Rep., 86; afd 130 N. Y., 604. It.
is essential to constitute a cause of action against a company -
for an award that it should be alleged in the complaint that the:
final order, or a certified copy thereof had been recorded at full
length in the clerk’s office of the county where the land is sit-
. uated, and until that is done there is no debt against the com-
pany. Lent v. NV. Y.& M. Ry. Co., 130 N. Y., 504; see in re Met.
El. Ry. Co. v. Levy, 13 N. VY. Supp., 967 + 36 St. Rep., 606,

$ 3374. Abandonment of proceedings by plain-
tiff.—Within thirty days after the entry of the final order
the plaintiff may abandon the proceeding, by filing and
serving a written notice of his determination to do so, and
paying the fees and expenses of the commissioners, and.
the costs and expenses directed to be paid in such order ;.
and thereupon payment of the amount awarded for com-
pensation shall not be enforced, but in such case the plain-
tiff shall not renew proceedings to acquire title- to such.
lands or any part thereof without a tender or deposit in.
court of the amount of the award and interest thereon.

L. 1850, ch. 140, § 18.

DEcISIONS UNDER L, 1850, Cu. 140, § 18.

Whether or not, under the amendment of 1876, the company
must tender the amount of the award before renewing the pro-
ceedings, is a question to be determined on the trial of the
issues raised by the petition and answer. It can not be disposed
of as an objection to the petition on its face upon the hearing of
the motion for the appointment of commissioners. iz re MV. Y..,.
W.S. & B. Ry. Co. v. Watson, 64 How.,278. IninreS, Bi& NY.
R. R. Co., 4 Hun, 777, an extra allowance granted upon the aban-
donment of the proceedings by the company, was stricken out.
See in re WV. Y., W. S.& B. Ry. Co. v. Watson, 18 W. D., 536; in re
N.Y, W.S. & B. Ry. Co. v. Thorne, 1 How., (N. S.) 190. Upon
the abandonment of the proceedings by the company, an order
allowing the landowners “their reasonable disbursements and
counsel fees” was sustained. im re NV. Y., WS. & B. Ry. Co. v-
Thorne, (above.) At any time before the order of confirmation is. |
318 THe ConpEeMNaTION Law.

made, the company may abandon the proceeding. /d@. inre NV.
Y., W. S. & B. Ry. Co. v. Watson, 18 W. D., 536. See Hudson River
RR. Co. v. Outwater, 3 Sandf., 689. It is usual and proper to apply
to the court for leave to abandon the proceeding, and upon such
application it is within the power of the court to annex such
terms to go with the favor as under the circumstances justice
and fairness to the landowner require. in re MYV,,W.S.& B.
Ry. Co. v. Thorne, x How. (N. S.) 190, in re Waverly Water IVorks
Co., 85 NV. Y., 478.

$ 3375. Appeal from final order; stay of pro-
-ceedings.—Appeal may be taken to the general term of the
supreme court from the final order, within the time provid-
-ed 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 general term from orders of the special
term shall apply to such appeals. Such appeal will bring
up for review all the proceedings subsequent to the judg- .
ment, but the judgment and proceedings antecedent
thereto may be reviewed on such appeal, if the appellant
States in his notice that the same will be brought up for
review, and exceptions shall have been filed to the decision
of the court or the referee. and a case or a case and excep-
tions 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 pro-
ceedings 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 prop-
erty taken, and the appeal of a defendant shall not be
heard except on his stipulation not to disturb such posses-
Sion.

L. 1850, ch. 140, § 18.
L. 1875, ch. 606, § 22.

Decisions UNDER L. 1850, Cu. 140, § 18.

The statute, notwithstanding the company takes possession
of the lands and pays or deposits the amount of the award,
gives the right of appeal to both parties, and deprives neither
of such right by taking a benefit under the award. The land-
owner's acceptance of the money under such circumstances is
no waiver and no estoppel. iz re V. V.& H.R. R. Co, 98 N.
Y.,72;in re N.Y, WS. & B. Ry. Co. v. Walsh, 94 N. Y., 287.
APPEALS. 319

This section provides for an appeal from the appraisal and
teport, and not from the order of confirmation. Such appeals
may be heard at general or special term. It is usual to hear
them at general term. 7x re NV. V., IV. S.& B. Ry. Co. v. Hart,
35 Hun, 575. lf the appealis heard at special term, an appeal
lies to the general term from the order of the special term. ix
reN.Y., WLS. & B. Ry. Co. v. Lang, 33 Hun, 237. It is the prac-
tice of the court, and the policy of the law to have appeals heard
at the general term, and a motion to have such appeal heard at
special term was properly denied. in re Met. El. Ry. Co. v. Bache,
57 Hun, 130. In reviewing these proceedings on appeal, the tes-
timony taken must be considered as part of the report. 7x re
Rondout & Oswego R. R. Co, v. Deyo, 5 Lans., 298 On an appeal
under this section the court will not direct a new appraisal,
except for substantial-errors. Technical errors in the admis-
sion or rejection of evidence will be disregarded, unless it ap-
pears that such error has injuriously affected the party appeal-
ing. Troy & Boston R. R. Co. v. Lee, 77 Barb, 169; N. V.C.R.R.
Co. v. Marvin, 11 N. Y., 276; in re N. V., L. & W. Ry. Co. v. Junc-
tion Canal & R. R. Co., 27 Hun, 116. in ve BH. T.& W. Ry. Co.
v. Turnbull, 31 Hun, gor. There is no appeal to the court of ap-
peals from an order made at general term, confirming the report
of commissioners. za re NV. Y.C.R. R. Co. v. Marvin, rr N. Y.,
276, in re D. & H.C. Co., 69 N. Y., 209; in re Met. El. Ry..Co., 128
NV. Y., 600. By receiving the compensation awarded by the
‘commissioners appointed under this section the landowner
waives his right to appeal from the order appointing them. iz
re N.Y.& Harlem R. R. Co., 799 Hun, 338. The fact that the
‘company itself obtained a confirmation of the report does not
estop.it from taking an appeal to review the report of the com-
missioners. Met. Z. Ry. Co.v. Levy, 13 N. V. Supp., 367, 36 St. Rep.,
600.

§ 3376. Appeal from judgment in favor of de.
fendant.—If a trial has been had and judgment entered
in favor of the defendant, the plaintiff may appeal there-
from to the general term within the time provided for ap-
peals from judgments by title four of chapter twelve of
this act, and all the provisions of such chapter relating to
appeals from judgments shall apply to such appeals; and
on the hearing of the appeal the general term may affirm,
reverse or modify the judgment, and in case of reversal
320 Tue ConpEMNATION ‘Law,

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.——On the hearing of the ap-
peal from the final order the court may direct a new ap-
praisal before the same or new commissioners, in its discre-
tion, and the report of such commissioners shall be final
and conclusive upon all parties interested. If the amount
of the compensation to be paid is increased by the last re-
port, the difference shall be a lien upon the land appraised,
and shall be paid to the parties entitled 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.

L. 1850, ch. 140, § 18.
L. 1875, ch. 606, § 22.

DECISIONS UNDER L. 1850, CH. tq4o, § 18.

A party is not entitled to anew appraisal on appeal under
this section as a matterof right. ‘ May” is not to be construed
here as meaning shall or must. NV. Y.& Erie R. R. Co. v. Coburn, 6
How., 223. New appraisals have been directed because of the
rejection of evidence which the party was entitled.to give and
have considered by the commissioners, and which, had it been
received, might have led to a more favorable report for him.
Rochester & Syracuse R. R. Co. v. Budlong, 6 How., 467; because of
the admission of incompetent testimony. i reN.V,L.& W.
Ry. Co. v. Arnot, 27 Hun, 151; invre N. Y.. W.S. & B. Ry. Co. v. Bell,
28 Hun, 426; inrve N. YV.,L.& W. Ry. Co. v. Haskin, 29 Hun, 1; in
re VN. Y., WLS. & B. Ry. Co. v. Dudleston, Id, 609; in re N. Y., W,
S.& B. Ry. Co, v. Lang, 33 Hun, 231; in re Same v. Sutherland, 35
Hun, 260; when the commissioners have followed a wrong prin-
ciple in estimating the damages, or have adopted an improper
measure of damages. in re Pros. Park& C. TI. R. R. Co. v. Moyna-
han, 13 Hun, 345; n ve BH. T.& W. Ry. Cov. T.& BRR.
Co., 22 Hun, 176; inre N. Y., L. & W. Ry. Co. v. Arnot, 27 Hun, 151;
in re N.Y, WS. & B. Ry. Co. v. Le Fevre, 27 Hun, 537; in re N.
New APPRAISAL. 321

Y., L.& W. Ry. Co. v. Haskin, 29 Hun, Z; in re Same v. Bennett, 33
Hun, 639, in re N.Y. Elev. R. R. Co.v. Story, 36 Hun, 427, and because
.the award was palpably excessive and unjust. i re WV. Y., W.
S. & B. Ry. Co. v. Chrystie, 29 Hun, 646. The provision of this
section making the second report of the commissioners final
and conclusive, is constitutional. in re Pros. Park & C.J. R.R.
Co., 85 N. Y., 489. This provision was not abrogated by L. 1854,
ch. 270. inrve D. & H.C. Co, 69 N. Y., 209. It is a bar as well
to areview by a common law certioari as by appeal. People ex
vel, Schuylerville & U. H. R. R. Co. v. Betts, 55 N. Y., 600. Tf, wpon
appeal from the appraisal and report, as provided in this sec-
tion, the court, in its discretion, makes an order directing a new
appraisal before the same or new commissioners, such order is
not reviewable by the court of appeals. inve MV. V., WS. & B,
Ry. Co. v. Walsh, 94 N. V., 287; in re NN. V.& H.R. R. Co, 98 N.
Y., 12; in re Southern Boulevard R. R. Co., 128 N.Y. 93. The court
of appeals having reversed the order appointing commissioners
after their report had been made and confirmed, new proceed-
ings were instituted, new commissioners were appointed and
their report confirmed. It was held that the report of the
new commissioners was not a “second report” within the mean-
ing of this section. im re N.Y, WS. & B. Ry. Co. v. Chrystie, 29
Hun, 646. Tf, upon a second appraisal, the award is diminished,
the landowner, upon refunding the difference, is not obliged to
pay interest thereon, except from the time the final report was
confirmed by the court, and the order of confirmation served
upon him or his attorney. in ve WV. Y. Elev. R. R. Co. v. Story, 44
Hun, 117. Where the order of confirmation has been recorded
and the money deposited, if on a second appraisal the award is
increased, the company can not by changing the route of its
road avoid the payment of such increased compensation on the
ground that the premises are not required for its road. Crowner
v. Rome & Watertown R. R. Co., 9 How., 457.

A “second report” which does not increase or diminish the
amount awarded by the first report, need not be presented to
the court for confirmation or any further action. If it increases
or diminishes the amount awarded by the first report, then the

' further action of the court is needed, not for the confirmation
of the report, but for the purpose of regulating the difference
between the awards of the first and second reports. im re Pros-
pect Park CI. RR. Co. 85 N.Y., 489. (See § 3371 above.)

U
322 Tue ConpEeMnaTION Law. |

§ 3378. Adverse claimants to compensation.—
If there are adverse and conflicting claimants to the money,
or any part of it, to be paid as compensation for the prop-
erty taken, the court may direct the money to be paid into
the court by the plaintiff, and may determine who isentitled
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 direction are to
be made.

L. 1850, ch. 140, § 19.
L. 1875, ch. 606, § 23.

DECISIONS UNDER L. 1850, CH. 140, § 19.

The provisions of this section for paying the money into
court, in case there are adverse and conflicting claimants, is not
unconstitutional. If there are liens upon the land, an order
directing that the money be deposited is appropriate. Whether
the order directs that it be drawn out on an ex farte application,
or on notice, would not affect its validity. in re MV.C& 2H.
R.R. R. Co. v. Armstrong, 60 N.Y.,176. Fora case in which a ref-
erence was ordered to ascertain the facts, seein re NV. V.C.&
H.R. R. R. Co., 90 N. Y., 342.

§ 3379. Court may authorize plaintiff to remain
in possession ; stay of actions.—At any stage of the
proceeding the court may authorize the plaintiff, if in pos-
session 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 payment of the compensation
which may be finally awarded to the owner therefor and
the costs of the proceeding, and in every such case the
owner may conduct the proceeding to a conclusion, if the
plaintiff delays or neglects to prosecute the same.

LL. 1850, ch. 140, § 21.
‘L. 1875, ch. 606, § 24.

‘This section has no application to a case where the company
originally took possession as a trespasser. in re Adirondack &
St. Law. R. R. Co. v. De Camp, 133 N. Y., 270. Quare, whether it is
constitutional. /d.
PossEssioN—STAY—NOTICE OF PENDENCY. 323

§ 3380. Entry into possession after answer, on
deposit.— When an answer to the petition has been inter-
posed, and it appears to the satisfaction of the court that
the public interests will be prejudiced by delay, it may
direct that the plaintiff be permitted to enter immediately
upon the real property to be taken, and devote it tempora-
rily to the public use specified in the petition, upon depos-
iting with the court the sum stated in the answer as the
value of the property, 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, returned 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 defend-
ant 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 appointed for that purpose, and if the sum so depos-
ited shall be insufficient 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.

This provision fully satisfies the constitutional obligation in
that it provides for compensation in case of a successful resist-
ance of the proceeding bythe landowner. in re Adirondack &
St. Law. R.R. Co. v. DeCamp, 133 N. Y., 270.

§ 3381. Notice of pendency of proceedings ;
effect.— Upon service of the petition, or at any time after-
wards 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
324 Tue ConpEemnation Law.

incumbrancer of the property affected thereby, from or
against a defendant with respect 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.

L. 1854, ch. 282, § 6.
L. 1875, ch. 606, § 18, sub. 7, (am’d by L. 1888, ch. 514, § 1.)

§ 3382. Court may make necessary orders to
carry proceedings into effect.—In 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 proceed-
ings 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.

L. 1854, ch. 282, § 5.
L. 1875, ch. 606, § 18, sub. 7,(am’d by L. 1888, ch. 514, § 1.)

Decisions UNDER L. 1854, Cu. 282, § 5.

This section empowers the supreme court to make an order
or issue process to put a railroad company in possession of lands
acquired by proceedings under the general act. inre V. Y.C.
& H. R. R. R. Co. v. Armstrong, 60 N. Y., 116, ( but see § 3373.) It
also authorizes an order directing the railroad company to pay
or deposit the amount of the award as required by the order of
confirmation, and in default thereof, that a precept issue for
its collection. cu re Rhinebeck & Conn. R. R. Co. v. Radcliffe, 67
N. Y., 242, (but see § 3373.)
REPEAL. 325

$ 3383. Repeal.—So much of all acts and parts of
acts as prescribe a method of procedure in proceedings for
the condemnation of real property for a public use is re-:
pealed, 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 pub-
lic place in an incorporated city or village, or as may pre-
scribe 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.

(As am’d by L. 1890, ch. 247.)

§ 3384. Title, when 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 proceed-
ing previously commenced.
CHAPTER XIII.

THE GENERAL MUNICIPAL LAW—MUNICIPAL AID
BONDS.

PRELIMINARY Note.—The repeal by L. 1892, chapter 685, (the
general municipal law,) of the laws relating to town bonds in
aid of railroads, renders it unnecessary to set out at length
the text of the repealed statutes, but itis believed that the im-
portance of the cases decided warrants their preservation in
accessible form. Provisions for the issue of bonds were abro-
gated by art. 8, § 11, of the state constitution, (which see, chap. 1)

These cases will be found grouped under appropriate provis-
ions of the general municipal law.

The following cases, decided under various local statutes,
should be consulted: People ex rel. Akin v. Morgan, 55 N. Y., 587;
People ex rel. Dunkirk, Warren & Pittsburgh R. R. Co. v. Batcheller,
53 N.Y., 128; People ex rel. Vawger v. Allen, 52 N. Y., 538; People
ex rel. Hetfield v. Trustees of Fort Edward, 70 N. Y.,28;: Alvord v.
Syracuse Savings Bank, 98 N. Y., 599; Thompson v. Town of Mama-
hating, 37 Hun, goo; Williams v. Town of Duanesburgh, 66 N. Y.,
129; Cagwinv. Town of Hancock, 84 N. Y.,532; Horton v. Town of
Thompson, 71 N. Y., 513; Gould v. Town of Oneonta, 71 N. Y., 298;
Town of Springportv. Teutonia Savings Bank, 84 N. Y., 403; 75 N.
V., 397, Dodge v. County of Platte, 82 N. Y., 218; First Nat. Bank
of Qxfordv. Wheeler, 72 N. Y., 201; McCall v. Town of Hancock, ro
Fed. Rep., 8 Trwin v. Town of Ontario, 18 Blatch., 259; Phelps v.
Town of Lewiston, 15 Blatch.,131; Purdy v. Town of Lansing, 128 U.
S., 5573 People ex rel. N. Y.& Canada R. R. Co. v. Barrett, 18 Hun,
206; Same v. Hutton, Id., 116; Town of Duanesburgh v. Jenkins, 57
N. Y., 177; Mellen v. Town of Lansing, 19 Blatch., 512; Thompson v.
Perrine, 106 U. S., 589; 103 U.S., 806; Draper v. Springport, 104 U.
S., 501; Cooper v. Town of Thompson, 13 Blatch., 434; Foote v. Town
of Hancock, 15 Blatch., 343; First Nat. Bank of Oswego v. Town of
Wolcott, 19 Blatch., 370; Scipiov. Wright, ror U. S., 665; Miller v.
Town of Berlin, 13 Blatch , 245.
TirLE—LimIrTaTION OF INDEBTEDNESS. 327

L, 1892, Cu. 685.

AN ACT in relation to municipal corporations, constituting chapter seventeen of '
the general laws.

CHAPTER XVII OF THE GENERAL LAWS.

Tue GENERAL MunicipaL Law.

Section 1. Short title and use of terms.
2. Limitation of indebtedness.
6. Payment of municipal bends.
7. Funding of bonded debts.
8. Issuance of municipal bonds:

9. Registry of municipal bonds.

10. Conversion of coupon into registered bonds.

11. Defects not invalidating municipal bonds.

12, Municipal taxes of railroads payable to county
treasurer.

13. Abolition of office of railroad commissioners.

14. Appointment of railroad commissionérs.

15. Oath and undertaking of commissioners.

16. Exchange or sale of railroad stock and bonds.

17, Annual report of commissioners and payment of
bonds.

18. ‘Accounts and loans by commissioners.

19. Reissue of lost or destroyed bonds.

20, Payment of judgments against municipal corpora-
tions. ~

21. Liability for damages by mobs and riots. *

28. Laws repealed.

29. When to take effect.

Section 1. Short title and use of terms.—This
chapter shall be known as the general municipal law.

The term, municipal corporation, as used in this chapter,
includes only a county, town, city and village. The term,
governing board, includes the board of supervisors of a
county, the town board of a town, the common council of
a city, and the board of trustees of a village.

§ 2. Limitation of indebtedness.—No county
containing a city of more than one hundred thousand in-
habitants, nor any such city, shall contract any debt, the
328 Tue GeneraL Municipal Law—Town Bonps.

amount of which exclusive of its outstanding debts shall
exceed a sum equal to five per cent. of the aggregate val-
uation of the real property within its bounds, as assessed _
for state and county purposes upon the then last corrected
assessment-roll, nor shail it contract any such debt if the
amount thereof inclusive of its outstanding debts shall
exceed a sum equal to ten per cent. of such valuation.

This section shall not apply to debts contracted for the
purpose of retiring or paying an existing indebtedness pur-
suant to the provisions of this chapter.

§ 6. Payment of municipal bonds.—Where the
bonds of a municipal corporation have been lawfully is-
sued| and the payment of the principal or interest thereof
shall not have been otherwise paid or provided for, the
same shall be a charge upon such corporation, and shall be
levied and assessed, collected and paid the same as other
debts and charges. When for any reason any portion of
the principal or interest due upon such bonds shall not
have been paid, the same shall be assessed, levied and col-
lected at the first assessment and collection of taxes by
such corporation after such omission.

L. 1869, ch. 907, § § 1, 2, 5,6, 7,9 andro. ($1am’d by L. 1870,
ch. 173, and L. 1871, ch. 925; § 2 am’d by L. 1871, ch. 925;
§7in part repealed by L. 1886, ch. 593; §10am’d by L.
1871, ch. 925, repealed by L. 1872, ch. 883.)

L. 1870, ch. 507. (Am’d by L. 1871, ch. 925.)

L. 1871, ch. 925, § 4.

L. 1872, ch. 883.

Decisions UNDER L. 1869, CH. 907, § 1.

If any facts required to be stated are omitted from the peti-
tion, all the subsequent proceedings are fatally defective. Peo-
ple ex rel. Rogers v. Spencer, 55 N. Y., 7. It must appear that the
railroad company is a corporation organized and existing in
this state. Jd. See Calhoun v. Delhi & Middletown R. R. Co., 28
fun, 379. People ex rel. Beardsley v. VanValkenburgh, 63 Barb.
4105; Peo. ex rel. Hoag v. Peck, 62 Barb., 545.

It should set forth that the petitioners constitute a majority
of the taxpayers “not including those taxed for dogs and high-
way tax only.” Zown of Wellsborough v. N. Y. & Canada R. R.
Co.,76 N. Y., 182. People ex rel. Green v. Smith, 55 N. V., 135, Rich
-

/

VALIDITY OF PROCEEDINGS FOR ISSUE.’ 329

v. Town of Mentz, 19 Fed. Rep., 725, 134 U. S. 632; Town of Mentz
v. Cook, 22 W. Dig., 476; Wilson v. Town of Caneadea, 15 Hun,
218; Cowdrey v. Same, 16 Fed. Rep. 532. But see Hills v. Peeks-
Rill Sav. Bk., ror N. Y.. 491; Chandler v. Town of Attica, 18 Fed.
Rep., 299; Whiting v. Town of Potter, 18 Blatch., 165. It should
appear that the amount of the bonds proposed to be issued does
not exceed 20 per cent. of the whole taxable property. Angel v.
Town of Hume, 17 Hun, 374. The signatures need not be ap-
pended toa single heading. Calhoun v. Dethi & Middletown R.
R. Co., 28 Hun, 379; People ex rel. Delafield v. Hughitt, 5 Lans., 8&9.

The notice need not specify the place where the hearing will
beheld. The place which the county judge ordinarily occupies
for the transaction of business would be intended. Jd The
petition and verifying affidavit may be construed together to
supply the proper allegations of the petition. Town of Solon v.
Williamsburgh Savings Bank, 35 Hun, 1; 114 N. Y., 122; Third Nat.
Bank of Syracuse v. Town of Seneca Falls, 15 Fed. Rep., 783; Whit-
ing v. Town of Potter, 18 Blatch., 165. The order for notice need
not be in writing nor need it be entered. It is only necessary
that an order be infact made. Town of Solon v. Williamsburgh
Sav. Bk., 35 Hun, z.. The petition must direct whether it is in
stock or in bonds that the money to be raised shall be invested.
People ex rel. Beardsley v. Van Valkenburgh, 63 Barb. 105. See Peo- °
ple ex rel, Delafield v. Hughitt, 5 Lans.,89. The signatures can not
be made by agents, except perhaps where special authority to
sign such petition is given by the taxpayer arid the signature
is made in his presence by his direction. Jd. Seealso People ex
rel. Hoag v. Peck, 4 Lans., 520; People ex rel. Freeman v. Hulburt,
46 N. Y., 110. Proof of the identity of petitioners who sign
with the initial letters of the Christian names, with the names
appearing on the last assessment roll must, be given. Peo-
ple ex vel. Haines v. Smith, 45 N. Y., 772; People ex rel. Sutton
u. Franklin, 3 T. & C. 794. Prior to the passage of the
amendment allowing conditional subscriptions, it was held
to be a fatal defect that about one fourth of the petitioners
attached to their request a condition that the road should be
located upon a specified line, the remaining signers not consti-
tuting a majority ot the taxpayers; Craig v. Town of Andes, 93
NV. Y., 405, see 121 N. Y., 69. See Calhoun v. Delhi & Middletown
R.R. Co., 28 Hun, 379. A recitalin the bond that all necessary
legal steps have been taken to comply with the statute, does
not estop the town from questioning the validity of the bond
330 THE GENERAL MunicipaL Law—Town Bonps.

even in the hands of a bona fide holder. Craig v. Town of Andes,
93 N. Y., 405; see 121 NV. Y., 69; Contra, Third Nat. Bank of Syracuse
v. Town of Seneca Falls, 15 Fed. Rep., 783; Orleans v. Platt, 99 UV.
S., 676. In order to warrant the issue of bonds under this act
there must be a corporation de jure having power to issue stock
and bonds. Farnham v. Renedict, 107 N. Y., 159. As to the force
of the word “representing,” see Zown of Solon v. Williamsburgh
Sav. Bk. 114. N. Y., 122. See also Town of Mentz v. Cook, 108 N.
Y., 504. The burden of proving want of jurisdiction is on the
town. Craig v. Andes, 93 N. Y.,405; see 121 NV. Y.,69. An equit-
able action is maintainable under L. 1872, ch. 161, at the suit ot
a taxpayer of the town to restrain the negotiation or payment
of invalid bonds and to compel their cancellation. JAfetzager v.
Attica & Arcade R. R. Co. 79 N. ¥., 172. An action may be
brought under ch. 531 of the laws of 1881, by a taxpayer against
the supervisor, the bonding commissioners of the town and the
holder of the bonds to prevent their payment, and to require
the holder to deliver up for cancellation bonds which are invalid
under this section, Strang v. Cook, 47 Hun, 46, but after money
has been raised by atown to pay a claim apparently valid, which
has been so treated by its taxpayers and the town, and no fraud
is charged, the payment of the money cannot berestrained. Ca/-
hounv. Millard, 121 N. Y.,69. Where thecounty judge acquires ju-
risdiction his decision can not he questioned. If interest has been
paid for six years or more without question the town can not main-
tain an action in equity for cancellation of the bonds. TZown of
Cherry Creeh v. Becher, 123 N. Y., 161. The equitable remedy to
compel a cancellation of the bonds may be refused by reason of
long delay and acquiescence on the part of the town and its
taxpayers, accompanied meanwhile by frequent acts recogniz-
ing the validity of the obligation for which cancellation is
sought, although the delay in bringing the action has not con-
tinued for the full statutory period of ten years. An adjudica-
tion that the bonds are invalid is an estoppel only as between
the parties to the action in which it was made. An adjudica-
tion obtained in a suit brought at the instance of the town it-
self (Craig v, Town of Andes, 93 N. Y., 405) will not stand in the
way of a re-examination by the court in a subsequent action of
the ground upon which it proceeded, and if upon the re-exam-
ination the court became satisfied either that upon the facts
presented in the former case the question of law was erroneously
decided, or that facts not then disclosed, but now brought out,
would, if then disclosed, have led to a different result, the cir-
1
VALIDITY OF PROCEEDINGS—CANCELLATION, 331

cumstances stated would emphasize the duty of the court to
correct its error, or to conform the judgment in the case betore
the court to the new circumstances. Calhoun v. Millard, rar N.
Y.,69. The petition might impose as a condition precedent to
the subscribing for stock and the delivery of the bonds, that the
road should be located and constructed through the town or a
specified portion thereof. Falconer v. Buffalo & Jamestown R. R.
Co., 69 N. Y., 49z. The amount of bonds proposed to be issued
-must be specified in the petition. This can not be delegated.
People ex rel. Delafield v. Hughitt, 5 Lans., 89. The assessment roll
can not be said to be completed until the’assessors have dis-
charged their whole duty in reference thereto. The roll is not
finally completed until the oath of the assessors has been taken
and certified as required. People ex rel. Gillies v. Suffern, 68 N. Y.,
jer. Non-resident taxpayers and their land must be included
in estimating the number of taxpayers and the aggregate valu-
ation of the taxable property of a town, notwithstanding the
assessment may not be legally binding upon them. People ex rel.
Clark v. Oliver, 1 T. & C., 570. Joint owners of property are
counted separately. A partnership (after amendment of 1871,
ch. 925) is to be counted as one signer. A person signing in-
dividually and also as guardian or trustee is to be counted but
once. Assessments against persons as representing the estates
of deceased persons must be excluded from the count. (But
see amendment.) Persons whose names appear on last assess-
ment roll may sign although they have parted with their inter-
est in the property. People ex rel. Sayre v. Franklin, 5 Lans., 129.

DECISIONS UNDER L. 1869, CH. 907, § 2.

A taxpayer signing a petition has the right to withdraw his
name therefrom at any time prior to the final submission of the
case to the county judge, and upon such withdrawal his name
and taxable property must be excluded from the calculation on
the part of the applicants. ople ex rel. Irwin v. Sawyer, 52 N. Y.,
296; People ex rel, Angel v. Hatch, 65 Barb., 430. The original last
completed assessment roll.must be produced before the county
judge, or if it can not be, proper secondary evidence of its
contents. People ex ret, Gillies v. Suffern, 08 N. Y., 321. Where
there is a defect in the form in which the existence of the re-
quisite essential facts was presented to the judicial officer who
was to pass upon them, the legislature has power by a subse-
quent act to validate the bonds. Rogers v. Stephens, 86 N. Y., 623.
Non-publication of the notice does not invalidate the judgment,
332 THe GeneraL MunicipaL Law—Town Bownps.

though it lengthens the time for the allowance of a certiorari to
review the proceedings. Calhoun v. Delhi & Middletown R. R. Co.,
28 Hun, 379. The determination of the county judge can not be
attacked collaterally in an action to restrain the payment of in-
terest on the bonds. /¢. The burden of proof is upon the peti-
tioners. People ex rel. Beardsley v. Van Valkenburgh, 63 Barb. 105.
The decision of the county judge is conclusive until reversed
»by a higher court and cannot be attacked collaterally in a suit
brought by a dona fide holder on the bonds. Orleans v. Platt, 99
U. S., 676; Lyons v. Munson, Td., 684; Town of Cherry Creek v. Becker,
123 N. Y.,76r._ Evidence of the identity of the signers of the
petition with the names on the last assessment roll must be
given, and where the initials of Christian names are used in
signing the petition additional proof of identity is requisite.
Comparison is not enough. People ex rel, Haines v. Smith, a5 N. Y.,
772, Taxpayers not signing the petition must be personally
present at the hearing in order to be included. tofle ex rel.
Delafield v. Hughitt, 5 Lans., 89.

DECISIONS UNDER L. 1869, Cu. 907, § 5.

Until the subscription is made, no contract on the part of the
town is made. in re Buffalo & Jamestown R. R. Co. v. Commissioners
of Collins, 5 Hun, 485. The power given is to subscribe for the
stock or bonds of the railroad company named in the petition
and to an amount specifically designated. A subscription toa
different company or for a larger amount is simply void. och-
ester, Nunda & Pennsylvania R. R. Co. v. Cuyler,7 Lans., 431.

DECISIONS UNDER L. 1870, CH. 507.

This section gives no power to locate a road, but the right to
designate upon what portion of a road already located the
bounty of the town shall be applied. Craig v. Town of Andes, 93
LV. Y., 405; Town of Wayne v. Sherwood, 14 Hun, 423; aff'd 76 N. Y.,
599. Town of Lyons v. Chamberlain, 89. N. Y., 578, arose upon a con-
tract made by authority of this statute, and is instructive in this
connection although not involving the construction of this sec-
tion. Where a condition precedent was prescribed by the peti-
tion, the commissioners have no authority to contract under
this statute until the condition is complied with. Falconer v.
Buffalo and Jamestown R. R. Co., 69 N. Y., 491; B.& J. RR. Co. 0.
Falconer, 103 U. §., Sar. It was not intended that the bonds
should be dated at the time of their delivery. Such a construc-
tion would require the bonds to be payable at different dates.
IssuE or Bonps—ConpiTIOns. 333

Town of Solon v. Williamsburgh Savings Bank, 35 Hun,1; 114 N. Y.,
zzz, An injunction is necessary in order to prevent commis-
sioners from issuing bonds during the pendency of certiorari
proceedings. Mitchell v. Strough, 35 Hun, 83; Orleans v. Platt, 99
‘UW. S., 676. The commissioners are not estopped by an absolute
subscription obtained on the representation that they could not
be compelled to deliver the bonds until they could make an
agreement under this section, where the original agreement of
the town to subscribe was conditional. People ex rel. Utica,
‘Chenango & Cortland R. R. Co. v. Hitchcock, 2 T.& C., 134.

DECISIONS UNDER L. 1871, CH. 925, § 4.

Certiorart proceedings do not prevent the issue of bonds. An
injunction should be obtained. Mitchell v. Strough, 35 Hun, 83;
Orleans v. Platt, 99 U. S., 676; see Bailey v. Town of Lansing, 13
Blatth., 424; Stewart v. Same, 15 Blatch., 281; but see also Biddlecome
v, Newton, 17 Hun, 582. One who has signed the petition may in-
stitute certiorari proceedings, also the town itself. People ex rel.
Youmans v. Wagner, 1 T.& C., 222.

‘$7. Funding of bonded debts.—The bonded in-
debtedness of a municipal: corporation, including interest,
due or unpaid, may be paid up or retired by the issue of
new substituted bonds for like amounts by the board,
council or officers having in charge the payment of such
bonds. Such new bonds shall only be issued when the
existing bonds can be retired by the substitution of the
new bonds therefor, or can be paid up by money realized
by the sale of such new bonds. Where such bonded in-
debtedness shall become due within two years from the
issue of such new bonds, such new bonds may be issued
and sold to provide money in advance to pay up such ex-
isting bonds when they shall become due. Such new
bonds shall contain a recital that they are issued pursuant
to this section, which recital shall be conclusive evidence
of their validity and of the regularity of the issue ; shall be
made payable not less than one nor more than thirty years
from their date; shall bear date and draw interest from the
date of the payment of the existing bonds, or the receipt
of the money to pay the same, at not exceeding the rate of
four per cent. per annum, payable quarterly or semi-an-
nually ; and an amount equal to not less than two per cent.
334. THE GENERAL MunicipaL Law—Town Bonps.

of the whole amount of such new bonds shall be payable
each year after the issue thereof. Such new bonds shall
be sold and negotiated at the best price obtainable, not less
than their par value; shall be valid and binding on the
municipal corporation issuing them; and until payable
shall be exempt from taxation for town, county, municipal
or state purposes., All bonds and coupons retired or paid
shall be immediately canceled. A certificate shall be issued
by the officer, board or body issuing such new bonds, stat-
ing the amount of existing bonds, and of the new bonds so
issued, which shall be forthwith filed in the office of the
county clerk.
L. 1878, ch. 75, § § 1-6, (§ 1 am’d by L. 1878, ch. 317, and L. 1880,
ch. 12; § 2 am’d by L. 1878, ch. 317; § 3 am’d by L. 1878,
ch, 317, L. 1884, ch. 244, L. 1887, ch. 282, and L. 1889, ch.
526; §4 am’d by L. 1884, ch. 244; §6 am’d by L. 1880,
ch. 204.)
L. 1881, ch. 522, (§ 1 am’d by L. 1883, chs. 124 and 453.)
L. 1886, ch. 316.
DEcIsIOoNS UNDER L. 1878, CH. 75, § 1.

By issuing new bonds in place of disputed bonds, the town
elects to compromise rather than to contest the validity of the
old bonds, and is estopped from thereafter questioning it. The
words “bonded indebtedness” as used in the act of 1878, are
not limited to bonds in all respects legal and valid. Als v.
Péekskill Savings Bank, ror N. Y., 490; further decision 46 Hua,
180; Chandler v. Town of Attica, 18 Fed. Rep., 299.

§ 8. Issuance of municipal bonds.—Each bond is-
sued by a municipal corporation shall be signed by each
officer issuing the same, with the designation of his office;
and the interest coupons attached thereto, if any, shall be
signed by one of their number. Each such bond shall
state the place of payment and, if no coupons are attached
thereto, the name of the payee.

$9. Registry of municipal bonds.—Each munici-
pal corporation shall keep in the office of its clerk suit-
able books, in which shall be entered a full description of
the amount, rate of interest, class, number, date of issue,
pursuant to what law, and maturity of all bonds issued by
any of its officers, and, if such statement is not already en-
MunicieaL Bonps, 335

tered, of all bonds converted from coupon into registered
bonds. A bond to which no couponsare attached may be reg-
istered, at the request of the payee, in the books so kept in
the office of such clerk, and a certificate of such registry
shall be indorsed upon the bond by such clerk, and attested,
by his seal, if he has one. The clerk shall be entitled to
a fee of twenty-five cents for each bond so registered. The
principal and interest of a registered municipal hond shall
be payable only to the payee, his legal representatives, suc-
cessors or assigns, and shall be transferable oniy upon
presentation to such clerk, with a written assignment duly
acknowledged or approved. The name of the assignee
shall be entered upon such bond so tranferred and the
books so kept in the office of the clerk.

L. 1869, ch. 907, § 8.

§ 10. Conversion of coupon into registered
bonds.—When the owner of coupon bonds of a munici-
pal corporation shall present any such bonds to the offi-
cers who issued the same, or their successors, with a writ-
ten request for their conversion into registered bonds, such
officer shall cut off and destroy the coupons and stamp,
print or write upon each of the bonds a statement, properly
dated, of the amount and value of such coupons, and that
the interest, at the rate and on the date, as was provided
by the coupons, as well as the principal, is to be paid to
such owner, his legal representatives, successors or assigns,
at a place therein stated, which shall be the place stated in
the coupons, unless changed with the written consent of
the owner; and thereupon such bonds may be registered in
the office of the clerk of the municipal corporation. This
section shall not apply where provision is otherwise made
by law or local ordinance, for the conversion or exchange
of coupons for registered bonds.

S11. Defects not invalidating municipal bonds.
—When the bonds of a municipal corporation have been
issued and sold by the proper authorities, and the time
fixed for their maturity shall be for a longer period than pro-
vided by the law under which they were issued, a variance
of not exceeding sixty days shall not affect their validity.

,
336 THE GENERAL MunicipaL Law—Town Bonps.

§ 12. Municipal taxes of railroads payable to
county treasurer.—If a town, village or city has out-
standing unpaid bonds, issued, or substituted for bonds
issued, to aid in the construction of a railroad therein, so
much of all taxes as shall be necessary to take up such
bonds, except school district and highway taxes, collected
until May 18, 1899, on the assessed valuation of such rail-
road in such municipal corporation, shall be paid over to
the treasurer of the county in which the municipal corpora-
tion is located. Such treasurer shal] purchase with such
moneys of any town, village or city, such bonds, when they
can be purchased at or below par, and shall immediately
cancel them in the presence of the county judge. If such
bonds cannot be purchased at or below par, such treasurer
shall invest such money in the bonds of the United States,
of the state of New York, or of any town or village or
city of such state, issued pursuant to law; and shall hold
such bonds as a sinking fund for the redemption and pay-
ment of such outstanding railroad aid bonds. If a county
treasurer shall unreasonably neglect to comply with this
section, any taxpayer of the town, village or city having
so issued its bonds may apply to the county judge of the
county in which such such municipal corporation is situ-
ated, for an order compelling such .clerk to execute the
provisions of this section. The county treasurer of any
county in -which one or more towns therein shall have
issued bonds for railroad purposes, shall, when directed by
the board of supervisors or county judge of the county,
execute and file in the office of the county clerk an under-
taking, with not less than two sureties, approved by such
board or judge, to the effect that he will faithfully perform
his duties pursuant to this section. The annual report of
a county treasurer shall fully state, under the head of “ rail-
road sinking fund,” the name and character of all such in-
vestments made by him or his predecessors, and the condi-
tion of such fund.

L. 1869, ch. 907, §§ 4and 12. (§ 4 am’d by L. 1870, ch. 789,
and L. 1871, ch. 283, and L. 1871, ch. 925; so much of the
section as relates to savings banks was repealed by L.
1875, ch. 371; § 12 added by L. 1879, ch. 62.)
APPLICATION OF RAILROAD TAXES. 97

DECISIONS UNDER L, 1869, Cu. 907, § 4.

The amendment of 1871 (ch. 925) did not have a retroactive
effect, and did not deprive commissioners theretofore appointed
of power to subscribe for stock and issue bonds. Syracuse Sav-
ings Bank v. Town of Seneca Falls, 86 N. Y., 317; Angel v. Te own of
Hume, 17 Hun, 374; Craig v. Town of Andes 93 N. Y., gos. Tet
bonds are issued absoluely without authority, not by the town,
but by strangers falsely simulating authority, the town would
not be estopped by recitals in the bonds and they could not be
enforced against it. Town of Lyons v. Chamberlain, 89 N. Y., 578.
Where bonds were drawn before the amendment (ch. 925, L. 1871,)
by a scrivener who it was claimed by mistake made them paya.-
ble twenty years instead of thirty years from their date, the
court declined to reform the bond so as to make it conform to
the statute, (see the case) Potter v. Town of Greenwich, 92 N. Y.,
662; see Hoag v.. Town of Greenwich, 133 N.Y., 152.; and bonds
were held valid though drawn payable in twenty years, when
they were purchased and delivered after the amendment of 1871
took effect. Brownell v. Town of Greenwich, 114 .N. Y.,578 After
the amendment, (L. 1871, ch. 925,) the commissioners could
still make the bonds payable at the expiration of thirty
years, but if they elected to make them payable in less
than thirty years, then they were required to be so arranged
that not more than ten per cent. should become due and paya-
ble inany oneyear. Syracuse Savings Bank v. Town of Seneca Falls,
86 N. ¥.,317. The bonds are valid notwithstanding the omis-
sion of the common seal of the town or the commissioners’ indi-
vidual seals, the proper seals having been added and being on
them when the bonds were purchased. TZownof Solon v. Williams-
burgh Savings Bank, 114 N. Y., 122; Armfeld v. Town of Solon, 19
N.Y. Supp., 44; 45 St. Rep. go5. The amendment of 1871, ch. 925,
affected bonds issued after the amendment went into effect, in
pursuance of a consent of taxpayers given and adjudicated upon
before that time. Brownell v. Townof Greenwich, 114 N.Y, 5178.

The mere pendency of certiorari proceedings against the county
judge does not affect the issue of bonds by the commissioners.
They are not a party to those proceedings. A preliminary in-
junction should have been obtained under L. 1870, ch. 507 as,
amended, forbidding them to issue bonds. Orleans v. Platt, 99
U. S&., 670; Mitchell v. Strough, 35 Hun, 83; see Bailey v. Town of \
Lansing, 13 Blatch., 424; Stewart v. Same, 15 Blatch, 281; as to bur-

Vv
338 THe GENERAL MunicipaL Law—Town Bownps.

den of showing good faithin such case see Town of Lansing
Lytle, 98 Fed. R., 204; see also where plaintiff in an actic
on the bonds knew of the pendency of the certiorari proceeding
Biddlecome v. Newton, 13 Hun, 582. ,

The provisions of this section for the disposition ot the taxe
assessed on railroads are not in conflict with any constitution:
provision. They are applicable to any municipality having rai
road aid bonds outstanding; they are not limited to railroac
receiving aid under this act. All prior laws in conflict with th
provision were thereby modified or repealed. in re Clark v. Sheldo
1006 NV. Y., 104; see also Bridges v. Supervisors of Sullivan Co.,92 N.Y
570; see Barnum v. Bad. of Supervisors of Sullivan Co. 62 Hun, 19
This applies to renewal bonds issued to refund the original bond
as they fell due, though the railroad has been sold under foreclo:
ure and purchased by another company. Van Tassell v. Derrei
bacher, 56 Hun, 477; aff'd 123 N. Y., 661; Barnum v. Board of Supe:
visors of Sullivan Co., 62 Hun, 190; see Ackerson v. Ba. of Supervisoi
of Niagara Co.,18 N.Y. Supp., 219; 45 St. Rep. 1737. Where th
taxes were wrongfully applied by the county treasurer in paymer
of county and state taxes, with and as part of other moneys raise
by the town for those purposes, held, that an action was mait
tainable on behalf of the town against the county to recove
the money so appropriated. Also that an action was properl
brought by the supervisor of the town in his name as its repre
sentative. Strough v. Supervisors of Jefferson County, 119 NV. Y., 242
Wood v. Board of Supervisors, 9 N.Y. Supp., 699; go St. Rep., 70
aff'd 124 N. Y., 676; Crowninshield v. Board of Supervisors of Cayug
Co., 124. N. Y., 583; in re Spaulding v. Arnold, 125 N. YV., 19g. A
equitable action to compel the levy of an equal amount on th
taxable property of the county, the payment of the proceeds t
the treasurer and the investment of it by him, may be mai1
tained. <Xilbourne v. Bd. of Supervisors of Sullivan Co., 62 Hun, 21
The statute of limitations bars a recovery for all taxes “ passe
over” to the treasurer more than six years prior to the con
mencement of the action. Ackersonv. Bd. of Suprs. of Niagara Ci
18 N.Y. Supp., 219; 45 St. Rep., 173. A town which has paid it
bonds is entitled to be subrogated to the rights of the origin:
owners and to have the bonds paid from the fund in the hanc
of the county treasurer. People ex rel. McMillan v. Bd. of Supri
Cayuga Co., 18 N.Y. Supp., 808; 45 St. Rep, &. Where part «
the taxes of a town have been used 4y the sown in violation of th
provision, ataxpayer may still maintain proceedings to compelt}
RAILROAD TaxES—CoMMISSIONERS. | 339

county treasurer to comply with the law, and a treasurer can be

compelled to use a balance of such taxes remaining in his hands
for the purchase of such bonds ; im re Clark v. Sheldon, 48 St. Rep. 279;

Ackerson v. Board of Supervisors of Niagara Co.,18 N.Y. Supp., 219; 45
St. Rep., 773. Plaintiff, being a resident and taxpayer of the
town, is affected in his property rights by a refusal to appropri-
ate the taxes as provided in this section, and can therefore
maintain an action in the town’s behalf to compel the county
treasurer to purchase the bonds. Clark v. Sheldon, 10 N. Y. Sufp.,
357% 32 St. Rep., 36; seero6 N.Y., 104 ; 48 St. Rep., 279.

The delivery of the bond to a purchaser determines the date
when the bonds were issued and hé has the right to assume
they were issued under the statute as it stood at the day of the
delivery. He was not bound to examine the entire series to
see that no more became due in the single year than the stat-
ute permitted. Brownell v. The Town of Greenwich, 114.N. V., 578.

§ 13. Abolition of office of railroad commis-
sioners.—The board of supervisors of any county may,
upon the application of the auditing board of any munici-
pal.corporation therein, by resolution abolish the office of
railroad commissioners of such municipal corporation, and
direct the manner of the transfer of their duties to the su-
pervisor of the town, or the treasurer of the municipal cor-
poration other than a town, and upon his compliance with
such directions, such transferee shall be vested with all the
powers conferred upon such railroad commissioners, and
subject to all the duties imposed upon them.

L. 1889, ch. 402 (p. 345.)

' §.14. Appointment of railroad commissioners.—
The county judge of any county within which is a munici-
pal corporation having or being entitled to have railroad
commissioners, when this chapter shall take effect, and in
which the duties imposed upon such commissioners are not
fully performed, shall continue to appoint and commission,
upon the application of twenty freeholders within such cor-
poration, three persons, who shall be freeholders and resi-
dent taxpayers therein, commissioners for the purpose of
performing the duties and completing the business required
of them pursuant to this chapter or any law. Such com-
missioners shall hold theif office for five years, and until
340 THE GENERAL Municipar Law—Town Bonps.

others are appointed by the county judge, unless their
duties shall be sooner performed, or the office shall be
abolished, who shall also, in like manner, fill any vacancies
‘that may exist therein. Such commissioners shall each
receive the sum of three dollars per day for each day actu-
ally engaged in the discharge of their duties, and the
necessary disbursements to be audited and paid by the usual
auditing and disbursing officers of such municipal corpora- ,
tion. A majority of such commissioners, at a meeting of
which all have notice, shall constitute a quorum.
L. 1869, ch. 907, § 3.

§ 15. Oath and undertaking of commissioners.
—Before entering upon their. duties such commissioners
shall take the constitutional oath of office, and make and
file with the county clerk of their county, their joint and
several undertaking, with two or more sureties to be ap-
proved by the county judge of their county, to the effect
that they will faithfully discharge their duties as such com-
missioners, and truly keep, pay over and account for all
moneys belonging to such corporation coming into their
hands.

L. 1873, ch. 720.

The offices of the commissioners were not vacated until they
neglected to file their bonds for ten days after notice of the pro-
vision of the act. People ex rel. Utica, Chenango & Cortland R. R.
Co. v. Hitchcock, 2 T. & C., £34.

§16. Exchange or sale of railroad stock and
bonds.—The commissioners or officers of a municipal cor-
poration, having the lawful charge and control of any rail-
road stock or bonds, for or in payment of which the bonds
of such municipal corporation have been lawfully issued in
aid of such railroad corporation, may exchange the stock
or bonds of such railroad corporation for and in payment
of such bonds, or the new substituted bonds of such munici-
pal corporation, when such exchange can be made for
not less than the par value of the stocks or bonds so held
by them. If they cannot make such exchange they may
sell such stock or bonds at not less than par; but they may,
on the application and with the approval, of the governing
board of the municipal corporation, owning such stock and
CoMMISSIONERS, 341

bonds, exchange, sell or dispose of such stock or bonds,
at the best price and upon the best terms obtainable, for
the municipal corporation they represent, and shall execute
to the purchaser the necessary transfers therefor. All.
moneys received for any stock or bonds shall only be ap-
plied to the payment and extinguishment of the bonds of
the municipal corporation, lawfully issued in aid of any
such railroad, or substituted therefor; except that if the
bonds so issued or substituted have all been paid, or the
moneys so realized shall be more than suflicient to pay

them in full, and all the costs and expenses of the sale,

such proceeds or balance thereof shall be paid by the offi-
cers making the sale, to the supervisor of the town, or the
treasurer of the municipal corporation, and applied to such
lawful uses as the governing board of the municipal corpo-
ration, entitled to the same, may direct.

L. 1875, ch. 328.
L. 1875, ch. 421.
L. 1875, ch. 585.

§ 17. Annual report of commissioners and pay-
ment of bonds.—The commissioners of a municipal cor-
poration, having in charge the moneys received and
collected, and who are responsible for the payment of the
interest of the bonds lawfully issued by such municipal
corporation, in aid of railroads, shall annually report to the
governing board of the municipal corporation, the total
amount of the municipal indebtedness of the municipal
corporation they represent, upon such bonds or such new
bonds substituted therefor, the date of the bonds and when
payable, the rate of interest thereon, the acts under which
they were issued, the amount of principal and interest that
will become due thereon before the next annual tax levy
and collection of taxes for the next succeeding year, and
the amount in their hands applicable to the payment of
the principal or interest thereon. Each year such govern-
ing board shall levy and collect of the municipal corpora-
tion sufficient money to pay such principal and interest, as
the same shall become due and payable. When collected,
such moneys, with the unpaid sums on hand, shall be
forthwith paid over to such commissioners, and applied by
them to the purposes for which collected or held. When
342 THE General MunicipaL Law—Town Bownps,

paid, such bonds shall be presented by such commissioners
to the governing erning* board of the municipal corpora-
tion, at least five days before the annual town meeting, vil-
lage or city election, or meeting of the board of supervisors,
next thereafter held, who shall cancel the same, and make
and file a record thereof in the clerk’s office of the municipal
corporation, whose bonds were so paid or canceled.

* So in the original.

L. 1877, ch. 349, §§ 1 and 2.
L. 1881, ch. 522, §§ 4 and 5.

§$ 18, Accounts and loans by commissioners.—
Such commissioners shall present to the auditing board of
the municipal corporation they represent, at each annual
meeting of such board, a written statement or report,
showing all their receipts and expenditures, with vouchers.
They shall also loan on proper security or collaterals, or
deposit in some solvent bank, or banking institutions, at
the best rate of interest they can obtain, or invest in the
bonds of the municipal corporation they represent, or in
bonds of the state, or of any town, village, city or county
therein, issued pursuant to law, or in the bonds of the
United States, all moneys that shall come into their
hands by virtue of their office, and not needed for current
liabilities ; and all earnings, profits or interest accruing
from such loans, deposits or investments, shall be credited
to the municipal corporation they represent, and accounted
for in their annual settlement with the governing board
thereof.

L. 1871, ch. 537.
L. 1877, ch. 349.

§ 19. Reissue of lost or destroyed bonds.—
When any bonds lawfully issued by a municipal corpora-
tion in aid of any railroad, or in substitution for bonds so
issued, shall be lost or destroyed, such commissioners may
issue new bonds in the place of the ones so lost or de
stroyed, at the same rate of interest, and to become paya-
ble at the same time, upon the owner furnishing satisfac-
tory proof, by affidavit, of such ownership, and loss or
destruction, and a written indemnity, with at least two
JupDGMENTS—DamacEs By Mops, &c. 343 \

sureties, approved as to form and sufficiency by the county
judge of the county in which such municipal corporation
1s situated. Every new bond so issued shall state upon its
face the number and denomination of the bond for which
it is issued, that it is issued in the place of such bond
claimed to have been lost or destroyed, that it is issued as
a duplicate thereof, and that but one is to be paid. Such
affidavit and indemnity, duly indorsed, shall be immediately
filed in the county clerk’s office.
L. 1886, ch. 278.

§ 20. Payment of judgments against municipal
corporation.—When a final judgment for a sum of
money shall be recovered against a municipal corporation,
and the execution thereof shall not be stayed pursuant to
law, or the time for such stay shall have expired, the treas-
urer or other financial officer of such corporation having
sufficient moneys in his hands belonging to the corporation
not otherwise specifically appropriated, shall pay such judg-
ment upon the production of a certified copy of the docket
thereof.

$21. Liability for damages by mobs and riots.
—A city or county shall be liable to a person whose property
is destroyed or injured therein by a mob or riot, for the
damages sustained thereby, if the consent or negligence of
such person did not contribute to such destruction or in-
\Jury, and such person shall have used all reasonable dili-
gence to prevent such damage, shall have enotified the
mayor of the city, or sheriff of the county, of a threat or
attempt to destroy or injure his property bya mob or riot,
immediately upon acquiring such knowledge, and shall
bring an action therefor, within three months after such
damages were sustained. A mayor or sheriff receiv-
ing notification of a threat or attempt to destroy or injure
property by a mob or riot, shall take all lawful means to
protect such property; and if he shall neglect or refuse, the
person whose property shall be destroyed or injured, may
elect to bring his action, for damages against such officer,
instead of the city or county.

§ 28. Laws repealed.—Of the laws enumerated in
the schedule hereto annexed, that portion specified in the
last column is repealed.
344. Tue GENERAL MunictpaL Law—Town Bonpns.

§ 29. When to take effect.—This chapter shall
take effect on October 1, 1892.

SCHEDULE OF Laws REPEALED.

 

LAWS OF Chapter Sections ;|| LAWS OF Chapter Sections.
TOAF seen avoaod 20 hava: sedvarncoie AIL || 1879.....-..- BLOT wrest soaring All.
OS 3s cose winters 603 hecesesie asin All. || 1880......... B's avast ieee All
L855 esse evens AZ Blin tavscurernue tt All. || 1880......... QT sews anes All
1869.......-. QO7 svensk ees All. || 1880......... QO A iczidientnsess All
TB7O is eases ROO sv eek ee All. || 1881......... BBG). ies iemiaad ii All
DOP Viniccscscwteecdis DOR. ovens nets All. || 188r......... BOS. 6 etitecnieace All
BOIL ase ccsnsyeseis GS Pswiaiantioueisrest All. |} 188r........- 2 asi erases All
187 Esc ackiars 25 ecuaesttielatalnen All. || 1882......... ZO Snowe asec a All
TB7 2a ina wens AGB incarcvaiseieark ate All. || 1883......... D2 Ase seen aacn.cial bea All
(87,30 cu hee iD Oa astsnsietet avorats All. |] 1883......... AG Bionicicsawiie All
1875 .aledecives ROB comes eens All. |[ 1884......... DAA ii oiiavlanelatersus All
T8715 oo csseacence A2T i cice viens AIL | £888). oasis teres B26 gcse ecnsisons All
ES 75 oe ciersi nnee BS Gi ceuolaieneca cy All. |] 1885......... BIG via cin waters All
1899 oc ceca wen BOO sons seal oars All. || 1886......... DFG ocala eo All
TOF iecete cies BAO renee eacten.acs All. || 1886,....... BT Ovewarw wie eee All
£873 eaxieuuce De editors All. || 1886......... 644......- All
1873 weevixeice sd BTID 5 saavecstcrteos AWA D889. accecelcnas 282k nie Beta All
1878 .cctseues BF ancien dares All. || 1888......... Oia saiensanic.ceorn All
1879 Oss tte nares All. || 1888........ BES iechere ual gysiatne All
TB TO ioe eerece ccd BOF ecedvin ween All. "1889......... 20 ss nescxe sare sone re All

 

MisceLLaneous Acts AFFECTING Town Bonps.
L. 1882, Cu. 68.

AN ACT requiring supervisors administering funds received on account of bond-
ed railroad indebtedness to give proper sureties.

Section 1. The supervisor of any town or ward of any
city receiving or disbursing any funds on account of the
bonded railroad debt of said town or ward, before receiv-
ing or disbursing any such funds by virtue of any act of
this state, shall execute to the town a bond with sureties
who shall be able to justify in at least double the amount
of the money to be received by him, as near as can be as-
-certained, said bond to be approved by the town clerk and
conditioned for the proper and due disbursement of moneys
received on account of bonded railroad debt and the faith-
ful accounting thereof, which bond when given will be filed
with the town clerk.

$2. All acts and parts of acts inconsistent with this act
are hereby repealed.
TRANSFER OF Powers TO SUPERVISORS. 345.

L. 1889, Cu. 402.

AN ACT to authorize towns having railroad commissioners to transfer the powers
and duties of such officers to the supervisors of such towns, and to abolish the
office of railroad commissioner in such towns.

SEcTion 1. Transfer of powers and duties to
supervisors.—Every town in which railroad commis-
sioners heretofore appointed or elected under the provis-
ions of any general or special statute of this state author-
izing towns to incur indebtedness in aid of the construc-
tion of any railroad, remain in office, and in which the
duties imposed by such statutes, upon such commissioners,
are not yet fully performed, is hereby authorized and em-
powered, at an annual town meeting, or at a special town
meeting called for such purpose in the manner prescribed
by law, to authorize the transfer of the powers and duties
of such railroad commissioner or commissioners to the
supervisor of such town, by a resolution to such effect
passed and adopted by a majority vote of all persons vot-
ing at such town meeting.

See § 13 of the General Municipal Law.

$2. Official bond of supervisor; howapproved.

—Within twenty days after the passage of such resolution
at such town meeting the said supervisor shall file in the
office of the town clerk of said town a bond running to
the people of the State of New. York, executed by him-
self and two or more sureties, in a penalty to be fixed by
the board of town auditors of said town as hereinafter pro-
vided, and conditioned for the faithful performance of the
duties of railroad commissioners transferred to him under
said resolution, and the payment over according to law of
all moneys coming into his hands by reason of such trans-
fer ; such bonds also to be approved as to form and suffi-
‘ciency of sureties by the county judge of the county in
which said town is located.

§ 3. Procedure; Powers of Supervisor. —Forth-
with, upon the filing of such bonds as aforesaid, the
“town clerk of the town shall indorse upon copies of
such bond to be provided by the said supervisor, a
certificate to the effect that the said bond has been
filed in the office of such town clerk, and said super-
346 Tue GeneraL MunicipaL Law—Town Bonps.

visor shall serve such copies and certificate upon the rail-
road commissioners respectively, and thereupon it shall be
the duty of such railroad commissioners to pay over to such
supervisor all moneys remaining in their hands as railroad
commissioners of such town, and todeliver all books, papers,
securities and other property belonging to said town and re-
maining in their hands as such commissioners unto the
said supervisor, and to take his receipt therefor, which
receipt shall be to them a proper and sufficient voucher.
Immediately upon the delivery of said moneys and prop-
erty by the said railroad commissioners to the supervisor,
as aforesaid, and in the manner aforesaid, the office of
railroad commissioner of such town shall wholly cease, and
the said supervisor shall thereupon be invested with all the
powers conferred upon such railroad commissioner by the
statute and proceedings under and by which they were
appointed, and shall be subject to all the duties imposed
upon such commissioner by such statute, and all securities
and evidences of debt transferred by said commissioners
to said supervisor as aforesaid, which by the terms thereof
are payable to the said railroad commissioners shall be paid
when due to said supervisor, upon his indorsement as
supervisor, in the same manner and to the same effect as if
indorsed by said railroad commissioners,

§ 4. Penalty of supervisor’s bond, when and how
fixed.—The board of town auditors shall meet for the pur-
pose of fixing the penalty of the bond of said supervisor,
as provided in the second section of this act, at the office
of the town clerk within ten days after the town meeting
at which the resolution hereinbefore provided for was
passed, upon a day to be fixed by said town clerk, whereof
each member of said board shall be notified by said clerk
either personally or by mail, at least three days before the
time fixed for said meeting. In fixing the penalty of the
bond to be given by said supervisor under the provisions
of section two of this act, said board of town auditors shall
take into consideration the amount of moneys likely to
come into the hands of such supervisor by reason of the
additional duties imposed upon him by this act. Here-
after, in a town in which the duties of railroad commis-
sioner have been transferred to the supervisor, the general
SuPERvisors—IssuE or New Bonps. | 347

bond given by such officer, conditioned to safely hold and
pay over all moneys coming into his hands and belonging
to said town, shall be deemed to include and be a security
for the payment over of all moneys coming into the hands

of such supervisor under and by reason of the provisions
of this act.

§ 5. Compensation of Supervisor.—For the per-
formance of the additional duties devolved upon him under
the provisions of this act, such supervisor shall be entitled
to a reasonable compensation, to be fixed by the board of
town auditors of such town.

L. 1892, Cu. 330.

AN ACT to amend section one of chapter three hundred and sixteen of the laws
of eighteen hundred and eighty-six, entitled ‘‘An act in relation to the bonded
indebtedness of villages, cities, towns and counties in this state, and to provide
means for the payment and refunding thereof.”

SECTION 1. Section one of chapter three hundred and
sixteen of the laws of eighteen hundred and eighty-six, en-
titled ‘“‘An act in relation to the bonded indebtedness of
villages, cities, towns and counties in this state, and to
provide means for the payment and refunding thereof,” is
hereby amended so as to read as follows: :

§ 1. Issue of New Bonds.—The present bonded
indebtedness of any village, city, town or county
in this state, including interest past due or unpaid,
may be paid up or retired by the issue of new bonds
for like amounts by the board of trustees, mayor
or common council, town board, board of supervisors or
supervisor, or railroad commissioners, or officer or officers
now having in charge according to law the payment of in
terest, or principal or interest on bonds herein proposed to
be paid or retired respectively of such village, city, town
or county ; provided, however, that such new bonds shall
be issued only when existing bonds can be retired by the
substitution therefor of such new bonds, or can be paid up
by money realized on the sale of such new bonds, but
where the said bonded indebtedness shall become due with-
in two years from the issue of the said new bonds then
such new bonds may be issued or sold to provide money
in advance with which to pay up such existing bonds,
when they shall become due and payable; and provided
348 THe GENERAL MunicipaL Law—Town Bonps.

further that such new bonds shall bear interest at a rate
not exceeding four per centum per annum payable semi-
annually or quarterly. All existing bonds taken up by
the substitution of such new bonds, or paid under the
provisions of this act, and all new bonds and coupons, when
paid up as herein provided, shall be immediately canceled
as now provided by law, and a certificate executed by the
officers issuing such new bonds shall be forthwith made
and filed by them in the county clerk’s office of the proper
county, which shall state the amount of existing bonds so
canceled and of new bonds so issued. This act shall not
be so construed as to authorize the issue of new bonds to
supersede or pay existing bonds which have been adjudged
invalid by the final judgment of a competent court except
in case of towns, wherein at a general town meeting, or at
a special town meeting duly called, a majority of the tax-
payers voting at such meeting shall authorize the issue of
such new bonds, in which event each of such bonds shall
contain a recital in substance as follows: ‘‘The issue of
this bond is duly authorized by a vote of the taxpayers of
the said town,” which recital shall be conclusive evidence
of the fact in any and all courts. The new bonds so to
be issued shall be payable at any period or periods deemed
advisable by the officers issuing the same, not less than
one year nor more than forty years from their date; and
shall bear date and draw interest from the date of the pay-
ment of existing bonds, or the receipt of the money to pay
existing bonds; and an amount not less than two per cen-
tum of the whole amount of said bonds so issued shall be
made payable and shall be paid and retired, each and every
year after the issue thereof; and said bonds shall be issued
in no case at less than for their par value.

Nore.—Ch. 316 of the Laws of 1886 was repealed by L. 1892,
ch. 685. See St. Const. Law, § 33.

See §7 of the General Municipal Law. Also cases cited
under § 12.
CHAPTER XIV.

THE STATUTORY CONSTRUCTION LAW.

L. 1892, Cu. 677.

“‘AN ACT relating to the construction of statutes constituting chapter one of the

SECTION

general laws.

CHAPTER I OF THE GENERAL LAWS.

13.
14.
15.
16.
17,
18.
19.
20.
21.
22.
23.
27.
28,
31.
‘39:

33-

34-
35:

REE Qos

THE STATUTORY ConsTRUCTION Law.

Short title ; extent of application.

Property.

Real property.

Personal property.

Person.

Judge.

Gender; number; tense.

Heretofore; hereafter; now. ,

Last; preceding; next; following.

Seal.

Oath; affidavit; swear.

Acknowledge; acknowledgment.

Bond; undertaking.

Choose; elect; appoint.

Board composed of one person.

Meeting; quorum; powers of majority.

Service of notice upon board or body.

County clerk; register.

Village.

State.

Day; mode of computing days; night-time.

Standard time.

Limiting the effect of repealing statutes.

Existing laws included in revision not to be con-

strued as new enactments.

Effect of revision upon laws passed at same session
or before revision takes effect.

Alterations of titles and head notes.

Laws repealed.

Time of taking effect.
350 THE StaTuToRY ConstRucTIon Law.

Section 1. Short title ; extent of application.—
This chapter shall be known as the statutory construction
law, and is applicable 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 ap-
plication was intended from that required to be given by
this chapter.

§ 2. Property.—The term property includes real and
personal property.

$3. Real property.—The term real property in-
cludes real estate, lands, tenements and hereditaments, cor-
poreal and incorporeal.

$4. Personal property.—The term personal prop-
erty 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, interest, lien or incumbrance in, to or upon property,
or any debt or financial obligation is created, acknowl-
edged, evidenced, transferred, discharged or defeated,
wholly or in part, and everything, except real property,
which may be the subject of ownership. The term chat-
tels includes goods and chattels.

§ 5. Person.—The term person includes a corporation
and a joint stock association. When used to designate a
party whose property may be the subject of any offence,
the term person also includes the state, or any other state,
government or country which may lawfully own property
in the state.

§ 6. Judge.—The term judge includes every judicial
officer authorized, alone or with others, to hold or preside
over a court of record.

§ 8 Gender; number; tense.— Words of the mas-
culine 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,

.
DEFINITIONS. , 351

words of the neuter gender may refer to any gender. The
term men includes boys and the term women includes
girls.

Words in the singular number include the plural, and in
the plural number include the singular.

Words in the present tense include the future.

$9. Heretofore; hereafter; now.—Each of the
terms, heretofore, and hereafter, in any provision of a
statute, relates to the time such provision takes effect.
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
the person in office, or to the facts or circumstances exist-
ing, respectively, immediately before the taking effect of
such provision.

S10. Last; preceding; next; following.—A ref-
erence to the last or preceding section or other provision
of a statute means the section or other division imme-
diately preceding, and a reference to the next or fol-
lowing section or other division of a statute means the sec-
tion or other division immediately following.

§ 13. Seal— . . . Asealofacourt, public officer
or corporation may be impressed directly upon the instru-
ment 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 ad-
hesive substance. An instrument or writing duly exe-
cuted, in the corporate name of a corporation, which shall
not have 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 seal.

§ 14. Oath; affidavit; swear.—The terms oath and
affidavit include every mode authorized by law of attest-
ing the truth of that which is stated.

The term swear includes every mode authorized by law
for administering an oath. When an affidavit is author-
ized or required it may be sworn to before any officer
authorized by law to take the acknowledgment of deeds
352 THE StTaTuTory Construction Law.

in this state, unless a particular officer is specified before
whom it is to be taken.

§ 15. Acknowledge; acknowledgment.—When
the execution of any instrument or writing is authorized or
required by jaw 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 acknowl-
edgment or proof of the execution of a deed of real prop-
erty 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.

The term acknowledge and acknowledgment, when used
with reference to the execution of an instrument or writing
other than adeed of real property, includes a compliance
with the provisions of this section by either such proof or
acknowledgment.

§ 16. Bonds; undertaking.—A provision of law
authorizing or requiring a bond to be given shall be
deemed to have been complied with by the execution of
an undertaking to the same effect.

§ 17. Choose; elect; appoint.—The term choose
includes elect and appoint.

§ 18. Board composed of one person.—A tefer-
ence to several officers of a municipal corporation holding
the same office, or to a board of such officers, shall be
deemed to refer to the single officer holding such office,
when but one person is chosen to fill such office in pursu-
ance of law.

§ 19. Meeting; quorum; powers of majority.—
Whenever three or more public officers are given any
power or 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,
CONSTRUCTION AND MEANING OF TERMS. 353

or at any meeting duly held upon reasonable notice to all
of them, may perform and exercise such power, authority
or duty, and if one or more of such persons or officers
shall have died or have become mentally incapable of act-
ing, or shall refuse or neglect to attend any such meeting,
a majority or the whole number of such persons or officers
shall be a quorum of such board or body, and a majority
of a quorum, if not less than a majority of the whole num-
ber of such persons or officers may perform and exercise
‘any such power, authority or duty. Any such meeting .
may be adjourned by a less number than a quorum. A
recital in any order, resolution or other record of any pro-
ceeding of such a meeting that such meeting had been so
held or adjourned, or that it had been held upon such
notice to the members, shall be presumptive evidence
thereof.

$20. Service of notice upon body or board.—
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.

$21. County clerk; register.—Any act done in
pursuance of law by the register of a county shall be
deemed to be 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 pursuance 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 requiring such
paper to be filed, entered or recorded, as the case may be,
‘in the office of the clerk of such county.

§ 22. Village.—The term village means an incorpo-
rated village.

§ 23. State; territory.—The term state, when used
generally to include every state of the United States, in-.
‘cludes also every territory of the United States and the
District of Columbia. The term territory when used gen--
erally to include every territory of the United States, in-.
‘cludes also the District of Columbia.

Ww
354 Tue Statutory Construction Law.

§$ 27. Day; mode’ of computing days; night-
time.—A calendar day includes the tiine from midnight.
to midnight. Sunday or any day of the week specifically
mentioned means a calendar day. A number of days spec-
ified 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 cal-
endar day from which the reckoning ismade. Sunday or
a public holiday other than a half-holiday must be ex-
cluded from the reckoning if it is the last day or an inter-
vening day of any such period of two days. In comput-
ing 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 day from which any specified number of days, weeks
or months of time is reckoned shall be excluded in mak-
ing the reckoning.

Night-time includes the time from sunset to sunrise.

§ 28. Standard time.—The standard time through-
out this state is that of the seventy-fifth meridian of longi-
tude west from Greenwich, and all courts and public offi-
cers, and legal and official proceedings, shall be regulated
thereby. Any act required by or in pursuance of law to
be performed at or within a prescribed time, shall be per-
formed according to such standard time.

§ 31. Limiting the effect of repealing statutes.
—The repeal hereafter or by this chapter of any provision
of a statute, which repeals any provision of a prior statute,
does not revive such prior provision. The repeal here-
after or by this chapter of any provision of a statute, which
amends a provision of a prior statute, leaves such prior
provision in force unless the amendatory statute be a sub-
stantial re-enactment of the statute amended. The repeal
of a statute or part thereof shall not affect or impair any
act done or right accruing, accrued or acquired, or liabil-
ity, penalty, forfeiture or punishment incurred prior to the
time such repeal takes effect, but the same may be assert-
-ed, enforced, prosecuted or inflicted, as fully and to the
same extent as if such repeal had not been effected; and
Errect OF REPEALING STATUTES. 355

all actions and proceedings, civil or criminal, commenced
under or by virtue of any provision of a statute so repealed,
and pending immediately prior to the taking effect of such
repeal, may be prosecuted and defended to final effect in
‘the same manner as they might if such provisions were
not so repealed.

Two water companies, which could consolidate under L. 1867,
ch. 960, and Laws 1877, ch. 374, and which prior to the, repeal of
those acts, had entered into an agreement for consolidation,
through their trustees, who called a stockholders’ meetisig; to
ratify the agreement, could complete their consolidation after-
wards. Cameron v. N.Y. & M.V. Water Co, 133 N. Y., 336;
in re N.Y.& Suburban Inv. Co., 16 N.Y. Supp., 273 ; go St. Rep., 739.

DEcIsIONS UNDER L. 1884, Cu. 252, § 18:

The saving clause which declares that “any rights” of an
existing company shall not be affected, does not confine its
operation to cases where all the conditions required to be per-
formed by the company before it can enter upon the streets and
actually lay the tracks, have been performed. It does not save
aconsummated and perfected right only. It was intended to
protect an inchoate right. But under the Rapid Transit Act
there must have been a substantial compliance with the mate-
rial requirements of that act, without which, a company would
not have such rights as would be protected by this section.. WV.
Y. Cable Co.v. Mayor of N. Y., 104 N.Y., 7. Sec. 24, ch. 290, L.
1867, which declared that a certain highway should be kept and
maintained for public use as an avenue and except for the pur-
pose of crossing the same, no railway or tramway should be laid
or constructed thereon by any person or corporation without a
special act of the legislature, was not repealed by the passage of
this act. The above provision was not “inconsistent ” with the
act of 1884, within the meaning of that expression as used in
‘this section. Harlem Bridge, Morrisania & Fordham R. R. Co.v.
Southern Boulevard R. R. Co., 4x Hun, 55.3: see in re Southern Boul’d

_ RB. R. Co. v. Spofford, 58 Hun, 497.

Decision uNnDER L. 1850, Cu. 140, § 49.

All powers and privileges are conferred upon existing cor-
porations. But no duties, liabilities or burdens are imposed
except those contained in the enumerated sections and which
356 Tue Staturory Construction Law.

are not inconsistent with their charters. This last limitation
only affects duties. It has no reference to powers and privi-
leges. Johnson v. Hudson R. R.R. Co., 49 N. Y., 455.

§ 32. Existing laws included in revision not to
be construed as new enactments.—The provisions
of any chapter of the revision of the general laws, of which
this chapter is a part, so far as they are substantially the
same as those of laws existing at the time such chapter
‘takes effect, shall be construed as a continuation of such
laws, modified or amended according to the language em-
ployed in such provisions, and not as new enactments.
References in laws not repealed to provisions of law which
are incorporated into any such chapter and repealed shall
be construed as applying to the provisions so incorpo-
rated.

§ 33. Effect of revision upon laws passed at
same session or before revision takes effect.—No
provision of any chapter of the revision of the general
laws, of which this chapter isa part, shall supersede or re-
peal 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 repealed,
unless specifically designated in the repealing schedule of
such chapter.

§ 34. Alterations of titles and head notes.—lf
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 corresponding title or head note,
if any, in an abstract of contents at the beginning 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,
Laws REPEALED.

so7

§ 35. Laws repealed.—Of the laws enumerated in
the schedule hereto annexed, that portion specified in the

last column is repealed.

§ 36. Time of taking effect.—This chapter shall

take effect immediately.

SCHEDULE OF Laws REPEALED.

 

 

|

 

; Sections Repealed.
Revised Statutes, part I, chapter 8, title 8..... 16
Revised Statutes, part I, chapter 19, title 1....)1, 2, 3, 4, 5
Revised Statutes, part I, chapter 4, title 2....|3
Revised Statutes, part II, chapter 4, title 3....|9
Revised. Statutes, part III, chapter 8, title 17...| 27
Revised Statutes, part III, chapter ro, title 4...) 4
Revised Statutes, part IV, chapter 2, title 8....| 16
Laws 1828, second meeting, 51st session, chap-
COR 2 is. go5 aguas eas eete  ae  a See eee ers g, 10, II
Laws 1828, second meeting, 51st session, ehap-
Temt€l 20a AG ea Rina dae ewe ee 3 and 4
Laws £357, Chapter 636 oes sieie cede ONE te 3
- Laws 1874, chapter 321............ sulecmes a cadeee All
Laws 1877, chapter 466................0.0-. 27
Laws 1884, chapter 14.........-.2. 00 ee sees All
Laws 1886, chapter 21...........-. eee eeee 20
Code of Civil Procedure.... 2.2.2... 00. eee 29, 788, 960, and sub-
3 divisions 6, 7, 8, 15,
I7, 21, 22, 23 and 24
of section 3343
‘Code of Criminal Procedure................ 955, 956, 957
‘Penal Codésc sui ceusiaae ceieae valved ag ease es 261, 500, and subdivi-
sions 9, 10, II, 12,
13, 14 and 15 of sec-
tion 718

 
CHAPTER XV.

THE PENAL CODE—THE CODE OF CRIMINAL PRO-
CEDURE.

PROVISIONS OF THE PENAL CODE.

Sections APPLICABLE TO RAILROADS.

$119. Peace officers, who eligible as; arrests
without authority; race tracks.—No sheriff of a
county, mayor of a city, or officials, or other person author-
ized by law to appoint special deputy sheriffs, special con-
stables, marshals, policemen, or other peace officers in this.
state, to preserve the public peace or quell public disturbance,
shall hereafter, at the instance of any agent, society, asso-
ciation or corporation, or otherwise, appoint as such special
deputy, special constable, marshal, policemen, or other
peace oflicer, any person who shall not be a citizen of the
United States and a resident of the state of New York,
and entitled to vote therein at the time of his appointment
and a resident of the same county as the mayor or
sheriff or other official making such appointment; and no
person shall assume or exercise the functions, powers, du-
ties or privileges incident and belonging to the office of
special deputy sheriff, special constables, marshal or police-
men, or other peace officer, without having first received
his appointment in writing from the authority lawfully ap-
pointing him. Any person or persons who shall, in this
state, without due authority, exercise, or attempt to exer-
cise the functions of, or hold himself out to any one as a
deputy sheriff, marshal, or policeman, constable or peace
officer, or any public officer, or person pretending to be a
public officer, who, unlawfuliy, under the pretense or color
of any process, arrests any person or detains him against his
will, or ‘seizes or levies upon any property, or dispossesses
any one of any lands or tenements without a regular process
therefor, or any person who knowingly violates any other
provision of this section, is guilty of a misdemeanor, But
nothing herein contained shall be deemed to affect, repeal or
abridge the powers authorized to be exercised under sections
one hundred and two, one hundred and four, one hundred
ELicipiLiry OF PEACE OFFICERS—CONSPIRACY. 359°
and sixty-nine, one hundred and eighty-three, eight hundred
and ninety-five, eight hundred and ninety-six and eight
hundred and ninety-seven of the Code of. Criminal Proced-
ure; or under chapter three hundred and forty-six of the
laws of eighteen hundred and sixty-three, as amended by
chapter two hundred and fifty-nine of the laws of eighteen
hundred and sixty-six, and chapter one hundred and. ninety-
three, of the laws of eighteen hundred and seventy-five; or |
under chapter two hundred and twenty-three of the laws of
eighteen hundred and eighty ; or under chapter five hundred
and twenty-seven of the laws of eighteen hundred and sev-
enty-three; or under chapter two hundred and five of the
laws of eighteen hundred ‘and seventy-five; but all places
kept for summer resorts and the grounds of racing associa-
tions in the counties of New York, Kings and Westches-
ter, are hereby exempted from the provisions of this act.

(As am’d by L. 1892, ch. 272; also am’d L. 1882, ch. 384.)

§ 168. Conspiracy defined.—If two or more persons
conspire, either

1. To commit a crime; or

2. Falsely and maliciously to indict another for acrime,
or to procure another to be complained of or arrested for
a crime; or

3. Falsely to institute or maintain an action or special-
proceeding ; or

4. To cheat and defraud another out of property, by
any means which are in themselves criminal, or which, if
executed, would amount to a cheat, or to obtain money or
any other property by false pretenses; or

5. To prevent another from exercising a lawful trade or
calling, or doing any other lawful act, by force, threats, in-
timidation, or by interfering or threatening to interfere
with tools, implements, or property helonging to or used
by another, or with the use or employment thereof ; or

6. To commit any act injurious to the public health, to
public morals, or to trade or commerce, or for the perver-
sion or obstruction of justice, or of the due administration
of the laws ;

Each of them is guilty of a misdemeanor.
360 THe PEenat Cope.

§ 170. What conspiracies punishable.—No con-
spiracy is punishable criminally unless it is one of those
enumerated in the last two sections, and the orderly and
peaceable assembling or co-operation of persons employed
in any calling, trade or handicraft for the purpose of ob-
taining an advance in the rate of wages or compensation,
or of maintaining such rate, is not a conspiracy.

(As am’d by L. 1882, ch. 384.)

171 “A.” Coercion of employes to enter into
agreement not to join labor organizations.—Any
person or persons, employer or employers of labor, and
any person or persons of any corporation or corpora-
tions on behalf of such corporation or corporations, who
shall hereafter coerce or compel any person or persons,
employe or employes, laborer or mechanic, to enter into
an agreement, either written or verbal from such person,
persons, employe, laborer or mechanic, not to join or be-
come a member of any labor organization, as a condition
of such person or persons securing employment, or contin-
uing in the employment of any such person or persons,
employer or employers, corporation ‘or corporations 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 of not more
than two hundred dollars, or by both such fine and im-
prisonment.

(Added by L. 1887, ch. 688.)

§ 193. Manslaughter in second degree.—Such
homicide is manslaughter in the second degree, when com-
mitted without a design to effect death, either

1. By a person committing or attempting to commit a
trespass, or other invasion of a private right, either of the
person killed, or of another, not amounting to a crime; or

2. In the heat of passion, but not by a dangerous
weapon or by the use of means either cruel or unusual; or

3. By any act, procurement or culpable negligence of
any person, which, according to the provisions of this chap-
NEGLIGENT Use or MacHINERY—MANSLAUGHTER. 361

ter, does not constitute the crime of murder in the first or
second degree, nor manslaughter in the first degree.

(As am’d by L. 1887, ch. 23.)

$195. Negligent use of machinery, etc.—A per-
son who, by any act of negligence or misconduct in a busi-
ness or employment in which he is engaged, or in the use
or management of any machinery, animals, or property of |
any kind, intrusted to his care, or under his control, or by
any unlawful, negligent or reckless act, not specified by or
coming within the foregoing provisions of this chapter, or
the provisions of some other statute, occasions the death
of a human being, is guilty of manslaughter in the second
degree.

$199. Liability of persons in charge of steam
engines.—An engineer or other person, having charge of
a steam boiler, steam engine, or other apparatus for gene-
rating or applying steam, employed in a boat or railway,
orina manufactory, or in any mechanical works, who will-
fully, or from ignorance or gross neglect, creates or allows
to be created, such an undue quantity of steam, as to burst
the boiler, engine, or apparatus, or to cause any other acci-
dent, whereby the death of a human being is produced, is
guilty of manslaughter in the second degree.

$202. Punishment of manslaughter in second
degree.—Manslaughter in the second degree is punish.
able by imprisonment for a term not exceeding fifteen
years, or by a fine of not more than one thousand dollars,
or by both.
(As am’d by L. 1892, ch. 662.)

§ 223. Use of force or violence, declared not
unlawful, etc.—To use or attempt, or offer to use, force
or violence upon or towards the person of another is not
unlawful in the following cases : a

5. When committed by a carrier of passengers, or the
authorized agents or servants of such carrier, or by any per-
son assisting them, at their request, in expelling from a
carriage, railway car, vessel or other vehicle, a passenger
362 THE PENAL Cope.

who refuses to obey a lawful and reasonable regulation pre-
scribed for the conduct of passengers, if such vehicle has.
first been stopped and the force or violence used is not
more than sufficient to expel the offending passenger, with:
a reasonable regard to his personal safety ;

§$ 319. Mailing, carrying obscene print, etc.—A.
person who deposits, or causes to be deposited, in any post-
office within the state, or places in charge of an express.
company, or.of a common carrier, or other person, for
transportation, any of thearticles or things specified in the
last two sections, or any circular, book, pamphlet, adver-
tisement, or notice relating thereto, with the intent of
having the same conveyed by mail or express, or in any
other manner, or who knowingly or willfully receives the
same, with intent to carry or convey, or knowingly or
willfully carries or conveys the same, by express, or in
any other manner except in the United States mail, is
guilty of a misdemeanor.

$360. Unauthorized pressure of steam.—A per-
son who applies, or causes to be applied, to a steam boiler
a higher pressure of steam than-is allowed by law, or by:
the inspector, officer or person authorized to limit the
pressure of steam to be applied to such boiler, is guilty of
a misdemeanor.

$362. Mismanagement of steam boilers.—An
engineer or other person having charge of a steam boiler,
steam engine, or other apparatus for generating or employ-
ing steam, employed in a railway, manufactory, or. other
mechanical works, who, willfully or from ignorance or
gross neglect, creates or allows to be created such an undue
quantity of steam as to burst the boiler, engine or appa-
ratus, or cause any other accident whereby humaa life is
endangered, is guilty of a misdemeanor.

§ 381. Innkeepers and carriers refusing to re-
ceive guests and passengers.—A person, who, either
on his own account or as agent or officer of a corporation,
carries on business as innkeeper, or as a common carrier of
| STEAM—CarriERs—Crivi_t RiGHTS—NUISANCES. 363)

passengers, and refuses, without just cause or excuse, to:
receive and entertain any guest, or to receive and carry
any passenger, is guilty of a misdemeanor.

§ 383. Protecting civil and public rights.—No-.
citizen of this state can by reason of race, color, or previous
condition of servitude, be excluded from the equal enjoy--
ment of any accommodation, facility or privilege furnished.
by innkeepers, or common carriers, or by owners, man-
agers or lessees of theaters or other places of amusement,.
by teachers and officers of common schools and public in-
stitutions of learning, or by cemetery associations. The
violation of this section is a misdemeanor, punishable by a.
fine of not less than fifty dollars, nor more than five hun-
dred dollars.

§ 385. ‘Public nuisance” defined.—A_ public:
nuisance is a crime against the order and economy of the
state, and consists in unlawfully doing an act, or omitting”
to perform a duty, which act or omission :

1, Annoys, injures or endangers the comfort, repose,

health or safety of any considerable number of persons;:
or, ’
2. Offends public decency ; or,
3. Unlawfully interferes with, obstructs, or tends to-
obstruct, or renders dangerous for passage, a lake, ora
navigable river, bay, strearn, canal or basin, or a public
park, square, street or highway; or,

4. In any way renders a considerable number of persons.
insecure in life, or the use of property.

§ 387. Maintaining a nuisance a misdemeanor.
—A person, who commits or maintains a public nuisance,
the punishment for which is not specially prescribed, or
who willfully omits or refuses to perform any legal duty
. Telating to the removal of such a public nuisance, is guilty
of a misdemeanor.

§ 389. Keeping and unauthorized use of explo-
sives; shipment of same.—A person who makes or
keeps gunpowder, nitro-glycerine, or any other explosive:
364 THE PENAL Cove.

or combustible material, within a city or village, or carries
such materials through the streets thereof, ina quantity or
manner prohibited by law or by ordinance of the city or
village is guilty of a misdemeanor. And a person who,
by the careless, negligent, or unauthorized use or manage-
ment of gunpowder or other explosive substance, injures,
or occasions the injury of, the person or property of another,
is punishable by imprisonment for not more than two
years. Any person or persons who shall knowingly pre-
sent, attempt to present, or cause to be presented or offered
for shipment, to any railroad, steamboat, steamship, ex-
press or other company engaged as common carriers of
passengers or freight, dynamite, nitro-glycerine, powder or
other explosives dangerous to life or limb, without reveal-
ing the true nature of said explosive, or substance so offered
or attempted to be offered to the company or carrier to
which it shall be presented shall be guilty of a felony and
upon conviction shall be fined in any sum not exceeding .
one thousand dollars and not less than three hundred dol-
lars or imprisonment in a state prison for not less than one
nor more than five years or be subject to both such fine
and imprisonment.

(As am’d by L. 1887, ch. 689.)

$413. Negligently managing and refusing to
extinguish fires.—A person who:

1, Negligently sets fire to his own woods, by means
whereof the property of another is endangered ; or,

2. Negligently suffers any fire upon his own land to
extend beyond the limits thereof; or,

3. Having been lawfully ordered to repair to a place
of a fire in the woods, and to assist in extinguishing it,
omits without lawful excuse to comply with the order,

Is guilty of a misdemeanor.

(As am’d by L. 1892, ch. 692.)

§ 415. Ferries.—A person who:

1, Maintains a ferry for profit or hire upon any of the
waters of this state without authority of law; or,
Tue RarLroap ComMIsSsioON—ENGINEERS. 365

2. Having entered into a recognizance to keep or
maintain a ferry, violates the condition of such recog-
nizance ;

Is guilty of a misdemeanor.

Where such ferry is upon waters dividing two counties,
the offender may be prosecuted in either county.

(As am’d by L. 1892, ch. 692.) ‘

$416. Unlawful offers to railroad commission-
ers or their employes.—Any officer, agent or attorney
of a railroad corporation who offers a place, appointment,
position or any other consideration to a railroad commis-
sioner, or toa secretary, clerk, agent, employe or expert em-
ployed by the board of railroad commissioners, is guilty of
a misdemeanor. :

(As am’d by L. 1892, ch. 692.)

$417. Misconduct of railroad commissioners
and of their employes.—Any railroad commissioner, or
any secretary, clerk, agent, expert or other person em-
ployed by the board of railroad commissioners, 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 for 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 employe thereof, any information.
gained by him from any other railroad corporation ;

Is guilty of a misdemeanor.

(As am’d by L. 1892, ch. 692.)

§ 418. Persons unable to read not to act or be
employed as engineers.—Any person unable to read
the time-tables of a railroad and ordinary handwriting,
who acts as an engineer or runs a locomotive or train on
any railroad in this state; or any person who in his own
behalf, or in behalf of any other person or corporation,
' 366 Tue Pena Cope.

knowingly employs a person so unable to read to act as
-such engineer or to run any such locomotive, is guilty of a

misdemeanor.
(As am’d by L. 1892, ch. 692.)

§ 419. Misconduct of officials or employes on
elevatéd railroads.—Any conductor, brakeman, or
other agent or employe of an elevated 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 man-
ifests an intention to depart therefrom by arising, or mov-
ing 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 by an authorized employe 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

oe
‘train is in motion, or starts such train before such gate is

firmly closed ;
Is guilty of a misdemeanor.

(As am'd by L. 1892, ch. 692.)

§ 420. Intoxication or other misconduct of rail-
road or steamboat employes.—1. Any person who,
being employed upon any railway as engineer, conductor,
‘baggagemaster, 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 intoxicated while engaged in
the discharge of any such duties; or

2, An engineer, conductor, brakeman, switch-tender, or
‘other officer, agent or employe of any railroad corporation,
who willfully violates or omits his duty as such officer,
agent or employe, by which human life or safety is-endan-
Misconpbuct oF EMPLoyES—SIGNALS AT CROSSINGS. 367

gered, the punishment of which is not otherwise pre-
‘scribed ;
Is guilty of a misdemeanor.
(As ain’d by L. 1892, ch. 692.)

§ 421. Relative to duties of locomotive engi-
neers.—A person acting as engineer, driving a locomo-
tive 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 such bell or sounding such whistle at intervals,
until such locomotive and the train to which the locomo-
tive is attached shall have completely crossed such road or
street, or any officer of a corporation who shall willfully
obstruct, or cause to be obstructed, any farm or highway
crossing with any locomotive or car for a longer period
than five consecutive minutes, is guilty of a misdemeanor.

(As am’d by L. 1891, ch. 358. dane aceite win yenss. wo dala, oe

ete 3.
; IBS HY, 95S.
Decision UNDER L. 1850, CH. 140, § 39, (REPEALED By L. 1854,

Cu. 282, anp L. 1886, Cu. 593.)

This section was held applicable to a crossing although the
railroad and highway did not cross upon the same level, the
railroad crossing on a bridge fifteen feet high. It was also held
that the penalty was incurred each time a locomotive passed
over the bridge without giving the signals required. People v.
NVC. R.R. Co. 77 NV. 78.

Decisions UNDER L. 1854, Cu. 282, § 7, (REPEALED By L, 1886,
Cu. 593.)

This section provides for the ringing of a bell, and then, as an
alternative, the sounding of a whistle, except im cities. It is made
incumbent 1n a// cases /o ring a bell in crossing a road or street in
acity, and such ringing can not be dispensed with. Eaton vy
Erie Railway Co. 51 N.Y, 544. See Cumming v. Brooklyn City R. R.
Co., 38 Hun, 362. Although a highway crossing a railroad track
-has been regularly laid out, yet until it has been actually opened
or notice “of such laying out” has been given as required -by
chapter 62,.Laws 1853, the duty.imposed by this section does not

attach; the highway is»not “a traveled public road or. street,”
368 Tur Pena Cope.

within the meaning of the statute. Cordell v.N. Y.C.& H.R
R. R. Co., 64 N. V., 535. See same case in 7o WV. Y., rrg, and 75
N. Y., 370. It-is not sufficient to make a street “a traveled pub
lic road or street” that the owners had so dedicated it to the
public as to constitute it a public street, which the local authori.
ties would have the right to improve and putin use as such,
The street must be both ¢raveled and public. Byrne v. N. Y.C.&
H.R. R.R. Co.,94 N. Y., 12. The acquiescence of a railroad
company for a long time in the public use of a private right of
way across its tracks, may amount to a license or permission to
all persons to cross at that point, and impose a duty upon it, as
to persons so crossing, to exercise reasonable care in the move-
ment of its trains. Barryv. V. Y.C.& A. R.R. R. Co, 92 N. Y.,
28; Thomas v. Del., Lack. & West. R. R. Co., 8 Fed. Rep., 729; Swift
v. Staten I. Rap. Tr. Co., 123 N. Y.,645. A railroad company, by
its established use of the statutory signals at a private crossing,
imposes upon itself the same liability to persons who act upon
the faith of such usage, as if it were a highway crossing within
this section. Mash, admr..v. N.Y. C.& H.R. R. R. Co. 51 Hun,
594; of'd 117 N. Y., 628; see Nash v. Same, 125 N. Y., 775. It is
not enough in all cases to absolve a railroad company from the
charge of négligence, that the statutory signals are given. The
circumstances may be such as to require other anes in
the running of a train, or in the use and occupation of the
tracks. There may be negligence which will charge the com-
pany other than the bare omission to sound the whistle or ring
the bell. Weberv. N. V.C.& H.R. RR. Co, 58 N.Y. 551; Dyer
v. Erie Ry. Co. 71 N. Y., 228; Harty v. Central R. R. of N. J., 42
N. Y., 468; Salter v. Utica & Black R. R. R. Co. 88 N. Y., 42;
Thompson v. N. Y.C.& H.R. R. R. Co, r10 N. Y., 636. Failure
to ring the bell or blow the whistle does not excuse a traveler
on the highway from exercising care on his part, in looking and
listening before crossing railroad tracks, in order to escape the
danger of moving trains. Cullen v. Del. & Hudson Canal Co., 113
N. Y., 667.

DECISIONS SINCE THE REpEAL or L. 1854, Cu. 282, § 7.

See as to repeal of this section, Lewisv. WV. YL. £. & WR.
R. Co. 123 N. Y., 496. Since the repeal of this section it is not
negligence fer se to neglect to give the signals, It is a question
for the jury. Austin v. Staten Island R. T.R. R. Co., 14 N.Y. Supp.,
923; 39 St. Rep., 76; Cookv. N.Y. C. & A. R.R. RB. Co., 35 St. Reps

rar. re AT OV Sut 4c afd 1r9® N Vo Aor Vaadoanntoe on AT WV fos
Makino Up Trains—PiatrormMs—HeatTInc. 369

N. E.R. R. Co., 67 Hun, 1786. Although no duty is imposed by
sec. 421 of the Penal Code, the question of negligence in omit-
ting the signals is a question for the jury. Kanev. V. Y., NV. H.
& H.R. R. Co, 132 N. Y., 160.

§ 422. Placing other cars in trains with passen-
ger cars.—A person being an officer or employe ofa rail-
way 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 passengers in a railway
train is guilty of a misdemeanor.

(As am’d by L. 1889, ch. 267.)

§ 423. Platforms and heating apparatus of pas-
senger cars.—A railroad corporation, or any officer or
director thereof having charge of its railroad, or any per-
son managing a railroad 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 passengers falling between the cars when in
motion; or,

2. Except temporarily, in case of accident or emergen-
_ cy, 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 furnace
inside of or suspended from such car, except stoves of a
pattern and kind approved by the board of railroad com-
missioners for cooking purposes in dining-room cars, and
except within the extended time allowed by the railroad.
commissioners in pursuance of law for introducing other
heating apparatus ;

Is guilty of a misdemeanor.

(As am’d by L. 1892, ch. 692.)

§ 424. Guard posts; automatic couplers.—All
corporations and persons other than employes, operating |
any steam railroad in this state,

Xx
370 Tue Pena Cope.

1. Failing to cause guard posts to be placed in the pro-
longation 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 after November ist, 1892, to equip all of
their own engines and 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 acci-
dent or other emergency, with automatic self-couplers, and
except within the extended time allowed by the board of
railroad commissioners, 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 offence.

(As am’d by L. 1892, ch. 962.)

$425. Officers of railroad companies to be uni-
formed.—A person who,

1. Advises or induces any one, being an officer, agent
or employe of a railway company, to leave the service of
such company, because it requires a uniform to be worn by
such officer, agent or employe, or to refuse to wear such
uniform, or any part thereof ; or,

2. Uses any inducement with a person employed by a
railway company, to go into the service or employment of
any other railway company, 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.

§ 426. Riding on freight trains.—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 engine ; or,

2, Who gets on any car or train while in motion (for
FREIGHT Trains—Conrtacious DisEAsEs. 371

the purpose of obtaining transportation thereon as a pas-
-senger;) or, aoe

3. Who willfully obstructs, hinders or delays the pas-
sage of any car lawfully running upon any steam or horse
or street railway ;

Is guilty of a misdemeancr.

(As am’d by L. 1890, ch. 458.)

§$ 434. Exposing person affected with a conta-
gious disease, in a public place.—A person, who
willfully exposes himself or another, affected with any
contagious or infectious disease, in any public place or
thoroughfare, except upon his necessary removal in a man-
ner not dangerous to the public health, is guilty of a mis-
demeanor.

$435. False rumors as to public funds, etc.—
A person, who, with intent to affect the market price of
the public funds of this state or of the United States, or
of any state or territory thereof, or of a foreign country or
government, or of the stocks, bonds, or other evidences
of debt of a corporation or association, or the market
price of gold or silver coin or bullion, or any merchandise
or commodity whatever: :

1. Without lawful authority, falsely signs the name of
an officer of a corporation, or of any other person to a
letter, message, or other paper ; or,

2. Utters or circulates such a letter, message, or paper,
knowing that the same has been so falsely signed; or,

3. Knowingly circulates any false statement, rumor, or
intelligence ;

Is punishable by a fine of not more than five thousand
dollars, or by imprisonment for not more than three years,
or both.

$444. Interfering with navigation.—A_ person
who throws, or causes, or permits to be thrown, from any
‘boat, scow, or other vessel, or in any other manner, into
any of the navigable waters of this state, including bays,
sounds and harbors, any earth, ashes, cinders, stone, or
other material, or who builds any structure therein, which
472 THE Prenat Cope.

will in any manner lessen the depth of such waters, or in-
terfere with the free and safe navigation thereof, is guilty
of a misdemeanor. a

$449. “Riot” defined.—Whenever three or more
persons, having assembled for any purpose, disturb the
public peace, by using force or violence to any other per.
son, or to property, or threaten or attempt to commit such
disturbance, or to do an unlawful act by the use of force or
violence, accompanied with the power of immediate execu-
tion of such threat or attempt, they are guilty of riot.

$450. Punishment of riot.—A person guilty of
riot, or of participating in a riot, either by being person-
ally present, or by instigating, promoting, or aiding the
same, is punishable as follows: :

1. Ifthe purpose of the assembly, or of the acts done
or threatened or intended by the persons engaged, is to re-
sist the enforcement of a statute of this state, or of the
United States, or to obstruct any public officer of this
state, or of the United States, in serving or executing any
process or other mandate of a court of competent jurisdic-
tion, or in.the performance of any other duty; or if the
offender carries, at the time of the riot, fire-arms or any
‘other dangerous weapon, or is disguised ; by imprisonment
for not more than five years, or by a fine of not more than

one thousand dollars, or by both such fine and imprison-
ment ;

2. In any other case, if the offender directs, advises,
encourages, or solicits other persons, present or participat-
ing in the riot or assembly, to acts of force or violence, by
imprisonment for not more than two years, or by a fine of

not more than five hundred dollars, or by both such fine
and imprisonment ;

_3-, In any case, not embraced within the foregoing sub-
divisions of this section, by imprisonment for not more
than one year, or by a fine of not more than two

hundred and fifty dollars, or by both such fine and im-
prisonment.

§ 451. Unlawful assemblies.—Whenever three or
more persons:
Rrots—UniawFut ASSEMBLIES, ahs

1. Assemble with intent to commit any unlawful act
by force; or,

2. Assemble, with intent to carry out any purpose, in
such a manner as to disturb the public peace ; or,

_ 3 Being assembled, attempt or threaten any act tend-
ing towards a breach of the peace or an injury to person
or property, or any unlawful act;

Such an assembly is unlawful; and every person partici-
pating therein, by his presence, aid, or'instigation, is guilty
of a misdemeanor. °
. But this section shall not be so construed as to prevent
the peaceable assembling of persons for lawful purposes of
protest or petition. .

(As am’d by L. 1882, ch. 384.)

$454. Remaining present at place of riot after
warning.—A person, remaining present at the place of
an unlawful assembly or riot, after the.persons assembled
‘have been warned to disperse by a magistrate or public
officer, is guilty of a misdemeanor, unless as a_ public
officer, or at the request or command of a public officer, he
is endeavoring or assisting to disperse the same, or to pro-
tect persons or property, or to arrest the offenders.

$455. Remaining after meeting has adopted
unlawful purpose.—Where three or more persons
assemble for a lawful purpose, and afterwards proceed to
commit an act that would amount to a riot, if it had been
the original purpose of the meeting, every person who does
not retire when the change of purpose is made known, or
such act is committed, except public officers and persons
assisting them in attempting to disperse the assembly, is
guilty of a misdemeanor,

§ 456. Refusing to assist in arresting rioter.—
A person, present at the place of an unlawful assembly or
rot, who, being commanded by a duly authorized public
officer to act or aid in suppressing the riot, or in protecting
‘persons or property, or in arresting a person guilty of or
charged with participating in the unlawful assembly or
374 Tue Pena Cope.

riot, neglects or refuses to obey such command, is guilty
of a misdemeanor.

§ 486. Arson in first degree defined.—A person
who willfully burns, or sets on fire, in the night time,
either :

1. A dwelling-house in which there is, at the time, a
human being ; or,

2. A car, vessel, or other vehicle, or a structure or a
building other than a dwelling-house, wherein, to the
knowledge of the offender, there is, at the time, a human
being ;

Is guilty of arson in the first degree.

§ 487. Arson; second degree.—A person who:

1. Commits an act of burning in the day time, which,
if committed in the night time, would be arson in the first
degree; or,

2. Willfully burns, or sets on fire, in the night time, a
dwelling-house wherein, at the time there is no human
being ; or,

3. Willfully burns, or sets on fire, in the night time, a
building not inhabited, but adjoining or within the curti-
lage of an inhabited building, in which there is, at the
time, a human being, so that the inhabited building is en-
dangered, even though it is not in fact injured by the burn-
ing ; or,

4. Willfully burns, or sets on fire, in the night time, a
car, vessel, or other vehicle, or a structure or building,
ordinarily occupied at night by a human being, although
no person is within it at the time ;

Is guilty of arson in the second degree.

§ 488. Arson; third degree.—A person who will-
fully burns, or sets on fire, either :

1. A vessel, car, or other vehicle, or a building, struc-
ture, or other erection, which is at the time insured against

loss or damage by fire, with intent to prejudice the insurer
thereof; or,
Arson—BuRGLARY—FORGERY. 375

2. A vessel, car, or other vehicle, or a building, struc-
ture, or other erection, under circumstances not amounting
to arson in the first or second degree ;

Is guilty of arson in the third degree.

§ 498 Burglary; third degree.—A person who
either :

1, With intent to commit a crime therein, breaks and
enters a building, or a room, or any part of a building ; or,

2, Being in any building, commits a crime therein and’
breaks out of the same ;

Is guilty of burglary in the third degree.

$504 ‘ Building,” defined.—The term “build- .
ing,” as used in this chapter, includes a railway car, vessel,
booth, tent, shop, or other erection or enclosure.

§505. Unlawfully entering building.—A person
who, under circumstances or in a manner not amounting
to a burglary, enters a building, or any part thereof, with
intent to commit a felony or a larceny, or any malicious
mischief, is guilty of a misdemeanor.

$509. Forgery in first degree defined.—A per-
son is guilty of forgery in the first degree who with an in-
tent to defraud, forges,

5. A certificate of stock, bei or other writing, bank
note, bill of exchange, draft, check, certificate of deposit,
or other obligation or evidence of debt, issued or purport-
ing to be issued by any bank, banking association or body
corporate existing under the laws of this state, or of the
United States, or of any other state, government or coun-
try, declaring or purporting to declare any right, title or
interest of any person in any portion of the capital stock,
or property of such a body corporate, or promising or pur-
porting to promise or agree to the payment of money, or
the performance of any act, duty, or obligation ; or,

.6. An indorsement or other writing, transferring or
purporting to transfer the right or interest of any holder
of such a certificate, bond, or writing obligatory, or of any
person entitled to such right or interest.
376 THe Pena Cope.

§511. Forgery, second degree.—A person is guilty
of forgery in the second degree who, with intent to defraud,

1. Forges the great or privy seal of this state, the seal
of any court of record, or of any public office or officer
authorized by law, or of any body corporate created by or
existing under the laws of this state, or of the United
States, or of any other state or any territory of the United
States, or of any other state, government, or country, or
any impression of such a seal or any gold or silver coin,
whether of the United States, or of any foreign state, gov-
ernment or country;or, . . .

An entry made in any bonk of record or accounts, kept
by or in the office of any officer of this state, or of any
village, city, town, or county of the state, by which any
demand, claim, obligation, or interest, in favor of ur against
the people of the state, or any city, village, town or county,
or any officer thereof, is or purports to be created, in-
creased, diminished, discharged, or in any manner affected ;
or an entry made in any book of records or accounts kept
by a corporation doing business within the state, or in any
account kept by sucha corporation, whereby any pecuniary
obligation, claim, or credit is or purports to be created, in-
creased, diminished. discharged, or in any manner affected ;
| a
An instrument or writing, being or purporting to be the
act of another, by which a pecuniary demand or obligation.
is or purports to be or to have been created, increased,
discharged, or diminished, or in any manner affected, or by
which any rights or property whatever are or purport to
be or to have been created, transferred, conveyed, dis-
charged, increased, or diminished, or in any manner affected,
the punishment for forging, altering, or counterfeiting
which is not hereinbefore prescribed, by which false mak-
ing, forging, altering, or counterfeiting, any person may
be bound, affected or in any way injured in his person or
property ; or, ;

§ 514. Other cases of forgery in third degree.
-—A person who either :

1. Being an officer or in the employment of a corpora-
tion, association, partnership or individuals falsifies, or
ForGERY. ’ 377

unlawfully and corruptly alters, erases, obliterates or de-
stroys any accounts, books of accounts, records, or other
writing, belonging to or appertaining to the business of
the corporation, association or partnership or individuals ;
or, .

2. Who, with intent to injure or defraud, shall falsely
make, alter, forge or counterfeit, or shall cause, aid, abet,
assist or otherwise connive at, or be a party to the mak-
ing, altering, forging or counterfeiting of any letter, tele-
gram, or other written communication, paper,—or instru-
ment by which making, altering, forging or counterfeit-
ing, any other person shall be in any manner injured in
his good name, standing, position or general reputation ;
or,

3. Who shall alter, or who shall cause, aid, abet, or
otherwise connive at, or be a party to the uttering of any
letter, telegram, report or other written communication,
paper or instrument purporting to have been written. or
signed by another person, or any paper purporting to be a
copy of any such paper or writing where no original ex-
isted, which said letter, telegram, report or other written
communication, paper or instrument, or paper purporting
to be a copy thereof, as aforesaid, the person uttering the
same shall know to be false, forged or counterfeited, and
by the uttering of which the sentiments, opinions, conduct,
character, prospects, interests or rights of such other per-
son shall be misrepresented or otherwise injuriously affected;
Oly eae oR a
Is guilty of forgery in the third degree.

(As am’d by L. 1892, ch. 692, also L. 1884, ch. 378.)

 

§ 515. Forgery, third degree.—A person who,
with intent to defraud or to conceal any larceny or misap-
propriation by any person of any money or property, either:

1. Alters, erases, obliterates, or destroys an account,
- book of accounts, record, or writing, belonging to, or ap-
pertaining to the business of, a corporation, association,
public office or officer, partnership, or individual ; or

2. Makes a false entry in any such account or book of
accounts ; or,
378 THe Pena Cope.

3. Willfully omits to make true entry of any material
particular in any such account or book of accounts, made,
written, or kept by him or under his direction ;

Is guilty of forgery in the third degree.

§516. Forging passage tickets.—A person who,
with intent to defraud, forges, counterfeits, or falsely alters
any ticket, cheque or other paper or writing, entitling o1
purporting to entitle the holder or proprietor thereof toa
passage upon any railway or in any vessel or other public
conveyance ; and a person who, with like intent, sells, ex-
changes or delivers, or keeps or offers for sale, exchange
or delivery, or receives upon any purchase, exchange or
delivery, any such ticket, knowing the same to have
been forged, counterfeited or falsely altered, is guilty of
forgery in the third degree.

$518. Officer of corporation selling, etc., shares.
—An officer, agent or other person employed by any com-
pany or corporation existing under the laws of this state,
or of any other state or territory of the United States, or
of any foreign government, who willfully and with a de-
sign 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, pledgec
or issued, a false, forged or fraudulent paper, writing or in
strument, being or purporting to be a scrip, certificate o
other evidence of the ownership or transfer of any share
or shares of the capital stock of such company or corpora
tion, or a bond or other evidence of debt of such compan)
or corporation, or a certificate or other evidence of thi
ownership or of the transfer of any such bond or othe
evidence of debt, is guilty of forgery in the third degree
and upon conviction, in addition to the punishment pre
scribed in this title for that offence, may also be sentence
to pay a fine not exceeding three thousand dollars.

§ 519. Falsely indicating person as corporat
officer.—The false making or forging of an instrument o
writing, purporting to have been issued by or in behalf c
a corporation or association, state or government, an
bearing the pretended signature of any person. therei
Forcery—LarceEny. 379

falsely indicated as an agent or officer of such corporation,
is forgery in the same degree, as if that person were in
truth such officer or agent of the corporation or associa-
tion, state or government.

§520. Terms “ forge,” “forged,” and “ forging ’”’
defined.—The expressions “forge,” “forged” and “ forg-
ing,” as used in this chapter, include false making, coun-
terfeiting and the alteration, erasure, or obliteration of a
genuine instrument, in whole or in part, the false making
or counterfeiting of the signature, of a party or witness,
and the placing or connecting together with intent to de-
fraud, different parts of several genuine instruments.

§ 528. Larceny defined.—A person who, with the
intent to deprive or defraud the true owner of his property, '
or of the use and benefit thereof, or to appropriate the
same to the use of the taker, or of any other person, either :

1. Takes from the possession of the true owner, or of
any other person ; or obtains from such possession by color
or aid of fraudulent or false representation or pretence, or
of any false token or writing ; or secretes, withholds, or
appropriates to his own use, or that of any person other
than the true owner, any money, personal property, thing
in action, evidence of debt or contract, or article of value
of any kind; or,

2. Having in his possession, custody, or control. as a
bailee, servant, attorney, agent, clerk, trustee, or officer of
any person, association, or corporation, or as a’ public
officer, or as a person authorized by agreement, or by com- |
petent authority, to hold or take such possession, custody,
or control, any money, property, evidence of debt or con-
tract, article of value of any nature, or thing in action or
possession, appropriates the same to his own use, or that
of any other person other than than the true owner or per-
son entitled to the benefit thereof ;

Steals such property, and is guilty of larceny.

$530. Grand larceny in first degree.—A person
is guilty of grand larceny in the first degree, who steals, or
unlawfully obtains or appropriates, in any manner specified:
in this chapter :
380 Tue Pena Cone.

1. Property of any value, by taking the same from the
person of another in the night-time ; or,

2. Property of the value of more than twenty-five dol-
lars, by taking the same in the night-time from any dwell-
ing-house, vessel, or railway car; or,

3. Property of the value of more than five hundred
dollars, in any manner whatever.

$531. Id., in second degree.—A person is guilty
of grand larceny i in the second degree who, under circum-
stances not amounting to grand larceny in the first degree,
in any manner specified in this chapter, steals or unlawfully
obtains or appropriates :

1. Property of the value of more than twenty-five dol-
lars, but not exceeding five hundred dollars, in any manner "
whatever ; or,

2. Property of any value, by taking the same from the
person of another; or,

3. A record af a court or officer, or a writing, instru-
ment or record kept filed or deposited according to law,
with, or in keeping of any public office or officer.

$532. Petit larceny.—Every other larceny is petit
larceny.

$546. Id.; passenger ticket.—If the thing stolen
is a ticket, paper or other writing, entitling or purporting
to entitle the holder or proprietor thereof to a passage
upon a railway car, vessel, or other public conveyance, the
price at which a ticket, entitling a person to a like passage,
is usually sold, is deemed the value thereof.

§ 590. Frauds in the organization of corpora-
tions.—A person who:

1. Without authority subscribes the name of another
to or inserts the name of another in any prospectus, circu-
lar or other advertisement or announcement of any cor-
poration 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
LarceNy—FrRaups —ORGANIZATION—STOCK. 381

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 sub-
scription 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 agreement, that the terms of
such subscription or agreement are not to be complied
with or enforced ;

Is guilty of a misdemeanor. !

(As am’d by L. 1892, ch. 692.)

$591. Fraudulent issue of stock, etc.—An offi-
cer, 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 willfully and knowingly, with intent to de-
fraud, either :

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, pledges or issues, 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 corpora-
tion, without being first thereto duly authorized by such
company or corporation, or contrary to the charter or laws
under which such corporation or company exists, or in ex-
cess 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
»

382 Tue Pena Cope.

imprisonment for a term not exceeding seven years, or
by a fine not exceeding three thousand dollars, or by both.

(As am’d L. 1892, ch. 662.)

§ 592. Frauds in procuring organization, cor-
poration, etc.—An officer, agent or clerk of a corpora-
tion, or of persons proposing to organize a corporation, or
to increase the capital stock of a corporation, who know-
ingly 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 corporation, or to investigate its af-

fairs, or to allow an increase of its capital, with intent to

deceive such officer or board in respect thereto, is punish-
able by imprisonment in a state prison not exceeding ten
years.

(As am’d by L. 1892, ch. 662.)

$594. Misconduct of directors of stock corpo-
rations.—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 payment of an installment of capital stock actu-
ally’called in, and réquired to be paid, or with intent to
provide the means of making such paytietit " or? 5 s0se

4. To receive or discount any note or other eviderice
of debt with intent to enable any stockholder to with-

draw any part of the money paid in by him on his stock;
Ory,

5. To apply any portion of the funds of such corpora-
tion, except surplus profits, directly or indirectly, to the
purchase of shares of its own stock ; or,
Misconpbuct oF Direcrors—FRaubs. 383

6. To receive any such shares in payment or satisfaction
of a debt due.to such corporation; or,

7. To receive in exchange for the shares, notes, bonds
or other evidences of debt of such corporation, shares of
the capital stock, notes, bonds or other evidences of debt
issued by any other stock corporation engaged in another
line of business unless authorized by. law to make such ex-
enanges

- Is guilty of a misdemeanor.

(As am’d by L. 1892, ch. 692.)

§ 602. Frauds in preparing accounts.—A director,
officer or agent of any corporation or joint-stock associa-
tion, who knowingly receives or possesses himself of any
property of such corporation or association, otherwise than
in payment of a just demand, and with intent to defraud,
omits to make, or cause or direct to be made, a full and
true entry thereof, in the books or accounts of such corpo-
ration or association ; and a director, officer, agent or mem-
ber of any corporation or joint-stock association who, with
intent to defraud, destroys, alters, multilates, or falsifies
any of the books, papers, writings or securities belonging
to such corporation or association, or makes or concurs in
making any false entry, or omits or concurs in omitting to
make any material entry in any book of accounts, or other
record or document kept by such corporation or associa-
tion, is punishable by imprisonment in a state prison not
exceeding ten years, or by imprisonment in a county jail
not exceeding one year, or by a fine not exceeding five
hundred dollars, or by both such fine and imprisonment.

(As am’d by L..1892, ch. 662; also am’d by L. 1892, ch. 692.)

§ 610. Misconduct of officers and directors of
stock corporations.—An officer or director of a stock
corporation who :

1. 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 pur-
suance of law, or, ’

2 Sells, or agrees to ecil, or is : directly or. indirectly’ in-
terested in the sale of any share of stock of such corpora-
384. TuE Pena Cope.

tion, or in any agreement 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.

(As am’d by L. 1892, ch. 692.)

$611. Misconduct of officers and employes of
corporations.—A director, officer, agent or employe 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 to 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. Concurs in omitting to make any material entry
thereof ; or,

3. Knowingly concurs in making or publishing any
written report, exhibit or statement of its affairs or pecun-
iary condition, containing any material statement which is
false; or,

4. Having the custody or control of its books, will-
fully refuses or neglects to allow the same to be inspected
and extracts to be taken therefrom by any person entitled

by law to inspect the same or to take extracts therefrom ;
or,

5. If a notice of an application for an injunction affect-
ing the property or business of such joint-stock association
or corporation is served upon him, omits to disclose the
fact of such servicé and the time and place of such appli-
cation to the other directors, officers and managers there-
of ; or,

6. Refuses or neglects to make any report or state-
ment lawfully required by a public officer;

Is guiity of a misdemeanor.

(As am’d by L. 1892, ch. 692.)

§ 613. Misconduct of corporate elections.—Any
person who:

1. Votes‘or issues a proxy to vote at any meeting of
Corporate ELecrions—KnowLence or Directors. 385

the stockholders or bondholders, or both, of a stock cor-
poration, upon any stock or bond, if the person in whose
behalf such vote is given shall not then have the title to
the stock represented by such certificate or to such bond,
and shall not have it in his possession and control, notwith-
standing such stock or bond shall then stand on the books.
of such corporation in the name of the person in whose
behalf such vote is given; or,

2. Being entitled to vote at such meeting, sells his vote
or issues a proxy to vote to any person for any sum of
money or thing of value; or,

3. 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 re-
quired 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.

(As am’d by L. 1892, ch. 692.)

$614. Presumption of knowledge of corporate
condition and business and of assent thereto by
directors; definitions.—It is no defence to a prosecu-
tion for a violation of the provisions of this chapter, that
the corporation is a foreign corporation, if it carries on
business or keeps an office therefor in this state.

The term “director” as used in this chapter includes
any of the persons having, by law, the direction or man-
agement 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 cor-
poration or association as to enable him to determine
whether any act, proceeding or omission of its directors is
a violation of this chapter. If present at a meeting of the
directors at which any act, proceeding or omission of such
directors in violation of this chapter 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 ap-

Y

‘
386 THE PENAL Cope.

pear on the record or minutes of the proceedings of the
board of directors, and he remains a director of the cor-
poration for six months thereafter without causing or in
writing requiring his dissent from such violation to be en-
tered on such record or minutes.

(As am’d by L. 1892, ch. 692.)

$616. Sales by authorized agents restricted.—
No person except as allowed in section 622 shall ask, take
or receive any money or valuable thing as a consideration
for any passage or conveyance upon any vessel or railway
train, or for the procurement of any ticket or instrument
giving or purporting to give a right, either absolutely or
upon a condition or contingency, to a passage or convey-
ance upon a vessel or railway train, or a berth or state-
room on a vessel, unless he is an authorized agent within
the provisions of the last section; nor shall any person, as
such agent, sell or offer to’sell any such ticket, instrument,
berth or state-room, or ask, take or receive any considera-
tion for any such passage, conveyance, berth or state-room,
excepting at the office designated in his appointment, nor un-
til he has been authorized to act as such agent according
to the provisions of the last section, nor for a sum exceed-
ing the price charged at the time of such sale, by the com-
pany, owners or consignees of the vessel or railway mem-
tioned in the ticket. But a person who shall have pur-
chased a ticket in good faith for his own passage, and shall
have been prevented from using the same, may sell the
ticket at any price not greater than the regular rate estab-
lished therefor, to another purchaser in good faith, for his
own use.

§ 617. Unauthorized persons forbidden to sell
certificates, receipts, etc., for the purpose of pro-
curing tickets.—No person other than an agent ap-
pointed, as provided in section 615, shall sell, or offer to
sell, or in any way attempt to dispose of any order, certifi-
‘cate, receipt or other iastrument for the purpose, or under
the pretence, of procuring any ticket, or instrument men-
tioned in section 615, upon any company or line, vessel or
railway train therein ‘mentioned. And every such order
‘

UNLAWFUL SALE oF PassaGE TICKETS. 387

sold or offered for sale by any agent, must be directed to
the company, owners or consignees at their office.

§ 618. Punishment for unlawful sale of passage
tickets.—A person guilty of a violation of any of the
provisions of the preceding sections of this chapter is pun-
ishable by imprisonment in a state prison not exceeding
two years, or imprisonment in a county jail not exceeding
six months.

(As am’d by L. 1892, ch. 662.)

$619. Conspiracy to sell passage tickets in
violation of law.—All persons who conspire together to
sell or attempt to sell, to any person, any passage ticket,
or other instrument mentioned in sections 615 and 617, in
- violation of those sections, and all persons, who, by means
of any such conspiracy, obtain, or attempt to obtain any
money or other property, under the pretence of procuring
or securing any passage or right of passage in violation of
this chapter, are punishable by imprisonment in a state
prison not exceeding five years.

§ 620. Conspirators may be indicted.—Persons
guilty of violating the last section may be indicted and.
convicted for a conspiracy, though the object of such con-
spiracy has not been executed.

§ 621. Offices for unlawful sale of passage tick-
ets ; punishment.—All offices kept for the purpose of
selling passage tickets in violation of any of the provisions of
this chapter, 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 pur-
pose of violating any of the provisions of this chapter are
punishable by imprisonment in a county jail for a period
not exceeding six months.

(As am’d by L. 1892, ch. 662.) .

§ 623. Station masters, conductors, etc., al-.
lowed to sell tickets.—The provisions of this chapter
do not prevent the station master or other ticket agent
388 . THE PENAL Cope.

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 tickets upon the trains of such railway.

§ 626. Sales of passenger tickets at excessive
rates, &c.—A person who:

1. Sells, or causes to be sold, a passage ticket, or order
for such ticket on any railway, vehicle or vessel, to any
emigrant passenger at a higher rate than one and a quarter
cents per mile; or, 7

2. Takes payment for any such ticket or order for a
ticket under a false representaticn as to the class of the
ticket, whether emigrant or first-class; or,

3. Directly or indirectly, by means of false representa-
tions, purchases or receives from an emigrant passenger
any such ticket ; or,

4. Procures or solicits any such passenger having such
a ticket, to exchange the same for another passenger
ticket, or to sell the same and purchase some other passen-
ger ticket ; or,

Solicits or books any passenger arriving at the port
of New York from a foreign country, before such passen-
ger has left the vessel on which he has arrived, or enters
or goes on board any vessel arriving at the port of New
York from a foreign country, having emigrant passengers
on board, for the purpose of soliciting or booking such
passengers, and a person or agent of a corporation employ-
ing any person for the purpose of booking such passengers
before leaving the ship ;

Is guilty of a misdemeanor.

§ 627. “Company” defined.—The term “com-
pany,” as used in this chapter, includes all corporations,
whether created under the laws of this state, or of the
United States, or of those of any other state or nation.

§ 629. Issuing fictitious bills of lading, receipts
and vouchers.—A person who:

1. Being the master, owner or agent of any vessel, or
officer or agent of any railway, express or transportation
Emigrant Tickets—Fictitious Bitts or Lapinc. 389

company, or otherwise being or representing any carrier,
who delivers any bill of lading, receipt or other voucher,
by which it appears that merchandise of any kind has
been shipped on board a vessel, or delivered to a railway,
express or transportation company, or other carrier, unless
the same has been so shipped or delivered and is at the
time actually under the contro] of such carrier, or the
master, owner or agent of such vessel, or of some officer
or agent of such company, to be forwarded as expressed
in such bill of lading, receipt or voucher; or,

2. Carrying on the business of a warehouseman, wharf-
inger or other depository of property, who issues any re-
ceipt, bill of lading or other voucher for merchandise of
any kind which has not been actually received upon the
premises of such person, and is not under his actual control
at the time of issuing such instrument, whether such in-
strument is issued to a person as being the owner of such
merchandise, or as security for any indebtedness ;

Is guilty of a misdemeanor, punishable by imprisonment
not exceeding one year, or by a fine not exceeding one
thousand dollars, or by both.

(As am’d by L. 1892, ch. 692.)

§$ 630. Id.; issued in good faith excepted.—No
person can be convicted of an offence under the last two
sections, for the reason that the contents of any barrel,
box, case, cask or other vessel or package mentioned in
the bill of lading, receipt or other voucher did not corre-
spond with the description given in such instrument of the
merchandise received, if such description corresponds sub-
stantially with the marks, labels or brands upon the out-
side of such vessel or package, unless it appears that the
defendant knew that such marks, labels or brands were
untrue.

§ 631. Duplicate receipts must be marked.—A
person mentioned in sections 628 and 629, who issues any
second or duplicate receipt or voucher, of a kind specified
in those sections, at a time while a former receipt or
voucher for the merchandise specified in such second re-
ceipt is outstanding and uncanceled, without writing across
the face of the same the word “duplicate,” in a plain and
390 Tue Pena Cope.

legible manner, is punishable by imprisonment not exceed-
ing one year, or by a fine not exceeding one thousand
dollars, or by both.

8 632. Selling, etc., property received for trans-
portation or storage.—A person mentioned in sections
628 and 629 who sells or pledges any merchandise for
which a bill of lading, receipt or voucher has been issued
by hin, without the consent in writing thereto of the per-
son holding such bill, receipt or voucher, is punishable by
imprisonment not exceeding one year, or by a fine not ex-
ceeding one thousand dollars, or by both.

§ 633. Bill of lading, when to be canceled.—
A person mentioned in section 629, who delivers to
another any merchandise for which a bill of lading, receipt
or voucher has been issued, unless such receipt or voucher
bears upon its face the words ‘not negotiable,” plainly
written or stamped, or unless such receipt is surrendered
to be canceled at the time of such delivery, or unless, in
the case of a partial delivery, a memorandum thereof is
indorsed upon such receipt or voucher, is punishable by
imprisonment not exceeding one year, or by a fine not ex-
ceeding one thousand dollars, or by both.

§ 634. Property demanded by process of law.—
The last two sections do not apply to any case where
property is demanded by virtue of legal process.

§ 635. Injuries to railroad tracks, etc.—A person
who:

1. Displaces, 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, whether operated by steam,
horses, or other motive power; or,

2. Places any obstruction upon the track of any such
railway ; or,

3. Willfully destroys or breaks any guard erected or
maintained bya railroad corporation as a warning signal
for the protection of its employes; or,

4. Willfully discharges a loaded firearm, or projects or
throws a stone or other missile at a railway train, or at a
Bitts or Lapinc—Inyjuries To Tracks, &c. 391

locomotive, car or vehicle standing or moving upon a rail-
_ way; or,

5. Willfully 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 willfully inter-
feres with or interrupts any motive power used in running
such road, or willfully places any obstruction upon the
track of such railroad, or willfully 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 railway ;

Is punishable as follows :

1. If thereby the safety of any person is endangered,
by imprisonment for not more than ten years.

2. In-every other case, by imprisonment for not more
than three years or bya fine of not more than two hundred
and fifty dollars, or both.

(As am’d by L. 1892, ch. 692 ; also am’d L. 18go, ch. 280.)

§$ 636. Damaging building, etc., by explosion.—
A person who unlawfully and maliciously, by the explosion
of gunpowder, or any other explosive substance, destroys |
or damages any building or vessel, is punishable as follows:

1. If thereby the life or safety of a human being is en-
dangered, by imprisonment for not more than ten years;

2. In every other case by imprisonment for not more
than five years.

‘$638. Altering, etc., signal or light for vessel,
etc.—A person who, with intent to bring a vessel, railway
engine, or railway train into danger, either :

1. Unlawfully or wrongfully shows, masks, extin-
guishes, alters, or removes a light or other signal ; or,

2. Exhibits any false light or signal ;

Is punishable by imprisonment for not more than ten
years. ,

§ 639. Injuring highway, etc.—A person who will-
mn or maliciously displaces, removes, injures, or destroys :
_A public highway or bridge, or a private way laid
sie by authority of law, or a bridge upon such public or
private way ; or,
392 Tue Pena Cope.

2. A pier, boom, or dam. lawfully erected or main-
tained upon any water within the state, or hoists any gate
in or about such dam ; or,

3. A pile, or other material, fixed in the ground and
used for securing any sea-bank or sea-walls, or the bank or
dam of any river or other water, or any dock, quay, jetty,
or lock; or,

4. A buoy or beacon, lawfully placed in any waters
within the state; or,

5. A tree, rock, post, or other monument, which has
been either erected or marked for the purpose of desig-
nating a point in the boundary of the state, or of a county,
city, town, or village, or of a farm, tract, or lot of land, or
any mark or inscription thereon ; or,

6. A mile-board, mile-stone, or guide post, erected upon
a highway, or any inscription upon the same ; or,

7. A line of telegraph or telephone, wire or cable,
pier or abutment, or the material or property be-
longing thereto, without lawful authority, or who
shall unlawfully and willfully cut, break, tap, or
make connection with any telegraph or telephone
line, wire, cable or instrument, or read or copy in any
unauthorized manner any message, communication or re-
port passing over it, in this state; or who shall willfully
prevent, obstruct or delay, by any means or contrivance
whatsoever, the sending, transmission, conveyance or de-
livery, in this state, of any authorized message, communica-
tion or report by or through any telegraph or telephone line,
wire or cable, underthe control of any telegraph or telephone
company doing business in this state; or who shall aid,
agree with, employ or conspire with any person or persons.
to unlawfully do, or permit or cause to be done, any of the
acts hereinbefore mentioned, or who shall occupy, use a
line, or shall knowingly permit another to occupy, use a
line, a room, table, establishment or apparatus to unlaw-
fully do or cause to be done any of the acts hereinbefore
mentioned ; or,

(As am’d by L. 1892, ch. 372.)

8. A pipe or main for conducting gas or water, or any
works erected for supplying buildings with gas or water,

or any appurtenance or appendage connected therewith ;
or,
INJURIES TO PROPERTY. 393

9. A sewer or drain, or a pipe or main connected there-
with, or forming part thereof; or who,

10. Destroys or damages with intent to destroy or ren-
der useless any engine, machine, tool or implement intended
for use in trade or husbandry ; .

Is punishable by imprisonment for not more than two
years.

$643. Affixing advertisement to another’s land,
etc., how punished.—A person who places upon
or affixes to, or causes or procures to be placed upon or
affixed to, real property not his own, or a rock, tree, wall,
fence, or other structure thereupon, without the consent of
the owner, any words, characters, or device, as a notice of,
or reference to, any article, business, exhibition, profes-
sion, matter or event, is punishable by imprisonment for
not more than six months, or by a fine of not more than
two hundred and fifty dollars, or by both.

§ 644. Presumptive evidence against certain
persons.—The placing or affixing of any words, charac-
ters, device, or notice, of any article, business, or other
thing, to or upon any property or place specified in the
last section, is presumptive evidence that the proprietor,
vendor, or exhibitor thereof caused or procured the same
to be so placed or affixed.

§ 645. Endangering life by placing explosive
near building.—A person who places in, upon, under,
against, or near to, any building, car, vessel or structure,
gunpowder or any other explosive substance, with intent
to destroy, throw down, or injure the whole or any part
thereof, under such circumstances, that, if the intent were
accomplished, human life or safety would be endangered
thereby, although no damage is done, is guilty of a felony.

§ 654. Injury to property of another; interfer-
ing with cars, brakes, etc.—A person who unlawfully
and willfully destroys or injures any real or personal prop-
erty of another or who without authority or permission
from a person who has the right to give such authority or
permission, loosens any brake or blocking of any car stand-
394 Tue Prenat Cope.

ing on any railroad track in this state, or without like
authority or permission, puts upon or runs any hand car,
or other car, on any railroad track in this state, or without
like authority or permission, interferes or meddles with any
brake.or coupling of any car while standing or moving on
any railroad track in this state, or takes any part therein,
in a case where the punishment is not specially prescribed
by statute, is punishable as follows :

1. If the value of the property destroyed, or the dim-
inution in the value of the property by the injury is more
than twenty-five dollars, by imprisonment for not more
than four years.

2. In any other case, by imprisonment for not more
than six months, or by a fine of not more than two hun-
dred and fifty dollars, or by both such fine and imprison-
ment.

And in addition to the punishment prescribed there-
for, he is liable in treble damages for the injury done, to
be recovered in a civil action by the owner of such prop-
erty, or the public officer having charge thereof.

(As am’d by L. 1892, ch. 186.)

$655. Overdriving animal; failing to provide
proper sustenance.—A person who overdrives, over-
loads, tortures or cruelly beats or unjustifiably injures,
maims, mutilates or kills any animal, whether wild or tame,
and whether belonging to himself or to another, or de-
prives any animal of necessary sustenance, food or drink,
or neglects or refuses to furnish it such sustenance or
drink, or causes, procures or permits any animal to be over-
driven, overloaded, tortured, cruelly beaten, or unjustifia-
bly injured, maimed, mutilated or killed, or to be deprived
of necessary food or drink, or who willfully sets on foot,
instigates, engages in, or in any way furthers any act of
cruelty to any animal, or any act tending to produce such.
cruelty, is guilty of a misdemeanor.

$656. Abandonment of disabled animal.--A
person being the owner or possessor, or having charge or
custody of a maimed, diseased, disabled or infirm animal,
who abandons such animal, or leaves it to die in a street,
CRUELTY TO ANIMALS. 395

road or public place, or who allows it to lie in a public:
street, road or public place more than three hours after he
receives notice that it is left disabled, is guilty of a misde-
meanor. Any agent or officer of the American Society
for the Prevention of Cruelty to Animals, or of any so-
ciety duly incorporated for that purpose, may lawfully de-
stroy or cause to be destroyed any animal found aban-
doned and not properly cared for, appearing in the judg- -:
ment of two reputable citizens called by him to view the
same in his presence, to be glandered, injured or diseased
past recovery for any useful purpose. When any person,
arrested is, at the time of such arrest, in charge of any ani-
mal or of any vehicle drawn by or containing any animal,

any agent of said society may take charge of such animal
and of such vehicle and its contents, and deposit the same
in a safe place of custody, or deliver the same into the
possession of the police or sheriff of the county, or place
wherein such arrest was made, who shall thereupon assume
the custody thereof; and all necessary expenses incurred
in taking charge of such property shall be a lien thereon..

(As am’d by L. 1888, ch.’s 144 and 490.)

§ 659. Carrying animal in a cruel manner, a.
misdemeanor.—A person who carries or causes to be
carried in or upon any vessel or vehicle or otherwise, any
animal in a cruel or inhuman manner, or so as to produce
torture, is guilty of a misdemeanor.

§662. Keeping milch cows in unhealthy places,,.
and feeding them with food producing unwhole-
some milk, a misdemeanor.—A person who keeps a
cow or any animal for the production of milk, in a crowded.
or unhealthy place, or in a diseased condition, or feeds such
cow or animal upon any food that produces impure or
unwholesome milk, is punishable by a fine not less than
fifty dollars, or imprisonment not exceeding one year, or
by both.

§ 663. Transporting animals for more than.
twenty-four consecutive hours, a misdemeanor.
—A railway corporation, or an owner, agent, consignee,

or person in charge of any horses, sheep, cattle, or swine,
396 ‘Tue Prenat Cope.

in the course of, or for transportation, who confines, or
causes or suffers the same to be confined, in cars for a
longer period than twenty-four consecutive hours, without
unloading for rest, water and feeding, during ten consecu-
tive hours, unless prevented by storm or inevitable acci-
dent, is guilty of a misdemeanor. In estimating such con-
finement, the time during which the animals have been
‘confined without rest, on connecting roads from which
they are received, must be computed. If the owner,
agent, consignee, or other person in charge of any such
animals refuses or neglects upon demand to pay for the
-care or feed of the animals while so unloaded or rested,
the railway company, or other carriers thereof, may charge
the expense thereof to the owner or consignee and shall
have a lien thereon for such expense.

§ 669. Definitions.—1,. The word “animal,” as used
in this title, does not include the human race, but includes
every other living creature ;

2. The word “torture” or “cruelty” includes every
act, omission, or neglect, whereby unjustifiable physical
pain, suffering or death is caused or permitted ;

The words “impure and unwholesome milk” in-
-clude all milk obtained from animals in a diseased or un-
healthy condition, or who are fed on distillery waste,
usually called ‘‘swill,” or upon any substance in a state of
putrefaction or fermentation.

§ 675. Relating to disorderly conduct on public
‘conveyances.—Any person who shall by any offensive
or disorderly act or language, annoy or interfere with any
person or persons in any place or with the passengers of
any public stage, railroad car, ferry boat, or other public
‘conveyance, or who shall disturb or offend the occupants
of such stage, car, boat or conveyance, by any disorderly
act, language or display, although such act, conduct or
display may not amount to an assault or battery, shall be
deemed guilty of a misdemeanor. A person who will.
fully and wrongfully commits any act which seriously in-
Jjures the person or property of another, or which seriously
disturbs or endangers the public peace or health, or which
openly outrages public decency, for which no other pun-
‘

DisorDERLY ConpucT—J uURISDICTION OF CouRT. 397

ishment is expressly prescribed by this code, is guilty of a
misdemeanor ; but nothing in this code contained shall be
so construed as to prevent any person from demanding an
increase of wages, or from assembling and using all lawful
means to induce employers to pay such wages to all per- -
sons employed by them, as shall be a just and fair com-
pensation for services rendered.

(As am’d by L. 1891, ch. 327; also am’d Lw«1882, ch. 384.)

PROVISIONS OF THE CODE OF CRIMINAL PROCEDURE.
SEcTIONS APPLICABLE TO RAILROAD COMPANIES.

§ 56. Courts of special sessions, jurisdiction of..
—Subject to the power of removal provided for in this chap-
ter, courts of special sessions, except in the city and county
of New York and the city of Albany, have in the first
instance exclusive jurisdiction to hear and determine:
charges of misdemeanors committed within their respective
counties, as follows:

g. Intoxication of a person engaged ii in running any

' locomotive engine upon any railroad, or while acting as a
conductor of a car, or train of cars, on any such railroad,.
or a misdemeanor committed by any person on a railroad:
car or train.

(As am’d by L. 1890, ch. 521.)

$137. Of crime committed in the state on board.
of any railway train, etc.—When a crime is com-
mitted in this state, in or on board of any railway engine,
train or car, making a passage or trip on or over any rail-
way in this state, or in respect to any portion of the lading
or freightage of any such railway train or engine car, the
jurisdiction is in any county through which, or any part of
which, the railway train or car passes, or has passed, in the
course of the same passage or trip, or in any county where »
such passage or trip terminates, or would terminate if com-
pleted.

§ 335. Plea of guilty, how put in.—A plea of
guilty can only be put in by the defendant himself in open
court, except upon an indictment against a corporation, in
which case it may be put in by counsel.
398 Tue Cope oF CRIMINAL PROCEDURE.

§ 675. Summons upon an information or pre-
sentment against a corporation, by whom issued,
_ and when returnable.—Upon an information against a
corporation, the magistrate must issue a summons, signed
by him, with his name of office, requiring the corporation
to appear before him, at a specified time and place, to
answer the charge ; the time to be not less than ten days
after the issuing of the summons.

$676. Form of the summons.—The summons must
be in substantially the following form :
“County of Albany, (or as the case may be.)
‘In the name of the people of the State of New York;
“To the (naming the corporation.)

“You are hereby summoned to appear before me, at
(naming the place,) on (specifying the day and hour,) to
answer a charge made against you, upon ¢he zxformatzon
of A. B., for (designating the offence, generally.)

“Dated at the czty, (or ‘town,’) of , the — day of

, 18
“G. H., Justice of the Peace.”
(Or as the case may be.)

§ 677. When and how served.—The summons
must be served at least five days before the day of appear-
ance fixed therein, by delivering a copy thereof and show-
ing the original to the president, or other head of the
corporation, or to the secretary, cashier or managing agent
thereof.

§ 678. Examination of the charge.—At the time
appointed in the summons, the magistrate must proceed to
investigate the charge, in the same manner as in the case
of a natural person brought before him, so far as those pro-
ceedings are applicable.

$679. Certificate of the magistrate, and return
thereof with depositions.—After hearing the proofs,
the magistrate must certify upon the depositions, either
that there is or is not sufficient cause to believe the cor-
poration guilty of the offence charged, and must return the
depositions and certificate, in the manner prescribed in
section 221.
Proceepincs Acatnst CORPORATIONS. 399

§ 680. Grand jury may proceed as in the case
of a natural person,—If the magistrate return a certifi-
cate that there is sufficient cause to believe the corporation
guilty of the offence charged, the grand jury may proceed
thereon as in the case of a natural person held‘to answer.

§ 68:1. Bringing an indicted corporation into
court.—When an indictment is filed against any corpora-
tion, such corporation must be arraigned thereon, and the
court acquires jurisdiction over the corporation, in the
manner following :

1. The clerk of the court wherein such indictment is
found, or to which it is sent or removed, or the district at-
torney of the county, must issue a summons signed by him
with his name of office, requiring such corporation to ap-
pear'and answer the indictment by a demurrer or written
plea to be verified in like manner as ‘a pleading in a civil
action, at atime and place to be specified in such sum-
mons, such time to be not less than five days after the is-
‘sue thereof. The summons may be substantially in the
following form :

Court of oyer and terminer of the county of
{state the proper county or court as the case may be)

The People of the State of New York

vs.
The A. B. Company.

‘You are hereby summoned to appear in this court and, by
demurrer or plea in writing duly verified, answer an indict-
ment filed against you by the grand jury of this county, on
the day of , charging you with the crime of
(designating the offence generally,) at a term of the court
of oyer and terminer (or as the cause may be) of this
county, at (naming the place) on (stating the day and
hour) and in case of your failure to so appear and answer,
judgment will be pronounced against you.

Dated at the city (or town) of , the day of

; 08) os
C. D.
District Attorney.

(or by order of the court, E. F. clerk, as the case may be.)
2. The summons must be served at least four days be-
400 Tue Cope oF CRIMINAL PROCEDURE.

fore the appearance fixed therein, in the same manner as
is provided for the service of a summons upon a corpora-
tion in a civil action; and if the corporation does not ap-
pear in the manner and & the time and place specified in
the summons, judgment must be pronounced against it.

3. Nothing contained in this section shall be construed
as preventing the appearance of a corporation by counsel
to answer an indictment, without the issuance or service of
the summons as above provided. And when an indict-
ment shall have been filed against a corporation it may
voluntarily appear and answer the same by counsel duly
authorized to so appear for it; in which case the court ac-
quires full jurisdiction over the corporation in the same
manner as if the summons had been issued and served.

(As am’d L. 1892, ch. 219.)

§$ 682.—Collecting fine of corporation upon con-
viction.—When a fine is imposed upon a corporation
upon conviction, it may be collected in-the same man-
ner as a judgment in a civil action, and if an execution
issued upon such judgment be returned unsatisfied, the dis-
trict attorney of the county may thereupon bring an action
in the name of the people of the state of New York, to
procure a judgment sequestrating the property of the cor
poration, as provided by the Code of Civil Procedure.

(As am’d by L. 1892, ch. 219.)
CHAPTER XVI.

TAXATION.
1 R. S., Cu. 13, Trr. 1.

Section 3. Property subject to taxation.—All
lands and all personal estate within this state, whether
owned by individuals or by corporations, shall be liable to
taxation, subject to the exemptions hereinafter specified,

The franchises of a corporation are not of the character of
“land” within this provision. People ex rel. Panama R. R. Co. v.
Commissioners, 10g N. Y., 2go. It is immaterial whether the rail-
road company has the fee or not. The tracks, ties, etc., are
“land.” The People ex rel. Dunkirk and F. R.R. Co. v. Assessors, 46
XN. Y., 46. Land held by a company under permanent contract
with the Indians is “owned by the company.” People ex rel.
Erie Ry. Co. v. Beardsley, 52 Barb., 105; aff'd 4x N.Y., 619. After
the appointment of a permanent receiver an assessment of the
tax to the railroad company is invalid. ¢ re Mallory, 18 St. Rep.,

4993 2 N.Y. Supp., $37.

§ 2. Land defined.—The term “land,” as used in
this chapter, shall be construed to include the land itself
above and under water; all buildings and other articles
and structures, substructures and superstructures erected
upon, under or above, or affixed to the same; all wharves
and piers, including the value of the right to collect wharf-
age, cranage or dockage thereon ; all bridges; all telegraph
lines, wires, poles and appurtenances; all surface, under-
ground or elevated railroads; all railroad structures, sub-
structures and superstructures, tracks and the iron there-
on; 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 grounds; all
mains, pipes and tanks laid or placed in, upon, above or
under any public or private street or place; 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. The term “real estate” and “ rea]

Zz
402 TAXATION.

property,” whenever they occur in this chapter, shall be
construed as having the same meaning as the term “land”
thus defined.

(As am'd by L. 1881, ch. 293.)

The foundations, columns and superstructure of an elevated
railroad are included in the word “land,” and are taxable as
real estate. People ex rel. N. Y. Elev. R. R. Co. v. Commissioners, 82
N.Y. 459. The “tunnels, tracks, substructures, superstruc-
tures, stations, viaducts and masonry” of the N. Y.& H. RR.
Co., situate on and under Fourth avenue in the city of New
York, are “land.” People ex rel. N. Y.& A. RB. R. Co. v. Commis.
sioners, Tor NV. Y., 322.

1R.S., Cu. 13, Trt. 2.

Section 1. Lands, where taxed.—Every person
shall be assessed in the town or ward, where he resides
when the assessment is made, for al] lands then owned by
him within such town or ward, and occupied by him, or
wholly unoccupied.

A railroad owned by a domestic corporation but leased to a
foreign corporation should be assessed to the lessee, which for
such purpose is a resident of the state and of the town. Pe. ex
rel. D., L. & W.R.R.Co.v. Reid, 64 Hun, 553.

‘$6. Property of corporations, where taxed.—
The real estate of all incorporated companies liable to tax-
ation shall be assessed in the town or ward in which the
same shall lie, in the same manner as the real estate of in-
dividuals. All the personal estate of every incorporated
company liable to taxation on its capital, shall be assessed
in the town or ward where the principal office or place for
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 town or ward
where the operations of such company shall be carried on.
In the case of toll-bridges, the company owning such
bridge shall be assessed in the town or ward in which the
tolls are collected; and where the tolls of any bridge, turn-
pike or canal company are collected in several towns or
wards, the company shall be assessed in the town or ward
in which the treasurer or other officer authorized to pay
the last preceding dividend resides.
WueErE TAxXED—VALUATION. 403

Within the provisions of-the laws for the assessment and col-
lection of taxes, companies are residents of the towns through
which the railroad runs. Their lands can not be assessed as
“non-resident lands.” Buffalo and State Line R. R. Co. v. Super-
visors of Erie, 48 N. Y., 93; People ex rel. Buff. & St. L. R. R. Co. v.
Barker, 48 N. Y., 70; The People ex rel. Dunkirk and F. R. R. Co. v.
Assessors, 46 N. Y., 46; Peo. ex rel. DL. & W. R. R. Co. v. Reid
64 Hun, 553.

$17. Rule of valuation.—All real and_ personal
estate liable to taxation, shall be estimated and assessed by
the assessors at its full and true value, as they would ap-
praise the same in payment of a just debt due from a sol-
vent debtor.

(As am’d by Te 1851, ch. 176.)

The assessment should be equal on all real estate, not partial
value on that of private individuals and full value on railroad
property. People ex rel. D.& H. Canal Co. v. Ganley, 8 N. Y. Supp,
563; 29 St. Rep., 130; aff'd 131 N. Y.,566. The land is not to be
assessed as an isolated piece, but in connection with its posi-
tion, its incidents and the business and profits of the road to be
derived therefrom. The road in the town is part of a whole,
and is to be valued as such. Zhe People ex rel. Buffalo and S. L. R.
R. Co. v. Barker, 48 N. Y., 70; People ex rel. W. U. Tel. Co. v. Dolan,
126 N. Y., 166, 178; People ex rel. N.Y, L. E. & WR. R. Co. v.
Zoller, 15 N.Y. Supp., 68g. When the road is leased its value is
properly put atan amount ascertained by capitalizing at 6 per
cent. the rental value of such portion, less proper deductions
for the cost of equipment, the value of wharfage, cattle and
-coal yards and the amount of bonds for terminal improvements.
People ex rel. D., L.& W. R.R. Co.v. Reid, 64 Hun, 553. Ut is proper
to consider the character and productive capacity of the entire
road. People ex rel. R.,W. & O.R. R. Co. vu. Smoyer, 24 W. D., 195;
see People ex rel. West Shore R. R. Co. v. Toohey, 4 St. Rep., 895.
In determining the value of the real estate of a railroad com-

“pany, the estimate is the result of many considerations, its
original cost, and cost of present reproduction, as well as its
earning capacity, not its earning capacity alone. That is
simply an aid. People ex rel. Del. & Hud. C. Co. v. Ganley, 29 St.
Rep, 130; § N.Y. Supp., 563; aff'd 131 N. Y., 566; People ex rel.
Fitchburg R. R. Co. v. Assessors of Hoosick, 19 St. Rep., 818, 3 N. Y.
Supp., 86; 17 St. Rep. 980; 2 N.Y. Supp., 240; People ex rel. B., H.
\

404 TAXATION,

LT. & WR. R. Co. 0. Wilder, 3 St. Rep., 159. The assessors may
take into consideration the verified reports of the company as
to earnings made as required by law. People ex rel. R., W.& O.
R. R. Co. v. Hicks, 105 N. Y., 198 Interest on mortgage or other
liens can not be deducted. People ex rel. Fitchburg R. R. Co. v.
Assessors of Hoostek, 19 St. Rep., 818; 3 N. Y. Supp., 86. The value
may be fixed by legislative enactment for the benefit of the
railroad. People ex rel. Troy Union R. R. Co. v. Carter, 52 Hun, 458;
aff'd 117 N. Y.,625. It can not be assessed at a higher propor-
tionate valuation than that put on other property. People ex
rel NV, L.E.& WR. R. Co. v. Zoller, 15 N.Y. Supp, 684. An
injunction restraining the collection of a tax will not be
granted. Western R. R.Co.v. Nolan, 48 N. VY. 513; R, W.& O.
R. R. Co. v. Smith, 39 Hun, 332.

1 R.S., Cu. 13, Tir. 3.

§ 2. Tax, how collected; receivers.—In case any
person shall refuse or neglect to pay the tax imposed on
him, the collector shall levy the same by distress and sale
of the goods and chattels of the person who ought to pay
the same, or of any goods and chattels in his possession,
wheresoever the same may be found, within the district of
the collector ; and no claim of property to be made thereto
by any other person, shall be available to prevent a sale.
If title or possession of property of a person or corpora-
tion upon which the tax is imposed, shall have passed to a
receiver of such person or corporation appointed by a
court, or if the tax be imposed upon such receiver by
reason of his ownership or possession of property as such
receiver, in either such case property owned by or in the
possession of the receiver as such, shall be liable to levy
and sale by the collector without application to or permis-
sion of such court, in the same manner as property owned
by or in the possession of a private person upon whom a
tax is imposed.

(As am’d by L. 1892, ch. 196.)
See in re Mallory, 18 St. Rep., 499; 2.N. Y. Supp., 437.

1 R.S., Cu. 13, Tir. 4.

Notr.—Applicable to railroads, see L. 1858, ch. 110, repealing
§§ 1 and 6 and part of § 2 of L. of 1857, ch. 536.
, Tax ON CAPITAL. 405

Section 1. Companies liable to taxation.—All
montyed or stock corporations deriving an income or profit
from their capital or otherwise shall be liable to taxation
on their capital, in the manner hereinafter prescribed.

A joint stock association is not taxable on its capital as a cor-
poration. People ex rel. Winchester v. Coleman, 733 NV. Y., 279.

§ 2. Statement to assessors.—The president,
cashier, secretary, treasurer or other proper officer of every
such incorporated company shall, on or before the first day
of July each year, make and deliver to the assessors, or one
.. of them, of the town or ward in which such company is
liable to be taxed, according to the provisions of the sixth
section of the second title of this chapter, a written state-
ment, specifying :

1. The real estate, if any, owned by such company, the
towns or ward in which the same is situated, and 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 estate,
and the amount of such capital stock held by the state,
and by any incorporated literary or charitable institutions ;
and,

3. The town or ward in which the principal office or
place of transacting the financial business of such company
is situated ; or, if there be no such principal office, the
town or ward in which its operations are carried on, or in
which it is liable to be taxed, under the provisions of this
chapter.

The assessors to whom the written statement is to be fur-
nished are those of every ward in which real estate of the com-
pany issituated. People ex rel. Sodus Bay & Corning R. R. Co. v.

Cheetham, 45 Hun, 6. The omission of a corporation to furnish:

such a statement neither prevents assessors from assessing cor-
poration real estate, nor the corporation from appearing before
them and asking that an erroneous assessment be corrected, nor,
if this is refused, from reviewing the proceedings by certiorari.
Id.; People ex rel. WS. R. R. Co. v. Pitman, 9 St. R., 469.

§ 3. Statement to Comptroller.—The president
or other proper officer of every such company, shall also
deliver to the comptroller, on or before the first day of
406 TAXATION,

July in each year, a written statement, containing the same
matters required by the foregoing section, to be specified
in the statement to be delivered to the assessors. The
statements required by this and the preceding section of
this title shall be certified under the oath of the said pres-
ident or other proper officer, to be in all respects just and
true.

A company may be assessed although no such statement has
been made. The People ex rel. Manhattan Fire Ins. Co. v. Commis-
stoners, 76 N. Y., 64.

$4. Penalty.—-If the statements above required, or
either of them, shall not be furnished by any company to
the assessors and to the comptroller within thirty days after
the time above provided, the company neglecting to fur-
nish such statements, or either of them, shall forfeit'to the
people of this state, for each statement omitted to be fur-
nished, the sum of two hundred and fifty dollars; and it
shall be the duty of the comptroller to furnish the attor-
ney-general with an account of all companies that shall
neglect to render such lists, that he may prosecute for the
penalties hereby imposed,

$5. Suit therefor._-If any company, that shall be
prosecuted for any such penalty, shall pay the costs of
prosecution and furnish the statement required, the comp-
troller, if he shall be satisfied that the omission was not
willful, may, in his discretion, discontinue such suit.

6. Companies, how assessed.—-The assessors
shall enter all incorporated companies from which such
statements shall have been received by them, and the prop-
erty of such companies, and the property of all other incor-
porated companies, liable to taxation in their respective
towns, in their assessment rolls, in the following manner:

1. They shall insert in the first column of their assess-
ment rolls, the name of each incorporated company in
their respective towns or wards liable to taxation on its
capital or otherwise; and under its name, they shall specify
the amount of its capital stock paid in, and secured to be
paid in, the amount paid by such company for real estate
then belonging to such company, wherever the same may
‘

Tax on CariraL—How AssEssED AND COLLECTED. 4o7

be situated, the amount of all surplus profits or reserved
funds, exceeding ten per cent. of their capital, after de-
ducting therefrom the said amount of said real estate, and
the amount of its stock, if any, belonging to the state and
to incorporated literary and charitable institutions. /

2. In the second column, they shall enter the quantity
of real estate owned by such company, and situated within
their town or ward; and in the third column, the actual
value thereof, estimated as in other cases.

3. In the fourth column, they shall enter the amount
_ of the capital stock of every incorporated company, paid

in, and secured to be paid in, and of all surplus profits or
reserved funds as aforesaid, after deducting the sums paid
out for all the real estate of such company, wherever the
same may be situated and then belonging to it, and the
amount of stock, if any, belonging to the people of this
state and to incorporate literary and charitable institutions.

This section must be deemed to’ be amended by L. 1857, ch.
456, so far as it is necessary to make it conform to and give
effect to the act of 1857. The assessment roll may be made up
as follows: In the first column insert the name of the corpora-
tion; in the second the quantity of real estate; in the third col-
umn the assessed value of tthe real estate, and in the fourth
column the value of the capital stock after making the exemp-
tions and deductions required by the act of 1857. People ex rel.
Twenty-third St. R.R. Co.v. Commis.,95 N.V., 554. These direc-
tions are appropriate to the assessors of the town or ward where
the principal place of business is located, upon whom the duty
of assessing the capital is devolved. Zhe People ex rel. Buffalo &
St. Line R. R. Co.v. Barker, 48 N. Y., 70. :

$15. Taxes to be stated and collected.—The
amount of taxes assessed on all incorporated companies
liable to taxation, shall be set down by the board of super-
visors, in the fifth column of the corrected assessment roll,
and shall form a part of the moneys to be collected by the
collector.

(As am’d by L. 1857, ch. 456.)

§$ 16. Duty of supervisors.—The board of supervis-
ors having completed the assessment, shall transmit to the.
comptroller, with the aggregate valuations of the real and
408 TAXATION.

personal estate in their county, a statement showing the
names of the several incorporated companies liable to tax-
ation in such county; the amount of the capital stock paid
in, and secured to be paid in, by each; the amount of real
and personal property of each, as put down by the asses-
sors, or by them; and the amount of taxes assessed on
each. In those counties in which there is no such com-
pany, the boards of supervisors shall certify such fact to
the comptroller, with their returns of the aggregate valua-
tions of real and personal estate.

§ 17. Duty of collector.—The collector shall de-
-mand payment of all taxes assessed on incorporated com-
panies, from the president, or other proper officer of such
companies, and if not paid, shall proceed in the collection °
and payment thereof in the same manner as in other cases,
and shall be liable to the same penalties for the non-pay-
ment of moneys collected by him. And the collector's ré-
ceipt shall be evidence of the payment of such tax.

§ 18. Taxes, how paid.—Such taxes shall be paid
out of the funds of the company, and shall be ratably de-
ducted from the dividends of those stockholders whose
stock was taxed, or shall be charged upon such stock, if no
dividends be afterwards declared.

$19. Proceedings to collect tax.—If the collector
shall not be able to collect any tax assessed upon an in-
corporated company, he shall return the same to the county
treasurer, and at the same time. make affidavit before the
county treasurer, or some other officer authorized to ad-
minister oaths, that he had demanded payment thereof
from the president, or other proper officer of the company,
and that such officer had refused to pay the same, or that
he had not been able to make such demand, as the case
may be; and that such company had no personal property,
from which he could levy such tax.

$20. The same.—The county treasurer shall there-
upon certify such facts to the comptroller, who shall pass
to the credit of such county treasurer the amount of all
taxes so returned and certified, as in the cases of taxes on
the lands of non-residents,
,

PRocEEDINGS TO CoLLEct Tax ON CAPITAL. 409

§21. Attorney General to file bill—The comp-
troller shall furnish the attorney general with the names of
all the companies and banks refusing or neglecting to pay
the taxes imposed on them, with the amount due from
them respectively; and the attorney general shall there-
upon file a petition in the supreme court against every
such company or bank, for the discovery and sequestration
of its property.

(As am’d by L. 1857, ch. 456.)

§ 22. Sequestration and injunction.—The chan-
cellor on the filing of such bill, or on the coming in of
the answer thereto, shall order such part of the property
of such company to be sequestered, as he shall deem neces-
sary for the purpose of satisfying the taxes in arrear, with
the costs of prosecution; and may also, at discretion, en-
join such company and the officers thereof, from any
further proceedings under their act of incorporation, and
may order and direct such other proceedings as he shall
deem necessary to compel the payment of such tax and
costs.

$23. Remedy by action.—-The attorney general
may also recover such tax, with costs from such delin-
quent company, by action in any court of record in this
state.
L. 1855, Cu. 427.

AN ACT in relation to the collection of taxes on lands of non-residents, and to
provide for the sale of such lands for unpaid taxes.

$5. Taxes on lands of residents and railroads
returned as unpaid.—If the taxes on any farm or
lot of land assessed to a resident shall be returned as
unpaid, in consequence of such premises becoming va-
cant by the removal of the occupant before the collection
of the tax imposed thereon, or in default of goods and
chattels of the occupant to satisfy such tax, or if the taxes
on any land occupied by or used in connection with any
railroad, which was assessed to any person, company or
corporation, owning, operating or constructing such rail-
road, shall be returned as unpaid, the supervisor of the
_ town or ward in which such land was assessed shall add a
410 TAXATION.

description thereof to the assessment roll of the next year
in the part thereof appropriated to taxes on lands of non-
residents, and shall charge the same with the uncollected
tax of the preceding year; and the same proceedings shall
be had thereon in all respects as if it was the land of a
non-resident, and as if such tax had been laid in the year
in which the description is so added. The land occupied
by or used in connection with any railroad assessed to any
person, company or corporation owning, operating, or con-
structing such railroad, may be described in the following
form: ‘A strip of land owned and occupied by the
railroad company, in the year , extending about
feet on each side of the railroad track, and embracing the
same, together with all the depots, stations, turnouts,
switches and other improvements thereon and connected
therewith, commencing at a point where such railroad
track crosses the boundary line in entering the ward
of the city of , or the town of , and extending to
the point where such track crosses the boundary line leav-
ing such ward of the city of , or the town of
or to the point of termination in the same, containing
acres more or less;” and when thus described, with the
blanks in such form properly filled, on the comptroller’s
book of taxes, or advertised or sold for taxes, no other de-
scription thereof shall be deemed necessary; provided, that
if the comptroller shall believe that the interests of the
state should be best subserved by selling the lands in lots
or divisions, he shall be empowered to direct such surveys
or to create such maps as may be made from fitles to the
same, so as to enable him to sell such lots by description
sufficient to convey title thereto.

(As am’d by L. 1876, ch. 101.)

L. 1857, Cu. 456.

AN ACT in relation to the assessment of taxes on incorporated companies.

§3. Taxation of capital 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 as
shall have been exempted by law, together with its surplus
profits or reserved funds, exceeding ten per cent. of its
capital after deducting the assessed value of its real estate,
and all shares of stock in other corporations actually owned

r
Tax on CAPITAL, 4ir

by such company, which are taxable upon their capital
stock under the laws of this state, shall be assessed at its.
actual value, and taxed in the same manner as the other
personal and real estate of the county.

The subject of valuation and assessment is never the share
stock, but always the company’s capital and surplus. The
capital is the fund required to be paid in and kept intact as the
basis of the business enterprise. Such capital and surplus
must be assessed at its own value, and when that is correctly
known and ascertained, no other value can be substituted
for it. Where its amount and value are undisclosed and
unknown, the assessors may consider the market value of
the share stock and the general condition of the company as in-
dicative of surplus or deficiency and of the probable amount of
either. They may further resort to such means of information
when the amount of capital and surplus is disclosed, but the
assessors may have sufficient reason to disbelieve the statement,
and such reason is founded upon facts established by competent
proof. People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433.
Capital invested in government bonds must be deducted. See
People ex rel. Commonwealth Ins. Co.v. Coleman, 112 N. Y., 565, for
an example of an erroneous computation in including the sur-
plus when it did not exceed ten per cent. of the company’s cap-
ital. The deduction for real estate when it is situated in this
state must be at its assessed value. People ex rel. Twenty-third St.
R. R. Co. v. Commissioners, 95 N.Y., 554; People ex rel. The Butchers”
H. & M. Co. 7. Asten, 100 N. Y.,597; see People ex rel, Central Park, ’
&c., R. R. Cov. Commissioners, 21 St. Rep., 350; 4 N.Y. Supp., 43-
The deduction for real estate where it is situated in another
state or country is measured by its actual value, and in the ab-
sence of other and better evidence the price paid may be taken
as. representing that value. People ex rel. Panama R. KR. Co. v.
Commissioners, 104 N. Y., 240, or the assessed value, if no other
evidence is given. People ex rel. Fairfield Chemical Co. v. Coleman,
115 N. Y.,7179. The assessors may resort to all the tests and
measures of value which men ordinarily adopt for business pur-
poses in estimating the value of property. People ex. rel. Knick-
erbocker Fire Ins. Co. v. Coleman, 107 N. Y., 542..
Al2 TAXATION.

L. 1867, CH. 694.

_AN ACT in relation to the-valuation of the property of railroad companies in
school districts, for the purpose of taxation. t

Section 1. Duty of town assessors.—It shall be
the duty of the town assessors, within fifteen days after the
completion of their annual assessment-list, to apportion the
valuation of the property of each and every railroad, tele-
graph, telephone and pipe-line company as appears on such
assessment-list, among the several school districts in their
town, in which any portion of said property is situated,
giving to each of said districts their proper portion, accord-
ing to the proportion that the value of said property in
each of such districts bears to the value of the whole
thereof in said town.

(As am’d by L. 1884, ch. 414.)

The sole object of this act was to prescribe the basis for tax-
ing the property of railroad companies for school district pur-
poses, and how the valuation should be ascertained as between
‘school districts, where the company has property in several
school districts within the town. It has no relation to general
taxation for town purposes. But it made the valuation of the
last town assessment-roll the valuation for school district taxa-
tion, and where the property was situated in several school dis- .
tricts each was to be apportioned by the assessors out of the
aggregate valuation, its proper share to be specified in the cer-
tificate of apportionment. eople ex rel. West Shore R. R. Co. 7.
Adams, 125 N. Y., 47I.

§ 2. Apportionment.—Such apportionment shall be
in writing, and shall be signed, by said assessors, or a ma-
jority of them, and shall set forth the number of each dis-
trict and the amount of the valuation of the property of
-each railroad, telegraph, telephone and pipe-line companies
apportioned to each of said districts; and such apportion-
ment shall be filed with the town clerk, by said assessors,
or one of them, within five days after being made ; and the
amount so apportioned to each district shall be the valua-
tion of the property of each of said companies, on which
all taxes against said companies in and for said districts
‘shall be levied and assessed, until the next annual assess-
ment and apportionment.

(As am’d by L. 1884, ch. 414:)
TAXATION FOR ScHoot District PuRPOSES. 413,

The statute does not make the certificate a part of the town.
roll. It contemplates a’separate and distinct paper to be made
and filed after the roll is completed. People ex rel. West Shore R..
R. Co. vu. Adams, 125 N. Y., 471.

§3. When assessors neglect to make apportion-
ment.—In case the assessors shall neglect to make such
apportionment, it shall be the duty of the supervisor of the
town, on the application of the trustees or board of educa-
tion of any district, or of any railroad, telegraph, telephone
and pipe-line company, to make such apportionment, in
the same manner and with the like effect as if made by |
said assessors.

(As am’d by L. 1885, ch. 340.)

§ 4. Town clerk to furnish} certified statement
when requested.—The town clerk shall, whenever re-
quested, furnish to the trustees or board of education of
each district. a certified statement of the amounts appor-
tioned to such district, and the name of the company to
which the same relates.

$5. When alteration is} made in‘school dis-
trict.—In case any alteration shall be made in any school
district, affecting the property of any railroad, telegraph,
telephone or pipe-line company, the officer making such
alteration shall, at the same time, determine what change
in the valuation of the said property in such district would
be just, on’ account of the alteration of district, and the
valuation shall be accordingly changed. ,

(As am’d by L. 1885, ch. 340.)

L. 1870, CH. 506.
AN ACT to facilitate the payment of taxes by railroad companies.

Norr.—Section 1 was repealed by Laws 1892, ch. 686, (county
law) and is superseded by the following section of that act:

§ 53. Statement of railroad, telegraph, tele-
phone and electric light taxes.—The clerk shall,
within five days after the making out, or issuing of
the annual tax warrant by the board of supervisors,
prepare and deliver to the county treasurer of his county,
44 LAXATLION,

a statement, showing the title of all railroad corpora-
tions and telegraph, telephone and electric light lines
in such county, as appear on the last assessment-roll of the
towns or cities therein, the valuation of the property, real
and personal, of such corporation and line in each town or
city, and the amount of tax assessed or levied on such
‘valuation in each town or city in his county.

§ 2. Railroad companies may pay tax to county
‘treasurer; fees of treasurer.—Any railroad company
heretofore organized under the laws of this State, or that
may be hereafter organized, may, within thirty days after
the receipt of such statement by the county treasurer, pay
the amount of tax so assessed or levied on their property,
with one per cent. fees on said tax, to the county treasurer,
who is hereby authorized and directed to receive such
‘amounts and to give proper receipt therefor.

§$ 3. County treasurer to notify collector of non-
‘payment of tax; duty of collector.—In case any
railroad company shall fail to pay such tax within said
thirty days, it shall be the duty of the county treasurer to
notify the collector of all towns or cities in their county in
which said company is assessed, of such failure to pay said
tax, and upon receipt of such notice it shall be the duty of
such collector to collect said tax in the manner now pro-
vided by law, together with five per cent. fees; but no
town or city collector shall collect any tax levied or assess-
ed upon the property of any railroad company in said
county, by the supervisors of the county, until the receipt
of such notice from the county treasurer.

$4. County treasurer tocredit taxes; collector
to be credited with fees; surplus to be paid to
supervisor.—The several amounts of tax so received by
the county treasurer, of and from railroad companies, shall
be placed to the credit of the town or city for or on
account of which the same was levied or assessed, and to
the credit of the fund or funds to which the same is now
or shall be hereafter pledged or appropriated by law, and
the one per cent. fees also paid shall be placed to the credit
of the collector of said city or town; and in case such
PAYMENT OF TaxEs—Tax ON FRANCHISE, ETc. 415
amounts shall exceed the sum due from said town or city,
the surplus shail, on demand, be paid to the supervisor of
said town or city. who shall receive, hold and disburse the
same as if received’from the collector of said town or city.

§ 5. Railroad company may pay tax to col-
lector ; proviso.—Nothing in this act shall be construed
to prevent any railroad company from paying their tax to
the collector of towns or cities as now provided by law;
nor shall the provisions of this act be construed to repeal
or in any manner interfere with the provisions of chapter
907 of the Session Laws of 1869..

L. 1881, Cu. 361.

AN ACT to amend chapter 542 of the Laws of 1880, entitled ‘‘ An act to provide
for raising taxes for the use of the state upon certain corporations, joint-stock
companies and associations.”

Section 1. Certain officers of company to make
annual report to Comptroller on or before fif-
teenth of November ; where dividend not declared,
stock to be estimated and declared ; certificate
to be sent Comptroller ; appeals. —Hereafter it shall
be the the duty of the president or treasurer of every asso-
‘ciation, corporation or joint-stock company liable to be
taxed on its corporate ‘franchise or business, as provided in
section 3 of this act, to make report, in writing, to the
comptroller annually, on or before the fifteenth day of No-
vember, stating specifically the amount of capital paid in,
the date, amount and rate per centum of each and every
‘dividend declared by their respective corporations, joint-
stock companies or associations during the year ending
with the first day of said month. In all cases where any
‘such corporation, joint-stock company or association shall
fail to make or declare any dividend upon either its com-
mon or preferred stock during the year ending as afore-
‘said, or in case the dividend or dividends made or declared
upon either its common or preferred stock during the year
ending as aforesaid shall amount to less than six per cen-
tum upon the par value of the said common or preferred
‘stock, the treasurer and secretary thereof, after being duly
sworn or affirmed to do and perform the same with fidelity,

_ according to the best of their knowledge and belief, shall, be-
tween the first and fifteenth daysof November in each year,
in which no dividend has been made or declared, as aforesaid,
or in which the dividend or dividends made or declared upon
either its common or preferred stock amounted to less
than six per centum, upon the par value of said common
or preferred stock, estimate and appraise the capital stock
of such company upon which no dividend has been made
or declared, or upon the par value of which the dividend

or dividends made or déclared amounted to less than six

per centum, at its actual value in cash—not less, however!

than the average price which said stock sold for during
said year, and when the same shall have been so truly esti-

mated and appraised, they shall forthwith forward to the

comptroller a certificate thereof, accompanied by a copy of
their said oath or affirmation, by them signed, and attested

by the magistrate or other person qualified to administer
the same, provided, that if the comptroller is not satisfied

with the valuation so made and returned, he is hereby

authorized and empowered to make a valuation thereof,
and to settle an account upon the valuation so made by

him for the taxes, penalties and interest due the state
thereon ; and any association, corporation or joint-stock

company dissatisfied with the account so settled may within

ten:days appeal therefrom to a board consisting of the sec-

retary of state, attorney general and state treasurer,

which board, on such appeal, shall affirm or correct the ac-

count so settled by the comptroller, and the decision of:
said board shall be final; but such appeal shall not stay pro-

ceedings unless the full amount of the taxes, penalties and

interest as due on said account, as settled by the comp-

troller, be deposited with the state treasurer.

The transportation of goods and passengers by continous car-
riage from one point in a state to another point in the same
state, although for a part of the route it is over the soil of an-
other state, is not interstate commerce, and therefore it is
within the power of the state to impose a tax on its gross re-
ceipts. Lehigh Valley R. R. Co. v. Commonwealth, 145 U.S. 175. In
assessing a tax under this provision, the state authorities are
not obliged to deduct the amount of stock which corporations
hold in bonds of the United States, and compute the tax only
upon the dividends derived from the remainder of such capital.
People v. Home Ins. Co., 92 N. ¥., 328; Home Ins. Co. v. People, 134 U.
Tax on Francuise, Etc.—Faiture to Report 4't7

S., 594; or the capital invested in patent rights, People ex rel, Edi-
son El. I. Co. v. Wemple, 61 Hun, 53; See 129 N. Y., 664, reversal on
other points ; Same v. Same, 63 Hun, 506. A sum divided among
stockholders in contemplation of the expiration of its charter,
from the accumulated profits of several years, and in addition
to the regular dividend from earnings, is not a dividend for the
purpose of taxation under this section. tople v. Albany Ins. Co.,
g2 N. Y., 458 Asto the cases in which an appeal under this
section is proper, see People ex rel. Brush El. M. Co. v. Wemple, 129
N. Y., 549.

§ 2. Comptroller to add ten per cent. in case
of failure to make report; proviso.—If the said
officers of any such corporation, joint-stock company or
association shall neglect or refuse to furnish the comptrol-
ler, on.or before the fifteenth day of November of each
and every year, with the report aforesaid, or the certificate
of appraisement and oath or affirmation, as the case may
be, as required by the first section of this act, or to pay the
tax imposed on‘such corporation, company or association
within fifteen days after the first of January, as provided in
the fourth section of this act, it shall be the duty of the
comptroller of the state to add ten per centum to the tax
of said corporation, company or association for each and
every year for which such report or certificate of appraise-
ment and oath or affirmation were not so furnished, or for
which such tax shall not have been paid, which percentage
shall be assessed and collected with the said tax in the
usual ‘manner of assessing and collecting such taxes; pro-
vided, that if said officers of any such corporation, joint-
stock company or association shall intentionally fail to
comply with the provisions of the first or fourth section
of this act for one year, the comptroller shall report the
fact to the governor, who, if he shall be made satisfied that
such failure was intentional, shall thereupon direct the
attorney-general to take proceedings in the name of the
people of this state, to declare the charter or privileges of
said corporation, joint-stock company or association for-
feited and at an end; and for such intentional failure duly
found, the charter and privileges of every such corporation,
company.or association shall cease, end and be determined.

1A
418 TAXATION.

.

This should be construed so as to authorize only the addition
of ten per cent. toevery year’s tax that is in default, not ten -per
cent. foreach year the default continued. People ex rel. Edison
£1. I. Co.v. Wemple, 61 Hun, 53; People ex rel. Brush M. Co.v. Wem-
ple, 15 N.Y. Supp., 718; 39 St. Rep., 614; 129 N. Y., 664 and 543,

cases reversed on other points.

§ 3. Annual tax; how computed.—Every corpo-
ration, joint-stock company, or association whatever, now
or hereafter incorporated, organized, or formed under, by,
or pursuant to law in this state or in any other state or
country, and doing business in this state, except only sav-
ings banks and institutions for savings, life insurance com-
panies, banks, foreign insurance companies, manufacturing
or mining corporations, or companies wholly engaged in
carrying on manufacture, or mining ores within this state,
and agricultural and horticultural societies, associations or
corporations, which exceptions, however, shall not include
gas companies, trust companies, electric or steam heating,
lighting and power companies, shall be liable to and shall
pay a tax, as a tax upon its franchise or business, into the
state treasury annually, to be computed as follows: If the
dividend or dividends made or declared by such corpora-
tion, joint-stock company or association, during any year
ending with the first day of November, amount to six or
more than six per centum upon the par value of its capital
stock, then the tax to be at the rate of one-quarter mill
upon the capital stock for each one per centum of divi-
dends so made or declared; or if no dividend be made or
declared, or if the dividend or dividends made or declared
do not amount to six per centum upon the par value of
said capital stock, then the tax to be at the rate of one and
one-half mills upon each dollar of the valuation of the said
capital stock, made in accordance with the provisions of
the first section of this act; and in case any such corpora-
tion, joint-stock company or association shall have more
than one kind of capital stock, as, for instance, common
and preferred stock, and upon one of said stocks a divi-
dend or dividends, amounting to six or more than six per
-centum upon the par value thereof, has been made or de-
clared, and upon the other no dividend has been made or
declared, or the dividend or dividends made or declared
LiaBILiTy, TO Tax FRANCHISE, Etc.—ComPurTATION. 419

thereon amount to less than six. per centum upon the par
value thereof, then the tax shall be at the rate of one-quar-
ter mill for each one per centum of dividends made or de-
clared 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 tax
shall be charged at the rate of one and one-half mills upon
each dollar of a valuation, made also in accordance with
the provisions of this act, of the capital stock upon which
no dividend was made or declared, or upon the par value
of which the dividend or dividends made or declared did
not amount to six per centum.

(As am’d by L. 1885, ch. 359, L. 1889, chs. 193 and 353, and
L. 1890, ch. 522.)

The United States Express Company, an unincorporated
joint stock company or association transacting business in this
' $tate, is subject to taxation under this act. People ex rel, Platt v,
Wemple, 117 N. Y.,736. Acorporation which has declared a divi-
dend of five and three-fourths per cent. is subject to a tax at the
rate of one and one-half mills on each dollar of the value of the
stock, although the stock is valued above par, and the result is
the imposition of a larger tax than if the corporation had paid
six per cent. dividends. eofle v. Del. & Hudson Canal Co., 54
Hun, 598; afd12r1 N. Y., 666. The question whether a foreign
corporation does business in this state must be determined from
the actual character of the business carried on, and not from
the existence of any unexercised powers reserved to it by its
contracts. Leople v. American Beli Telephone Co., 117 N. Y., 241;
People v. Horn Silver Mining Co, 105 N. Y., 76; 143 U. S, 305.
The tax is not an interference with interstate commerce, and is
not violative of 2 R.S., (8th Ed.,) p. ro94, or L. 1855, ch. 37,§ 1. >
People ex rel. South, C. Oil Co. v. Wemple, 131 N. V., 64. A railroad
company whose only business within the state is discharging .
freight and passengers brought over its line from without the
state, and receiving freight and passengers to besent out of the
state over its line, and incidentally maintaining terminal facili-
ties, employing clerks and keeping a bank account, can not be
taxed on its business, this being interstate commerce. Po, ex
vel, Penn. R. R. Co. v, Wemple, 47 St. Rep., 695; 20 N. Y., Supp., 287.
In relation to foreign corporations the tax is only upon the
business done in this state. So far as corporate franchises are
420 TAXATION.
concerned, the operation is confined to domestic corporations.
People v. Equitable Trust Co.,96 N. Y., 387. Asto foreign corpora-
tions doing business in this state, see Feople ex rel. Seth Thomas Clock
Co. v. Wemple, 133 N. Y., 323. Aforeign corporation claiming ex-
emption as a manufacturing corporation must show that some
substantial portion of its manufacturing is done in this state.
People ex ret. Roebling’s Sons Co. v. Wemple, 63 Hun, 452. A domes-
tic corporation not doing business in this state is taxable. People
ex rel. Am. Contracting & Dredging Co. v. Wemple, 129 N. Y., 558.
An electric light and power company is a manufactiriug com-
pany and therefore exempt. tople ex rel. Edison El. I. Co. v.
Wemple, 129 N. Y., 664; Peo. ex rel. Brush El, Man, Co.v. Wemple, 129 N.
Y., 543. (See am’d L. of 1889.) The tax is alien upon the property
when in the hands of an insolvent corporation, and the state
has a paramount right to collect it out of moneys in the receiv-
er’s hands. Where a receiver has been appointed in foreclosure
proceedings, the court, on application of the attorney-general,
made in the foreclosure action,may make an order directing
the receiver to pay it out of the funds in his hands. The state
is not confined to the proceedings prescribed in the act. Central
Trust Co. v. N.Y, City & Northern R. R. Co., 110 N. Y., 250. Where
payment of a tax has been made without protest, the company
can not recover back any part of the tax on the ground that by
a pure mistake of law the valuation of the stock was made too
high. Cerbat Mining Co. v. State of New York, 29 Hun, 81.

§ 4. When payable.—It shall be the duty of the
treasurer or other officer having charge of any corporation,
joint-stock company or association, upon which a tax is
imposed by either of the preceding sections of this act, to
transmit the amount of said tax to the treasury of the
state within fifteen days after the first day of January in
each and every year.

Section five relates only to insurance companies.

§6. Tax on railroad, steamboat and other
companies; rate of tax.—In addition to the taxes
above provided for, every corporation formed for rail-
road, canal, steamboat, ferry, express, navigation or trans-
portation purposes, and every elevated railway company,
and every other corporation, joint-stock company or
association now or hereafter incorporated or organized by
WHEN PayaBLE—TaAx ON RAILROADS. 421

or under any law of this state, or now or hereafter i incorpo-
tated or organized by or under the laws of any other state
or country and doing business in this state, and owning,
operating or leasing to or from another corporation, joint-
stock company or association, any railroad, canal, steam-
boat, ferry, express, navigation, pipe line or transportation
route or line or elevated railway, or other device for the
transportation of freight or passengers, or in any way en-
_ gaged in the business of transporting freights or passen-
gers, and every telegraph company or telephone company
incorporated under the laws of this or any other state, and
doing business in this state, and every express company or
association, palace car or sleeping car company or associa-
tion incorporated or unincorporated, doing business in this
state, shall pay to the state treasurer for the use of the
state, aS a tax upon its corporate franchise or business in
this state, a tax at the rate of five-tenths of one per centum
upon the gross earnings in this state of said corporation
or company or association, for tolls, transportation, tele-
graph, telephone, or express business transacted in this
state. a

See Peo. ex rel, Fenn, R. R. Co.v. Wemple, cited under § 3 of this act.

$7. When payable; report of gross earnings;
report for six months ending June 30, 1881; ten per
cent. to be added in case of neglect. —The tax im-
posed under section 6 of this act, shall, after the 1st day of
August, 1881, be paid annually on the first day of August
of each year. It shall be the duty of the president, secre-'
tary or other proper officer of the corporations, joint-stock
companies or associations referred to in section 6 of this
act to transmit to the Comptroller, on the first day of
August in each year, a Statement under oath or affirmation —
of the amount of the gross earnings of said associations, '
corporations er joint-stock companies derived from all:
sources during the year ending with the preceding thirtieth:
day of June, together with the amount of tax imposed’
thereon, by section 6. And it shall also be the duty of the
president, secretary or other proper officer of the corpora-
tions, joint-stock companies or associations referred to'in’
section 6 of this act to transmit to the Comptroller on the
422 TAXATION.

1st day of August, 1881, a statement, under oath or affirm-
ation, of the amount of the gross earnings of the said asso-
ciations, corporations or joint-stock companies derived
from all sources during the six months ending with. the
30th day of June, 1881, together with the tax imposed
thereon by section 6 of thisact. Andif any such corpora-
tion, joint-stock company or association shall neglect or
refuse for a period of thirty days after any tax imposed by
section 6 or 7 of this act becomes due, to make returns or
to pay the same, the amount thereof, with the addition of
ten per centum thereto, shall be collected for the use of
the state as other taxes are recoverable by law from such
corporation, joint-stock company or association.

§ 8. Exempt from taxation for state purposes;
proviso.—The corporations, joint-stock companies and
associations mentioned in this act as taxable shall hereafter
be exempt from assessment and taxation for State pur-
poses, except upon their real estate and as herein provided;
but they shall in all other respects be liable to assessment
and taxation as heretofore.

This act does not interfere with the power of local authorities
to impose taxation for municipal and county purposes. eagle
ex rel. Eastern Transp. Line v. Commissioners of Taxes, 26 Hun, 446;
People v. Fire Association, 92 N. Y., g1z. The “tunnels, tracks,
substructures, superstructures, stations, viaducts and masonry”
of the N. Y. and Harlem R. R. Co. situate on and under Fourth
Avenue in the City of New York, are “land.” People ex rel. N.
Y. & Harlem R. R. Co. v. Commissioners of Taxes, ror N. Y., 322.

$9. Tax, application of.—The taxes imposed by
this act, and the revenue derived therefrom, shall be appli-
cable to the payment of the ordinary and current expenses
of the State, and if any corporation, joint-stock company,
person, partnership or association shall neglect or refuse to
‘pay any tax by this act required to be paid, the same may
be sued for in the name of the people of the State, and re-
covered in any court of competent juristiction, inan action

to be brought by the Attorney General at the instance of
of the Comptroller.
/
Basis oF Tax ON FRANCHISE, ETc. Az

§ 10. Saving section.—All obligations, liabilities
and taxes heretofore incurred or imposed under said act,
chapter 542 of Laws of 1880, are saved and shall be en-
forced as if the said act had not been hereby amended.

$11 Amount of capital stock employed in
this State to be basis of tax; if dissatisfied,
comptroller may ascertain same.—The amount of
capital stock which shall be the -basis for tax under the
provisions of section three of this act, in the case of every
corporation, joint-stock company and association liable to
taxation thereunder, shall be the amount of capital stock
employed within this state. In making to the comptroller
the report in writing or certificate of estimate and appraisal
of the capital stock of such corporation, joint-stock com-
pany or association provided for by the first section of this
act, it shall be the duty of the president or treasurer there-
of, as the case may be, to state specifically the amount of
capital stock employed within this state, of such corpora-
tion. joint-stock company or association. Whenever the
comptroller is dissatisfied with such report or certificate of
estimate and appraisal, as the case may be, of any corpo-
ration, joint-stock company or association whose capital
is only partially employed within this state, he is author-
ized and empowered. to ascertain, fix and determine the
amount of capital employed within this state, and to settle
an account for the taxes and penalties due the state there-
on.

(Added by L. 1882, ch. 151, and am’d by L. 1885, ch. 501.)

An electric light company, conveying to various companies
outside the state the right to use its patents and receiving pay- ~
ment therefor in stock of such companies, is a mere investor in
such stock, and the capital thus invested is not exempt. In or-
der to be exempt the capital must be employed outside. the
state. Capital invested in patents is to be deemed employed in
the state where the company is located. People ex rel. Edison El.
Co. v. -Wemple, 63 Hun, 444.

' $12. Incase of failure to make report, comp-
- troller may examine books and records, and make
report.— Whenever any corporation, joint-stock company
or association liable to make reports or certificates of esti-
424. TAXATION.

mate and appraisal to the comptroller, under any of the
provisions of this act, shall neglect or refuse to make such
report or reports within the time prescribed in this act, or
shall make such report or certificate as shall be unsatisfac-
tory to the comptroller, the comptroller is authorized to
examine, or cause to be: examined, the books and records
of any such corporation, joint-stock company or associa-
tion, and to fix and determine the amount of tax and pen.
alty due in pursuance of the provisions of this act, either
from the said books and records, or from any other data in
his possession which shall be satisfactory to him, and to
settle an account for said tax and penalty, together with
the expenses of such examination, against said corpora;
tion, joint-stock company or association.

(Added by L. 1882, ch. 151, and am’d by L. 1885, ch. sor.)
See Peo, ex rel. Brush El. M. Co. v. Wemple, 129 N. Y., 543.

§ 13. Comptroller may issue subpcenas and ex-
amine witnesses ; penalty for failure to obey sub-
poena.—Whenever the comptroller shall deem it neces-
Sary Or important to examine any person as a witness upon
any subject or matter relating to the amount of capital
stock of such corporation, or to use, examine or inspect
any book, account, voucher or document in possession of
any officer of such corporation, or other person, or under
his control, relating to such capital stock and tax,
he shall have the power to issue a subpoena in
proper form, commanding such person or officer
to appear before him or some person designated as com-
missioner by him by an appointment in writing, filed in
the office of such comptroller, at a time and at the place
where the principal office of such corporation is situated
within this state in such subpoena specified, to be exam-
ined as a witness, and such subpoena may contain a clause
requiring such person or officer to produce on such exam-
ination all books, papers and documents in his possession
or under his control, relating to the capital stock of such
corporation and the amount thereof employed within this
state. Such subpoena shall be served upon the person
named by showing him the original subpoena and deliver-
ing to and leaving with him at the same time a copy:
Powers oF COMPTROLLER. 425

thereof. The comptroller or the commissioner so desig-
nated by him as aforesaid may administer oaths to such
persons as he may desire to examine, so brought before
him by subpoena or otherwise, and examine them on oath
in relation to any matter which may in any wise be mate-
rial in determining the amount of the tax to be paid by
any such corporation, joint-stock company or association
as aforesaid. Whenever any person duly subpcened to
appear and give evidence as aforesaid, or to produce any
books and papers as hereinbefore provided, shall neglect
or refuse to appear or to produce such books and papers
according to the exigency of such subpoena, or shall refuse
to testify before said comptroller or the commissioner so
designated by him, or to answer any proper and pertinent
question, he shall be deemed in contempt, and thereupon
any justice of the supreme court of the judicial district
within which the principal office of such corporation within
this state is situated shall, upon the motion of the comp-
troller, based upon affidavit showing the commission of the
offence, either, first, make an order requiring the accused
to show cause before him, at a time and piace specified
therein, why the accused should not be punished for the
alleged offence ; or, second, issue a warrant of attachment
directed to the sheriff of a particular county, or generally
directed to the sheriff of any county where the man may
be found, commanding him to bring him before said jus-
tice either forthwith or at a time and place therein speci-
fied to answer for the alleged offence. On the return of
said attachment and the production of the body of the
defendant therein the said justice shall have jurisdiction in
the matter, and the person charged may purge himself of
the contempt in the same way, and the same proceedings
shall be had, and the same penalties may be imposed and
the same punishments inflicted as in the case of a witness
subpoenaed to appear and give evidence as is prescribed in
title 3, chapter 17 of the Code of Civil Procedure, in pro-
ceedings to punish a contempt of court other than a crim-
inal contempt.

(Added by L. 1882, ch. 151, andam’d,by L. 1885, ch. ser.)
426 . TAxXaTION.

§ 14. Comptroller to settle and adjust all ac-
counts against corporations, for taxes and penal-
ties since May 12, 1882; proviso as to payments
made before August 1, 1885.—The comptroller is
hereby authorized and directed, upon application to him
made by any corporation, joint-stock company or associa-
tion, to make, settle and adjust all accounts against such
corporation, joint-stock company or association, for all
taxes and penalties arising under the third section of this
act since the 12th day of May, A. D. 1882, by taking asa
basis for taxation the capital employed within the state by
such corporation, joint-stock company or association.
Provided, however, that such corporation, joint-stock
company or association shall not be entitled to the benefits.
of a settlement upon such basis unless it shall have
secured such adjustment and paid into the treas-
ury the full amount of the taxes so settled, be-
fore the first day of August, 1885, nor shall this
section apply to the case of any tax for which suit shall
have been heretofore brought by the attorney-general, in
which suit the trial has been commenced, or in which
judgment shall have been entered heretofore for the people
for the amount of said tax. Any corporation, joint-stock
company or association whose capital has heretofore been
only partially employed within this State, and which is
now liable for taxes arising under the third section of this
act since the 12th day of May, A. D. 1882, and which are
still due and unpaid, may, at any time prior to the 1st day
of August, 1885, pay to the state treasurer, for the use
of the State, in full discharge of the same, such sum of
money as shall be fixed by the Comptroller as the tax due
for the said period by the said corporation, joint-stock
company or association, upon the basis of the capital em-
ployed within the state. Provided, that this section shall
not apply to the case of any tax for which suit may have
heretofore been brought by the attorney-general, and for
which judgment shall have been entered therein, or if in
such suit trial has been commenced. i

(Added by L. 1885, ch. sor.)
SETTLEMENT oF AcCOUNTS—CERTIORARI. 427

$15. Interest.—All accounts hereafter settled by the
comptroller agreeably to the provisions of this act shall
bear interest from a date thirty days after the sending of
notice of settlement hereinafter provided for until full pay-
ment thereof shall be made.

(Added by L. 1885, ch. sor.)

§ 16. Comptroller to give notice before making
settlement of taxes.—It shall be the duty of the comp-
troller after making with any partnership, corporation,
joint-stock company or association liable to taxation under
any of the provisions of this act, the settlement of such
taxes, to forthwith send notice hereof, in writing, to such
person, partnership, corporation, joint-stock company or
association, which notice may be sent by mail to the post-
office address of such corporation, joint-stock company or
association, .

(Added by 1.1885, ch. 501.)

§ 17. Provisions in relation to review of comp-
troller’s determination by writ of certiorari.—No
writ of certiorari to review the determination and settle-
ment of the comptroller as to the amount of capital used
within the,state by any corporation, joint-stock company
or association, and as to the tax and penalty to. be paid
thereon, shall be granted, except application therefor be
made. within thirty days after service upon such corpora-
tion, joint-stock company or association by the comptroller
of notice of such settlement. Nor shall any such writ be
granted except the papers upon which motion therefor is
to be made, including notice of motion, shall have been
served upon the comptroller at least eight days before such
motion, nor unless the corporation, joint-stock company or
association applying for such writ shall, before making such
motion, have deposited with the state treasurer the full
amount of taxes, penalties and charges so settled and ad-
justed by the comptroller, and file with him an undertak-
ing in such amount and with such sufficient sureties as shall
be approved by one of the justices of the supreme court
of this state, to the effect that if said writ be vacated and
the determination of the comptroller sustained, the appli-
, 428 TAXATION.

cant for the writ will make payment of all costs and charges
which may accrue against such applicant in the prosecutiow
of such writ, including costs on all appeals.

(Added by L. 1885, ch. 5o01.)’
See People ex. rel. Am. Surety Co. v. Campbell, 64 Hun, 417.

$18. Comptroller may issue warrant for collec-
tion after thirty days.—After the expiration of thirty
days from the service by the comptroller of notice of the —
settlement aforesaid, if no proceedings shall have beer
taken to review the same. as provided by this act, or if the
deposit with the state treasurer of the amount of the said
settlement, together with the underfaking, as provided for
by this act, shall not then have been made, it shall be law-
ful for the comptroller to issue his warrant or warrants
under his hand and seal of office directed to the sheriff of
any county in this state, commanding him to levy upon
and sell the goods and chattels, lands and tenements of the
said corporation, joint-stock company or association found
within the said county, for the payment of the amount of
said settlement, together with interest thereon and costs
of executing such warrant, and to return the said warrant
to the comptroller, and pay to the state treasurer the
money which shall be collected by virtue thereof, by a cer-
tain time therein to be specified, not less than sixty days
from the date of such warrant. Such warrant shall be a
lien upon and shal] bind the personal estate of the person,
partnership, corporation, joint-stock company or associa-
tion against whom it shall be issued, from the time an
actual levy shall be made by virtue thereof, and the sheriff
to whom such warrant shall be directed shall proceed upon
the same in all respects with the like effect and in the same
manner as prescribed by law in respect to executions issued
against property ypon judgments rendered by a court of
record, and shall be entitled to the same fees and costs for
his services in executing the same, to be collected in the
same manner.

(Added. by L. 1885, ch; sar.)
t

,

» CoLLECTION—-READJUSTMENT—CERTIORARI. 429

§ 19. Revision and readjustment.—The comp-
troller may at any time revise and readjust any account
theretofore settled against any person, association, corpo-
ration or joint-stock company by himself or any preceding
comptroller for taxes arising under this act or the act to
which it is an amendment, whenever it shall be made to
appear by evidence submitted to him that the same has
been illegally paid or so made as to include taxes which
conld not have been lawfully demanded and shall resettle
the same according to law and the facts and charge or
credit, as the case may require, the difference, if any, re-
sulting from such revision and resettlement upon the
current accounts of such person, association, corporation,
or joint-stock company.

(Added by L. 1889, ch. 463.)

The comptroller is not authorized to refund any sum paid in
excess of what was lawfully due. Such sum must remain in
' the treasury, but but may be applied on future taxes. People ex
rel, edison El. Co. v. Wemple, 133 'N. Y., 617. This section contem-
plates but one revision by the comptroller, and does not author-
ize him to revise his decision refusing to resettle an account
.theretofore settled by him, and acorporation having failed to
obtain a writ of certiorari within thirty days after notice thereof
as provided by.§ 17, cannot entitle itself to such writ by apply-
ing to the comptroller to review his decision. eople ex. rel. Am.
Surety Co. v. Campbell, 64 Hun, 417.

§ 20. Thecomptroller’s action may be reviewed
by certiorari; appeals from determination, —The
action of the comptroller, upon any application made to
him by any person or corporation for a revision and reset-
tlement of accounts as provided.in this act, may be re-
viewed, both upon the law and the facts upon certiorari by
the supreme court at the instance either of the party mak-
ing such application or of the attorney-general in the name
and in behalf of the people of this state, and for that pur-
pose the comptroller shall return to such certiorari the
accounts and all the evidence submitted to him on such
application, and, if the original or resettled accounts shall
be found erroneous or illégal by this court, either in point
430 ‘  TaxaTION.

of law or of fact, the said accounts shall be there corrected
and restated by the said supreme court, and from any such
determination of the supreme court an appeal may be
taken by either party to the court of appeals as in other
cases.

(Added by L. 1889, ch. 463.)

(The provisions of §§ 19 and 20 do not apply to any taxes here-
tofore paid by any person or corporation in pursuance of a judg-
ment or order of a court or by virtue of any stipulation.)

See People v. Wemple, 129 NV. Y., 543, sustaining this remedy.
L. 1881, Cu. 675

AN ACT to facilitate the payment of school taxes by railroad companies.

Section 1. Duty of school collector to deliver
to county treasurer certain statement; duty of
treasurer.—It shall be the duty of the school collector
in each school district in this state, except in the counties
of New York, Kings and Cattaraugus, within five days
after the receipt by such collector of any and every tax or
assessment roll of his district, to prepare and deliver to the
county treasurer of the county in which such district, or
the greater part thereof, is situated, a statement showing
the name of each railroad company appearing in said roll,
the assessment against each of said companies for real and
personal property respectively, and the tax against each of
said companies. It shall thereupon be the duty of such
county treasurer, immediately after the receipt by him of
such statement from such school collector, to notify the
ticket agent of any such railroad company assessed for taxes
at the station nearest to the office of such county treasurer,
personally or by mail. of the fact that such statement has
been filed with him by such collector, at the same time
specifying the amount of tax to be paid by such railroad
company.

(As am’d by L. 1882 ch. 319 and L. 1885 ch. 533.)

§ 2. Railroad companies may pay tax to county
treasurer ; fees of treasurer.—Any railroad company
heretofore organized under the laws of this state, or that
may be hereafter organized, may within thirty days after
PAYMENT OF ScCHOoL Taxes. 431

the receipt of such statement by.such county treasurer, pay.

the amount of tax so levied or assessed against it in such

district and in such statement mentioned and contained,
with one per centum. fees thereon, to such county treas-
urer, who is hereby authorized and directed to receive such
amount and to give proper receipt therefor.

S If tax not paid within thirty days, duty of
collector to collect ; limitation.—lIn case any railroad
company shall fail to pay such tax within said thirty days,
it shall be the duty of such county treasurer to notify the
collector of the school district in which such delinquent
railroad company is assessed, of its failure to pay said tax,
and upon receipt of such notice it shall be the duty of
such collector to collect such unpaid tax in the manner
now provided by law, together with five per centum fees
thereon; but no school collector shall collect by distress
and sale any tax levied or assessed in his district upon the
property of any railroad company, until the receipt by him
of such notice from the county treasurer.

§ 4. Tax to be placed to credit of school dis-
trict ; paid to collector on demand ; fees to go to
collector on demand.—The several amounts of tax re-
ceived by any county treasurer in this state under the pro-
visions of this act, of and from railroad companies shall
be by such county treasurer placed to the credit of the
school district for or on account of which the same was
levied or assessed, and on demand paid over to the school
collector thereof, and the one per centum fees received
therewith shall be placed to the credit of, and on demand
paid to, the school collector of such school district.

$5. Tax may be paid tocollector direct.—Noth-
ing in this act contained shall be construed to hinder, pre-
vent, or prohibit any railroad company from paying its
school tax to the school collector direct, as now provided
by law.
432 TAXATION.

Laws 1886, Cu. 143.

AN ACT to tax stock corporations for the privilege of organization.

Section 1. Tax on organization.—Every corpo-
ration, joint-stock company or association incorporated
by or under any general or special law of this state, hav-
ing capital stock divided into shares, shall pay to the
state treasurer, for the use of the state a tax of one-
eighth of one per centum upon the amount of the
capital stock which said corporation, joint-stock com-
pany or association is authorized to have, and a like tax
upon any subsequent increase thereof. The said tax shall
be due and payable upon the incorporation of said corpor-
ation, joint-stock company or association, or upon the in-
crease of the capital thereof ; and no such corporation,
joint-stock company or association shall have or exercise
any corporate powers until the said tax shall have been
paid. And the secretary of state and any county clerk
shall not file any certificate of incorporation or articles of
association or certify or give any certificate to any such
corporation, joint-stock company or association, until he
is satisfied that the said tax has been paid to the state
treasurer; and no such company, incorporated by any
special act of the legislature shall go into operation or ex-
ercise any corporate powers or privileges until said tax has
been paid as aforesaid. But this act shall not apply to lit-
erary, scientific, medical and religious corporations or cor-
porations organized under the banking laws of this state
or under chapter one hundred and twenty-two of the laws
of eighteen hundred and fifty-one, entitled “An act for
incorporation of building, mutual loan and accumulating
fund associations,” and the acts amendatory thereof. In
case of the consolidation of two corporations into a new
corporation said new corporation shall be required 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 two corporations,

(As am’d by L. 1892, ch. 668.)
The last sentence was added by the amendment of 1892.

See People ex rel. N. Y. Phonograph Co. v. Rice, 57 Hun, 486; aff'd
128 NV. Y., 591, and People ex rel. Schurz v. Cook, r1o NV. Y. 443, but

the tax is not payable on the reorganization and consolidation
of corporations formed under the laws of different states. Peo-
7

Tax on ORGANIZATION— DELINQUENT TAXES. 433

plev. N. Y., Chicago & S. R. R. Co. 61 Hun, 66; 129 N. Y., g74;
also see People v. Fitchburg Ry. Co. 129 N. Y., 654. The tax was
also held to be payable in case of a re-organization under Laws
1890, ch. 567, Sec. 5 (the business corporation law). in re WV. Y.
and Suburban Investment Co., 16 N. Y. Supp., 213; go St. Rep. 139.

§ 2. Applicable to general fund.—The taxes im-
posed by this act and the revenue derived therefrom, shall
be applicable to the general fund and for the payment of
those claims and demands which shall constitute a lawful
charge upon that fund.

L. 1886, Cu. 266.

AN ACT to provide for the more certain recovery of state taxes from delinquent
associations, corporations and joint-stock companies.

Section 1. Recovery of delinquent taxes; pro-
visions as to prosecution of suits for such taxes.—
For the better enforcement of chapter five hundred and
forty-two of the laws of eighteen hundred and eighty and
the acts amendatory thereof, it shall be lawful for any per-
son having knowledge of the evasion of taxation under
said acts by any association, corporation or joint-stock
company liable to taxation thereunder, to report such fact
to the comptroller, together with such information as may
be in his possession as may lead to the recovery of such
taxes from ‘said association, corporation or joint-stock com-
pany ; and whenever in the opinion of the attorney-general
or comptroller the interests of the state require it, either
of them is hereby authorized to employ such person so re-
porting such evasion to. assist in the collection and prep-
aration of evidence and in the prosecution and trial of:
suits for such taxes; and so much of the sum collected
from such delinquent association, corporation or joint-.
stock company, by reason of such report or such services,
as shall have been agreed upon by such person and the at-
torney-general or comptroller as a compensation therefor
shall be paid to such person, provided that the sum so paid
shall not exceed ten per centum of the amount so col-
lected ; and provided further, that nothing whatever shall
be paid to such person for such purpose unless there shall
be a recovery of taxes from such delinquent association, »
corporation or joint-stock company by reason of such re-
port or such services.

2A
434 ; TaxaTION.

L. 1890, Cu. 568, (HicHway Law.)

§$ 62. Commutation.—Every person and corporation
shall work the whole number of days for which he or it
shall have been assessed, except such days as shall be com-
muted for, at the rate of one dollar per day, and such com-
mutation money shall be paid to the overseer of highways
of the district in which the labor shall be assessed, within
at least twenty-four hours before the time when the person
or corporation is required to appear and work on the high-
way; but any corporation may pay its commutation money
to the commissioners of highways of the town, who shall
pay the same to the overseers of the districts respectively,
in which the labor commuted for was assessed.

L. 1877, ch. 344.
See § 33 of Highway Law as to manner of assessment of high-
way labor.
MISCELLANEOUS ACTS

AFFECTING RAILROADS GENERALLY, CHRONOLOGI-
CALLY ARRANGED.

L. 1834, CH. 276.

AN ACT to incorporate the Medina and Darien Railroad Company.

§ 17. Power or Canat Commissioners.—The Canal Censae
sioners are :hereby invested with a general and supervisory
power over so much of any railroad as passes over any canal or
feeder belonging to this state, or approaches within ten rods of
such canal or feeder, so far as such power may be necessary to
preserve the free and perfect use of the canals or feeders of:
this state, and necessary for making any repairs, improvements
or alterations in the same; and said company shall not con-
struct their railroad over or at any place within ten rods of any
canal or feeder belonging to this state, unless said company
shall lay before the commissioners aforesaid, a map, plan and
profile, as well of the canal or feeder as of the route designated
for their railroad, exhibiting distinctly and accurately the rela-
tion of each to the other, at all the places within the limits of
ten rods as aforesaid ; and shall thereupon obtain the written
permission of said canal commissioners, with such conditions,
instructions and limitations as, in the judgment of said canal
commissioners, the free and perfect use of any such canal or
feeder may require. ;

See Railroad Law, § 4, sub. 4, and § 13.
L. 1835, CH. 300.

AN ACT to enlarge the powers of commissioners of highways.

SECTION 1. COMMISSIONERS MAY GIVE CONSENT TO CROSS HIGH-
way.—Whenever any association or individual shall construct a
railroad upon land purchased for that purpose, on a route which
shall cross any road or other public highway, it shall be lawful
for the commissioners of highways, having the supervision
thereof, to give a written consent that such railroad may be
‘constructed across, or on such road or other public highway ;
and thereafter such association or individual shall be authorized
to construct and use such railroad across, or.on such roads or
other highways as the commissioners aforesaid shall have per-
mitted ; but any public highway thus intersected or crossed by

.
436 MiusceLctangous Acts, RAILROADS GENERALLY.

a railroad, shall be so restored to its former state as not to have
impaired its usefulness. :

See L. 1853, ch. 62, as to highways crossing tracks.

L. 1837, CH. 300.
AN ACT relative to unclaimed trunks and baggage.

SEecTION 1. DESCRIPTION TO BE ENTERED IN A BOOK; OWNER TO
BE NOTIFIED.—The proprietor or proprietors of the several lines
of stages, and the proprietors of the several canal boat lines,
and the proprietors of. the several steamboats, and the several
incorporated railroad companies, and the keepers of the several
inns and taverns within this state, who shall have any unclaimed
trunks, boxes or baggage within his, their, or either of their
custody, shall immediately enter the time the same was left,
with a proper description thereof, in a book to be by them pro-
vided and kept for that purpose. Incase the name and resi-
dence of the owner shall be ascertained, it shail be the duty of
such person who shall have any such property as above speci-
fied, to immediately notify the owner thereof by mail.

§ 2, DESCRIPTION TO BE PUBLISHED IN STATE PAPER IF OWNER UN-
kNowNn.—In case there shall not be any information obtained
as to the owner, it shall be the duty of the person having the
possession thereof, to make out a correct written description of
all such property as shall have been unclaimed for thirty days,
stating the time the same came into his possession, and forward
said description to the editor of the state paper, whose duty it
shall be, on the first Mondays of July, October, January and
April, in each year, to publish the same in the state paper once
a week for three weeks successively.

§ 3. PROCEEDINGS IN CASE PROPERTY REMAINS UNCLAIMED FOR
‘SIXTY DAYS AFTER SUCH PUBLICATION.—In case the said property
shall remain unclaimed for sixty days after the said publica-
tion, it shall be the duty of the person or company having pos-
session thereof, to apply to a magistrate of the town or city in
which said property is retained, in whose presence and under
whose direction said property shall be opened and examined,
and an inventory thereof taken by said magistrate; and if the
name and residence of the owner is ascertained by such exami-
nation, it shall be the duty of the magistrate forthwith to direct
a notice thereof to such owner, by mail; and if said property
shall remain unclaimed for three months after such examina-
UncLaImMep Baccacs. . 437

tion, it shall be the further duty of the person or company hav-
ing possession thereof to apply to.a magistrate as aforesaid; and
if said magistrate shall deem such property of sufficient’ value,
he shall cause the same to be sold at public auction, giving six
days’ previous notice of the time and place of such sale; and
from the proceeds of such sale he shall pay the charges and ex-
penses legally incurred in respect to said property, or a ratable
proportion thereof to each claimant, if insufficient for the pay-
ment of the whole amount; and the balance of the proceeds of
such sale, if any, the said magistrate shall immediately pay to
the overseers of the poor of the said town or city, for the use of
the poor thereof; and the said overseers shall make an entry of
such amount, and the time of receiving the same, upon their
official records, and it shall be subject, at any time within seven
years thereafter, to be reclaimed by, and refunded to, the owner
of such property, his heirs or assigns, on satisfactory proof of
such ownership. ,

§ 4. FEES AND EXPENSE; TO BE A LIEN ON PROPERTY.—The per-
son making the entry of unclaimed property as above specified,
shall be entitled to twelve and a half cents for each trunk, box,
bale, package or bundle so entered, and shall have a lien on the
property so entered until payment shall be made; and in case
any additional expense shall be incurred for printing, the lien
shall continue until payment shall be made for such additional
expense.

§5. Prenatty.—tIn case any person shali neglect or refuse to
comply with the provisions of this act, he shall forfeit the sum
of five dollars for each and every trunk, box or bundle of bag-
gage so neglected as above specified, to the benefit of any per-
son who shall sue for the same, in his own name, in an action of
debt in any court having cognizance thereof.

L. 1845, Cu. 149.
AN ACT in relation to carrying the United States mail on railroads.

(Omitted.) See railroad law, § 56.

L. 1847, Cu. 133.
AN ACT authorizing the incorporation of rural cemetery associations.

§10.. No STREET, ROAD, AVENUE OR THOROUGHFARE, TO BE
OPENED THROUGH CEMETERIES,—The cemetery lands and property.
.of any association formed purstiant to this act, and any prop-
‘438 MiscELLANeEous. Acts, RAILROADS GENERALLY.

‘erty. held'in trust ‘by it for any of the purposes: mentioned in
‘ section nine of this act, shall.be exempt ‘from all public taxes,
‘yates and assessments, and shall not be liable to befsold on exe-
: cution, or be applied in payment of debts due from any individ-
‘ ual,proprietor. But the proprietors of lots or plots in such'cem-
eteries, their heirs or devisees, may hold the same exempt
therefrom, so long as the same’ shall remain dedicated ‘to the
:purposes of a cemetery, and during-that time no street, road,
avenue or thoroughfare shall be laid out through such ceme-
“tery, or any part of .the lands held by such association for the
purposes aforesaid, without the consent of the trustees of such
association, except by special permission of the legislature of
the state.

(As am’d by L. 1869, ch. 708, and L. 1877, ch. 31.)

Private cemeteries owned by private individuals or a private
corporation can ‘be condemned under a statute authorizing
generally the condemnation of land for public use. i” re Board
of Street Opening v. St. John's Cemetery Association, 133 N. Y., 329.

L. 1853, Cu. 62.

AN ACT to regulate the construction of roads and streets across railroad tracks.

Section 1., LAYING QUT STREETS OR HIGHWAYS ACROSS RAILROAD
TRACKS. —It shall be lawful for the authorities of any city, vil-
: lage or town in this state, who are by law empowered to lay out
streets and highways, to lay out any street or highway across
the track of any railroad now laid or which may hereafter be
laid, without compensation to the corporation owning such rail-
road; but no such street or highway shall be actually opened
‘for use until thirty days after notice of such laying out has been
served personally upon the president, vice-president; treasurer
or -a-director of such corporation.

§ 2. RAILROAD CORPORATIONS TU CAUSE STREET LAID OU‘ ACROSS
THEIR TRACK TO BE TAKEN AT MOST CONVENIENT PLACE FOR PUBLIC
TRAVEL.—It shall be the duty of any railroad corporation, across
whose track a street or highway shall be laid out as aforesaid,
immediately after the service of said notice, to cause the said
street or highway to be taken across their track, as shall be most
convenient and useful for public travel, and to cause all neces-
sary embankments, excavations and other work to be done on
their road for that purpose; and all the provisions of the act,

. passed: April: 2, 1850, in relation to crossing streets and ‘high-
‘ways, already laid: out, by railroads, and in‘ telation to cattle-
Construction or Roaps, &c., Across TRACKS. 439

guards and other securities and facilities for crossing such
roads, shall apply to streets and highways hereafter laid out.

§ 3. PENALTY FOR NEGLECT OR REFUSAL.—If any railroad cor-
poration shall neglect or refuse, for thirty days after the service
of the notice aforesaid, to cause the necessary work to be done

and completed, and improvements made onsuch streetsor high- ~

ways across their road, they shall forfeit and pay the sum of
twenty dollars for every subsequent day’s neglect or refusal, to
be recovered by the officers laying out such street or highway,
to be expended on the same; but the time for doing said work
may be extended, not to exceed thirty days, by the county judge
of the county in which such street or highway, or any part
thereof, may be situated, if, in his opinion, the said work can
not be performed within the time limited by this act.

This act is not unconstitutional upon the ground that it pro-
vides that the street or highway may be laid out across the
track without compensation to the railroad company, nor upon
the ground that the railroad company is obliged to make the
necessary excavations and embankments for taking the street
or highway across the track. Albany Northern R. R. Co.v. Brownell,
24 .N. Y., 345, overruling Miller v. N.Y.& Erie R. R. Co., 21 Barb., 5173.

The “ track.” specified by this section is that used for public
traffic whether composed of one or more single tracks, including
turnouts and switches. Grounds upon which tracks are laid for
storing cars, or exclusively for making up trains, are not em-
braced in the term “track,” but tracks used for passing trains,
switching of cars and making up trains may be crossed. Boston
‘& Albany R. R. Co. v. Greenbush, 52 N. Y., 510; Del. & Hud. Canal
Co. v. Whitehall, go N. Y., 27. No authority is conferred by this
section to lay out streets or highways across lands acquired for
depot purposes, or as sites for station houses, engine houses, or
turn tables. Prospect Park & C.I. R. R. Co. v. Williamson, 91 N.
Y., 552; Del. & Hud. Canal Co. v. Whitehall, 90 N. Y., 21; Albany
Northern R. R. Co.v. Brownell, 24 N. Y., 345; Matter of Walden, 14
N.Y. St. Rep. 590. An injunction will not lie to prevent a mu-
nicipal corporation from proceeding under §.1 to lay out a high-

way across railroad tracks without compensation. Long Island -

R. R. Co. v. Silverstone, 19 N. Y. Supp. 140; 46 St. Rep. 141. See
Long Island R. R. Co. v. City of Brooklyn,’8 N.Y. Supp., 805; 29 St.
Rep., 981. . ;
, L. 1855, CH. 474.
AN ACT for the protection of immigrants, second class, steerage, and deck pas-
sengers.
SECTION 1. RATES OF FARE TO BE MADE KNOWN.—It shall be the
duty. of all companies, associations, and persons, hereafter
undertaking to transport or convey, or engaged in transporting

f
440 MuisceLtitaneous Acts, RAILRoaps GENERALLY.

or conveying, by railroad, steamboat, canal boat or propeller,
any immigrant, second class, steerage, or deck passenger, from
the city, bay, or harbor of New York, to any point or place, dis-
tant more than ten miles therefrom, or from the cities of Albany,
Troy and Buffalo, the town or harbor of Dunkirk, or the sus-
pension bridge, to any other place or places, to deliver to the
mayors of the city of New York, Albany, Troy, and Buffalo, on
or before the first day of April in each and every year, a written
or printed statement of the price, or rates of fare, to be charged
by such company, association or person, for the conveyance of
such immigrant, second class, steerage and deck passengers
' respectively, and the price per hundred pounds for the carriage
of the luggage, and the weight of luggage to be carried free of
such passengers from and to each and every place, from and to
which any such company, association, or person shall undertake
to transport and convey such passengers; and such prices or
rates shall not exceed the prices and rates charged by the com-
pany, association or person, after the time of delivering such
statement to the said mayors; and such statement shall also
contain a particular description of the mode and route by which
such passengers are to be transported and conveyed, specifying
whether it is to be by railroad, steamboat, canal boat or pro- -
peller, and what part of the route is by each, and also the class
of passage, whether by immigrant trains, second class, steerage
or deck passage. In case such companies, association, or person,
shall desire thereafter to make any change or alteration in the
rates or prices of such transportation and conveyance, they
shall deliver to the said mayors respectively a similar statement
of the prices and rates as altered and changed by them; but the
rates and prices so changed and altered, shall not be charged or
received until five days after the delivery of the statement
thereof to the said mayors respectively.

§ 2. War PASSAGE TICKETS SHALL Conrain.—Every ticket,
receipt or certificate which shall be made or issued by any com-
pany, association or person, for the conveyance of any immi-
grant, second class, steerage or deck passengers, or as evidence
of their having paid for a passage, or being entitled to be con-
veyed from either or any of the points or places in the first
section of this act mentioned to any other place or places, shall
contain or have endorsed thereon a printed statement of the
names of the particular railroad or railroads, and of the line or
lines of steamboats, canal boats and propellers, or of the partic-
ular boats or propellers, as the case may be, which are to be
f

Fare To IMMIGRANTS. 441

used in the transportation and conveyance of such passengers,
and also the price or rate of fare charged or received for the
transportation and conveyance of any such passenger or passen-
gers with his or their luggage.

§ 3. No HIGHER RATES OF FARE TO BE CHARGED.—It shall not
be lawful for any person or persons to demand or receive, or
bargain for the receipt of any greater or higher price or rate of
fare for the transportation and conveyance of any such immi-
grant, second class, steerage or deck passengers with their lug-
gage, or either, from either of the points or places in the first
section of this act mentioned, to any other point or place, than
the prices or rates contained in the statements which shall be
delivered to the mayors of the cities of New York, Albany,
Troy and Buffalo, and said commissioners, respectively, as in
the said first section provided for, or the price or rates which
shall be established and fixed for the transportation and con-
veyance of such passengers and their luggage, or either, by the
proprietors or agents of the line or lines, or means of convey-
ance, by which such-passenger or passengers and their luggage
are to be transported or conveyed. In all cases each immigrant
over four years of age conveyed by railroad shall be furnished
with a seat with permanent back to the same, and when con-
veyed by steamboat, propeller or canal boat, shall be allowed at
least two and one half feet square in the clear on deck. Such
deck shall be covered and made water-tight over head, and shall
be properly protected at the outsides, either by curtains or par-
titions, and shall be properly ventilated.

§ 4. PENALTY FOR VIOLATION.—Any company, association, per-
son or persons, violating or neglecting to comply with any of
the provisions of the first or second sections of this act, shall be
liable to a penalty of two hundred and fifty dollars for each and
every offence, to be sued for and recovered in the name of the
people of this state; and every person violating any of the pro-
visions of the third section of this act, shall be deemed guilty of
a misdemeanor, and on conviction thereof, the person offending
may be punished by a fine of two hundred and fifty dollars, or
by imprisonment not exceeding one year, or by both fine and
imprisonment, in the discretion of the court; one-half of which
fines, when recovered, shall be paid to the informer, and the
other half into the county treasury where the action shall-be-
tried or the conviction had.
442 MuisceLLangous Acts, Riaivroans GENERALLY.

‘§5. Durty ‘or MAGISTRATE ON ARREST OF OFFENDER.—It shall be
the duty of every magistrate who shall issue a warrant for the
apprehension of any person or persons for violating the provis-
ions of the third section of this act; within twenty-four hours
after such person or persons shall have been taken and brought
before him, to take the testimony of any witness who may be
offered to prove the offence charged, in the presence of the
accused, who may, in person or by counsel, cross-examine such
witness. The testimony so taken shall be signed by the wit-
ness, and be certified by the magistrate, and in case such mag-
istrate shall commit the accused to answer the charge, he shall
immediately thereafter file the testimony so taken, with the
district attorney of the county in which the offence was com-
mitted, to be used on the trial of or any further proceedings
against the accused; and the testimony so taken shall be deemed
valid and competent for that purpose, and be read and used
with the like effect as if such witness were orally examined on
such trial or proceedings. After the testimony of any witness
shall be so taken, he shall not be detained, nor be imprisoned,
or compelled to give any recognizance for his future appear-
ance as a witness on any trial or proceeding thereafter to be
had in the premises.

(Included in N. Y. City Consol. Act, L. 1882, ch. 410, §§ 2059-
2063.)

See Penal Code, § 626.

L. 1860, Cu. 10.
AN ACT relative to railroads in the city of New York.

SECTION 1. RAILROADS ON STREETS IN New York.—It shall not be
lawful hereafter to lay, construct or operate any railroad in, upon
or along any or either of the streets or avenues of the city of New
. York, wherever such railroad may commence orend, except under

the authority and subject to the regulations and restrictions
which the legislature may hereafter grant and provide. This
section shall not be deemed to affect the operation, as far as
‘laid, of any railroad now constructed and duly authorized. Nor
shall it be held to impair, in any manner, any valid grant for or

relating to any railroad, in said city, existing on the first day of
January, 1860.

(Included in New York ‘City Consolidation Act, L. 1882, ch.
410, § 1493.)
New York City—CuatrTeL Mortcaces—-Liens. 443

‘This provision applies to every kind of a: railroad, and to one
to be constructed part of ‘the way under ground, and:at other
poiats crossing over streets at right angles on ‘bridges resting
on piers built on private land. ia re People’s R. T::R. R. Co., 125

N. Y., 93.
‘f 1868, Cu. 779.

AN ACT in relation to mortgages executed by railroad companies.

SECTION 1.. CHATTEL MORTGAGES.—It shall not be necessary to
file as a chattel ‘mortgage, any mortgage which has been, or
shall hereafter be, executed by any railroad company upon real
and personal. property; and which has been or shall be recorded .
as a.mortgage of real estate in each ei in or through which
the railroad runs.

- See Stock Constant ‘Law, g 2.

'

As ‘to conditional sales, see L. 1883, ch. 383, and:L. 1885, ch.
488,§ 1.

‘The rolling stock of a railroad is not a part of the realty, but
retains its character as personal property. Prior to this statute
a mortgage including rolling stock was required to be filed in
all the towns and cities in which any part of its line is located.
Hoyle v. Plattsburgh & Montreal R. R. Co... 54 N. Y., 314. A mort-
‘gage of personal property must be filed except in the case speci-
fied in this statute. Stevens v. Buffalo & N.Y. City R. R. Co, 32
Barb., 590; see also Farmers’ Loan & Trust Co. v. Hendrickson, 25
Barb., » 9845 Beardsley v. Ontario Bank, jt Barb, Omg:

L. 1870, Cu. 529.
AN ACT i in relation to mechanics’ liens. i
“ Section 1. LIEN LAW EXTENDED TO RAILROAD BRIDGES AND
TRESTLE worK.—The provisions of the law relating to mechanics’
liens heretofore passed shall apply to bridges and trestle work
erected for railroads and materials furnished therefor, and labor
performed in constructing said bridges, trestle work and other
structures connected therewith; and the time within which said
liens may be filed shall be extended to ninety days: from the
time when the last work shall have been performed on said
‘bridges, trestle work and structures connected therewith, or the
time from which said materials shall have been delivered.. This
act shall apply to all uncompleted work cominented prior to the
paises of this act.

See L, 1875, ch. 392.

vonseeeweee

vy lien can ‘not be acquired by a creditor of. a sub- contractor.
opae: Buffalo superior court has no jurisdiction of proceedings
to enforce a lien under this section. Jowler v. Buffalo & James-
444 MisceLLtaneous Acts, RaILroaps GENERALLY.

town R. R. Co. 1 Sheld., 525. Where at the time the notices were
filed nothing was due to a sub-contractor, the company: is not
liable to pay the amount therein set forth. Sampson v. Buffalo,
N.Y. & Phila. R. R. Co., 13 Hun, 280; see Same v. Same, 2 Hun, 512.

L. 1871, Cu. 84.

AN ACT to authorize the owners and holders of certain railroad mortgage bonds,

made payable to bearer, to render the same payable to order only.
SecTIon 1. RAILROAD AND OTHER CORPORATE BONDS; HOW MADE
NON-NEGOTIABLE.—It shall be lawful for any person or persons
owning and holding any railroad mortgage bonds, or other cor-
porate bonds (for which a registry is not by law provided), here-
tofore issued, or which may be hereafter issued, and made pay-
able in this state, and which are made payable to bearer, to
render the same non-negotiable by the owner and holder en-
dorsing upon the same and subscribing a statement that said
bond is the property of such owner. And thereupon the prin-
cipal sum of money mentioned in said bond shall only be pay-

able to such owner or his legal representatives or assigns.

§ 2. TRANSFERS; HOW MADE.—The bonds described and re-
ferred to in the first section of this act may be transferred by an
endorsement in blank, giving name and residence of assignor,
or they may be transferred by an endorsement payable to bearer
or to the order of the purchaser (naming him), subscribed by
the assignor, giving name and place of residence.

See also L. 1873, ch. 595, which in part repeals above.

This act would seem to refer only to bonds which have been
or may be issued and payable in this state. Matter of Crawford,
Extr., 113. N. Y., 560. ®

L. 1873, Cx. 595.
AN ACT relative to certain negotiable corporate bonds and obligations.

SECTION 1.—How OWNER MAY MAKE BONDS NON-NEGOTIABLE.—
The owner or holder of any corporate or municipal bond or ob-
ligation (except such as are designed to circulate as currency)
payable to bearer, heretofore issued, or which may hereafter be
issued and payable in this state, but not registered in pursuance
of any law thereof, may make the same non-negotiable (except
as provided in the second section of this act), by subscribing his
name to a statement indorsed thereon that such bond or obliga-
tion is his property; and thereupon the principal sum therein
mentioned shall be payable only to such owner or holder, or his
legal representatives or assigns.
— i \
RarLroap Bonps—LieEns or EMpLoyes. 445

§ 2. How TRANSFERRED AFTER SUCH INDORSEMENT,—The bonds
and obligations mentioned in the last section, after having been
indorsed as therein provided, may be transferred by an indorse-
ment, in blank, or payable to bearer, or to order, with.the addi-
tion of the assignor’s place of residence.

§ 3. ‘THE PROVISIONS OF THIS ACT TO APPLY TO INTEREST COUPONS.
—The provisions of this act shall apply to all interest coupons

accompanying any corporate or municipal bond or obligation
payable in this state.

§ 4. Repeat.—So much of chapter 84 of the Laws of 1871, en-
titled ““An act to authorize the owners and holders of certain
railroad mortgage bonds, made payable to bearer, to render the
same payable to order only,” as is inconsistent with this act is
hereby repealed.

L. 1875, CH. 392.
AN ACT for the better security of railroad employes for labor performed.

Section 1. LIEN FOR LABOR UPON ROLLING STOCK, TRACK, ETC.—
Any person who shall hereafter perform any labor for a rail-
road corporation shall, on filing with the county clerk of any
county in which such railroad corporation is situated, or through
which the road of such corporation passes, the notice prescribed
by the second section of this act, have a lien for the value of
such labor upon such railroad track, rolling stock and appurte-
nances, and upon the Jand upon which such railroad track and
appurtenances are situated, to the extent of the right, title and
interest of such railroad corporation in the property. existing at
the time of filing the said notice.

See as to trestle works and bridges, L. 1870, ch. 529.
See Sampson v. Buffalo, N. Y. & Phila. Ry. Co., 13 Hun, 280.

§2. WHEN NOTICE TO BE FILED; TO BE ENTERED BY COUNTY
CLERK ON “LIEN DOCKET;” FEE.—Within thirty days after the per-
formance and completion of such labor, such person shall file a
notice, in writing, with the county clerk of the county where
the property is located, specifying the amount of claim, and the
corporation against whom the claim is made. The county clerk
shall enter the particulars of such notice in a book to be kept in
his office, to be called the “lien docket,” with the name of claim-
ant, amount claimed, the name of such corporation against
which such claim is made, and the date of the filing of the no-
tice, hour and minute. A fee of ten cents shall be paid to said
446 MisceLLaNneous Acts, RaILroaps GENERALLY.

clerk on filing said lien, and said notice, when so filed, shall
thereafter operate as an incumbrance upon said property.

§ 3. VALUE OF LABOR TO BE PROVED ON TRIAL.—Any pérson
performing labor, in availing himself of the provisions of this
act, shall, upon the trial, or at the assessment of damages, pro-
duce evidence to establish the. value of such labor, and that the
same was performed for such railroad corporation.

§4. Lizn, HOw ENFoRCED.—Any laborer, performing any
work, or assignee thereof, may, after such labor is performed,
and the service ofthe notice required by the first section of this
act, bring an action in any of the courts of the county in which
said property is situated to enforce said lien, requiring such
railroad corporation to appear, by attorney within thirty days
after such service and answer the same, or, in default thereof,
the claimant may take judgment for the amount of claim and
costs.

§ 5. Lizn TO CONTINUE ONE YEAR.—Every lien created under
the provisions of this act shall continue until the expiration of
one year, unless sooner discharged by the court or some legal
act of the claimant in the proceedings; but when a judgment is
entered therein, and docketed with the county clerk within said
year, it shall be alien upon the real property of the railroad
corporation against whom it is obtained to the extent that other
judgments are now made a lien thereon.

§ 6. Priority or Ligen.—The liens created and established by
virtue of the provisions of this act shall be paid and settled ac-
cording to the priority of the notice filed with the county clerk,
as directed by the second section hereof.

§ 7. DiscHaArRGE OF LIEN.—AII liens created by this act may be
discharged as follows:

1. By filing with the county clerk a certificate of the claim-
ant, or his successors in interest, acknowledged or proved in the
same manner as a conveyance of real estate, stating that the
lien has been paid or discharged; or,

2. By depositing with the court or clerk of the court a sum of
money equal to double the amount claimed, which money shall
be thereupon held subject to the determination of the lien; or,

3. By an entry of the county clerk, made in the book of liens,
that the proceedings on the part of the claimant have been dis-
missed by the court in which it is brought, or a judgment ren-
dered against the said claimant; or,
LIABILITY OF STOCKHOLDERS'—~ABANDONED CANALS., 447 .

4. By an affidavit of the service of a notice from such rail-
road corporation, or its attorney, to the claimant, requiring such
claimant to commence an action for the enforcement of said lien ;
_ within twenty days after service of said notice, and the failure
of said claimant to commence an action as aforesaid. 7

§ 8. PERSONAL LIABILITY OF STOCKHOLDERS; NOTICE ; TIME FOR
COMMENCING ACTION.—Each and all the stockholders of such cor-
poration shall be jointly and severally liable for the debts due
or owing to any of its laborers or servants, other than contract- -
ors, for personal service for ninety days service, or less than
ninety days service, performed for such corporation, but shall
not be liable to an action therefor, before an execution shall be
returned unsatisfied in whole or in part against the corporation,
and the amount due on such execution shall be the amount re-
coverable with costs against such stockholders; before such
laborer or servant shall charge such stockholders ‘for such
ninety days service, or less than ninety days service, he shall..
give notice in writing, within twenty days after the perform-
ance of such service, that he intends to so hold him liable, and
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 such corpora-
tion in ratable proportion to the amount of the stock they shall
respectively hold with himself.

L. 1877, CH. 404.

AN ACT to provide for the disposition and sale of certain lateral canals of this
state, and the lands, rights and other property connected therewith.

§ 1x. SALE OF ABANDONED CANAL FOR RAILROAD PURPOSES.— ,
Whenever the said superintendent shall ascertain that the prism
and banks of either of said canals, or any considerable portions
of either are desired by responsible parties, or a responsible
corporation or corporations, as a bed for the construction of a
railroad, or for the continuance of the same as a canal, and that
the same can be sold on as favorable terms and for as large an
amount therefor as for other purposes, or where the use thereof
is deemed for the interests of the locality through which the
canal runs, the said superintendent is hereby authorized to sell
after January first, eighteen hundred and eighty, either or any
such portion of either of said canals for such railroad or canal
purposes on obtaining proper security that the same shall be so
448 MisceLLaneous Acts. RAILRoADS GENERALLY.

constructed within three years from the sale thereof, and proper
guaranties that the same shall be used and operated for the
purpose indicated in this section, anything hereinbefore con-
tained to the contrary notwithstanding. All action by the
superintendent under this act shall be only with the consent
and approval of the canal board.

(As am’d by L. 1879, ch. 522.)

See L. 1887, ch. 169, which repeals this act so far as the Seneca
Lake level of the Chemung canal is concerned.

L. 1878, Cu. 134.

AN ACT in relation to infectious and contagious diseases of animals.

§2. PowERs OF GOVERNOR.—For such purpose the governor
shall have power:

To order all or any animals coming into the state to be de-
tained at any place or places for the purpose of inspection and
examination.

To prescribe regulations for the destruction of animals
affected with infectious or contagious disease, and for the
proper disposition of their hides and carcasses, and of all objects
which might convey infection or contagion, provided that no
animal shall be destroyed unless first examined by a medical or
veterinary practitioner in the employ of the governor as afore-
said.

To prescribe regulations for the disinfection of all premises,
buildings, boats and railway cars, and of all objects from or by
which infection or contagion may take place or be conveyed.

To alter and modify from time to time, as he may deem expe-
dient, the terms of all such proclamations, orders and regula-
tions, and to cancel or withdraw the same at any time.

(As am’d by L. 1888, ch. 286.)

L. 1881, Cu. 317.

AN ACT to authorize a change, in certain cases, of the time for holding elections
in railroad companies.

Section 1. COMPANIES MAY CHANGE TIME FOR HOLDING ELECTIONS.
—Any railroad company, the time for the annual election of di-
rectors in which is now fixed for any day in the month of June,
may bya vote of a majority of the stock, either in person or
by proxy, thereof to that effect, and filing in the office of the
secretary of state a copy of such proceedings, certified by the
eee)

‘ 1 ‘
Diseasep ANIMALS—ELECTIONS—-CANALS:' 449

‘secretary of the company under its corporate seal, change the

time for holding such annual election to any day in the month
of April, provided, however, that the first election held under
such resolution shall be held in the month of April which shall
precede the time at which such election would otherwise have
been held.

, L. 1881, Cu. 452.

AN ACT to authorize corporations owning canals to construct and operate rail-
roads along side of or in lieu thereof.

SECTION 1. \CORPORATION OWNING CANAL MAY CONSTRUCT RAILROAD.
—It shall be lawful for any corporation of this state owning and

' operating a canal to construct and operate along or in lieu of

such canal a railroad, and the exercise of the authority hereby
conferred shall not be deemed to forfeit or impair its corporate
rights under its charter or act of incorporation.

§ 2. Corporate Powers.—-Such company, in the construction
and maintenance of any such railroad under the authority of
this act, shall have, possess and enjoy all the powers and privi-
leges contained in an act entitled “An act to authorize the
formation of railroad corporations and to regulate the same,”
passed April 2, 1850, and the several acts amending the same,
and be subject to all the duties, liabilities and provisions so far
as relates to any powers or privileges by this act upon said com-
pany conferred and hereafter exercised.

§ 3. NOT AUTHORIZED TO CONSTRUCT RAILROAD IN ANY OTHER LOCAL-
iry.—Nothing in this act contained shall authorize the construc-
tion of any railroad except upon or along such canal owned and
operated by any such company, and not in any other locality.

L. 1882, Cu. 292.

§ 2. OILs THAT IGNITE BELOW 300 DEGREES FAHRENHEIT NOT TO BE
BURNED IN caRS.—No oil or burning fluid, whether composed

wholly or in part of coal oil and petroleum or their products, or
other substance or material, which will ignite at a temperature
below three hundred degrees by the Fahrenheit thermometer,
shall be burned in lamp, vessel, or other stationary fixture of.
any kind, or carried as freight, in any passenger or baggage car
or passenger boat moved by steam power in this state, orin any
stage or street car drawn by horses. Exceptions as regards the
transportation of coal oil, petroleum and its products, are hereby
3A
450 MisceLLaneous Acts, RarLroaps GENERALLY.

made when the same is securely packed in barrels or metallic
packages, and permission is hereby granted for its carriage in
passenger boats moved by steam power when there are no other
public means of transportation Any violation of this act shall
be deemed a misdemeanor and subject the offending party or
parties to a penalty not exceeding three hundred dollars, or im-
prisonment not exceeding six months, at the discretion of the
court.

§ 5. Prosecurion.—It shall be the duty of al district attor-
neys of the counties in this state to represent and prosecute
in behalf of the people, within their respective counties, all
cases of offences arising under the provisions of this act.

L. 1883, Cu. 378.
AN ACT in relation to receivers of corporations.

SECTION 1, APPLICATION FOR APPOINTMENT OF RECEIVER, WHERE
MADE.—Every application hereafter made for the appointment
of a receiver of a corp?ration shall be made at a special term of
the court held in and for the judicial district in which the prin-
cipal business office of the corporation was located at the com-
mencement of the action wherein such receiver is appointed, or
in and for a county adjoining such district, and any order
appointing a receiver, otherwise made, shall be void.

§ 2. Frres—Every receiver shall be allowed to receive, as
compensation for his services as such receiver, five per centum
for the first one hundred thousand dollars received and paid
out, and two and a half per centum on all sums received and
paid out in excess of the said one hundred thousand dollars.
But no receiver shall be allowed or shall receive, from such
percentages or otherwise, for his said services for any one year,
any greater sum or compensation than twelve thousand dollars,
nor for any period less than one year more than at the rate of
twelve thousand dollars per year, provided that where more
than one receiver shall be appointed, the compensation herein
provided shall be divided between such receivers.

(As am’d by L. 1886, ch. 275.)

§ 3. ORDER APPOINTING RECEIVER TO DESIGNATE PLACE OF DE-
posit.—All orders appointing receivers of corporations shall
designate therein one or more places of deposit, wherein all
RECEIVERS, 451

funds of, the corporation not needed for immediate disburse-

-ment shall be deposited, and no deposits or investments of
such trust funds shall be made elsewhere, except upon the order
of the court upon due notice given to the attorney-general.

‘§ 4. Durrés or recetver.—It shall be the duty of every re-
ceiver of an insurance, banking or railroad corporation, or trust
company, to present every six months to the special term of the
supreme court, held in the judicial district wherein the place of
trial or venue of the action or special proceeding in which he
was appointed may then be, on the first day of its first sitting,
after the expiration of said six months, and to file a copy of,
the same, if a receiver of a bank or trust company, with the

. .. bank superintendent; if a receiver of an insurance company,
with the superintendent of insurance, and in each case with the
attorney-general, an account exhibiting in detail the receipts of
his trust, and the expenses paid and incurred therein during the
preceding six months; and it shall be unlawful for any receiver

‘ of the character specified in this section to pay to any attorney
or counsel any costs, fees, or allowance until the amounts there-
of shall have been stated to the special term in this manner, as
expenses incurred, and shall have been approved by that court
by an order of the court duly entered; and any such order shall
be the subject of review by the general term and the court of
appeals on an appeal taken therefrom by any party aggrieved
thereby. Of the intention to present such account, as afore-
said, the attorney-general shall be given eight days’ notice in
writing, and the attorney-general shall examine the books and
accounts of such receiver at least once every twelve months.

(As am’d by L. 1885, ch. 40.)

As to transfer of property to receiver, see L. 1884, ch. 285, § ie
As to preference of wages of employes, see L. 1885, ch. 376.

RECEIVERS IN FORECLOSURE ACTIONS,

A court of equity, having possession in a foreclosure suit of
the property of a railroad company, has jurisdiction to author-
ize the creation of debts for rolling stock and other purposes,
when, in its opinion it is necessary so to do to secure the con-
tinued and successful operation of the road, and to charge the
debts so created as a first lien on the mortgaged property.
Vilas v. Page, 106 NV. Y., 439, but it has no power to authorize a
receiver so appointed to pay or issue his certificates of indebted-
ness for the payment of labor and services in operating the
road prior to-his appointment, and to make certificates so issued
alien prior to the mortgage. Met. Trust Co. v. Tonawanda, V. &
C.R. R. Co., 103 N. V., 245. The receiver is not a proper party '
452 MisceLLaneous Acts, RaILRoaps GENERALLY.
to a suit for an alleged trespass.committed prior to his:appoint-
ment and. for. which.a suit was pending, so held, .although the
receiver had been substituted as defendant. by order of. the
court. Decker v. Gardner, 124 N. Y., 334. L. 1883, ch. 378, § 2, in
relation to the fees of receivers has no application to such re-
ceivers. U. S..Trust Ca. v. NM. V., WS. & B, Ry. Co, ror N. Y.
478. See as to the effect of a discharge of the receiver upon
the rights of a creditor whose claim has not been adjudicated.
‘NV. OY. & W. OU. Tel. Co. v. Jewett, 115 N. Y. 166, and upon’ the
tights of one. whose claim has been adjudicated, Woodruff v.
Jewett, 115 N. Y., 267, A receiver may be compelled. by order
on petition and application of the attorney-general made in the
foreclosure suit, to pay a tax imposed on the corporation by L.
1881, ch. 361. Central Trust Co.v. N. Y.C. & N. R. R. Co. 110 N.
Y., 250. The court cannot by summary order compel a delivery
to the receiver, of books of the company which have been sold to
and are in possession of a successor corporation, notwithstand-
ing the fact that the officers of the two companies are identical.
Olmstead v. Roch.& C.R. R. Co., 46 Hun, 552. The duties of a tem-
porary receiver in an action brought by the attorney-general to
dissolve a corporation on the ground of insolvency may be
transferred to a receiver appointed in a foreclosure action.
Flerring v. N.Y.,£ E.& W. RR. Co., 105 N. Y., 3¢0. A receiver
of a railroad holding a lease of another road is liable for the
rents of the latter while in his possession. Frank v. NV. Y., L. E.
& W.R. R. Co., 7 St. Rep., 814, Woodruff v. Erie Ry. Co, 93 N. Y.,
609. The motion for the appointment of such a receiver may
be made in the district where the venue is laid. U. S. Trust Co.
vu. N.Y. WS. &. B. Ry. Co., 395 Hun, jar; 101 N. Y., 478 Sucha
, Teceiver may be appointed without notice to the attorney-gen-
eral, and he may apply for and obtain an order vacating an
appointment made in a judgment. creditor’s action for seques-
tration. Whitney v. N.Y. and Atlantic R. R. Co., 32 Hun, 164.

§ 6. RECEIVER TO CLOSE UP AFFAIRS WITHIN ONE YEAR.—The
affairs of every insolvent corporation now in the hands of any
receiver shall be fully closed up by the receiver thereof within
one year from the passage of this act, unless the court, upon ap-
plication by said receiver, and upon due notice to the attorney-
general, shall give additional time for that purpose.

§ 7. ATTORNEY GENERAL MAY APPLY TO HAVE RECEIVER REMOVED}
AppEAL.—The attorney-general may, at any time he deems that
the interests of the stockholders, creditors, policy-holders, de-
positors or other beneficiaries interested in the proper and
speedy distribution of the assets of any insolvent corporation
will be subserved thereby, make a motion in the supreme court
at a special term thereof, in any judicial district, for an order
removing the receiver of any insolvent corporation and appoint-
RECEIVERS. «453

ing a receiver thereof in his stead, or to compel him to account,
or for such other and additional order or orders as to him may.
seem proper to facilitate the closing up of ‘the affairs of such’
receivership, and any appeal from any order made upon any.
motion under this section shall be to the general term of said
court of the department in which such motion is made.

§ 8. CoPIES OF ALL PAPERS TO BE SERVED ON ATTORNEY GENERAL.
—A copy of all motions and all motion papers, and a copy of
any other application to the court, together with a copy of the
order or judgment to be proposed thereon to the court, in every
action or proceeding now pending for the dissolution of a corpo-
ration or a distribution of its assets, or which shall hereafter be
commenced for such purpose, shall, in all-cases, be served on
the attorney-general, in the same manner as provided by law
for the service of papers on attorneys who have appeared in ac-
tions, whether the applications but for this law would be ex parte.
or upon notice, and no order or judgment granted shall vary in
any material respect from the relief specified in such copy ‘or
order, unless the attorney general shall appear on the return
day and have been heard in relation thereto; and any order or
judgment granted in any action or proceeding aforesaid, with-
out such service of such papers upon the attorney general, shall
be void, and no receiver of any such corporation shall ‘pay to
any person any money directed to be paid by any order or judg-
ment made in any such action or proceeding, until the expira-
tion of eight days after a certified copy of such order or judg-
ment shall have been served as aforesaid upon the attorney
general. ,

For the effect of failure to comply with this section on subse-
quent proceedings to appoint a receiver, see Cole v. Millerton 1.
Co., 133 N. Y., 164. ; :

§ 9. WHERE APPLICATIONS UNDER THIS ACT TO BE MADE; VENUE
CHANGED.—AIl1 applications to the court contemplated by this act
shall be made in the judicial district where the principal office
of the insolvent corporation was located; and the venue of all
actions or proceedings now pending, not in the judicial district
where the principal office of the insolvent corporation was
located, are hereby changed and transferred to the county.and
judicial district where such principal office was located.

' $10. APPEALS; PREFERENCE OF.—AII actions or other legal pro-
ceedings and appeals therefrom or therein brought by or against
454 MiscELLangous Acts, RartLroaps GENERALLY.

a receiver of any of the insolvent corporations referred to in
this act, shall have a preference upon the calendars of:all courts
next in order to actions or proceedings brought by the people
of the state of New York.

§ 11. Repeat.—All acts or parts of acts inconsistent herewith
are hereby repealed.

L. 1883, CH. 383.

AN ACT entitled ‘“An act relating to certain contracts for the lease or conditional
sale of railroad equipment and rolling stock and providing for the record
thereof.”

SECTION 1. CONDITIONAL SALE, LEASE OR LOAN OF EQUIPMENT
AND ROLLING sTocK.—Whenever any railroad equipment and
rolling stock shall hereafter be sold, leased or loaned on the
condition that the title to the same, notwithstanding the posses-
sion and use of the same by the vendee, lessee or bailee, shall
remain in the vendor, lessor or bailor, until the terms of the
contract as to the payment of the installments, amounts or
rentals payable, or the performance of other obligations there-
under shall have been fully complied with, but also providing
that title thereto shall pass to the vendee, lessee or bailee on full
payment therefor as aforesaid, such contracts shall be invalid
as to any subsequent judgment creditor or any subsequent pur-
chaser for a valuable consideration without notice, unless

1. The same shall be evidenced by writing, duly acknowl-
edged before some person authorized by law to take acknowl-
edgments of deeds.

z, Such writing shall be recorded in the same book as mort-
gages are recorded, in the office of the clerk of the county in
which is located the principal office or place of business of such
vendee, lessee or bailee within the state, or in the office of the
register in counties where there is a register’s office.

3. NAME OF VENDOR, ETC., 1O BE ON LOCOMOTIVE OR CAR, ETC.—
Each locomotive or car so sold, leased or loaned shall have the
name of the vendor, lessor or bailor, or the assignee of such
vendor, lessor or bailor plainly marked upon both sides thereof,
followed by the word owner, lessor, bailor or assignee, as the
case may be.

§ 2. EFFECT ON CONTRACT HERETOFORE MADE.—This act shall
not be held to apply to or invalidate any contract heretofore
made of the character described in the first section, but the
CONDITIONAL SALES. = 455

same shall be and remain valid if recorded within ninety days
from the date hereof.

L. 1884, Cu. 285.
AN ACT to provide for the transfer of securities and property by bankrupt car-
porations to the receivers of such corporations.

SECTION 1. PROPERTY TO VEST IN RECEIVER; PROvISO.—In all
cases where receivers have been or shall be appointed for any
corporation of this state other than an insurance company, on~
application by the attorney-general, all property, real and per-
sonal, and all securities of every kind and nature belonging to
such corporation, no matter where located or by whom held,
shall be transferred to, vested in and held by such receiver; pro-
vided, however, that such transfer shall only be made when
directed by an order of the supreme court, due notice of the
application for such order having been made on the attorney-
general, and the custodian of the funds, securities or property.

L. 1884, Cu. 318.
AN ACT requiring contracts for the conditional sale of personal property on credit
to be filed in the town-clerks’ and other offices.

§ 2. WHERE TO BE FILED.—The instruments mentioned. in
the preceding section shall be filed in the several towns and
cities of this state, where the person to whom such prop-
erty is so contracted to be sold, if a resident of this state,
shall reside at the time of the execution thereof; and if not a
tesident then in the city or town where the property so con-
tracted to be sold shall be at the time of the execution of such
instrument. In the city of New York, such instrument shall be
filed in the office of the register of the city, and in the county
of Kings, in the office of the register of said county. In the
several cities of this state, other than the cities of New York
and Brooklyn, and in the several towns of this state in which a
county clerk’s office is kept. in such office; and in each of the
other towns in this state, in the office of the town clerk thereof.
If the conditional vendee be a railroad corporation the instru-
ment mentioned in the preceding section shall be filed in the
office of the clerk-of each county through which its railroad is
located, or, in counties where there is a register, in the office of
‘the register, and such filing shall be deemed sufficient for all
the purposes of this act. Such registers and clerks are hereby
required to file all such instruments aforesaid, presented to
456 MisceLLaneous Acts, RaiLtroaps GENERALLY.

them respectively for that purpose, and to indorse thereon the
time of receiving the same and shall deposit the same in their
respective offices, to be kept there for the inspection of all per-
sons interested.

(As am’d by L. 1885, ch. 488.)

§ 7. APPLICATION OF ACT.—, . . . This act shall not
apply to railroad equipment or rolling stock, sold, leased or loaned,
under a contract which has been or must be recorded pursuant
to the provisions of chapter three hundred and eighty-three of
the laws of eighteen hundred and eighty-three, entitled “An
act relating to certain contracts for the lease or conditional sale
of railroad equipment and rolling stock, and providing for the
record thereof,”’

(As am’d by L. 1888, ch. 225. The section was also am’d by
L. 1892, ch. 632.)
L. 1885, Cu. 283.

AN ACT to establish a forest commission, and to define its powers and duties
and for the preservation of forests.

§ 8. FOREST LANDS NOT TO BE LEASED OR TAKEN.—The lands now
or hereafter constituting the forest preserve shall be forever
kept as wild forest lands, and shall not be sold nor shall they be
leased or taken by any person or corporation, public or private,
except that whenever any of the lands now constituting the for-
est preserve, or which may hereafter become a part thereof,
owned by the state within any county specified in section seven
of the act hereby amended, shall consist of separate small par-
cels or tracts wholly detached from the main portions of the
forest preserve and bounded on every side by lands not owned
by the state, then it shall be lawful, and the comptroller shall
have power to sell and convey such separate tracts or parcels,
or the timber thereon, to such person or persons, corporation or
association as shall have offered the highest price therefor ; but
no such tracts or parcels of land, or the timber thereon, shall be
sold by the comptroller except upon the recommendation of the
forest commission or a majority thereof, together with the ad-
vice of the attorney-general in behalf of the state. Such sepa-
rate tracts or parcels of land may be exchanged by the comp-
troller for lands that lie adjoining the main tracks of the forest
preserve upon the recommendation of the forest commission or
a majority thereof, together with the advice of the attorney-
general on behalf of the state; but the values of said lands so
Forest Lanps—Fires. | 457

exchanged must be first appraised by three disinterested ap-
Ppraisers sworn to faithfully and fairly appraise the value of,
said lands, and the difference, if any, between the values of
such parcels so proposed to be exchanged shall be paid by the
party so exchanging with the state into the state treasury, but:
the state shall not pay the amount of any such difference. Two
of said appraisers shall be nominated and appointed by the
county judge of the county in which said lands proposed to be
exchanged are situate, or in case such lands are situate in two
counties, then the county judge of each county shall nominate
and appoint each one appraiser. The two appraisers so ap-
pointed shall seiect a third appraiser, and- they shall report to
the comptroller the result of said appraisal before such lands
shall be exchanged as aforesaid. The said appraisers so ap-

pointed shall receive the same compensation for their services

as is provided for appraisers of decedents’ estates, to be, paid by
the party so proposing to exchange lands with the state. It
Shall be the duty of the comptroller annually to report to. the
legislature all sales or exchanges of lands made under the pro-
visions of this act, together with all bids and the amounts re-
ceived therefor, and in said report shall be included the reports
of appraisers of lands exchanged in accordance with the forego-
ing provisions. The proceeds of all land so sold, or the receipts,
from all exchanges so made, shall be invested by the comp-
troller, with the approval of the forest commission, in the pur-
chase of forest land adjoining great blocks of the forest preserve
now owned by the state.

(As am’d by L. 1887, ch. 475.)

§ 25. RAILROAD COMPANIES TO BURN ALL INFLAMMABLE: MATERIAL.—
Every railroad company whose road passes through waste or
forest lands, or lands liable to be overrun by fires within this
state, shall twice in each year cut and burn off or remove from
its right of way all grass, brush or other inflammable material,
but under proper care, and at times when the fires thus set are
not liable to spread beyond control.

§ 26. LocoMOTIVES TO BE PROVIDED WITH ARRANGEMENT FOR PRE-
VENTING ESCAPE OF FIRE.—AII locomotives which shall be run
through forest lands shall be provided, within one year from
the date of this act, with approved and sufficient arrangements

- for preventing the escape of fire from. their furnaces or ash-pan,

and netting of steel or iron wire upon their smoke-stack to
458 MisceLtLaneous Acts, RAILROADS GENERALLY.

check the escape of sparks of fire. It shall be the duty of every
engineer and fireman employed upon a locomotive to see that
the appliances for the prevention of the escape of fire are in
use and applied, as far as it can be reasonably and possibly
done.

§ 27. FIRE NOT TO BE DEPOSITED ON TRACK IN THE VICINITY OF WOoD-
LANDS ; TRAINMEN TO REPORT; EXTINGUISHMENT.—No railroad com-
pany shall permit its employes to deposit fire-coals or ashes
upon their track in the immediate vicinity of woodlands or
lands liable to be overrun by fires, and in all cases where any
engineers, conductors or trainmen discover that fences along
the right of way, on woodlands adjacent to the railroad, are
burning, or in danger from fire, it shall be their duty to report
the same at their next stopping place, and the person in charge
of such station shall take prompt measure for extinguishing
such fires.

§ 28. COMPANIES TO PROVIDE MEN TO EXTINGUISH FIRES.—In sea-
sons of drought, and especially during the first dry time in the
spring after the snows have gone and before vegetation has re-
vived, railroad companies shall employ a sufficient additional
number of trackmen for the prompt extinguishment of fires.
And where a forest fire is raging near the line of their road they
shall concentrate such help and adopt such measures as shall
most effectually arrest their progress.

§$ 29. Fine—Any railroad company violating the provisions.
or requirements of this act shall be liable to a fine of $100 for
each offence.

L. 1885, Cu. 376.

AN ACT to provide for the payment of wages to employes, operatives and labor-
ers of domestic corporations, other than insurance and moneyed corporations,
of which a receiver shall be appointed.

SEcTION 1. WaGES OF EMPLOYES TO BE PREFERRED.—Where a re-
ceiver of a corporation cieated or organized under the laws of
this state and doing business therein, other than insurance and
moneyed corporations, shall be appointed, the wages of the em-
ployes, operatives and laborers thereof shall be preferred to:
every other debt or claim against any such corporation, and
shall be paid by the receiver from the moneys of such corpora-
tion which shall first come to his hands.
Corrorations DissoLvep By LEGISLATURE. 459

L. 1885, CH. 490.
AN ACY concerning tramps.

§ 4. PENALTY FOR ENTERING BUILDING WITHOUT CONSENT.—Any
tramp who shall enter any building against the will of the
owner or occupant thereof, under such circumstances as shall
not amount to burglary, or willfully or maliciously injure the
person or property of another, which injury under existing law
does not amount to a felony, or shall be found carrying any
firearms or other dangerous weapon, or burglar’s tools, or shall
threaten to do any injury to any person or to the real or per-
sonal property of another, when such offence is not now punish-
able by imprisonment in the state prison, shall be deemed
guilty of felony, and on conviction, shall be punished by im-
prisonment in the state prison at hard labor for not more than
three years.

L. 1886, CH. 310.

AN ACT to provide for the winding up of corporations which have been annulled
and dissolved by legislative enactment.

Notr.—This act appears to be held unconstitutional in People

uv, O'Brien, 111 N. Y., 1, 59-63.

SECTION 1. Duty OF ATTORNEY-GENERAL — Whenever any corpo-
ration organized under the laws of this state shall be annulled
and dissolved by an act of the legislature, it shall be the duty -
of the attorney-general immediately thereafter to bring a suit
to wind up and finally settle and adjust the affairs of such an-
nulled and dissolved corporation.

§ 2. Suit, WHERE TO BE BROUGHT.—Such suit shall be brought
in the supreme court in the name of the people of the state in
any county which the attorney-general may select. The presi-
dent, or vice president, or secretary, or treasurer of such dis-
solved corporation, who may have been in office at the time of
the dissolution thereof, shall be named, as such officer, as de-
fendant in such suit, and the summons and complaint therein
shall be served upon him. If, at the time of such annulment
and dissolution, there shall not be one of the above designated
officers of such corporation, then such suit shall be brought

against and the summons and complaint therein served upon

any one of the persons who were last acting as directors ot such

corporation.
460 MiscELLANeous Acts, RaILtroaps GENERALLY.

§ 3. CouRT TO APPOINT RECEIVER.—It shall be the duty of the
special term of the supreme court in the county designated in
such summons and complaint, or of any judge of said’ court who
resides in the judicial department in which such county is sit-
uated, upon the presentation of a certified copy of the act of the
legislature annulling and dissolving a corporation, and of the
summons and complaint founded thereon, immediately to ap-
point a receiver of the assets and property of such dissolved
corporation ; and the person so appointed shall be both the tem-
porary and permanent receiver thereof, and shall give a bond
with sureties to be approved by said court or ‘such judge thereof,
to the people of the state in the penalty of not less than $10,000,
conditioned for the faithful discharge of ‘his duties as such re-
ceiver, and for his due accounting for, and paying over all
moneys and property which may come to his hands as such '
receiver. No one of the officers, directors or stockholders of
such corporation shall be appointed such receiver thereof.

§ 4. R€cEIVER TO MAKE INVENTORY.—Such receiver shall, imme-
diately after his appointment and the approval of his bond,
cause an inventory of all the property of such dissolved corpora-
tion to be taken and filed in the office of the clerk of the county
in which such action is pending, and for the purpose of ascer-
taining the nature, extent and location of such property, the
said receiver shall have power to compel the attendance of wit-
nesses, as hereinafter provided, and all evidence taken by or
before said receiver in relation to such property shall be filed
by him in the office of such county clerk.

$5. NOTICE TO CREDITORS; POWERS AND DUTIES; CLAIMS,—The
said receiver shall, immediately after his appointment, publish
in two newspapers to be designated by said court, or such judge
thereof, daily for one week, and for such longer time, not ex-
ceeding one month, as the said court or such judge thereof may
by order designate, a notice to all creditors of such dissolved
corporation to present their claims and demands against, and all
evidences of indebtedness of such dissolved corporation, to such
receiver at atime and place to be designated in such notice.
Such receiver is hereby authorized to examine on oath any of
such creditors, or claimants, or other witnesses, as to any and
all matters pertaining to any claim or demand or evidence of
indebtedness so presented. At the expiration of ten days from
the date specified in such notice, or within such further time as
may be allowed by said court or such judge thereof, the said
Corrorations DissoLvepD By LEGISLATURE. 461

receiver shall make a list of all the claims presented ‘to or
proved before him, in which list he shall specify the amount,
origin and true consideration of each claim so presented to or
_ proved before him, and the name’‘of the person in whose behalf
the same is presented or proved, and the date when such claim-
ant became the true owner thereof. Such list when so com-
pleted shall be verified by such receiver, and shall thereupon be
filed, together with such evidence as may have been ‘taken by
him, in the office of the said county clerk. The said receiver
shall, immediately after such filing, publish a notice daily for
fourteen days in two newspapers to be designated by said court,
or such judge thereof, stating that such list will be presented
to such court, or to a judge thereof, residing in such county, on
a day and at a place to be designated in such notice, and the
said court or such judge thereof will then and there be asked
for an order directing the sale at public auction of all the prop-
erty specified in such inventory. Any creditor or stockholder
may appear and be heard at such time and place. It shall be
_the.duty of said court, or of such judge thereof, to whom such
‘list shall be presented, to examine the same together with such

-evidence as the receiver shall have taken, and to reject all
claims, demands and evidences of indebtedness which were not

degally incurred or created by said corporation, or which were
in excess of its powers, or which are for any reason shown to be
illegal ; and no claim or demand shall be allowed for any greater
amount than the money value of the consideration therefor,
unless the said court or judge shall find and decide from the
evidence taken by and before the receiver, that the person pro-
fessing to own such claim does in truth own the same by reason
of having taken a negotiable instrument or paper before the act
dissolving and annulling the corporation alleged to be bound
by such instrument or paper, and also before such instrument
or paper was by its terms due, and that the same was taken for
value paid and parted with in good faith before said act of dis-
solution and without knowledge or notice of any defect, want or
deficiency of previous consideration, or other equity, off-set, or
defence originally attaching to such instrument or paper, or to
the claim or demand upon which the same are founded. Such
éxamination and rejection shall be made by such court or such
judge thereof, and not by any referee. :

§ 6. WHEN CLAIM OF CREDITOR IS DEBARRED; APPEAL; SALE; AL-
LOWANCE ; DISTRIBUTION.—AI1 creditors whose claims shall not

\
‘462 MusceELLaneous Acts, RainrRoaps GENERALLY,

have been presented as above provided shall be debat
from participating in the avails of the sale of the prope
described in said inventory. Any creditor whose cl.
may have been rejected, and who shall have appealed, 1
apply to said court or such judge thereof for an order |
a pro rata amount of the avails of such sale which would h
appertained to the claim of such creditor, had not the same b
rejected, may be retained in court to abide the result of his
peal, and said court, or such judge thereof, shall have discret
to grantthe same. Any claimant feeling aggrieved by such
jection may appeal therefrom to the general. term and to
court of appeals, in the manner now provided by law fors
appeals from orders in civil actions, but neither of. such app:
shall stay the proceedings of such receiver, or court, or ju
thereof, or a sale of such property as herein provided for. '
amount of all claims and demands so rejected by said cour
such judge shall be deducted from the total amount of cla
and demands so filed by the said receiver, and an entry of s
rejection shall be made upon said list by said court ors
judge, and thereupon the said court or such judge shall
order, reciting the proceedings direct the immcdiate sale
said receiver, at public auction,at atime and place and in
manner, and after such notice as may be provided in said or
of all the property in said inventory specified, to such per:
firm or corporation as shall bid the highest sum or amo
therefor. The receiver shall report to said court or such ju
thereof, the name of the highest bidder, the amount bid,
thereupon said court or such judge thereof shall by order fo
with direct the said receiver by proper written instrumen
convey and transfer all of the property described in said in\
tory, and offered for sale at said auction, to said highest bid
who on receiving the same shall pay to the receiver the :
bid. The said court or such judge thereof, shall allow to
receiver two per cent, upon the whole amount received by |
from the sale of the property described in said inventory for
compensation as such receiver, and also his disbursements
. cluding witness’ fees, and the service of subpoenas, and to
attorney general, and to such other counsel as the receiver 1
find it necessary to employ, a reasonable counsel fee. The1
due of the amount in the hands of the receiver shall be by
distributed among the owners of the claims in said list, wl
have been allowed subject to the deductions above pro videc
in case of an appeal, pro rata, or in full if such residue shal
f

CorporaTIons DISSOLVED BY LEGISLATURE. 46%

sufficient therefor, and the receipts of such owners therefor

shall be taken upon such list of claims. The balance of such
residue, if any, shall be distributed among the lawful stockhold-
ers of such corporation in proportion to their interest therein.

§ 7. PROCEEDINGS NOT TO BE sTAYED.—No issue raised by

.answer, or demurrer, or otherwise to the complaint hereinbe-

fore provided for shall stay the proceedings of the receiver, or
court or a judge thereof.

§ 8. DiIscHARGE OF RECEIVER.—The said receiver after such
payment may apply to said court, or a judge thereof, for his
final discharge, and if it shall appear that the said receiver has
in all things fulfilled his duty in the premises, the said court or.
judge shall grant such final discharge, and said receiver, until
so discharged, may as such receiver sue for and collect all debts
due, and demands owing to such corporation.

§ 9. SUBPCENAS ; RECEIVER MAY ADMINISTER OATHS ; FALSE SWEARING, |
PERJURY.—It shall be the duty of the clerk of the county in which
such suit is brought, to issue, upon the request of the receiver,
subpoenas to compel the attendance of witnesses to enabie him
to ascertain the nature, extent and location of the property of
said corporation, and to give evidence concerning any claim
which may be presented by any creditor against the estate of
such corporation, which subpcenas shall be served in like man-
ner as in civil actions, and the fees of the witness shall be the
Same as are now established by lawin such actions. The re-
ceiver shall have full power and authority to administer oaths
to all such witnesses and to any creditor of such dissolved cor-
poration, and to examine them concerning the property of such
dissolved corporation, and as to the claims presented against it.
Disobedience to such subpoenas shall be a contempt of court,
and shall be punished in like manner as other contempts of
court are now punishable. Willful false swearing by any wit-
ness or creditor in any such examination shall be deemed per-
jury, and shall be punishable as such in like manner as if com-
mitted by a witness on a trial of a civil action.

§ 10. INJUNCTIONS AND SUITS AGAINST RECEIVERS; APPEAL TO THE
COURT OF APPEALS —All applications for leave to sue such receiver
and all applications for injunctions to restrain his proceedings,
shall be made only to the supreme court in the county in which
such action was brought, and shall not be made to any other
-464 MisceELLangous Acts, RaILroaps GENERALLY.

‘court, or to the supreme court in any other county, and shall
not be granted except upon eight days’ notice to the attorney
‘general of the time and place of making such application. In
any action hereafter brought or now pending by the attorney
general, to close up, determine or settle the affairs of any cor-
poration dissolved by legislative enactment, the judgment or
determination of the supreme court at general term may be re-
viewed upon appeal to the court of appeals, as now provided by
law, whether the judgment rendered in the case may be inter-
locutory or final.

(As am’d by L. 1887, ch. 601.)

§ 11. RepeaL, ETC.—This act shall take effect immediately,
and all actsand partsof acts inconsistent therewith are hereby

repealed.
L. 1886, CH. 329.

AN ACT to prevent the spread of contagious and infectious diseases.

SECTION 1. HERMETICALLY SEALED CASKET.—Whenever the body
of any deceased person is to be transported over the railroads of
this state, or upon any passenger steamboat plying upon the
rivers of this state, the board of health to which application is
made for a transit permit for the transportation of such body
shall, if the physician’s certificate, or the permit accompanying
‘such body, state the cause of death to have been a contagious
or infectious disease, require that such body be inclosed in an
hermetically sealed casket of metal or other indestructible
material.

L. 1887, CH. 401.

AN AUT in relation to milk cans.

§ x1., RIGHTS OF RAILROAD SUPERINTENDENTS.—The owner or
owners, dealer or dealers, shipper or shippers, and the several
superintendents of the various railroad companies and the
branches and connections thereof, and steamboat lines operating
their lines, or any portion thereof in the state of New York, or
elsewhere, shall have power to collect, gather and take into pos-
session from any person or persons within the state of New
York, or wherever found in said state, any such milk or cream
can or cans, and shall have power to appoint an agent there-
for.

§ 12. EVIDENCE UF APPOINTMENT OF AGENT.—The certificate of
any superintendent of any of the railroad companies or steam-
Extra FarE—Caso PayMENT oF WAGES. 465

boat lines mentioned in this act, or other person or persons
authorized thereto, in this act, appointing an agent to collect
such can or cans duly acknowledged before a notary public,
shall be presumptive evidence of the authority of such agent.

§ 13. Powers.—Such agent shall have full power to collect,
-gather and take into his possession from any person or persons,
or wherever found, any such milk or cream can or cans, and in
case of resistance may call to his aid the assistance of any con-
stable or police officer, who shall assist him to take possession
of such can or cans.

L. 1889, Cu. 38.
AN ACT to regulate the payment of fares upon railroads.

SECTION 1. EXTRA FARB; REBATE TICKET.—It shall be lawful for
any company owning or operating 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 the car in which he or she may have taken passage, ex-
-cept where such passage is wholly within the limits of any in-
corporated city in this state, provided, however, that it shall be
the duty of such company to give to any passenger paying such
excess, a receipt or other evidence of such payment, and which
shall legibly state that it entitles the holder thereof to have
such excess charge refunded, upon the delivery of the same at
any ticket office of said company, upon the line of their rail-
road, and said company shall refund ‘the same upon demand;
and provided further that this act shall not apply to any pas-
senger taking passage from a station or stopping place when
tickets cannot be purchased during half an hour previous to
the schedule time for the departure of said train on which such
passenger takes passage.

Laws 1889, Cu, 381.
AN ACT to provide for the cash payment of wages by corporations.

SECTION 1. WAGES PAYABLE ONLY IN CAsH.—Every manufactur-
ing, mining or quarrying, mercantile, railroad, street railway,
canal, steamboat, telegraph and telephone corporation, and
every incorporated express company, and water company not.
municipal, shall pay to each and every employe engaged in its.
business the wages earned by such employe in cash ; and it shall)
not be.lawful for any of the above-named companies or corpo~
466 Miscecitaneous Acts, RaiLroaps GENERALLY.

rations to pay their employes in their own scrip or that of others
commonly known as store money orders.

§ 2. PENALTY FOR VIOLATION oF AcT.—Any corporation violating
any of the provisions of this act shall be punished by a fine not
exceeding fifty, and not less than ten dollars, on each complaint
on which it is convicted, provided complaint for such violation
is made within thirty days from the date thereof.

§ 3. ACT, WHEN TO GO INTO OPERATION.—This act shall take
effect upon the first day of July, one thousand eight hundred
and eighty-nine.

L. 1890, Cu. 555.

AN ACT to provide for the improvement and maintenance of the public roads in
certain counties as county roads.

§7. CONSTRUCTION OF RAILROADS ON COUNTY ROADS.—No horse
railway or electric or other railway shall be laid, constructed
or operated on said county roads, unless, in addition to the re-
quirements of existing laws, the same shall be authorized by a
two-third vote of the board of supervisors and unless the same
shall be constructed with a flat or grooved rail, and in case of
horse railways paved between the tracks in the manner pre-
scribed by the board of supervisors in the resolution authoriz-
ing the same, and the same constantly maintained in good order
and condition by said railroad company, and the railroad or cor-
poration constructing the same shall agree thereto, and it shall
be the duty of the said board of supervisors to require from said
railroad or corporation, or other person, a bond with sufficient
sureties as a guarantee, and conditioned for the performance of
their agreement, and the board of supervisors may, from time
to time, require such bond to be renewed in case the sureties or
any of them, in its judgment, shall become insufficient.

L. 1890, Cu. 566. (THe TRANSPORATION Corporations Law.)

§ 10. FORMATION OF NAVIGATION CORPORATIONS; RAILROADS NOT
TO HOLD STOCK IN.—Seven or more persons may become a corpo-
ration, for the purpose of building for their own use, equipping,
furnishing, fitting, purchasing, chartering, navigating or own-
ing steam, sail or other boats, ships, vessels or other property
to be used in any lawful business, trade, commerce or naviga-
tion upon the oceans, or any seas, sounds, lakes or rivers, and
for the carriage, transportation or storing of lading, freight,
TRANSPORTATION CorporaTions—HIGHWays. 467

mails, property or passengers thereon by making af
No railroad corporation shall have, own or hold any stock in
any such corporation.

§ 43. RaltLRoaD, TURNPIKE, PLANK-ROAD AND HIGHWAY CROSSINGS.—
Whenever any line of pipe of any such corporation shall neces-
sarily cross any railroad, . . . such line of pipe shall be
made to cross under such railroad, . . . and with the least
injury thereto practicable, and unless the right to cross the
same shall be acquired by agreement, compensation shall be as-

-certained and made to the owners thereof . . . in the man-
ner prescribed in the condemnation law, but no exclusive title
or use shall be so acquired as against anyrailroad . . . cor-
poration, . . . but the rights acquired shall be a common
use of the lands in such manner as to be of the least practical
injury tosuchrailroad, . . . consistent with the use thereof
by such pipe-line corporation, nor shall any such corporation
take or use any lands, fixtures or erections of any railroad cor-
poration, or have the right to acquire by condemnation the title
or use, or right to run along or upon the lands of any such-cor-
poration, except for the purpose of directly crossing the same
when necessary.

L. 1890, Cu. 568. (Tue Hicuway Law.)

§ 15. ACTIONS FOR INJURIES TO HIGHWAYS.—The commissioners
of highways may bring an action, in the name of the town,
against any person or corporation, to sustain the rights of the
public in and to any highway in the town, and to enforce the
performance of any duty enjoined upon any person or corpora-
tion in relation thereto, and to recover any damages sustained
or suffered or expenses incurred by such town, in consequence
of any act or omission of any such person or corporation, in vio-

_lation of any law or contract in relation to such highway.

L. 1855, ch. 255. ;

DEcIsions UNDER L. 1855, Cu. 255.

The civil remedy provided by this statute does not supersede
any common law remedy. The remedy by mandamus is not
inconsistent with that by indictment. People v. N. V.C.& H.
R.R. R. Co., 74 N. ¥., 302; Moore v. Brooklyn City R. R. Co., 108
NV. Y., 98. If the highway officers refuse to intervene for the
protection of the owner of real estate on the highway, when re-
quested so to do, he may bring an action in equity for the relief
468 MIscELLANEouS Acts, RaILRoaDs GENERALLY,

sought, making the railroad and the highway commissioners de-
fendants. Overton v. Village of Olean, 37 Hun, 47. See Barse v.
Hlerk.,, N.& P.N.G. R. R. Co., 13 St. Rep., 275. An action can
not be maintained under this statute to prevent a change of ter-
minus and the abandonment by a company of a portion of its
road. Moore v. Brooklyn City R. R. Co., 108 N.Y.,98 See Hatch
v. Syracuse, Binghamton & N.Y. R. R. Co., 50 Hun, 64.

L. 1891, Cu. 267.

AN ACT to authorize change of gauge on railroads and to provide for an increase
of floating and bonded indebtedness.

SECTION 1. CHANGE OF GAUGE; BONDS.—Any railroad com-
pany incorporated under chapter one hundred and forty of the
laws of eighteen hundred and fifty, entitled “ An act to author-
ize the formation of railroad corporations and to regulate the
same,” and acts amendatory thereof and supplementary thereto,
may change the gauge of its road on consent of the board of
railroad commissioners and approval of the stockholders of said
railroad company owning three-fourths in amount of the capital
stock, said approval of said stockholders to be made at a special
meeting of the stockholders of said company called for that
purpose ; and upon like consent of said board of railroad com-
missioners, and upon like approval of the stockholders of said
railroad company owning three-fourths in amount of the said
capital stock of said company, the floating and bonded
indebtedness of said railroad company may be increased to an
amount necessary to make such change of gauge and to provide
for the operating expenses of said railroad, notwithstanding re-
strictions or limitations contained in the original certificate of
incorporation of said railroad company.

L. 1891, Cu. 360.

AN ACT to confer upon the board of railroad commissioners of the state of New
York authority to compel the lighting and ventilation of all tunnels within this
state which are used by steam railroads.

SECTION 1. VENTILATION OF TUNNELS.—The board of railroad
commissioners of the state of New York are here authorized,
empowered and given full and complete authority to require
and compel all tunnels used or to be used by railroads operated
by steam in this state to be properly ventilated, in such manner
and by such means and mechanical appliances as said board of
railroad commissioners, or a majority of the same, may direct.
CHANGE oF GauGE—LiGuHTING, &c., oF TUNNELS. 469

§2. Licurinc.—The board of railroad commissioners of this
state are also hereby authorized, empowered and given full and
complete authority to require and compel all tunnels used, or to
be used by railroads operated by steam in this state, to be prop-
erly lighted by electricity or otherwise, or by such means or in
such manner as said board of railroad commissioners, or a
majority of the same, may direct.

§ 3. Noricr.—Whenever said board of railroad commission-
ers of this state, or a majority thereof, shall.cause to be person-
ally served upon.any railroad corporation controlling any. tun-
nel, or part of a tunnel, in this state for the purpose of operat-
ing a railroad or moving, hauling or propelling cars therein by
‘steam by delivering a copy personally to the president, general
manager or any director of said corporation of a notice or order,
Signed by a majority of said board of railroad commissioners,
stating and specifying the structures to be erected, the manner,
means, mechanical appliance and apparatus to be used in light-
ing or ventilating any tunnel or tunnels used by said corpora-
tion for the purpose of moving, hauling or propelling cars by
steam therein as aforesaid, said corporation shall, within thirty
days from and after the service of said notice or order as afore-
said, cause said tunnel or tunnels so used by it as aforesaid, to
be lighted or ventilated, or both, in the manner and by the
means and use of the mechanical apparatus and appliances
specified and pointed out in said notice or order.

$4. Manpamus.—After the expiration of thirty days from
the service of said order or notice specified in the preceding
section, as therein directed, if said corporation shall not have
fully complied with the provisions and requirements of said
notice or order as aforesaid and as therein directed and required,
said board of railroad commissioners, or a majority of said
board, may apply to the supreme court of this state for a writ
of mandamus to compel said corporation or corporations so
neglecting or refusing to obey and comply with the provisions
of said order or notice to comply with and obey the provisions
and requirements of said notice or order, and said court shall
have full power and authority to hear and determine said matter,
and, after giving the corporation or corporations proceeded
against an opportunity to be heard in its or their defence, to
compel said corporation or corporations so proceeded against to
obey said order or notice, and forthwith comply with and carry
470 MisceL.Laneous Acts, RaILroaps GENERALLY.

§ 5. VIOLATION A MISDEMEANOR; INDICTMENT; FINE.—Every cor-
poration violating any of the provisions of this act shall be
guilty of a misdemeanor, and may be indicted therefor, and may
be compelled to appear and plead to an indictment therefor in
the person of its president, sécretary, treasurer or any director
thereof, and a bench warrant may issue out of any competent
court to compel such attendance and pleading, and, upon con-
viction thereof, punished by a fine of one thousand dollars, and
an additional fine of five hundred dollars a day for each and
every day or part of a day after thirty days from the due service
of said notice or order that said corporation shall refuse or
neglect to obey and carry out the requirements and provisions
of the same, and duly sentenced to pay the same.

§ 6. EnForcED as A JUDGMENT.—It shall be the duty of the
district attorney prosecuting any corporation for a violation of
any of the provisions of this act, that shall be convicted thereof
and sentenced to pay a fine therefor, tu cause a judgment-roll
to be made up, consisting of the indictment orders and sentence
of the court and a formal judgment, to be prepared by him,
which judgment shall be duly signed by the clerk of the county
in which said trial took place; said judgment-roll shall be filed
by said county clerk and said judgment shall be duly recorded
in the book of judgments in said county and duly entered and
docketed by said county clerk in said county the sameas if said
judgment had been obtained in a civil action, and said judg-
ment so duly entered and docketed shall become and be a
lien upon all of the real estate of said corporation against which
the same is obtained, and the collection thereof may be enforced
by execution to be issued and signed by the district attorney of
the county where the trial of said indictment took place, in the
same manner and to the same extent as executions are collected
in civil action.

$7. DeviCES ABOVE GROUND IN CERTAIN CiITIEs.—In cities in
this state having a population of one million inhabitants or
over, where tunnels are or may hereafter be operated or con-
trolled by any railroad corporation such portions of any mechan-
ical or other devices or appliances as may be required under the
provisions of this act to be constructed on or above the surface
of any streets, avenues or other places under which such tunnels
may be built, shall be subject as to form, material and construc-
tion, to the approval of the local authorities of such cities, ex-
TunNELsS—TueE Game Law. 471

cept that in the city of New York such approval shall be by a

‘majority vote of the mayor, the comptroller, the commissioner
of public works and the president of the department of public
parks of said city.

L. 1892, Cu. 425.

AN ACT to authorize the state engineer and surveyor to file certain reports with
the board of railroad commissioners.

SECTION 1. STATE ENGINEER TO FILE REPORTS WITH RAILROAD COM-
MISSIONERS.—The state engineer and surveyor is hereby author-
ized and directed, within ten days after the passage of this act,
to file with the board of railroad commissioners all original re-
ports from railroad corporations now in his custody and filed in
his office in pursuance of section thirty-one of chapter one hun-
dred and forty of the laws of eighteen hundred and fifty.

L. 1892, Cu. 488. (THE Game Law.)

§ 46. TRansportaTion.—Deer or venison killed in this state
shall not be transported to any point within the state from or
through any of the counties thereof or possessed for that pur-
pose, except as follows: One carcass or a part thereof may be
transported from the county where killed when accompanied by
the owner. -The possession of deer or venison by common car-
riers, unaccompanied by. the owner, is a violation of this sec-
tion. This section does not apply to the head and feet or skin
of deer severed from the body.

§ 76. WoopcocK AND GROUSE; WHEN NOT TO BE TRANSPORTED.—
Woodcock, ruffed grouse, commonly known as partridge, or any
member of the grouse family, or quail killed in this state, shall
not be transported to any point in this state, from any of the
counties thereof, or possessed for that purpose, except that such
birds may be transported from the county where killed, when
accompanied by the owner thereof. Possession of the birds
named by a common carrier, unaccompanied by the owner, is a
violation of this section, unless it shall be proved by such com-
mon carrier that the birds were killed out of the state.

§ 109. ,CERTAIN FISH NOT TO BE TRANSPORTED.—Trout of any
kind, salmon trout or land-locked salmon, caught in any of the
inland waters of this state,shall not be transported to any point
472 MisceLLaneous Acts, RAILROADS GENERALLY.

within the state from any of the counties thereof, or possessed
for that purpose, except when accompanied by the owner. Pos.
session thereof by a common carrier, unaccompanied by the
owner, is a violation of this section.

L. 1892, Cu. 491. (THe Excise Law.)

§ 30. LicENSES BY COMPTROLLER TO COMMON CARRIERS.—The
comptroller is hereby authorized to grant licenses to persons
associations or corporations engaged in the transportation of
passengers by cars, steamboats or vessels, within the limits of
this state, permitting them to sell strong or spirituous liquors,
wines, ale or beer, to such passengers while in transit, without
license by any board of excise. Every license so granted by
the comptroller shall expire at the end of one year from the
date of its issuance. It shall be granted upon such terms, con-
ditions and restrictions as such comptroller may deem proper,
and upon the payment of such sum as he shall fix, not less than
thirty dollars for each and every car, boat or vessel in which such
sales are to be made. The moneys received by him for licenses
shall be paid into the treasury of the state. Any person or cor-
poration who shall sell, or permit to be sold, or offer or expose
for sale, any strong or spirituous liquors, wines, ale or beer,
upon any car, steamboat or vessel, without having first obtained
a license therefor as herein provided, shall forfeit the sum of
fifty dollars for each offence, to be sued for and recovered in an
action in the name of the people, brought by the attorney-gen-
eral; and the person so offending shall be guilty of a misde-
meanor.

§ 39. EMPLOYMENT OF PERSONS ADDICTED TO INTOXICATION BY
COMMON CARRIERS.—Any person, association or corporation en-
gaged in the business of conveying passengers and property for
hire who shall employ in the conduct of such business any per-
son who habitually indulges in the intemperate use of intox-
icating drinks, after notice that such person has been intox-
icated while in the active service of such person, association or
corporation as an engineer, fireman, conductor, switch tender,
commander, pilot, mate, foreman or in any other like capacity
so that by his neglect of duty the safety and security of the
life, person or property so conveyed might be imperilled, shall
be guilty of a misdemeanor.
Tue Excise Law—Emp Loves. 473

L. 1892, Cu. 711.
AN ACT to provide ton and limit the hours of service on railroads.

SECTION 1. REST 10 BE ALLOWED.—No person, persons or cor-
poration operating a line of railroad of thirty miles in length or
over, in whole or in part, within this state, shall permit or re-
quire any conductor, engineer, fireman or any. trainman who
has worked in any capacity for twenty-four hours, to again go
on duty or perform any kind of work until he has had at least |’
eight hours’ rest.

§ 2. Hours or Lasor.—Ten hours’ labor performed within
twelve consecutive hours shall constitute a day’s labor in the
operation of all steam surface and elevated railroads owned and
perated within this state, provided that this provision shall
not affect the mileage system now in operation, or that may
hereafter be placed im operation, or trips of regular scheduled .
trains when completed within a less number of hours, and it is
further provided that the provisions of this act shall not apply
to extra hours of labor performed by any conductor, engineer,
fireman or trainman in cases of unavoidable accident or delay
caused by such accident.

See L. 1887, ch. 529.

§ 3. COMPENSATION FOR EXTRA SERVICE.—For every hour in
excess of said ten hours’ labor that any conductor, engineer,
fireman or any trainman of any. railroad company or corpora-
‘tion, owned or operated within this state, who works under the
‘direction of a superior, or at the request of such company or
‘corporation, shall be required or permitted to work, he shall re-
ceive comparative compensation for said extra service in addi-
tion to his daily compensation. ‘

§ 4. VIOLATION A MIsDEMEANOR.—Any railroad company or
‘corporation, or any officer, agent or employe of any such com-
pany or corporation, violating or permitting the violation of any
of the provisions of this act, shall be guilty of a misdemeanor,
and on conviction shall be punished bya fine of five hundred
dollars for each offence.
MISCELLANEOUS ACTS

RELATING TO STREET, CABLE AND “RAPID TRANSIT”
RAILROADS EXCLUSIVELY, CHRONOLOG-
ICALLY ARRANGED.

L. 1872, Cu. 590.

AN ACT to regulate processions and parades in the cities of the state of New

York. :

SECTION 1. No PROCESSION OR PARADE TO INTERFERE WITH FREE
PASSAGE OF CARS UPON STREET RAIL WAYS.—NoO procession or parade
shall use any street upon the surface of which isa railway track |
or tracks by marching upon the said track or tracks, and a free
passage of cars upon railway tracks shall not be interfered with
by the formation, halt or march of any such procession or pa-
rade, or of the persons composing it. Whenever any procession
shall find it necessary to march across a railway track, the por-
tion of said procession which in so marching is likely to stop
the passage of any car or cars upon said track, shall come to a.
halt in order to permit said car to proceed.

§4. Penatty.—Every person wilfully violating any provision
of this act shall be guilty of a misdemeanor, punishable with a.
fine not exceeding twenty dollars, or imprisonment not exceed-
ing ten days, or both at the discretion.of the court.

L. 1887, Cu. 529.
AN ACT to regulate the hours of labor on the street surface and elevated rail-
roads, &c.

SECTION 1. Hours OF LABOR ON STREET SURFACE AND ELEVATED
RAILROADS.—Ten hours’ labor to be performed within twelve
consecutive hours, with reasonable time for meals, shall consti-
tute a day’s labor in the operation of all street surface and ele-
vated railroads owned or operated by corporations incorporated
under the laws of this state, whose main line of travel, or whose
routes lie principally within the corporate limits of cities of
more than 100,000 inhabitants, whatever motive power may be
used in the operation of such railroads.

See L. 1886, ch. rsr.
A street railroad does not forfeit its charter by requiring its

employes to work more than ten hours a day in violation of this
provision. People v. Atlantic Ave. R. R. Co., 125 N. Y., 5173.
Hours or Lason—WEeEKLY Payment or WAGES. 475;

§ 2. VIOLATION oF ACTA MISDEMEANOR.—It shall be a misde-
meanor for any officer or agent of any such corporation to exact:
from any of its employes more than ten hours’ labor, the same
‘ to be performed within twelve consecutive hours, with not less
than one-half hour for dinner, constituting a day; provided,
however, that in cases of accident or unavoidable delay, extra
labor may be permitted for extra compensation.

§ 3. How appricaste.—This act shall not affect contracts now
in force, nor apply to existing corporations whose charters are-
not subject to alteration, modification or repeal.

§ 4. Repgzat.—All acts inconsistent with this act are hereby
repealed.

L. 1890, Cu. 388.
AN ACT to provide for the weekly payment of wages by corporations.

SECTION 1. WEEKLY PAYMENT OF WAGES REQUIRED.—Every man-
ufacturing, mining or quarrying, lumbering, mercantile, rail-
road, surface, street, electric and elevated railway (except steam
surface railroads), steamboat, telegraph, telephone and munici-
pal corporation, and every incorporated express company and
water company shall pay weekly, each and every employe, en--
gaged in its business, the wages earned by such employe, to
‘within six days of the date of such payment, provided, how--
ever, that if at any time of payment any employe shall be absent
from his regular place of labor, he shall be entitled to said pay-
ment at any time thereafter upon demand.

§ 2. PENALTY FOR VIOLATION; PENALTIES, HOW RECOVERED; ASSIGN-
MENT OF WAGES, WHEN FORBIDDEN.—Any corporation violating”
any of the provisions of this act shall be liable to a penalty not
exceeding fifty dollars and not less than ten dollars for each
violation, to be paid to the people of the state and which may be
recovered in a civil action; provided an action for such violation
is commenced within thirty days from the date thereof. ~The
factory. inspectors of this state, their assistants or deputies may ©
bring an action in the name of the people of the state as plain-
tiff against any corporation which neglects to comply with the
provisions of this act for a period of two weeks, after having”
been notified in writing by such inspectors, assistants or depu-
ties, that such action will be brought. On the trial of such
action, such corporation shall not be allowed to set up any de-
fence for a failure to pay weekly any employe engaged in its:
476 MisceLLtaneous Acts, STREET, ETC., RAILROADs.
business the wages earned by such employe to within six days
of the date of such payment other than a valid assignment of
.Such wages or a valid set-off against the same, or the absence of
such employe from his regular place of labor at the time of pay-
ment, or an actual tender to such employe at the time of pay-
ment of the wages so earned by him, or a breach of contract by
such employe, or a denial of the employment. No assignment
-of future wages, payable weekly, under the provisions of this
act shall be valid if made to the corporation from whom such
wages are to become due, or to any person on behalf of such
corporation, or if made or procured to be made to any person
for the purpose of relieving such corporation from the obligation
to pay weekly under the provisions of this act. Nor shall any
-of said corporations require any agreement from any employe
to accept wages at other periods than as provided in section one
-of this act as a condition of-employment.

§ 3. PROCEEDINGS TO ENFORCE AcT.—The provisions of section*
‘two hundred and sixty-three and three hundred and eighty-
four of the code of civil procedure shall apply to and govern
-any proceedings brought to enforce the provisions of this act,
.and it is hereby made the duty of the attorney-general of this
state to appear in behalf of such proceedings brought hereunder

by the factory inspectors of this state, their assistants or
deputies.

$4. This act shall take effect on the first day of July, eigh-
teen hundred and ninety.

L. 1890, Cu. 566. (The Transportation Corporations Law.)

§ 127. PLANK-ROAD AND TURNPIKE COMPANIES MAY LAY DOWN
RAILS—Any plank-road or turnpike corporation may lay iron
tails on its road suitable for the use of wagons and vehicles
drawn by horses or animals over its road, but no other motive
power shall be used thereon.

L. 1879, ch. 214, §§ 1 and 2.

L. 1891, Cu. 4.
AN ACT to provide for rapid transit railways in cities of over one million in-
habitants.

PRELIMINARY Note.—This statute is similar in arrangement to
Article 5 of the Railroad Law under which full annotations are

made. Reference may be made to it for former statutes and
decisions.

*So in the original.
Rapip Transit in Larce CITIES. 477

_ The.fact that this act contains no provision to secure abutting
property owners against consequential damages does not affect
the validity of the act. The legislature has the right to appro-
priate whatever portion of the soil of the street is needed
for its improvement for publicuse. i re Board of Rap. Tr. Com.,
19 N. Y. Supp., 561; 47 St. Rep. 347.

SECTION 1, COMMISSIONERS OF RAPID TRANSIT; APPOINTMENTS; VA-
ccaNnciEs.—In cities having over one million of inhabitants,
according to the last preceding national or state census, where
rapid transit commissioners shall have been appointed since the
first day of December, eighteen hundred and ninety, under the:
provisions of chapter six hundred and six of the laws of
eighteen hundred and seventy-five, and the amendments there-
to, by the mayor of any such city, said commissioners shall be-
come commissioners of rapid transit under the provisions of
this act. If no such commissioners have been appointed since
the first day of December, eighteen hundred and ninety, and.
the date of the passage of this act in any city in this state con-
taining a population of over one million inhabitants, according
to the last preceding national or state census, then the mayor
of such city may at any time after the passage of this act, ap-
point five persons who shall be residents of such city, who shall
be commissioners of rapid transit under the provisions of this-
act. The commissioners thus appointed are hereby constituted
a board of rapid transit railroad commissioners, in and for the:
city in which they are appointed. ‘They shall have and exer- :
cise the specific authority and powers hereinafter conferred,.
and also such other and necessary powers as may be requisite:
to the efficient performance of the duties imposed upon the said:
board by this act. If a vacancy shall at any time occur in any
such board of rapid transit railroad commissioners, such va-
cancy shall be filled by the mayor of the city in which said
board exists, by the appointment of a citizen of said city, who
shall belong to the same political party as did the commissioner
whom such appointee succeeds.

See R. R. Laws, § § 120, 135.

§ 2. Oat or commissioners.—Within twenty days after the
passage of this act, in the case of commissioners who become
such by its terms, and within twenty days after their appoint-
ment in the case of commissioners appointed under its pro-
visions, each of the said commissioners shall take and subscribe
an oath faithfully to perform the duties of his office, which oath
478  MiscELLANgEous Acts, STREET, ETC., RAILROADS,

4

‘shall be filed in the office of the clerk of the county within
which said board is appointed.

See R. R. Law, § 121.

§ 3. FIRST MEETING OF BOARD ; BY-LAWS; RULES; QUORUM; REC-
ORD OF PROCEEDINGS.—Within thirty days after the passage of
this act, in the case of commissioners who become such by its
terms, and within twenty days after their appointment, in the
case of commissioners appointed under its provisions, the said
commissioners shall meet and organize as a board. The board
when so organized, may frame and adopt by-laws not incon-
sistent with this act, and establish suitable rules and regulations
for the proper exercise of the powers and duties hereby con-
ferred and imposed, and may from time to time amend the
same. Four members of the board shall constitute a quorum
for the transaction of business, but a less number may adjourn
-meetings. he 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 reasonable times.

See R. R. Law, § 122.

§4. DETERMINATION OF NECESSITY OF RAILROAD ; GENERAL PLANS
AND LOCATION ; CONSENTS OF PROPERTY OWNERS ; PARKS AND STREETS
EXCEPTED,—-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 forth-
-with to consider and determine the same questions, and in each
case the said board shall conduct such an inquest and investiga-
tion as may be deemed necessary in the premises. If, after such
consideration and inquest, the said board shall determine that
a rapid transit railway or railways, in addition to any already
existing, are necessary for the interest of the public and such
city, it shall proceed to determine and establish 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 neces-
sary 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 four mem-
Rapip Transit In LarGE CITIES. 479

bers of the board shall be necessary for the purpose of deter-
mining and establishing such route or routes and plan of con-
struction. The said board, from to time, may locate the route
-or routes of such railway or railways over, under, upon, through
and across any streets, avenues and lands within such city, in-
cluding blocks between streets or avenues or, partly over, under,
upon, through and across any streets, avenues and lands within
such city and partly through blocks between streets or avenues;
provided that the consent of the owners of one-half in value of
the property bounded on and the consent also of the local author-
ities having control of that portion of a street 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 appointed by the general term of the
supreme court in the district of the proposed construction,
given after due hearing of all parties interested, and confirmed
by the court, that such railway or railways ought to be con-
structed or operated, be taken in lieu of the consent of such *
property owners; except that no public park nor any lands or
places, lawfully set apart for, or occupied by, any public build-
ing of any city or county, or of the state of New York, or of
the United States, nor those portions of Grand, Classon, Frank-
lin 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 Wash-
ington avenue in said city lying between Park and Atlantic
avenues, nor DeBevoise place, Irving place and Leffert’s place,
Lee avenue, Nostrand avenue, Waverly avenue, Vanderbilt ave-
nue and Clinton avenue in said city of Brooklyn, nor that por-
tion 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 or avenue which is now actually.
occupied by any elevated railroad structure, shall be occupied
by any corporation to be organized under the provisions of this
act for the purpose of constructing a railway in or upon any of
such public parks, lands or 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 or places and to lo-
cate the route of any railway to be built, under this act, across
480 MiscELLaneEous Acts, STREET, ETC., RAILROADS,

any of the streets and avenues now occupied by an elevated
railroad structure 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 necessary in the location of any route or routes.
Nothing in this act shall authorize the construction of an ele-
vated railway on Broadway south of Thirty-third street, nor on
Madison avenue in the city of New York. It shall not be law-
ful to grant, use or occupy, for the purposes of an elevated rail-
road, except 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;
Nassau street; Printing House square, so called, south of Frank-
fort street; Park row, south of Tryon row; Broad street and
Wall street.

See R. R. Law, § 123.

‘

It was not intended that the commissioners should present to
each property owner the maps, reports and statements adopted
by them before asking his consent to the adopted plan. It is
not necessary that such plan should state with absolute accu-
racy the precise amount of encroachment, or the precise locality
where such encroachment might or might not be increased by
the erection of necessary structures ; a plan giving property
owners notice of the general character of the encroachments is
sufficient. Where the grade of certain streets had not been
fixed it would be impossible to determine what would be the
precise location in reference to such streets, and what portion
should be ina tunnel, depressed structure or viaduct. The fact
that the report does not show of what material, whether iron or
stone, or both, the viaduct is to be constructed is immaterial.
The specific description such as would be made by engineers, is
not required. It is not a defect that the stations are not lo- |
cated. A statement that the cars shall be moved by motors,
within a certain tunnel, capable of a uniform speed of not less
than forty miles per hour for long distances, exclusive of stop-
ping, the power being supplied by some method not requiring
combustion in the tunnel, is sufficient ; 2 re Hoard of Rapid Transit
Commissioners, 18 N. Y. Supp., 320; 45 St. Rep, 810; 19 N.Y. Supp,
561; 47 St. Rep. 347.

§ 5. CONSENT OF COMMON COUNCIL ; CONSENT OF PROPERTY OWNERS ;
VALUE OF PROPERTY; COMMISSIONERS ; DETERMINATION OF COMMIS-
sIoneRS.—After any determination by said board of any such
route or routes and of any general plan of construction of said
railway or railways, the said board shall transmit to the com-
mon council of said city a copy of said plans and conclusions as
Rapip TRANSIT IN LARGE CITIES. 481
adopted. It shall be the duty of such common council upon re
ceiving 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 common council shall, on the day so fixed, proceed
with the consideration thereof and may continue and adjourn
such consideration, from time to time, until a final vote shall be
taken thereon, as hereinafter provided. Within four weeks ©
after the copy of such plans and conclusions adopted by the
board of rapid transit railroad commissioners shall have first

‘been received by said common council, a final vote shall be
taken thereon, by ayes and nays, in the form of a vote upon a
resolution to approve such plans and conclusions, and to con-
sent to the construction of a railway or railways in accordance
therewith. Upon the adoption of such resolution* a majority
vote of all the members of the common council and the ap-
proval of the mayor, and in the case of the refusal or failure of
the mayor to approve such resolution, then by a two-thirds vote
of allof the members of the common council, the said plans
and conclusions shall be deemed to have been finally consented
to and adopted, and such consent shall be deemed to be the con-
sent of the local authorities of such city; provided, that where
in any such city the exclusive control of any street, road, high-
‘way 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 common coun-
cil of such city, the approval of the aforesaid plans and conclu-
sions and the consent to the construction of a railway there-
under shall be given by such local authority-in place of and if
required in addition to such approval and consent by said com-
mon council 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 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 highway in, upon, over or under
which it is proposed to construct or operate such railway or rail-
‘ways, 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 authori- ©

* So in the original.
482 MiscELLANEousS Acts, STREET, ETC., RAILROADS.

ties’ shall have given their consent as above provided. If such
consents of property owners can not be obtained, the said board
may, in its own name, make application to the general term 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 constructed and operated. Two weeks’ notice of
such application shall be given by daily publication thereof 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 news-
papers published in said city. The newspapers in which said
publication shall be made, shall be designated by the general
term of the supreme court to which such application is to be
made on the application of the commissioners without notice.
The said general term, upon due proof of the publication afore-
said, 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 general term, of their first sit-
ting and may adjourn from time to time until all their business
is completed. Vacancies in such commission may be filled by
said general term after such notice to persons interested as the
general term may deem proper, and the evidence taken before
as well as after such vacancy occurred shall be deemed to be
properly before such commissioners. 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 general term, to-
gether 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 con-
firmed by said court, be taken in lieu of the consent of the
property owners above mentioned. Such report shall be made
within sixty days after the appointment of said commission-
ers, unless the said court or a judge thereof shall extend such
time.

See R. R. Law, § 123.

The fact that no definite place was fixed where the plan might
be inspected is no objection where public notice of the proposed
action by the commissioners and common council on submitted
plans, was given. In the absence of evidence to the contrary it
will be presumed that the vote was by ayes and noes; mre
Rapip Transit In LarceE CITIES 483

Board of Rapid Transit Commissioners, 18 N. Y. Supp., 320; 45 St.
‘Rep., 10; see rg N. VY, Supp., 561; 47 St. Rep., 347. The commis.
sioners are not confined to the evidence produced before them.
They have a right to use their own judgment and to examine the
situation for themselves. Jd, 79 NV. Y. Supp., 561; 47 St. Rep., 347.

§ 6. PLANS AND SPECIFICATIONS, INCLUDING PROVISIONS FOR SUBWAYS ;
SUPERVISION OF LOCAL AUTHORITIES ; EXPENSES BORNE BY THE COMPANY ;
ABANDONMENT OF PORTION OF ROUTE BEFORE SALE.—When thé con-
sents of the local authorities and the property owners, or in lieu
thereof, the authorization of the said 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 ot
such rapid transit railway or railways, including all devices and
appurtenances deemed by it necessary to secure the greatest
efficiency, public convenience and safety, including plans and
specifications for suitable support, turnouts, switches, sidings,
connections, landing places, buildings, platforms, stairways, ele-
vators, telegraph and signal devices and other suitable ap-
pliances 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 sub-
ways or tunnels, for sewer, gas or water pipes, electric wires,
and other conductors proper to be placed under ground, when-
ever necessary so todo in order to permit of the proper con-
struction of any railway herein provided for in accordance with
the plans and specifications of the said board. Whenever the
construction of any railway, depressed way, subway or tunnel
under the provisions of this act shall interfere with, disturb or
endanger any sewer, water pipe, gas pipe or other duly author-
ized subsurface structure, the work of the construction at such
points shall be conducted in the city of New York, in accordance
with the reasonable requirements and under the supervision of
the commissioner of public works, and in other cities in accord-
ance with the reasonable requirements and under the supervis-
ion of the officer or local authority having the care of and the
jurisdiction or control over such subsurface structures so inter-
fered with, disturbed or endangered. All expenses incidental
to such supervision and to the work of reconstructing, readjyst-
ing and supporting any such sewer, water pipe, gas pipe or
other duly authorized subsurface structure shall be borne and
paid by the company constructing any such railway, depressed
484 MIscELLANEOuS Acts, STREET, ETC., RAILROADS,

way, subway or tunnel. At any time before the sale provided
for in the next section of this act, the board of rapid transit
railroad commissioners may abandon any portion of a route or
routes laid out and determined by said board.
(As am’d by L. 1892, ch. 556.)
The last sentence was added by the amendment ot 1892.

See R. R. Law, § 124.

$7. PUuBLic sALE OF FRANCHISE ; TERMS AND CONDITIONS ; TIME FOR’
BEGINNING AND FINISHING ROAD; FORFEITURE AND RESALE OF FRAN-
CHISE; TERM OF FRANCHISE—The said board after having se-
cured the necessary consents and after having prepared such
detailed plans and specifications as are by this act provided for,
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 franchise 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 newspapers
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. Theadvertisement of sale shall contain only
so much of the said terms, plans and specifications for the con-
struction as the board may think proper, but such advertise-
ment must state at what place the full terms, plans and specifi- |
cations may be examined, and they shall be subject to examina-
tion under such reasonable rules and regulations as the board
may prescribe. The terms of sale shall provide for the con-
struction 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 corpora-
tion or corporations to be organized for the purpose of con-
structing and operating such railway or railways as in this act
provided shall pay such engineer or engineers such salary as
may, from time to time, be fixed ' by the said board of rapid
transit railroad commissioners. Such engineer or engineers
shall hold their office at the pleasure of the said board. The
terms ot sale shall require the successful bidder to deposit with
the comptroller or chief fiscal officer of the city, in cash or ap-
proved securities, such amount as the board 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
Rapip TRANSIT IN LarGE CITIES. 485

the purpose of building and operating said railway as herein-
after 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 organ-
ize a corporation to exercise such rights, privileges and fran-
chises as required by said terms of sale and this act, or for any
violation of any of the requirements of said terms of sale which
should be complied with before such corporation is organized,
and thereupon any deposit which may have been made pur-
suant to such terms of saie 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 shall 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 termsof 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 within which por-
tions 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 construction of
said railway or of portions of the same if in its discretion the
said board deem such extension to be for the best interests of
the city. In case the corporation formed for the purpose of
constructing said railway shall fail to begin or finish the con-
struction within the the* times for those purposes respectively
limited, allrights, privileges and franchises of such corporation to
maintain and operate said railway shall be forfeited, and upon
such forfeiture being adjudged by the court in a suit brought
for that purpose in the name of the people, 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 con-
structed by such corporation; such suit shall have preference
over all other cases in all courts; and the proceeds of such re-
sale 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 such

* So in the original.
486 MisceLLaneous Acts, STREET, ETC., RAILROADS,

tights, privileges and franchises of a corporation to exercise
the same, and to construct, maintain and operate such rapid
transit railway or railways, with the powers and subject to the
duties and liabilities 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 subscribers 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 franchises, and the
maximum rates of fares and freight which such corporation
may charge and collect for the carriage of persons and property.
The said board may, if it considers that the public interest re.
quires 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 concur-
rent vote of four 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.

See R. R. Law, §§ 124 and 93.

§ 8. RESALE OF FRANCHISE AFTER EXPIRATION OF TERM; NEW CORPO-
RATION,— Within one year, and not less than six months, prior to
the expiration of any term for which such rights, privileges and
franchises shall have been sold, said board shall proceed to re-
sell 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 corporation then operating such railway or
railways suitable compensation for the railroad structure and
'

Rapip Transit IN LarcE CITIEs. 487

appurtenances, and for any other property, 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 rights,
privileges and franchises were sold. Any corporation thereto-
fore organized under the provisions of this act may be a pur-
chaser on such resale; but if no such corporation be the pur-
chaser, a new eeeponation shall be formed to maintain and ope-
rate said road in the manner prescribed for the organization of
a corporation on the original sale, except that the plans and
specifications according to which said railway has been con-
structed need not be set out at large, but may be referred to as

forming part of the articles ee association of said new corpora-
tion.

§ 9. OFFICES OF BOARD ; ENGINEERS, ATTORNEYS AND OTHER ASSIST-
ANTS ; PREFERENCE OF ACTIONS UNDER THIS ACT.—The said board by
the concurrent vote of four members thereof may rent such
offices and employ such engineers, 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 pre-
scribed. All actions and special proceedings which may be
brought pursuant to any of the provisions of this act shall be
entitled, on the application of the board of rapid transit railroad
commissioners, to a preference over any other business, except
the actions and proceedings enumerated in sections seven hun-
dred and eighty-nine and seven hundred and ninety of the code
of civil procedure, at a term or sitting of any court of this
state, irrespective of its place upon the calendar ; and all actions
and special proceedings which may be brought by or against
any commission or corporation created by or acting under a
power or privilege granted under the provisions of this act shall
have a like preference on the application of said commission or
corporation.

(As am’d by L. 1892, ch. 556.)

The last part of the section beginning with the words ‘‘all actions and special
proceedings which may be brought pursuant to” was added by the ai aaa of
1892.

§ 10, APPROPRIATIONS FOR BOARD ; AUDIT AND PAYMENT OF EXPEND-
ITURES OF BOARD ; REVENUE BONDS; REPAYMENT OF EXPENSES ; COMPEN-
SATION OF COMMISSIONERS.—The board of estimate and apportion-
ment, or other board or public body on which is imposed the
duty ana in which is vested the power of making appropriations
of public moneys for the purposes of the city government in
488 MiscELLaneous Acts, STREET, ETC., RAILROADS.

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 commissioners, 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 such appropria-
tion shall be made forthwith upon presentation of a requisition
from the board of rapid transit railroad commissioners, which
shall state the purposes for which such moneys are required by
the said board. In case the said board of estimate and appor-
tionment or such other board or public body fail to appropriate
such amount as the board of rapid transit railroad commission-
ers deem requisite and necessary, the said board of rapid tran-
sit 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 estimate and
apportionment or such other board or public body aforesaid, to
determine what amount shall be appropriated for the purposes
required by this section, and the decision of said general term
shail be final and conclusive. And nocity shall he liable for
any indebtedness incurred by the said board of rapid transit
railroad commissioners in excess of such appropriation or ap-
propriations. Itshall be the duty of the auditor and comptroller
of any such city, after such appropriations shall have been duly
made, to audit and pay the proper expenditures of said commis-
sioners 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 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 of said city is hereby authorized and
directed to issue and sell revenue bonds of such city in anticipa-
tion of receipt of taxes and out of the proceeds of such bonds to
make the payments in this section required to be made. And
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 fol-
lowing the year in which such appropriations are made. All
expenses of the said board of rapid transit railroad commission-
ers so incurred and paid by any city as in this section provided,
and for which any city shall be liable, shall be repaid with in-
terest by the bidder or bidders at the public sale of the rights,
Rapip Transit in Larce CIrigs. 489

privileges and franchises as in this act provided, whose bid shall |
be accepted by the board of rapid transit railroad commission-
ers, and the terms of such sale shall specify the time when such
payment shall be made, as well as the amount thereof. The
commissioners shall be paid a reasonable compensation for the
duties performed by them in relation to each railway located by
them 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 the railway is to be
located upon application by the board of rapid transit railroad
commissioners after notice to the mayor of the city in which
the railway is to be built. The amount of such compensation
shall be stated in the terms of sale and shall be paid by the pur-
chaser.

§11. CORPORATIONS, HOW FORMED; SUBSCRIPTIONS TO STOCK; MEET-
INGS OF SUBSCRIBERS; PREFERENCE IN SUBSCRIPTIONS.—A corporation
or corporations to construct and operate such rapid transit rail-
way or railways, and to enjoy and exercise the rights, privileges
and franchises in this act provided for shall be created and or-
ganized 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 pro-
posed 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 purchased 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 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 in-
dorsed 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 railways are to be constructed.
Immediately after the articles of association 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 give pub-

/
490 MuiscELLaneEous Acts, STREET, ETC., RAILROADS,

lic 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 sub-
scribed as may have been fixed by the board in the terms of sale
shall have been paid in, in cash, to such bank or trust company
asthe board may select, the said board 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 commission-
ers shall, if they elect to become subscribers to the capital
stock of such corporation, be entitled to a preference for them-
selves and their associates in subscribing for, and in the allot-
ment of the shares of capital stock of such corporation.

See R. R. Law, §§ 126 and 127.

_ § 12. ELECTION OF FIRST DIRECTORS ; BY-LAws.—At such meet-
ing of subscribers thirteen directors of the corporation 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 corporation,
and the board of rapid transit railroad commissioners shall ap- -
point the the* inspectors of the first election. Each share of stock
shall entitle the holder to one vote for each director. The
directors so selected shall hold office for one year and until
others are elected in their places. At such meeting by-laws
must be adopted not inconsistent with this act, which by-laws
shall, among other things, provide for :

1. The term of office of the directors elected at any subse-
quent meeting of stockholders, which term shall not exceed
one year.

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
stockholders.

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 elec-
tion by the directors, and their duties and powers, and among

* So in the original.
Rapip Transit in LarcE Cities. 491

which officers there shall be included a president, a secretary
and:a treasurer.

7. The manner of electing or appointing inspectors of elec-
tion...

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 commis-
sioners and they must be approved bya resolution of said board.

See Stock Corporation Law, § 20.

§ 13. RECORD OF PROCEEDINGS; CERTIFICATE OF ORGANIZATION ;
FILING SAME ; PAYMENT OF PERCENTAGES OF SUBSCRIPTIONS TO STOCK
OF CORPORATION.—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 certi-
fied by the person presiding over, and person acting as secre-
tary of said meeting. There shall be attached thereto a certifi-
cate of the board of rapid transit railroad commissioners,
attested by its seal and the signature of its presiding officer,
that said board has approved the by-laws adopted at the sub-
scribers’ meeting, 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 the 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 corpora-
tion, such corporation shall be deemed to be fully organized.
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 corpora-
tion in all courts and proceedings. Upon the production of the
certified copy of said certificate, and upon the order of such cor-
poration, the bank or trust company in which the percentage of
subscriptions to the capital stock shall have been deposited,
shall pay over to any such corporation the amount of such de-
posit, and said corporation shall repay to the purchaser or pur-
chasers at the sale provided for in section seven of this act, the
expenses paid by him or them to the city pursuant to the pro-
492 MisceLLaneous Acts, STREET, ETC., RAILROADS,

visions of the terms of sale, with interest to the date of such
repayment.

§ 14. MOobDIFICATION OF PLANS; CERTIFICATE AND FILING.—The said
board of rapid transit railroad commissioners, if, in their judg-
ment, 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 detailed plans and specifications contained in its articles
of association, provided the plans and specifications as so modi-
fied, do not change the route or routes of said railway, and be
not inconsistent with the general plan of construction, adopted
undtr the provisions of section four of this act, and provided
also such modifications be first approved 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 meet-
ing. 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
modification, and that the same has been approved by the board
of directors in the manner above set forth, to which certificate
there shall be attached a copy of so much of the original plans

and specifications as are to be affected by the modification, and
also the plans and specifications as modified. There shallalso be
contained in such certificate a declaration ot the approval of
said board of rapid transit railroad commissioners, attested in
the same manner as the certificate of full organization. The
‘said certificate, plans and specifications shall then be filed in
the office of the secretary of state, and a certified copy or dupli-
cate thereof shall be filed ‘in the office of the clerk in which the
articles of association are filed. And thereupon said corpora-
tion shall be authorized to construct its railway or railways and
appurtenances in accordance with such modified plans and
specifications.
See R. R. Law, § 136.

§ 15. PRINCIPAL OFFICE AND TAXATION ‘OF RAILWAY; EXEMPTION
FROM TAXATION DURING CONSTRUCTION.—Every corporation organ-
ized under this act shall have its principal office and be taxed
on its property in the city where its railway or railways are
situated. But no taxes of any kind or nature shall be levied or
“mposed upon that portion of any railway constructed under
Rapip. TRANSIT IN LarcE CITIES. 493

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.

(As am’d by L. 1892, ch. 556.)

‘Vhe last part of the section beginning with the words ‘‘ But no taxes of any
kind ” was added by the amendment of 1892.

§ 16. DrirECTORS; VACANCIES; QUALIFICATIONS OF ; EXHIBI-
TION OF BOOKS.—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 di-
rectors, each stockholder shall 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 prescribed 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 stockhold-
ers present shall require it.

See Stock Corporation Law, § 20.

: § 17. PAYMENT OF SUBSCRIPTIONS FOR sTocK.—The directors
shall require the subscribers to the capital stock of the company
to pay the amount by them respectively subscribed in money
at such times and in such installments as they may deem
proper, not inconsistent with the by-laws and the articles of as-
sociation.

See Stock Corporation Law, § 43.

§ 18, LiaBILITy oF sTOCKHOLDERS.—Each stockholder of any
corporation formed under this act shall be individually liable
to the creditors 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
494 MisceLvaneous Acts, STREET, ETC., RAILROADS,

capital stock so held by him shall have been paid to the corpo-
ration; and all the stockholders of any such corporation shall
be jointly and severally liable for the debts due or owning to
any of its laborers and servants, other than contractors, for per-
sonal services, for thirty days’ service performed for such cor-
poration, but shall not be liable to an action therefor before an
execution or executions shall 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 li-
able, 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 ratable proportion to the amount of the
stock they shall respectively hold.

See Stock Corporation Law, § 54.

§ 19. STock AND Irs TRANSFER.—The stock of every corpora-
tion 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 pre-
vious calls thereon shall have been fully paid in.

See Stock Corporation Law, § 40.

§ 20. INCREASE OR REDUCTION OF STOCK; STATEMENT TO BE
FILED.—Any corporation formed under this act may increase or
reduce its capital stock from time to time upon obtaining the
approval of the board of rapid transit railroad commissioners by
a concurrent vote of four members thereof. Such increase or
reduction must be approved by a vote in person, or by proxy, of
two-tiairds in amount ot 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 subscribers’ meetings provided for
in section eleven of this act. Such notice shall state the time
and place of the meeting, and its object, and the amount to
which it is proposed to increase or reduce the capital stock. A
Rapip Transit IN LarGE CITIEs. . 495

_ 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 approval of said
‘board of rapid transit railroad commissioners attested in the
same manner as the certificate of full organization.

See Stock Corporation Law, § § 45-47.

§ 21. LIABILITY OF HOLDERS OF STOCK IN A REPRESENTATIVE CA-
pacity.—No person holding stock in any such corporation, as
executor, 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 hold-
ing the same, and shall be liable as a stockholder accordingly ;
and the estate and funds in the hands of such executor, admin-
istrator, 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.

See Stock Corporation Law, § 54.

§ 22. LIABILITY OF CORPORATION TO EMPLOYES OF CONTRACTOR.—AS
often as any contractor for the construction of any part of a rail-
way, which is in progress of construction under the provisions 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 become 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 per-
formance of the number of days’ labor for which theJclaim 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 performed personally, or by leaving the
496 MisceLLaneous Acts, STREET, ETC., RAILROADS.

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, unléss the same be commenced within
thirty days after notice is given to such company by such la-
borer as above provided.

See R. R. Law, § 30.

§ 23. REAL ESTATE; PROCEEDINGS TO ACQUIRE TITLE.—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 association; and in case any such
corporation can not 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.

See R. R. Law, § 4, sub. 2.

§ 24. Powers; INTERSECTIONS WITH OTHER RAILWAYS; TRANS-
PORTATION ; ENTRY UPON STREETS, &C.; CONSTRUCTION AND MAIN-
TENANCE OF ROAD; EXCAVATIONS; PARKS AND STREETS; RIGHT TO
BORROW MONEY AND ISSUE BONDS.—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,
maintenance 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. Topurchase, lease, hold and use all such real estate and other
property as may be necessary for the construction and main-
tenance of its railway or railways, and the stations or other
accommodations necessary to accomplish the objects of its in-
corporation; but nothing herein contained shall be held as re-
pealing or in any way affecting the act, entitled “An act author-
izing the construction of railroads upon Indian lands, passed
May twelve, eighteen hundred and thirty-six.
Rapip TRANsIT In LARGE CITIES. 497

3. To cross, intersect, join 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 fur-
therance of the objects of its connections. And every corpora-
tion 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 this act in re-
spect to acquiring title to real estate. And if the two corpora-
tions cannot agree upon the points and manner of such cross-
ings 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 said corporation shall have acquired its
rights, privileges and franchises.

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 accord-
ance 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 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 rail-
ways 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 track of any steam railway in actual operation at
the grade thereof, and it shall be lawful to make such excava-
tions 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 condi-

6A
498 MuisceLtLaneous Acrs, STREET, ETC., RAILROADS.

tion in which they were before such excavations were made, as
near as may be,and under the direction 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 pur-
poses; but the amount of such bonds outstanding at any one
time shall not exceed the amount limited by the articles of asso-
ciation.

(As am’d by. L. 1892, ch. 556.)

By the amendment of 1892 the word “‘ lease ” is inserted in the first part of sub.
2. The words ‘before constructed” are omitted from the first part of sub. 3.
The words “‘or the erection of piers or supports for any elevated railway upon a
railway track now actually in use in any street or avenue,” occurring after the
words ‘‘at the grade thereof,” are omitted from sub. 5. The words ‘‘for such
purposes” are substituted for the words ‘‘for any amount so borrowed” in
sub, 6.

See R. R. Law, § § 4, 9 and 129.

L. 1836, ch. 316, referred to in sub. 2 was repealed by L. 1890,
wh. 565, and by L. 1892, ch. 687.

§ 25. EMPLOYEES TO WEAR BADGES—Every conductor, baggage
‘master, engineer, brakeman or other servant of any 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, and the initial letter of the style of the cor-
poration by which he is employed. No conductor or collector,
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
Rapip TRANSIT IN LarRGE CITIES. 499

badge shall have authority to meddle or interfere with any pas-
senger, his baggage or property.

See R. R. Law, § 43.

§26. CARRYING oF MAILS —Any such corporation shall, when ap-
plied to by the postmaster-general, convey the mails of the United
States on their road or roads respectively ; and in case the par-
ties can not 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 corporation, shall determine and fix the prices, terms and
conditions aforesaid; but such price shall not be less for carry-
ing said mails in the regular passenger trains than the amount
which such corporation would receive 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.

See R. R. Law, § 56.

t

§ 27. EJECTION OF PASSENGERS REFUSING TO Pay FaRE.—If any ©
passenger shall refuse to pay his fare, it shall be lawful for the
conductor of the train and the servants of the corporation to
put him and his baggage out of the cars, using no unnecessary
force, at any usual stopping place, on stopping the train.

‘See R. R. Law, § 40.

§ 28. ACCOMMODATIONS FOR THE CONVEYANCE OF FREIGHT AND PAS-
SENGERS.—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 accom-
modations for the transportation of all such passengers and
property as shall, within a reasonable time previous thereto, be
offered for transportation at the place of starting and the junc-
tion 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 passen-
gers and property at, from and to such places, on the due pay-

A
500 MyiscELLANEOousS AcTs, STREET, ETC., RAILROADS.

ment of the freight or fare legally authorized therefor; and
shall be liable to the party aggrieved in an action for damages,
for any negiect or refusal in the premises.

See R. R. Law, § 34.

§ 29. InroxicaTION OF EMPLOYES.—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 R.R. Law, § 42.

§ 30. WILLFUL INJURY To PROPERTY.—If any person or persons
shall willfully do, or cause to be done, any act or acts whatever,
whereby any building, construction or work of any railway cor-
poration, or any engine, machine or structure, or any matter or
thing appertaining to the same, shall be stopped, obstructed,
impaired, weakened, injured or destroyed, the person or persons
so offending shall be guilty of a misdemeanor, and shall forfeit
and pay to the said corporation treble the amount of damages
sustained in consequence of such offense.

See Penal Code.

§ 31. DIssoLUTION BY LEGISLATURE.—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.

§ 32. PowER TO FIX AND DETERMINE CONNECTING ROUTES AND
EXTEND LINES; ADDITIONAL TRACK AND FACILITIES ; CERTIFICATE
AND FILING ; CONSENT OF PROPERTY OWNERS AND LOCAL AUTHORI-
tT1es.— The said board of rapid transit railroad commissioners may
also from time to time, upon application of any railway corpora-
tion owning or actually operating a railroad wholly or in part
within the limits of any 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 all the members of said
board, fix and determine the route or routes by which any such
railway company may connect with other steam railways, or the
stations thereof, or with steam ferries, or may extend its lines
within said city and may authorize any such railway company
to lay an additional track or tracks on, above, under or contigu-
ous to a portion or the whole of the route or routes of its rail-
Rapip TRANSIT IN LarGE CITIES. ~ 501

way or railways within said city and to acquire terminal or
other facilities necessary for the accommodation of the travel-
ing public on any street or place except the place now known as
Battery park on which said railway shall be located ; and the
said board shall 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 constructed, the compensation to be made therefor
to the city by said railway company, and such other terms, con-
ditions and requirements as to the said board may appear just
and proper. A certificate shall be prepared by the said board,
attested by its seal and the signatures 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
tracks and facilities, and the terms, conditions and requirements
aforesaid. Such certificates shall be delivered to said railway
corporation upon the receipt by said board of a written accept-
ance of said terms, conditions and requirements, duly executed
by said railway corporation, so as to entitle 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 rail-
ways of said railway corporation are situated, and thereupon,
and upon fulfillment by such railway corporation, so far as it
relates to such connections, additional track or tracks, or facili-
ties, 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 railway corporation of such other terms, conditions and
requirements enumerated in said certificate, as the said board
may require to be fulfilled asacondition precedent to com-
mencing said work, said railway company shall in such cases
possess in addition to existing franchises all the powers con-
ferred by this act upon corporations specially formed thereun-
der, with respect to 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 de-
termined, and a certificate as aforesaid shall have been duly
filed, such railway company 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 railway then in actual operation.
But the construction and operation of such connections, exten-
sions, additional track or tracks, or facilities, are hereby
502 MiscELLANEOuS Acts, STREET, ETC., RATLROADS,

é
authorized 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,
or in case the consent of such property owners can not be ob-
tained, the general term of the supreme court in the district in
which they are proposed to be constructed, may, upon applica-
tion, 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 parties interested, whether the
same ought to be constructed or operated, and their determina-
tion, confirmed by the court, may be taken in lieu of the consent
of the property owners.

§ 33. REMOVAL OF STREET RAILROAD TRACKS.—Wherever the
route selected by the said board of rapid transit railroad com-
missioners 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, any. corporation organized
under this act is hereby authorized, for the purpose of con-
structing the said work, to remove the track or tracks of any such
surface railway or railways, 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, and
upon the construction of such railway built under and in con-
formity with the provisions of this act, where such removals or
changes have been made, the same 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 damage which such company or companies
may sustain, shall be ascertained by a commission to be ap-
pointed the same as in the case where lands are taken for the
purposes of a railway route or routes as hereinbefore provided
in this act. All such removals and restorations shall be made
at the proper cost and charge of such corporation as may have
entered upon the occupancy of such street or streets. Nothing
contained in this act shall authorize any corporation formed
thereunder to use the tracks of any horse railway.

§ 34. ConsrrucTIon or act.—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
Rapid TRANSIT IN LarGE CITIES. . 503

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 eigh-
teen 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 com-
missioners 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 population of over one million inhab-
itants, 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 enjoy-
ment at any time, and from time to time hereafter, of any right
or rights heretofore acquired, exercised or enjoyed by any cor-
’ poration heretofore duly incorporated and organized or deriv-
ing powers and rights under the laws of this state. This act
shall not or impair affect the exercise or enjoyment of any’
right or rights now possessed or heretofore acquired or hereto-
fore authorized to be acquired, exercised or enjoyed by any
street surface railroad corporation, except as herein otherwise
expressly provided, and this act shall not be construed to repeal
or in any manner affect chapter one hundred and forty of the
laws of eighteen hundred and fifty, entitled “An act to author-
ize the formation of railroad corporations, and to regulate the
same,” or either of the several acts amendatory thereof or sup-
plementary 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, known asthe railroad
law, except hereinabove expressly provided, or except so far as
the provisions of the same conflict with the provisions of this
act.

§ 35. No STREET SURFACE ROADS UNDER THIS ACT IN THE CITY OF
New Yorx —No railroad shall shall be constructed or operated
upon the surface of any street, avenue or highway in the city
of New York under the provisions or authority of this act.

§ 36. Repgzat.—All acts and parts of acts local or general in-
consistent with this act are hereby repealed.
504. MiscELLaNnEous Acts, STREET, ETC., RAILROADs.

§ 38. BRIDGE COMPANIES MAY BUILD ELEVATED RAILWAYS IN LIEU
OF BRIDGE APPROACHES.—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 ap-
proach or approaches thereto extending generally in an easterly
and westerly direction, may determine in lieu of constructing
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 encroached upon and the property abutting there-
on 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 commis-
sioners 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 railways
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 provided, the said board of direct-
ors 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 rail-
way 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 pas-
Rarip Transit in LarGe CrriEs—ABANDONMENT. 505

senger 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 of the local authorities and the
property owners, or in lieu thereof, the authorization of the
supreme court upon the report of the commissioners 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, main-
tain and operate such elevated railway or railways, but all
provisions 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 acquirfhg
such right, privilege and franchise, and all other provisions of
this act or of any act inconsistent with this section, are hereby
declared inapplicable to such elevated railway and to such com-
pany. 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 railway except at the
termini thereof be less than sixteen feet above any street, ave-
nue or public place, or less than fourteen feet above any exist-
ing elevated railway which may be crossed, intervened or inter-
sected thereby. The said railway may be located and con-
structed so as to cross any intersecting street, avenue, highway
or place otherwise 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. ;

(Added by L. 1892, ch. 102.)
L. 1891, CH. 294.

AN ACT in relation to elevated railways in cities.

Section 1. ABANDONMENT OF PART OF ROUTE OF ELEVATED
RAILROAD.—Any company operating an elevated railway or rail-
ways in any city of this state for the transportation of passen-
gers, mails or freight, and which, prior to the passage of this
act, shall have built and operated six-tenths of its route as set
forth and embodied in its articles of incorporation, may declare
relinquished and abandoned any portion of its said route, which
it may deem no longer necessary for the successful operation of
its road and the convenience of the public. Such declaration of
abandonment to be valid, shall be adopted by the board of di-
rectors, under the seal of such company, and shall be submitted
506 MuisceLLaneous Acts, STREET, ETC., RAILROADS.

to the stockholders thereof at a meeting called for the purpose
of taking the same into consideration. Due notice of the time
and place of holding said meeting, and stating the object thereof
shall be given by the company to its stockholders by written or
printed notices addressed to each of the persons in whose name
the capital stock of the company stands on the books thereof, at
the address of such persons as stated on the books, or as known
to the secretary of the company, and delivered or mailed to such
persons, or the legal representatives of such persons respect-
ively, at least thirty days before the time of holding the meet-
ing of such company, and also by a general notice: published
daily for at least four weeks in some newspaper last designated
for'the publication of the session laws or of judicial proceedings
and legal notices in the county where the route of such com-
pany is located; and at the said meeting of stockholders the
declaration of the said directors shall be considered and a vote
by ballot taken for the adoption or rejection of the same, each
share entitling the holder thereof to one vote, and said ballots
shall be cast in person or by proxy, and if two-thirds of all the
votes of the stockholders cast in person or by proxy at said
meeting shall be for the adoption of said declaration of abandon-
ment, then that fact shall be certified thereon by the secre-
tary of the company under the seal thereof, and the declaration
so adopted shall be submitted for approval to the state board of
railroad commissioners, and if approved by them, such approval
shall be indorsed thereon, and the said declaration so certified
and indorsed shall be filed and recorded in the office of the sec-
retary of state, and from the time of such filing such portion of
said route designated, in such declaration, of such company
shall be deemed to be abandoned. A copy of such declaration
of abandonment, duly certified by the secretary of state, under
his official seal, shall be presumptive evidence in all courts and
Places of the facts which it recites, and of the regularity of the
proceedings resulting in such abandonment.

L. 1892, CH. 367.
AN ACT in relation to Madison avenue in the city of New York.

SecTion 1. RatLroaps 1n MapIson avenug.—None of the pro-
visions of existing law nor any proceedings thereunder shall
authorize the construction, maintenance or operation of any
elevated or underground railway upon or under Madison ave-
nue in the city of New York, or any portion of the same, except
that the consent of a majority of the owners of property, in
Mavison AvENUE—RalILways IN Parks, 507

number and value’thereof, bounded on said Madison avenue, be
first obtained in writing duly acknowledged as are deeds enti-
tled to be recorded.
L. 1892, Cu. 532.
AN ACT relative to railways in and near public parks in the cities of the state of
New York.

SECTION 1. RaILRoaps In PAaRKS—For the purpose of provid-
ing for the more speedy transportation of persons across public
parks in the cities within the state of New York having a popu-
lation of one million five hundred thousand or upwards it shall
be lawful for the municipal authorities, officers, departments, or
boards having control of such parks to construct railways in
and upon tunnels or roads or ways depressed below the surface
of said parks in such cities in this state, and to extend the same
east or west to connect with any surface railways in such cities,
now in existence, and with railways which hereafter may be —
built by companies now chartered and existing, and to contract
in the name of such cities with any person or corporations for
the construction thereof, and for the equipment and running of
the same either with or without public advertisement upon such
terms and conditions, including the rates of fare to be charged.
to persons using such railways, for such compensation to be
paid to such cities, and subject to such rules, regulations and
requirements as may be determined upon in said contract, and
as the department or board, or officer having charge of said
parks, may from time to time thereafter establish or impose.

§ 2. CoNSENT OF PROPERTY OWNERS.—No railroad shall be con-
structed, equipped, or operated by virtue of this act except upon’
the condition that the consent of the owners of one-half
in value of the property outside of said public parks 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, operate or extend the said railroads to
connect with any surface railroads in such cities be first ob-
tained, or in case the consent of .such property owners can not
be obtained, the general term of the supreme court in the dis-
trict in which it is proposed to be constructed may, upon appli-
cation, appoint three commissioners, who shall determine, after
hearing of all parties interested, whether the portion of such
railroad outside of said public parks ought to be constructed or
sperated, and their determination confirmed by the court may
be taken in lieu of the consent of the property owners.
508 MisceLLaneEous Acts, STREET, ETC., RAILROADS,

§ 3. EXPENSE OF CONSTRUCTION, #c.—Whenever any railroad
shall be constructed, equipped or operated under this act, the
expense of such construction, equipment and operation shall be
paid by the municipal corporation within which such railroads
are situate, in the same manner as the other expenses of such
municipal corporation are paid and provided for.

§ 4. AGREEMENT FOR CONSTRUCTION.—The department, board
or officer having control of such public parks may agree with
the person or corporation with whom any contract may be made
for the construction, equipment and operation of said railroad
that the cost of such construction shall be paid by such cities in
installments out of the compensation which such person or cor-
poration shall agree to pay to such cities under any such con-
tract from time to time and such compensation shall be received.

§ 5. Income.—The compensation or income which shall be
received by such cities from such railroad, except as the same
may be otherwise applied pursuant to the provisions of this act,
shall be paid into the treasury thereof.

§6. Motive power.—Any railroad constructed, equipped and
operated under this act may operate any portion of its road by
animal or horse power, or by cable.

§ 7. New York Ciry.—Whenever any railroads shall be con-
structed in the city of New York under the provisions of this
act such railroads shall be constructed by the department of

public parks ofsaid city, with the concurrence of the sinking fund
commissioners of said city.

§ 8. Bonps—.Whenever any such railroad shall be constructed,
equipped and operated under the provisions of this act in the
city of New York, should no such agreement be made as is pro-
vided in the fourth section of this act, it shall be the duty of
the comptroller of said city from time to time upon the request
of the sinking fund commissioners to issue bonds or stock of the
city in the aggregate sufficient to pay the expense of such con-
struction, equipment or operation which said bonds or stock
shall be paid out of taxation in not more than ten years from
the date of their issue,and shall bear interest not exceeding
four per centum per annum and shall be sold at not less than
par, and the cost of constructing, equipping and operating such
railroads shall be paid out of the proceeds of such bonds or
stocks.
RAILWAYS IN PaRKS—ExTENSIONS AND BRANCHES. 509

L. 1892, CH. 604.

AN ACT for the relief of street surface railroad companies organized under chap-
ter two hundred and fifty-two of the laws of eighteen hundred and eighty-four.

SecTION 1. EXTENSIONS AND BRANCHES.—Any street railroad
company now organized under chapter two hundred and fifty-two
of the laws of eighteen hundred and eighty-four, which shall
have heretofore constructed and is now operating any extension
or branch of its railroad along any streets or highways or portion
thereof within any county named in its articles of association, in
acity not exceeding in population fifty thousand inhabitants, and
shall heretofore have obtained 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
highway upon which it has constructed or operated such rail-
road, is hereby authorized to operate and maintain the same re-
spectively in like manner and as fully as if the said streets and
highways, or portions thereof, were fully named and described
in its articles of association, and upon filing in the office of the:
secretary of state a certificate signed by its board of directors,
which certificate shall contain a statement of the names of
cities, towns, villages and counties, and the names or descrip-
tions of the streets, avenues and highways in which such exten-
sion or branch has been constructed, the places from and to
which the same has been constructed and is to be maintained
and operated, and the length thereof, as near as may be; there-
upon the said extension and branches shall be deemed and con-
sidered a part of the lines of railway of such corporation from
the date of the filing thereof, with the same force and effect as
if the same were fully named and described in its original
articles of association, and all corporate action relating to the
construction, maintenance and operation of such extensions or
creating liens upon the same by the said corporation, are hereby
validated and confirmed.

§ 2. Nothing in this act contained shall affect or impair any
vested right or any pending litigation.
GENERAL RULES

IN NEGLIGENCE CASES, TAKEN FROM RECENT DE.
CISIONS OF THE COURT OF APPEALS.

PRELIMINARY Note.—The scope of this volume does not permit
an extended and critical statement of the rules and citations of
‘cases upon the subject of Negligence. The following cases may
be considered authoritative, and it is believed embrace a fair
proportion of these rules as contained in recent cases, for ready
reference :

I. Negligence Generally.
AcTION BY MARRIED WoMAN.

Presumptively, damages for negligently diminishing the
earning capacity of a married woman, belong to her husband,
and when she seeks to recover such damages, her complaint
must allege that for some reason she is entitled to the fruits of
her own labor, or, if she seeks to recover damages for an injury
to her business, she must allege that she was engaged in busi-
ness on her own account, and by reason of the injury was in-
jured therein as specifically set forth. Uvransky v. Dry Dock E.

B&B. RR. Co, 118 N. Y., 304.

Two Causss.

Where there are two proximate causes of the injury, one the
negligence of the defendant and the other an occurrence hap-
pening without fault of the plaintiff, the latter is entitled to
recover, Fhillipsv. N. Y.C.& H.R. R. R. Co, 127 N. Y., 657; but
where there are two or more possible causes of an injury for one
or more of which the defendant is not responsible, the plaintiff
must show by evidence that the injury was wholly or partly
the result of that cause which would render the defendant
liable. If the evidence leaves it just as probable that the injury
was the result of one cause as of the other, the plaintiff can not
recover. Grantv. Penn. & N. V.C. & R. R. Co., 133 N. Y., 657.

OTHER SIMILAR ACCIDENTS,

Evidence of the happening of similar accidents at other points
on the railroad, where evidence is first adduced tending to show

e
NEGLIGENCE GENERALLY.’ | 511

that the conditions are similar, Ae/d proper. Brady v. Man. Ry.
Co, 127 N. Y., 46.

Concurrinc NEGLIGENCE.

Where a direct personal injury is occasioned by the separate
and concurring negligence of two parties at one and the same
time, an action against one or all of them will lie. Chipman v.
Palmer, 77 NV. Y., 51, and cases cited.

NEGLIGENCE Our, OF THE STATE.

A non-resident administrator, though appointed in this state,
cannot maintain an action against a foreign corporation upon a
cause of action which did not arise in this state. Robinson v.
Oceanic Steam Navigation Co., 112 N. Y., 315.

The liability of a person for his acts whether wrongful or
negligent, depends : in general upon the law of the place where
the acts were committed; actions for injuries to the person in
another state may be maintained here without proof of the lex
loci because they are permitted by the common law which is
presumed to exist in the foreign state. Such presumption does
not arise where the right of action depends upon a statute
which confers it; and in such case the action can only be
maintained here by proof that the statutes of the state in which
the injury occurred give the right of action and are similar to
ourown. They need not be identical in their terms or precisely
alike, but it is enough if they are of similar import and charac-
ter, founded upon the same principle and possessing the same
general attributes. The restriction of the amount of recovery
pertains to the remedy, and would govern although the statute
of the foreign state contained no restrictions. Wooden v. W. N.
V.& PR. R. Co., 126 N. Y., ro.

Duties or Persons INJURED.

A person who receives an injury through the carelessness of
another, is bound to act in good faith and to resort to such
means and adopt such methods as are reasonably within his
reach to cure and restore himself. Lyons v. Erie Ry. Co. 57 N.
Y., 489; Albertiv. N. V.,L. £.& WR. R. Co. 118 N. Y., 77.

Rejection of the advice of the injured man’s physician is not
necessarily as matter of law, negligence. Suldivanv. Tioga R. R.
‘Co, 112 N.Y., 643.

Time TABLES.
If the company by its own conduct and published regulations
512 GENERAL RULES IN NEGLIGENCE CasEs.

at specified times and places, persons having occasion to cross
the tracks have a right to rely upon these assurances. Parsons
wv. N.Y.C. & AR. RR. Co., 113 N. YV., 355.

FaILurRE TO EXERCISE THE Best JUDGMENT.

A failure to exercise the best judgment which the case ren-
dered possible in an employe is not evidence of lack of care and
skill. So held where a passenger wasinjured. Wynn v. Cent. Pk.
N. & E.R. R. R. Co., 133 N. Y., 575.

t

: II. Contributory Negligence.

The test of contributory negligence or want of due care is not
always found in the failure to exercise the best judgment or use
the wisest precautions; the influences which ordinarily govern
human action are to be considered, and what would, under some
circumstances be a want of reasonable care, may not be such in
others. Lentv. WV. Y.C. & H.R. R. R. Co. 120 N.Y., 467. The
judgment that is required to be exercised is the judgment of a
man of ordinary and common prudence. An error of judgment
does not under such circumstances amount to contributory neg-
ligence. McClain v. Bhlyn. C.R. R. Co., 116 N. Y., 459; Hoyt v. N.
VL. £.&@ W.R. R. Co. 118 N. Y., 399.

The boarding or alighting from a moving train is presumably
and generally a negligent act, per se, and in order to rebut this
presumption and justify a recovery it must appear that the pas-
senger was, by the act of the defendant, put to an election be-
tween alternative dangers, or that something was done or said,
or that some direction was given to the passenger by those in
charge of the train, or some situation created, wnich to some
extent interfered with his free agency, and was calculated to
divert his mind from the danger, and create a confidence that
the attempt could be made in safety. Solomon v. Man. Ry. Co.,
103 N. Y., 437.

Violation of rules by employe constitutes contributory negli-
gence if it contributes to the accident. Sutherland v. Troy & Bos-
ton R. R. Co. 125 N. ¥., 737. Freedom from contributory negli-
gence must be proved. It may be established by inferences
drawn from circumstances, but not simply from a presumption
that a person exposed to danger will exercise care and prudence
in regard to his own safety. Where the circumstances point as
much to the negligence of deceased as to its absence, or point
in neither direction, a refusal to non-suit is error. Wiwtrowski
Contrisutory NEGLIGENCE—EVIDENCE. 513

v LS. & M.S. R. R. Co, 124 N. Y., 420; Riordan v. Ocean

Steamship Co., 124 N. Y., O55; Tolman v. Syracuse, B. & N.Y. R.R.
Co, 98 NV. Y., 198.

III. Evidence.

Poverty or PLaIntTIFF,

Evidence as to the poverty of the plaintiff, 7. ¢, that he was
dependent on his earnings for his support, is incompetent as
bearing on the question of damages, but may be proper upon
the question of whether he has resorted to such means as were
reasonably within his reach to cure himself, where the defend-
ant has drawn out testimony tending to show that plaintiff had
not had the best medical attendance, care and treatment. Alberti
vu N.Y, ££.& WR. R. Co, 1718 N.Y. 77.

Puysician’s EVIDENCE.

A physician may testify to his opinion as to the result of the
disease in the ordinary and natural course, ¢. g., that the plain-
tiff would never be any better and the probable length of time
plaintiff might live in the ordinary and natural course of events.
McClain v. Brooklyn C. R. R. Co, 116 N. Y., 459; Griswold v. N.Y. C.
& H.R. R.R. Co. 115 N.Y., 61; Albertiv. N. VLE. & WORR.
Co,118 N. Y.,78 Also that an injury received was the cause
of the condition of the person injured. McClain v. Brooklyn C. R.
R. Co. 116 N. Y., 459, but not of future consequences which are
contingent, speculative and merely possible as the basis of as-
certaining damages. Strohmv. N. Y.,L. E.& W. R. R. Co. 96 N.
Y., 905; Tozerv. N. Y.C. & H.R. R. R. Co., 105 N. Y., 617.

‘The attorney for the plaintiff has authority to waive the
statutory provision prohibiting a physician from disclosing the
.information received by him while attending his patient in a
professional capacity. Code, § 834. J¢ seems the calling of the
physician as a witness by the patient is in itself an express
waiver. Albertiv. N. YL. E. & W.R. R. Co, 118 N. Y., 77.

A physician may testify that he attended a person, and that
the patient was sick, and he may give the dates and number of
times of attendance. Putten v. U. L. & A. Ins. Assn, 133 N.

Y,, 450.
PHOTOGRAPH.

A photograph showing the effect of the injury may be com-
petent. Albertiv. N.Y. L. £.& WR. R. Co, 118 N. Y., 77.

TA
514 -GENERAL RuLeEs 1N NEGLIGENCE Cases.

OTHER SIMILAR ACCIDENTS.

If it is important to show notice of the dangerous characte
of the defect which caused the injury, testimony is competen
to prove other similar accidents, but such evidence is not com
petent where it can have no bearing upon the issues presente¢
Dye v. D., L. & W. R. R. Co. 130 N. Y., 671, but evidence mus

first be adduced that the conditions are similar. Brady v. Mar
Ry. Co., 127 N. Y., 46.

DECLARATIONS AFTER THE InyuRy.

A party can not support his own testimony by proof of de
clarations of pain, &c., made to persons other than a physician
who is at the time in attendance professionally. Evidence o
exclamations which are natural concomitants and manifesta
tions of pain and suffering are admissible, because regarded a
involuntary and natural expressions which a witness may de
scribe for the same reason that he may the appearance of th
party. But they must form part of the ves geste, and if they ar
so far detached from the occurrence as to admit of deliberat
design and be the product of a calculating policy on the part o
the actors, then they cannot be regarded as part of the res gesta
Kennedy v. Roch. C.& B. R. R. Co., 130 N. Y., 654.

NEGLIGENCE AND ContTRIBUTORY NEGLIGENCE.

There must be proof of facts from which a legitimate infer
ence of negligence, and exonerating the person injured fron
contributory negligence, can be drawn. In the absence of sucl
facts no case is made for the jury. This is so although no on
saw the accident. Bordenv. D., L.& W. R. R. Co., 1314 N. V., 671

IV. Street Railroads.

Injury To PERSON CROSSING THE STREET.

Street railway cars have a preference in the streets and whili
they must be managed with care, so as not to carelessly injur
persons in the street, pedestrians must, nevertheless, use reason
able care to keep out of their way. Fenton v. 2d Ave. R. R. Co.
126 WN. Y., 625.

A street railroad corporation is under an implied obligatior
to so construct and maintain its tracks as that, by the exercis
of reasonable care and supervision on its part, no danger ma‘
be occasioned to the public in its use of the street, whethe

traveling on foot or in vehicles. Schild v. Cent. Pk., N.& E.R
RP fa 1re0 AT VaakK
STREET RaILRoapDs—DamacE By Fire. 515

Injury To PassEncERs.

is the duty of the conductor to see that a person lawfully
entering the car is in a place of safety before giving the driver
a signal to proceed. Azkersloot v. 2d Ave. R. R. Co., 131 N. Y., 590;
133 N. Y., 676. It was held not to be negligence in failing to
prevent the plaintiff from going on the side step of an open car,
or in failing to warn him of any possible danger which might
arise therefrom. Craighead v. Brooklyn City R. R. Co, 123 NV. Y.,

FOL.

A company is liable for injuries where a car is being run at
an unusual rate of speed. ill v. Ninth Ave. R. R.Co., tog NV. Y.,
239; see Alexander v. Rochester City & Brighton R.'R. Co., 128 N.
Y,, 23.

V. Damage by Fire.

_The fact that sparks or coal were scattered at all upon the
company’s roadway in such quantities as to endanger property
on abutting premises raised an inference of some weight that
the engines were improperly constructed or managed: conced-
ing the escape of fire from an engine is inevitable and a neces-
sary consequence of its profitable employment, the company is
bound to remove combustible material from its path, or to pre-
vent such accumulation of rubbish as would in consequence of
fire falling upon it, be the cause of danger to another’s property.
Fiedv. N. V.C.R. R. Co., 32 N. V., 3465 Webbv. R., W.& O.R.
R. Co, 49 N. Y., 420; O'Neill v. N. Y., O. & W. Ry. Co., 115 N. Y.,

579.

The fact that the land injured did not lie next to the railroad,
but was separated from it by the lands of another, is ‘not decis-
ive. Other circumstances could contro]. If the destruction was
the natural and direct effect of the first firing it was not remote.
O'Neill v. N. Y., 0. & W. Ry. Co., 115 N. Y., 579.

Where certain bearing fruit trees were destroyed, evidence of
what the trees were worth at the time they were killed was held
to be erroneously received. Where plaintiff asserts his right to
go beyond the value of the thing taken or destroyed, after sev-
erance from the freehold, so as to secure compensation for the
damage done to his land, the measure of damages is the differ-
ence in value of the land before and after the injury. Dwight
0. Elmira C.& N. R. R. Co., 132 N.Y., 299.
516 GENERAL RULEs IN NEGLIGENCE CASES.

A coal of fire dropped from an engine of defendant's elevated
railroad upon the back of a horse, causing it to run away. The
driver attempted to rein him against the curbstone for the pur-
pose of arresting his progress. The wagon passed over the
curbstone and thence over the plaintiff, injuring him. A recov.
ery was sustained. Lowery v. Man. Ry. Co., 99 N. Y., 158.

The plaintiff may prove that engines passing on defendant’s
road, upon other occasions, emitted sparks and coals which fell
further from the track than the building destroyed. Crist v,
Erie Ry. Co., 58.N. Y., 638.

VI. Employes.
SAFE PLACE.

The company owes a duty of providing a place reasonably
safe for the work directed. Kranzv.Z. J. Ry. Co., 123 N. ¥.,1.
The employe hasaright to assume that the place has been
made reasonably safe by the master through other and compe-
tent servants employed byhim. Jd; McGovern v. C.V. R. R. Ca,
123 NV. Y., 280. Butif the employe assists in making his own
place in which to work his own negligence would coédperate and
bar the remedy unless he acted under the master’s orders given
by an incompetent superintendent. Cookv.N. V.C &@ ARR.
R. Co., 119 NV. Y., 653.

Dangers which are unavoidable after the exercise by the mas:
ter of proper care and precaution in guarding against them, are
risks incident toan employment in the business and are assumed
by those who consent to accept employment. McGovern v. C. V.
R. R. Co., 123 N. Y., 280.

One who puts his own servants upon a scaffold for the con-
struction of which he had contracted with a skillful and expe-
rienced builder is not liable for an injury resulting from negli-
gence in its construction, A staging or scaffolding is not a
place in which the work is to be done, it is an appliance or in-
strumentality by means of which the work is to be done. But
ler v. Townsend, 126 N. Y., 105; Hogan v. Smith, 125 N. V.,774; see
Benzing v. Steinway & Sons, ror N. Y., 547.

A cattle guard permitted to remain at a place in such condi.
tion as to endanger the safety of an employe on the track may
render the company liable for injuries caused by it. Fredenburg
v. North. Cent. Ry. Co., 114 N. Y., 582. But the company is not
EMPLOVES. 517
liable if the condition of the cattle guard was obvious or known
to the employe. Jd; soof a“frog.” Appelv. B, NV. V.& PR.
R. Co, rrr NV. Y., 550, 80 of a bridge over the track. Williams v.
DL. & WR. R. Co, 116 N. Y., 628.

It is the duty.of the company to provide a track which is suf-
ficient and suitable for the purpose, and to maintain it in good
order. While this principle is generally applicable to railroads
which are in a state of completion, it must be considered with
some qualification in reference to a road which had become di-
lapidated and out of repair, and was in process of being recon-
structed. Brick v. Roch. N.Y.& P.R. R. Co., 98 N. Y., art.

Railroad tracks are not ballasted for the purpose of making
them safe for brakeman to walk upon, but for the purpose of
making them firm and safe for the passage of trains, and the
failure of the company to ballast a side track used for storing
cars and making up trains is not a breach of any duty it owes
itsemployes. Jinnellv. D., L.& W. R. R.Co., 129 N. Y., 669.

SuITABLE TooLs anp APPARATUS.

The master is bound to furnish suitable tools and implements
for his use. McGovern v.C. V. R. R.Co., 123 N. Y., 280.

If the employe with full knowledge of the existence of the
defect complained of nevertheless continued to use the machin-
ery until the happening of the accident, he is guilty of contrib-
utory negligence. Odeliv. N. Y.C.&@ H.R. R. R. Co. 120 N.Y,
323; Shields v. N.Y. C. & H.R. R. R.Co.,133.N. ¥.,557; MceQuigan
v, DL. & WR. R. Co, 122 N. Y., 678.

The master is not bound to furnish the best known appliances,
but such only as are reasonably safe; the test is not whether
better machinery might have been obtained, but whether his
selection was reasonably prudent and careful, and whether the
machinery provided was in fact adequate and proper for the use
to which it was to be applied. Kern v. De Castro, & D., S. Ref.
Co., 125 WN. Y., 50; Stringham v. Hilton, r11 N. Y., 188; Burke v.
Witherbee, 98 N. Y., 562.

A master owes the duty to keep a machine or appliance used
by the servant in order, and he can not delegate this duty so as
to escape responsibility. But this rule does not apply to defects
arising in its daily use, which are not of a permanent character
and do not require the help of skilled mechanics to repair, but
518 : GENERAL Rues In NEGLIGENCE CasEs.

which may easily be and usually are remedied by the workmen,
and to repair which suitable materials are supplied. Cregan v,
Marston, 126 N. V., 568.

A railroad company is liable for an injury caused partly by
the negligence of another employe and partly by failure to pro-
vide suitable and proper apparatus. Allisv. NV. Y,, L.£.& W.
R. R. Co., 95 N. Y., 547.

A railroad company drawing the cars of another company
over its road is bound to inspect such cars the same as its own,
and is responsible for the consequences of such defects as would
have been disclosed by ordinary inspection. Gottlieb v. N.Y, L.

(£.& W. R. R. Co., 100 N.Y, 462; Goodrich v. N.Y. C.& H.R.R.R.
Co., 116 N.Y., 398. But where the employe’s duty is to handle de-
fective cars he is bound to assume that the car is disabled and gov-
ern himself accordingly, and he assumes the risk of his employ-
ment. Arnold v. D. & H. Can. Co., 125 N. Y., 75. UWoose man-
hole cover on tender. McQuigan v. D., L.& W. R. R. Co, 122
NV. Y., 678. Improperly loaded car. Ford v. LL. S. & M.S,
R. R. Co. 117 N. Y., 638; Byrnesv. N. V.,L. EB. & WR. R. Co., 173
N.Y., 251; Bushby v. N.Y., L. Eo & W. R. R. Co., 107 N. Y., 3745.
Bumper out of repair. Goodrich v. N.Y. C. & H.R. R. R. Co., 116
N.Y. 398; Eilisv. N.Y, L. 4. & WR. R. Co.,95 N. Y., 548.

There must be evidence of neglect or unskillful construction
or of a failure to keepin repair. De Vauv. Penn.& N.Y.C.& H.
RR. R. Co., 130 N. Y., 632.

SUITABLE RULES AND REGULATIONS.

A corporation is bound to carry on its business under a proper
system and under reasonable rules and regulations, and if,
through a failure to establish such system or to make such
rules, a servant is injured, the corporation is liable. Ford v. L.
S. & M.S. R. R. Co., 124 N. Y., 493, Corcoran v. D., L. & WR. R.
Co., 126 N. Y., 673; Abelv. D. & H. Can. Co., 128 N. Y., 662. It is
the duty of a railroad company transporting lumber upon open
cars to adopt some system of loading, having regard for the
safety of its servants, and 7 seems of those traveling over its
road and of all persons who may be in the vicinity of its cars.
Ford v. L. S. & M.S. R. R. Co., 124. N. Y., 493.

Evidence of rules adopted on other roads may be given.
Ford v. L. S.& M.S. R. R. Co., 124 N. Y., 493. The question is
whether, in view of the rules adopted by different companies,
EMPLOYES. | 519

the defendant has discharged its duties, but the jury are not to
find a rule proper or improper because some other company had
adopted or rejected it. Adel v. D. & H. C. Co, 128 N. Y., 662;
103 NV. Y., 581.

In making rules the company is only bound to use ordinary
care, and to anticipate and guard against such accidents and
casualties as may reasonably be foreseen by its managers exer-
cising such ordinary care. Berriganv. N.Y. L.E. & W.R.R,
Co., 1314 N. Y., 582.

The company is bound to exercise such a supervision over its
employes and the prosecution of its business, as to have reason
to believe that it is being conducted in pursuance of such rules.
Whittaker v. D. & H.C. Co.,126 N. Y., 544. It must appear from
the nature of the business that the master in the exercise of
reasonable care, should have foreseen the necessity for such
tules. Morgan v. Hudson Riv. O. & I. Co., 133 N. Y., 666. As to
knowledge of rules, see Za Croyv. NV. V.,,L. £. & W. R.R. Co.,
132 NV. Y., 570.

\

ComMPETENT FELLOW SERVANTS AND SUPERINTENDENTS.

The master is required, when they are needed, to employ
skillful and competent workmen to direct his labor and the per-
formance of his duties. McGovern v. C.V. R. R. Co., 123 NW. Y.,
280.

Capable and competent persons must be employed. ford 2,
L.S.& M.S. R. R. Co., 124 N. V., 493. It is also required that
the company should exercise sich an oversight and supervision
of such servants, that if they afterwards become habitually or
notoriously incompetent or unfit, from carelessness or bad
habits, to perform their duties, this incompetency, if long con-
tinued, should be discovered and guarded against. Whittaker v.
D. & H.C. Co, 126 N.Y., 544; Coppinsv. N.V.C.& A. RR. R.
Co., 122 N. Y., 557.

The competency of a servant depends not alone on physical
or mental attributes, but upon the disposition with which he
performs his duties. Copfpinsv.N.Y.C.& A. R. RR. Co, 122
N. Y., 557. Incompetency can not be inferred from age only,
so held ot a telegraph operator only a little over seventeen
years of age. Sutherland v. Troy & Boston R. R. Co., 125 N. Y., 737.

1
520 GENERAL RUuLEs 1n NEGLIGENCE CaSEs.

Duty TO UNSKILLED WORKMAN AND MINOR Emptoye,

The duty devolves upon a master, before putting a servant
known to him to be unskillful, in charge of dangerous ma-
chinery, with the operation of which he is not acquainted, to
instruct and qualify him for such new duty. If the master
selects another servant, to instruct, the latter must be not simply
as competent as the master, but absolutely competent. Brennan
v. Gordon, 118 N. Y., 489; Gates v. State of New York, 128 N. Y., 221.
A minor may be familiar with a dangerous machine, and if its
character and operation are obvious, he takes upon himself the
risks incident to the employment, Buckley v. Gutta Percha & R.
M. Co., 113 N. V., 540; but where judgment and reflection are
required to enable the minor to appreciate the consequences
which might result from the defective character of the ma-
chinery, it is a question for the jury. McCarragher v. Rogers, 120
N. Y., 526. ,

SUFFICIENT NUMBER OF EMPLOYES ON TRAIN,

This duty is held to be like the duty to furnish competent
servants and proper machinery, a duty at all times resting on
the company, Booth v. Boston & Alb. R. R. Co., 737 N. V., 38; but if
an employe is absent by his own fault, it may be treated as the
negligence of a co-employe. Reichel v. N.Y. C&A RR. R.
Co., 730 N. Y., 682.

Time TABLE.

The master has the right as regards his servants to vary
from the time table in the running of trains; all that is required
is due care and diligence in giving notice of the change, and in
running the train upon the changed time. Slater v. Jewett, 8&5 N.
Y., 67.

AGREEMENT Not To CLamm DAMAGES,

Such an agreement was held to be void for want of consider-
ation [in Purdy v. Rk. WSO. RR. Co. 125 N. Y., 209; see also
Kenneyv. N. Y.C.& H.R. R. R. Co., 125 N. Y., 422.

NEGLIGENCE OF CO-EMPLOYES.

The negligence of a co-employe will not excuse the company
where the injury is caused partly by a failure to provide suit-
able and proper apparatus, and partly by the negligence of a
co-employe, Ailisv. NV. Y., LZ. E. & W. R. R. Co, 95 N.Y, 5477 08
EmpLoyEs—InjuRIES TO CHILDREN. 521

by failure to provide competent men in the management of its
road, Coppinsv. N.Y. C.& H.R. R. R. Co. 122 N. Y., 557.

The following causes of injury have been held to be negligent
acts of co-employes: Neglect to chain.or prop up a defec-
tive drawhead as was the rule and custom of the business of
the yard. Arnold v. D. & H. Canal Co, 125 N.Y. 75. Act of as-
sistant yardmaster, who had charge of the switch engine and
the handling of cars in the yard, in switching another car upon
the track on which a disabled car stood and under which the
plaintiff, a car repairer, was working. Corcoran v. D., L. & W.
RR. Co., 126 N.Y., 673. Workmen, including their foreman, who
leave a pit between the tracks uncovered, are co-employes.
Filbert v. D. & H. Canal Co., 121 N. Y., 207. Employes engaged
in loading a car with lumber are co-employes with a switchman
-who is injured by reason of the improper loading of the car.
ford v. L. S. & M.S. R. R. Co, 117 N. V., 638; but see r24 MV. V,,
493; see where car was loaded by the owner but not inspected by
thestation master, who was held to be aco-employe, Byrnes v. N.Y.,
LE & W.R. R. Co, 113 N.Y. 257, A yardmaster, foreman or
superintendent is to be deemed a fellow servant as to all acts
done in the range of the common employment, except those
done in the performance of some duty which defendant owed to
its servants. MMcCosker v. L. I. R. R. Co., 84. N. V., 77; Brick v.
Roch, N. V.& P.R.R. Co, 98 N. V., 211; Neubauer v. N.Y. L. E.

'& W. R. R. Co, ror N. Y., 607. A train-dispatcher and con-
ductor are fellow servants with a fireman. Slater v. Jewett, 85 N.
Y.,,6z, A helper on an engine absent from his post by his own

‘fault is a co-employe. Reichel v. N. V.C.& H.R. R. R. Co., 730
NV. Y., 682.

VII. Injuries to Childrén.

The law does not require the parent to suspend his business
and keep the child every moment under his eye. The parent
is required only to exercise such a degree of care as was reason-
able under the circumstances. This is a question for the jury.
Weil y. Dry Dock, E. B. & B. R. R. Co. 119 N. Y., 147.

The law does not fix any arbitrary period when an infant be-
comes sui juris, When the inquiry is material, it becomes a
question of fact for the jury, unless the child is of such tender
years that the court can safely decide. Jf seems, where the fact
is material on the question of contributory negligence, the bur-
522 GENERAL RULEs IN NEGLIGENCE CASEs.

den is on the plaintiff to give some evidence showing that the
party was not, as matter of fact, capable of exercising judgment
and discretion. The measure of care in such a case is such as
might reasonably be expected, under the circumstances, of a
child of that age. Stone v. Dry Dock, E. B. & B. R. R. Co, 115 N.
Y., 704; but see Tuckerv. N.Y. C.& H.R. R. R. Co, 124. NY,
go8, where it was held that the question at what age an infant's
responsibility may be presumed to commence is not one of fact
but of law.

VIII. Injuries at Crossings.
Neglect of signals, see Penal Code, § 421.

Where a person is injured who was a mere passenger with the
driver of the horse, if any fault is attributable to the latter the
former is not charged with it. Phillipsv.N. V.C.&@ ARR R.
Co, 127 N. Y., 657; Robinson v. N. Y. C. R. R. Co, 66 N.Y, 11;
Dyer v. Erie Ry. Co., 71 N. Y., 228. So held of a wife riding with
her husband. Hoag v.N. Y.C.& H.R. R. R. Co, 111 N. Y., 199.
But such rule is only applicable to cases where the relation ot
master and servant, or principal and agent does not exist, or
where the passenger is seated away from the driver or is sepa-
rated from the driver by an enclosure and is without opportunity
to discover danger and to inform the driver of it. Brickell v. N.
Y.C.& H.R. R&R. Cu., 120 N. Y., 290.

The burden is upon the plaintiff to establish affirmatively thet
“ plaintiff approached the crossing with prudence and care, and
with senses alert to the possibility of approaching danger.”
Tolman v. S., B. & N.Y. R. Co, 98 N. Y., 202; Brickell v. N.Y. C.
& H.R. R. R. Co..120 N. Y., 290. In the case of Hoag v. WV. Y.
C.& H.R. R. R. Co. 111 N. Y., 799, it was held that the passen-
ger is not bound to jump from the wagon, seize the reins or in-
terfere with the driver. Even if the former did not entreat him
to stop, but sat silent, it does not follow as matter of law that
there was negligence.

A pedestrian before crossing a railroad track, must, in the ab-
sence of circumstances excusing it, look in each direction to
ascertain whether a train is approaching; he may not omit
this in reliance upon the performance by a railroad company of
its duty to give reasonable notice of the approach of a train.
Rodrian v. N. Y.. N. H. & H. R. R. Co, 125 N. Y., 526. The
plaintiff assumes the burden of showing that the injury occurred
INJURIES AT CRosSINGs. 523

without fault on the part of the person injured, or of giving
evidence from which the jury may infer that he was without
fault, and that his act did not contribute to the casualty. If the
person did look for an approaching train it would not necessa-
tily follow asarule of law that he was remediless because he
did not look at the precise place and time, when and where
looking would have been to the most advantage. Many circum-
stances might be shown which could properly be considered in
determining whether he fairly discharged the duty imposed
upon him, although it should appear that if he had looked at
another instant of time, or had leoked last in the direction from
which the train was approaching, he would have seen it. Jd.

The fact that another person who was in the company of the
deceased looked and listened, but did not see the approaching
train, ‘does not establish that he would have failed also had he
looked and listened. Wiwirowshi v. L. S. & M.S. R.R.Co., 124
XN. Y., 420.

It must appear that the injury complained of was sustained
by reason of a negligent act of the railroad company. It is not
sufficient to prove a negligent act on its part. Chrystal v. Troy &
B.R. R. Co., 124 N. Y., 579.

An engineer may prudently assume that persons on the track
will step off as the train approaches, and is not negligent in
acting on that assumption, except when they are “ persons ap-
parently not capable of taking care of themselves, such as
young children and persons lying helpless on the track.”
Spooner v. D., L. & W.R. R. Co., 115 N. Y., 22.

For an injury by being run down by an engine,.the foot of
the person injured being caught between the rail and planks at
a railroad crossing, see Spooner v. D., L. & W. R. R. Co, 175 N.
Y., 22. For an injury to a person crossing at a “space” or
opening in fences constructed on either side of a railroad run-
ning along an avenue of acity, the defendant being permitted
to run its trains at any rate of speed, see Heaney v. Long Island R.
R. Co., 112 N. Y., 122.

To enter a known place of danger and to continue to walk in
it without again looking to see or listening to hear, is negli-
gence. So held where the person crossing had looked before
reaching the first track but was injured by a train on the third
track. Scott v. The Penna. Co., 130 N. Y., 679.
524 GENERAL RULES IN NEGLIGENCE CasSES.

ACCIDENTS AT CROSSINGS WHERE GATES ARE PROVIDED AND Opgr-
ATED BY THE COMPANY.

A traveler approaching a crossing guarded by gates is not
required to exercise the same vigilance to look and listen as
when he approaches one not so guarded. Kanev. N. Y., N. 4H.
‘& H.R. R. Co., 132 N. Y., 160, and cases clted below.

Negligence cannot be presumed; and where by the act of de-
fendant a person has reason to believe that he may cross the
track in safety, his attempt to dosoand his lack of that vigilance
which under other circumstances might be required, cannot be
regarded as constituting negligence. He is still bound to exer-
cise ordinary and reasonable care, but the measure of his duty
varies with the peculiar circumstances of the case, and its ful-
fillment must be determined by the jury. Palmerv. N. Y.C.&
A. R.R. R. Co., 112 N. Y., 234; Rodrianv. N.Y. N. H.& AR. R.
Co., 125 N. Y., 526.

The raising of the gate is a substantial assurance to the trav-
eler of safety, just as significant as if the gateman had beckoned
to him or invited him to come on; and that any prudent man
would not be influenced by it, is against. all human experience.
Glushing v. Sharp, 96 N. Y.,676. The open gate is an affirmative
and explicit declaration and representation that neither train
nor locomotive is approaching with intent to pass. Palmer v.
N.Y.C. & H.R. R.R. Co, 112 N. Y., 234, 241. But while the
traveler has a right to rely toa certain extent upon the assur-
ances thus given by the defendant that it is safe to pass, it is still
his duty to be on the lookout for danger, and to exercise the
same care that a man of ordinary prudence would exercise
under the same circumstances. The degree of care depended
upon his knowledge of the situation, or upon those facts that he
would have discovered by the use of ordinary vigilance. Olden-
burgu. N.Y. C.& H.R. RR. Co, 124 N. Y., 414, gr6.
FORMS.

 

‘No.1.

‘CERTIFICATE OF INCORPORATION.

Srate or New York, \
County of ee

We, the undersigned, [reciting the facts showing a compliance
with § 4 of the General Corporation Law,] desiring to become a
corporation under and in pursuance of the provisions of chapter 565,
of the Laws of 1890, known as “The Railroad Law,” and the acts
amendatory thereof and supplementary thereto, for the purpose of

-building, maintaining aud operating a railroad, [or for the purpose of
maintaining and operating a railroad already built, not owned by a
railroad corporation, or for both purposes,| do hereby certify :

First—The name of the corporation shall be the
Railroad Company. :

Secoud—The number of years it is to continue shall be :

Third—The kind of road to. be built and operated [er operated]
shall be a railroad of the ordinary gange, operated by locomotive
steam power, [or, a street surface railroad operated by horse power,
cable or electricity ; or, a railway in the streets, avenues and public
places of the city of , or county of , for the
transportation of passengers, mails or freight, operated by steam or
other motor, under and pursuant to article V. of “ The Railroad Law ;”
or, a steam railroad of the gauge of feet and inches. |

Fourth—Such railroad shall be built, maintained and operated, [o7,
maintained and operated, | from the city of ,to and through
the counties of , to the city of , which places
will be its termini, and its length will be miles. [Jf a street
railroad, give the names and description of the streets, de., of ws route
and the termint.]

Fitth—The county [or, counties] in which any part of it is to be
located, is [or, are]

Sixth—The amount of the capital stock shall be dollars.
Seventh—The number of shares into which the capital stock is to
be divided shall be of dollars each.

Highth—[Statement of the amount of common and preferred stock if
80 divided, and the rights and privileges of the latter class over the
former. See § 47 of Stock Corporation Law |

Ninth—The names and post-oftice addresses of the directors of
the corporation, [not less than nine,] who shall manage its affairs for
the first year are ; [At least two
shall be residents of this state. General Corporation Act, § 29.] |
526 : Fors.

Tenth—The place where its principal office is to be located is the
city of , in the county of . [See § 19 of Rail.
road Law.]

Eleventh—[J/f 1 1ts a railway corportion specified in article V. of
“The Railroad Law,” the conditiuns, requirements and particulars
determined by the Commissioners should be set forth, with the further
provision: In case such railway or railways shall not be completed
within the time and upon the conditions determined by the Commission-
ers, pursuant to the provisions of article V. of “ The Railroad Law,”
all rights and franchises acquired by such corporation shall be released
and forfeited to the Board of Supervisors of the county of or
to the city of . See § 126 of Ratlroad Law.)

Twelfth—The name and post-office address of each subscriber,
[not less than fifteen,] to this certificate, and the number of shares of
stock he agrees to take in such corperation are as follows:

 

Name. ~* Post-office address. Number of shares,

 

 

In witness whereof, we have executed and acknowledged this
certificate in duplicate, and have hereunto subscribed our names,
post-vtlice addresses and the number of shares of stock we severally
agree to take in said corporation.

Dated the day of 189

[ Vatural persons of full age, and at least two-thirds of them citi-
zens of the United States,and a majority residents of this state. See § 4
of the General Corporation Law.]

[Add acknowledgement. ]

STATE OF NEW YORK,
CouNTY OF ,

 

No. of shares sub-

Post-office address, aeeibed.

Name.

 

 

 

 

j , and , being severally
duly sworn, each for himself, deposes and says, that he is a director
named in the foregoing certificate of incorporation; that at least
$1,000 [or $300 cn case of a narrow gauge road.] of capital stock for
every mile of road built [o7, proposed to be built,| has been subscribed
thereto, and has been paid in good faith, and in cash, to the direc-
tors named in the certificate, and that it is intended in good faith to
build, maintain and operate [or, to maintain and operate,] the road
mentioned therein.
CERTIFICATE OF INCORPORATION. * 527

Subscribed and sworn before me,
this day of , 18
i

[In case of a railway corporation specified in Article V of “The Lail-
road Law,” add;

State of New York, |
County of a

4 , and , being severally
duly sworn, each for himself, deposes and says that he 1s a director
named in the foregoing certificate, and that he was elected at a meeting -
of the subscribers to stock held for organization, pursuant to section 127
of “The Railroad Law,” at the city of , on the day of

189 ; that the full amount of stock, to wit, dollars,
has been subscribed in good faith to construct, maintain and operate
the oe or railways in such certificate of incorporation men-
tioned.

Subscribed and sworn to before me, \
this day of _ 189

The certificate of the commissioners setting forth the certificate of in-
corporation and the organization of the corporation for the purposes
therein mentioned, should be added. Sce section 123 of “ The Lail-
road Law.” Also a certificate of the railroad commissioners, showing
‘the organization of the corporation for the purposes mentioned in the
eertificate. See section 2 of the Laclroad Law.]

NOTE,

If it is desired that the railroad corporation to be formed shall
have power to purchase, acquire, hold and dispose of the stocks,
‘ bonds and other evidences of indebtedness of any other corporation,
domestic or foreign, and to issue in exchange therefor its stocks,
bonds and other obligations, a provision authorizing it to do so may

* be inserted in the certificate as provided by section 40 of the Stock
Corporation Law.

Upon the organization of a company except a street railroad com-
pany, it should comply with section 59 of the Railroad Law, namely,
its directors should cause a copy of the articles of association to be
published in one or more newspapers in the county in which the
road is proposed to be located at least once a week for three succes-
sive weeks, and satisfactory proof thereof should be filed with the
board of railroad commissioners. A certificate of that board should
be obtained to the eftect that the above conditions had been com-
plied with, and also that the public convenience and necessity re-
quire the construction of said railroad as proposed in the articles of
association. In case the board refuses to grant it, application may
be made-to the general term of the department within which the
road is proposed in whole or part to be constructed, for the issue of
such a certificate. The certificate should be filed in the office of the
secretary of state.
528 Forms.

No. 2.
PROXY.

Know all men by these presents, that I, do hereby consti-
tute and appoint to be my lawful attorney, substitute and
proxy for me, and in my name to vote upon all the stock held by
me in the’ Railroad Company at the annual meeting of stock-
holders of such corporatian to be held on the day of , 189,

or at any meeting of stockholders to be held on or before the
day of , 189 , as fully and with same effect as I might or could
do were I personally present at said meeting, and I hereby revoke
any proxy or proxies heretvfore given by me to any person or per-
sous whatsoever, to be used by me at said meetings,

In witness whereof, I have hereunto set my hand and seal this

day of , 189.
[u. 8.]
Witness,

[Lhe proxy may be executed by a duly authorized attorney.]

 

No. 3.
APPLICATION TOSET ASIDE ELECTION OF DIRECTORS.

In THE MATTER OF THE Exscriow |
or DIRECTORS I
of the f

©. & D. Rathway Company. |

 

 

To the Supreme Court of the State of New York:

The petition of and of the city of , Te-
spectfully shows: That the Railway Company is a railroad:
corporation duly created and incorporated under and pursnant to
chapter 140 of the Laws of 1850, and the acts amendatory thereof
and supplemental thereto, and as such operates a railroad for the
transportation of freight and passengers from the city of

to the city of | , in the state of New York. That the prin-
cipal office of said corporation is located at No. street in the
city of

That upon the day of , 18 ,a pretended election of di-
rectors was held by said corporation, at said oltice, in and by which
it is claimed that , Land others, naming them,] were

duly elected directors of said corporation, and they are now acting
as such and have held a meeting to act fur said corporation. That
at said pretended election an opposition ticket for a board of direct-
ors was voted for, containing the names of

and others.
ELEcTIONS—EXxTENSION OF CorPoRATE EXISTENCE. 529

That the said election should be set aside and was illegal and void
for the reason that, [state particulars. ]

That at the time of said election and for more than ten days prior
thereto, your petitioners were and still are the lawful owners and
holders respectively of parts ‘of the capital stock of said corporation,

as follows: The said of shares of the par value of
$ ,and the said of shares of the par value
of $ , and as such your petitioners were entitled to vote at

said election and did vote thereat, but were not concerned in said
illegal proceedings and did not consent thereto, and caused their ob-
jections in writing to be filed with the inspectors at said meeting, a
copy of which is hereto annexed and marked Ex. “ A.”

That your petitioners are aggrieved by and complain of such elec-
tion, and allege that their rights to vote at said election were in-
fringed by said illegal and unauthorized proceedings, and the value
of your petitioners’ stock in said corporation has depreciated and
still continues to depreciate by reason of the acts of said pretended
board of directors acting under authority of said illegal election.

Wherefore, your petitioners desire an order setting aside said elec-

-tion, and that a new election be held by said corporation on or be-
fore the day of , 18 , [or, as the case may be,] or make
such order and give such relief as right and justice may require.

Dated, &e.

 

 

[Add verification and affidavits setting forth facts in detazl.] !

 

No. 4.

CERTIFICATE OF EXTENSION OF CORPORATE EX-
ISTENCE.

STATE OF NEW YORK,) ,,

CouNTY oF

Whereas, the original certificate of incorporation of the
railroad company, a corporation duly created and formed under and

in pursuance of chapter of the laws of , of the state

of New York, entitled “An act, &c.,” the corporate existence of

the Railroad Company was fixed for the term of years

commencing on the day of , 18 , [and the same

was extended by a certificate filed pursuant to law in the office of the:
on the day of , 18 , for the term of

years from the day of 8

J .
Now, therefore, we, the undersigned, stockholders of the _ i
Railroad Company, a domestic corporation, owning two-thirds in
amount of its capital stock, to wit, shares, do hereby cer-
tify pursuant to section 32 of “ The General Corporation Law,” that
t

530 Forms,
é
we consent to the extension of the term of corporate existence of
such corporation for the further term of years from the ex-
piration of the period specified in its original certificate of incorpo-
ration, [or, by chapter of the laws of 18 , aforesaid; or, in
the certificate of extension of the corporate existence of said corporation
heretofore executed as aforesaid. |
In witness whereof, we have set our hands to this con-
sent in duplicate and the number of shares of stock owned
by us respectively in such company, this day of
189
; shares,
[Add acknowledgement. ]

STATE OF NEW YORK, }
County oF ~ 4 oe

, being duly sworn, says that he is the
of the corporation named in the foregoing consent and custodian of
its stock book; that the persons whose names are subscribed to such
consent are the owners upon the books of the said corporation of
the number of shares of stock therein set opposite their respective
signatures to the above consent, and that such stock constitute more
than two-thirds in amount of the capital stock of said corporation.

 

 

 

[Jurat.]

 

No. 5.
CONSENT TO MORTGAGE.

Know all men by the presents, that we, the undersigned stock-
holders of the Railroad Company, owning at least two-thirds,
of the capital stock of said company, do hereby consent that the said
railroad corporation may issue its bonds and mortgage its property and
franchises, [ for description of property see forms of mortgage and
lease, and if mortgage ws intended to cover after-acquired property, tt
should so specify,| to of the city of , as trustee to
secure the payment of the said bonds of this company to the amount
of dollars, authorized at a meeting of the directors held at
the city of on the day of , 189 ; [and the
directors under such regulations as they may adopt, may confer on the
holders of such bonds secured by such mortgage the right to convert
the principal thereof after the day of 189 , into stock
of the said railroad corporation. |

In witness whereof, we have hereunto set our hands and
seals and the number of shares of stock owned by us re-

spectively in such corporation, this day of
189
’ shares. [L. 8.]
\[Add acknowledgement. |

See Railroad Law, §4, sub. 10.
MortcGaGeE. 531

Add affidavit of secretary or treasurer as in form of Certificate of
Extension of Corporate Evxistence in this volume, [Form No. 4;] or,
dhe consent may be given at a special meeting of the stockholders called
for that purpose, a form for which may be readily adapted from the
Sorm for Certificate of Increase or Decrease of Capital Stock, in this
volume. [Form No. 12.] The consent must be given by stockholders
owning at least two thirds of the stock.

 

No. 6.
MORTGAGE.

This Indenture, made this day of , in the year of
our Lord one thousand eight hundred and ninety , between
ithe Railroad Company, a corporation created under and in
pursuance of the laws of the state of New York, hereinafter called
“The Railroad Company,” party of the first part, and the
‘Trust Company, a corporation created under and pursuant to the laws
of the state af New York, trustee, as hereinafter meutioned, herein-
after called ‘‘ The Trustee,” party of the second. part ;

Whereas, The railroad company is the owner of a railroad, the
main line of which extends from the city of ,in the county
of , to , in the county of , and is also the
owner of’ certain branch railroads connecting with said main line,
and known as the Branch, &c., and is also the owner of certain
leasehold and other interests in so much of the railroad of the
Railroad Company as extends, &c., and also holds as owner and lessee
other property and franchises ; and

Whereas, The railroad company deems it necessary to borrow
money for the purpose of paying its funded debt heretofore con-
tracted, and for the transaction of its business, and the exercise of
its corporate rights, privileges and franchises, and for other lawful
purposes of its incorporation, and for completing and finishing or
operating its railroad, and to issue and dispose of its bonds therefor,

_ and to mortgage its corporate property and franchises to secure the
payment of said bonds and of any debts contracted tor the purposes
aforesaid ; and :

Whereas, To that end the board of directors of the railroad com-
pany has authorized the issue of a series of coupon and registered

, bonds to an amount not exceeding tnillions of dollars, to
‘bear date the day of , 189 , payable yeare
from their date, bearing interest at the rate of per cent.
per annum from the day of 189 , payable semi-
annually, of which coupon bonds there shall be for$
each, sealed with the corporate seal of said railroad company, signed
by its president or vice president, and secretary or assistant secre-
tary, and duly authenticated by the certificate of the trustee here-
ander. and with interest couvons attached, with the name of the
532 ; Forms.

treasurer of said railroad company engraved thereon; exchangeable,
bowever, for registered bonds of the denomination of $5,000 each
when presented to the said railroad company in like amounts, which
registered bonds shall be sealed, signed and authenticated in the same
manner as said coupon bonds, which bonds, coupons and certificates
are to be in the forms following, respectively :

(FORM OF COUPON BOND.)
Unirep States oF AMERICA,

$1,000.00 State of New York. No.
Railroad Company Refunding Mortgage
year per cent. Gold Bond. Due , 19. Authorized
Issue $ ;
‘The Railroad Company is indebted,
and for value received promises to pay to the Trust Com-
pany of the city of or bearer, or to the registered holder of

this bond, if the same be registered, One Thousand Dollars* in gold
coin of the United States, of the present standard of weight and
fineness, at the office of the said railroad company in the city of
on the day ot , 19 ,* and on presentation and
surrender of the coupons annexed hereto, as they shall severally be-
come due, to pay to the bearer of such coupons interest on such
principal sum at the rate of | per centum per annum, from the

day of , 189 , until such principal sum shall be paid, such in-
terest being payable in like gold coin at said office in , on, the
first days of and in each year. This bond is one of a

series of bonds issued, or to be issued in the manner specified in the
mortgage or deed of trust hereinafter mentioned to an amount not ex-
ceeding in the aggregate $ , being bonds for $ each,
numbered consecutively from one to , both inclusive, all
equally secured by a mortgage or deed of trust, dated the day
of _, 189 , executed by said Railroad Company to the Trust
Company of the city of as Trustee, conveying tts franchises,
railroads and appurtenances, equipment and other property, acquired
and to be acquired, upon the terms and conditions set forth in said
morigage or deed of trust. If dejwull shall be made in the payment of
any installment of inierest on any of said bonds the principal hereof
may be made due and payable, as provided in said mortgage or deed of
trust. This bond may be registered in the name of the owner on the
books of the company, such registration being endorsed hereon by
the Transfer Agent of the company, and thereafter no transfer shall
be valid unless made on the books of the company by the registered
owner and similarly endorsed hereon; but the same may again be
made payable to bearer by like transfer, and thereafter pass by de-
livery until again registered. Such registry and transfer shall not
apply to coupons hereon, which shall remain negotiable by delivery
and payable to bearer on presentation. The holder of conpon bonds
may exchange the same for registered bonds of the denomination of
MortGaceE. ‘ 533

$5,000, equally secured by said mortgage or deed of trust, upon '
presenting such coupon bonds in like amount to the railroad company
at its office in . which registered bonds shall be transferable hy
the owner on the books of the railroad company in such manner as the
railroad company may from time to time prescribe. Zhe principal
and interest of this bond are payable without any deduction for any
daxes now or hereafler levied by the United States, or any state, county
or municipal authority, which the said company may be required to
deduct therefrom, the company hereby agreeing to pay the same. This
bond shall not be valid until the certificate endorsed hereon shall have
been signed by the Trustee under said mortgage or deed of trust. In
witness whereof, the Railroad Company has caused its cor-
porate seal to be hereto affixed and attested by its Secretary or
Assistant Secretary, and this bond to be signed by its President or
Vice-President, and has hereto attached coupons with the name of
its Treasurer engraved thereon the day of , 289 .
Rartroap Company,
{Corp. Seal.] Attest. By , President.
Secretary.

$ INTEREST COUPON. No.

The Railroad Company will pay to bearer dollars
in gold coin of the United States, at its office in the city of on
the day of , 189 , being six months interest then due on
its refunding Mortgage Bond No.

(TRUSTEES CERTIFICATE.)

This bond is one of the issue of bonds within mentioned, and also
described in the mortgage or deed of trust dated the day of :
189 . Executed by the Railroad Company to the under-
signed; and the holder hereof is entitled to the benefit of the trust
thereby created.

, Treasurer,

THE Trust Company, Trustee,
By , President.

(FORM OF REGISTERED BOND.)

Untrep Srates oF AMERICA,

$5,000.00. State of New York. No.
Railroad Company Refunding Mortgage year
per cent. Gold Bond, due ; gee ox
Authorized issue, $ 5
The Railroad Company is indebted and for value re-
ceived, promises to pay to or assigns $5,000.00, [, follow
form of coupon bond between the * * ,] and to pay interest thereon
in like gold coin, at said office at the rate of per cent. per annum

from the firstday of ,18 ,semi-annually on the firstdaysof and
in each year. This bond is one of a series of coupon and registered
bonds issued and to be issued, [here insert portions of form of coupon ,
534 Forms.

bond in wtalics,) and is transferable only on the books of the
said railroad company at its office in the city of :
in such manner as said company may from time to time pre-
scribe. In witness whereof, the

‘Railroad Company has caused its corporate seal to be hereto affixed
and attested by its secretary or assistant secretary, and this bond to

be signed by its President or Vice-President the day of 18
THE RaILRoaD CoMPANY,

[Corporate Seal.] Attest: By , President,
, Secretary.
[Trustees Certificate as above. |

And whereas, A majority in interest of each class of the stockholders
of the railroad company bave given their written assent to the execn-
tion of this mortgage or deed of trust, and the placing thereof upon
the railroad and property of the railroad company, which assent
duly certified by said railroad company has been filed with the trus-
tee hereunder; and

Whereas, At a special meeting of the stockholders of the railroad
company, duly held at the office of the company in the city of

, upon due notice to all the stockholders of the company,
in accordance with the statute, of the time, place and purpose of
such meeting, stockholders owning more than two-thirds of the
stock of the corporation did, by vote, give their consent to the issne
and execution of said bonds and of this mortgage, and a certificate
of the vote at such meeting, signed and sworn to by the chairman
and secretary of such meeting, has been filed and recorded in the
office of the clerk of the county of , in which county the
railroad company has its principal place of business ; and

Whereas, The execution of this mortgage or deed of trust has beer
duly authorized and directed by the board of directors of the rail-
road company, to secure the payment of the aforesaid bonds and the
interest thereon ; now, therefore,

This indenture witnesseth that the railroad company,
party of the first part, for and in consideration of the premises and
of the sum of one dollar to it duly paid by the party of the second
part, at or before the ensealing anl delivery of these presents, the
receipt whereof is heréby acknowledged, and in order to secure the
payment of the principal and interest of all the bonds aforesaid at
any time outstanding, has bargained, granted, sold, aliened, remised,
released, conveyed and confirmed, assigned, transferred and set over,
and by these presents does bargain, grant, sell, alien, remise, release,
convey and confirm, assign, transfer and set over unto the said
party of the second part, and its successors and assigns, forever, all
and singular the railroads and property of the railroad company,
described as follows: Add the main line of railroad of said railroad
company, extending from, &c., [as above, describing main line and
branches,] as said railroad and branches are now, or may be here-
after, located and constructed ; also, all the property and rights of
MortGace. . 535

the railroad company in and in respect to so much of the railroad of
the Railroad Company as extends, &., under and by vir.
tue of a certain lease and construction agreement made with said
last named company by the railroad company, dated , &e.,
subject however to the right of the railroad company, from time ta
time, to modify or change the terms of said lease and agreements or
indentnres, which rights are hereby expressly reserved to. the rail-
road company, anything herein contained to the contrary notwith-
standing. A/so, all the property and rights of the railroad company
in and in respect to the terminal property at , subject,
however, to the right of the railroad company from time to time to
modify, &c., [as above,] but no modification or change of terms of
any of the said leases and agreements or indentures herein men-
tioned shall be made, if the same would operate to the detriment of
the security of the bondholders hereunder, and every such modifica-
tion or change and all benefit derived therefrom shall be and remain
subject to the lien of these presents. And also, a certain lease of the
railroad known as the Railroad, extending from, &c., made
by and between , and bearing date the day of

, 18 ; and also, all and singular the land, tenements and
hereditaments acquired or appropriated, or which may hereafter be
acquired or appropriated, for the purpose of the said railroad and
the several branches, and said leased railroads and terminal and
other property, and all railways, ways, rights of way, depot and ter-
minal grounds, tracks, sidings, turnouts, bridges, viaducts, culverts,
fences, docks, piers and other structures, depots, station houses, turn-
tables, water tanks, car-houses, freight-houses, wood-houses, ware-
houses, machine shop, store structures, buildings, erections and fix-
tures of every kind and nature whatsoever, leaseholds, leases, rights,
under-leases, terms or parts of terms, rights of trackage, contracts for
trackage, all other contracts, covenants and agreements, and rights
under other contracts, covenants and agreements, terminal rights and
privileges, and ferry rights, privileges and franchises, now held or
which may be hereafter acquired, for the use of said railroad, its
several branches, and said leased railroads and property, or any of
them, subject nevertheless to the rights of the railroad company, as
heretofore reserved, to modify, &., [as above.] And also, all loco-
motives, engines, fixtures, cars and other rolling stock and equip-
ment now held, or which may hereafter be acquired, and all rails,
ties, machinery, tools, implements, fuel and material whatsoever, and
all other property, real, personal or mixed, now held, or which may
hereafter be acquired, for or in connection with the conetruction,
operation and maintenance, reparation or replacement of the said
railroad, its several branches and said leased railroads and property,
or any part thereof, or as convenient and necessary for the uses or
purposes thereof, and also $ of the first mortgage bonds and
$ of the capital stock of the Railroad Company ; and
also a\l'corporate and other franchises of every name and nature re-
536 Forms.

lating to said railroad and its several branches, leased railroads and
property which the railroad company now has or may hereafter ac-
quire, including the franchise to operate the said railroad and said
leased railroads and property, and all other franchises, rights, pow-
ers and privileges now held or which may hereafter be acquired by
the railroad company, connected with or relating to the said railroad
and its several branches and said leased railroads and property or
any of them, or any uses or purposes thereof; and also all additions
now made or which may be hereafter made to any or all of said rail-
roads and its several -branches and to said property and estates or
their appurtenances by the railroad company or by others, and all:
books of account, and other books, maps and surveys of the railroad
company, and also all and every other estate, right, title and interest,
property and thing which the said railroad company owns or holds,
or may hereafter acquire or hold necessary or convenient for the use,
occupation and enjoyment of all or any of the said railroad and
branches, leased railroads and property, privileges and franchises or
any part thereof. To have and to hold the railroads, premises, prop-
erty, rights, franchises and estates hereby conveyed or intended to
be conveyed, with all and singular the reversions, remainders, tolls,
rents, issues and profits, privileges and appurtenances now or here-
after belonging or in any wise appertaining thereto, unto the said
party of the second part and its successors and assigns, furever; Jn
Trust, nevertheless, for the benefit, security and protection of the
persons and corporations, firms and partnerships who shall hold the
aforesaid bonds and interest coupons or any or either of them, and
for enforcing the payment thereof, when payable, according to the
true intent and meaning of the stipulations of this mortgage or deed
of trust, and of said bonds and said interest coupons, and without
preference of any of said bonds over any of the others, by reason of
priority in the time of the issue or negotiation thereof, or otherwise;
Provided, however, and these presents are upon the express condi-
tion, that if the party of the first part, its successors or assigns, shall
well and truly pay, or cause to be paid, unto the holders of the
bonds to be issued herennder, the principal and interest to become
due thereon to said holders at the times and in the manner stipulated
in said bonds and in said interest coupons according to the true in-
tent and meaning thereof, and shall well and truly keep, observe and
perform all and singular the covenants, promises and conditions in
the said bonds hereby secured and in this indenture expressed to be
kept, observed and performed by ur on the part of the said party of
the first part, then these presents and the estate and right thereby
granted shall cease, determine and be void, otherwise to remain in
full foree. Jt 2s hereby covenanted and agreed, that the personal
property and chattels hereby conveyed or intended to be, shall be
real estate for all the purposes of this instrument, and shall be held
and taken to be fixtures and appurtenances of the said railroad prop-
erty, and as a part thereof and are to be used in connection therewith
and not separated therefrom except as hereinafter provided. It is
: MortTGacE. 537

‘hereby covenanted, declared and agreed by and between the parties
‘hereto, and the railroad company, for itself, its successors and assigns,
‘doth hereby covenant and agree with the respective persona, corpora-
tions, firms and partnerships who shall hold the bonds hereby se-
cured, or’any of them, that the trusts, uses, purposes, conditions and
covenants for and upon which the rights, franchises and property,
real and personal, hereinbefore described, are conveyed to, and-are
to be held and disposed of by the Trustee, are as follows, that is to
“gay:

First—Bonds secured hereby, to the amount of $ shall be
used only for the purpose of exchange for, or retirement of, the
‘present first mortgage bonds of the railroad company amounting to
$ , dated, &e. , until such first mortgage bonds shall be
paid and the mortgage securing the same cancelled. Said trustee
shall certify and deliver such bonds to the railroad company, for the
purpose aforesaid in the following manner: the trustee shall certify,
and deliver to the railroad company bonds to the amount of $
for each $ of said first mortgage bonds that the railroad com-
pany may present to it, provided, &. ; said trustee shall immediately
stamp upon the said first mortgage bonds so presented to it the fol-

lowing: ‘This bond has been deposited with the Trust
‘Company trustee pursuant to the provisions of a mortgage or deed
of trust executed to it by the Railroad Company bearing date

the day,” &c., and hold the said first mortgage bonds so pre-

sented to it as a further security for the payment of the bonds hereby

secured until all the bonds.of that issue shall be presented by the-
railroad company, or until the same shall be paid, and, in either
event, the said bonds shall thereupon be cancelled, and the mortgage
securing the same satisfied of record: and upov the cancellation of
said mortgage the trustee shall certify and deliver to the railroad
company any of said $ of said bonds hereby secured,
that may not have been theretofore certified and delivered, &c.,
until default shall be made by the railroad company in the payment
of the interest upon any‘of the first mortgage bonds, or the bonds
issued hereunder, or any part thereof, the trustee shall detach and
cancel the coupons upon the said first mortgage bonds that may be
presented to and deposited with it, in the manner above provided,
as such coupons may from time to time mature, and deliver the
same to the railroad company. The railroad company hereby
covenants and agrees that it will pay such first mortgage bonds on
the day of , 18 , or as soon thereafter as the same
shall be presented for payment, and that it will not extend the time
for the payment of the same after the said day of ;
18 Beads secured hereby to the amount of $ shall be
used only for the purpose of exchange for, or retirement of, the
present consolidated first mortgage bonds of the railroad company,
of which $ are outstanding, dated, &c., until such consoli-
dated bonds shall be paid, and the mortgage securing the same can-
538 Forms.

celled. Said trustee shall certify and deliver, &c., [as above or as
the case may be.| The remainder of the bonds secured hereby,
amounting to $ , Shall from time to time be certified by the
trustee and delivered to the railroad company only when its board
of directors, by resolution duly passed by them, shall certify to the
said trustee that the amount of bonds named in said resolution, or
the proceeds thereof, are required by the railroad company for the
purpose of reimbursing the company for expenditures actually made
or contracted for by it for additions to, or improvements or exten-
sions of its railroads and leased lines, equipment and property, made
after the execution hereof, or for‘further and additional property
acquired after the execution hereof, the use of which will be advan-
tageous to the railroad company, or for the securities of any other
company whose line will constitute an extension of the railroads or
leased lines of the railroad company, and said last mentioned bonds,
or the proceeds thereof, shall be used by the railroad company only
for the purpose of reimbursing it, as aforesaid. Such resolution
shall specify in detail the purposes for which such expenditures have
been actually made or contracted for, and shall be passed only after
receipt by the said board of the certificate of the general manager or
chief engineer of the railroad company that such expenditures have
-been actually made or contracted for, forsuch purposes, and were or
will be necessary and for the advantage of the company. In no
event, however, shall the amount of bonds, or the proceeds thereof,
to be delivered or paid over to the railroad company for such pur-
poses exceed in value the amount specified in said resolution and
certificate to have been actually paid and expended, or contracted
for by the railroad company for such purposes. Such resolution.
so to be delivered to the trustee, shall be accompanied by a copy of
said certificate. If the proceeds ot such bonds shall be required for
expenditures not actually made, but contracted for by the railroad
company, such contract of the railroad company shall be deposited
with the trustee, and the proceeds of said bonds shall simultaneously
with their delivery be deposited by said railroad company with the
trustee in the place of said bonds, and such proceeds shall from time
to time be paid over by the trustee to,the railroad company only upon
the presentation to the eaid trustee of a further resolution of the board
of directors of the railroad company certifying that such proceeds, or
such portion thereof as may be specified in such resolution, are re-
quired for the payment for such additions, improvements or exten-
sions, or further and additional property or securities of any otier
company, actually made or acquired, which resolution shall be ac-
companied by a detailed certificate signed by the president or vice
president and the general manager or chief engineer of the said rail-
road company. In no event, however, shall the amount of such
proceeds so paid over exceed the amount specified in said resolution,
certificate and contract to be actually due by the railroad company
for such purposes. If any of said bonds or the proceeds thereof
MortTcacE. 539

shall be required for the securities of any other company whose
Jine will constitute an extension of the railroads or leased lines of.
the railroad company, the securities of such other company
shall forthwith be deposited with the trustee as additional
security for the payment of the principal and interest of all the bonds-
issued hereunder; if any of said securities shall consist of the capital
stock of other companies, such capital stock shall also be deposited as
aforesaid with the trustee, registered in the names of ‘I and.
i and said three individuals shall simultaneously with the
delivery of said bonds or their proceeds, execute and deposit with:
the trustee herennder, a power of attorney tu said trustee upon and
with the following terms, conditions, and provisions in relation to
such capital stock of other companies, for the benefit of the trustee
hereunder, and this mortgage or deed of trust and the bonds secured.
thereby, to wit: authorizing it, the said trustee, in the event that
default shall be made in any of the covenants, agreements or con-
ditions of any mortgage or deed of trust of such other railroad, or of
the bonds. secured thereby, to transfer said stock to it, said trustee,-
but providing that until any such default shall occur, the persons in
whose names said stock shall stand shall have and exercise every
right and privilege in respect to voting upon said stock, for the elec-
tion of directors, or at stockholders’ meetings, that are, or may be,
conferred upon stockholders by law, except to authorize or approve
_ of, or consent to, the creation of any debt, liability or obligation
whatsoever of such other railroad company, or lien or mortgage upon-
its property, or any part thereof, or any increase of its capital stock,
and shall authorize it to receive and take any and all dividend or
dividends that may be declared thereon; also that other trustees-
may be substituted, from time to time, in the place of any one or
more of those in whese names the said stock may be first registered,
by the board of directors of the railroad company, and said stock
shall then be registered in their names; but such substituted trustee-
or trustees shall execute and deposit with the trustee under this
_ mortgage or deed of trust, like power of attorney, as provided to be
executed by the original trustees. The said persons in whose name
such stock is registered shall execute a further power of attorney to-
the trustee herennder containing the same conditions and provisions-
as to default in regard to this mortgage or deed of trust, and the
bonds issued thereunder, as above recited, in regard to the mortgage’
or deed of trust above mentioned and the bonds issued thereunder ;.
until defanlt shall be made in any of the covenants, agreements or
conditions of any mortgage or deed of trust, securing such securities,
or of any bonds secured thereby, or of this mortgage or deed.
of trust, or of any of the bonds secured hereby, said trustee shall pay
over to the railroad company, party of the first part bereto, any In-
terest or dividends it may receive on any such securities of any other”
company, for its own use. : :
The receipt ,by the trustee of a copy of such resolutions of said:
board, duly certified by the secretary of the railroad company, to-
540 Forms.

gether with a copy of said certificates, similarly certified, shall be
sufficient proof to the trustee that the said bonds or their proceeds,
are required by the railroad company for the purposes aforesaid, and
shall fully protect it in the certification and delivery of the same;
and the trastee shall be under no responsibility to see to the appli-
cation of the proceeds of any such bonds,

Second—This deed shall not operate nor be held to prohibit the
railroad company, its successors and assigns, so long as it or they
shall remain in possession of the said mortgaged premises, and there
shall be no subsisting default in the payment of the principal or
interest on the bonds hereby secured, or some of them, or in respect
to something hereby required to be done, kept, observed or performed
by the party of the first part, from selling or conveying or otherwise
disposing of, for the use and benefit and the maintenance of said
railroads, free from the encumbrances and trusts hereof, any real or
personal property now owned, or hereafter acquired by said com-
pany and wheresoever situated, which at any time can not be advan-
tageously used in the proper and judicious operation, management
or maintenance of the railroads and property of the railroad com-
pany, and the business thereof; provided, that the railroad company
shall apply the proceeds of any such sale or sales to the acquisition
of additional property or equipment necessary or useful in the opera-
tion, management or maintenance of its railroads and property and
which shall immediately fall or be made to fall under the lien of
this mortgage; and further provided that no such sale shall be made
if it exceeds the sum of $ , unless the written assent of the
trustee shall have first been obtained.

Third—The railroad company covenants and agreés that it will
fully and entirely pay off and satisfy the whole of said bonds to be
issued hereunder, principal and interest, according to the terms
thereof, without delay and without deduction from either said prin-
cipal or interest for any taxes, assessments and governmental or
other charges, now or hereafter imposed upon the said bonds or any
interest thereon, either by the United States, or by any state, county
‘or municipal authority, which the railroad company may be required
to deduct therefrom. Until default shall be made in the payment of
the principal or interest of the bonds hereby secured, or of some of
thew, or in respect to something hereby required to be done, ob-
served, kept or performed by the railroad company, and continue
for the term hereinafter specified, the railroad company shall be suf-
fered and permitted to possess, manage, operate and enjoy the here-
inbefore described railroads, appurtenances, equipment, rights, fran-
chises and other property, real and personal, and to receive and use
the tolls, rents, incomes, issues and profits thereof. When and as
the interest coupons annexed or to be annexed to the bonds secured
hereby mature and are paid by the railroad company or by any per-
son or corporation for it or on its behalf, they shall be cancelled.
All coupons maturing before the delivery of bonds by the party 0
MortTGaGE, 548

the second part shall be cut off and cancelled by the party of the
second part before the delivery of the bonds.

Fourth—All branches, extensions, improvements, additions and!
constructions hereafter acqnired or made by the railroad company
shall immediately become subject to the lien of this mortgage and:
the railroad company shall and will from time to time deliver to the-
trustee such proper and appropriate conveyances as may be neces-
sary for that purpose, and the railroad company,shall and will at any
time, upon the request of the trustee, make, do, execute, acknowl-
edge and deliver all such other acts, deeds and assurances in the law
as may be reasonably advised, devised or required for effectuating
the intention of these presents, and for the better agsuring and con--
firming unto the said trustee, and its successors in the trusts hereby
created, upon the trusts and for the purposes herein expressed, all
and singular the railroads and other property, equipment, appurte-
nances, rights and franchises hereby conveyed, or intended to be,.
whether now owned or possessed or hereafter acquired by the rail-
road company, its successors or assigns.

Fifih—The railroad company shall and will, from time to time,.
pay and discharge, before the same shall fall into arrears, all taxes,
,assessments and governmental charges, lawfully imposed upon the
franchises, and lands, and other hereby mortgaged premises, or upon:
any part thereof, the lien of which might or could be held to be-
superior to the lien hereof, and will pay and discharge all claims of
every kind and nature which may hereafter become a lien upon the
shereby mortgaged premises, or any part thereof, prior to the lien
hereof, so that the priority of this mortgage may be duly preserved ;.
and the railroad company will faithfully and promptly observe and
‘perform all the terms, covenants and conditions on its part to be
observed and performed, contained in any and all of the several
agreements, indentures, leases and contracts hereinbefore enume-
rated, and hereby mortgaged, and shall not, and will not, suffer any
matter or thing whatsoever whereby the lien hereof might or could
be itpaired until the bonds hereby secured, with all interest accrued
thereon, shall be fully paid and satisfied; and until such time the:
railroad company will maintain and keep up said railroads, with
their equipment and rolling stock, in good order, and will from.
time to time substitute new equipment and rolling stock suited to-
the operations of the company for any of the present or future
equipment or rolling stock which may be destroyed or become unfit
for use or unsuited to the operations of the company ; said equip-
ment and rolling stock shall always be in quantity and amount suffi-
cient for the operation of its said lines; and the said railroad com-
pany will at all times keep so much of the said mortgaged premises.
and property as is subject to damage by fire, insured against loss by
fire in the usual manner, and in case of loss or injury by fire, the
proceeds of insurance shall be set apart from all other funds and:
used only in repair or renewal of the property injured or destroyed,
or for construction, improvements or equipment of any part of the

e
542 Forms.

railroad or property included or intended to be included in this deed
of trust or mortgage.

Sixth—In case default shall be made in the payment of any of the
‘interest on any of the bonds hereby secured, or in the observance or
performance of any other covenant hereof on the part of the party
of the first part, and such default shall continue for months,
then and thereupon the entire principal sum hereby secured shall,
at the option of the trustee, become immediately due and payable,
anything in said bonds or herein to the contrary notwithstanding;
.and if requested so to do by the holders of a majority in interest of
the bonds hereby secured and then outstanding, by an instrument or
-concurrent instruments in writing signed by them or by their attor-
neys in fact, duly authorized for that purpose, it shall be the duty
of and it is hereby made obligatory upon the said trustee to elect
to declare the principal sum due, as aforesaid, or to refrain from
making such declaration, upon such terms and conditions as such
holders shall deem proper, and such holders may, in like manner,
annul or reverse the declaration, it already made by the trustee, any-
thing herein contained to the contrary notwithstanding; but the
action of the trustee, or of the bondholders, in case of any one default,
shall not affect or impair the rights of the trustee or of such holders
in respect to any subsequent delault on the part of the railroad com-
pany, or impair any rights resulting therefrom.

Seventh—In case default shall be made in the payment of any
amoney, principal or interest, on any of the bonds hereby secured, or
in the observance or performance of any other covenant herein on
the part of the party of the first part, and such default shall continue
for months, the trustee may, and upon the request of the
holders of a majority in interest of the bonds hereby secured and
then outstanding, by an instrument or concurrent instruments in
writing, signed by them or by their attorneys in fact duly authorized
for that purpose,* and upon proper indemnification as hereinafter
provided, shall forthwith enter into and upon and take possession of,
personally or by its agents or oflicers, all and singular the railroads
and other property, and the equipment thereof, and the appurte-
nances thereto hereby conveyed, or intended to be, together with all
records, books of account, maps and surveys of the said railroad com-
pany, and have, hold and use, operate and manage the said railroads
and property, and, from time to time make all needful repairs, and °
_ such alterations thereof and additions and improvements thereto, as
to it shall seem wise, and as the net income coming into its hands
shall be adequate to pay for, and receive the tolls, rents, incomes,
issues and profits thereof, and out of said rents, tolls, incomes, issues
and profits pay all the proper costs, charges and expenses of so
taking, holding and managing the same, including a reasonable com-
pensation to said trustee, its agents, attorneys and counsel, and all
taxes, assessments and other liens superior to the lien of these pres-
ents, and all expenses of such repairs, alterations, additions and im-
MortTGaGE. 543

i

provements, and apply the remainder of the money so received by it
as follows: In case the principal moneys secured. by such bonds
suall not have become due, to the payment of the coupons remain-
ing in default, pro rata, but in the order of their maturity; in case
the said principal moneys shall have become due, to the payment of
the principal and accrued interest, pro rata, without any preference
or priority whatever.

Highth—In case default shall he made in the payment of any, &.,

as in“ Seventh” above to the * then continue,| with or without entry,
shall sell all of the premises, estates, property, rights and franchises
hereby conveyed, at public auction, at some suitable and usual place
in the city of , having first given such notice of such sale as
is required by law, and also notice by pubuication in at least
newspapers published in the city of ,and in at least
newspaper published in the city of , at least twice a week
for months next preceding such sale; and shall have power,
farther, from time to time, to adjourn such sale, in its discretion, and
upon such sale to make and deliver to the purchaser or purchasers of the
premises, ‘estates, property, rights and franchises so sold, a good and
sufficient deed or deeds for the same, which sale shali be a perpetual
bar, both in law and in equity against the railroad company,and all
persons and corporations lawfully claiming, or to claim by, through
or under it, and, upon the making of any such sale, the principal of
all the bonds hereby secured and then outstanding shall forthwith
become due and payable, anything in said bonds to the contrary
notwithstanding, and upon the making of any such sale, the said
trustee shall apply the proceeds thereof as follows, to wit:

1. To the payment of the costs and expenses of such sale, includ-
ing a reasonable compensation to such trustee, its agents, attorneys
and counsel, and all expenses, liabilities and advances made and in-
curred by said trustee in operating and maintaining the railroads
and property hereby conveyed, or intended to be, and all taxes and
assessments superior to the lien of these presents.

2. To the payment of the whole amount of principal and interest
which ehail then be owing or unpaid upon the bonds secured hereby,
pro-rata, without any preference or priority whatever, whether the
said principal by the tenor of said bonds, be then due or yet to be-
ome due. In case of the insufficiency of such proceeds to pay in
fuil the whole amount of such principal and interest owing and un-
paid upon said bonds, payment shall be made upon said bonds rata-
bly in proportion to the amounts owing and unpaid thereon, and
without discrimination as between principal and interest, and pro
rata, and without any preference or priority whatever.

Ninth—The receipt of the trustee, who shall make the sale here-
inbefore authorized, shall be a sufficient discharge to the purchaser
or purchasers at such sale for his or their purchase money ; and such -
purchaser or purchasers, his or their heirs or assigns, or personal
representatives, shall not, after paying such purchase money and re-
544 Forms.

4

ceiving such receipt of the trustee therefor, be obliged to see to the
application of such purchase money upon or for the trusts or pur-
poses of these presents, or be in any wise answerable for any loss,
misapplication or non-application of such purchase money by the
trustee.

Tenth—If default shall be made in the payment of any money,
principal or interest, ou any of the bonds hereby secured, and such
default shall continue for months, it shall be the duty of, and
it is hereby made obligatory upon the trustee, upon request of the
holders of a majority in interest of the bonds hereby secured and
then outstanding, by an instrument or concurrent instruments in
writing, signed by such bondholders, or their attorneys in fact, duly
authorized for that purpose, and upon proper indemnitication, as.
hereinafter provided, to proceed forthwith to enforce the rights of
the said trustee and of the bondholders under these presents, by sale
or entry, or both, according to such requisition, or by judicial pro-
ceedings for such purpose, as it, being advised by counsel learned in
the law, shall deem most expedient in the interests of the holders of
the bonds secured hereby.

Eleventh—In case of any default on its part, as aforesaid, the rail-
road company shall not, and will not, apply for or avail itself of any
injunction or stay of proceedings, or plead, use, interpose, or claim
or seek to take advantage of any appraisement, valuation, stay, ex-
tension or redemption Jaws, or any other law now existing or which
may hereafter be passed in the state of , or in the state of

, or in the United States, in order to prevent or hinder
the enforcement or foreclosure of this mortgage, or the absolute sale
of the premises, estate, property, rights and franchises hereby con-
veyed, or the final and absolute putting into possession thereof im-
mediately after such sale, the purchaser or purchasers thereof, bui
hereby waives the benefit of all such laws.

Tweljth—Upon the filing of a bill in equity or other commence-
ment of judicial proceedings to enforce the rights of the trustee and
of the bondholders under these presents, the said trustee shall be en-
titled to the appointment of a receiver or receivers of the property
hereby mortgaged, and of the earnings, income, rents, issues and
profits thereof, pending such proceedings, with such powers as the
court making such appointment shall confer. And such appoint-
ment shall be made as a matter of strict right and without regard to
the adequacy or inadequacy of the value of the premises and prop-
erty hereby mortgaged, or to the solvency or insolvency of the party
of the first part.

Thirteenth—In case of any foreclosure sale, or any sale under the
provisions hereof, the purchaser or purchasers at such sale shall be
entitled, in making the settlement for, or payment of, the purchase
money bidden, to turn in toward the payment of snch purchase
money any of the bonds and coupons secured hereby, held by such
purchaser or purchasers, counting such bonds for that purpose at the
MortTGAGE. 545

sum which shall be payable out of the net proceeds of such sale, to
the holder or holders of such bonds and coupons, as his or their just
share of such net proceeds, after allowing for the proportion of pay-
ment which may be required in cash for the costs and expenses of
the sale; and if such share of net proceeds. shall be less than the
amount then due upon such bonds, to make such settlement by re-
ceipting on such bonds the amount to be credited thereupon.

Fourteenth—Any request or other: instrament required by this in-
denture to be executed by bondholders, may be in any number of
parts, and may be executed by them in person or by attorney, in
fact. It shall be sufficient proof of the due execution of such request
or other instrument by the holders of the requisite amount of bonds,
if it shall be shown, as hereinafter provided, that the persons exe-
euting such request, or other instrument, had on deposit with the
trustee, or with any trust company, banking corporation or firm ap-
pow by the trustee, [or with more than one of them,] in the

nited States or in foreign countries, at any one time, the bonds
mentioned in such request, to the requisite amount. The certificate
of any such trust company, banking corporation or firm, or any
officer or member thereof, as to the fact and date of the deposit of
bonds with it, the numbers of the bonds deposited and the period of
time for which such deposit was made, and as to the execution and
date of execution of such request or other instrument by the person
making such deposit of bonds, shall be sufficient proof of cach of
such facts. The fact and date of the execution by any person of
any such request or other instrument, may also be proven by the
certificate of any notary public or other officer authorized to take
the acknowledgment of deeds, that the person signing such instru-
ment acknowledged to him the execution thereof.

Fifteenth—The trustee may, and, upon the request of the railroad
company shall, cancel and discharge the lien of these presents, and
execute and deliver to the railroad company such deeds as shall be
requisite to satisfy the lien hereof, and reconvey to the railroad com-
pany the estate and title hereby conveyed, or intended to be, when-
ever all the bonds and coupons secured hereby, which shall have
been duly issned, shall be paid and cancelled or destroyed.

Sixteenth—It is further agreed, that the railroad company shall at
all times, maintain a public office in the city of , for the reg-
istration of the bonds hereby secured, as in said bonds provided, and
shall at all such times, appoint and keep appointed in said office a
transfer agent, duly supplied with proper books for such registra-
tion, who shall, at all proper times, make registration of the owner-
ship of any of such bonds, on demand of the owner or holder thereof
so presenting the same, and being entitled to such registration, and
that the holders of any registered bonds shall be permitted to trans-
fer the same upon the books of the railroad company at such times
and in such form as said company may from time to time prescribe ;
and that the railroad company shall permit the holders of coupon

9A
546 Forms.

bonds, or such of them as elect so to do, to surrender the same and
receive in exchange therefor an equivalent amount of the registered
bonds of the railroad company, provided that the same are presented
in amounts of $ ; all such registrations, transfers and exchanges
of bonds to be without any charge or expense to the owner or holder
thereof.

Seventeenth—It is hereby mutually covenanted and agreed be-
tween the parties hereto, that the trustee shall not be under any
obligation to take any action towards the execution of this trust,
which, in its opinion, will be likely to involve it in expenses or lia-
bility, unlegs one or more of said bondholders shall, as often as re-
quired by said trustee, give it reasonable indemnity against. the
same, anything herein contained to the contrary notwithstanding ;
and that the said trustee shall be entitled to receive for its services
in the discharge of the trusts hereby created, reasonable compensa-
tion to be fixed by some court of competent jurisdiction unless
agreed upon by the parties in interest, and that for its said compen-
sation and that of its agents, attorneys and counsel, and its expenses
incurred hereunder, it shall have alien and charge upon the said
mortgaged property prior to all other charges created by this mort-
gage. And itis further mutually covenanted and agreed that the
trustee shall not be answerable for anything except gross negligence
or willful default in the discharge of its duties. And it is hereby
‘further mutually covenanted and agreed between the parties hereto,
that the said trustee may resign and discharge itself of che trust
hereby created by notice in writing to the railroad company, to be
given at least months before such resignation shall take effect,
or such shorter time as the railroad company shall accept as ade-
quate. And, whenever a vacancy shall occur in the office of trustee
hereunder by resignation or otherwise, the board of directors of the
railroad company, or its successors or assigns, shall have the right to
appoint a successor or successors to fill such vacancy, provided that
such appointment shall be ratified and approved by the court,
and notice to the bondholders shall be published in newspapers
in the city of for days’specifying the time and place
of the application for such approval and ratification, which appoint-
ment or order ratifying and confirming the same, or certified copies
thereof, shall be filed with the new trustee and also-in the office of
the clerk of county in the state of New York, and the suc-
cessor or successors appointed as aforesaid, shall continue to be the
trustee or trustees hereunder, until a majority in interest of the
holders of the bonds hereby secured, then outstanding, shall, by an
instrument or concurrent instruments in writing, executed under
their hands and seals, or the hands and seals of their attorneys in
fact, duly authorized for that purpose, and filed in the office of said
clerk of the county of , appoint a new trustee or new trustees
to act hereunder, in which case upon such filing of such instrument
or instruments, the trustee or trustees thereby appointed shall with-
Mor Gace. 547

out any further act, deed or conveyance become the trustee or trus-
tees hereunder, and if said board of directors shall, for days
neglect or refuse to proceed to fill any such vacancy, the same may
forthwith be filled by a majority in interest of the holders of the
bonds hereby secured, then outstanding, by filing, as aforesaid, the
instrument or instruments of appointment hereinbefore specified.
An appointment made in the manner hereinbefore prescribed by or
in behalf of a majority in interest of the holders of the bonds hereby
secured then outstanding, shall supersede any appointment to fill a
vacancy theretofore made in any other manner whatsoever ; and any
trustee or trustees appointed to fill any such vacancy, or to succeed
any trustee or trustees hereunder, shall be vested with and entitled
to all rights, title, interest and estate, powers, duties and trusts
herein conveyed and contained, as if originally named in this mort-
gage. The railroad company covenants and agrees that it will pay
to the trustee or trustees hereunder its or their reasonable fees and
expenses in the execution of the trusts hereby created. :

Eighteenth—The term or words “trustee” or “said trustee” as
used in these presents, shall be held and construed to mean the trus-
tee, party of the second part, or its successor or successors for the
time being, and said successor and successors shall have and be pos-
sessed of, and shall be competent to exercise all the estate, rights,
property and powers hereby granted to or conferred upon the party
hereto of the second part.

Nineteenth—In order to facilitate the record of this instrument the
same may be simultaneously executed in several coynterparts, each
of which so executed shall be deemed to be an original, and such
counterparts shall together constitute but one and the same iostru-
ment.

Lastly—The party. of the second part hereby accepts the trust
herein created and covenants faithfully to execute the same.

In witness whereof, the party hereto of the first part has caused its
corporate seal to be hereunto aflixed and attested by its secretary, and
these presents to be signed by its president, and the party hereto of
the second part has caused its corporate seal to be hereunto affixed
and attested by its secretary, and these presents to be signed by its
president, the day and year first herein written.

THE RAILROAD COMPANY,
By , President.
{Corporate seal. ] \

Attest:
, Secretary.
THE Trust CoMPANY,
By , President.

(Corporate seal. ]
Attest:
, Secretary.
548 Forms.

State or New York, we

County of ;

* On the day of , in the year one thousand eight hundred
and ninety , before me, the undersigned, a notary public of
the state of New York, in and for the county of , personally
came , known to me to be the secretary of the

Railroad Company, the corporation described in and which executed
the foregoing mortgage, or deed of trust as party of the first part
thereto, who being by me duly sworn, did depose and say: That
he resides in ; that he is the secretary of the said
Railroad Company and knows the corporate seal thereof; that the
seal affixed to the foregoing mortgage or deed of trust is the corpo-
rate seal of the said company and was thereto affixed by order of the
board of directors of the said company, and as the voluntary act and
deed of said company, and that he signed his name thereto by the
like order as secretary of the said company. And the said deponent
further said that he is acquainted with and knows
him to be the president of said company ; that the signature of the
said subscribed to the foregoing mortgage or deed of trust
is in the genuine handwriting of the said , and was
' thereto subscribed by the like order of the said board of directors,
and in the presence of said deponent.
In witness whereof, I have hereunto set my hand and official
[SEAL.] seal the day and year above written.

 

 

Notary Public,
. ; —— Co.
[Clerk's certificate as required. ]
[Acknowledgment of trust company. ]

 

No. 7.
LEASE OF RAILROAD.

This indenture, made and entered into this day of ’
in the year of our Lord , by and between the Rail-
road Company, a corporation duly organized, &&., the party of the
first part, and the Railroad Company, a corporation duly

organized, &c., party of the second part, and whose roads do not run
on parallel or competing lines ;

Witnesseth, First: That the party of the first part for itself, its
successurs and assigns, and for and in consideration of the rents,
covenants and agreements herein mentioned, reserved and contained,
on the part and behalf of the party of the second part, and its suc
cessors and assigns, to be had, kept and performed, has granted,
demised and leased, and by these presents, does grant, demise and
lease unto the said party of the second part, its successors and as-
signs, the entire railroad of the party of the first part lying, being
LEASE. 549

and extending from its [northern] terminus at or near ‘
in the county of , and state of New York, in a [southerly]
direction, through portions of the counties of — , to its
{southern] terminus at or near , in said county of i
being in length miles, or thereabouts. Also, all
the lands, tenements, hereditaments and appurtenances, build-
ings, fixtures and machinery appurtenant to, and belonging to, or
connected with and forming a part of the said railroad, or in any
manner used or employed by the said party of the first part in
operating the said railroad. Also, all ties, rails, fencings and erec-
tions of every kind belonging to, or upon, or connected with said
railroad. Also, all the cars, locomotives, engines, tools, machinery,
equipments and appliances belonging to or convected with said rail-
road and the nse thereof. Also, all and every right of way, license,
easement, right, privilege and immunity of the party of the first part
conferred by, possessed or enjoyed under and by virtue of its char-
ter, and of any and every act passed, or to be passed, amendatory
thereof and otherwise, however obtained, with the full right and
authority to have and hold and use such rights of way, easements,
rights, privileges and immunities as fully as the party of the first
part might or could do if these presents had not been executed.

To have and to hold, all and singular, the above described railroad
property, estate and effects, including the right of way, easements,
licenses, privileges and immunities aforesaid unto the party of the
second part, its successors and assigns, from the day and date hereof
for and during the term of years, yielding and paying there-
for unto the party of the first part, its successors and assigns, rent at
the rate of dollars per, annum from the date of these
presents, payable in the way and manner following. [Such contract
may provide for the exchange or guaranty of the stock or bonds of either
corporation. See § 78 of R. R. Law; also § 40 of Stock Corporation
Law, last ‘paragraph. | i

Second—And the said party of the first part, for itself and its
successors and assigns, hereby covenants and agrees to, and with the
said party of the second part, its successors and assigns, that it has
full power and lawful authority to execute these presents, and that
the said party of the second part, its successors and assigns, paying
the said yearly rent above reserved and performing the covenants
and agreements herein contained on its part, shall and may at all
times during the continuance of this lease, peaceably and quietly
have, hold, possess and enjoy the railroad property, rights and effects |
hereby demised, and every part thereof, without any manner of let,
suit, trouble or hindrance of or from the party of the first part, its
successors or assigns, or any other person or persons whomsoever
lawfully claiming or to claim the same, and the said party of the first
part further covenants and agrees in manner aforesaid that the party of
the second part, its successors and assigns, shall at all times during the
continuance of this lease, have the exclusive right to manage and con-
550 Forms.

t

tro] the said railroad and premises and property and to regulate and
‘determine the rates of passage money, tolls, freights and charges for all
the transportation over the whole or any part of said railroad and
premises, and shall also have full, free and exclusive right to charge
and collect all the passage money, rents, tolls, freights and charges
and to appropriate the same to its own use, and shall have, use and
exercise all the rights, powers and authority aforesaid and all other
corporate powers and privileges, which can or may be lawfully exer.
cised and enjoyed by the party of the first part if this instrument
had not been made, and as exclusively, amply and entirely as the
party of the first part has or shall acquire authority by law to grant
the same, subject nevertheless at all times to the restrictions and reg-
ulations enforced by law. And the said party of the first part fur-
ther covenants and agrees in manner aforesaid that it shall and will
from time to time during the continuance of this lease make, execute
and deliver to the party of the second part, its successors and assigns,
all and every such further and other leases, deeds, transfers, instru-
ments in writing and assurances as by said party of the second part,
its successors and assigns, shall be reasonably demanded and required
for fully effectuating the objects, intents and purposes of this lease
and of leasing the railroad and other property hereinbefore men-
tioned and hereby leased or intended so to be, and for more fully
confirming and securing unto the party of the second part, its suc-
cessors and assigns, all the rights and privileges hereinbefore men-
tioned and granted and secured, or intended so to be. And the
party of the first part covenants and agrees that in cases where it is
not now the owner of the fee, that on or before , it will
secure and perfect title to all station grounds and yards and a per-
fect right of way for the whole line of said road, which right of way
shall secure the right of occupation and use thereof for railroad pur-
poses during the existence of the charter ofthe party of the first part,
and in case of failure of the title of any part of the real estate or right of
way now or hereafter to be acquired, from any cafise except the
neglect or default of the said party of the second part, and said party
of the second part shall be compelled to pay any sum by reason
thereof to perfect and secure the title or occupation, the amount so
paid may be deducted from the rent hereby payable; and the party
of the first part further covenants and agrees in manner aforesaid
that it will at its own expense and without unnecessary delay put
on record in the proper offices all evidences of title and all papers
and releases in any manner affecting the title of any of its real estate
or right of way which pass or are intended to pass by virtue of
this conveyance; and said party of the first part further covenants
and agrees to pay and discharge all claims for damages and injury
to adjoining lands, to public highways, turnpikes and plank road
corporations occasioned by the construction of said road.
Third—And said party ofthe first part, for itself and its succes-
sors and assigns, hereby covenants and agrees, that it will at alb
LEasE, 551

times, when thereunto reasonably required by said party of the sec-
ond part, do and perform at the expense of the said party of the sec-
ond part, all reasonable acts, matters and things as may be proper
for the due protection, preservation and enjoyment of the property
hereby demised, and to carry into effect the true intent and meaning
of this instrument, so far as the same may be done consistently with
the rights of the said party of the first part, and in default thereof
the same may be done by, but at the expense of the party of the
second part, and therein the said party of the second part may use
the same power and authority as the said party of the first part has,
had, or may have in the premises; and further, that said party of
the second part may at any time and in all places, at its own ex-
pense, use the corporate name of the party of the first part in any
actions or proceedings which it shall be necessary to institute and
defend for the enforcement and protection of the rights of the said
party of the second part against third parties. And the said party
of the first part covenants and agrees, in manner aforesaid, to give
the party of the second part due and timely notice of all actions and
proceedings commenced against said party of the first partin any
wise affecting or seeking to affect the rights of said party of the sec-
ond part, and the said party of the first part further covenants and
agrees, in manner aforesaid, that said party of the second part may
at all reasonable and proper times have the right to inspect and use
all documents, contracts and conveyancés in which said party of the
second part has an interest, and which belong to and are in the pos-
session or under the control of the said party of the first part.

Fourth—And said party of the second part, for itself, its succes-
sors and assigns, in consideration of the demise, covenants and
agreements herein contained, and to be fulfilled and kept on the
part of the party of the first part, its successors and assigns, hereby
covenants and agrees, that it will lease the railroad and property of
the said party of the firat part as above described, and upon the
terms and conditions herein set forth and described, and will pay to
the said party of the first part therefor, and as, and for the annual

rent of the same as aforesaid the sum of dollars per an-
num, as follows: , said rent to begin to accrue
and to be reckoned from the day of , 18

Fifth-—-And said party of the second part, for itself and its suc-
cessors and assigns, hereby covenants and agrees, that during the
continuance of this lease, it will at its own cost, risk and expense,
maintain, preserve and keep the aforesaid railroad in good working
condition and repair as a first-class railroad, and so as to be suitable
for the transaction of all the business that can be reasonably done
thereon, -and will maintain, preserve and keep the said tracks, sta-
tion houses, fixtures, appurtevances, toole, machinery, rolling stock
and equipments belonging or appertaining to the said railroad, in as
good repair, order and condition as the same were in at the date of
these presents, and will maintain and keep in order all crossings,
552 Forms.

fences, cattle guards and warning boards which are or should be
necessary or required by law, and will operate, employ and use the
said railroad, its fixtures and appurtenances, so as to do and perform
in a proper manner all the business offered to and which can be
reasonably done upon the same, and will perform all and every duty
and obligation toward the public, which the party of the first part
would be legally bonnd tu do and perform under its charter if these
presents had not been executed.

Sixth—And the said party of the second part for itself and its
successors and assigns, hereby covenants and agrees that during the
continuance of this lease it will pay, bear and discharge all taxes and
assessments of every description assessed, imposed, levied and accru-
ing upon the railroad, property and effects hereby demised, and
upon the business dene upon the said railroad from the date hereof,
and turther that the said party of the second part will pay all ex-
penses for construction, repairs and salaries of its own ofticers and
otherwise, which may be incurred by the said party of the second
part on account of the railroad and demised premises from the date
hereof, and will also pay and discharge all damages which may be
recovered against said party of the first part for injuries to persons
or property or from negligence or breach of duty as carriers or ware-
honsemen, and in all respects save the said party of the first part
harmless and indemnified from all damages, losses and penalties
which may be recovered or arise in or by the conduct, use or opera-
tions of the said railroad during the continuance of this lease.

Seventh—It is hereby further mutually covenanted and agreed’ by
and between the said parties that the said party of the second part
may from time to time at its own expense make all such alterations,
improvements and additions in, upon or to the property hereby de-
mised as may be proper for its full enjoyment for railroad purposes,
and in case said party of the second part shall at any time desire for
its more advantageous use of said demised property to acquire, ob-
tain or enjoy any additional lands, rights of way, or other property,
said party of the first part when thereto reasonably required and in-
demnitied against all expenses and damage therefrom shall aid them
with its name, power and authority, and in default thereof such
name, power and authority may be used by said party of the second
part after fully indemnifying the said party of the first part as afore-
said, and all lands, rights of way or other property which shall be
so acquired or obtained shall immediately become part of the prop-
erty covered by this demise. |

Highth—The payment of the sum of dollars hereby secured
shall be and continue a [first] lien upon the entire property leased
with all increase thereto, and prior to any lien to be hereafter created
for any purpose other than to take the place of any lien now exist-
ing.

Ninth—And it is hereby futher mutually covenanted and agreed
by and between said parties that in case of default in payment of
LEASE. ' ° 553

said sum of dollars, and if the same or any part thereof shall
remain unpaid for the space of days from and after the time
or times when the same shall become due and payable, then the said
party of the first part shall have the right to enter upon and take
possession of all the property hereby leased and all depots, shops,
buildings, tracks and other permanent property or rolling stock
added thereto, and that the said party of the second part will not
unlawfully hinder or prevent such entry nor the taking possession
aud using of all the said property by the party of the first part for
its own benefit and use, and that this lease shall terminate upon the
said party of the first partso taking possession of the demised prem-
ises. Provided, however, that-.in case the party of the second part
shall be unavoidably restrained by injunction or by law, [not ob-
tained by or upon their own actions,|]from paying the aforesaid rent
and performing the covenants herein contained or any of them, then
and in that case the time during which the party of the second part
shall be so restrained shall not be taken or considered as any part of
the aforesaid days.

_Tenth—This lease shall not be assigned by said party of the sec-
ond part without the consent of the party of the first part in writing
first had and obtained.

Eleventh—And it is further mutually covenanted and agreed by
and between said parties, that all the provisions of this instrument
shall extend to and bind the respective successors and assigns of the
parties hereto, and whenever mention is hereinbefore made of either
party hereto, the successors and assigns of such party shall be
deemed to be comprehended and included.

In witness whereof, each of the said corporations parties
hereto, has caused its corporate seal to be affixed, and caused
these presents to be subscribed by its president this
day , in the year 18 :

B. y ee
President.
[Corporate seal. |
Attest :

 

Secretary.
[Also by other company. | .
[Add acknowledgment of each corporation. |

STATE OF NEW YORK, bes,

CouNTY OF ; :
: , secretary of a special meeting of the stockholders

of Railroad Company, a domestic corporation organized
under and pursuant to chapter , of the laws of . of
the state of New York, entitled “An act,” etc., held for the purpose
of approving the foregoing contract and lease, do hereby certify,
pursuant to section 78 of the Railroad Law,
554 Forms.

That a notice of such meeting, of which the following is a true

copy, was published once a week for four weeks successively in

, a newspaper printed in the city where such corporation

has its principal office, and a copy of such notice was served person-

ally npon, or duly mailed, postage prepaid, to each stockholder at
his post-office address at least thirty days before said meeting:

Notice To STOCKHOLDERS.

 

 

A special meeting of the stockholders of the Railroad
Company will be held on the day of ,18 , at
o'clock in the noon, at its office, No. ; street,
in the city of , for the purpose of voting upon a proposi-
tion to contract or lease its railroad to the Railroad Com-
pany, [or as the case may be,| and to approve a certain lease of its
road and franchisee, bearing date of ;

Dated, &e.

?
Secretary of the Railroad Co.

At the time and place specified in such notice, stockholders of
such company, representing at least two-thirds of all its shares of
stock, appeared in person or by proxy, and organized by choosing
from their number as chairman, and the undersigned
as secretary.

A vote of those present, in person or by proxy, was taken upon
the following resolution, moved by and seconded by

“Resolved, That a certain lease [describing 2] be and the same is
hereby approved and ratified in all things.”

Stockholders owning shares of stock, being at least two-
thirds of the stock of the company, voted in favor of such resolu-
tion. Stockholders owning shares of stock voted against

its adoption, [or as the case may be,] whereupon such resolution was
duly declared adopted, and said lease approved.

In witness whereof, I, , the secretary of the
said Railroad Company, have hereunto certified
the above facts upon the said lease or coutract, and have
hereunto set my hand and affixed the corporate seal of said

Railroad Company, this day of , 18
[ Corporate seal. ]

 

’
Secretary of Railroad Company.
[Add acknowledgment. ]

[A similar certificate should be prepared by the secretary of the other
party to the lease. |
CERTIFICATE OF REORGANIZATION. 555

No. 8.

CERTIFICATE OF REORGANIZATION,

STATE OF NEW YORK,
County oF ee

We, the undersigned, under and in pursuance of the provisions of
“The Stock Corporation Law,” do hereby certify :

That the property and franchises of the Railroad Com-
pany, a domestic corporation organized under chapter of the
laws of of the state of New York, entitled “ An act,” &c.,
were on the day of. ,18 ,duly sold by / ;
referee, [as the case may be,] under and by virtue of a judgment and
decree [or, an execution issued upon a judgment] of the supreme
court of this state, docketed and entered in the clerk’s office of the
county of , on the day of , 189 , [and
said sale having been duly confirmed by an order of said court granted
at @ special term thereof, held at the court house in the city of :
on the day of , 189 , which was duly entered in the
clerk's office of county, on the day of 189 .]

The following is a briet description of the property sold :

That at such sale and became the pur-
chasers of and acquired the property and franchises of said corpora-
tion, and desiring to become a corporation, and to take and possess
the property and franchises thus sold, which were at the time of sale-
possessed by said corporation, the said purchasers have associated.
with themselves the. following persons:

[not less than fifteen] a majority of whom are citizens and residents
of this state; and we, the undersigned, said purchasers and asso-
ciates, do hereby further certify ;

That the name of the pew corporation intended to be formed by
the filing of this certificate, shall be the Railroad Com-
pany.

That the maximum amount of its capital stock shall be
dollars, and the number of shares into which the same shall be di

vided is , of dollars each, [of which

dollars, or shares, shall be common stock, and

dollars, or shares, shall be preferred stock. That the rights
_ pertaining to each class shall be as herein specified, to wit, -}

That the number of directors which shall manage the affairs of
the new corporation shail be , [not less nor more than the
number required by law for the old corporation,] and the names and
post-office addreeses of the directors for the first year are as fol-

lows:

That the following plan or agreement was entered into at or pre-
vious to the time of sale in anticipation of the formation of the new
556' Forms.

corporation herein specified, and such purchase was made pursuant
to it. Said plan or agreement is made a part of this certificate.
[Insert plan, ; see § 4, of Stock Corporation Law.|
In witness whereof, we, the undersigned, the said purchas-
ers and their associates, have made this certificate in du-
plicate, and have hereunto subscribed our names, this
day of 18.
[Add acknowledgment. |

 

No. 9.

CERTIFICATE OF INCREASE OR REDUCTION OF NUM.
BER OF DIRECTORS.

STATE OF NEW YORK, ss

CouNTY OF
We, the undersigned, the president and secretary of the meeting
of stockholders of the Railroad Company, a domestic cor-

poration hereinafter mentioned, do hereby certify that the following
is a correct transcript of the minutes of the proceedings of a special
meeting of the stockholders of said company, held pursuant to sec-
tion 21 of “ The Stock Corporation Law :”

 

 

 

+N. Y.,
— , 189 .
A meeting of the stockholders of the said Railroad
‘Company was held this day at o'clock M., to determine

whether the number of directors of said company shall be increased
[or reduced.j Such meeting was held at the office of the company
at No. ‘ street, in the city of , the usual
place of meeting of its directors, on two weeks’ notice in writing to
each stockholder of record in such corporation. Such notice was
served personally or by mail, postage prepaid, directed to each stock-
holder at his last known post-office address, which said notice was in
the words and figures following:

OFFICE OF THE RaILROAD COMPANY.
Notice to Stockholders.

 

 

 

-——, N.Y;

—, 189.
Notice is hereby given that a special meeting of the stockholders
of the Railroad Company will be held at the office of the
company, the usual place of meeting of the directors, at No. ‘
street, in the city of , on the day of ‘
189 , at o'clock in the noon, to determine whether the

number of its directors shall be increased [or reduced. }
Secretary.

Proof of service of said notice was duly filed in the office of the
corporation at or before the time of such meeting.
Directors—Inspectors oF ELEcTION. 557

Pursuant to such notice, the meeting was held and the same was:

duly organized by choosing as president and as.
secretary thereof.

On motion of , duly seconded by , the fol-
Jowing resolution was adopted :

“Resolved, That the number of directors of Railroad.
Company be increased [or 7educed] from , the present num-
ber, to ,” [not above or below the number prescribed by law.}

The vote thereon was taken by ayes and noes.

The following stockholders, owning the number of shares of stock
set opposite their respective names and owning a majority of the
stock of said corporation, voted in favor of said resolution, to wit:

. shares, ete.

The following stockholders, owning the number of shares of stock
set opposite their respective names, voted against its adoption, to
wit :

; shares.
[or, as the case may be.]

Such resolution was thereupon declared adopted, and the meeting
then adjourned.

In witness whereof, we have made, signed and verified this.
certificate in duplicate this day of , 189.
——,, President.
—————,, Secretary.

 

STATE OF NEW YORK, )
County oF er '

and , being severally duly sworn,
depose and say, and each for himself deposes and says, that they are
the persons chosen president and secretary, respectively, of the
meeting of stockholders of the Railroad Company men-
tioned in the foregoing transcript, held to determine whether the
number of directors of said corporation shall be increased, [or re-.
duced ;| that the foregoing is a correct transcript of the proceedings.
of said meeting as entered in the minutes of the corporation, and of
the whole thereof.
Subscribed and sworn to before me,

this day of , 189.

[Add. acknowledgment. ]

 

No. 10.

CERTIFICATE AND OATH OF INSPECTORS OF ELEC-
TION.

STATE OF NEW —, ee

CouNTY OF ‘ : es

We, the undersigned, inspectors of election of the Rail-.

road Company, duly appointed to act at the annual meeting of the

stockholders of such corporation, do hereby certify, pursuant to sec-.
tion 28 of the Stock Corporation Law, as follows, to wit:
558 Forms.

That such meeting was held at the office of the company on the
day of , 189 , at o'clock in the noon of
that day.

That before entering upon the discharge of our duties, we, the
‘said inspectors, were severally sworn to faithfully execute the daties
of inspector at such meeting with strict impartiality, and according
to the best of our ability, the oath so taken has been subscribed by
us, and is hereby annexed and marked Exhibit “A.”

That at such annual meeting, the election of directors to manage
the affairs of said company for the ensuing year was held.

That upon a canvass of the votes cast at such election, it was
found that the number of votes hereinafter stated, representing

shares of the capital stock, had been cast as follows:
; votes, &c.

Whereupon the said stockholders in said company
having received a plurality of the votes of the stockholders voting at
such election were duly declared elected directors of such corporation
for the ensuing year.

In witness whereof, we have made, signed and acknowl-
edged this certificate this day of , 189.
—— , Inspectors.

 

[Jurat.]
[Add acknowledgment |

Exuipit “A.”

STATE OF NEW YORK, =
COUNTY OF :

We, , the inspectors duly appointed to act at the
election of directors at the annual meeting of the stockholders of the
Railroad Company, being severally duly sworn, do
depose and say, and each for himself deposes and says, that he will
faithfully execute the duties of inspector at such meeting with strict
impartiality and according to the best of his ability.
Subscribed and sworn to before me, }

 

this day of , 189.
No. 11.
CERTIFICATE OF STOCK.
No. . Capital stock, . Shares,
THE RAILROAD COMPANY.
This is to certify that is the owner of shares of ,
the capital stock of the Railroad Company, transferable

only on the books of the company by the holder thereof, in person
or by attorney, on the surrender of this certificate.
INCREASE OR REDUCTION oF STOCK: 559

In witness whereof, the said company has caused its cor-
porate seal to be allixed hereto, and this certiticate to-be
signed by its president [or vice president] and treasurer {or
secretary. |

yoNs Yas , 189 .

President [or Vice President.]

 

 

 

 

Treasurer [or Secretary. |
[Seal of Corporation. |

| Endorsed. }

For value received, hereby sell, assign and transfer
unto ' g shares of the within men-
tioned stock, and do hereby constitute and appoint , the

- treasurer of said company, attorney, to transfer the same on
the books of the company.
Witness my hand and seal this day of , 189.
[L. s.|
Witness :

[7 desired, section 26 of the Stock Corporation Law may be printed
upon the certificate. |

 

No. 12.

CERTIFICATE OF INCREASE OR REDUCTION OF CAP-
ITAL STOCK.

_ STATE OF NEW YORK,
County oF ;
We, , chairman and secretary of a special meet-
ing of the stockholders of the Railroad Company, a
domestic corporation organized under and pursuant to chapter
of the Laws of of the state of New York, entitled ‘‘ An Act,”
etc., held for the purpose of increasing [or reducing] its capital stock,
do hereby certify, pursuant to section 46 of the Stock Corporation
Law, that a notice of such meeting, of which the following is a true
copy, was published oncea week for at least two successive weeks in
, anewspaper 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 at his last known
post-office address at least three weeks before the meeting: a

SS.

“Notice To STOCKHOLDERS.

‘A special meeting of the stockholders of the Railroad
Company will be held on the day of ,18 , at
o'clock in the noon at its office, No. ; street, in the city
of , N. Y., for the purpose of voting upon a proposition to

increase [or reduce] its capital stock from dollars, consisting
560 Forms,

of shares, of the par value of dollars each, to
dollars, to consist of shares, of the par value of dol-
lars each.

“Dated, ete. SS

“A Majority of the Directors,”

At the time and place specified in such notice, stockholders of
such company, representing at least two-thirds of all its shares of
stock, appeared in person or by proxy, and organized by choosing
from their number the undersigned as chairman and as
secretary.

A vote of those present, in person or by proxy, was taken upon
the following resolution, moved by and seconded by :

“ Resolved, That the capital stock of the Railroad Com-
pany be increased [or reduced, not to be less than $10,000 for every
muile,] from its present amount of dollars, consisting of
shares, of the par value of dollars each, to dollars, to
consist of shares, of the par value of dollars each.”

Stockholders owning shares of stock, being at least
two-thirds of the stock of the company, voted in favor of such reso-
lution. Stockholders owning shares of stock voted against
its adoption, [or as the case may be,] whereupon snch resolution was.
duly declared adopted.

The amount of capital of the corporation actually paid in is
dollars.

The whole amount of its debts and liabilitics ie dollars,
[not exceeding the amount of tts reduced capital, if reduced. ]

The amount of the increased [or reduced] capital stock is

dollars.
In witness whereof, we have made, signed, verified and

acknowledged this certificate in duplicate this day of
, 18 .
————,, Chairman.
—--——., Secretary.
STATE OF NEW YORK,
County oF ue
, chairman, and , secretary of the said meet-

ing, being severally and 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 is true to his own knowl-
edge except as to the matters therein stated to be alleged on inform-
ation and belief, as to those matters he believes it to be true.

[Jurat.] a

[Add acknowledgment. ]
[The certificate should have endorsed thereon the approval of the
board of railroad commissioners. |

 
AGREEMENT FOR CONSOLIDATION. 561

No. 18.
AGREEMENT FOR CONSOLIDATION.

This joint agreement made the day of ,»18 , between
the directors of the Railroad Company, party of the first
part, and the directors of the _ Railroad Company, party of
the second part, under the corporate seals of said companies, [two or
more railroads may consolidate,] witnesseth ; That the Rail.
road Company, said party of the first part, is a railroad corporation
organized under ch. of the Laws of of the state of New
York, entitled “An Act,” &., [and under ch. of the Laws of state
0 ,] and operating a railroad wholly within the state of New
York, Lor, partly within the state of New York and partly within the
state of ; or, whose lines or routes of road have been located in
said state or partly within, dc., but not constructed,] as follows, to wit :
From the city of , to the city of , to and through
the counties of , and the capital stock thereof is
dollars, divided into shares of dollars each. That the

Railroad Company, said party of the second part, is a rail-
road corporation organized under ch. of the Laws of of
the state of New York, entitled “An Act,” &. [And ch. of
the Laws of of the state of ; or, under ch, of the Laws
of of the state of ,] and operating a railroad within the
state of New York, [or as the case may be,] as follows, to wit: From
the city of to the city of , to and through the conn-
ties of , and the capital stock thereof is dollars, &c.,
[as above. |

That the railroads of said companies [or branches, or a part thereof,
or the lines or routes of their road if not constructed] form [or shall or
may form] a continuous or connected line of railroad with each
other, [or by means of an intervening railroad bridge, tunnel or ferry, |.
as follows: Describe same. And the same do not run on parallel or
competing lines, [except in case of street railroad corporations. |

That in consideration of the mutual covenants and agreements

_ herein contained the said parties hereto do hereby agree to and do,
as provided by “The Railroad Law,” [77 one of the corporations is
@ foreign ‘corporation statutory authority of the foreign state is neces-
sary and should probably be set out. Peo.v. NV. Y., Chic. & St. L.
R. R. Co., 129 N. Y., 474,] hereby merge and consolidate the cap-
ital stock, franchises and property of the party of the first part, with
the capital stock, franchises and property of the party of the second
part to form one corporation of the name hereinafter set out. [See
section 6 of General Corporation Law.] And they do further hereby
covenant and agree upon and prescribe the terms and conditions of
the consolidation of such corporations and railroads, and the mode
ot carrying the same into effect, which they mutually covenant and
agree to observe as follows, to wit: ([Jnsert special terms and condi-
tions, and mode of carrying same into effect.)

10-A
562 Forms.

And they do mutually further covenant and agree that the name
of the pew corporation shall be the Railroad Company.
That the number of the directors of the new corporation shall be
, [not less than nine.]
That the names and places of residences of the directors and other
officers thereof who shall be the first directors and officers of said
new corporation, are as follows:

 

Directors. Residences.

 

 

 

Officers. Residences.

 

 

That the number of shares of the capital stock shall be ;
and the amount or par value of each share shall be dollars,
[not exceeding the sum of the capital stock of the corporations so con-
solidated at the par value thereof. |

That the manner of converting the capital stock of each of the
corporations parties hereto, into that of the new corporation, shall be
as follows:

That the first election of officers of said new corporation shall be
heldonthe day of , 189 , and annually thereafter.

[Such other details as are deemed necessary to perfect a new organ-
wation and the consolidation of such corporations. |

In testimony whereof, the said parties of the first and second
parts have executed this certificate in duplicate, and have hereunto
set their respective signatures, and have caused to be hereto affixed
the corporate seals of their respective railroads, of which they are
respectively the directors, the day and year first aforesaid.

[AW directors. |

 

 

 

’
Directors of the Company.
{Corporate seal.]
Attest : ——., President.
——__-—_, Secretary.
[AU directors.] —_—__—__,
Directors of the Company.
{Corporate seal. ]
Attest: ———_———, President.
—_— Secretary.

 

[Acknowledgment of first named corporation proved by its secretary.]

[ Acknowledgment of second named corporation proved by tts secre-
tary. |

[Acknowledgment of the directors of the first named company. |

[ Acknowledgment of the directors of the second named company]
AGREEMENT FOR CONSOLIDATION. 563

The following consent may be endorsed upon the agreement:
We, the undersigned, stockholders of the - Railroad
Company, owning two-thirds in amount of its capital stock, to wit,
shares, do hereby certify, pursuant to subdivision 2 of sec-
tion 71 of the Railroad Law, that we consent and assent to the
within agreement of consolidation of said corporation with the
Railroad Company.

In witness whereof, we have set our hands to this consent
and the number of shares of stock owned by us respectively
in such company, this day of ‘

. shares.

Add acknowledgment and affidavit of’ secretary or treasurer, as in
form of “Certificate of Hxctension of Corporate Existence,” in this vol-
ume. [Form No. 4.]

A similar certificate should be executed by the stockholders of the sec-
ond named corporation.

If such consent ts not executed by holders of two-thirds of the stock
of either corporation, the following proceedings should be taken and
certificates made :

STATE OF NEW cee ag

%

CouNTY OF

I, , secretary of the [name of first named corporation]
Railroad Company, a corporation duly organized and existing under
the laws of the state of , [as the case may be,] do hereby
certify, under the corporate seal of said company, that the annexed
agreement, bearing date the day of , 189 , for
the consolidation of the said Railroad Company with the
said Railroad Company, under the uame of the

Railroad Company, as the corporate name of such new corporation,
was submitted to the stockholders of the said [insert name of first
mentioned company| at a special meeting of such stockholders called
and held at the ottice of said company, No. ; street,
in the city of on the day of , 189 , for
the purpose of taking the same into consideration ; that due notice
of the time and place of holding such meeting, and the object thereof
was given by the said Railroad Company to its stock-
holders by written or printed notices addressed to each of the per-
sons in whose name the capital ‘stock of such corporation at the
time of giving such notice stood on the books thereof, and that such
notice was delivered to such persons respectively, or sent to them by
mail, postage prepaid, when their post-office addresses were known
to said corporation, at least thirty days before the time of holding
snch meeting, and that a general notice of the time and place and
object of snch meeting was published at least once a week for four
weeks successively in the [name of newspaper,] being a newspaper
_published and printed in the city of , in which said Rail-
road Company has its principal office or place of business.
564 Forms.

That at such meeting of said stockholders the annexed agreement
of the directors of said companies was considered, and a vote taken
by ballot for the adoption or rejection of the same by and on behalf
of the Railroad Company on its part, in. pursuance of and
in conformity to the provisions of subdivision 2 of section 71 of
“The Railroad Law,” and that upon said ballots, votes of the stock-
holders owning at least two-thirds of all the stock, present, and
voting in person or by proxy, were cast for the adoption of said
agreement for consolidation, there having been cast for such adop-
tion the votes of shares, more than two-thirds of all the
stock of said company. That such agreement for consolidation was
thereupon declared adopted.

In witness whereof, J, , the said secretary of the
said Railroad Company, have hereunto certified
the above facts upon the said agreement for consolidation,
and hereunto set my hand and affixed the corporate seal of

 

 

said Railroad Company, this day of , 189.
[ Corporate seal.}
Secretary of the Railroad Company.
[Add acknowledgment. ]

[A similar certificate should be prepared by the secretary of the sec-
ond named corporation. |

 

No. 14.

CERTIFICATE TO MAP AND PROFILE FILED WITH
COUNTY CLERK.

We, the undersigned, do hereby certify that this is a correct map

 

 

and profile of the route adopted by the Railroad Com-
any in county, filed in pursuance of section 6 of “The
Railroad Law.”
Dated , 189 .
—--——_——_,, President.
—— , Engineer of the — Ratlroad Co.
Witness : ‘
Or, ; , &e., a majority of the directors of
the Latlroad Company.
No. 16.
NOTICE TO OCCUPANTS.
To , occupant of land over which the route of the

Railroad Company, as designated, passes :
Take notice, that a map and profile of the route adopted by the
Railroad Company in county, certified by the
Notice or Location—Cuance or Route. 565

president and engineer [or a majority of the directors] of said com-
pany in due form of law, was on the day of , 189,
duly filed in the office of the clerk of the county of , and
that the said route designated thereby passes over the lands occupied
by you, said lands not having been purchased by or given to said

 

 

 

company.
Dated , 189.
Yonrs, &c.,
THE RAILROAD Company, by , Secretary.
\ ; No. 16.
NOTICE OF APPLICATION FOR CHANGE OF ROUTE.
SUPREME COURT— County.
In the Matter of the petition of i
against |
THE RaILRoaD CoMPANY |
and others. J
To the Railroad Company, and
[the owners or occupants of lands to be affected by the proposed alter-
ation. |

You are hereby notified that a petition, survey, map and profile,
copies ot which are hereto annexed, will be presented to the Honora-
ble , 4 justice of the supreme court, in the judicial dis-
trict where the lands described in the petition are situated, at his
chambers, in the city of , ete, of which petition and papers
a copy is herewith served upon you; and an application will then
and there be made to said justice, based upon said petition and
papers, for the appointment of three disinterested persons, under
section 6 of “The Railroad Law,” to examine the route adopted by
the said corporation and the route to whick it is proposed to alter
the same, as set out in the petition, survey, map and profile, hereto
attached, and to make determination thereupon in accordance with
the provisions of said section.

Dated , 189 .
Yours, &c.,

 

No. 17.
PETITION FOR CHANGE OF ROUTE.

SUPREME COURT— County.

[Title as in preceding form.]| ;
To the Honorable , one of the justices of the supreme

court in the judicial district :
566 Fors.

The petition of respectfully shows, that he is the owner
of certain pieces or lots of land situate in the town of , county
of , and state of New York. Thaton or about the day of

, 189 , there was served upon your petitioner by the

Railroad Company, a written notice of the time and place where the
map and profile was filed, designating the route of its road. That
such route as designated and laid out passes over the land of your
petitiouer described as follows: ([Jnsert description.] That the said
corporation has heretofore given written notice to all actual occu-
pants of the lands in the county of , over which the route of
the road is designated, which have not been purchased by or given
to said corporation, of the time and place such map and profile was
filed, and that fifteen days from such service will expire before the
day set for the hearing of this application.
. Your petitioner further shows that the map hereto annexed
marked “ A” is a true copy of the map and profile filed by the said
railroad company, except that it is reduced in size, and contains a
delineation of the proposed alteration hereinafter referred to. The
red line on said map shows the location as proposed by the company,
and the blue line upon said map shows the alteration of route pro-
posed by your petitioner.

And your petitioner further shows that he feels aggrieved by the
location proposed by said railway, and that the following are the pe-
tioner’s objections to such route and location: [Jnsert same]

That the said proposed alteration of the route will not cause
greater damage or injury to lands, or materially greater length of road
than the route designated by the corporation, nor will it substantially
change the general line adopted by the corporation.

Your petitioner, the owner of the land affected, ,and

are the only owners affected by the proposed alteration.

And your petitioner in accordance with the statute in such case made
and provided hereby asks that the said ronte or location be altered ;
and that commissioners be appointed for the purpose of considering
the propriety of such alteration ; and to examine the route proposed
by the company and the alteration of the route proposed by your
petitioner, and to determine in regard thereto.
’ Wherefore, your petitioner prays that three disinterested person’,
one of whom shall be a civil engineer, be appointed by your Honor,
commissioners to examine the route proposed by the corporation and
the route to which it is proposed to alter the same, and to adopt the
proposed alteration, if deemed consistent with the just rights of all
the parties ard the public, including the owners or occupants of
lands upon the proposed alteration.

Dated , 189.

[Add verification. ]
CoMMISSIONERS TO ExaMINE RourTE. 567

No. 18.

ORDER APPOINTING COMMISSIONERS TO EXAMINE
ROUTE.

At CHAMBERS, &e.
[Tile as in preceding Forms.]

The application noticed by the petitioner herein named, having
been duly heard and considered, now on reading and filing said
petition, verified on the day of , 189 , and notice of mo-
tion thereto attached, the affidavit of , verified the
day of , 189 , &., and on motion of , for said peti-
tioner, appearing for the defendant, the Railroad Company,
and for the defendants , it is :

Ordered, That ,& practical civil engineer of the city of

; of , and of , three dis-
interested persons, be and the same are hereby appointed commis-
siovers, under and pursuant to ‘The Railroad Law,” to examine the
route over the land of the petitioner above named, more particularly
mentioned and stated therein, and also the route to which it is pro-
posed by the petitioner to alter the same, and after hearing the par-
ties to affirm the route originally designated, or adopt the proposed
alteration thereof as may be consistent with the just rights of all the
parties and the public, including the owners or occupants of lands,
upon the proposed alteration, and to make and certify their deter-.
mination thereupon in accordance with the statute.

 

JSC.
No. 19.
OATH OF COMMISSIONERS.
SUPREME COURT— County.

[Title as in preceding Form. ]

County, } 8s.

We, the commissioners duly appointed by an order of the Honor-
atle , justice of the supreme court, commissioners to ex-
amine the proposed routes of the petitioner and the railway com-
pany in the above entitled proceeding, do sclemnly swear that we
will support the constitution of the United States and the constitu-
tion of the state of New York, and that we will faithfully perform
the duties of such commissioners and of said office according to the
best of our understanding and ability, and each of us for himself so
swears.

Subscribed and sworn to before me, }
this day of , 189.
568 Forms.

No. 20.
DETERMINATION OF COMMISSIONERS TO EXAMINE
ROOTE.
SUPREME COURT, County.

[Title as in preceding Forms.]

We, the undersigned, designated and appointed by the Honorable

, a justice of the supreme court, commissioners to exam-

ine the route proposed by the company and the route to which, by

the petition of , it is proposed to alter the same, after hear-

ing the parties and hearing testimony on both sides, do affirm the

route originally designated by the said corporation, [or, do adopt the

alteration proposed by and in the petition of said , and the map

and survey attached hereto. And we do hereby determine that said

railroad shall be and 1s hereby located on the route proposed in the
said petition. ]

And we do hereby determine that the said railroad shall be and
hereby is located accordingly, and that the said location is consistent
with the rights of all parties and the public, [including the owners or
occupants of lands upon the proposed alteration. |

Dated , 189.

 

?
Commissioners.
We do hereby certify that the within is the determination by us
made in the within proceedings, and that the same was duly made
and signed by us and each of us at the day of its date, and that the
testimony herewith returned is all the testimony taken before us.
Dated , 189

 

No. 21.
NOTICE OF APPEAL.
SOPREME COURT, Counry.
[Title of the case.]
To , Esq., attorney for , and , Esq.,
county clerk of county :
Srrs,—Please take notice that the defendant, the Rail-
road Company, hereby appeals to the general term of this court, in
the department, from the decision and determination of the

commissioners in the above entitled proceeding, in and by which
determination the said commissioners adopted the alteration in the
line of said railway as proposed by the said petitioner in this pro-
ceeding, such determination, with the petition, map, survey and
profile, and the testimony taken by them, having been filed in the
office of the clerk of county on the day of , 189.
Dated, ,189 .
Yours, &c.,

 

 

Attorney for the Railroad Company, defendant.
i

OFFER 10 PurcHASE—ACCEPTANCE, 569

 

 

No. 22.
OFFER TO PURCHASE REAL PROPERTY.

SUPREME COURT, County.
THE RAILROAD CoMPANY,
Plaintiff, |
against \.

|

Defendant. |

To , Defendant :
The Railroad Company, the plaintiff herein, hereby

offers to purchase from you the real property situated in the city of
, and described as follows: [tnsert description,] at and for

tho price of dollars, as provided in section 3372 of the Code
of Civil Procedure.
_ [Date]

THE RAILROAD Company, by President.

Attorney for Plaintiff.
{Add acknowledgment as of a deed by a corporation.].

 

 

No. 23.
ACCEPTANCE OF OFFER.
[Title as in preceding Form.]

To the Railroad Company, Plaintiff:
You will please take notice, that the undersigned, the owner of
the property hereinafter mentioned, hereby accepts the offer of the
Railroad Company, plaintiff herein, to purchase the real
property described in the offer dated the day of , 189 ,
and heretofore served at the price of dollars named therein.
[Date.]

Defendant.

 

[Add acknowledgment. |

No, 24.
AFFIDAVIT OF PLAINTIFF.

[ Title of the case. }
County, }ss.
, of , being duly sworn says, that he is the
president of the Railroad Company, a corporation duly or-
ganized under the laws of the state of New York; that annexed

'
570 -> Fors.

hereto is the petition for the condemnation of the property therein
described and notice of the presentation thereof, which said petition
and notice is marked Exhibit “A.” That before the same was
served on defendant the said Railroad Company, the plain-
tiff herein, duly made and caused to be personally served on the
defendant the offer to purchase said property at the price of
dollars, which said offer was duly filed in the clerk’s office of
county on the — day of , 189 , and a copy of which is hereto
annexed and marked ‘B.” That thereafter and on or about the
day of , 189 , and previous to the time of the presenta-
tion of said petition to the court, the defendant served upon
this plaintiff a notice of the acceptance of the plaintiff’s offer to pur-
chase said property, which is hereto annexed and marked “ C.”
~ That the plaintiff desires an order that upon payment of the com-
pensation so agreed upon it may enter into possession of the real
property described in-the petition, and take and hold it for the use
of its railroad for the purposes of its incorporation. That no pre-
vious application has been made for the order asked herein.

Subscribed and sworn to before
me, this day of 189.

 

No. 25.
ORDER.

At a Special Term, &c.
[Title of the case. ]

Upon reading and filing the annexed petition and notice of presen-
tation thereof, and the said plaintiff having made a written. offer to
purchase the property hereinafter described at the price of dol-
Jars, and the defendant having duly served notice of
the acceptance thereof, at or previous to the time of presentation of
said petition, as provided in section 8372 of the Code of Civil Pro-
cedure, and upon reading and filing the affidavit of , presi-
dent of said Railroad Company, the plaintiff herein, veri-
fied on the _— day of , 189 , and on motion of , how
of counsel for said plaintiff, it is ordered, that upon payment of the
said sum of dollars, the said plaintiff may enter into possession
of the real property described in the petition and take and hold the
same for the use of its railroad, for the purpose of its incorporation.
Said real estate is described as follows:

[Lnsert description. ]
Enter. J& 0
PETITION FOR CONDEMNATION. 571

 

 

No. 26.
PETITION FOR CONDEMNATION.
SUPREME COURT— County.
THE RaILRoAD ComPANy, |
Plaintiff, ,
against \
and “i
Defendants.
To the supreme court of the state of New York:
The Railroad Company by this petition, respectfully
shows to this court:
Firsi—That the said Railroad Company is a domestic

[or foreign] railroad corporation duly organized’ under and pursuant
to ch. of the Laws of of the state of , entitled “ An Aet,”
&c., for the purpose of constructing, maintaining and operating a
railway for public use in the conveyance of persons and property

from the city of to and through the counties of to the city
of . [State facts of organization, as follows: example]
That the said Railroad Company was organized under

and in pursuance of ch. 917 of the Laws of 1869, of thestate of New
York, entitled “An Act to authorize the consolidation of certain
railroad corporations,” by the consolidation of the Railroad
Company, a corporation duly organized and existing under and pur-
suant to ch. of the Laws of the state of New York, entitled “ An
Act, &.,” and the Railroad Company, a corporation duly
organized and existing under the ch. of the Laws of _ of the
state of New York, entitled “An Act,” &., by a joint agreement
for consolidation made between them and tiled in the office of the
secretary of the state of New York on the day of , 189.
That the lines of the railroad companies consolidated as aforesaid,
as located by them, formed one continuons and connecting line of
road with each other. [See form of consolilation agreement.
That the said plaintiff has its principal place of business at
, and that the names and places of residences of its principal
officers are as follows, viz:
, President, , New York.
, Secretary, » New York, &c.
And of its directors are :
, New York, &c.

Second—Tihe property to be condemned is situated in the town of

; county, New York, and the following is a spe-

cific description of the same by metes and bounds, to wit: [Insert
description. |

[Or, is @ right, interest or easement as the case may be in or to or

appurtenant to the following specifically described property located in
572 Fors.

the town of , and described by metes and bounds as follows,
(insert description.)

Or, the right to cross or occupy so much of the turnpike or plank
road of said corporation as is shown upon the map hereto annexed.
The following is a specific description of the same, ée.]

Third—The property is required for the use of the said railroad
corporation for the purpose of its incorporation, pursuant to section
7 of “ The Railroad Law,” [or sec. 11 or sec 12, dc., as the case
may be,] that the same is necessary for a part of its roadbed, to be
constructed in accordance with a certain map or profile of the route
adopted by it in the county of , certified by the president and
engineer of the corporation, and filed in the office of the clerk of the
county of , on the day of , 189.

[Or, that the same is required for tracks, switches and sidings, where-
on and whereby plaintif’s cars and trains may be moved, loaded, and
unloaded, stored, received and dispatched;

Or, that plaintiff's railroad ts lawfully in possession of the

Railroal Company as lessee, or of
mortgagee, trustee, or receiver, and the said real property is re-
quired for the operation of such road as follows;

Or, that the said corporation requires a further right to said lands or the
use of said lands for switches, turnouts, or for filling structures of tts road,
or for constructing, widening or completing its embankment or roadbed,
by means of which greater safety or permanency will be secured, and
such lands are contiguous to such railroad and reasonably accessible
to the place where the same are to be used for such purpose or pur-
poses, to wit, only Feet therefrom ; that said property ws
necessary from the great increase of business of the plaintiff, in that
ait will enable the plaintiff to lay owt additional tracks for the loading.
and unloading of cars, furnish additional room for the storage of cars
and for increased convenience in the receipt and delivery of freight ;

Or, that the said corporation requires a further right to lands or to the
use of lands for the flow of water, occasioned by railroad embankments
or structures now tn use or made necessary by ‘

Or, for any other purpose necessary for the operation of said railroad,
as follows;

Or, to the use of land for a right to take and convey water from

any spring, pond, creek or river to such railroad for the uses and
purposes thereof, together with right to build or lay aqueducts, de.
(See Statute.)
Or, that said real estate is now used by plaintiff for its roadbed, and
the title to said real estate has been acquired or attempted to be ac-
quired, and has been found to be invalid or defective as follows, to
wit, :

Or, for a change in the line of a highway, turnpike or plank road,
made desirable by an embankment or cutting, with a view to a more
easy ascent or descent, said directors having selected a new line for said
highway, as shown on the map hereto annexed.]}
PETITION FOR CONDEMNATION. 573

 

., Fourth—That the names and places of residences of the owners of the
“property are as follows: ,Tesidingat No. , street,
<in the city of , N. Y., and whose place of residence can
not, after diligent inquiry, be ascertained, [stating extent of inquiry; ]

, who holds an interest in the same as trustee and in trust

for , neither of whom are capable of selling the same, and a
person unknown, whose name and residence can not, after diligent
inquiry, be ascertained ; that for the purpose of ascertaining, inquiry
was made of |stating efforts to discover the name and residence of the

person. |

That said is an infant, and his general guardian is ‘
who resides at ; street, in the city of ,N. Y.

That isan infant ; that he has no general guardian, and resides
with , at No. ’ street, in the city of , N.Y.

That said is a lunatic, and that his committee [or trustee]
is , who resides at , &; that said is an habitual
drunkard; that he has no committee [or trustee,] and resides with

, at, &e.

That said isa non-resident, residing in the city of

and state of , having an agent [or attorney] in the state

authorized to contract for the sale of said property, whose name is
, Tesiding at, &c.

That 1s interested in said real estate as mortgagee, and
his residence is, &c. 5

That is interested in said real estate as receiver of the
‘goods, chattels and property of the said , and his residence
is, &e.

Fifth—That the plaintiff has been unable to agree with the owner
of said property for the purchase of said lands [or of the said right,
interest or easement in said lands,] required for such purpose, for the
reason that the said owners demand dollars for said premises,
which sum this plaintiff deems largely in excess of the value thereof;
or, said owners have refused to sell the said property to this plaintiff
for a sum which this plaintiff deems a reasonable compensation
therefor, to wit, the sum of dollars. That this plaintiff has
endeavored in good faith to agree with the owners or persons inter-
ested therein, or having the charge or direction of the same, as to the
amount of such compensation ;

Or, for the reason that the name and place of residence, or place
of residence of the owner, can not, after diligent inquiry, be ascer-
tained as aforesaid; or because the owner thereof is incapable of sell-
ing the same as aforesaid. : : ;

[Or, that plaintiff has been unable to agree with the said turnpike
or plank-road company upon the amount of damages sustained by atin
consequence of the crossing or occupation of ts said turnpike or plank-
road by said plainuff for the reason, dc,] ae

Stath—That the value of said real property, [or right, interest or
ee or appurtenance to lands, or the use of lands,] is
dollars.
574 Fors.

Seventh—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. [Or, the saxd work or improvement has been heretofore
completed, and it 1s the intention of the plaintif{ in good fatth to main-
tain and operate the same.] That all the preliminary steps required
by law have been taken to entitle the plaintiff to institute these pro-
ceedings. [This would seem to be a compliance with the section,
Rochester Ry. Co. v. Robinson, 183 N. Y., 493; but it would be

proper to add,| That the said Railroad Company
heretofore made a map and profile of the route adopted by it
in the county of , named in its certificate of incorporation,

which was certified by the president and engineer of the corpora-
tion, [or a majority of the directurs,] and the same was filed in the
office of the clerk of the county of , in which the said
road is to be built, on or about the day of , 189 ; and
that more than fifteen days prior to the institution of these proceed-
ings, this plaintiff gave written notice to all actual occupants of the
land over which the route of the road is designated on said map in
the said county of , and which lands have not been pur-
chased by or given to said corporation of the time and place such
map and profile were filed, and that the route designated passes over
the lands of such occupants. That none of the occupants or owners
of said land have given notice of an application for the appointment
of commissioners to examine the said route. [Or, if such proceed-
ings have been taken, state the fact and add,] that all applications
made for a change of route in said county have been finally determin

ed. [This clause was omitted by the amendments of 1892.] That this
plaintiff has fully complied with section 59 of the Railroad Law, [stat-
ang facts ;] [Lf a street surface railroad or a railroad organized under
Article V. of “The Railroad Law,” omit provision as to filing of map,
and add,| That this plaintiff has heretofore obtained 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 the
streets or highways, upon which it is proposed to construct or
operate such railway. [Or, that the consent of such property owners
can not be obtained, and this plaintiff has obtained in lieu thereof the
determination of three commissioners appointed by the general term of
the supreme court in and for the department in the

judicial district, where the railroad is to be constructed, made after due
hearing of all parties interested and confirmed by the court, that such
ee ought to be constructed and operated, stating the facts in

etarl. | :

Wherefore, The plaintiff demands that it may be adjudged that
the public use requires the condemnation of the real property herein
described, and that plaintiff be entitled to take and hold such prop-
erty for the public use specified upon making compensation there-
for, and that commissioners of appraisal be appointed to ascertain
the compensation to be made to the owners for the property 80
PETITION—NoTICcE OF PENDENCY. 575

taken, and that such further or other order be made herein as may
be just and agreeable to the statutes and the rules and practice of
this court in such case made and provided,

Dated , 189 .
THE RAILROAD Company, by , President.
[Add verification by an officer of the company. |
SUPREME COURT, County.
[Title of the case. ]
Take notice, that the petition of the Railroad Company, a

copy of which is herewith served upon you, will be presented to the
supreme court of the state of New York, at a special term thereof,
appointed to be held at the , 1n the city of , on the
day of 7189, at the opening of court on that day, or as soon
thereafter as counsel can be heard, and a motion will then and there
be made that the demand of said petition be granted.

Dated , 189.

Yours, &e.,

——_——,, Attorney for Plaintiff.

 

Office and Post-oftice address,
' To , defendants,

 

No. 27.

NOTICE OF PENDENCY OF PROCEEDINGS FOR CON-
DEMNATION.

SUPREME COURT, County.
[Title of the proceeding, giving the names of all the parties. |

Notice is hereby given, that a proceeding has been commenced
and is pending in this court upon a petition of the above named
plaintiff against the above named defendants, to acquire by con-
demnation the real property hereinafter described for the use of the
plaintiff for the purpose of its incorporation. ;

That the real property affected by the said proceeding was at the
time ot the commencement of this proceeding, and at the time of the
filing of this notice, is situated in the town of —_, county of

; and is described as follows: [Jnsert description. ]

Dated , 189 .

Yours, &e.,
——_——, Plaintiff’s Attorney.

The clerk of the county of will please index this notice.
against the defendant,

 

oe Plaintiff's Attorney.
576 Forms.

No. 28.
ANSWER IN CONDEMNATION PROCEEDINGS,
SUPREME COURT, County.
[ Litle of the case.]
The defendant, , answering the petition of the plaintiff

herein, denies, [or denies upon information and belief,] that, etc.
- Or, denies each and every allegatiun in said petition contained.
Or, denies any knowledge or information sufficient to form a be-
lief as to each and every allegation in the said petition contained.
Or, denies any knowledge or information sufficient to form a be-
lief as to whether, &c.
Or, the defendant, , answering the petition of plaintiff
herein, alleges that, &c. ‘
Wherefore, this defendant demands judgment against the plain.
tiff, dismissing the petition herein, together with costs.
, Defendant's Attorney.

 

 

 

Office and Post-oflice address, &c.
[Add verification. ]

 

No. 29.
ORDER ALLOWING THE PLAINTIFF TO ENTER INTO
POSSESSION OF THE PROPERTY.
At a Special Term, &e.

[ Title: of the case.]
An answer to the petition herein having been interposed by the

defendant , now on reading and filing the affidavit of '
verified on the day of , 189 , and it sppeeui to the
satisfaction of the court that the public interests will be prejudiced

by delay, and on motion of: , counsel for the plaintiff, it is

Ordered, That the plaintiff be permitted to enter immediately
upon the real property described in the petition, and devote it tem-
porarily to the public use specified in the petition, upon depositing
with the clerk of this court the sum ot dollars, that sum being
the sum stated in the answer as the value of the property, said eum
to be applied so far as it may be necessary for that purpose, to the
payment of the award that may be made herein, and the costs and
expenses of this proceeding, and the residue, if any, shall be re-
turned to the plaintiff; and, in case the petition is dismissed or no
award is made, or in case the proceeding shall be abandoned by the
plaintiff, 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 this proceeding, after such damages have been
duly ascertained, as provided in section 3380 of the Code of Civil
Procedure.

Enter.
——_——_— , u & 6
ORDER OF REFERENCE—J UDGMENT. 577

No. 80.

ORDER OF REFERENCE TO TRY ISSUES.
Ata Special Term, &e.
[Title of the case. |

On reading and filing the petition of the plaintiff herein for the
condemnation of the real property described, and that commissioners
of appraisal be appointed to ascertain the compensation tobe made to
the owners of said property, and proof of service thereof and of no-
tice of the presentation thereof upon all of the defendants, and upon
reading and filing the answer interposed herein by the defendant

 

, and after hearing , of counsel for the plaintiff,
and , of counsel for the defendant, it is :
Ordered, That it be referred to , Hsq., “of coun-
sellor at-law, to hear and determine the issues raised by the answer
of . ‘herein, [or any particular issue.]
Eater.
-——_—— , fF. 8.
No. 81.

JUDGMENT OF CONDEMNATION.

At a Special Term, &c.
[Title of the case. ]

The issnes in this proceeding for the condemnation of thefreal
property described in the petition having been brought to a trial by
the court, and a decision therein having been rendered, [or, been
referred to , Hsq., to hear and determine the same, and his
decision having been rendered, | whereby judgment is directed for the*
plaintiff, and the same having been filed, now on motion of wy,
of counsel for said plaintiff, , of counsel for the defendant, ap-
peariog in opposition thereto, it is ana

Ordered and adjudged, That the public use requires the condem-
nation of the real property described in the petition, and that, the
plaintiff is entitled to take and hold the property for the use specified
‘upon making compensation therefor, and that _, of county,
N. Y. [naming three,| three disinterested and competent freeholders,
who reside in the counties of and , be and they hereby are
appointed commissioners of appraisal to ascertain the compensation.
to be made to the defendant for the property to be taken for the
public use specified, which real property is situated in the county

of , and is described as follows: _ # : ;
It is further ordered, that the first meeting of the said commis-
sioners be held at ‘ county, on the day of 33

189 , at o'clock mM.
Enter.
.—— , A § 0.

11 A
578 ; Forms.

No. 82.
JUDGMENT IN FAVOR OF DEFENDANT.

[As tn last preceding form to the* then add,] , defendant,
and the same having been filed, now, on motion of :
of counsel for defendant, , of counsel for plaintiff in opposi-
tion thereto, it is

Ordered and adjudged, That the petition herein be and the same
thereby is dismissed, and that the defendant recover of the plaintiff

 

dollars and cents, his costs and disbursements, and
ithat the defendant have execution therefor.
Enter.
—_—_—, J £ 6
No. 33.

JUDGMENT BY DEFAULT.

At a Special Term, &c.
[ Title of the case.]

The petition of the plaintiff herein for the condemnation of the
real property described therein, and that commissioners of appraisal
be appointed to ascertain the cumpensation to be made to the de-
fendant coming on to be heard, notice of the presentation thereof
having been duly served on all the defendants, and no answer hav-
ing been interposed, and it appearing from the petition that the
plaintiff is entitled to the relief demanded ;

Now, on motion of , of counsel for plaintiff, it is ordered
&e., [as in form for judgment of condemnation, above.]

 

No. 34.
OATH OF COMMISSIONERS.
SUPREME COURT, County.

[ Title of the case.]

County, } 8s.

We, the commissioners of appraisal, duly appointed by an
order and judgment of this court, to ascertain the compensation
‘to be made to the defendants for the property to be taken by the

Railroad Company for the purpose of its incorporation, do
‘solemnly swear that we will support the constitution of the United
“States and the constitution of the state of New York, and that we
will faithfully perform the duties of such commissioners and of said
-office according to the best of our understanding and ability, and
each of us for himself so swears.

Subscribed and sworn to before }
me, this day of 189 .§
JuDGMENT—OaTH—REPORT— CONFIRMATION. 5,71

No. 35.
REPORT OF COMMISSIONERS.
SUPREME COURT— County. .

[ Fitle of the case. |

To the Supreme Court, of the State of New York:

The undersigned commissioners, appointed by an order and judg
ment of this court, made at a special term thereof, held, &., to-as
certain and appraise the compensation to be made to the defend
ant for the real property proposed to be taken for the public use o:
the plaintiff for the purpose of its incorporation, do respectfully re

ort,

That we met at , on the day of , 189 , at
o'clock in the noon, that being the time and place designated i
said order and judgment, and having first severally taken and sub
scribed the oath prescribed by the constitution of the state of Nev
York, we proceeded to view the premises described in the petition
and to hear the proofs and the allegations of the parties. The follow
ing is a description of the real property proposed to be taken by thi
said plaintiff. |Znsert description. }

That after viewing the premises, hearing the proofs and allega
tions of the parties, and the argument of counsel, . Esq.
appearing for the plaintiff, and , Hsq., for the defendant
the testimony being closed, we did, without any unnecessary delay
ascertain and determine the compensation which ought justly to b
made by the said plaintiff to the said defendant, the owner of th
real property aforesaid, to be the sum of dollars.

That the minutes of the testimony taken by us in this proceedin,
are hereto annexed and marked “A.” All of which is respectful:
submitted.

 

Dated , 189.
——__———., Commissioners.
No. 36.
NOTICE OF MOTION FOR CONFIRMATION AND FINAI
ORDER.
SUPREME COURT, County.
[Title of the case. ]

Sir,—Take notice, that upon the report of the commissioners °
appraisal herein appointed to ascertain the compensation to b
made to the defendant for the property to be taken by the plaintif

‘for the purpose of its incorporation, which was filed in the clerk
office of county on the day of __ , 189 , a copy ¢
which ig herewith served on you, the plaintiff will move at a specis
580 " Forms.

term, &., for an order of confirmation of said report and a final
order herein.
Dated , 189.
Yours, &.,

 

——, Attorney.
To , Attorney for

 

No. 37.
ORDER OF CONFIRMATION.
At a Special Term, &c.

[Title of the case. ]

Upon the report of the commissioners of appraisal herein filed in
the office of the clerk of county, on the day of :
189 , and proof of service thereof and of notice of this motion upon

, attorney for the , and after hearing , of coun-
sel for » itis

Ordered, That the said report and appraisal be and the same here-
by are confirmed.
Enter.
——_— 7 80

No. 38.
FINAL ORDER IN CONDEMNATION PROCEEDINGS.

At a Special Term, &ce.
[{ Title of the case. |

Upon the report of the commissioners of appraisal herein filed in.
the office of the clerk of county, on the day of -
189 , and the said report and appraisal having been confirmed by
this court, [reciting proceedings,| and after hearing , Hsq.,.
of counsel fur , it is

Ordered, That compensation be made by the plaintiff to the de-
fendant, , the owner of the property, pursuant to the deter-
mination of the commissioners, in the sum or amount of
Jollars, and that upon payment of such compensation, the plaintiff
shall be entitled to enter into the possession of the property con-
Jemned, and take and hold it tor the public use specitied in the
judgment..

[Zt ts further ordered and adjudged, that the defendant recover of
the plainuff $ , Ais taxable costs and disbursements of this pro-
weeding, together with an additional allowance of dollars, to be:
yard by the plaintiff to the attorney for the defendant. ]
FINAL OrpER-—Consent To Hicuway CRossINc. 581

And that said amount [or amounis] so directed to be paid as com-
pensation [and for costs, dc.,] be docketed as a judgment against.
the plaintiff and in favor of the defendant.

[Direction as to the payment of any allowance to a guardian or an
attorney for an absent defendant, &:, section 8872 of Orde.].

Enter.
—_—_— 9. 8.6.
No. 39.
NOTICE OF APPEAL.
SUPREME COURT, County.
[Title of the case.]
Sir,—Take notice, that appeals to the general term of the
supreme court in the department, from the final order entered
herein confirming the report of , commissioners appointed

by the said court to ascertain the compensation to be made to the
defendant for the real property proposed to be taken for the public

use of the plaintiff for the purpose of its incorporation.
[The appellant intends to bring up for review the judgment entered
herein on the day of , 189 , in the clerk's office of
county, and the proceedings herein antecedent to such judg-

 

 

 

ment. |
Dated , 189
Yours, &c.,
——, Attorney.’
To , ESQ., attorney for , and , Esq.,
county clerk of county.
No. 40. |

CONSENT OF HIGHWAY COMMISSIONERS TO CON-
STRUCTION OF RAILROAD ACROSS HIGHWAY.

STATE OF NEW YORK, ).

CountY oF 88.
Town of

We, the undersigned, commissioners of highways of said town,
do hereby consent that the Railroad Company may con-
struct a railroad across the public highway leading from to

, provided the usefulness of said highway be not impaired
andisaid highway be restored accordingly. ;
5 [Signed. ]
582 Forms.

No. 41.

PETITION FOR LEAVE TO RUN ACROSS, UPON OR
ALONG A HIGHWAY.

SUPREME COURT— ~ County.

 

In the Matter of the application of }

THE RAILROAD COMPANY
against r
Tre CoMMISSIONERS oF HigHways |
OF THE TOWN OF ;

 

To the Supreme Court of the state of New York:

The petition of the Railroad Company respectfully shows
to the court that the said railroad company is duly incorporated
under and pursuant to Ch. of the Laws of , of the state of
New York, entitled “An act,” &, and is engaged in the construc-
tion of the line of its proposed road from the city of to the
city of , to and through the county of ; that hereto-
tore and before the commencement of such construetion, it filed a
map and profile of the route intended to be adopted by said com-
pany in the county of , including the town of , duly
certified, as required by statute, and gave written notice of such fil-
ing to all the actual occupants of the land oyer which the route of
the road is so designated, and which lands have not been purchased by
or given toit. Thatsaid line of its said road intersects or touche ¢ th
public highway known as ,in road district No. , in said
town of , near, &e., [describing location, ], as such line is laid
down on said map, a copy of which map showing the location of
said crossing is herewith served, and runs upon and along the same
as thereon shown. ‘That your petitioner has acquired the right of
way for the line of its road upon both sides of said highway at all
points where it intersects, or touches, or runs across, upon or along
said highway. That ; , and are commissioners of high-
waysofsaid townof , and thatsaid commissioners are unwilling to:
consent to the construction of your petitioner’s railroad across, upon
or aloug said highway at the point shown on eaid map, aad have re-
fused to give their consent thereto.

That your petitioner is willing and intends to restore said high-
way to its former state, or to such state as not unnecessarily to have
impaired its usefulness.

Wiveratoes your petitioner desires an order, that it be allowed to
run and authorized to construct its road upon, across and along the
public highway in said town as such crossing and location is shown
on the map filed in the clerk’s office of county, on the

day of , 189. ae
Ratroap Company, by , President.

 

[Add verification. ]
OrpDER PERMITTING To Run Across Hicuway. 583

No. 42.

NOTICE OF APPLICATION FOR ORDER.
SUPREME COURT— Counry.

[Title as in preceding form.]

To j and , highway commissioners of the
town of :

Please take notice, that upon the annexed petition and map ac-
companying the same, copies of which are herewith served on you,
the Railroad Company, the petitioner, will apply to the
supreme court at a special term thereof, &c., for an order granting
leave to the petitioner to construct the line of its railway across,
upon and along the highway in the towa of , as such line is
shown on the map served and according to the prayer of the peti-
tioner, or for such other or further relief as to the court may seem
just.

Dated , 189

RAILROAD CoMPANny, by , its Attorney.

 

 

No. 48.
ORDER GRANTING LEAVE.

Ata Special Term, &c.
[Title as in petition. |

Upon reading and filing the petition of Railroad Com.
pany, verified on the day of , 189 , and notice of ap-
plication by the petitioner for an orde1 to run upon, across and
along the highway known as , in the town of , anc
proof of service of the same on the commissioners of highways of
said town, and after hearing , of counsel for the petitioner.
in favor of the application, and on behalf of the commis
sioners of highways of.the town of , in opposition thereto.
it is

Ordered, That the Railroad Company have leave, and be

allowed to run, and authorized to construct its road upon, acros:
and along the public highway in said town as such crossing anc
location is shown on the map filed in the clerk’s office of

county, and on the map served with the petition herein.

Se O.

 
584 Forms.

 

5 No. 44.
‘PETITION IN CASE OF INTERSECTION WITH ANOTHER
RAILROAD.

SUPREME COURT, County.
‘THE RAILROAD Company, |
Plaintiff, |
against L

‘THE RAILROAD CoMPaNYy,

Defendant. J

 

[Hollow petition for condemnation except as indicated in the para-
graphs specified. |

Second—The land for the crossing and intersection proposed to be
condemned is located at the crossing and intersection of the plaintiff's
railroad with the railroad of the defendaut heretofore constructed at
and in the town of , upon the ground of such defendant,
with the necessary turnouts, sidings, switches and other conveniences ©
in furtherance of the object of the connections, and for necessary
intersections and connections, and the facilities requisite therefor, as
described and shown on the diagram annexed hereto. The location
of the property by metes and bounds is as follows. ([Znsert de-
ke

ourth—That the said lands are used by the Railroad
Company, a corporation daly organized, &c., for a part of its road-
bed, and have been acquired by it for the purpose of its incorpora-
tion, and the same are not occupied by the defendant for a purpose
which in its nature requires an exclusive occupation or which would
‘tbe materially impaired by subjecting the land to the use of the
plaintiff.

Fufth—That the parties hereto can not 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.
That the reason ot such inability is as follows: Thesaid Railroad
Company, defendant, has refused to allow the taking or use of said
lands therefor, or to unite with plaintiff in forming such intersec-
tions or crossings, or to grant the necessary facilities therefor, or
agree with plaintiff upon the amount of compensation to be made
‘therefor, or on the points and manner of such crossing, or to agree
with it as to any or either of said matters; that this plaintiff has in
good faith applied to said defendant for said crossings and intersec-
tions and the land, or use thereof, required therefor, and endeavored
to agree on the compensation to be made therefor, and on the points
and manner of such crossings and intersections, and that an agree-
ment thereon and therefor can not be obtained with and has been
refused by the said defendant.
PROCEEDINGS FOR CrossINcs AND INTERSECTIONS, 585

_ Seventh—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 to cross, intersect, join or unite its railroad with
the railroad of the defendant upon the ground cf such defendant,
with the necessary turnouts, sidings, switches and other conveniences
in furtherance of the object of the connections, and to unite with the
said defendant in forming the necessary intersections and connec-
tions, and to grant the requisite facilities therefor.

ae all the preliminary steps, &c., [ follow petition for condemna-
Hon.

Wherefore, the plaintiff demands that it may be adjudged that

_ the public use requires the condemnation of the real property de-

scribed, and that plaintiff is entitled to take and hold such property
for the public use specified upon making compensation therefor, and
that com missioners, one of whom must_be a practical civil engineer and
surveyor, be appointed to ascertain and determine the compensation
to be made for the intersections and connections aforesaid to the
‘defendant, and the line or lines, grade or grades, points or manner
of such intersections and connections pursuant to the provisions of
section 12 of ‘The Railroad Law,” and for such other or further
erder in the premises as the court may deem proper to grant.

Dated , 189.

RaILRoaD Company, by , President.
[Add verification. |

[Notice of presentation at a special term, and that a motion will
there be made that the prayer of the petition be granted. |

 

 

\ No. 46.
ORDER APPOINTING COMMISSIONERS.
SUPREME COURT, County.

[Title as in preceding form. ]
_ [Pollow form for “ Judgment of Condemnation,” except the clause
“appointing Commissioners, for which the following should be substi-
tuted, |
Ordered, that ‘ and | of | , be and
they are hereby appointed commissioners to ascertain and determine
the amount of compensation to be made by the plaintiff to the de-
fendant for the intersections and connections mentioned in the peti-
tion herein, and the line or lines, grade or grades, points or manner of
such intersections and connections at such crossings and intersections
of the line of the plaintiff with the line of the defendant in the town
of in the county of ; and said commissioners
are hereby vested with all the powers and charged with all the
duties specified in the statute in such case made and provided, and
it is further ordered that the first meeting of said commissioners be
held, &c. pie
[Following the form for “ Judgment of Condemnation. ]
586 Forms.

No. 46.
CERTIFICATE OF CHANGE OF ROUTE.
STATE OF NEW arnt a

CouUNTY OF
The Railroad Company, a corporation organized under and
pursuant to Ch. of the Laws of of the State of New

York, entitled ‘An Act,” &c., does hereby certify pursuant to sec-
tion 18, of “ The Railroad Law: ”
That a meeting of the board of directors of said company wae
held at its office in the city of on the day of
189 , at o'clock, ™M., more than two-thirds of the directors
thereof being present.
That at such meeting the following resolution was offered :
“Resolved, That the Railroad Company alter or change its
route [or a part of the route of its road, or its termint, or, locate such
route, or apart thereof, or its termint in the county of whach
adjoins the county of named in tts certificate of incorporation}
as follows, to wit, and, ;
‘‘feesolved, That the president and secretary of this company be
and they are hereby authorized to make and execute a proper certifi-
cate of such alteration or change of route and to file the same in the
clerk’s office of the county of , together with a survey and
map of such alteration or change.”
That said resolution was duly adopted at said meeting by a vote
of two-thirds of all the directors of said company.
In witness whereof, we have made and executed this cer-
tificate and have hereunto set our hands and affixed the cor-
porate seal of said company, this day of 189 .
[Corporate seal. |
——__——_. ,, President.

, Secretary.

 

 

 

[Add acknowledgment.as in a deed by a corporation. ]
No. 47.

CONSENT FOR CONSTRUCTION AND OPERATION OF
STREET SURFACE RAILROAD.

Whereas, the Railroad Company proposes to construct,
maintain and operate a railroad operated by power from
street to streets, to and through streets in

the city of and along and near the center of atreet ;.
Now, therefore, we the undersigned owners of property fronting
on the part of street, between and streets,.

in consideration of the sum of one dollar, do hereby consent that
said company shall have and we do hereby severally grant unto the
- CHANGE OF RouTtE—ConseEnts (STREET RAILROADS.) 587°

said company, the right and right of way to build, construct and
operate [or extend] a street surface railroad in front of our respective
property located as aforesaid.

Dated , 18

 

; [u. 8],
Add acknowledgment. |

 

No. 48.

‘CONSENT TO OPERATION OF STREET SURFACE RAIL-
ROAD BY ELECTRICITY.

We, the undersigned owners of property bounded on the portion
of the streets and highways along which the railroad company [etther
as lessee or owner] has constructed or now operates by animal power
and maintains a street surface railroad, do severally consent that the-
said railroad company may operate said street surface rail-
ways and each of them by electric power, under, upon, along and over
the surtace of the streets and highways on which said railroads are
now operated and hetween the termini thereof and also on which the’
same shall hereafter be extended, constructed and operated [this con-
sent grants the right to maintain and operate the switch in front of my

“premises as now located.] This consent is given pursuant to Ch. 565,
of the Laws of 1890, entitled “An Act in relation to railroads, con-

 

 

stituting ” : . : and the acts amendatory thereof.
Dated , 18
; : ——_—— [L.s.].
_ [Add acknowledgment. ]
No. 49.

NOTICE OF APPLICATION TO LOCAL AUTHORITIES
FOR CONSENT TO CONSTRUCT, MAINTAIN AND
OPERATE A STREET SURFACE RAILROAD.

Notice is hereby given that the Railroad Company
has made application to the common council of | , for
permission to construct, maintain, use and operate a street surface
railway to be operated by electric power, over, along, under, upon,
and through the centre of street from the junction of and

streets westerly to street ; thence westerly,.

ete, with the necessary switches; and that said application will be
considered at a meeting of the common council of the city of
to be held on the day of | 18 at o'clock:

_.M, of that day at the common council chamber in said city
of ‘ 5 :
Dated, &e. a Ee

 

City, Clerk.
588 Forms.

No 50.
APPLICATION TO GENERAL TERM FOR THE APPOINT.-
MENT OF COMMISSIONERS TO DETERMINE WHETHER
A STREET SURFACE RAILROAD OUGHT TO BE CON.
STRUCTED.
‘(GENERAL TERM, DEPARTMENT.

=
|

 

Inthe matter of the application of THE
RAILROAD ComPANy for the ap-
pointment of Three Commission- }
ers to determine whether it ought |
to be constructed. J

‘To the owners of property bounded on the proposed route of the
Railroad Company :

Notice is hereby given, that the Railroad Company, a
‘corporation duly organized, etc., having failed to obtain the consent
of the owners of one-half in value of the property bounded on each ©
-ot the following natned streets on the proposed route of suid rail-

 

 

road company, viz., street, &ec., will apply, pursuant to the
iprovisions of said act upon the petition, a copy of which is hereto
annexed, and also upon the affidavits of , copies of which are
.also hereto annexed and due proof of service thereof to the general
term of the supreme court of the department of the state of
New York, to be held at the court house in the city of ‘
‘in the judicial district, on , , 189 , at the opening

-of the court, or as soon thereafter as counsel can be heard, for the
appointment of three commissioners to determine after a hearing of
all parties interested whether the Railroad Company onght
to be constructed and operated upon and along the streets above
mentioned, and for such other and further relief as may seem good
to the court.
Dated , 189.
THE RarLroap Company, by President.

 

?
Attorney for Petitioner.

 

No. 51.
PETITION. *
[Zitle as in preceding form.]

‘To the general term of the supreme court of the department:
The petition of the Railroad Company respecttully shows,
That your petitioner is a corporation, &c.; that your petitioner

‘was so organized and incorporated to construct, maintain and
APPLICATION TO GENERAL TERM. 589:

operate its street surface railway upon and along the following de-
seribed routes in the eity of , viz, [describe route. |

That the population of said city, according to the last federal:
census or state enumeration is as follows: .

That under the provisions of “The Railroad Law,” your petitioner:
is not authorized to construct, maintain or operate its railroad unless.
upon condition that the consent in writing of the owners of one-half
in value of the property bounded on and the consent also of the
local anthorities having control of that portion of the street or high-
way upon which it is proposed to construct or operate such railroad
be first obtained, except that in case the consent of the property
owners can not be obtained, the company so failing to obtain such
consent may apply to a general term of the supreme court held in
the district in which the road of said company is proposed to be
constructed, for the appointment of three commissioners to deter-
mine, after a hearing of all parties interested, whether such railroad
ought to be constructed and operated, and their determination con-
firmed by the court may be taken in lien of the consent of said
property owners.

And your petitioner further shows, that the consent of the com.
mon council of the city of ; being the local authorities thereof
having control of those portions of the streets and highways upon
which it is proposed to construct such railway, was duly given on
oraboutthe day of , 189 , to your petitioner for the construc-
tion and operation of such railroad; application therefor having
been duly made, as provided in sections 91 and 92 of said act; pub-
lic notice of such application and of the time and place when it
would be first considered having been duly published in two daily
papers of said city, namely, the and , selected by the
mayor, for fourteen days previous to the time when said application
was considered and acted uvon by said common council, and that
such consent was on the day of , 189 , filed in the office of
the clerk of county.

That your petitioner has made diligent efforts to obtain the con
sent of the property owners along its proposed route on said streets,
sufficient in amount to authorize, accofding to the provisions of said
act, the construction, maintenance and operation of its railroad, but
has been unable to obtain the consent of the owners of one-half in
value of the property bounded on the proposed route on the above
mentioned streets and avenues, and has been unable to obtain such
necessary consents.

That the total valuation of the property on that portion of each
of the streets above mentioned along which your petitioner proposes.
to construct and operate its railroad, according to the assessment

roll of the city of forthe year _, and last completed before
the local authorities gave their consent, is as follows, viz: street,
dollars, &e.

That on each of the streets above mentioned along said proposed
ronte the owners of more than one-half in value of the property
590 Forms.

bounded thereon have refused to consent to the construction, main-

tenance and operation of your petitioner’s roadway in front of their

\premises on said streets, as more fully -appears by the affidavit of
, hereto annexed.

‘That the proposed route above described, of your petitioner, is
situated in the same judicial district in which this general term of
the supreme court is held.

Your petitioner further alleges that along no portion of said pro-
posed route is any street surface railroad constructed or to be con-
structed whose consent will have to be obtained as provided by sec-
stion 102 of said act, and said route does not cross any bridge.

Wherefore, your petitioner prays that three commissioners may be
appointed pursuant to the provisions of said act, to determine
whether the railroad of your petitioner ought to be constructed and
-operated along said streets last mentioned, and for such other and
further relief in the premises as may seem fit.

Dated , 189 .

Railroad Company,
By , President.
, Atty’s for Petitioner.
{Address, dc.]
[Add verification. ]

 

No. 52.
AFFIDAVIT ACCOMPANYING PETITION.
SUPREME COURT—Generat Trem, DEPARTMENT.

[Title as in Notice. ]
Counry, } 38.
being duly sworn says, that he resides in , New York,
‘deponent further says that the persons named in the following list
are the property owners along the proposed route of the
Railroad Company on the streets and to the amount and value set
opposite their respective names in said list.

That each of said persons has refused to consent to the construc-
tion, operation and maintenance by the Railroad Company
of its railroad in front of and along the respective premises bounded
and abutting on the respective streets in said list set forth.

 

|
Name. Street. Valuation.

Deponent further says that the above valuation is taken from the
assessment rolls of the city of . for the year , that
being the assessment roll last completed before said local authorities
gave theirconsent. That such cupy ig a true, correct and accurate one
APPLICATION TO GENERAL TERM. 591

of such yaluation as stated and set down in said roll; that the total
valuation on each of said streets, as set out in the petition, was ob-
tained by deponent by adding together the separate valuation of each
piece of property on the proposed route of said railroad company on
each of said streets as the same appears and was stated in said assess-
ment roll.
That each of thé persons named im the above list, personally re-

fused to give their consent as aforesaid to deponent except ;
* whose husband ' refused to give deponent the consent as afore-
said on behalf of said , and stated that he was authorized to

refuse and did refuse as her agent and on her behalf to give such
consent. v

Subscribed and sworn to before me, |

this day of , 189.
INDEX OF FORMS.

No.

BOND; “Compon, o.u anion aus alewenvwioaadavere sheeau ers 6

RGPistered stds eaarcderradid Ga neelks alan sstauee O

CONDEMNATION, Petition for, ..............006 > aaligeania te 26

Notice of pendency;................ 5 ests navatoge 27

ANS WER So sie slave o avd. sshSaceatateses <.a.e ore toekpamanns 28

' Order allowing plaintiff to enter into possession, .29.

Order of reference, ... 1.2... .cece cecee cece 30

Judgment of eondemnation,.................08- 31

Judgment for defendant,........0. ceccceaeees 32

Judgment by default,............ 0... secu eee 33

Oath of commissioners,...........00..eeeseceees 34

Report of commissioners,.............-eeee-e0- 35

Notice of motion for confirmation and final order,36

Order of confirmation,.... ..........eeeeeeeee 37

WinalOvdeE, sow: cnrnecennase. ae py atiaia- coe Sees 38

Notice of appeal,. 20. ..0...0. ce eeee ce eeeeee 39

CONSOLIDATION, Agreement for,...........000008 ee ce 13
CROSSINGS AND INTERSECTION S, Petition for appoint-

ment of commissioners, ,..........0.005 «+ 44

* Order appointing commissioners,........... ‘45

DIRECTORS, Application to set aside election of,.......... 3

Certificate of increase or reduction of number of, 9

ELECTION, Certificate and oath of inspectors of,.......... 10

EXTENSION OF CORPORATE EXISTENCE, Certificate of, 4

HIGHWAY CROSSINGS, &c., Consent of commissioners, . 40.

Petition for order allowing railroad to run

MCLOSS MEO 3 25 neerinudi scscarn GWeatarivareuae vaaseuuansia@are 41

Notice of application for order,..........2. 22. 42

Order granting leave, &.,........ cesses eeeee 43
INCORPORATION, Certificate of, ...... ..ccceceeveeeee 1

INSPECTORS OF ELECTION, Certificate and oath of, ....10

TIHAG Big) so issisicaa aid tics cate nee sg nae ky curienerwdae one 7
LOCATION, Certificate to map,..... .... cece ceeseeeeee oe 14
‘Notice to occupants,......... see ce reece ences 15
See Route.
MAP: Certificate to, ssscnieseatresiarn ie uis’s dele eisiesarsursell ness 14
MORTGAG By: ccs ass: ou ves stasis seeesieetnns wae as 6
Consent t0j.sccccascevsssveress seine eee 5
OFFER TO PURCHASE REAL PROPERTY,,. ...... ..22
ACCePtAnce,....... cece cee enceeeeee seeeeeees 23
Affidavit of plaintiff,..........+eseseeer cence 24
Overs weieoxeinataiaaw nwt ee Garsielereyen sewage ecto

124

Page.
532
5383
571
575
576
576
‘SIT
577
578
578
578
579
579
580
580
581

561 -

584
585

528
556

557
529
581

582
583

_ 583

525
557
548

564
564

564

531
530
569
569
569
570
INDEX oF Forms.

sis age Ria BR wroivlbeleapayaear el ae leislelanwiepins Wack alg Sistelalaneleiapines 2
REORGANIZATION, Certificate of,.........000 0+ ee eee 8
ROUTE, Change of, by directors,..........02 0 ceeeceeeeees 46

Notice of application for cuange of,............ 16
Petition for change of,.......26.0 sees weeeeee 17
Order appointing commissioners,..............- 18
Oath of commissioners,..........6 ceseeeeeees 19
Determination of commissioners,.. .......- +2..20
Notice of appeal, 2. 20... ceases eee tee eee 221
STOCK, Certificate of,.......... ..... PENGte ee Meee eaN 11
Certificate of increase or reduction of,.......... 12
STREET SURFACE RAILROADS,—
Consent of property OWNETS,..... eeeseeeeeeene 47
Consent to operation of, by electricity, ........ 48
Notice of application to local authorities,....... 49
Notice of application to general term for appoint-
ment of commissioners,...........2000 00000
Petition,......... .. Die Raw we OR Hangeiayeiyase 51

AMAAAVIt,. Joie ceenenes Hes C COED ER CTE ORS +06 82

555-
586-

565.
567
567
568
568
558-
559)

586°
587.
587

588:
588-
590
“INDEX.

ABANDONMENT—
effect of, and remedy tu prevent, 22.
map filed on location, could not work abandonment of part of line, 120.
~ by change of route forbidden, 135,
of part of route by street surface railroad, 241.
what proceedings necessary, 241,
not prevented by an action under the statute to secure the rights of the
public in highways, 468.
of part of route of elevated railroad, 505.
notice to stockholders, &c., 506.
approval of railroad commissioners, 506.
certificate to be filed, 506.
ACCIDENTS, see Negligence—
investigation of, by railroad commissioners, 286.
notification of, to be given to railroad commissioners, 287.
ACTIONS, see Stay of Proceedings,
ALTERATION OF BUSINESS--
by corporation, 74.
filing of certificate of, 75.
how authorized by stockholders, 75.
AMENDMENT OF CHARTER—
generally, 1, 2, 3.
amended and supplemental certificate, 19.
directors cannot make amended certificate, 62.
provision allowing company to hold stock in other corporations, 77.
of articles of incorporation by rapid transit railroad commissioners, 106.
so as to allow terminus at point of intersection with another railroad, 134,
136.
by electric light companies allowing them to construct railroads, 143.
ANIMALS—
power of railroads to convey persons and property by, 113.
horse railroads not to be organized under rapid transit act, 113.
improper care of, 394, 395, 396.
word “animal” in penal code defined, 396.
affected by contagious diseases, 448.
ARSON—
in first degree, 374,
in second degree, 374.
in third degree, 374, 375.
ASSESSORS, see Taxation.
ATTORNEY GENERAL—
to take action when requested by railroad commissioners, 287, 288, 289.

proceedings by, to declare forfeiture of charter for failure to pay tax on
franchise, 417.
596 INDEX.

BADGES, see Uniforms—
conductors and employes must wear, 166.
not to edllect tickets without, 166.
BAGGAGE—
regulation that trunks and other articles be checked, 114.
liability of drawing-room and sleeping-car companies for, 166, 169.
checks to be furnished, 166, 167.
penalty for refusal, 167.
removal of, from cars at intermediate stopping places, 167.
liability for, as common carrier, 167, 168, 169.
companies as insurers, 167. :
railroad ticket limiting liability for, 167.
compensation for carrying, included in fare, 167.
what is, 163.
what is not, 168. ‘
extra charges for transportation of, 168.
over connecling routes, 168, 169.
object of check, 169.
liability for, as warehouseman, 169.
contracts for transportation of, how governed, 169.
penalties for injuries to, 169, 170.
employment of person injuring, 169, 170.
unclaimed, 170, 436.
when may sell, 170, 436.
notice, how given, 170, 436, 437.
perishable, 170. /
disposition of proceeds of sale, 120, 437.
penalty, 437.
on connecting steamboat lines, 167, 171, 172.
_ powers of baggage master to contract for transportation of, 169.
BONDS, see Guaranty and Mortgages—
corporation may acquire bonds of another corporation, when, 76.
guaranty of bonds of another corporation, 77.
‘ bonds given as a bonus on stock subscription invalid, 80.
consideration for issue of, 81.
not to be issued for less than fair market value, 81.
power to borrow money and issue, 115.
not to be issued as a consideration for consolidation, 206, 207.
when may be issued on consolidation, 207, 208, 209.
forgery of, 375.
fraudulent issue of, 378, 381.
over-issue of, 381, 383.
payable to bearer, how made non-negotiable, 444, 445.
how transferred after indorsement, 445.
issue of, for purpose of change of gauge, 468.
of rapid transit railroads in large cities, 498.
for construction of railroads in parks, 508,
BOOKS—
to be kept, 70.
stock books, 70.
to bezopen for inspection, 71.
transfers to be entered, 71.
INDEX. 597
Books ~ Continued,

stock book presumptive evidence, 71..
neglect to keep, or allow inspection of, 71, 384
refusal of officers to make entry in, 71, 383, 384.

penalty, 71.
examination of books at any time, 71.
necessary evidence in an action to recover penalty, 72.
proceedings to enforce right to examine books, 72.
transfer of stock valid, although not entered in, 72, 78.
forgery of entries in, 376, 377, 378.

by officers, 377.
frauds by directors in preparing accounts, 383.
false entries in, 388, 384. :
refusal to allow inspection of, 384.

BILLS OF LADING—
w various provisions of,"184, 186, 187.
issuing fictitious, 388.
duplicate, 389.
when to be cancelled, 390.
use of words “‘ Non-negotiable,” 390.

BRAKES—
automatic air brakes on passenger cars, 192.
penalty, 192.
interfering with, 393.
" BRIDGES—
warning signals to be used at, 191.
guard posts, 191.
penalty, 192.
injuries by warning signals at, 193.
consolidation of railroad with bridge company, 2038.
extension of street surface railroad over, 238, 239, 246.
compensation, 239.
substituted bridges, 246.
liens for labor on, 443.
bridge companies may construct elevated railways in lieu of bridge ap-
proaches, 504.

BUILDINGS—

power of railroad to erect and maintain, 113.
as used in penal code, defined, 375.

BURGLARY—

inthird degree, 375.
“ building ” defined, 375.

BY-LAWS—
power of corporations to make, 23. :
regulating the election of officers to be published, 23.
fixing the amount of stock represented at a meeting to constitute a quroum,

23.
to fix time of election of directors, 60, 61, 64.
598 INDEx.

CABLE RAILROADS—

do not use locomotive steam, 107.
power of street surface railroad to adopt cable system, 114, 223, 236.
in foreign countries, consent of patentees, 140.
rate of fare on, 158, —
street surface railroad may operate by cable, 236.
change to, 236.
in parks, 508.

CANALS—
railroads may be constructed across, 101.
change of grade at canal crossings, 184, 185, 435.
tunnel railroad not to be constructed on or along, 137.
obstruction of, a misdemeanor, 863.
power of canal commissioners over route of railroad passing near or ovei
435.
abandoned, sale of for railroad purposes, 447.
corporation owning, may construct railroad along or in lieu of, 449.

CAPITAL STOCK, see Preferred Stock and Stockholders

bonds may be converted into, 48.
increase of, when bonds are converted, 48.
reorganized corporation may issue, 55.
not to be withdrawn or divided to stockholders, 64, 382.
impairment of, 65.
distribution to stockholders, 65.
defined, 66.
surplus defined, 66.
dividend on shares, 66.
n> implied power to increase or diminish, 66.
provision against distribution is penal, 66.
action by corporation itself for the declaring of unlawful dividends, 66.
creditors’ suit to reach dividend paid to stockholders, 66.
withdrawal of, by stockholders, 68, 382.
stock book, 70.

to be open for inspection, 71.

transfers to be entered in stock book, 71, 72, 78.
issue and transfers of stock, 76.
certificate of, how signed, 76.
capital stock of other corporations may be acquired, when, 77.
corporation owning stock in other companies, 77, 78.
agreement not to sell, void, 78.
representations of officers as to validity of, 79.
remedies of stockholders denied recognition, 79.
subscriptions to stock, 79.

ten per cent. payable in cash, 79, 80.

banking association can not subscribe for stock ina railroad corpora

tion, 80.

validity of subscription, 80.

bonds taken as a bonus, not valid, £0.

liability for, arises out of contract, 81. 83.
INDEX. 599

CaritaL Stock— Continued.
consideration for issue of, 81.
‘in money ” defined, 81.
‘*fair value ” defined, 81.
time of payment of subscription, 81, 83.
forfeiture of for non-payment, 81..
re-issue after forfeiture, 82.
reduction of, by cancellation, 82.
payment of, after appointment of receiver, 82, 83.
effect of interposing defence of statute of limitations, 82.
interest on defaulted payments, 82.
remedy by forfeiture is cumulative, 83.
when holder is not liable to pay, 83.
effect of transfer of, on liability, 84.
issue of, after consolidation, 84.
not to be for less than its par value, 81.
increase or reduction of, 84.
no implied power to increase or diminish, 66.
increase of capital stock when bonds are converted, 48.
liabilities of stockholders, where stock is increased, 84.
if reduced, amount of debts limited, 84.
not a withdrawal and distribution of actual capital, 85.
notice of meeting to increase or reduce, 85.
meeting, how conducted, 85.
certificate of increase or reduction, 86.
approval of railroad commissioners, 86. :
proceedings to be entered on the minutes, 86.
increase is the act of stockholders, 87.
not to be increased by exchange of preferred for common stock, 87. |
frauds to obtain allowance of increase of, 382, 383.
frauds in reduction of, 382.
in companies organized for rapid transit in large cities, 494,
reduction of, on change of route to adjoining state, 136.
reduction of, in case two lines have same location, 136.
tax to be paid on increase, 432.
preferred and common stock, 87.
on reorganization, 55.
certificate of incorporation may provide for, 87.
exchange for common stock, 87.
issue of preferred stock by consent of stockholders, 87.
not to be increased by exchange for common stock, 87.
amount of. to be stated in certificate of incorporation, 103.
Jost certificate of stock, 91.
new certificate to be issued by order of the court, 91.
proceedings for, 91.
order for new certificate, 92.
amount of, to be stated in certificate of incorporation, 102.
amount of, 102.
dividends tobe from surplus profits, 382.
frauds in withdrawal of, 382.
directors not to use funds in purchasing its own stock, 382.
600 INDEX.

CaritaL Stock— Continued.
overissue of, by directors, 383.
directors not to be interested in sale of, 384.
subscribers to articles of incorporation, 103.
payment before organization, 108, 105; 106.
signatures must be filed, 105.
« defences in actions for installments on, 105.
what is a payment of ten per cent., 105, 106.
change of route, effect on subscriptions, 135, 137.
forfeiture of charter, effect on stock subseriptions, 117.
guaranty of, on lease, 212.
on consolidation, 203, 206, 208.
lessee may acquire capital stock of lessor, 216..
may be issued after forclosure, when, 218.
inquiry as to issue of, in condemnation proeeedings, 304.
CARRIERS—

railroads as common carriers, 155.
effect of statute requiring equal accommodations to be given by conne
roads, 155.
delay, when not liable for, 155, 156.
mandamus to compel exercise of duty by, 156.
remedy of party aggrieved by refusal to act as, 156,
liability of drawing-room and sleeping-car companies as, 165, 166, 167
175, 176.
of baggage, 167, 168, 169.
liabilities of railroads as, 173-191.
issue of fictitious bills of lading by, 389.
issue of fictitious warehouse receipts, 389.
sale of property received for transportation, 390.
use of words, ‘‘ not negotiable” on receipts, 390.
property taken from, by process of law, 390.
improper care of animals by, 395, 396.
transportation of game and certain fish by, 471.
licenses to, by comptroller, 472.
employment of persons addicted to intoxication by, 471.
of passengers, 173-181.
rule in regard to machinery, &c., 173, 174.
willful misconduct of servants, 174.
not required to accept all persons unconditionally as passengers
passengers, who are, 175, 176.
intoxicated persons as passengers, 175.
duty to protect from violence, 176.
stations, &c., to be kept in safe condition, 176.
ordinary care necessary, 176.
cannot exempt themselves by contract from liability for willfu
conduct or recklessness, 177.
contracts limiting liability of, 177.
connecting railroads, 177.
when liable for delay, 177.
for what injuries to passengers liable, 178-180.
INDEX. 601
CaprieRs— Continued. “oe
‘ for what injuries to passengers not liable, 180, 181.

liability to trespassers and third parties, 181.

of freight, 173, 181-191.
effect of statute on liability, 181, 182.
liability generally, 182.
goods of a dangerous character, 182.
animals, 183.
when liability attaches, 183.
how determined, 183, 184, 185.
delivery, 183, 184, 185.
liability, how enforced, 185.
effect of payment.of freight on liability for injuries to same, 185.
when entitled to compensation for transportation, 185, 186.
delay caused by a “‘strike,” 186.
contracts limiting liability of, 186, 187.
what, constitutes such contract, 186, 187, 188.
contracts limiting liability for negligence must be explicit, 187.
various provisions of such contracts, 187.
effect of laws of other states on liability, 188, 191.
power of freight agents to bind road by contract for through trans--

portation, 188.

connecting lines, 188, 191.

CARS AND ENGINES, see Trains—

passenger cars, stoves and furnaces on, 193, 369.
injuries to passengers on platforms of, 194, 195, 196.
conductors and brakemen may be appointed policemen, 200.
safety brakes to be provided, 192.
tools in, 192.
drinking water in, 192.
getting on cars in motion, 180, 371, 512.
what oils may be burned and carried in passenger curs, 449.
cars for mails, 198.
extra traing for carriage of mails, 198.
baggage cars, injuries to passenger on, 194.
freight ears, automatic couplers on, 192, 369.
not to be placed in.trains with passenger cars, 369.
riding on, 370.
ears generally, firing or throwing stones at, 390.
damaging by explosion, 391, 393.
loosening of brake on standing car, 393.
running hand-car without permission, 394,
interfering with brake, &c., 394.
disorderly conduct on, 396.
freight, lumber, merchandise or oil cars not, to be placed in trains.
with passenger cars, 869.
automatic coupiers on engines and freight cars, 369.
riding on engines, freight or wood cars, 370.
getting on cars in motion, 371.
obstructing the passage of, 371.
602 INDEX.

®
‘Cars AND ENGINEs—Continued.

arson, 374, 375.

breaking into, burglary, 375.

“building ” includes car, 375.

unlawfully entering, 375.

larceny from, 380.

liens for labor performed on, 445.

disinfection of, 448.

_ conditional sales, leases or loans of, 445.

dining-cars, stoves for cooking on, 193, 369.
engines, automatic couplers on, 369.

riding on, 370.

to be provided with arrangement to prevent escape of fire, 437.
jurisdiction of courts when crime committed on, 397.

‘CATTLE GUARDS, see Fences, Farm-crogsings and Cattle-guards.

-CEMETERIES—

railroads across cemetery lands, 437.
condemnation of private cemetery lands, 438.

‘CERTIFICATE OF INCORPORATION, see Incorporation, Amendment o
Charter and Supplemental Certificate—
defined, 16.
filing of, 17.
filing of certificate of a corporation having the same name as ane
isting corporation prohibited, 18.
not applicable to re-incorporated, re-organized or consolidated co;
porations, 18.
taxes before or upon incorporation must be paid before, 18, 432.
fees for, must be paid before filing, 18.
corporate powers not to be exercised until taxes and fees are paid, 18.
amended and supplemental certificates, 19.
lost or destroyed certificates, 20.
patent omissions ir, 20.
to be evidence of incorporation and of facts stated therein, 20.
certificate of alteration or extension of business, 74.
provision in, allowing company to hold and dispose of stock and bonds c
other corporations, 77.
may provide for preferred stock, 87.
of railroads, what to contain, 102.
requisites of, 104, 105.
subscriptions to, 104, 105.
of rapid transit railroads, 106.

‘CERTIFICATE OF STOCK—
forgery of, 375.
fraudulent issue of, 378, 381, 383.
over-issue of, 381, 383.
-CERTIORARI—
to review proceedings for issue of municipal aid bonds, effect of, 333.

.

x
1

INDEx. . 603

a
CERTIORARI— Continued.
to review the determination and settlement of account for taxes by comp-
troller, 427,
to review action of comptroller, upon application for revision and re-settle-
ment of accounts, 429.

CHATTEL MORTGAGES, see Conditional Sales.
when necessary to file, 443.

CHAUTAUQUA ASSEMBLY GROUNDS—
railroads not to be constructed over, 127.

CHILDREN—
injuries to, 521.
CITIES, see Municipal Corporations,
CIVIL RIGHTS—
protection of under Penal Code, 363.
CODE OF CRIMINAL PROCEDURE—
revised laws not to be construed to repeal provisions of, 41.
jurisdiction of courts, 397.
crimes committed on trains, 397.
plea of guilty by corporation, 397.
form of summons, procedure, 398.
indictment of corporation, 398, 399.
collection of fine, 400.
COMBINATIONS, see Discrimination, Inter State Commerce Act and Preferences—
prohibited, 57, 58.
what is and is not allowable, 58.
contracts of a trust, 58.
sale of all the stock of a corporation to another corporation, 58.
agreement of stockholders not to sell stock, void, 59.
agreement to favor one company valid, 59.
such agreement can not pe specifically enforced, 59.

COMMISSIONERS OF THE LAND OFFICE—
may grant lands to railroads, 126, 127.
COMMISSIONERS TO EXAMINE ROUTE, see Location of Route.

COMPENSATION, see Constitutional Law, Eminent Domain and Condemnation
of Lands—

laying out of highways across tracks without, 438, 439.

COMPTROLLER—

to audit salaries and disbursements of rai)road commissioners, 292.

to assess total annual expense of railroad commissioners on railroads, 293.
tax how collected, 293.

statement to, for purpose of taxation of capital, 405.

statement to, for purpose of taxation on franchise and business, 415.

statement to, by supervisors as to tax on corporations, 407, 408.

reports to, by officers of railroad companies for purpose of taxation, 421, 423.
when may fix tax and penalty, 423, 424.
604 INDEX.

ComPTROLLER— Continued.
may issue subpoenas and examine witnesses, 424.
settlement and adjustment of accounts for taxes by, 426, 427.
review of settlement of accounts for taxes by certiorari, 427.
issue of warrant for collection, 428.
revision and re-adjustment of accounts for taxes by, 429.
licenses by, to common earriers, 472.

CONDEMNATION OF LANDS—

railroads may condemn lands, 108.
proceedings must be taken by corporation de jure, 108.
for what purpose, 109.
property already devoted to public u:e, 109, 110.
a vested right, 109.
lands of private corporations condemned, 109.
lands held by public corporation but not devoted to public use, 1
for restoration of public highway, 109.
lands for prospective uses, 109. ~
for benefit of a foreign railroad corporation, 109.
lease of railroad pending preceedings, 110, 214.
lands under navigable waters, 110.
after lease to foreign corporation, 110.
proceedings strictly pursued, 110.
proceedings not to be instituted until after service of notice of loc
119, 120, 121.
property deemed to be required for public use, 122.
proceedings instituted if unable tc agree for purchase, 122, 124.
if the owner is incapable of selling, 122.
if owner unknown, 122.
if title has proved invalid or defective, 122, 124.
where railroads in possession of lessee, mortgagee. trustee «
ceiver, 122.
for switches, turnouts and embankments, 123.
for the flow of water occasioned by embankments, 123.
for conveying water from any spring, etc., 123.
for carrying away or diverting water from its roadway, 123.
limitation of right to condemn railroad property, 123.
where there is a mortgage on the property, 124.
lands for additional tracks, 125. ~
by a foreign corporation, 125.
for depots,‘and car and engine houses, 125.
for freight houses and warehouses, 125.
for switches at depots, cattle yards, &c., 125.
for switches to approach elevator, 125.
for piers and wharves, 125.
for prospective uses, 125.
not for speculation and sale, 125.
not in aid of collateral enterprises, 125.
‘ not for car factories, 125.
not for dwellings for operatives, 125.
for purpose of removing earth for embankment, 125.
INDEX. 605
_CoNDEMNATION OF Lanps— Continued.
of lands held by trustees, 126.
compulsory proceedings where land is held by trustees, &c., 122, 126.
of public lands, 126.
certain public lands excepted, 126, 127.
of lands under navigable streams, 126.
notice to uwner of upland not necessary, 127.
of lands where the line of a highway, turnpike or plank road is nec-
essarily changed, 128.
such lands to become part of intersecting highway, &e., 128.
may acquire right to cross or occupy turnpike or plank road by, 128.
not to. condemn lands until expiration of fifteen days from service of
notice of location, 119, 120..
the condemnation law, 295-325.
definitions, 295.
‘* person,” 295.
‘* real property,” 295.
“owner,” 295.
‘‘ residence,” 300.
parties to proceedings, 295.
petition, 295.
what to contain, 295, &e.
description of property, 296-298, 299.
infants, &c., 296, 300, 314.
non-residents, 296, 300, 301, 314.
‘cunable to agree,” 296-299, 304.
value, 296.
demand for relief, 296. .
“ preliminary steps,” 296, 297, 299.
who may verify, 297.
verification of, 297, 303.
allegation of incorporation, 295, 298, 302, 304.
map, 298. .
notice of presentation, 299.
service of, 299, 300.
allegation of intent to complete work, 296, 297, 299, 302, 304.
use for which property required, 296, 304.
amendment of, 305.
proceeding may be maintained although company a trespassser, 299.
condemnation of land forming part of highway, 300.
hearing on petition, 300.
guardian ad litem,-301.
may be required to give seourity, 301.
appearances, 301,
‘new patties, 302.
~ preliminary objections, 302.
objections, 302.
trial of issues, 303, 304.
court may refer, 303.
- burden of: proof, 303, 304.
use of affidavits, 304.
606 INDEx.

ConDEMNATION oF Lanps— Continued. /
inquiry as to improper issue of stock, 304.
judgment, 305, 315.
costs, 305, 314.
appointment of commissioners, 307.
service of papers after petition, 301.
answer, 301.
issues raised by, 302-304.
denial of incorporation, 302, 304.
effect of pending action in equity, 303.
verification of, 303.
court may give plaintiff possession after, on deposit, 828.
infants as parties, 296, 300, 314.
amendment of proceedings, 305.
trial of issues, 303, 304, 314.
judgment of, 314, 315, 320.
costs, 305, 314, 315, 320.
on dismissal of petition, 305,
as affected by offer to purchase, 314,
judgment by default, 306, 312.
commissioners, 306-311.
appointment of, 306.
to be freeholders, 306.
when new commissioner appointed, 806.
naming of, in a contract for conveyance, 307, 312.
duty of, 307, 311.
to take oath, 307.
notice @f meeting, 307.
to view premises, 307, 308.
decision, 307.
testimony to be returned with report, 307.
not to allow for benefits, construction of clause, 307, 809, 310. °
value of railroad property, 307, 309, 310.
report, 307.
compensation of, to be paid by plaintiff, 307.
decision of, how arrived at, 808.
sources of information, 308.
right to open and close, 308,
competency of evidence of value, 308, 309.
value of land for a particular purpose, 309.
leasehold estates, value of, 309.
error of, not cured by certificate, 310.
correctness of minutes to be settled by, 310.
presence when decision made, 309, 310.
effect of award of damages in equity action on question of value, 311
‘i confirmation of report, 811-318, 320, 321.
who to move for, 311-818.
when report to be set aside, 306, 311-313.
“second report” may be set aside, 312,
appeal to court of appeals from order setting aside report, 313.

i
INDEX.
ConpEMNATION or Lanps— Continued.
appeal from appraisal and report, 313, 318, 319.
award of, 807-311. /
setting aside award, 306, 311-318, 820, 321.
award docketed as a judgment, 315,
deposit of award, 311, 322.
award, how collected, 315, 324.
final order, 311, 314, 316,
additional allowance in proceedings, 314.
offer to purchase, 318, 314.
owner may accept, 313.
filing of, 314.
as affecting costs, 314.
lunatics as parties, 296, 300, 314.
guardians to appear, 296, 300, 314.
non-residents as parties, 296, 300, 301, 314.
final order, 311, 314, 315.
to be attached to judgment roll, 315.
amount directed to be paid to be docketed as a judgment, 315.
i collection, how enforced, 315-317, 324.
owner to deliver possession, 315, 316, 324.
writ of assistance, 315, 324. \
title acquired in proceedings, 316,
recording of, 317.
appeal from, 318.
deposit of award, 311, 322.
writ of assistance, 315, 324.
title acquired, 316. .
abandonment of proceedings by company, 317.
conditions, 317, 318.
extra allowance on, 317.
ajypeal from final order, 312, 318.
what to bring up for review, 312, 318,
stay of proceedings, 318.
stipulation of defendant, 318.
effect of payment or deposit of award on right to, 318, 319.
new appraisal may be directed, 320.
‘* second report” conclusive, 320, 321., °
“second report” set aside, 312.
increase or decrease of compensation on second report, 320, 321.
provision that “second report” conclusive, constitutional, 321.
grounds for ordering new appraisal, 320, 321.
what is not a “second report,” 321.
“second report” which does not increase or decrease compensation,
321.
appeal from appraisal and report, 313, 318, 319,
new appraisal, 319. :
no appeal to court of appeals from order of general term confirming
report, 319.
appeal from order directing new appraisal, 321.
none to court of appeals, 321.

607

‘
608 INDEX.

‘CONDEMNATION OF Lanps—Continued,
new appraisals, 319-321."
appeal from judgment in favor or defendant, 319.
costs on, $20.
appeal from judgment, 318.
waiver of right to, 319.
compensation, 307.
* second report,” 320, 321.
adverse claimants to, 322.
constitutionality of provision, 322.
may be directed to be paid into cuurt, 322.
possession of land during proceedings, 322, 323.
not applicable where company. took possession as a trespasser, 3
deposit, 322, 323. .
stay_of actions, &c., during proceedings for, 322.
notice of pendency of proceedings for, 322.
effect of filing, 324.
to be recorded, 324.
Gourt may make orders to carry proceedings into effect, 324.
repeal of acts prescribing other methods of procedure, 325.
exceptions, 325. ;
title, when to take effect, 325.
effect of surrender of stock of lessor to lessee, on proceedings, 217.
by street surface railroad, 221. :
compensation for use of tracks of another company, 234, 289.
compensation to bridge company for extension over, 239,
condemnation of private cemetery lands, 438. ° ‘
by pipe line companies to secure right to cross railroads, 467.
by rapid transit railroads in large cities, 496.

CONDITIONAL SALES—

of equipment and rolling stock, 454:
to be in writing, 454.
to be filed, 454, 455.
name of vendor, &c., to be on cars, &c., 454,
application of act, 454.
when to be recorded, 454,
application of general act, 456.

. CONSOLIDATION—

only allowed by statute, 58.
of railroads, 203-210.
with bridge corporations, 203.
with tunnel corporations, 203.
lines must form a continuous or connected line, 24.
where part is a sub-surface road, 204.
payment of tax on, 204, 432.
result a domestic corporation, when, 204.
consent of legislature of foreign state, when necessary, £04.
what is a continuous line, 205.
of street railroads, 205.
INDEX. 609

ConsoLipaTion— Continued.

fj

effect of new statute, 205, 209, 355.

joint agreement for, 205, 206.

amount of capital stock on, 206, 208.

bonds not to be issued in consideration of, 206, 207.

agreement to be submitted to stockholders, 206, 207, 210.

certificate to be filed, 207.

effect of proceedings, 207, 208.

bonds of consolidated company, 208, 209.

consent of stockholders to issue of bonds, 209.

foreclosure of mortgages on consolidated lines, partly in another state,
209-212,

purchaser may operate line in this state, 211, 212.

copy of certificate of incorporation to be filed, 212.

powers of supreme court, 211, 212.

consolidation of parallel lines prohibited, 217.

consent of railroad commissioners to consolidation of parallel lines,
217.

consent of municipal corporation as stockholder, 210.

creditors’ rights, 209, 210.

liens of creditors after consolidation, 209.

actions not to abate, 209.

assessment and taxation of new corporation, 210.

effect of repeal of statute on proceedings for, 210.

CONSPIRACY, see Penal Code—
to sell passage tickets in violation of law, 387.
CONSTITUTIONAL LAW, see Eminent Domain—
creation of corporations, 1.

by special acts, 1.
special additions to a charter, 1.

amendment and repeal of charters, 1, 2, 3.

debts of corporations, how secured, 3.

liability of incorporators, 3.

creation of corporation by private or local bills, 3.

general laws to be passed, 3.

what is a “local” act, 4.

what is a ‘‘ private ” act, 4.

repealing legislation unconstitutional, 7.

consent of property owners to construction of street railroad, 4, 5.

consent of local authorities to construction of a street railroad, 4.

application to general term in lieu of consent of property owners, 4.

consent of property owners opposite a square, 5.

consent of property owners on separate streets, 5,

determination of commissioners to be confirmed, 5.

order confirming report not appealable to court of appeals, 5,

consent of company operating another road, whose route is coinci-
dent, 5, 240.

tunnel railroads in streets, 6, 139,

change of street surface railroad to cable or electric railroad, consent
of property owners, 7.

the same; consent of municipal authority not necessary, 237.
610 INDEX.

ConstituTionaL Law— Continued.
state aid to railroads forbidden, 7.
municipal aid to railroads forbidden, 7, 8.
this provision not retrospective, 8.
compromise of claims not forbidden, &.

provision for entry on lands for purpose of survey, 108.

statute authorizing tunnel railroads in cities, 139.

operation of railroad by lessee without obtaining consent of propert;
owners, 214.

act relieving reorganized companies from obligation to extend line, 219.

provision for the appointment of rapid transit commissioners, 252.

provision allowing existing rapid transit railroads to construct and operat:
on routes adopted by commissioners, 269.

powers of railroad commissioners in case of violation of provisions of th
constitution, 287.

provision assessing annual expense of railroad commissioners on railroads
293.

provision that the ‘‘ second report” in condemnation proceedings shall b
conclusive, 321.

provision for payment of compensation into court in condemnation proceed
ings, 322, :

provision for application of taxes on railroads to a sinking fund for thi
payment of railroad aid bonds, 338,

’ provision for the laying out of highways across tracks without compensa
tion, 439.

provisions for winding up of corporations dissolved by the legislature, 459

CONSTRUCTION OF RAILROADS, see Roadway—

width of roadway, 110.

damages caused by, 110.

weight of rails, 146.

safety switches on main line tracks, 191.

warning signals at bridges, 191.

of street railroaas on public grounds or parks, 245, 507.

CONSTRUCTION OF STATUTES—

corporate laws conflicting with the stock corporation law or general corpc
ration law, 40.

laws not in conflict with same, 40.

existing rights not affected, 40.

when to be construed as a continuation of former laws, 41.

not to be construed as repealing provisions of penal or criminal code, 41.

effect of a general law for the construction of street surface railroads o:
prior acts forbidding construction in particular places, 107.

effect of enactment of a new statute authorizing consolidation, upon prc
ceedings theretofore commenced, 205.

effect of general statute, 221.

applicability of general act, 223.

the statutory construction law, 349, &c.

application of the act, 350.
INDEX. 611

ConstRucTion or Statutes— Continued.
definitions and use of terms, 350, &.
~ “* property,” 350.
‘* personal property,” 350.
‘“« chattels,” 350.
“person,” 350.
“judge,” 350.
gender, number, tense, 350.
‘‘heretofore,” “hereafter” and “ now,” 351.
«‘ last,” “ preceding,” “ next,” “ following,” 351.
seal, 351.
‘* oath,” ‘‘ affidavit,” “swear,” 351.
acknowledge, acknowledgment, 352.
bond, undertaking, 352.
‘<choose,” “elect,” ‘ appoint,” 352.
board composed of one person, 352.
meeting, quorum, powers of majority, 352.
service of notice upon body or board, 853.
county clerk, register, 353.
village, 353.
state, territory, 353.
day, mode of computing days, 354.
night time, 354.
standard time, 354.
effect of repealing statute, 354, 355.
existing laws, included in revision not to be construed as new enactments,
356.
references in law not repealed to provisions incorporated in revision, 356.
effect of revision on laws passed at same session, 356.
alterations of titles and head notes, 356.
act for construction of rapid transit railroads in large cities, 502.
'
CONTAGIOUS DISEASES—
exposing persons affected with, in public places, 371.
animals affected by, 448.
remains of persons dying with, to be transmitted in hermetically sealed
casket, 464. 7

‘

CONTEMPT—
punishment for, in proceedings to tax corporations, 420.

CONTRACTS, see Leases and Contracts.

CORPORATIONS—
classification of, 15.

COUNTY COURT—
may order flagmen to be statione | crossings, 153.

nay order gates at crossings, 153.
contracts for Indian lands, ratification of by, 127.
612 INDEx.

COUNTY JUDGE—
powers of, in reference to issue of municipal aid bonds, 329-382.
may order county treasurer to execute law in reference to purchase of bonds
&e., 336.

COUNTY OFFICERS—
may grant lands to railroads, 126.

COUNTY TREASURER—

taxes on railroads paid over to, when, 336.
duties of, 336.
may be compelled to execute provisions of section, 336.
bond of, 386.
annual report of, 336.

payment of taxes to, 414. :
to notify collector of non-payment, 414.

COUPLERS—
automatic, on freight cars, 192.
penalty, 192,

COURT OF APPEALS—

appeal to, in proceedings to change route, 122.

appeal to, from order setting aside report of commissioners, in condemna
tion proceedings, 312, 318.

no appeal to, from order directing new appraisal, 321.

CROSSINGS AND INTERSECTIONS, see Grade Crossings, and Preferences—

railroads may intersect other railroads, 111, 112.
right created voluntarily, only by written instrument, 112.
not to cross lands for stations, &c., 112.
powers of receiver to grant right, 112.
application of act to two independent routes of same corporation, 11f
provisions relating to change of route, not applicable to, 121, 182.
connections with tunnel railroads, 138,
railroads to unite in forming intersections and connections, 181.
if unable to agree, court to appoint commissioners, 131.
one commissioner must be a civil engineer, 181.
determination of commissioners, 131.
railroads must grant facilities for interchange of freight, 181.
rate of freight in such cases, 131. :
street surface railroad must comply with this provision at intersectio
of steam railroad, 132.
proceedings, sufficiency of petition, 182, 133,
effect of prior agreement for a crossing, 132,
the order appointing commissioners affects a substantial right, 182.
what to be tried before commissioners, 133.
a special proceeding, 133.
application to street surface railroads, 182, 238-240.
rapid transit railroads not to cross steam railroads at grade, 267.
crossing and intersection of horse railroad by rapid transit railroad, 268.
application to rapid transit railroads in large cities, 497, 500.
intersection with pipe lines, 467.
proceedings to obtain right to cross, 467.
INDEX. 613
CRUSSINGS OF HIGHWAYS, see Highways—

injuries at highway crossings, 522.
injuries at highway crossings where gates are provided by the company, 524,
consent of highway commissioners to crossings, 435.

provisions applicable to highways laid out across track, 438,

CROSSINGS, OVERHEAD—

warning signals at, 191.
penalty, 192.

CUTTINGS AND EMBANKMENTS—

necessary lands for, 110.
land necessary for, need not be shown on location map, 120.
condemnation of Jand for 128, 125.

DEBTS OF CORPORATIONS, see Stockholders—

how secured, constitutional provisions, 3.

not secured by mortgage, not to exceed capital stock, 67.
not to exceed reduced capital, if capital stock reduced, 84.
defined, 97.

corporation liable to employes of contractor, when, 145.
effect of consolidation on, 209, 210.

effect of surrender of stock by lessor to lessee, on, 217.

DEFINITIONS AND USE OF TERMS, see Construction of Statutes.

‘«dues” from corporations, 3.
“loca.” act, 4.

' ‘private ” act, 4.
‘¢due process of law,” 9.
‘¢ public use,” 10.
‘* taking for public use,” 10.
‘* municipal corporation,” 16, 327.
‘« stock corporation,” 16.
‘* mixed corporation,” 16.
‘“‘monied corporation,” 16.
‘¢domestic corporation,” 16.
‘foreign corporation,” 16.
“‘ directors,” 16.
“certificate of incorporation,” 16.
“member of a corporation,” 16.
“capital stock,” 66.
“surplus,” 66.
‘‘in money,” 81.
* fair value,” 81.
“laborers and servants,” 96, 99.
“‘ creditors,” 97
«* debts,” 97.
‘‘engine using locomotive steam,” 106.
‘upon and along,” 111.
‘forfeit the right,” 116.
“ purposes of its incorporation,” 125.
“ eontractor,” 146.
614 INDEx.

Derinitions anp Uss or Terms—Continued.
“proprietor of adjoining lands,” 148.
“fence,” 149.

“ good this trip only,” 162.
“good this date only,’’ 162.
“used,” 162, 163.
“* good for a continuous trip only,” 162.
“accepting this ticket,” 177.
‘fact of God,” 182.
“from whatsoever cause arising,” 187.
“at the owner’s risk,” 187.
“awaiting deiivery,” 187,
‘continuous line,” 205.
‘contract for use,” 214.
‘* parallel lines,” 218.
“competing lines,” 218.
‘* subject to the general railroad act,” &c., 223.
‘over, under, through or across,” 248.
‘* verified upon oath,” 249.
words used in condemnation law, 295, &c.
“person,” 295.
‘‘yreal property,” 295.
*©owner,” 295.
“+ residence,” 300.
** governing board,” 327.
“representing,” 330.
“village,” 353.
“ state,” 3538.
“territory,” 353.
“any rights,” 355.
“inconsistent,” 355.
‘‘public nuisance,” 363.
words used in Penal Code, 372, &c.
“ riot,” 372.
“ building,’’ 375.
‘* forge,” ‘‘ forged,” “forging,” 379.
“larceny,” 379.
“ director,” 385.
“ company,” 388.
‘‘animal,” 396,
“land ” for purposes of taxation, 401.
‘real estate” and ‘real property ” for purpose of taxation, 401.
“capital” for purpose of taxation 411.
“track,” 439,

DEPOTS, see Stations.

DINING CARS —
stoves for cooking in, 193, 369.

DIRECTORS, see Elections—
defined, 16, 385.
INDEX. 615

Directors— Continued.
effect of failure to elect, 31, 132.
cannot vote by proxy at meetings of board, 32.
directors holding over, 32.
special elections of, 33.
mode of ealling, 33.
mode of conducting, 33.
qualification of voters and canvass of votes, 34.
reduction of number of, 36.
quorum of, 37.
powers of majority, 37.
to be trustees on dissolution, 37,
to be chosen by plurality of votes,’60.
vacancies, 60.
notice of election of, 60.
at least one-fourth to be elected annually, 61,
election of, by-laws to fix time of, 60, 61.
municipal corporations voting at elections of, 62.
election of persons not qualified, 62.
persons voting as proxies need not be stockholders, 62.
must be stockholders, 60, 62.
effect of sale of stock, 62.
power to make amended certificate of incorporation, 19, 62.
contracts of, with another corporation in which they are interested for con-
struction of road, 62.
change of number of, 36, 63.
certificate of, to be filed, 63.
validity of reduction of number of, 64.
neglect to adopt by-laws for holding of annual election, 64.
effect of, 64.
unauthorized dividends by, 64, 382.
forbidden to pay stockholders any portion of capital stock, 64.
liability of, for unauthorized debts, 66.
for overissue of bonds, 66, 67.
total indebtedness limited, 66.
liability is joint and not several, 67.
what is a debt, 67.
action for benefit of all creditors, 67.
liability not penal, 68.
liability of, for loans to stockholders, 68.
what is a ‘‘ loan,” 68,
no power to ratify such loan, 68,
names of, to be stated in certificate of incorporation, 103.
to make affidavit on incorporation, 103.
names may be stated in supplemental certificate, 107.
power of, to change route and grade of railroad, 133, 134, 185.
may locate part of route in an adjoining state, 136.
effect on lease where directors of lessor and lessee are same persons, 215.
power to make leases, 215.
of lessee may become directors of lessor, when, 216.
not to concur in declaration of unlawful dividends, 382.
616 INDEX.

Directors—Continued.
withdrawal of capital stock by, 382.
purchase of its own stock by, 382.
payment of debt due the corporation in stock, 383.
exchange of shares of stock for stock in another corporation without
authority, 383.
overissue of stock by, 383.
false entries in books of corporation by, with intent to defraud, 383, 384.
obtaining property of corporation with intent to defraud, 383, 384.
not to be interested in sale of stock, 383.
improper entries in books, by, 384.
making or publishing false reports, by, 384.
omission to disclose service of injunction, 384.
refusal or neglect to make report, 384.
term as used in penal code defined, 385.
deemed to have knowledge of affairs of a corporation, 385.
dissent of, must be entered on minutes, 384.
of rapid transit railroad companies in large cities, 490, 493.

DISCRIMINATION, see Combinations and Preferences—
unjust, 114, 287.
railroad commissioners to report, to attorney general, 287.

DISEASES, see Contagious Diseases.
DISSOLUTION—

effect of, on consents to construct street surface railroads, 242,
by legislature, provisions for winding up corporations, 459.

DIVIDEN DS—

unauthorized, 64, 382.
not to be declared except from surplus profits, 382.

DOMESTIC CORPORATIONS—
defined, 16.
what corporations are, 26, 204.

DRAWING-ROOM CARS, see Sleeping and Parlor Cars.
ELECTIONS, see Directors—

right to vote at, 16, 28, 384.

cumulative voting, 23.

proxies, 28, 30, 384.

sale of vote or proxies, 29, 335.

books to be produced at election, 29.

sale of option, reserving the right to vote, 29.

challenges, 30.

oath of member offering %o vote, 30.

oath of person voting as proxy, 31.

effect of failure to elect directors, 31, 32.

powers of supreme court, respecting, 34.
the corporation must be a party, 35.
powers of the court, 35.
notice, 35.
INDEx. 617
ELEcTIoNs— Continued,
who may apply for the action of the court, 35.
setting aside election, 35.
special elections of directors, 88, 34.
inspectors of election, duties of, 29, 31.
oath of, 70, 385. ,
compensation of, 70.
one inspector not enough, 70.
violation of oath, by, 385.
dishonest or corrupt conduct of, 385.
voting on stock or bonds not owned, 384.
misconduct of, 384,
change of time of holding, 448.

ELECTRIC LIGHT AND POWER COMPANY—

may become railroad corporation, 143.
may operate electric railroad, not exceeding 20 miles in length, 143.
but not in cities, 143,

ELECTRIC RAILROADS—

change to electricity as motive power, 7, 236.

may be constructed by electric light and power company, 143.
for accommodation of summer travel, 148.
may operate only in summer, 148,

; rate of fare on, 148.

street surface railro.d may operate by electricity, 236.
change to electricity, 236.

effect of operation on use of telephones, 237.

injuries to, 391.

ELEVATED RAILROADS, see Rapid Transit Railroads—

change of route by, 183.
taxation of superstructure, 401, 402.
EMBANKMENTS, see Cuttings and Embankments.

EMIGRANTS, see Imigrauts.
EMPLOYES, see Negligence and Liens—

liability of stockholders to, 94, 447.
“laborer” defined, 96.
liability of corporation to employes of contractors, 145, 495.
notice to be served, 145.
‘* contractor ” defined, 146,
limited to personal labor, 146.
implied contract sufficient, 146.
liability to, for failure to maintain fences, 151, 517.
of drawing room car companies, 164, 165.
who may be employed, 166.
not to be addicted to the use of liquors, 166, 866, 472.
must wear badges, 166.
to furnish checks for baggage, 167.
penalty for injuring baggage, 169, 170.
618 INDEx.

Empioyes— Continued. S
refusal to sell tickets on connecting steamboat lines, 172.
when may acquire rights of passengers, 175.
company liable for willful misconduct of, towards passengers, 174.
contracts exempting carriers from injuries caused by negligence of, 177, 187.
injury to, by warning signals at bridges, 193.
as policemen, 200, 201.
damages by mobs and riots, 343.
eligibility of peace officers, 358,
conspiracy to prevent person from exercising lawful trade, 359.
intimidation of, 359.
assembly of persons for purpose of obtaining increase of wages permitted,
360, 397.
coercion of, to enter into agreement not to join labor organizations, 360.
intoxication of, a misdemeanor, 366.
willful violation of duty a misdemeanor, when, 366.
on elevated railroads, duties of, 366.
; mismanagement of gates by, 366.
trainmen to report fires, 458.
trackmen to extinguish fires, 458.
wages of, to be preferred when receiver appointed, 458.
weekly payment of, on certain railroads, 475.
to be paid in cash, 465.
penalty, 466.
employment of persons addicted to intoxication, 472.
rest to be allowed to, 473.
compensation for extra service of, 473.
hours of labor, 478, 474.
constitutionality of this provision, see Addenda.

EMINENT DOMAIN, see Constitutional Laws and Condemnation of Lands

private property not to be taken without compensation, 9-18.
an easement is property, 9, 10.
franchises of a corporatiou are property, 9, 12.
legislature to determine whether public benefit will justify a taking for pub-
lic use, 9.
courts to determine whether the use is public or private, 10.
the taking of property by a railroad is for ‘‘a public use,” 10,
appropriation of a street by a steam railroad, 10.
by a street railroad, 10.
when the municipality owns the fee, 10.
remedy must be provided by which compensation can be obtained without
delay, 11.
payment need not prec. de entry, 11.
deposit in bank, 11.
costs of proceedings, 11.
remedies of landowner for unauthorized occupation, 11.
powers granted, must be strictly pursued, 12.
corporation exercising, must be a corporation de jure, 12.

waiver of right of landowner, 12.
INDEx. 619
Eminent Domatn— Continued.
right of a railroad to construct and operate in city streets is a right in fee, 12
compensation, how ascertained, 12,
concurrence of all commissioners not necessary, 12.

ENGINEERS—

liability of, for negligently causing death, 361.
bursting of engine, caused by carelessness, 361, 362.
unauthorized pressure of steam, 362.
mismanagement of steam boilers, &c., 362.
must be able to read, 362.
intoxication of, a misdemeanor, 362.
willful violation or omission of duty a misdemeanor, when, 366.
to ring bell or sound whistle at crossings, 367.

at what crossings, 367, 68.

construction of former acts, 367.

cases since the repeal of the provision for statutory signals, 368.
obstruction of farm or highway crossings, 367.

ENGINES, see Cars and Engines, Engineers and Fire.
EVIDENCE—
in negligence cases, 513.

EXCISE LAW, THE—
licenses by comptroller to common carriers, 472,
employment of persons addicted to intoxication, 472.
EXECUTORS—
liabilities of persons holding stock as, 94.

EXPLOSIV ES—
keeping and unauthorized use of, 363.
shipment of, 363.
injuries to buildings by, 391.
placing near buildings, &c., 391.
EXPRESS COMPANIES—
liability of railroads to employes of, 175, 177.
tax on franchise and business, 421.
EXTENSION OF BUSINESS, see Alteration of Business.

EXTENSION OF CORPORATE EXISTENCE—

by consent of stockholders owning two-tairds of capital stock, 38.
certificate of, 38.
where to be filed, 38.
to be recorded, 38.
bonds payable after expiration of charter, 38.
powers of supreme court to authorize revival of corporation, 38, 39.

EXTENSION OF RAILROADS—

of street surface railroads, 221, 227, 232, 509.
over Hudson river, &c., 233.
over bridges, 238.
620 INDEX.

Extension or RaruRroaps— Continued.
of re-organized railroads, 219.
of rapid transit railroads in large cities, 500.

FARE, RATE OF, see Tickets—

power of railroads to receive and fix, 1138.
on short railroads for summer travel, 143.
rates of fare generally, 158, 159.
on cable roads, 158.
on short roads not in cities, 159.
on mountain railroads, 159.
includes transportation of 150 pounds of baggage, 158, 167.
on New York Central Railroad, 159.
on consolidated railroads, 159.
alteration cf, 160, 288.
penalty for asking or receiving excessive, 161.
limitation of actions, for, 161.
only one penalty recovered, 161.
when incurred, 161.
passenger refusing to pay, may be ejected, 161-164, 499.
production of tickets, 161.
limitations on use of tickets, 162, 163.
compensatory damages, 164.
exemplary damages, 164.
extra, on drawing-room cars, 165.
to be charged to passengers from connecting steamboat lines, 171.
to be charged on connecting steamboat lines, 171.
penalty for neglect to sell tickets, 172.
to be paid back if check refused for baggage, 167, 172.
on street surface railroads, 225, 227, 237.

‘change of, at recommendation of railroad commissioners, 288.
information of, to be furnished to railroad commissioners, 289.
to immigrants, 388, 439-441.

penalty, 441.
extra fare when paid on cars, 465.
rebate tickets, 465.

FARM CROSSINGS, see Fences, Farm-crossings and Cattle-guards—

obstruction of, a misdemeanor, 367.
FELONIES—

shipment of explosives, without revealing their nature, 364,
unauthorized sale of passage tickets, 386, 387.

issuing duplicate bills of lading, when, 389.

selling property received for transportation or storage, 390.
misdelivery by carriers, use of words ‘“ not negotiable” on receipts, 390.
injuries to tracks, &c., 390.

firing or throwing stones at cars, &c., 390.

placing obstruction on tracks, 390.

injuries to electric railroads, 391.

dama buildings by explosion, 391.
INDEx. 621.

Friomes— Continued.
altering signals, 391.
injuries to piling, 392.
injuries to telegraph lines, 392;
injuries to safety appliances, 390.
endangering life by placing explosives near buildings, 393.
running of hand-car without permission, 394.
interfering with brakes, 398, 394. |
false rumors affecting the price of stock and bonds, 371,
false signature of name of officer of corporation, 371.
uttering false letters, messages, &c., 371.
circulation of false rumors, 371.
rioting, 372. 7
arson in first degree, 374.
arson in second degree, 374.
arson in third degree, 374.
burglary in third degree, 375.
forgery in first degree, 375.
forgery in second degree, 376.
forgery in third degree, 376.
forgery of passage ticket, 378.
forgery of stock by officers, 378.
falsely indicating person as corporate officer, 378.
grand larceny in first degree, 379.
grand larceny in second degree, 380).
fraudulent issue, over-issue and re-issue of stock, 381.
frauds in procuring o1ganization of corporations, 382.
frauds in obtaining allowance of increase of capital stock, 382.
frauds by officers of corporations, 383.
false entries in books, with intent to defraud, 383.
obtaining property of corporation with intent to defraud, 383.
committed by tramps, 459.

FENCES, FARM CROSSINGS AND CATTLE-GUARDS—

fences to be erected and maintained, 146,
by the lessee, 146, 148.
sufficiency of fence, 146, 149.
liability for failure to maintain, 147, 150, 151.
barbed wire fences, 147, 149.
contract of adjoining owner to build, 147, 151, 152.
liability to others than adjacent owners, 150. t
fence temporarily out of repair, 150, 151.
liability when company owns adjoining land, 151.
company also liable for injuries to human beings, 151.
not designed for protection of person passing near the track, 152.
damage musi be caused by defendant’s train, 152.
what damages may be recovered, 150.
liability of lessee, 146, 148, 152.
liability of lessor, 152.
vacant lots in cities, 149,
622 INDEX.

Fences, Farm Crossines AnD CaTTLE-GuaRps— Continued.

farm crossings to be maintained, 147.
statute applicable to lands condemned, 148.
to what companies applicable, 148
who is a proprietor of adjacent lands, 148.
foreign corporations must maintain, 148, 152,
not limited to crossings for agricultural purposes, 148.
crossings and their location,-149.
actions in equity by land owner, 149.
actions at law, 149.
nature of action, 150.

crossings for transportation of logs, &c., in timbered lands, 147.
proceedings by mandamus to compel, 147.

cattle-guards to be maintained at crossings, 147, 149.
applicable to highways laid out across tracks, 438.
injuries to employes by defects in, 516.

FERRIES—

railroads may establish and operate, in harbor of New York, 197.
connection of rapid transit railroad with, 269.
unlawful maintenance of, 364.
FINE—
collection of, from corporations, 400.
FIRE—
negligently managing or refusing to extinguish, 364,
removal of inflammable material from roadway in forest lands, 457,
locomotives, when to be provided with arrangements to prevent the escape
of, 457.
deposit of fire-coals, forbidden, 458,
trainmen to report, 458.
extinguishment of, 458.
trackmen to extinguish, 458.
fine, 458.
liability of companies for injuries by, 515.

FLAGMEN—

at crossings, court may order, 153.
indictment of company for not complying with order of court, 154.

FORECLOSURE, see Mortgages and Re-organization—

effect on right to construct and operate, 117,
not necessary to file new map after, 120.
eifect of, upon provision requiring taxes to be paid to county treasurer in
certain cases, 33 .
FOREIGN CORPORATIONS—
defined, 16.
certificate of authority to do business in this state, 24.
power of legislature to exclude, 25.
proof to be filed, 26.
designation of person upon whom process may be served, 26.
INDEx. 623

Foreiean Corporations— Continued.
incorporation under the laws of another state to evade taxes and avoid per-
sonal responsibility of stockholders, 26.
acquisition of real property by, 27.
at judicial sales, 27. “
not subject to prohibition against transfers in contemplation of insolvency, 90.
exhibition of transfer books by agents of, 98, 94.
condemnation of lands for benefit of, 110.
effect of lease of road to, on right to condemn, 110, 214.
power to acquire stock in, for supply of fuel, 115.
power to condemn lands, 125.
must maintain fences, &c., 148, 152.
use of stoves or furnaces on passenger cars by, 193, 194.
consolidation of domestic corporations with, 203, 204.
may purchase consolidated road, partly in this state on foreclosure, 211.
receivers of such roads, 211.
may be lessor of railroad, 215.
misconduct of officers, election, &c., of, 385.
provisions of penal code applicable to, 385.
taxation of, as lessee, 402.
liable to tax on business done in this state, 415, 418-421, 423.

FOREIGN COUNTRIES—

railroads in, 189, 140, 141.
powers of, 140, 141.
cable railroads, consent of patentees, 140.
liability for negligence, 141.
taxation of, 141.
location of principal office, 141.
not to sell property without consent of directors and stockholders, 141,

FOREST LANDS—

not to be leased or taken, 456.
companies to cut or remove inflammable material from its roadway, 457.
locomotives to be provided with arrangement to prevent escape of
fire, 457.
deposit of fire coals, forbidden, 458,
trainmen to report fires, 458.
extinguishment of fires, 458.
duties of trackmen, 458.
fine, 458.

FORFEITURE OF FRANCHISES—

for failure to construct and finish road, 115, 116, 117.
no judicial proceeding necessary, 115.
legislature can not waive, 116.
what is failure to comply with this provision, 116, 117.
application of former statutes, 117.
language necessary to make forfeiture self-operating, 115, 116.
effect of forfeiture on municipal aid bonds, 117.
on stock subscriptions, 117.
624 INDEx.

ForFeITure or F'RANcHISES— Continued.
willful and intentional failure to construct, 117.
effect of foreclosure, 117.
from neglect to run trains, 156.
of street surface railroads, 232, 236.
effect of failure to complete part, 244.
proviso for, in charter of elevated railroads, 264, 265.
for non-payment of tax on franchise, 417.

FORGERY, see Frauds—

in first degree, 375.

of certificates of stock, bonds, &c., 375.

of endorsement or transfer of certificate of stock, 375.

in second degree, 376.

of seal of corporation, 376.

of entry in books of records or accounts, 376.

of pecuniary obligations, 376.

in third degree, 376, 377.

falsifying or altering books of account, 377.

of letter, telegram or other written communication, 377.
uttering same, 877.

altering books of account to conceal larceny or to defraud, 377.

making false entries to conceal, &c., 377.

omitting to make true entries, 378.

of passage tickets, 378.

sale of forged tickets, 378.

falsely indicating person as corporate officer, 378,

‘* forge,” “forged ” and “ forging ” defined, 379.

fraudulent issue of stock, 378.

FRANCHISE—
tax on, 415, &c.

FRAUDS—

false rumors to affect the market price of stock and bonds, 371.
false signatures of names of officers of corporation, 371.
circulating false statements, &c., 371.

in organization of corporations, 380, 382.

« FREIGHT, see Carriers—

stations for, 113. ;
no obligation to provide warehouses for, 113.
power to convey by steam, &c., 113.
power to regulate time and manner of transportation of, 113.
can not suspend transportation of, 114.
discretion of company as to mode of exercising its power, 114.
reasonableness of charge for transportation of, 114.
unjust discrimination, 114, 157, 172.
accommodations to connecting roads, 181, 155, 157.
rate of freight, 131.
to be carried at regular times, 154.
duty of carrier to receive and transport, 154.
INDEX. 625

FreigotT— Continued.
when liable for delay, 155, 156, 182, 186.
mandamus at instance of the people to compel performance of duty}of
carrying, 156.
remedy of party for refusal to transport, 156.
unclaimed, 170.
sale of, 170.
notice, 170.
disposition of proceeds, 170.
connecting steamboat lines, 172.
liabilities of railroads as carriers of, 181-191.
connecting lines, 182, 188-191.
dangerous freight, 182.
animals, 183.
delivery to carriers, 183.
delivery dy carriers, 183-185, 190.
remedies for non-delivery of, 185.
effect of receiving compensation for, 185.
when carrier entitled to compensation, 185, 186.
delay caused by “strikes,” 186,
authority of freight agent, 188,
recommendation of railroad commissioners as to rate of, 288:
information of rate, when to be furnished to railroad commissioners, 289.
shipment of explosives, 363.
issuing fictitious bills of lading, 388.
selling property received for transportation or storage, 890.
use of words ‘‘ not negotiable ” in receipts, 390.
transportation of game and certain fish, 471.

GAME LAW, THE— :

transportation of deer or venison, 471,
of certain game birds, 471.
of certain game fish, 471.

GATES—

at highway crossings, court may order, 153.
rules in negligence cases, when gates have been erected, 154, 524.
indictment of company for not complying with order of court, 154,

GAUGE—
change of, 468.
consent of railroad commissioners, 468.
consent of stockholders, 468,
issue of bonds for, 468.

GENERAL CORPORATION LAW, THE, 14, &c..

GOVERNOR—

to appoint railroad commissioners. 281.
may suspend railroad commissioners, 282.
powers of, in case of infectious diseases of animals, 448.

14a
626 : INDEX. ,

GRADE—
change of, 184, 135.
not applicable to Buffalo, 134.
at canal crossings, 134, 135.

GRADE CROSSINGS, see Crossings and Intersections—

locomotives must stop at, 157.
watchmen at, application to court, 158.
rutes as to precedence of trains at, may be prescribed by railroad

commissioners, 158.

railroad commissioners may consent to discontinue stops at, 158.
interlocking switch and signal apparatus at, 158.
not applicable in depot yards, 158.
not required if roads are under same management, 158.
penalty for failure to comply with statute, 158.
cars and locomotives not to be stopped on, 158.
penalty, 158.

GUARANTY—
lessee may guarantee bonds of lessor, 215.
guaranty of bonds of street surface railroads by another company, 239.

GUARDIAN—
liability of person holding stock as, 94.

HAND-CARS—
running without authority, 391.

HIGHWAYS, see Eminent Domain—

lands condemned for purpose of restoring, 109.

intersection of, 109.
interest of public only affected, 111.
street crossings in cities, 128.
assent of corporation, 128.
in towns and incorporated villages, 128.
order of supreme court, 128.
must be restored, 128, 130, 435.
may be carried under or over the tracks, 128.
condemnation of additional lands at, 128.
damages to turnpike and plank-road corporations, 128, 181.
acquisition of right to cross turnpike, &c., 128.
company may elect as to manner of crossing, 129.
compensation to landowner, 129.
duty to keep crossings in repair, 129, 180, 131.
mandamus to compel restoration, 130, 467.
remedy by indictment, 180, 467.
remedy of highway commissioners, 180, 467.
signboards and flagmen at, 153.
application to court for flagmen or gates, 153.
gates at, 153, 154, 524.
ordinances limiting speed when gates are provided, 153, 154.
obstruction of, a misdemeanor, 363, 367.
INDEx. 627

fligawa ys—Continued.

signals at, 367, 368.

construction of former acts, 367.

statutory signals not sufficient to absolve company from negligence,

368.

cases since repeal of provisions for signals, 368.

commissioners may consent to, 485.

injuries at, 522, 524,
company occupying, not required to pave as directed by municipality, 130.
consent of local authorities, to construction of private railroad on, 142.
electric light company cannot construct railroad on surface of, 148.
condemnation of land in, where abutting owner owns the fee, 300.
laying out and construction of, across railroads, 438.

provisions applicable to highways so laid out, 438.

what tracks may be crossed, 439.

not prevented by injunction, 439.
actions by commissioners, to sustain rights of the public in, 130, 467.

remedy by mandamus, 186, 467.

remedy by indictment, 130, 467.

remedy of real estate owners, 467.

not to be brought to prevent change of terminus or abandonment of

route, 468.

HORSE RAILROADS, see Street Surface Railroads—
street surface railroads may operate by horse power, 236.
in parks, 508. ‘ '

IMMIGRANTS—
sale of tickets to, 440.
at excessive rates, 388, 439-441.
unlawful exchange of tickets, 388.
false representations to, 388.
booking, before leaving ship forbidden, 388.

INCORPORATION—
by special act, 1.
t-by private or loca] bills, 3.
by general laws, 3.
of railroads in streets, 3-7.
of railroads generally, 102-104.
articles to be published, 201.
certificate of railroad commissioners, 201.
powers of general term of supreme court if certificate refused, 202.
of rapid transit railroads, 264.
denial, of, in condemnation proceedings, 302, 304.
authority to subscribe for stock, questioned in condemnation proceedings,
304.
frauds in organization of corporations, 380, 382.
payment of tax on organization, 432.
to be paid before certificate filed, 432.
of rapid transit railroads in large cities, 489, 491.

1
628 INDEX.

INCORPORATORS—
liability of, 3.
qualifications of, 17, 804.
in case of re-incorporation or consolidation, 17.

INDIANS—
railroad corporations may contract for lands of, 127..
ratification by county court, 127.
land held by contract with, 401.

- INDICTMENT—

of railroad for failure to restore and keep in repair highway crossings, 130,
467.
for failure to comply with order of court providing for gates or flag-
men at crossings, 154.
of corporation, 398, 399.
plea of guilty, 597.
collection of fine from corporation, 400.
for failure to ventilate and light tunnels, 470.

INJUNCTION—

to prevent construction, when, 258.

in suits by abutting owners for appropriation of easements. 259,

to prevent issue of municipal aid bonds, 333.

omission of director to disclose service of, 384.

not permitted to prevent laying out of highways across tracks, 439,

restraining proceedings of receiver appointed of corporations dissolved by
the legislature, 463.

INSOLVENCY—

transfers in contemplation of, prohibited, 87.
to officers, directors or stockholders, 88.
liability of person receiving, 88.
transfer to be void, 88.
liability of directors or officers making, 88.
must be in contemplation of insolvency, 89.
what is a violation of this provision, 89,°90.
offer of judgment, 89.
chattel mortgage, 89.
remedy in equity, 90.
not applicable to foreign corporations, 90,

INTER-STATE COMMERCE ACT—

basis for relief by mandamus under, 114.

discrimination under, 157.

application of, to provision forbidding use of stoves, 194.

traffic contracts do not excuse violation of, 215.

application of, to provision for tax on franchise and business, 416, 419.

JOINT STOCK COMPANIES—
taxation of, 405, 415.
INDEx. 629

JUDGMENT, see Condemnation of Land—
. payment of, by municipal corporations, 343.

JURY—
trial by, in actions for past damages for unlawful occupation, 18, 260.

LARCENY—

defined, 379.

grand larceny in first degree, 379.
grand larceny in second degree, 380.
petit larceny, 380.

of tickets, 380.

LEASES AND CONTRACTS—

effect of, on condemnation proceedings, 110, 214.
to foreign corporations, effect on right to condemn, 110.
condemnation of land after, 122.
lessee must maintain fences, &c., 146, 148, 152.
liability of lessor for injuries, 179, 214,
lease of railroads, 212-218.
may provide for guaranty, or exchange of stock and bonds, 212.
how executed, 212, 213.
when to be approved by stockholders, 212.
how approved, 212.
‘power to lease, 213.
not to be leased to individuals, 218, 215, 216.
what is, 214, 215.
rights and liabilities of lessor and lessee respectively, 214-216.
effect of constitutional provision for consent of property owners on,
214,
mot terminated by appointment of receiver, 214,
who may be lessor, 215.
rent, 215.
lessee may acquire stock of lessor, 216.
certificate of same, 217.
effect of same on condemnation proceedings, 217.
copies of, to be furnished to railroad commissioners if requested, 289.
lease of parallel lines, 217.
street surface railroads excepted, 217.
when railroad commissioners may consent to, 217.
what are parallel lines, 218.
what are competing lines, 218.
traffic contracts not forbidden, 218.
traffic contracts, 212, 313, 215, 218.
not assignable, 215.
between parallel lines, 218.
coutracting street surface railroads to carry for one fare, 241.
4axation of railroads leased to foreign corporations, 402.
630 INDEX.

LEGISLATURE, see Constitutional Law—

may recognize defectively organized corporations, 105.

dissolution by, effect on consents to construction of street surface railroads,
242.

may request railroad commissioners to examine laws, 285.

may fix value of railroad property for purpose of taxation, 404.

winding up of corporations dissolved by, 459, &c.

LICENSE—

effect of parol license to construct railroad, 11.

LICENSE TO SELL LIQUORS--

to common carriers by comptroller, 472.

LIENS—

for labor on bridges, trestle work, &c., 443.
for labor on tracks, rolling stock, &c., 445.
notice, to be filed and entered, 445,
enforcement of, 446.
to continue one year, 446,
priority of, 446.
discharge of, 447.

LOCATION OF ROUTE, see Route.

to make and file map before construction, 117.
notice to occupants, 117, 120, 121.
application by occupant or owner to change location, 118.
requirements of petition, 118.
appointment of commissioners, 118,
concurrence of commissioner who is a civil engineer, 118,
determination of commissioners, 118.
appeal to general term from decision of commissioners, 118, 119.
compensation of commissioners, 119.
notice to be served personally, 121.
only one commission in a county, 121.
not applicable to railroad crossings, 121.
powers of justice of supreme court on application, 122.
appeal to court of appeals, 122.
location gives company exclusive right, 122.
not to condemn lands until expiration of fifteen days from service of notice,
119, 120.
maps to be transmitted to railroad commissioners, 119,
when not necessary to file map, 120.
sufficiency of map, 120.
filing of map by street surface railroads, 117, 120.
map could not change termini or work abandonment of part of road, 120,
in adjoining state, 136.
two roads having same location, 136.
INDEX. 631

MACHINERY—

power to erect and maintain, 113:
company bound to exercise great care for safety of, 173, 174.

MAILS—
a

injuries caused by employes of postal cars, 179, 199.
railroads to convey, 198, 487.

compensation, 198.

extra trains, 198.

penalty for not conveying, 198.
mail agents are passengers, 199.
rights of telegraph companies on railroads as post roads, 199.
carrying of, on rapid transit railroads in large cities, 499,

MANDAMUS—

to prevent abandonment, 22.

to compel railroads to restore highways at crossings, 130, 467.

to compel erection of crossings for logs in timbered lands, 147.

company may be compelled by, to exercise its duties as a common carrier, 156.

to compel connecting roads to act upon decision of railroad commissioners as
to equal accommodations, 157.

to compel railroad commissioners to examine questions, 287.

to compel companies to comply with recommendations of railroad commis-
sioners, 288. r

to compel ventilation and lighting of tunnels, 469,

MANSLAUGHTER—

in second degree, 360, 361.

death caused by culpable negligence, 360.
negligent use of machinery, 361.
negligent use of steam boilers, 361.
punishment, 361,

MAPS, see Location of Route—

of route of street surface railroads, 107.
allegation in petition in condemnation proceedings, as to filing of, 298.

MILK CANS—

superintendent may appoint agents to gather, 464.
evidence of appointment of agents, 464.

MISDEMEANORS—

appointment of peace officers, 358.

assuming to act as peace officers, 358.

arrests without authority, 358.

conspiracies, 359, 360,

conspiring to prevent another from exercising a Jawful trade, 359.
coercion of employes not to join labor organizations, 360.
carrying obscence print, 362.

unauthorized pressure of steam, 362.

.
632 INDEX.

MispEMEANORS— Continued.

mismanagement of steam boilers, &c., 362.
refusal to receive or carry passengers, 363.
violation of civil rights, 363.
maintaining a public nuisance, 363.
‘obstructing navigable streams, 368.
obstructing canals, 363.
obstructing highways, 363, 367.
obstructing public parks, 363.
‘keeping and unauthorized use of explosives, 363. ;
negligently managing or refusing to extinguish fires, 364.
unlawfully maintaining a ferry, 364.
unlawful offers to railroad commissioners or their employes, 365.
misconduct of railroad commissioners and their employes, 365.
‘acting as engineer, not being able to read, 365.
employing engineer not able to read, 366.
misconduct of employes of elevated railroads, 366.
starting of trains on elevated railroads, 366.
obstructing ingress or egress of passengers on elevated railroads, 366.
mismanagement of gates on elevated railroads, 366,
intoxication of employes, 366.
misconduct of employes, 366.
failure to ring bell or sound whistle at highway crossings, 367.
obstruction of highway or farm crossing, 367.
placing other cars in trains with passenger cars, 369.
improper construction of platforms on passenger cars, 369.
heating of cars by stoves and furnaces, 369.
failure to place guard posts at bridges, 370.
failure to place automatic couplers on engines and freight cars, 370.
advising person to leave employ, because uniform required, 870.
wearing uniform without authority, 370.
riding on engines, wood or freight cars, 370.
getting upon a train in motion, 371.
obstructing passage of cars, 371.
exposing person infected with a contagious disease in a public place, 371.
obstructing navigable stream, &c., 371.
participating in unlawful assemblies, 373,
remaining at place of riot, 373.
remaining at unlawful meeting, 373.
refusing to assist in arresting rioter, 373.
unlawfully entering building, 375.
petit larceny, 380.
larceny of ticket, 380.
frauds in organization of corporations, 380.
misconduct of directors and officers of corporations, 382,
declaring dividends, 382.
withdrawal of capital stock, 382.
purchase of its own stock, 382.
payment of debt due to corporation in stock, 383.
exchanging shares of stock for stock in another corporation, 383.
INDEx. 633
MispEMEANORS— Continued.

over-issue of stock, 388, see Felonies.
interested in sale of stock, 383.
obtaining property of corporation, 384, see Felonies.
improper entries in books, 384, see Felonies.
making or publishing false report, 384.
refusal to allow inspection of books, 384.
omission to disclose service of injunction, 384.
refusal or neglect to make report, 384.
voting at corporate elections on stock or bonds not owned, 385.
‘issuing proxy to vote, 385.
selling vote at corporate election, 385.
issuing proxy to vote at corporate elections for sum of money, &c., 385.
violation of oath by inspectors of elections, 385.
dishonest or corrupt conduct by inspectors, 385.
selling tickets to emigrants at excessive rates, 388.
unlawful exchange of emigrants’ tickets, 388.
false representations to, 388.
booking immigrants before leaving ship, 388.
keeping office for unlawful sale of tickets, 387.
issuing fictitious bills of lading, 388.
issuing fictitious warehouse receipts, 389.
affixing advertisement to another’s land, 393.
improper care of animals, 394, 395, 396.
disorderly conduct on cars, &c., 396.
jurisdiction of courts to try, 397.
committed on trains, 397.
failure to obey directions of railroad commissioners as to ventilation and
lighting of tunnels, 470.
employment of person addicted to intoxication, 472.
compelling employes to work over hours, 4738, 475.
obstructing passage. of cars on street railroads by parades, 474.
intoxication of employes on rapid transit railroads in large cities, 500.
willful injury to property of rapid transit railroads in large cities, 500.

MOBS AND RIOTS—

riots defined, 373.

punishment of riots, 372.

unlawful assemblies, 373.

remaining at place of, 373.

refusal to assist in arrest of rioters, 373.

liability of municipal corporation for damages by, 343.

MORTGAGES, see Bonds, Receivers and Re-organization—

power to borrow money and mortgage property, 48, 115.
limitation of amount of obligations, 48.
consent of stockholders, 48, 51.
how given, 48, 51.
when ho'ders of bonds may convert into stock, 48.
634 INDEX.

Morteaces— Continued.

what covered by, 50.
rolling stock, 50.
after-acquired property, 50.
payment for right of way in bonds, 50.
powers of trustees under railroad mortgages, 50.
duties of receiver on foreclosure, 50, see Receivers.
what debts secured, 51.
“franchises ” defined, 51.
actions by receiver, to set aside mortgage not assented to, 51.
stockholders complaining, 51. ‘
officer may own bonds, 51.
rights of stockholders on foreclosure, 90.
condemnation of lands, when railroad in possession of mortgagee, 122.
on railroads in foreign countries, 140.
on consolidated lines, 209-211.
consent of stockholders, 209.
foreclosure of mortgages on, when partly located in another state,
210-212.
powers of receiver appointed by a court in another state, 211.
mortgagee may become purchaser at sale in foreclosure of, 218.
stock may be issued after foreclosure in certain cases, 218.
when not necessary to file as chattel mortgage, 443.
when necessary to file, &c., 443.

MOTIVE POWER—

change of, 7.
by street surface railroads, 236.

MUNICIPAL AID BONDS—

issue of, forbidden, 7.
effect of provision, 8,
effect of forfeiture of charter on, 117.
change of route in towns that have issued, 134.
preliminary note, 326,
cases decided under various loca] statutes, 326.
the general municipal law, 327-344.
title, 327.
definitions, 327.
“municipal corporation,” 327.
‘governing board,” 327,
limitation of indebtedness, 327.
application of provision, 328.
payment of, 828, 336, 341.
validity of proceedings for issue, 328-333, 337.
company must be organized and existing in this state, 328, 330, 382.
‘a majority of the taxpayers, not including those taxed for dogs and
highway tax only,” 328.
amount of bonds, 329, 331, 339.
requisites of petition, 328, 329, 330, 331.
INDEX. 635:

MounicipaL Aw Bonps— Continued.

recitals that all necessary legal steps have been taken, 829, 348.
“representing,” 330.
effect of adjudication, as an estoppel, 330.
assessment roll, 381.
right to withdraw name from petition, 331, 382.
power to subscribe, 332.
conditions, 332, 338.
certiorari, effect of, 333-337.
injunction, 333.
omission of seal, 837.
action by taxpayer to compel cancellation of bonds, 330.
action by town to compel cancellation of bonds, 330.
when equitable remedy not given, 380.
effect of adjudication as to validity, as an estoppel, 380.
decision of county judge, not questioned collaterally, 330-332.
refunding of bonded debts, 333, 347.
rate of interest on new bonds, 338, 348.
certificate to be filed, 334. 7
effect as compromise of claim on invalid bonds, 334, 348.
consent of taxpayers, 348,
time of payment, 348.
“issuance of bonds, 334,
registered bonds, 331, 335.
description to be kept by clerk, 334.
exchange of coupon bonds for, 335.
defects, not invalidating, 335.
time of payment, fixed at different period than provided by law,,335, 337.
amendment of 1871, 337.
taxes on railroads to be paid to county treasurer, 336, 338.
treasurer to purchase and cancel bonds, 336.
when proceeds to be invested as a sinking fund, 336.
proceedings to compel treasurer to comply with provision, 336.
bonds of treasurer, 336.
annual report of treasurer to state condition of fund, &c., 336.
constitutionality of provision, 388.
application of act, 339.
action by town to recover money misappropriated, 338.
equitable action against county, 338.
effect of statute of limitations, 338.
town may be subrogated, 338.
remedy of taxpayers, 3389.
¢ railroad commissioners in towns, 339, &c.
abolition of office of, 339.
transfer of duties to supervisors, 339, 345.
appointment of, by county judge, 339.
term of office, 339.
compensation, 340.
quorum, 340.
oath, 340.
636 INDEX.

-MunicipaL Aip Bonps— Continued.
undertaking of, 340.
exchange or sale of railroad stock and bonds, 340.
annual report of, 341.
governing board to levy and collect of municipal corporation money
to pay bonds, 341.
accounts of, 342.
; loans and investments by, 342.
to issae new bonds in place of lost or destroyed bonds, 342.
indemnity, 343.
exchange or sale of railroad stock and bonds, 340.°
lost and destroyed bonds, new bonds to be issued, 342.
cancellation of bonds, 330, 342, 348.

MUNICIPAL CORPORATIONS, see Municipal Aid Bonds—

may assent to re-organization, 56.
power to vote at elections, 62.
consent by, to change of route in cities and villages, 134.
consent of, to construction of tunnel railroads, 188.
private railroads not to be constructed in cities, 142, 143.
when not to limit speed of train by ordinance, 158,
consent of, to consolidation, 210. _
-consent of, to construction and maintenance of street surface railroads, 222,
224-228, 242.
consent to change of motive power on street surface railroads, 236, 237.
ordinances fixing rate of speed on street railroads, 234, 235.
application to, for construction of rapid transit railroads, 248,
consent to construction, 250, 2538.
compensation for consent, 254.
payment of judgments by, 3438.
liability for damages by mobs and riots, 343.
construction of railroads in parks by, 507.

NAME OF CORPORATION—

corporations of sane name prohibited, 18.
not applicable to reincorporated, re-organized, or consolidated cor-
porations, 18.
to be stated in certificate of incorporation, 102.

NARROW-GUAGE RAILROADS—

capital stock of, 102.

weight of rail on, 146,

change of gauge, 468. ®
‘NAVIGABLE STREAMS—

condemnation of land under, 110.
obstruction of, 111, 128, 363, 371.
duty of railroad to restore when diverted, 129, 130.

NAVIGATION COMPANIES—
railroads not to hold stock in, 466,
INDEX. 637

NEGLIGENCE, see Carriers—
in maintaining fences, &c., 150, 151.
in ejection of tresspassers, 164
rules in cases of injuries to passengers, 173.
cars and machinery, 178, 174,
stations, platforms, &c., 176.
failure to use best judgment does not establish, 181, 512.
test of contributory negligence, 181.
liability of lessor and lessee respectively, 214, 216.
negligent use of machinery, when manslaughter, 361.
negligent use of steam boiler, when misdemeanor, 362.
management or refusal to extinguish fires, 364.
highway crossings, statutory signals at, 368.
effect of repeal of provision for signals, 368.
action by married woman, 510.
two causes, 510. :
other similar accidents, 510.
concurring negligence, 511.
negligence out of the state, 511.
duties of persons injured, 511.
time tables, 511.
failure to exercise the best judgment, 181, 512.
contributory, 512, &c., 514.
evidence in negligence cases, 513, &c.
poverty of plaintiff, 513.
physician, 513.
photograph, 513.
other similar accidents, 514.
declarations after the injury, 514.
of negligence and contributory negligence. 514,
on street railroads, 514.
injuries to persons crossing street, 514.
injuries to passengers, 515.
damage by fire, 515.
injuries to employes, 516.
safe place, 516.
suitable tools and apparatus, 517.
suitable rules and regulations, 518.
competent fellow servants and superintendents, 519.
duty to unskilled workmen and minor employes, 520.
sufficient number of employes, 520.
effect of adoption of time table, 520.
agreement not to claim damages, 520.
negligence of co-employes, 520.
injuries to children, 521.
injuries at crossings, 522. __
injuries at crossings where gates are provided, 524.
NEW YORK, CITY OF—
construction of railroads in streets or avenues in, 442.
railroads in parks in, 508.
street surface railroads not to be constructed under rapid transit act, in, 503.
construction of elevated or underground railroads in Madison avenue 506,
638 , INDEx.

NUISANCE—
operation of street railroad by individuals is, 107.
public nuisance defined, 363.
committing or maintaining, a misdemeanor, 363.

OFFICERS, see Directors—
power to appoint, 23, 69.
by-laws regulating the election of, to be published, 23.
directors may appoint, 69.
security by, 69.
appointment of executive committee, 69.
salaries of, 69.
liability of, for false certificates, 72, 384.
limitation of actions for, 73.
a penal provision, 73.
actionfis local, 73.
abatement of action, 73.
extent of liability, 74.
neglect or refusal to make entries in books, 71.
liability of, for tranfers in contemplation of insolvency, 87-89.
forgery of stock by, 378.
fraudulent issue, over-issue and re-issue of stock, 381, 383.
frauds in procuring organization of corporation, 382,
frauds in obtaining allowance of increase of capital stock, 382.
not to be interested in sale of stock, 383.
not to obtain property of corporation, 384.
improper entries in}books by, 384.
making or publishing false reports, 384.
refusal to allow inspection of books, 384.
omission to disclose service of injunction, 384.
refusal or neglect to make report, 384.
statement to comptroller for purpose of taxation of capital, 405.
statement to assessors, 405.
payment of taxes by, 408, 414, 415,
report to comptroller, for purpose of tax on franchise and business, 415.
valuation of stock by, for purpose of tax on franchise and business, 415.
reports to comptroller for purpose of taxation, 421.

OILS—
when may be burned and earried in passenger cars, 449.
penalty, 450.
prosecution for penalty, 450.
ORDINANCES—
when not to limit speed of trains, 153.
fixing rate of speed on street surface railroads, 234.
for removal of ice and snow by street surface railroads, 234,
penalty for failure to comply with, 234.

PARADES—
obstructien of streets by, 474.
InDEx. 639

PARKS—

obstruction of, a misdemeanor, 363.
rapid transit railroads not to be constructed in, 498.
railroads in, in cities of over 1,500,000 inhabitants, 507.
construction by municipal authorities, 507.
compensation to cities, 507, 508.
rate of fare, 507.
regulation of, by park authorities, 507.
consent of property owners, 507.
supreme court commissioners, 507.
expense of construction and equipment, 508.
agreement for construction, 508.
compensation and income received by cities, 508.
motive power, 508.
in New York city, 508.
bonds to pay for construction, 508.

PASSENGERS, see Carriers, Fare and Tickets.

power of railroads to erect stations for, 118.

not obliged to erect depots, 113.

specific performance of contract to build a station, 113.

power to take and convey, 113.

power to regulate time and manner of transportation, 113.

power to fix compensation, 113.

exhibition of tickets to gatemen, 114.

regulation that trunks and other articles be checked, 114,

exhibition of tickets to conductors, 114.

liability to, for injuries caused by failure to fence, 151.

cars to be run at regular intervals, 154.

time tables, 154, 156.

company may be compelled by mandamus to carry, 156.

right to take a specific train, 156.

eutitled to afreasonable time to get on board, 156.

connecting roads to furnish equal accommodations to, 157.
application to railroad commissioners, 157,

rates of fare, 158, 159, 160.

who are, 175, 176.

liability of companies to, 173, 181.

employes without badges not to interfere with, 166.

rights and liabilities of railroads as carriers of, 178-181.
contracts exempting from liability, 177.
effect of purchasing seat in drawing room car on such contract, 177.
injuries to, for which railroad companies are liable, 178, 180.
loss of money, &c., on sleeping cars, 180.
failure of company to stamp destination on ticket, 180,
injuries to, for which railroad companies are not liable, 180, 181.
injuries to, while riding on platforms and baggage cars, &c., 194-196,
injuries to, by negligence of employes of postal cars, 199.

trains to come to full stop on elevated railroads, 278. ;
gates to be used, 279.
640 INDEX.

PassencERs— Continued.
what force may be used in ejection of, 361.
refusal to receive, a misdemeanor, 362.
civil rights of, 363.
on elevated railroads, rights of, 366.

PENAL CODE, THE, 358, &¢.—

revised laws not to be corstrued to repeal provisions of, 41.

peace officers to be residents of county where appointment made, 358.

arrests without authority, 358.

conspiracy defined, 359.

what conspiracy punishable, 360.

orderly assembling for purpose of obtaining an increase in or paDpentatning:
wages not a conspiracy, 360.

manslaughter in second degree, 360, 361.

negligent use of machinery, 361, 362.

liability of persons in charge of steam boilers, &c., 361, 362.

use of force or violence, when not unlawful, 361.

ejection of passengers, 361.

carrying obscene print, 362.

unauthorized pressure of steam, 362.

refusal to receive passengers, 362, 363.

civil rights, protection of, 363.

maintaining a public nuisance, 363.

navigable streams, obstruction of, 363.

canals, obstruction of, 363.

highways, obstruction of, 363, 367.

public parks, &c., obstruction of, 363.

keeping and unauthorized use of explosives, 363.

shipment of explosives, 363.

negligently managing or refusing to extinguish fires, 364.

unlawfully maintaining ferry, 364.

acting as, or employing an engineer not able to read, 364.

misconduct of railroad commissioners and their employes, 365.

unlawful offers to railroad commissioners or their employes, 365.

misconduct of officials or employes of elevated railroads, 366.

intoxication of emploves, 366.

misconduct of employes, 366.

ringing of bell and sounding whistle at crossings, 367.

obstruction of highway or farm crossing, 367.

certain provisions repealed, 357.

placing freight, &c., cars in rear of passenger cars, 369.

€ platforms on passenger cars, 369.

heating of cars by stoves or furnaces, 369.

guard posts at bridges, 370.

automatic couplers on engines and freight cars, 370.

advising person to leave employ because uniform required, 370.

% wearing uniform without authority, 370.
riding on engines, wood or freight cars, 370.
getting upon a train in motion, 370.
INDEX. 641

Prenat Copz, TaE— Continued.

obstructing passage of cars, 371.
exposing person infected with contagious disease iu a public place, 371.
false rumors to affect the market price of stock and bonds, 871.
false signature of name of officer of corporation, 371.

uttering false letter, &c., 371.
circulating false rumor, 371.
obstructing navigable waters, 371.
riot, defined, 372.

punishment of, 372.
unlawful assemblies, 360, 378.
remaining at place of riot, 373.
refusing to assist in arrest of rioter, 3738.
arson in first degree, 374.

in second degree, 374.

in third degree, 374,
burglary, in third degree, 375.
unlawfully entering car, 375.
forgery in first degree, 375.
forgery in second degree, 376.
forgery in third degree, 377.
forging passage tickets, 377.
forging certificates of stock, 378.
falsely indicating person as corporate officer, 378.
“forge,” “forged,” “ forging ” defined, 379.
larceny defined, 379.
grand larceny in first degree, 379.
grand larceny in second degree, 380.
petit larceny, 380.
larceny of tickets, 379.
frauds in organization of corporations, 380, 382.
fraudulent issue of stock and bonds, 381.
overissue of stock and bonds, 381, 383.
fraudulent reissue of, 381.
frauds in organization of corporations, 382.

in obtaining allowance of increase of capital stock, 382.

misconduct of directors, 382, 383, 384, see Directors.
misconduct of corporate elections, 384, see Elections.
misconduct of officers of corporation, 378, 361, 382, 383.
certain provisions applicable to foreign corporations, 385.
unauthorized sale of tickets, &c., 386, 387.
conspiracy to sell passage tickets in violation of law, 387.
keeping offices for unlawful sale of passenger tickets, 387.
sales of tickets to emigrant passengers, 388.
“company ” defined, 388.
issuing fictitious bills of lading, receipts and vouchers, 388.
duplicate receipts to be marked, 389.
selling or pledging property received for transportation, 390,
use of words “ not negotiable ” on receipts, 390.
application tu property demanded by process of law, 390,

154
642 INDEX.

Pena CopE, THe— Continued.

injuries to railroad tracks, &c., 390.

placing obstruction on track, 390.

injuries to safety appliances, 390.

firing or throwing stones at cars, engines, &c., 390.
injuries to electric railroads, 391.

damaging building by explosion, 391.

altering signals, 391.

injuries to piling, 391.

injuries to telegraph lines, 391.

affixing advertisement to iand, 393.

endangering life by placing explosives near building, 393.
interfering with brakes, 393, 394.

running of hand car without permission, 394.
improper cure of animals, 394, 395, 396.

‘* animal,” &c., defined, 396.

disorderly conduct on cars, &c., 396.

PEN ALTIES—

for not stopping at grade crossings, 158.
liability of engineers, 158.
liability of corporation and persons operating, 158.
for stopping cars on grade crossings, 158.
for asking or receiving excessive fare, 161.
for refusing to affix check to baggage, 167, 172.
for injuries to baggage, 169.
for keeping reckless person in employment, 170.
for refusing to sell tickets or furnish checks on railroads and connecting
steamboat lines, 172.
for not using safety switches, 192.
for not maintaining warning signals at bridges, 192.
for not maintaining guard-posts at bridges, 192.
for not using automatic couplers on freight cars, 192.
for not using automatic air-brakes on passenger cars, 192.
for not providing tools in passenger cars, 192.
for not providing drinking water in passenger cars, 192.
for refusal to use safeguards approved by railroad commissioners, 193.
for heating passenger cars with stoves or furnaces, 193.
for riding, leading or driving animals on track, 195.
for refusal to carry mails, 198.
for neglect to make or correct report to railroad commissioners, 200.
for failure of street railroad to comply with ordinance as to rate of speed,
234.
for failure to remove ice and snow, 234.
for failure of an elevated railroad to comply with article V. of the Railroad
Law, 279.
for not furnishing statements to comptroller and assessors, 406.
for not complying with act as to unclaimed baggage, 437.
for neglecting to construct highway across track after notice, 439.
for failure to comply with the act for the protection of immigrants, 439.
INDEX. 643

PENALTIES — Continued.

for burning and carrying oils in passenger cars except as provided by law,
450.

for non-compliance with statute for protection of forest lands, 458.

for non-payment of wages in cash, 466.

for failure to pay wages weekly on certain railroads, 475.

PIPE LINES—

intersection with railroads, 467.
PLANK ROADS, see Highways—

plank roads and turnpike companies may lay down rails, when, 476.
PLATFORMS, see Cars and Engines—

must: be kept in safe eondition, 176.

PREFERENCES, see Combinations, Discrimination, and Crossings and Connec-
tions—
not to be given for the transaction of business as a common carrier upon
cars or in stations, 154, 155.
connecting roads must furnish equal accommodations, 157.
application to railroad commissioners, 157.
powers of supreme court io compel, 157.
discrimination under inter-state commerce act, 156.
by tunnel railroads forbidden, 204.
no discrimination against connecting steamboat lines, 172.

PREFERRED STOCK, see Capital Stock and Stockholders.

PRIVATE RAILROADS—

individual, joint stock association, or corporation may lay down tracks, 142,
but not in cities, 142.
consent of property owners and local authorities, 142.
application to supreme court, 142.
not to obstruct highways, 142.

electric light companies may become railroad corporations, 143.

operation of street railroads by individuals, 107.

POLICE— :
conductors and brakemen may be appointed, 200.
railroad police, 200, 201.

POWERS—
other than statutory powers prohibited, 21.
railroad companies not to engage in certain business, 21.
not to acquire lands for speculation, 21.
or to prevent competition, 21.
abandonment of line, 22.
ultra vires, to be pleaded; assent, 22.
right to make a pooling contract, 22.
general powers of a corporation, 22.
to appoint an executive committee, 23.
banking powers prohibited, 28.
644 INDEx.

Powrrs— Continued.

acquisition of additional real property, 24.
acquisition of property in other states, 24.
acquisition of real property by foreign corporation, 27.
the same, upon judicial sales, 27.
of railroads generally, 107, &c.
to make survey, 108.
acquisition of real property by grant, 108.
the same, by condemnation, 108.
construction of road, 110.
intersection of streams, highways, &c., 111.
to erect and maintain buildings, stations, &c., 118.
to transport persons and property, 113.
to regulate time and manner of transportation, 113.
to make rules and regulations, 114.
to maintain a gateman in passenger stations,‘ 114.
to require passengers to exhibit tickets, 114,
to acquire and dispose of real estate in other states, 115.
to acguire and dispose of stock in foreign corporations, to obtain fuel,
115.
to acquire and dispose of stock in union railway depots, 115.
to borrow money, issue bonds and mortgage property, 115.
when powers to cease, 115-117.
to locate its route, 117.
to acquire title to real property, 122.
to condemn public lands, 126.
to take lands by grant from commissioners of the land office, 126.
to receive grants of lands, from county and town officers, 126.
to appropriate land under navigable streams, 126, 127.
to contract with Indians for land, 127.
not allowed to construct railways through Chautauqua assembly
grounds, 127.
not to obstruct navigable streams, 128,
to construct its road upon or across a street of a city, 128.
the same, upon, across or along highways, 128.
to change location of highways, 128.
to obtain right to occupy turnpike or plank-road by condemnation,
128.
not to hold stock in navigation company, 166.
requisites to exercise of powers by future railroad corporations, 201.
publication of articles of association, 201.
of railroads in foreign countries, 140, 141.
of rapid transit railways, 266.
of rapid transit railroads in large cities, 496.

QUORUM—
by-laws may fix amount of stock to be represented at meetings to constitute,

RAILROAD COMMISSIONERS—
certificate of organization of rapid transit railroad, 103.
maps to be transmitted to, 119.
maps to be filed after completion of road, 119.
INDEx. 645

RaILRoaD ComMissionrRs— Continued.

stations discontinued by consent of, 154.
may order connecting roads to grant equal accommodations, 157.
decision to be binding two years, 157,
powers of supreme court to compel, 157.
may determine as to precedence of trains at grade crossings, 158. |
may dispense with stop at grade crossings, 158.
interlocking switch and signal apparatus, 158.
reduction of fare on railroads, after examination by, 160.
may authorize use of safeguards approved by them, 193.
to approve stoves and furnaces to be used in dining cars, 193:
may allow railroads to cease operation in winter, 197.
to fix rate, time, &c., for carrying mails if not agreed upon, 198.
annual report to, 199.
quarterly report to, 199.
penalty for neglect to make or correct report to, 199, 200.
to grant certificate to future railroad corporations, 201.
refusal to grant same, 201.
approval of increase or reduction of capital stock, 86.
consent to consolidation of parallel lines, 217.
may relieve reorganized railroads from obligation to extend lines, 219.
consent of, to change of motive power of street surface railroads, 236.
compensation to bridge company for extension of street surface railroads
over, when ascertained by, 239.
consent to abandonment of part of street surface railroad, 241.
appointment and term of office, 281.
vacancies, 282.
suspension from office, 282.
secretary and marshal, 282, 292,
additional officers, 283, 292.
experts, 283, 292.
inspector, 283, 292.
oath of officers, 283.
eligibility of officers, 283.
principal office, 284.
seal, 284.
quorum, 284.
general powers and duties, 284, 285, 286.
proposed changes of railroad laws, 285.
may be upon cars, in offices, &c., 285.
may examine books, 285, 287.
‘may draft bills, 285, 291.
reports of railroad corporations to, 286, 291.
investigation of accidents, 286, 291.
recommendations of board, 287, 288.
repairs and changes, 288.
stations, 288, 289.
rate of fare or freight, 288.
companies to comply with, 283.
on refusal facts to be reported to attorney general, 288.
646 INDEX.

Rat.tRoaD CommissionERS— Continued.

legal effect of, 288, 289.
supreme court may compel compliance by mandamus, 288,
appeals, 288.
additional terminal facilities, 288.
corporations to furnish information to, 289.
of rate of fare for passengers, 289.
of rate of freight, 289.
copies of contracts, leases and agreements, 289.
subpoenas, 290.
fees of witnesses, 290.
fees of board, 290.
to be paid into the state treasury, 290.
annual report of, 291.
expenses of, 291, 292.
certified copies of documents filed to be evidence, 291.
not to request from or recommend appointments to railroads, 291.
railroads and officers not to offer appointment to, 292.
not to accept or request passes, 292.
acceptance to work forfeiture of position, 292.
salaries of, 292.
clerks, experts, &c., 292.
free transportation of, and of clerks, &c., 292.
salaries and disbursements to be audited, 292.
total annual expense to be assessed on railroad, 293.
not to exceed $50,000, 293.
tax, how collected, 293.
constitutionality of provision for, 293.
construction of act, 293.
application of article V1 of Railroad Law, 294,
to receivers, 284.
to sleeping and drawing room car corporations, 294.
to other associations transporting passengers and freight on railroads,
294.
unlawful offers to, or to their employes, 365.
misconduct of, 365.
state engineer to file reports with, 471.
consent to change of gauge, 468.
consent to issue bonds for, 468.
may order ventilation, and lighting of tunnels, 468.
consent of, to abandonment of part of route of elevated railroad, 506.

RAILROAD COMMISSIONERS IN TOWNS, see Municipal Aid Bonds.
RAILROAD LAW, THE, 101, &c.

RAILS, see Roadway.

RAPID TRANSIT RAILROADS—

elevated railroads over street railroads, 221.
certificate of incorporation of, 103, 264, 280.
not to be formed under general railroad act, 104, 108.
INDEX. 647

RaPip Transir Ratvroaps— Continued.

amendment of certificate of incorporation, 106.
application for railway, 247,
verification of petition, 247, 249.
commissioners, 248,
construction of street railroads in streets with, 249,
commissioners, oath and bond of, 249,
first meeting, 249,
determination, 250, 258, 254.
notice to property owners, 251.
adoption of plans, 253.
to determine rate of fare, 254,
to determine as to capital stock, 254,
two or more routes, 254, 255.
to determine time for construction, 254, 255.
to determine aggregate pecuniary damage, 256, 257, 277.
to prepare certificate of incorporation, 264, 280.
proviso as to forfeiture, 264, 280.
to deliver certificate, 265.
to transfer plans to corporation, 270.
to make a report, 270.
confirmation of report, 271.
pay of, 272, 277.
quorum of, 272,
removal of, 272.
vacancies, 272,
terms of office of, 272,
for abandonment or change of route, 274.
consent of property owners, 250.
not located where, 250, 267.
supreme court commissioners, 250, 253.
constitutionality of provision, 252.
routes of, 251, 254, 255, 273.
route of, not exclusive, when, 252.
abutting owners, rights of, 253, 258-263, 271.
deposit of damages before construction, 256, 257, 278.
bond in lieu of deposit, 256, 271, 278.
payment of before construction, 271.
injunction to prevent construction, 258.
compensation to abutting owners, 253, 258-263, 271.
fee in the street, 258.
actions at law to obtain damages, 258.
rental value, 258, 259.
title of plaintiff, 258.
interest, 258.
consequential damages, 259.
fee value, 259, 263.
no damages for injury to personal property, 259.
effect of award in condemnation proceedings, 259, 261.
measure of damages, 259,
648 INDEX.

Rapip Transit RarLRoaDs— Continued.

benefits to property remaining, 259.
actions in equity, 259-263.
what may be recovered, 259.
right to jury trial, 260.
statute of limitations, 260.
effect of delay and acquiescence, 260.
buildings erected after railroad is built, 260.
parties, 260, 261, 263.
what evidence admissible, 261, 262.
expert evidence, 262.
smoke, gas, ashes, &c., 262.
lessor and lessee as parties, 263.
elements of damages, 259, 262, 263.
forfeiture of charter, 264, 265, 275.
proviso for, 264, 265, 280.
organization, 265, 266.
powers, 266, 267.
occupancy of public parks, &c., 267.
not to cross steam railroad at grade, 267.
piers not to be erected on street upon railway track, 267.
street surface railroad not to be constructed, 267, 268.
change of street surface railroad to, 267.
erossing of horse railroad track, 268.
where route coincides with another route, 268.
connections with steam railroads or depots, 269.
constitutionality of provision allowing existing companies! to construct on
routes adopted by commissioners, 269.
abandonment or change of route, 278-277, 505.
commissioners, 273.
survey and map, 276.
consents, 276,
extension of time for construction, 275, 280.
increased deposit, 278.
trains to come to full stop, 278.
gates, 279, 366.
penalty for neglect to comply with article, 279.
sectiuns to be printed and posted, 280.
provision for notice in condemnation proceedings not applicable to elevated
railways, 300.
misconduct of officials and employes, 366.
management of platform gates, 366.
abandonment of part of route of elevated railroad, 505.
notice to stockholders, 506.
public notice, 506.
approval of railroad commissioners, 506.
certificate to be filed, 506.
not to be constructed in Madison avenue without consent of property own-
ers, 506.
railroadsin parks, 507.
INDEx. 649

Rar Transit RattRoaps— Continued.

miscellaneous acts relating to, 474, &c.
hours of labor on elevated railroad, 474,
weekly payment of wages, 475.
penalty, 475.
assignment of future wages, 476.

RAPID TRANSIT RAILROADS IN CITIES OF OVER 1,000,000 INHABI-
TANTS—

preliminary note, 476.

validity of act, 477.

commissioners, appointment, vacancies, 477.
oath, 477.
first meeting of bourd, 478.
by-laws, 478.
rules, 478.
quorum, 478.
seal and record of proceedings, 478,
determination of necessity of road, 478.
general plans, 478, 480.
consent of property owners, 479, 481.
consent of local authorities, 479, 481.
general term commissioners, 479, 482.
parks excepted, 479.
streets excepted, 479, 480.
‘copy of plans sent to common council, 480.
detailed plans, 483.
expenses of supervision, 483.
abandonment before sale, 484.
public sale of franchise, 484, 485.
forfeiture of franchise, 484.
resale, 484,
terms of sale, 485, 486, 488.
capital stock, 486.
percentage to be paid in cash, 486.
bonded indebtedness, 486.
mortgage, 486.
rates of fare and freight, 486.
rejection of bids, 486.
readvertisement, 486.
term of franchise, 486.
resale on expiration of term, 486.
new corporation, 487.
officers of, 487.
engineers, attorneys, &e., 487.
preference of actions, 487.
appropriation for, 488.
general term may determine amount of appropriation, 488.
liability of city, 488.
audit and payment of expenses, 488.

*
650 INDEX.

Rapip Transit RarLRoaps in Large Crrves— Continued.

revenue bonds, 488.
expenses repaid by bidder, 488.
compensation of, determined by general term, 489.
approval of articles of association, 489.
subscripfions to stock, 489.
to call meeting for organization, 490.
preference to bidder, 490.
meeting for organization, 490, 491.
certificate of approval of by-laws, 491.
modification of plans, 492.
extensions and connections, 500.
corporations, how formed, 489, 491.
directors, qualification and election, 490, 493.
vacancies, 493,
exhibition of books at electiuns, 493.
payment of subscriptions to stock, 493.
by-laws, 490.
approved by commissioners, 491.
organization tax, 491.
offices, 492.
taxation, 491, 492.
exemption from during construction, 492.
stockholders liability of, 498, 495.
to laborers and servants, 494,
to employes of contractor, 495.
increase or reduction of stock, 494.
stock, personal estate, 494,
transfer of, 494.
increase or reduction of, 494.
condemnation of lands for, 496.
powers, 496.
voluntary grants of real estate, 496.
to purchase and hold real estate, 496.
crossings and intersections, 497.
conveyance of passengers and property, 497.
construction, 497.
public parks, &c., 498.
to borrow money and issue bonds, 498.
carrying of mails, 499.
to fix and determine connecting routes and extend line, 500.
removal of street railroad tracks, 502.
employes to wear badges, 498.
intoxication of, 500.
mails, carrying of, 499.
fare, refusal of passenger to pay, 499.
passenger refusing to pay fare may be ejected, 499.
accommodations for, 499.
freight, accommodations for, 499.
injury to property of, 500. "
INDEx. 651

Rap TRansir Ratroaps 1n Larae Crries— Continued.
dissolution of corporation by legislation, 500.
construction of act, 502.
New York city, street surface railroads not to be constructed in, 508.
repeal, 503.
bridge companies may construct elevated railways in lieu of bridge ap-
roaches, 504,

REAL PROPERTY—
what is, for purpose of taxation, 401.

RECEIVERS—

on foreclosure, duties of, 50, 451.
action by, to set aside mortgage not assented to, 51.
possession by, 56.
suits against, 56.
power of, to grant right to intersect railroads, 112.
certain rights of creditors not vested in, 98.
condemnation of lands when railroad in possession of, 122.
of consolidated railroad, partly in another state, 211.
appointment of, does not terminate lease, 214.
application to, of provisions relating to railroad commissioners, 294.
taxation of lands in hands of, 401, 404.
may be ordered to pay tax on franchise, 420.
statutory, application for appointment, where made, 450.

fees, 450.

place of deposit, 450.

to file account, 451.

affairs to be closed up, within what time, 452.

removal of, 452.

papers to be served on attorney-general, 453.

applications, where made, 453.

appeals, preference of. 453.
in foreclosure actions, 50, 451.

debts for rolling stock, 451.

certificates, issue of, 451.

as parties in actions, 452.

fees, 452.

payment of tax on franchise, 452.

transfer of powers to, 452.

liability for rent, 452.

motion for appointment, where made, 452.

notice of application to attorney-general, 452.
transfer of securities and property to, 455.
wages of employes preferred on appointment of, 458.
of corporations dissolved by legislature, 459.

constitutionality of act, 459.

duty of attorney-general, 459.

suit, where to be brought, 459.

receiver, 460.

inventory, 460.
652 INDEX.

RECEIVERS— Continued.
notice to creditors, powers and duties, claims, 460.
discharge, 463.
subpcenas, oaths, perjury, 463.
injunctions and suits against receivers, 463.
appeals, 463.

REMEDIES—
of land owner for unauthorized occupation, 11.
RE-ORGANIZATION—

/ upon sale of corporate property and franchises, 52.

certificate of, 52.
filing of certificate, 52.
tax on incorporation to be paid, 53.
rights of stockholders after, 53, 218.
purchase by a corporation, 52.
trustee with powers of, 54.
contents of plan or agreement, 54.
preferred and common stock, 55.
new corporation may issue stock and bonds, 55
saie of property, 56.
possession of receiver, 56.
suits against receiver, 56.
assent of stockholders, 56.
assent of municipal authorities, 56.
non-assenting stockholders, 57.

stock may issue after, 218.

not obliged to extend road after, 219.
consent of railroad commissioners, 219.
constitutionality of act, 219.
effect of passage of act on pending proceedings, 219.

REPEALING ACTS—

laws repealed by general corporation act, 42-46.
by the general municipal law, 348, 344.
by the statutory construction law, 357.
by the condemnation law, 325.

effect of, on rights accrued, 354, 355.
on proceedings for consolidation, 355.

REPEAL OF CHARTER, 1, 2, 3.

REPORTS—
annual, to railroad commissioners, 199.
quarterly to railroad commissioners, 199.
penalty for neglect to make, 199, 384.
of railroad corporations, 286.
forgery of, 376.
making or publishing false, 384.
refusal or neglect to make, 384.
REVISION, see Construction of Statutes.
INDEX, 653.

RIGHT OF WAY, see Powers, Condemnation of Lands, and Roadway—
payment for in bonds, 50.
ROADWAY—

width of, 110.
lands for additional tracks may be condemned, 125.
weight of rail, 146.
Canada thistles to be cut, 194,
walking on track, 195.
riding, driving or leading animals on, 195.
penalty, 195.
when persons on tracks are not trespassers, 196.
minor child on, 196.
rights of telegraph company on, 199.
injuries to, 390.
obstructions on, 390.
laying out highways across, 438, 439.
liens for labor on trestle work, &c., 443, 445.
removal of inflammable material from, in forest lands, 457.
change of gauge, 468.
of street surface railroads, use of sand on, 244, 245.
use of centre bearing rails on, 245.

ROLLING STOCK, see Cars and Engines, Mortgages and Conditional Sales,—
nature of, 50.
ROUTE, see Location of Route—

change of, 133-1386.
in cities and villages to be approved by common council, 134,
change of, at canal crossings, 185, 435.
by directors, 134, 135.
effect on subscriptions to stock, 135.
when reviewed by the courts, 155.
location of part of route in an adjoining state, 136.
one may construct where two roads have same location, 134, 136.
power of canal commissioners over, 435.
when necessary that part of route be tunneled, 137, 138.
tunnels in parks, 139.
consent of commissioners of highways to crossings, 435.
highways to be restored, 435.
across cemetery lands, 437.
across streets or avenues in New York city, 442.
sale of abandored canal for railroad purposes, 447.
corporation owning canal may construct railroad along or in lieu of, 449.

RULES AND REGULATIONS, see Powers.
power of corporation to make, 114.

SAFETY APPLIANCES—

to be used, 191-193, 370.
recommendation of railroad commissioners as to, 288.
654 INDEX.

SaFrety APPLIANCES— Continued.
guard-posts at bridges, 191, 370.
automatic couplers on engines and freight cars, 192, 370.
heating by stoves and furnaces, 198, 370.
injuries to, 372.

SEALS—

omission of, from municipal aid bonds, 337.
seal of corporation, how impressed, 351.
forgery of, 376.

SIGNALS—
altering, 391.
exhibiting false, 391.
at crossings, see Highways.

SLEEPING AND PARLOR CARS—

when passenger may ride in, without paying extra fare, 164.

extra fare on, 165.

liability of railroad companies for injuries on, 165.

effect of purchase of ticket for, on liability to traveller riding on a pass, 165,
177.

ejection of passenger from, for non-payment of extra fare, 165.

servants in charge are servants of railroad company, 165.

liability of companies operating, for baggage and parcels of passengers, 166,
169, 175.

for moneys stolen from passengers, 180.

application of provisions relating to railroad commissioners to companies
operating, 294.

tax on companies operating, 421.

SNOW AND ICE—
on street railroad tracks, 234, 235.

SPEED, see Municipal Corporations, Ordinances.

STATE ALD—
to railroads forbidden, 7.

STATE LANDS, see Commissioners of the Land Office,

STATIONS—
power to erect: and maintain, 113.
no obligation imposed, 113.
specific performance of a contract to erect, 113.
power to condemn lands for, 125.
companies to receive freight and passengers offered for transportation at,
154.
not to be discontinued without consent of railroad commissioners, 154.
no preference for the transacting of the business of a common carrier in, 154.
to have same name as village in an incorporated village, 155.
when two or more stations in one incorporated village, 155,
sale of tickets at, 156.
INDEX. 655

StTatTions— Continued.

trains to stop at, 156.

must be kept in safe condition, 176.

connection of rapid transit railroad with, 269.
recommendations of railroad commissioners as to, 288, 289.
damaging, by explosions, 391, 393.

highways not to be carried across lands acquired for, 434,

STAY OF PROCEEDINGS—

in action collusively brought, 36.
application to supreme court for stay, 36.
STEAMBOATS—

railroads in foreign countries may maintain lines of, 140.
connection of railroads with, 172.

STOCK, see Capital Stock.

STOCKHOLDERS, see Capital Stock—

rights of, on reorganization, 54-57.
agreement not to sell stock, 59.
loans to, 68.
withdrawal of capital stock by, 65, 66, 68.
transfers of stock by, when indebted to corporation, 68.
consent to issue preferred stock, 87.
prohibited transfers to, 87, 88.
not to transfer stock in contemplation of insolvency, 88.
can not avoid illegal transfers, 89.
transfers to, for value, 89.
payment by, of part of mortgage debt pending foreclosure, 90.
rights of, as against purchaser on foreclosure, 90.
lost certificates of stock, 91, 92.
may require financial statement, 92.
transfer agents of foreign corporations to exhibit books to, 93, 94.
liabilities of, to creditors, 3, 94.
to laborers, servants and employes, 94, 447.
person holding stocks as collateral security, 94.
as executor, administrator, &c., 94.
record of a judgment competent evidence, 95.
who is a stockholder, 95.
eftect of appointment of receiver, 95, 98.
defences, 96.
rights of laborers and servants, 96.
laborers and servants defined, 96, 99.
liability not penal, 96.
action in equity by creditors against, 96, 97.
sufficiency of certificate of payment of stock, 97.
on increase of stock, 97.
extent of liability on increase, 97, 98.
when action to enforce liability can not be maintained, 97.
a several right, not a joint right, 97.
656 INDEx.

STOcKHOLDERS— Continued.
‘“‘ereditors”’ defined, 97.
liability, how terminated, 97, 98.
liability, as affected by transfer of stock, 98.
for what debts, 97.
allegations of complaint, 99.
limitation on, 99.
effect of injunction on requirement that judgment be obtained, 100.
what is a judgment, 100.
when statute begins to run, 100.
in rapid transit railroads in large cities, 493-495.
consent of, to change of terminus to point of intersection with another road,
184.
to mortgage, 48.
to agreement for consolidation, 206, 207.
to mortgage property of consolidated corporation, 209.
to lease, 212, 218, 215.
to guaranty by street railroad of bonds of another company, 239.
to abandonment of part of street surface railroad, 241.
to change of gauge, 468.
to issue of bonds therefor, 468.
to abandonment of part of route of elevated railroads, 506.
effect on, of acquisition by lessee of stock of lessor company, 217.

STOVES AND FURNACES—
use of, on passengers cars forbidden, 193, 370.
construction of act, 194.
directors liable to indictment, 194.
does not conflict with inter-state commerce act, 194.
on dining cars, 193, 370.

STREAMS, see Navigable Streams.

STREETS, see Street Surface Railroads, Constitutional Law and Highways—

construction of railroads in, 3-5.
“local” and “private” acts, 4.
tunnel railroads in, 6.

STREET SURFACE RAILROADS—

certificate of incorporation of, 102, 103.

formed under ‘‘ General Railroad Act,” 104.

not to be constructed where forbidden by special acts, 107.
nor operated by individuals, 106, 107.

condemnation of lands by, 107, 122, 221.

filing of maps by, 107, 117, 120.

underground street railroad not, 107.

may adopt cable power, 1138, 223.

not to be organized under rapid transit act, 113, 267, 268.

intersection of a steam railroad, 132,

must exercise highest degree of care as to machinery used, 178.

4 8 bs
INDEx.

STREET Surrace RartRoaps— Continued.

injuries to passengers, 181, 196, 515.
to persons crossing the street, 514.
to passsengers riding on platform, 196.
not to be leased to an individual, 215.
parallel lines not forbidden to consolidate, 217.
must comply with certain provisions, 221.
extension of, 221, 227, 282, 288, 509.
power to condemn lands, 221.
legislature may authorize elevated railroads above, 221,
effect of general law on prior charter, 221.
consent of property owners,4, 5, 7, 222, 228, 228-231 ,7242.
consent of local authorities, 4, 222-227, 228, 230, 242, 248.
“local authorities,” 222, 223,
value of property, how ascertained, 222.
passing public square, 5, 222, 223.
nature of consent of local authorities, 12, 223.
filing of consents, 223.
connections with passenger stations, depot yards or stables 1 2238.
applicability of former statute, 223.
power to adopt cable system, 118, 223.
consent of local authorities, how obtained, 224.
what to contain, 224.
sale of franchise by local authorities, 224-226.
fare on extensions, 225, 227,
purchaser to be a railroad corporation, 225.
to file bond, 225.
notice of sale, 226.
effect of failure to pay rent or percentages, 226.
consent of local authorities, how and when terminated, 226, 227.
connection between two routes, 227.
connection with ferry or depot, 227, 239.
proceedings if property owners do not consent, 228-231.
application to general term of supreme court, 4, 5, 228, 230,
appointment of commissioners, 229.
report of commissioners, 229.
compensation of commissioners, 229.
filing of consents of local authorities, 230.
sufficiency of petition, 230.
percentage of gross receipts, when to be paid by companies, 231.
forfeiture of corporate rights for failure, 232.
extension over Hudson River bridges, 233.
when may use tracks of other companies, 233, 238,
compensation, how ascertained, 234, 239.
repair of streets, 234, 235.
rate of speed, ordinances as to, 234, 235.
ice and snow on tracks, 234, 235.
penalty for violation of ordinances, 234.
repaving, 130, 235.
within what time road to be built, 236.

164

657
658 INDEX.

STREET SuRFACE RaiLroaps— Continued.

forfeiture of franchise, 232, 236, 243.
motive power, 236.
change of motive power, 7, 10, 286.
consent of railroad commissioners, 236, 237.
consent of property owners, 236.
constitutionality of provision, 237.
fate, rate of, 225, 227, 237, 241, 242.
legislature may regulate and reduce, 238.
ejection of passengers for non-payment of, 238,
construction in street where another road is built, 5, 288, 240.
application to court, 238, 239.
extension over bridges, 233, 238, 246.
compensation, how ascertained, 239.
may guarantee the bonds of another company, 239.
consent of stockholders, 239.
consent of, to construction of another line in same street, 288-240.
constitutionality of prevision, 240.
construction of provision, 240.
‘portion of any street ” defined, 240:
crossing of the track of another company, 238-240..
abandoment of part of route by lessee or lessor, 241.
how ratified by stockholders, 241.
approval of railroad commissioners, 241.
declaration of, where filed, 241.
contracting corporations, to carry for one fare, when, 241, 242..
effect of dissolution of charter on consents, 242,
effect of failure to complete road, 248.
when sand may be used on tracks, 244, 245,
construction upon public grounds and parks, 245, 507.
center-bearing rails prohibited, 245.
crossing of substituted bridge, 246.
construction in street where rapid transit railway is located, 249.
piers for elevated railroads not to be constructed on tracks of, 267.
change to elevated railroad, 267.
intersection of, by rapid transit railroads, 268.
construction of, in streets and avenues of New York city, 442, 503.
application of act, 443.
miscellaneous acts relating to, 474, &e.
processions and parades not to interfere with passage of cars on, 47-4
hours of labor on, 474.
violation of act does not forfeit caarter, 474,
weekly payment of wages on, 475.
penalty, 475.
assignment of future wages, 476.
plank road and turnpike companies may lay down rails, 476.
removal of, during construction of rapid transit railroads, 502..
in parks in large cities, 507.

)

STRIKES, see Employes and Carriers.
INDEx. 654

SUPERINTENDENTS—

to report accidents to railroad commissioners, 287,
( may appoint agents to gather milk cans, 464,

. «+ SUPERVISORS—

|
application to, for construction of rapid transit railroads, 247.
actions by, to recover moneys misapplied by county treasurer, 338.
transfer of duties of railroad commissioners in towns to, 339, 345.
bonds of, 344,345.
compensation of, 347.
clerk of, to transmit statement of taxes to county treasurer, 413.
duties of, as to taxon capital, 407. :
statement to comptroller of tax on corporations, 407, 408.

SUPPLEMENTAL;CERTIFICATES—
names of directors supplied by, 107.

SUPREME COURT—
powers of, respecting elections, 34.
stay of proceedings by, in action collusively brought, 36.
extension of corporate existence by, 38.
application to, in lieu of consent of property owners, 41, 228-231.
application to u;justice of, to appoint commissioners to examine route, 118,
powers of justice, 118, 122.
appeal to general term of, 118.
power to compel erection of crossings for logs in timbered lands, 147.
order of, permitting construction on highways, 128.
power to appoint commissioners to determine as to railroad crossing, 131.
power to appoint commissioners to determine whether tunnel railroads
should be eonstructed, 138.
application to, for appointment of commissioners in case of private railroads,
142.
anay order flagmen to be stationed at crossings, 153.
gates at crossings, 153.
Application to, if companies can not agree as to expense of watchmen at

grade crossings, 158.
powers of, on refusal by railroad commissioners to certify to necessity, &c.,

of future railroads, 201.
may confirm judgment and sale of consolidated railroads partly in another
state, 211.
eertified copy of order, where filed, 212.
application to, when property owners do not consent to construction of street
railroad, 228-231, 233.
in case of change of motive power, 236,
extension of time for performance of acts, 236.
use and occupation of the track of another company, 238.
extension over bridges, 2388.
application to, for appointment of commissioners to determine whether
rapid transit railroad ought to be built, 250-253.
confirmation of report of commissioners, 271.
abandonmentor change of route, .273, 276.
660 INDEX.

Suprems Court— Continued.

appointment of rapid transit commissioners, 248.
may extend time for act to be done by elevated railroads, 280.
may compel compliance with recommendations of railroad commissioners, 288,
notice of presentation of petition to, in condemnation proceedings, 299,
appointment of commissioners in condemnation proceedings, 306.
report of commissioners, 307.
confirmation of report, 311.
final order, 311.
may grant writ of assistance in condemnation proceedings, 315.
appeals, 318, 319, 320.
may punish for contempt, &c., for disobedience to subpcena of comptroller,
in proceedings to tax corporations, 425.
appointment of commissioners by, in case of railroads in parks, 507.
appointment of commissioners by, in case of extension, &c., of rapid transit
railroads in large cities, 502.

SURVEY—

power of railroad to enter on lands for purpose of, 108.
constitutionality of provision, 108.
preliminary, 202.

SWITCHES—

safety, to be used on main line tracks, 191.
penalty, 192.

TAXATION—

incorporation under the laws of another state to evade, 26.
assessment of property of consolidated companies, 210.
annual expense of railroad commissioners assessed on, and collected from
railroads, 293.
taxes on railroads, when paid to county treasurer, 336, 338, 339, 414.
disposition of proceeds, 336, 338, 339.
constitutionality of provision, 338.
property subject to, 401.
“land ” for purpose of taxation, defined, 401, 422.
after appointment of receiver, 401, 404.
tunnel railroads, 401, 402.
elevated railroads, 401, 402.
lands, where taxed, 402.
of railroads leased to foreign corporations, not taxed as lands of non-resi-
dents, 402.
of railroads, not as lands of non-residents, 403.
valuation, 403.
fixed by legislature, 404.
of lands in hands of receiver, 401, 404.
of joint stock companies, 405, 415.
of capital, 405-409, 410, 411.
statement to assessors, 405.
statement to comptroller, 405.
penalty, 406.
INDEX. 661

Taxation— Continued.

suit therefor, 406.
how assessed, 406, 407. 411.
capital invested in U. S. bonds, 411.
how paid, 408.
collection, 408.
duty of attorney general, 409.
remedy by action, 409.
capital defined, 411.
deduction for real estate, 407, 410, 411.
for school district purposes, 412, 430.
apportionment among school districts, 412.
certified statement, 413.
alteration of districts, 413.
payment of taxes to county treasurer, 386, 388, 339, 414.
statement by clerk of board of supervisors to county treasurer, 413,
proceedings on non-payment of taxes, 414.
payment of taxes to collectors, 415,
on franchise and business, 415.
report to comptroller, 415, 417, 420, 423.
appraisal of capital stock where no dividends declared, 416.
dividends less than 6 per cent. declared, 416, 419.
certificate to comptroller, 416.
valuation of stock by comptroller, 416.
appeal, 416, 417.
stock held in U. S. bonds not deducted, 416.
capital invested in patent rights not deducted, 417.
interstate commerce, 416, 419.
what is not a dividend, 417.
failure to make report to comptroller, 417, 423.
failure to pay tax, 417, 422.
ten per cent. added to tax, 417, 418, 422.
proceedings by attorney general, 417.
forfeiture of charter, 417.
action to recover taxes, 422, 433.
compensation to person furnishing information, 433.
computation of tax, 418, 419, 421, 423.
common and preferred stock, 418.
collection of tax, 417, 422, 433.
liability to tax, 419, 423.
foreign corporations, &c., 418, 419, 420, 421, 423.
domestic corporations not doing business in this state, 420.
manufacturing company exempt, 418, 420, 423.
lien upon property of insolvent corporation, 420.
e railroads, 420.
sleeping aud parlor car companies, 421.
express companies, 421.
when and how paid, 420, 421.
exemption from taxation for state purposes, 422.
application of tax, 422.

,
662 INDEX.

“‘TaxaTIon—Continued.

basis of tax, capital employed in this state, 423, 426.
when comptroller may fix tax and penalty, 423, 424.
powers of comptroller, 424.
supreme court may punish as for a contempt, 425.
supreme court may issue attachment, 425.
settlement and adjustment of accounts by comptroller, 426.
interest after, 427.
notice of, 427.
review of by certiorari, 427.
notice of application for certiorari, 427.
deposit and undertaking, 427.
issue of warrant for collection, 428.
revision and readjustment of accounts settled, 429.
review by certiorari, 429.
payment of school taxes, 430.
statement to county treasurer, 430.
payment to county treasurer, 480.
collection of school taxes, 431.
disposition of taxes, 481.
payment to collector, 431.
highway tax, commutation of, 434.
organization tax, 18, 432, 491.
rate, 432.
on reorganization, 53.
increase of capital stock, 432.
tax paid before certificate filed, 18, 432.
on consolidation, 204, 482.
application of, to general fund, 433.
on rapid transit railroads in large cities, 491.
of rapid transit railroads in large cities, 491, 492.

TELEGRAPH—

railroads in foreign countries may maintain and operate telegraphs, 140.
liabilities of railroads to employes of telegraph companies, 177.

injuries to lines of, 392.

rights of companies on roadway as a post road, 199.

‘TELEPHONES—

effect of operation of electric railroad on, 237.
‘TERMINAL FACILITIES—

cecommendations of railroad commissioners as to increase of, 288.
TERMINUS—

termini to be stated in certificate of incorporation, 102.
how stated, 105, 106.
change of, map filed on location could not effect, 120.
change of, generally, 133-136.
not to be changed to any county but an adjoining county, 134.
INDEx. 663,

TERMINUS— Continued.

consent of taxpayers where municipal aid bonds have been issued, 134,

at intersection of another railroad, 134, 136.

what constitutes, 135.

not prevented by an action under the statute to secure the rights- of
the public in highways, 468. :

THISTLES, see Roadway.
TICKETS—

exhibition of, in passenger depots, 114.
ejection of passengers from cars for not producing, 114, 161-164.
sale of, for a particular train, 156.
forged, 378.
unauthorized, 386, 387.
unauthorized sale of orders, receipts, &c., for tickets, 386..
conspiracy to sell in violation of law, 386.
offices for unlawful sale, 387.
punishment, 387.
to immigrants, 388.
tickets to immigrants, what to contain, 440.
at stations one half hour before starting, 465.
may constitute contract limiting liability of carriers, 177.
company liable for failure to stamp destination on coupons, 180-
limitations on use of, in, 162, &c.
‘* good this date only,” 162.
“¢ good this trip only,” 162.
‘to be used” within limited time, 162, 163.
‘good for continuous trip only,” 162.
in sleeping and parlor cars, 165.
provisions in, limiting liability for baggage, 167.
connecting steamboat lines, 171.
refusal to sell, 172.
not necessary to constitute a passenger, 175, 176.
drover’s passes, 176.
employes collecting, must wear badges, 166.
forgery of, 378.
larceny of, 380.
rebate, for extra fare paid on cars, 465.

TIMBERED AND FOREST LANDS—
crossings for transportation of logs, &¢., in, 147.
TOOLS, see Cars and Engines—
TOWN OFFICERS—
may grant lands to railroads, 126.
TRACKS, see Roadway.
TRAFFIC CONTRACTS, see Leases and Contracts.
664 INDEx.

TRAINS—

to be run at regular times fixed by public notice, 154, 156.

sufficient accommodations for passengers and property to be furnished, 154,

no preference for the transaction of the business of a common carrier on,
154, 155.

company not responsible for delay when it runs as many trains as it can
safely, 156.

sale of tickets for a particular train, 156.

passengers to have sufficient time to leave, 156.

neglect to run, as a ground for forfeiture of charter, 156.

to stop at grade crossings, 157, 158.

not to be stopped on grade crossings, 158.

TRAMPS—

act for punishment of, 459,
TRESPASSERS—

liability of company for ejection of, 164, 181.
when a person on track not a trespasser, 196.

TRUSTEES—

liability of person holding stock as, 94.
TRUSTS, see Combinations.
TUNNEL RAILROADS—

may be “street railroads,” 6.
construction of, 137, 138, 139.
not to be on or along canals, 137.
consent of property owners in cities and villages, 187, 138.
consent of municipal authorities, 138.
appointment of commissioners by the court, 138.
in public parks or squares, 139. ,
what to be shown on application to Court, 188, 139.
constitutionality of former statute, 139.
other railroad corporations may connect with, 1388.
consolidation with other railroads, 203, 204.
to grant equal facilities to other railroads, 204.
taxation of, 401, 402.
right of legislature to appropriate soil of streets, 477.

TUNNELS—

ventilation of, 468.
powers of railroad commissioners, 469.
notice to company, 469.
mandamus, 469.
violation a misdemeanor, 470.
fine and enforcement as a judgment, 470..
devices above ground in certain cities, 470.
lighting of, 469.
powers of railroad commissioners, 469.
ADDENDA AND ERRATA. 665,

ry.
T UNNELS— Continued,

notice to company 469.

Inandamus, 469,

violation, a misdemeanor, 470.

fine and enforcement as a judgment, 470.
devices above ground in certain cities, 470.

TURNPIKES, see Highways,
ULTRA VIRKES, see Powers—

lease of railroads to an individual, 214.
usurpation of authority to be reported by railroad commissioners to attorney
general, 287,

UNIFORMS, see Employes—

advising officer, &., to leave employ of company because uniform is required,
370.
wearing without authority, 370.

UNION RAILWAY DEPOTS—

railroad companies may acquire stock in corporations formed for the erec-
tion of, 115.

WATER—

to be provided in passenger cars, 192.
penalty, 192.

WINTER—

certain railroads may cease operations in, 148, 197.

 

ADDENDA AND ERRATA.

Page.
11. See DeWitt v. The Himira Transfer Co., 184 N. Y., 495.
30. An irrevocable proxy given as security for a debt is invalid, in re Germicide-
Co., 65 Aun, 606.
51. McComb v. Barcelona Aptmt. Assn., 1384 N. Y. 598.
57. Brooks v. Dick, 48 St. Rep., 555 ; 32 N. EB. 2380.
58. A corporation can not cease to exist of its own will. It can not sell all of its-
property to a foreign corporation, organized through its procurement with
a majority of non-resident trustees for the purpose of taking its place and’
its assets and carrying onits business. People v. Ballard, 134 N. Y., 269.
66. Skinner v. Smith, 134 N. Y., 240.
79. Ryder v. Bushwick B. R. Co., 184 N. Y., 83.
89. For Troop read Thrvop.
99. Gold v. Clyne, 184 N Y., 262. .
110. Title to wharf property owned by a railroad company may be acquired by the
City of New York. In re City of New York, 31 .N. H, 1043; 47 St. Rep.,.
816.
116. Greenwood L.& P. J. R. R. Cov. N.Y. & GL. BR. R. Co., 184 N. ¥., 485.
127. See N. ¥Y. 0. & H. BR. R. Co, v. Aldridge, 32 N. E., 50; 48 St. Rep., 378.
666 ADDENDA AND ERRATA.

129. The assent of the municipal corporation may become absolute, but the ques--
tion whether such crossing impairs the usefulness of the highway is not fore--
closed by such assent. D., L. & W. R. R. Co. v. Buffalo, 65 Hun, 464.
133. For B, N. ¥. & Erie R. R. Co., read N. Y. & Erie R R. Co.
149, The company may be required to construct a crossing below grade, Beardsley
v. Lehigh Val. R. R. Co., 65 Hun, 502. ; 7
The company may be liable for injuries caused by the defective construction
of a farm crossing, Cottonv. N. ¥., L. E. & W. R. R. Co., 20 N. Y. Supp.,-
347; 48 St. Rep., 89.
See as to the wording of L. 1890, Ch. 565, Peckham v. Dutchess Co. R. R. Co.,.
20 N. Y. Supp., 39; 47 St. Rep., 182.
154, People v. L. I. R. R. Co., 184 N. Y., 506.
169. For Bunnell read Burnell.
1%. For North. R. R. of N. Y. read North. R. R. of N. J.
181. With Gray v. Roch., C. & B. R. R. Co. see Herdt v. Same, 20 N. Y. Supp.,
346 ; 48 St. Rep., 46. .
216. See as to lease of a street railroad on condition that consents be obtained, At--
lantic Avenue R. R. Co., v. Johnson, 134 N. Y., 375.
235. See V. Y., LZ. E. & W. R. RB. Co. v. Dunkirk, 65 Hun, 494.
237. Hudson River Tel. Co. v. Watervliet T. d&: R. R. Co., 82 N. E., 148; 48 St. 4
Rep., 417.
260. Werfelmann v. Man, Ry. Co., 184 N. Y., 613.
263. Woolsey v. N. Y. El. R. R. Co., 184 N. ¥., 3238.
267. Porth v. Man. Ry. Co., aff'd, 134 N. Y., 615.
In re Atlantic Ave. R. R. Co., aff'd, 49 St. Rep., 389; 32 N. #., 771.
309. For Pardy read Purdy. ea
829, 380, 383, 337. Town of Solon v. Williamsburgh Sav. Bk., (see Williamsbd. Sav...
Bk v. Town of Solon, 65 Hun, 166, detached coupons bear interest, id.)
338 and 339. In re Clark v. Sheldon, 134 N. Y., 333.
363. Swiftv. St. Is. R. T. R. R. Co., 48 St. Rep., 981; 32 N. E., 647.
Vandewater v. N. Y. d&: N. E.R. R. Co., rev'd, 49 St. Rep., 55; 82 N.E., 636.
419, 421. Peo. ea. rel Penn. R. R. Co. v. Wemple, 65 Hun, 252.
467. As to how a highway may be created, see City of Cohoes v. D. d& H. Can, Co.,.
134 NW. ¥., 397.
473. This act has been held unconstitutional in People v. Phyfe, (Ct. Ap.) not yet
reported.

477. 480, 482, 483. In re Bd. of Rapid Transit Comrs., 65 Hun, 63. ‘
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